New Clause 5 — Memorandum of Understanding

Alcohol Marketing – in the House of Commons at 3:41 pm on 30th March 2011.

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‘(1) The Secretary of State must publish a Memorandum of Understanding on the Operational Responsibility of Chief Constables detailing where their actions shall be independent of the Police and Crime Commissioner.

(2) The Secretary of State may by regulations made by statutory instrument bring into force the Memorandum of Understanding published under subsection (1).

(3) Regulations under subsection (2) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of each House of Parliament.’.—(Vernon Coaker.)

Brought up, and read the First time.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

I beg to move, That the clause be read a Second time.

Photo of Nigel Evans Nigel Evans Deputy Speaker (First Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Amendment 149, page 2, line 44, clause 2, at end insert—

‘such that the police and crime commissioner shall have no involvement in decisions with respect to individual investigations and arrests.’.

Amendment 155, page 4, line 15, clause 3, at end insert—

‘(8A) The Mayor’s Office for Policing and Crime must not ask, require or encourage the Commissioner of Police of the Metropolis to act in a manner which could—

(a) put the Commissioner in breach of his attestation under oath in accordance with Schedule 4 of the Police Act 1996; or

(b) conflict with the Commissioner’s exercise of direction and control under section 4(3).

(8B) If the Commissioner of Police of the Metropolis reasonably believes that the Mayor’s Office for Policing and Crime has asked, required or encouraged him to act in a manner that is prohibited under subsection (8A), he may notify the London Assembly police and crime panel.

(8C) For the avoidance of doubt, any purported direction by the Mayor’s Office for Policing and Crime under subsection (8A) has no legal effect.’.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

This group of provisions is smaller, but none the less important. It is difficult for us to discuss new clause 5 without a draft of the code of practice, memorandum of understanding or protocol, as we are now to call it. He will know that in Committee

I consistently and persistently asked for a draft to be ready for our consideration. To be fair, he did not say that one would be ready for Report, and I am not suggesting that he did, but I expected that a draft of a draft of a draft would be available, and I think that most members of the Committee would have expected the same.

A huge change to policing is being made. The Minister and the Government have accepted what I said and what was in the Home Affairs Committee report, which was that such is the importance of the protocol detailing the responsibility of the police and crime commissioner vis-à-vis the chief constable—others, for example, the police and crime panel, could be included, as has been suggested—we should have it, yet we are discussing it without knowing even what shape it will be. We do not even know what things might be included in it. The Minister will say, “Don’t worry, it will be ready for the House of Lords.” Why should this House not have a draft available to it, so that it can consider what is in the protocol and make representations about it?

We have no way of knowing what will be in the protocol. Let us suppose it contains things that members of the Committee think should not be in it. I do not know what influence Dr Huppert will have, but what happens if he does not agree with what is in it? He will have no opportunity to say anything about it. Nigel Mills served on the Committee with the hon. Member for Cambridge. What happens if he thinks that the protocol should not include one thing but should include another? Why should we not be able to look at it?

If the Minister was stood where I am and I was sat where he is, he would be saying exactly the same thing to me. He would be saying that it is impossible for us to legislate properly because we simply do not know what we are legislating about. It is not good enough to say, “Don’t worry, it will go to the House of Lords.” We have the most fundamental change in policing before us and we have no idea what the Government’s protocol is, although they have accepted that we should have it—that is not good enough. I do not believe that hon. Members on either side of the House would think, either in public or in private, that that is acceptable either. How does, “It will be ready for the Lords” help us to discuss this?

New clause 5 states that any such protocol must have some statutory force. The Association of Chief Police Officers believes it should be enshrined in primary legislation. The Minister said that would be very difficult, so we looked at whether an order-making power could be introduced to allow us to consider the protocol, as it would then be subject to the affirmative procedure in this House and the House of Lords.

Photo of Greg Knight Greg Knight Chair, Procedure Committee 4:00 pm, 30th March 2011

Does the hon. Gentleman accept that the new clause, as drafted, is in pretty poor shape? Even if we accepted it into the Bill, could not the Minister publish a memorandum under subsection (1) containing the word “none”?

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

That might be a good debating point, but as a Bill goes through the House we need to debate its principles and the right legislative approach. We do not have the Queen’s counsel support that is available to the Minister, so the odd drafting error might occur, but that does not alter the thrust of what we are trying to do through the new clause. If the right hon. Gentleman had been here for the earlier debate he would know that the Minister, even with his bank of lawyers, supporters and helpers, has had to propose a number of amendments to correct drafting errors. So it is not only me who makes the odd drafting error, but I am doing it on my computer. Notwithstanding any drafting error, if we regard as right the principle that a protocol or memorandum of understanding should be subject to the affirmative resolution procedure of the House, we should support it.

In its evidence and the report it issued yesterday, ACPO said that

“there are three broad areas where we believe improved safeguards are required”.

I shall deal with only the first of those three, as it relates to the new clause. ACPO said of the first area:

“Clarity on the responsibilities of the PCC”— the police and crime commissioner—

“and Chief Constable. The proposed ‘protocol’ is still early in its development. We believe such a key document will need to be specific and legally binding—such as through a Code of Practice founded in law.”

