Report (1st Day)

Policing and Crime Bill – in the House of Lords at 6:15 pm on 3rd November 2009.

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Amendment 1

Moved by Baroness Miller of Chilthorne Domer

1: After Clause 1, insert the following new Clause—

"Transparency in policing

As soon as possible, the Secretary of State will, under section 5 of the Freedom of Information Act 2000 (c. 36) (further power to designate public authorities), amend Schedule 1 of that Act to include the Association of Chief Police Officers."

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 6:24 pm, 3rd November 2009

My Lords, I am glad that we are returning to the Bill on Report because there are still many extremely important issues to debate. I am sure that the Minister shares with me some disappointment that we have to start the first day of Report at 6.25 pm, giving us less than three hours to debate it today. Of course, we will abide by the rules of Report but we will not be able to curtail our arguments in support of our amendments. The Government chose to make two Statements today, which meant that the Bill has been delayed until now. Nevertheless, there are still huge issues to debate, and I warn the Minister that we will not be able to treat them with any less importance just because we have begun several hours late due to the Government's timetabling.

I turn to Amendment 1, which returns us to the issue of transparency in policing—policing being the subject of Part 1 of the Bill. In Committee, we debated whether ACPO should be subject to the Freedom of Information Act. The Minister helpfully said that, although ACPO was registered as a private company limited by guarantee and was not open to FoI requests, it seemed to him that there were anomalies. I had rather hoped that between Committee and Report there might be a chance for the Government to solve those anomalies. However, no solution has been forthcoming and therefore I have tabled this modest amendment. It merely seeks to give the Government the power to solve the anomaly to which the Minister referred in Committee as regards the FoI Act, as they would be able to designate ACPO in the interests of transparency, and they would be able to do so as soon as was practicable.

This whole issue is of critical importance. The noble Baroness, Lady Hanham, put her finger on it in Committee when she said that,

"we need to understand the status of ACPO, not just as an organisation with members but now in its position of having a statutory role in appointments".—[Hansard, 22/6/09; col. 1366.]

It is that statutory role that leads me to table this amendment because I believe that ACPO's transparency is fundamentally important. Although it may not be governed by any statute and is a private company limited by guarantee, it now has a constitutional role to play. As we move on to the Report stage of a Bill that gives ACPO new powers, we need to have regard to that essential need for transparency.

ACPO says that it is aware of this debate. Its website is clear that it is not a staff association, although in Committee the Minister said that effectively it was. However, I believe that he was thinking of the Chief Police Officers' Association. ACPO's work involves setting strategy, and it has developed to the stage where we believe that it should now be subject to the Freedom of Information Act. It is doing a lot of work in the public interest. It sets guidance on all sorts of things of incredible interest to the public, from the ACPO strategy for children and young people, for example, to guidance on the use of incapacitant spray. It also gives guidance on a subject that is very topical at the moment—cannabis possession for personal use, although when I looked at its website today, that was currently unavailable, which may say something about the state of the controversy. The public need to know as much as possible about discussion in ACPO, advice received and so on. It is right that it should be subject to the FoI Act. I beg to move.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters 6:30 pm, 3rd November 2009

My Lords, I support my noble friend Lady Miller of Chilthorne Domer. At the outset I declare an interest as a former police authority chair and, at present, as a vice-president of the Association of Police Authorities.

I referred in Committee to an article written by Henry Porter in the Guardian online on Tuesday, 10 February. With your Lordships' permission, I should like to return not to what I said then but to the article, as it is very pertinent to the amendment. It stated:

"Too often it seems ACPO is the driving force behind policy ... Now the police have set up the confidential intelligence unit to monitor the political life of this nation. The only reason we know of this is because the Mail on Sunday followed up an internal police job advertisement for the head of the confidential intelligence unit, who would work closely with government departments, university authorities and private sector companies 'to remove the threat of criminality and public disorder that arises from domestic extremism'. The story tells us that the CIU"— the Criminal Intelligence Unit—

"will also prevent details of its operations being made public ... Of course there are extremist groups hoping to make use of troubles ahead but it is surely a matter of the gravest urgency that parliament involves itself in defining the limits of the CIU's activity and bringing ACPO into the 21st century by forcing it to become more accountable and open. We cannot have the police making decisions about what constitutes legitimate politics in this country".