That was ACPO’s advice yesterday. It continued, at paragraph 50:

“ACPO has real concerns that the Bill does not fully recognise the uniqueness of the tripartite system between the Home Secretary, Chief Constables and local democratic governance. It is considered that the Bill places too much emphasis on local considerations giving disproportionate power to the PCC to the detriment of the necessary national and legal responsibilities placed upon the Home Secretary and Chief Constables. Our concern is to ensure that Chief Constables have sufficient operational independence safeguarding their impartiality to balance the various duties and accountabilities they face. Currently, it is at best uncertain that the safeguards under development in parallel with the progress of the Bill will achieve that aim.”

I think ACPO is clearly telling the Minister that he needs to amend the Bill in a similar way to that suggested in my new clause.

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

The hon. Gentleman is telling us what ACPO said yesterday, but it is not easy for the Minister because ACPO has previously taken an entirely different line. Sir Hugh Orde told the Home Affairs Committee that he did not want anything entrenched in legislation.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

No doubt members of ACPO, including Sir Hugh Orde, its hugely respected president, will have considered the discussions on the Bill and will have continued to discuss it with colleagues in deciding on the most appropriate advice and guidance to give the Government. ACPO has regularly said that it is for the Government to determine the governance structure, but it will do its best, whatever structure is finally decided, to implement it and deliver the policing that we would all wish to see. However, it also has a responsibility to point out to the Government where there are problems, and it has done so in guidance. There is a serious need for clarity from the Government regarding the memorandum of understanding, code of practice or protocol.

It is not acceptable for this issue not to be subject to a legislative process, and I should be interested to learn whether the Minister agrees. He has agreed that there should be a protocol, and a draft is in the throes of production—no doubt, a group is working on it and discussions are under way. I suspect that there are disagreements, which is why it has not been issued yet—it is proving more problematic than the Minister expected.

We need a protocol, because we need to clarify the role of the police and crime commissioner vis-à-vis the chief constable. In Committee, we debated at length what their respective roles should be. The police and crime commissioner is elected on a local mandate and will make certain promises, but what is their mandate vis-à-vis the chief constable? Where is the line drawn between what the commissioner would wish to do and the chief constable’s operational responsibilities?

It is interesting that an amendment has been tabled by some of the Minister’s colleagues, who are as concerned as I am. Indeed, the Chair of the Home Affairs Committee, my right hon. Friend Keith Vaz, has added his name to amendment 149. Mark Reckless is the lead Member for the amendment, and he is clearly concerned. The amendment has a great deal of merit, and it tries to deal with the issue. The hon. Gentleman is trying to clarify whether a police and crime commissioner has the opportunity to tell a chief constable to investigate a crime. Is it any crime, or no crime? Is that just a matter for the chief constable? Does the commissioner have any power over that?

What about the funding of units? Can the commissioner tell the chief constable what units they should have? On the apportioning of resources, the Minister looked very upset when I quoted the report by Her Majesty’s inspectorate of constabulary, which showed that only 5% of police and community support officers were not in the back office. What about the commissioner’s ability to say what the correct mix of staff is? They might not want to see as many people doing a particular job, and may want to civilianise. The Minister’s favourite thing at the moment is looking at outsourcing. What if a commissioner does not believe in that? Whose responsibility would it be?

What about the reorganisation of policing? Who has a say on that? What equipment can or cannot be used? It may be an operational decision to use horses or dogs in a public order situation, but does the commissioner have any jurisdiction or say in whether the police have a police or horse section? Is that an operational responsibility? If we had a draft protocol, we could begin to understand the differences in those areas.

We have just seen the police do a very good job overall at the weekend, and I praised the Metropolitan Police Commissioner for it. However, when I recently saw him we discussed containment. What right does a police and crime commissioner or someone else have to tell a chief constable that they had dealt with such a situation wrongly? Does the police and crime commissioner have the right to do more than express an opinion? Police and crime commissioners are directly elected. We are not talking about a police authority. Police and crime commissioners will not be appointed by the Mayor and unelected, as in London. Who has the responsibility for making such decisions? These are hugely serious issues that worry many people across the country.

The Minister’s response is, “It won’t be a problem. Don’t worry about it. Good sense will prevail. Why should the doomsday scenario presented by the shadow Minister happen?” That is a pretty poor way to legislate when we are dealing with such a serious matter. It is not enough to say, “Don’t worry. It won’t happen. Everybody’s good sense will prevail.” The amendments before us are important. Clearly, I am not the only one who is worried.

Photo of David Winnick David Winnick Labour, Walsall North

Has my hon. Friend noticed the lack of enthusiasm for the concept of police and crime commissioners? A good test in the House of Commons, as he knows full well, is whether, on a free vote—which obviously is not going to occur—the Government’s project would command a majority.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

No, on a free vote, I do not think the measure would go through. I agree with my hon. Friend. It will be even more interesting to see whether, on a free vote, the new clause, which seeks to give a legislative base to the protocol between police and crime commissioners and chief constables, would be supported by a majority. I suspect it would.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

My recollection of the discussion that took place in Committee is that the Minister repeatedly claimed that one of the arguments for a police and crime commissioner was that the public would know who to go to and who to complain to. There would be a single point. He cited the rise in the number of complaints when the Mayor of London took on that responsibility. Is it not the clear message of amendment 149 that the public will go to the commissioner with the expectation that he can intervene in investigations and cases? Unless it is spelled out in new clause 5 or in the amendment, we will be electing people on a false prospectus because the expectation will be that the commissioner has that power. This illustrates the dilemma that the Minister has created.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

I agree. That is the point I am making. An individual will stand for election in a police force area, saying, “I will ensure that there are X number of officers in this area and that area. I don’t want to see Tasers used. I don’t want to see such-and-such equipment used. I want to see the police patrolling not in pairs, but singly. I don’t want to see police in cars.” It will not be possible to stop someone saying that in their election manifesto. They are not going to stand for election saying, “I think everything’s wonderful. Vote for me.” What sort of election slogan is that? They would not get elected.