Quite, my Lords.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, as the House will recall, my noble friend Lady Hanham had sympathy with this amendment in Committee. Later parts of the Bill give ACPO a role in the appointments panel for senior officers but, as I understand it, this is the first time that ACPO will be named, and one of its roles defined, in legislation. Will that make ACPO a statutory body? There needs to be clarity about this. I agree with the noble Baroness, Lady Miller, that if ACPO is to have a statutory role in senior appointments then it will have to have proper accountability not just to its members but also to the public. Of course, there is also a wider point. The Flanagan review highlighted the confusion that has arisen from a lack of clear understanding about the roles and responsibilities of various bodies and organisations in the policing sector. Placing ACPO in legislation in a statutory role—if indeed the Bill does that—without proper clarification of its responsibilities and without scrutiny will do nothing to help the implementation of review recommendations.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the purpose of the amendment is to make the Association of Chief Police Officers subject to the Freedom of Information Act 2000. All individual police forces are already subject to requests made under that Act. Furthermore, ACPO already seeks to place as much information as possible in the public domain, and the details of its accounts are available to view at Companies House. Nevertheless, having said all of that, the Government agree with the sentiments behind this amendment and have set out their proposals for a future Section 5 order, under the Freedom of Information Act, to include ACPO. This issue was discussed on the first day in Committee, in July, and on 20 July I placed a letter in the Library to highlight the Government's response to the consultation entitled Freedom of Information Act 2000: Designation of Additional Public Authorities.

By way of background, in October 2007 my right honourable friend the Prime Minister announced a public consultation on extending the coverage of the Freedom of Information Act to cover additional public authorities by way of a Section 5 order. As part of that consultation ACPO nominated itself as a suitable candidate to be covered by the Freedom of Information Act and subsequently it was included on the list of persons proposed for the Section 5 order. The government response to the consultation was published on 16 July 2009. It proposed an initial, focused Section 5 order to be accompanied by action outside the Act to promote proactive publication and openness by reminding public authorities and contractors of the existing guidance on access to information, which should inform contracting practices and responses to requests for information.

On 9 September the Government wrote to ACPO inviting it to outline any matters that it thought the Secretary of State should take into consideration before deciding whether it is appropriate to include it in a Section 5 order and asking for its views on the length of time that ACPO would need between making an order and its commencement. It is clearly important that any new body being brought within the scope of the Freedom of Information Act is given sufficient time to prepare, and that includes establishing a publication scheme and training staff so that they are adequately resourced to deal with requests. It is quite something to get all that in place, as I know from being in the Home Office.

The Government propose bringing forward the Section 5 order early in the 2009-10 Session and it is a requirement of the Freedom of Information Act that the order be debated in both Houses. As the noble Lord, Lord Skelmersdale, said, ACPO is a private company limited by guarantee and is not established by statute. It is, however, referred to in statute. Both ACPO and the APA are referred to in the Police Act 1996, for example, where Section 37A places a duty on the Secretary of State to consult both ACPO and the APA on strategic priorities. I hope that that clarifies the issue.

I hope that I have been able to reassure the noble Baronesses that the matter is in hand and that we are moving in that direction. On that basis, I invite the noble Baroness to withdraw the amendment.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, will the Minister clarify one issue before I decide on the fate of this amendment? Will he kindly repeat the reply that he gave to the noble Lord, Lord Skelmersdale, about whether this Bill creates any form of statutory role for ACPO?

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, given that, and given the tremendous progress that the Government have made, which is heartening, I am anxious—as I am sure the Minister is, because he has delved deeply into this—that this key issue in terms of transparency and policing is not lost in the busy six months of next year. Given that the Government have made so much progress on this, "as soon as possible" will be easy to fulfil, and it would help all concerned if this provision were in the Bill. I therefore want to test the opinion of the House.

Division on Amendment 1

Contents 50; Not-Contents 142.

Amendment 1 disagreed.

Division number 1

See full list of votes (From The Public Whip)

Clause 2 : Police Senior Appointments Panel

Amendment 2

Moved by Baroness Henig

2: Clause 31, page 36, line 33, after "paragraph" insert "5A or"

Photo of Baroness Henig Baroness Henig Labour 6:49 pm, 3rd November 2009

My Lords, in speaking to this series of amendments about the senior appointments panel, I must first declare an interest as the president of the Association of Police Authorities and as the chair of the Security Industry Authority.

I listened carefully to what my noble friend the Minister had to say about this part of the Bill when it was debated in Committee and I have considered the issues further since then. I have accepted some of the points that he made, at least in part, such as the need to ensure flexibility in the functions of the senior appointments panel. The Minister will see that I have also accepted his point that creating a statutory body for senior appointments will give a stronger, more strategic and more proactive influence to the panel in the appointment of senior officers. However, I do not agree with some of the other points that he made in Committee. My amendments today therefore deal with my remaining concerns, which are substantially about the composition and some of the functions of the panel.

I start with the composition of the panel. I applaud what the Minister said about the Government's intention to make it more independent, but I am not convinced that this is actually reflected in the Bill. It does not anywhere mention the word "independent" and seems to give the Home Secretary two bites at nominating members to the panel—first, by appointing the chair and, secondly, by appointing representative members.

It is absolutely essential to success that the panel should be owned equally by its tripartite partners and should be seen to be so owned. Its membership must reflect that. If that tripartite balance is not built into its composition and the panel is skewed in a way that might be used to favour the centre to the detriment of local concerns and interests, that will undermine the credibility of British policing in one of its most important functions—that of appointing the most senior police leaders in the country.

I know that the Minister will assure me that it is not the Government's intention to act in this way, but legislation must have regard to the future and we must consider how it could be used in 10 or 20 years' time. My amendment would ensure that an appropriate tripartite balance would be maintained in future on the senior appointments panel; I cannot think that the Minister would object to that. There is nothing to prevent the Home Secretary or, indeed, either of the other two bodies from appointing independent people as their representatives on the panel, suitably endorsed by the Office of the Commissioner for Public Appointments or a similar body. Indeed, I would be happy with that approach. However, the key and most fundamental point remains that, if this is to be a statutory body, the correct position for its governance—that it must be and must be seen to be tripartite—should be reflected in its statutory composition.

Moving on, I have reiterated a small earlier amendment about the payment of fees of panel members. That is to overcome difficulties experienced in the past with similar bodies, where representatives are required to sit on national organisations but the national organisation will not reimburse its members unless they are government appointees. The bodies that appointed them are left to pick up the bill. In this context, the money ultimately comes out of the public purse, but in the first instance from the budgets of much smaller organisations where the burden can have a disproportionate impact on what they are then able to resource elsewhere.

I move on to the functions of the panel. Although I have accepted the Minister's point about flexibility in being able to confer additional functions, I still do not think that this section is transparent enough about what some of the obvious functions of the panel should be. I am unhappy about leaving this entirely to regulations about additional functions, when those are in fact core functions for the panel, on which its effectiveness will be judged.

Let me remind the House of the panel's remit. It effectively conducts a co-ordination and pre-appointment advisory and screening process for potential senior candidates to potential senior police posts. That then enables police authorities to screen a range of potential candidates; it enables the Home Secretary to screen which candidates he or she will approve; and it enables chief officers to gather information about senior officers who may soon be joining their team and come under their command. Although its duty to advise the Home Secretary is picked up in the Bill, most of the rest of its remit is not.

It is crucial to make it clear that this is a pre-appointment screening process advising all the parties concerned, not just the Home Secretary. The vagueness of the Bill's wording seems to blur that reality. At best, it is less than transparent about what the functions of the panel will be; at worst, the vagueness might be used to move into territory that could interfere with a local appointment itself. I am particularly concerned that the functions of the panel should not be tied back to facilitating the existing statutory functions of the key players under the current wording—the role of police authorities to appoint chief officers and the role of the Home Secretary to approve those appointments. I fear, given the focus on the national role that the proposals represent, that such an approach could be used to restrict the role of police authorities to make appointments locally rather than to facilitate it.

The current wording also fails to acknowledge that a key function of the panel must be to preserve the delicate balancing act between national strategic considerations and local requirements in appointing senior officers. That goes back to earlier points about the importance of ensuring that tripartite governance is essential and central to what the panel does.

We can all agree that the system for appointing senior officers needs to be improved to overcome existing problems and to make it more proactive and more strategic. My amendment about developing criteria for selection and prioritisation is intended to do that. I do not agree with the Minister's criticism of my similar amendment in Committee, which he said would not allow the panel to undertake other functions, such as co-ordinating the appointment round. Co-ordination is certainly implicit in the need to prioritise appointments, but I point out that the existing wording does not mention co-ordination either. However, I accept the Minister's point about additional functions and this might be one of the matters specifically included there.