Candidates will stand on an exciting, impassioned, inspirational agenda for change in policing in that area. My hon. Friend is right. That is the nub of the dilemma that the Minister faces—what happens when that individual, enthused with their election victory, or determined to be re-elected, tries to influence what the chief constable does?

Photo of Mark Tami Mark Tami Opposition Whip (Commons)

Does my hon. Friend agree that the scenario that he describes will be worse when there is a second round of elections? The police commissioners will be trying to stay in the job and others will be saying how incompetent they are and trying to introduce change. It will be the constant agenda of candidates to run down the police and offer change—sometimes change for the sake of change.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

That is a very real danger. The Minister will no doubt try to say that he will address that through the protocol because it will lay out what can and cannot be done. It would have been extremely helpful if Members had even a draft to consider. Without it, it is very difficult for us properly to consider and debate the new clause. Having said that, the new clause is extremely important.

Photo of John Mann John Mann Labour, Bassetlaw 4:15 pm, 30th March 2011

Has my hon. Friend considered the dilemma of a member of a political party being elected and the same police force being requested to investigate election irregularities of another party member—for example, a Member of Parliament who is re-standing in that police area—if the decision on whether the issue should be investigated by the police is marginal? Has he considered that dilemma that the Government are about to create?

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

That is another interesting dilemma that might arise. No doubt there are many other such examples in which we could point out the dangers.

I cannot stress enough how important the police feel this is and how important I think it is. I am sure that we will all listen to the Minister when he responds not only to the lead new clause but to the amendment tabled by his hon. Friend the Member for Rochester and Strood.

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

I should first declare an interest as a member of the Kent police authority. I thank Vernon Coaker for his testimonial to my work in that role, which—who knows?—might find its way into one of my election leaflets.

We have heard about the protocol—let us call it that, so that we use common language—and I note that the shadow Minister refers to operational responsibility in the new clause. It would be great to have a clearly agreed definition for operational independence or responsibility as it is, but it is enormously difficult to do that. ACPO’s position has changed on that, which does not necessarily assist us. The Home Affairs Committee visited ACPO two days ago, and it seems that the draft protocol is bouncing between it and the Home Office. ACPO had no objection to the draft being shared with the Committee when we asked for it. Will the Minister give the Committee sight of the protocol, even if it is still an early draft?

Amendment 149 is a probing amendment, because it is very important to get the views of the House and of the Minister on the record. I have tried to emphasise a point that arose from the 1962 royal commission, which is that there is an important distinction, as I put it in the amendment, that the elected commissioner

“shall have no involvement in decisions with respect to individual investigations and arrests.”

That is an important constitutional protection. The Minister spoke quite strongly on that both on Second Reading and in evidence to the Home Affairs Committee. I am slightly concerned that one remark he made in the Committee, regarding the potential for too strict an interpretation of what Lord Denning said in 1968, should not be taken out of context. The context, as the Home Secretary said on Monday, is that we anticipate that it will be the elected commissioner who is in charge, as with the Mayor of London.

The Minister was very clear on Second Reading and when he gave evidence to the Committee on the role and importance of the elected commissioners and that what we are doing is rebalancing the tripartite system, moving from a police authority leg that has traditionally been too weak and bolstering the role of the democratic and local element with the directly elected commissioner.

I raised that point with the Minister in the Committee on 27 July last year, and asked whether there was any possibility of an incompatibility between what we intended with the legislation and what Lord Denning said in ex parte Blackburn in 1968. The Minister’s reply was important. He said:

“It is often stated, quoting Lord Denning's dictum that the police should be answerable to the law and the law alone. I think that is right in the sense of when they are exercising their powers of arrest and so on that that should not be subject to any kind of political interference. We would all agree about that but, clearly, somebody has to set the police budget and the strategic direction of the police, so there has to be accountability to someone, and our premise is that that should no longer be to the centre, to a faceless bureaucrat, to the Home Secretary; it should instead be to local people through the election of the police and crime commissioner.”

That is what we intend to achieve with the Bill, and it is a distinction that is consistent with what we saw back in the 1962 royal commission.

As Mr Winnick knows, the Select Committee received some helpful legal advice on this matter that read:

“This part of Lord Denning’s judgment is not strictly binding as it went beyond the range of issues that had to be decided in that case, and is therefore obiter.”

We then had an assessment from our legal advisers on a leading academic text in this area by Richard Clayton QC and Hugh Tomlinson QC, whose conclusion on Lord Denning’s judgment was:

“The doctrine is an exorbitant one and its legal foundations are very slight”.

I had a look at that leading text and some of the academic debate on the difficulty of defining operational independence and what it was considered to mean. Richard Clayton and Hugh Tomlinson referred to section 6(1) of the Police Act 1996, which the Bill carries over, and wrote that it

“appears to create a specific sphere of responsibility for the police authority”.

They go on to state that section 10(1), which deals with the direction and control of the chief constable, is subject to that provision, and

“only covers immediate operational direction and control but does not bear on the question of the extent to which the chief constable is under supervision of the police authority.”

The Committee went into the academic literature in more detail. We heard from Rick Muir, from the Institute for Public Policy Research, who has done much work—from the left—on this key issue. He agreed with me when I asked whether there was a distinction

“between the individual cases, where clearly the police should have independence in terms of arrest and investigation in those individual cases, and the broader spectrum of setting priorities, determining where budgets are spent and setting policy in general, which is properly the field of elected politicians”.

He observed that unfortunately confusion had arisen because wrongly there had been a

“tendency of chief constables to take Denning to mean that they are in charge of strategy”.

We do not have before us this protocol that the hon. Member for Gedling referred to, but the Committee was able to draw out some of the key issues.

My amendment emphasises the position in 1962. Unfortunately, when Denning made his judgment, he did not have the advantage of being able to refer to proceedings in the House. Judges have been able to do that only since Pepper v. Hart in, I think, 1994. The key 1962 royal commission, which set the consensus on operational independence, was summarised by the legal advisers in a report to the Committee. They wrote:

“The Royal Commission on Police emphasised the need for impartiality and operational independence of the police in relation to ‘quasi-judicial’ decisions”.

The royal commission included in those quasi-judicial decisions

“inquiries with regard to suspected offences, the arrest of persons and the decision to prosecute,” adding:

“In matters of this kind it is clearly in the public interest that a police officer should be answerable only to his superiors in the force and, to the extent that a matter may come before them, to the courts. His impartiality would be jeopardised, and public confidence in it shaken, if in this field he were to be made the servant of too local a body.”

The commission said in respect of other duties:

“It cannot in our view be said that” they

“require the complete immunity from external influence that is generally acknowledged to be necessary in regard to the enforcement of the law in particular cases.”

As our legal advisers point out, those other duties include

“general policies in regard to law enforcement…the disposition of his force, the concentration of his resources on any particular type of crime or area, the manner in which he handles political demonstrations or processions” or

“his policy in enforcing the traffic laws and…dealing with parked vehicles”.

That clear distinction has therefore run all the way through, from the royal commission in 1962 to the evidence that the Home Affairs Committee has taken. That is what I am trying to emphasise with my amendment 149; indeed, it is also what the Minister emphasised when he appeared before the Committee. I would therefore be grateful if he confirmed that he does not resile from any of those remarks.

The other important point to make about Denning’s judgment in 1968 is that it related not to what a police authority could do in terms of a chief constable, but to what a single individual, Mr Blackburn, who as a publicly spirited gentleman came to court with a judicial review, could do. The question was about the extent to which he as an individual could require the Metropolitan Police Commissioner to implement policing in a particular operational manner. That distinction is made clear by further material, including the 1988 case of Hill v. Chief Constable of West Yorkshire, in which it was clearly drawn. In that case, Lord Templeman said:

“The question for determination in this appeal is whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force.”

He concluded:

“A police force serves the public, and the elected representatives of the public must ensure that the public get the police force they deserve.”

It is clearly right that there can be no interference in individual investigations or arrests, but it is important to look at the issue from both sides.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I am grateful to the hon. Gentleman for bringing to the House’s attention what I think is a dilemma that the Minister has created. As I have been listening to the hon. Gentleman, I have been reflecting on what would have happened if we had had police and crime commissioners at the time of the Stephen Lawrence murder and the subsequent inquiry. Does he think that it would have been possible for the police and crime commissioner to fulfil the requirements of both clause 1(8)(g) and his amendment 149?

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

Perhaps the hon. Gentleman could cite that provision, which I do not have to hand.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I apologise. Clause 1(8)(g) places a responsibility on the police and crime commissioner to

“hold the chief constable to account” for

“the exercise of duties relating to equality and diversity that are imposed on the chief constable by any enactment.”

In particular, I am thinking of what came out of the Lawrence inquiry.

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

Yes, absolutely. What we saw in that instance was a failure in the operational direction of the Metropolitan police. Rather than waiting years and years for an inquiry to make the Metropolitan police have appropriate respect for diversity and follow up on such crimes in the way it should, a directly elected commissioner with sufficient authority could have pressed for that much more quickly. Indeed, that is one area where we would be looking for clear, elected oversight and guidance for the police.

Photo of Nigel Mills Nigel Mills Conservative, Amber Valley 4:30 pm, 30th March 2011

On the point that Steve McCabe just made, I note that my hon. Friend’s amendment states that

“the police and crime commissioner shall have no involvement in decisions with respect to individual investigations”.

If there were a high-profile murder, would my hon. Friend think it appropriate for the commissioner to say to a chief constable, “I think you should put more resource into that investigation. What you are doing now is not sufficient and there is real community concern”? Or is my hon. Friend saying that that would be inappropriate?

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

That is a very good example, which helps to elucidate the point. It would not be appropriate for the elected commissioner to say, “On this particular individual investigation I would like fewer”—or more—“police”, or, “You should investigate it in this way rather than that.” We do not look to the elected commissioners to do that, but I see a strong role for them in ensuring that justice is colour blind and that the police do not make assumptions about a witness or potential suspect on the basis of ethnicity or any other inappropriate basis. We have seen strong progress by the police in that area, but, with the Macpherson inquiry and the way in which some measures have been rolled out, there has not necessarily been the sensitivity that there might have been. The elected commissioner will have a relationship with the wider electorate, however, so they will sometimes be in a position to lead the police in particular areas regarding social attitudes.