The important point is that my amendment would make it a core function of the panel to develop ways to overcome the problems that have beset the process for many years. These include issues such as difficulties over the batting order for authority chief officer appointments, bottlenecks, lack of transparency and lack of information. Those problems are getting worse and must be addressed.

Last year, a police authority was given a late slot by the senior appointments panel for an important senior post and shortlisted all the six applications that it received, mindful that a number of nearby and adjacent authorities were allocated an earlier slot and that there could therefore be some withdrawals from the shortlist. Indeed, the authority found itself down to first three and then two applicants by the day of the appointment. After consultation with the chief constable and HMIC, it cancelled the process, made a temporary appointment and asked for an earlier slot in the timetable for this year.

It is not just that police authority that feels that a choice of one from two is entirely unsatisfactory for a post at that level. There is a general view that, at present, the system for drawing up the timetable for senior appointments is not working effectively and that potential candidates are themselves being very selective and are not always willing to move around the country and uproot their families at short notice, thus compounding the problems that police authorities face.

I am concerned that such problems should not be dealt with at the centre in a high-handed and pre-emptive way. The police service does not operate like the Armed Forces. Strong issues of locality are involved and solutions have to be found, and can best be approached, through a genuine three-way partnership operating through the senior appointments panel. That is what I am trying to achieve with these amendments.

My final amendment deals with consultation about conferring additional functions on the panel. I acknowledge that the legislation currently allows for consultation with the panel and that its members will include representatives from the APA and ACPO, but an individual member of the panel may not have sufficient knowledge of some of the wider issues or developments in the policing landscape, or some of the local issues relevant to particular areas or regions, and may not therefore be able to make wholly informed decisions about them. Given the important effect that decisions about functions could have, and given that appointing senior officers is first and foremost the statutory role of police authorities, it is important that police authorities should have a separate voice about what they think the panel should do. I have therefore included wording to ensure that the APA is consulted on this important matter.

I am still not entirely happy about some of the other provisions in this part. For instance, I am not convinced that only the Secretary of State should be able to refer HMIC reports to the panel. However, in the spirit of focusing on the most important matters at this stage, I have limited my amendments to those areas that I consider to be of central concern and I therefore beg to move.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters 7:00 pm, 3rd November 2009

My Lords, I support the noble Baroness, Lady Henig, because the amendments are designed to improve the current senior appointments panel proposals to guarantee tripartite balance in its membership and to be much clearer about its functions. I particularly welcome her points about the pre-appointment screening, with which I wholeheartedly agree. Once again, I feel that the powers of the Secretary of State are being brought to the fore, whereas it would be much better if we trusted the tripartite structure to deliver on these proposals.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, as in Committee, we have some sympathy with this amendment. The noble Baroness, Lady Henig, is right to highlight the significant powers that the Secretary of State is taking over the constitution of the panel. We understand the need for some flexibility, but the failure to specify the number of members or the relative proportions of the representative members means that in future the make-up of the panel could be very different from the model envisaged or from what we believe we are putting through your Lordships' House. I am sure that the Minister accepts that a balance needs to be struck between national influence and local interest in appointing senior police officers, but we are not at all sure that the Bill guarantees what we regard as an appropriate balance. That point was powerfully made by the noble Baroness, Lady Henig.

On Amendment 5, we have sympathy with the need for the Bill to be more specific about the functions of the panel. There is a related issue: the power of the Secretary of State to confer additional functions on the panel. The Minister wrote to follow up a question that we raised in Committee about the scope of this power. He specifically mentioned that the Secretary of State might wish to confer a function in relation to the co-ordination of appointment rounds to the panel. I understand that the Government are still thinking about this co-ordination question and how it can best be achieved. It would be helpful if the Minister could say when he expects that work to be completed.

We accept that the Bill provides flexibility for panel functions, which could be useful, but can the Minister say why any changes will be made by negative statutory instrument? In his letter, he said that any changes would be subject to parliamentary scrutiny. Does he consider that an appropriate level of scrutiny?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, Amendments 2 to 6, proposed by my noble friend Lady Henig, would make changes to the statutory senior appointments panel clause and stem from her concern that the tripartite balance may be damaged in the membership and operation of that panel.

This issue was discussed in Committee and I can confirm, as I did then, that the Government are committed to working through the tripartite to get the best possible leaders for the future in policing. A more proactive statutory senior appointments panel will play a key role in delivering this. The function of the police authority to appoint senior officers set out in the Police Act 1996 is unaffected by the Bill. The panel will provide advice to Ministers about the approval of candidates for appointment and will increasingly take a more strategic overview of the talent pool, which we all believe to be necessary. We have talked about this before in the House.

Amendment 2 would remove the possibility of appointing independent members to the panel while retaining an independent chair. My noble friend Lady Henig spoke about the independence of the panel. I understand that underlying this amendment is a concern that a Home Secretary could unbalance the panel. However, as set out in the policing Green Paper, the Government believe that the new panel should have a greater independent element so that there is a broader perspective on leadership. We feel that this is important and needs to developed and grown within the police service. This is established by Clause 2. The provision in new Section 53B(2)(a) is intended for appointing a small number of independent members. Indeed, as the current non-statutory arrangements already include an independent member, the effect of the amendment would be to remove this perspective.

The precise number of independent members will be subject to consultation with the APA and ACPO as part of the panel constitution. Appointments will be made according to the Office of the Commissioner for Public Appointments principles. This means that they will be made on merit and that there will be openness and transparency in the appointments. Such appointments are made when people apply for certain jobs. There is an interview panel that makes recommendations to Ministers. We will discuss with tripartite partners how they might best be involved in the selection process for independent members.

Amendment 3 is also concerned with the composition of the panel and specifies that the representative members of the panel shall be of equal numbers. Again, the Government share with the Association of Police Authorities the view that a balanced tripartite contribution to the panel is important for it to deliver improvements to the appointments system. This is why the Bill specifies the ability of the APA, the Association of Chief Police Officers and the Secretary of State to nominate representative members to the panel.

However, while I understand the concerns behind this amendment about how, in theory, a future Home Secretary could unbalance the panel to exercise undue influence, I do not share them. Police authority appointment of candidates and the approval role of Ministers are statutory roles contained in the Police Act 1996. They are not changed by the establishment of an independently chaired statutory panel to provide advice. Seeking to appoint large numbers of representatives to the panel would only serve to undermine the confidence of authorities and the service in the work of the panel. I therefore believe that it is unnecessary to state the tripartite balance in the Bill and that the current proposals, whereby the panel constitution will specify that the tripartite is equally represented on the panel, are adequate.

Amendment 4 would allow the Secretary of State to pay fees to members of the panel representing the tripartite. It was not our intention to remunerate representative members for attending the panel, which is why the clause is drafted as it is. This is consistent with the statutory arrangements for the Police Negotiating Board.

Amendment 5 sets out particular functions of the panel. The panel will advise the Secretary of State in his role in chief officer appointments and ensure that he has sufficient information to enable him to undertake his role. It will also advise the Secretary of State and police authorities in developing the senior talent pool in policing, which we all felt to be very important. There is also important work to do to look at the assessments process for chief officers to benefit all involved, which the senior appointments panel has already begun to consider and on which there will be wider consultation. A key feature of the improved senior appointments process will need to be consideration of local needs alongside the strategic picture, a point that was made by a couple of speakers. Local need is important.

The Government are content that the Bill already provides adequately for the panel to undertake its functions, but there is also scope to provide for additional functions—a point mentioned by my noble friend Lady Henig—for the panel where needed, for example, to develop an approach to co-ordinating appointment rounds in order to increase the transparency and effectiveness of the process. I know that there are particular concerns from police authorities about co-ordinating the appointment of assistant chief constables and commanders on promotion following the strategic command course.

Amendment 6 specifies that the Secretary of State must consult the APA before conferring additional functions on the panel. New Section 53D(4) already specifies that the panel, on which the APA will have membership, shall be consulted. Therefore, I believe that the existing provisions meet this intent and that the amendment is unnecessary.

In summary, Clause 2 already provides the framework needed to oversee and manage police senior appointments most effectively. We understand how important they are, but I do not agree that the amendments are necessary.

The noble Baroness, Lady Neville-Jones, asked about the timing of the work that we are doing. It will be done within 12 months, following the commencement of the consultation and the SIs being in place.

On the basis of my explanation and assurances, I hope that the noble Baroness will withdraw her amendment.