I have huge respect for the police, given my work with them in Kent, but there are particular traditions in policing and the work force are made up in a particular way. Those things have changed, with a very welcome and greater number of women now working as police officers, and there has been a significant improvement in black and minority ethnic representation. In Kent, we had the first black chief constable in Mike Fuller, who did an extraordinary job of engaging with the public and involving them closely with the work of Kent police. The police have a significantly smaller proportion of graduates, although it is higher than it was, and the elected commissioner will be able to lead in those areas. I look to him to do so.

I emphasise to the House that the distinction I draw, going back to the 1962 royal commission at least, works both ways, and I am very concerned about budget setting, priorities and some of the management of public protest. My hon. Friend Mr Burley asked some probing questions of various witnesses, but the question of whether there should be a presumption that police officers will travel in pairs, and the extent to which officers might be on bicycles, on foot or in cars, are very properly areas for elected oversight, and inevitably political decisions. If we do draw that distinction, the Bill will help chief constables.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

May I be clear about what the hon. Gentleman just said? Did he say that an elected individual should be able to try to influence the chief constable in terms of patrolling in pairs, individually or whatever, and in terms of the other examples he used? Or did he say that he thought it should be open to the police and crime commissioner to direct the chief constable on those matters?

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

In almost all those areas, there will invariably be agreement. There is give and take, and that has been my experience on a police authority. I am sure that in most instances it will apply to the elected commissioner and to the chief constable. I am not convinced that “direct” is the right word, but there might be public concern, as there was a few years ago in my area, about the police spending too much time in cars and not being available on the beat. Indeed, I have often heard it said that two officers who go out on the beat together will naturally tend to talk and enter into exchanges with each other, whereas one police officer on patrol might have a greater tendency to engage with the public.

I think that we would look to elected commissioners to reflect the public view, although I would not necessarily be comfortable with that in individual instances. It would be right for the elected commissioner to say, “Previously we’ve had this presumption that officers should patrol in pairs, but I think in future the presumption should be that where possible officers patrol individually,” and I would expect the chief constable to give effect to that. However, if there were issues regarding safety, I would look to the chief constable to have those considered appropriately within the discussion.

I do not agree with the view of ACPO, nor do Conservative Members or members of the Committee necessarily accept it, that police officers operate in a sort of political vacuum where they can, without reference to the elected authority, make the decision themselves. I think that people will campaign on these issues to become the elected police and crime commissioner. In many respects, it is entirely proper that the chief constable should then implement proposals with a democratic mandate behind them, as in the case of the Metropolitan police service following what Boris Johnson, the Mayor of London, said about a stronger emphasis on knife crime and having more officers on public transport, particularly buses. The Metropolitan police did then implement that, and that is perfectly proper.

I should emphasise that this point goes both ways. We need to ensure that chief constables recognise the appropriate and entirely proper role of the elected commissioner in making such decisions, but there is also the other side of the coin. My experience on a police authority is that I often get asked about operational matters. A sergeant may ask me whether I thought that a particular police community support officer should be deployed from one area to another, or a constable may ask me whether I am happy about how they have dealt with a particular offence, or whether I think that a particular individual should be charged or dealt with in a certain way. It has then been incumbent on me, as a member of the police authority, to say, “Hang on a minute, this is not a proper area for an elected politician to be determining what happens within the police.” I have always been very clear about that, and when there has been an issue that is a shade of grey I have referred it to our excellent area commander in Medway, Steve Corbishley. Such sensitive issues need to be dealt with at that higher level. One cannot necessarily expect every constable, sergeant or even inspector to be totally au fait with where this line should be drawn. I am echoing the emphasis that the royal commission, and the Minister in Committee, put on this complete protection in relation to individual investigation and arrest. That is an important safeguard, and it should work both ways.

The Bill uses the phrase “have regard to” in relation to the police panel as against the commissioner for the budget, the commissioner in respect of a strategic policing objective, and the chief constable’s need to have regard to the policing plan determined by the Minister. We may be firing the starting gun for litigation, but if so, I hope that Members, particularly the Minister, have given a clear steer to the courts as to the role that we see elected commissioners having and the need to rebalance the tripartite relationship. Lord Hoffmann, in the case of Regina v. Chief Constable of Sussex ex parte International Trader’s Ferry Ltd, said that, even under the current arrangements, where regard must be had to the policing plan, the chief constable’s discretion was therefore “subject” to the statutory plan. Together with the roles of the chief constable and the Home Office, we have a rebalancing of the tripartite system. We are bolstering the democratic local element by having direct election, and that should provide a far stronger voice for the public in setting policing policy and priorities.

Photo of John Mann John Mann Labour, Bassetlaw

I note the volume of Members taking part in the debate: I think attendance is under 3%. Doubtless everyone has better things to do. I note that fact because at some stage—not today—quorums will have to be challenged in the House if Members, not least on the Government side, do not turn up to promote the Bills that they propose.