Photo of Baroness Henig Baroness Henig Labour

My Lords, I am most grateful to the noble Baronesses, Lady Harris and Lady Neville-Jones, for their comments. The Minister acknowledges the legitimate concerns that we all have, the importance of the tripartite relationship and its being seen to be at the heart of policing, the importance of the local/national balance, the importance of co-ordination and the importance of what this body needs to do, but it is extremely frustrating that there is no acknowledgement that words need to be put into action. One can say anything in this House, but to make it happen out there is another matter entirely.

Some of us have knowledge of these affairs and have participated in them outside. On many occasions, we have been hampered by Home Office regulations, by the failure to spell things out and by vague legislation that we have to amend later on. It is frustrating to sit here and foresee how things may go wrong in the years ahead and to know that we will probably have to revisit some of these things. At this point, the Government and the Home Office see no need to do anything. I hear the Minister's words and accept them; I am just sorry that he is not prepared to enshrine this in such a way that some of these things will actually happen. However, at this point in the proceedings, and having heard what the Minister has said, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendments 3 to 6 not moved.

Clause 3 : Regulations about senior officers

Amendment 7

Moved by Baroness Harris of Richmond

7: Clause 35, page 41, line 32, leave out subsections (6) and (7) and insert—

"(6) The first draft order made under subsection (1) may not be made unless the draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.

(7) The draft of the statutory instrument containing the first order made under subsection (1) shall be laid before each House of Parliament within three months of the coming into force of this Act.

(8) Any subsequent order made under subsection (1) may not be made unless a draft of the statutory instrument containing the order has been laid before and approved by a resolution of, each House of Parliament."

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters

My Lords, in moving Amendment 7, I shall also speak to Amendments 99 and 100, which are grouped with it.

My original amendment in Committee sought to remove this part of the Bill altogether because of my concerns about the wide-ranging powers that it confers on the Secretary of State, yet again, to make orders about senior appointments and related matters. I reluctantly accept that the Government are determined to go ahead with the clause because they believe that it supports the previous clause on the senior appointments panel. By this logic, if the senior appointments panel is to be statutory, this clause needs to be, too. I accept that this is at least consistent, even if I am still sceptical about it being entirely necessary. Amendment 7 therefore seeks to improve the clause rather than to dispense with it altogether.

I remain concerned about the wide and rather unspecific nature of the powers which the clause gives to the Home Secretary. Having heeded what the Minister said about the important role of Her Majesty's Chief Inspector of Constabulary in advising the senior appointments panel, and conscious that the clause is intended to support the panel's work, I have linked the two together. Amendment 7 suggests that the powers of the Secretary of State should be exercisable, subject to the advice of the HMCIC, and that any proposed regulations are in the best interests of appointments to, or departures from, senior posts.

The amendment also suggests that the Association of Police Authorities and the Association of Chief Police Officers must be consulted before regulations are made. This reflects their important role in senior appointments. Let us not forget, as this Bill seems to, that the authorities are the ones that appoint senior officers. The tripartite structure should not be overlooked when developing regulations that will affect them in a very important area of their business, as we have already heard this evening.

These changes would provide appropriate and proportionate safeguards in the Secretary of State's exercise of these otherwise very wide and vague powers, which, as with many other parts of the Bill, are entirely inconsistent with the stated government aim of greater devolution.

Amendments 99 and 100, again, address the order-making powers, although I am grateful to the Minister for responding to some of my concerns about specific order-making powers by referring to the Secretary of State's responsibilities for national security and to the need to have powers to ensure that this function can be discharged effectively. However, I hope he recognises the delicate balance of the constitutional arrangements for policing, which reflect that. In this country, we have long cherished policing by the people for the people, not policing by the state. The amendments would ensure that no one is above the law and that policing is by consent and not coercion.

To achieve this, police officers must have operational independence, at least in theory free from political and other unwarranted interference by the state or by anyone else for that matter. Chief police officers must be able to exercise their professional judgment in any given situation and be free to act without fear or favour. This does not mean that they cannot be held to account for their actions after the event, but their decisions should not be interfered with before and during the event. The police authorities are local bodies made up of local people, so to some extent they are the "people" element in the equation. It is their job to set the strategic direction of the local force while bearing in mind the balance of national and local needs. I feel bound to keep stating this, because for some reason the Home Office does not seem to understand it.

The police authorities hold the chief police officer to account on behalf of local people, which again reinforces the principle that policing is not conducted by the state. This tripartite balance is created very carefully. It is, however, delicate and easily upset, and since the original Police Act was passed in 1996 the Government have made progressive attempts over the years to chip away at the edges in the search for ever more power. Of the innumerable policing Bills that have been passed since then—I have been party to most of them—none has seriously tried to give powers back to local forces or authorities.

Despite many government papers of various hues—green and white—that have claimed to do the opposite and to support greater devolution, it happens all the time. The Government just do not seem able to help themselves. This is not assisted by the general malaise of law by knee-jerk reaction, which usually but not always stems from the latest media frenzy. This makes for incoherent legislation that is rarely thought through or tied to other longer-term strategies and developments. This, in turn, leads to an addiction to regulation-making powers. Since the latest law, let alone its practical impact, has not been thought through in the first place, a safety valve is always needed to tweak it and get it running half right. I fear that we have another example of this kind of thinking in the Bill.

By the Minister's own admission, he is not clear exactly what regulations might be needed under Clause 3 because the Government are waiting for the senior appointments panel to tell them. To my mind, it is depressing and unacceptable that we should have so many open-ended regulation-making powers. It is bound to affect the tripartite balance, tipping it even further to the centre, and I remain unconvinced that some of the regulations are necessary at all. Many could and should be left to local discretion. Where this is not possible, the sort of measures that they will contain should be better described and more tightly defined before they are put into legislation. At the very least, they should be made subject to positive procedures to ensure that Parliament has a chance to scrutinise what is being proposed and whether it is necessary. This is what these amendments propose.

Some of these powers could be very far-reaching and significant—I have in mind particularly those that relate to collaboration—but they all have an impact on the balance between the central and the local in policing. Given that this has been severely eroded already, we need to be mindful of the aggregate impact and ensure that constraints are put into place. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs 7:15 pm, 3rd November 2009

My Lords, on these Benches we think that Amendment 7 is sensible. Neither the Government nor the Bill say what the process for drawing up any regulations will be. All the organisations that the noble Baroness mentioned have legitimate interests in this area and should expect to be consulted. On a related issue about pay-offs for senior officers to whom some of these regulations will apply, in his letter to my noble friend Lady Hanham, the Minister did not say whether such powers already existed under employment law. Perhaps he could now do so.

In relation to Amendments 99 and 100, I have already spoken about the need for adequate positive parliamentary scrutiny and I will not repeat that point, which I think is a strong one.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, these three amendments relate to a concern about the regulation-making powers that the Bill gives to the Secretary of State. However, our highly respected Delegated Powers and Regulatory Reform Committee has scrutinised the Bill and did not find the powers to make secondary legislation inappropriate. Amendment 7 is to Clause 3, which specifies additional matters that may be included in regulations made under Section 50 of the Police Act 1996. That Act provides that before regulations are made under Section 50 either the Police Negotiating Board or the Police Advisory Board must be engaged. As the Association of Police Authorities and the Association of Chief Police Officers are members of the Police Negotiating Board and the Police Advisory Board, it is unnecessary to further specify a duty to consult them in legislation. I believe that that answers the point made by the noble Baroness, Lady Neville-Jones, about consultation.

Amendment 7 also creates an approval role for the Chief Inspector of Constabulary under Clause 3. While he will continue to have a key role in advising the senior appointments panel, he will not chair the panel. It will no longer be appropriate for him to hold this role under the new system as HMIC now has a strengthened role for performance improvement. Therefore, while the expert advice of the chief inspector will be important in improvements to the appointment and departure arrangements for chief officers, including changes made through regulations, I do not believe that it is right for him to gain a statutory role in regulations under Clause 3. This amendment would give the chief inspector this role in relation to all matters that may be included in regulations under Section 50 of the Police Act 1996, which includes police pay, allowances and annual leave. We do not think that it is appropriate for the chief inspector to have a role in these matters.

Amendments 99 and 100 amend Clause 111, which contains a general power to make an order containing supplementary, incidental or consequential provisions for the purposes of the Act. However, these amendments do not affect the powers to make secondary legislation in Part 1, whereas I understand that the intention of these amendments is to make all those powers subject to the affirmative resolution procedure. Therefore, the amendments are defective.