I commend my hon. Friend Vernon Coaker on his excellent approach to trying to dismantle the Bill, and I fully support new clause 5. Let me give an additional reason why it is appropriate for the House to vote for the new clause. When this fragile coalition collapses, which will no doubt happen soon after the May elections, if this Bill has reached Royal Assent by then, rather than wasting primary legislative time immediately, my hon. Friend could use a statutory instrument to remove the most objectionable parts of the legislation, which were most eloquently described by Mark Reckless. He wishes to direct where police resources go and to make operational decisions, such as those, as he said, on the question of whether policing should be single or double. Those are fundamental operational decisions, and it is quite extraordinary that anyone could oppose the new clause, which seeks to rectify the damage that such a loss of operational independence will cause.

This is an outrage. My hon. Friend the Member for Gedling and I come under the same police authority in Nottinghamshire, and I do not know whether he has found a single member of the Nottinghamshire police who supports the idea that an elected politician with such powers should be above them directing their work, as the Government propose. In my experience, there is great resentment about what the Government are doing to the police, including the idea that a politician should be elected to do that job, on whatever manifesto. That person might come from the mainstream parties, might be a maverick independent or might be a former senior police officer who has perhaps been forced out of the police for reasons that they choose not to declare. There are many different motives why someone might wish to stand for such a position, but when there is an election, the one certainty is that somebody will be elected. We have seen this with elected mayors: however low the turnout, somebody is elected and sometimes the population is rather aghast at what they have ended up with as a result of their inaction, or their inability or refusal to vote.

It is bad enough when such things happen in local authorities, but to put such a person—an elected politician, playing to the gallery for election and re-election—in charge of operational policing matters is an outrage. This modest but well-written new clause at least offers some opportunity to pull that back. Of course, it could go further. If I were writing the memorandum of understanding, I would ensure that some of the other dangers to British policing that are being and have been brought in by this reckless Government were also rectified. There would also be an opportunity to build in something to stop the use of regulation A19, whereby experienced police officers—including those in my area—are refused the opportunity to continue in policing with the experience and training that they have built up, which the taxpayer has paid for. They want to stay on, doing a job and earning a decent living serving the public, but they have been removed by this Government. Police in my area are also very angry about police pensions.

The dangers to police pensions, and to the basis on which people join and remain with the police, which has been undermined by this rotten Government, could be rectified by some wisdom in a memorandum of understanding or in the statutory instrument behind it, or could be dealt with by emergency legislation on day one when this fragile coalition collapses.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

It is always interesting to hear the hon. Gentleman scrutinise a Bill. He is speaking on behalf of the three Back-Bench Members of Her Majesty’s Opposition who are present. However, has he asked the people of Bassetlaw properly whether they want to have a stake in the policing in their area, to hold the police to account and to determine the priorities for policing? Is he not being presumptuous in assuming that he knows exactly what they want before there is a properly elected commissioner?

Photo of John Mann John Mann Labour, Bassetlaw 4:45 pm, 30th March 2011

I never like to be presumptuous. As I am sure the hon. Gentleman knows, I constantly communicate with the people of Bassetlaw about their views. However, one has to prioritise. My question to them at the moment, which they are answering in their thousands, day in, day out—I am sure that there will be more answers by the end of tonight—is whether they agree with the 30% cut in police and fire services that his Government, backed by the Liberals, are bringing in. That is an even bigger danger to their standard of living and quality of life, and to the security and safety of businesses, pensioners, young people, and the whole population in my area.

I assure the hon. Gentleman that I have had no representations from anybody asking for another elected politician. The Government have prided themselves on getting rid of 50 MPs. Looking at the green Benches today, it appears that they might already have got rid of a random assortment of 50 MPs. Those MPs will be replaced by about 44 new politicians. It is almost a job swap. This is costing the taxpayer money. More crucially, it is diverting us away from the priorities. I know that Members from all parts of the House, and especially the Liberals, will want to vote for this excellent new clause, because it gives us the opportunity to clarify that we will not have meddling by politicians in any area of police operations. I cited the dangers of that in my earlier intervention.

The Government have given us statistics that show that across the country, cases about elections and petitions of one kind or another have been taken to the police, including by political parties. In the county of Nottinghamshire such cases have been taken by political parties, including by the Conservative party. I think that that was a bit spurious and a waste of police time, but the party was entitled to do it. If politicians or their backers are doing deals with one party or another, in the traditional way, to become the candidate for this new elected position, and they are also using the police in making allegations about elections—be they parliamentary, local or even potentially for police commissioners—how will that be dealt with? How will there be impartiality when there is one elected person at the very top? That is a fundamental flaw in the Bill and in the Government’s logic.

There will of course be an opportunity—I will not speak to this point now, Mr Deputy Speaker—to reject this rotten Bill tomorrow at 6 o’clock, or perhaps even earlier. In the meantime, any logical, rational, law-and-order politician in this House will back the excellent and considered new clause moved by my hon. Friend the Member for Gedling, because it will amend the Bill in a way that provides some protection. The people in my area want effective policing that is run by the police, and they want the police to be accountable.

I do not know whether as a boy the Minister liked to play with Meccano or Lego, but I can see that he has built up the idea that it is his job to meddle, to take apart and to rebuild. He has taken that forward into adult life, and when it comes to the police force, because he is the Police Minister he has to do something to demonstrate that he is worth his money.

The Minister could tell the police, “Here are the resources I’ve battled with the Treasury to get you. Go out there, catch criminals and give the general public confidence in security and safety. Get on with your job and do a good job, and we will hold you accountable to ensure that you do.” Oh, no. He cannot do that. Instead, he has to meddle and try to rebuild everything, just as the Government are doing with schools and the health service. The excellent new clause 5 would at least pull the Government back from that, so I recommend it to the House, and I trust that all Members will vote for it.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

It is a pleasure to follow John Mann, who is clearly a grand master when it comes to playing to the gallery. I must say, I was rather worried for his health, or indeed his sanity. I wonder whether he actually believes his doom-mongering vision of the world, but he is certainly very effective at getting across his concerns. He will be very disappointed about this, but I suggest that he should not hold his breath while he waits for the coalition to collapse, because 2015 is a long way away.

I now turn to the new clause and the amendments. It is clearly welcome that the protocol, or the memorandum of understanding, is being discussed and drawn up.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

Does the hon. Gentleman agree that we should have a draft of that to consider, even if it is a draft of a draft? It really is not good enough that it will be available to the House of Lords to consider without our having had it in front of us.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I think that the Minister and I would probably agree that in an ideal world it would have been useful to have a draft, but I do not think it is essential. I am sure that the House of Lords will deal with the matter in the professional way that we would expect.

It is interesting to note that initially senior officers had strong reservations about whether they wanted a protocol, so a degree of flexibility will be needed. I have some sympathy with amendment 149, but I suspect that the Minister will make it clear that there is every expectation that the police and crime commissioners will have no involvement in decisions on individual investigations and arrests. That will be a clear requirement.

The one point that may require clarification is what would happen in a case that actually involved the police and crime commissioner. For instance, if they had been assaulted, would the amendment prevent them from taking a decision about whether charges should be pressed? I do not know whether the hon. Member for

Rochester and Strood (Mark Reckless) considered that in tabling the amendment, and if he has a response I would be very happy for him to intervene on me at this point. If he is not going to, the Minister might want to pick up on that point when he responds.

In an ideal world we would have been considering a draft protocol, but clearly a lot of work on it is still going on. I am sure that means that when it is put into the public domain, it will be strong and satisfy Members. As I said, I understand where the hon. Member for Rochester and Strood is coming from on amendment 149, but it is clear that there will be no expectation whatever that the commissioners will get involved in individual decisions. One would expect that the police and crime panels would have forceful things to say if they did so.

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

First, I confirm again to the House something that has been confirmed on a number of occasions: the Bill does not change the legal position that the direction and control of forces remains with the chief constable. Therefore, the basis of the legal relationship between police authorities and chief constables is maintained in the direction of control in the Bill.

Nevertheless, there is concern about ensuring the fundamental principle of the operational independence of chief constables, which we debated at considerable length in Committee. As we discussed at some length, there is no statutory definition of operational independence, and indeed, there is general agreement that it would be unwise to attempt such a definition. The matter has been considered on a number of occasions by the courts—my hon. Friend Mark Reckless spoke of one key case. However, ACPO, which is concerned to ensure that the operational independence of chief officers is not in any way threatened, has said that it does not wish us to try to define it in law.

The debate on the proper role of the chief constable and the proper role of the local body that holds them to account will continue—as it does between police authorities and chief officers and others, with the matter sometimes ending up in court. That is part of what Sir Hugh Orde, the ACPO president, described—not pejoratively—as the tension that should exist in the relationship. However, as I said in Committee, to some extent, we are talking about shades of grey.

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

Is not one limitation of existing case law that an individual litigant—or a company such as International Trader’s Ferry—trying to get the chief constable to do something is different from the relationship that the Minister describes between the police authority and its statutory powers and the chief constable? The Home Affairs Committee heard from witnesses who felt that there is significant scope within the existing regime for police authorities to be more assertive in setting policy—it just happens that they have not done so.

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

My hon. Friend’s point is well made. However, the police and crime commissioner, who will have a mandate, could be more assertive. That is the basis and thrust of the chief constables’ concerns. I cited the example of London. The Mayor of London stood on a manifesto of placing uniformed officers on public transport and tackling knife crime. Whether that cut across the operational independence of the Met has been debated but not resolved, but it is significant that those things have happened, and the Metropolitan police have willingly implemented them. We must accept that, to some extent, there are areas of negotiation and shades of grey, which is why all parties agree that it would be a mistake to try to define in statute the notion of operational independence.

However, equally, we are all agreed—as I indicated on Second Reading, the Government were already minded to do this—on drawing up a protocol, as the Home Affairs Committee recommended, to try to set out the precise roles of the police and crime commissioner and the chief constable in the new arrangements, and to broaden the protocol to cover the role of the police and crime panel, given that that is new, and the role of the Home Secretary. It is worth stating that the Government’s intention in introducing that reform is not to abandon the tripartite, but to rebalance it, because we feel that it has been too distorted in the past, particularly in relation to the accrual of power by the centre and the Home Secretary.

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

May I come to that in a moment? I will address the status of the document shortly.

As I mentioned earlier, the Home Office has set up a transition board to discuss how the present system will migrate to the new one. One of the issues that we are discussing is the protocol; that work has begun. ACPO has nominated Chief Constable Adrian Lee of Northamptonshire police to be its representative. He will sit on a working party, alongside Home Office officials and representatives from other organisations including the Association of Police Authorities and the Association of Police Authority Chief Executives, to discuss the issue. Work is therefore ongoing.