The noble Baroness, Lady Neville-Jones, asked about the powers in Clause 3 already existing in employment law. Clause 3 is needed to note provision for these powers expressly for the police. The police are not subject to general employment law, which is why it is focused like that. On the basis of what I have said, I ask the noble Baroness, Lady Harris, to withdraw her amendment.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters

My Lords, I am very grateful to the Minister who has once again given a very full and frank response. We are not going to get anywhere with these amendments, no matter how hard we try. I can only think that the future will be where we will look to say, eventually, "I told you so". With those remarks, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clause 5 : Police collaboration

Amendment 8

Moved by Baroness Harris of Richmond

8: Clause 5, page 6, leave out lines 4 to 7

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters

My Lords, now begins a series of amendments to Clause 5. Amendments 8 and 9 would remove the current power of veto, which appears to have been given to chief officers over authority collaboration agreements and ensures that an authority only needs to consult a chief officer about agreements which affect the police force, as opposed to just the police authority. Amendment 8 seeks to remove lines 4 to 7 because the ability of a police authority to determine what is in its best interest when dealing with collaboration matters appears in the Bill to be handed over to the chief officer. I will develop this argument in following amendments, but I seek to hear the Minister's views on these amendments at this point. I beg to move.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, when this issue was debated in Committee, I offered to consider further whether there was an anomaly here. Collaboration in policing depends on negotiation and consultation between the forces and their authorities from the outset. This assumption is well understood and it needs to be embedded in the legislation that supports it, which is why we have the proposed balance of provisions on consultation. All agreements between forces have to be approved by their authorities, but only consultation is required the other way around. All parties must have some involvement in plans for collaboration agreements, but the balance of responsibility rests with the police authorities, which have the ultimate accountability for ensuring that collaboration is supported and have the final say in the judgment of the best way to deliver greater efficiency or effectiveness.

Amendment 9 seeks to ensure that a chief officer is not troubled by being consulted on collaboration plans between police authorities about things which do not directly affect the running of the force. I would suggest that there is always a possibility that such plans might in some cases have an indirect impact on force business. Much of the business of police authorities, for example on performance and planning, is carried out in-force. I would hesitate to suggest that there is a clear distinction, as this amendment implies, between work which has a bearing on the force's activities and work which does not. This close working is as it should be; and to include the chief officer in routine consultation on such matters is the most straightforward approach, would not impose a significant burden and would be appropriate.

Turning to Amendment 8, if employees are under the chief officer's direction and control, a police authority should not be able to agree provisions affecting the functions they carry out without seeking his approval. I understand why this has been likened to the authority seeking permission from the chief officer to provide resources for itself, but this is not a condition applicable to all police authority agreements or all the provisions of any one police authority agreement. The limits of this approval are intended to be confined to the impact of the collaboration plans, in respect of the functions of those employees, on operational matters. This will be set out in detail in the statutory guidance which police authorities are currently helping to draft and to which chief officers must have regard.

We fully intend to ensure, with the help of our stakeholder partners, that the statutory guidance planned for publication alongside these provisions when implemented will make clear the extent of the consultation and approval processes within these provisions. The publication of guidance on collaboration is important to the successful implementation of these provisions. We are working closely on its development with the Association of Police Authorities, the Association of Police Authority Chief Executives, the Association of Chief Police Officers, Her Majesty's Inspectorate of Constabulary, the National Policing Improvement Agency and practitioners within the police service with real experience of the challenges that collaboration brings.

The National Police Protective Services Board, representing the tripartite organisations, Her Majesty's Inspectorate and the NPIA will sign off the statutory guidance and associated toolkit. An early draft of this material has been received enthusiastically and its publication, which is planned to coincide with the commencement of this Bill in the new year, is keenly anticipated by many in the service who already are in the midst of putting together their plans for closer joint working to meet the need for delivering leaner and more effective policing. In the light of that reassurance I ask the noble Baroness to withdraw her amendment.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters

I am grateful to the Minister for his response and welcome what he said about statutory guidance. I look forward to seeing whether it makes any difference.

However, the provision still gives powers to chief officers to veto authority collaboration agreements and confuses ultimate accountability for ensuring that collaboration. The police authority is the governing body of the police force. It is absurd to suggest in legislation that it should have to get permission from the people whom it governs to exercise its functions effectively. Police authorities respect the operational responsibilities of their chief officers, they respect that position in expertise and leadership in policing, and they would think very hard before going against a chief officer's advice. We really must dispense with this power of veto. I shall withdraw the amendment at this stage, but I predict that there will be problems ahead with this part of the Bill.

Amendment 8 withdrawn.

Amendment 9 not moved.

Consideration on Report adjourned until not before 8.31 pm.