I have to say to Vernon Coaker that it was never going to be possible to produce a draft document in time for Report, and he knows that I never indicated that it would be. However, I have said that we will attempt to produce one in time for it to be considered in the other place. I hope that he will appreciate that that is being done with the best of intentions and at the fastest possible pace, given the complexity of the issue. It is worth reflecting on the fact that a similar protocol that was proposed in Northern Ireland by the Patten commission in 2004 was discussed over several years and has still not been put in place. That is partly because Patten recommended that the concept involved should be one of operational responsibility, and not independence. I note that the hon. Gentleman has chosen to use the words “operational responsibility” in his new clause. We are not using them ourselves, however; we are using “operational independence”. The work is ongoing, and it is our intention to try to produce something for the Lords. I am sorry that we have not had an opportunity to look at a draft here, but I hope that the hon. Gentleman will understand that the work is under way.

I want to turn to the status of the document. New clause 5 seeks to set out the memorandum of understanding in secondary legislation. Mr Llwyd asked what the consequences would be of not following the protocol. We envisage that this will be an extra-statutory document, and that it will be issued in the form of guidance. I am certainly willing to consider what the legal status of the document should be, and whether it should have some kind of statutory imprimatur, but we really need to see what it looks like first. We need to understand how granular it will be, and whether that would effectively define operational independence in a way that, so far, everyone has made it clear we should not so define it. I reassure the hon. Member for Gedling, however, that this matter should be considered, and I have no doubt that the other place will have a view on it.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs) 5:00 pm, 30th March 2011

I thank the Minister for replying to my question in such short order, and in as much detail as he could muster. If he is saying that some form of legislative vehicle might encompass the protocol, would not regulation by statutory instrument be the obvious answer?

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I repeat that we do not envisage this being a statutory document. It was originally called a memorandum of understanding by the Select Committee, and I do not think that the Committee’s recommendation envisaged it being a statutory document. Its purpose is to clarify the roles and responsibilities in law. In other words, it will be seeking not to set law but to explain what the law is. The danger is that we will be drawn into a means of setting law, when all the parties involved have so far said that we should not seek to define operational independence by statute. They have said that we should leave the matter to the understanding of the courts and the existing case law.

Photo of Mark Reckless Mark Reckless Conservative, Rochester and Strood

Will the Minister agree to supply the document, at least in draft form, to the Home Affairs Committee as well as to the House of Lords? The Association of Chief Police Officers and the Home Office are negotiating, but should not the negotiations be for the tripartite system, although we do not yet have the elected commissioners in place?

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

First, the Association of Police Authorities is certainly involved in the drafting; it is part of the group discussing the matter. I agree that negotiations must reflect the tripartite system, and I want to reassure my hon. Friend about that. As to supplying the draft to the Home Affairs Committee, I am happy to agree. Furthermore, if my hon. Friend would like to meet me and officials to discuss it further, I think it would assist our deliberations. I would like to organise that as soon as possible, bearing in mind the considerable experience that my hon. Friend brings as a member of a police authority with a particular view.

I appreciate my hon. Friend’s purpose in proposing amendment 149, according to which

“the police and crime commissioner shall have no involvement” in deciding whether a person is investigated or directed. In fact, that is the existing common law principle and the courts have consistently stated that the Executive must not interfere in operational law enforcement decisions, so there is no need for that to be written expressly in the Bill.

I hope that the hon. Member for Gedling will accept the good faith with which I agreed with the recommendation of the Home Affairs Select Committee. I hope he will acknowledge that I have listened to the Association of Chief Police Officers and others who have expressed concern about operational independence; restated that we do not seek to cut across that principle; and confirmed that we will bring the draft document before Parliament at the earliest possible opportunity. I appreciate that he would have liked to see it sooner, but I hope he acknowledges the very considerable steps we have taken in this regard.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

Before I comment on the Minister’s remarks, I would like to thank my hon. Friend John Mann for his support on the issue of the necessity for this memorandum of understanding. It was interesting that Tom Brake commented on what was said by Mark Reckless—that there was an expectation of no involvement. That is part of the problem. The Minister is right to say that the common law position precludes interference, but I am trying to deal with what will happen when the new model comes into effect, particularly the concern that it will change the parameters within which the policing model works.

Photo of Mark Tami Mark Tami Opposition Whip (Commons)

Given the sort of person who is going to be elected to the panels, might it not lead to an adversarial relationship almost from day one? Indeed, the person might have stood on a platform in order to take on the chief constable for something he had done.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

That is exactly the point. Concerns have rightly been raised about who will be elected and the mandate and manifesto on which they are elected, and particularly about the possibility of its being imposed on the chief constable. Those are very real concerns. The Minister knows that there is a general acceptance of trying not to define in statute too rigidly. I say sincerely that I appreciate he is acting in good faith. I did not say that he had promised to bring the matter before us on Report. My expectation was that he might have been able to do so, but he did not say that and I know that he has acted in good faith.

The Minister seems to have moved again in respect of this new clause. To be fair, it shows the difficulty of trying to navigate through this area, which is one of the most important parts of the Bill. None the less, I noted that the Minister said that he “may” decide that it is necessary to include a statutory legislative provision on which to base the protocol. I agree with the right hon. Member for Dwyfor Meirionnydd (Mr Lywyd): it is essential for the Bill to contain a requirement with regard to the protocol.

Question put, That the clause be read a Second time.

The House divided:

Ayes 216, Noes 311.

Division number 243 Alcohol Marketing — New Clause 5 — Memorandum of Understanding

Aye: 216 MPs

No: 311 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.