Policing Protocol Order 2012 — Motion to Regret

– in the House of Lords at 7:26 pm on 25th January 2012.

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Moved by Lord Hunt of Kings Heath

That this House regrets that the order has not been subject to a robust consultation process, thereby increasing the risk of politicising policing decisions through a failure to protect the operational independence of the police.

Relevant document: 46th Report from the Merits Committee.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Home Affairs), Shadow Deputy Leader of the House of Lords, Shadow Spokesperson (Cabinet Office) 7:27 pm, 25th January 2012

My Lords, noble Lords will be aware of the concerns on this side of the House about the introduction of elected police commissioners and the risk of politicisation of our police forces. Rather like the NHS reforms, the Government are bizarrely set to draw a service up by its roots when it should be focused on meeting huge challenges. At the same time as these changes are taking place we are seeing 20 per cent front-loaded cuts to police budgets impacting on front-line services, forcing the retirement of some of the most experienced officers currently serving and the closure of many police stations. As we see from the latest crime figures, crime against the person has gone up by 11 per cent and there has been a 10 per cent increase in robberies involving knives. It is therefore extraordinary that, at this time of major challenges for our police services, the Government are pressing ahead with arrangements for elected police commissioners.

We have had extensive debates on this issue and I do not intend to go over those matters. It is good to see the noble Baroness, Lady Browning, in her place. She, of course, spent a great deal of time helping your Lordships with the legislation.

The order before us is one of many. The noble Lord, Lord Henley, kindly sent me a letter a few weeks ago containing a list of approaching 20 orders which will need to pass through Parliament in a fairly brief space of time. The reason for the rush is that the Government wish to proceed speedily in relation to London, with elections in the other 41 police authority areas in England and Wales taking place on 15 November this year.

I have some concerns about the implications of the speed with which the Government are pushing orders through your Lordships' House and the other place. We can see from the report of the Select Committee on the Merits of Statutory Instruments the problem with that in relation to this important order, which embraces, essentially, the relationship between the elected police commissioner and the chief constable. It is clear that such a protocol should receive robust scrutiny. Noble Lords will know that the Merits Committee identified the relatively short timescale in which the protocol had been developed. It considered that a full consultation might have provided a more complete road test of the robustness of the protocols. Will the Minister respond to that point?

I also refer the Minister to the clarification that the committee sought. Appendix 1 of the committee's memorandum shows the responses of his department. He will note that the committee remained concerned at the possible ambiguity of some of the drafting of the protocol. The Minister may like to comment on that point as well.

As I have said, elections are due to take place on 15 November in 41 police areas in England and Wales. That is not perhaps the best time of year to hold an election, with dark nights and little public interest so far. There is a real fear that the turnout could be low in these elections. The problem of low turnout is undermining the legitimacy of the elected police commissioners. Whatever one's view of the principal legislation, now we move towards its implementation I am sure that we all agree that a large turnout would be a good thing, so that the police and crime commissioners have as much legitimacy as possible.

The protocol is important because there is real fear that the operational independence of chief constables could be undermined by political interference by police commissioners. The fact is that, whatever the protocol says, if you as a police commissioner have a hire and fire power over your chief constable and overall budgetary control, in the end what use is the protocol? All the levers are really with the police and crime commissioner.

What happens if a police commissioner is elected on a manifesto which has explicit operational pledges? That may be to abolish speed cameras, which the chief constable might believe save lives and are in his or her operational competence. There will be other examples where the election may be fought over what I am sure we would regard as operational issues. The moment a successful police commissioner comes into power on that manifesto, they will expect the chief constable to implement it. The chief constable may resist that and could perhaps point to the paragraph in the protocol that makes it clear that there should not be interference. We have a situation where almost all the power lies with the elected police commissioner, as I have said, with few checks and balances in the system.

The noble Baroness and I have debated at length the powers of the police and crime panels. She made some modifications in terms of the voting that applies to vetoes exercised by the panel. Overall, the powers of the panels are weak. It is really not clear in the protocol how they will enforce a regular check on the performance of the police commissioner, as set out in paragraph 14. I have no doubt that the noble Lord, Lord Henley, will say that that is surely a matter for the panels themselves. Given that the police and crime panels have so few levers, I would have thought it helpful to outline in some detail the powers that the panels might have to check on the performance of the police commissioner.

One of my fears about the new system is that chief constables will be subject to greater insecurity in their jobs and that we will tend to have a rapid turnover of them at the hands of police commissioners. We know that that happens in the US, which is where the idea came from. I know the health service rather better than I do the police service. I know the problems that have arisen when you have such a rapid turnover of chief execs. At one point there were so many restructurings-I am afraid that both parties have been responsible for that-that you had the ludicrous situation of the average chief executive spending no more than two years in the job. That does not create stability. My concern is that, in the run-up to a re-election for a police commissioner, the temptation will be very present to pick a fight with the chief constable and sack them.

I also raise the point raised by the Merits Committee on paragraph 3.1 of the Explanatory Memorandum. This is about the fact that the protocol is not drafted in legal language. That point was raised by honourable and right honourable Members in Committee in the other place when it considered the protocol. If the protocol is not drafted in legal language would it stand up in a court of law? The Minister might wish to comment on that.

Finally, in bringing this matter to the attention of noble Lords, I know that it is the intention of the Government for the protocol to be reviewed. Would the Minister commit to reviewing this after a period of 12 months-at the end of 2013-so that it can be done in the light of the first year of experience of relationships between elected police commissioners and chief constables? He may say that a system needs longer to bed down but, in view of this being-for me-the most important aspect of the whole architecture of the new policing system, it would provide considerable reassurance if the Government agreed to a review within very quick time. I beg to move.

Photo of Baroness Browning Baroness Browning Conservative

My Lords, since the House viewed and debated the draft protocol, we now have in front of us the instrument, which has been subject to further consultations. I am very aware that the decision to put it on a statutory basis was influenced by representations made by Members of your Lordships' House.

The consultation that has continued since the Bill became an Act has of course included the Association of Police Authorities, the Association of Chief Police Officers and the Association of Police Authority Chief Executives. We can be confident that those who really have a vested interest as well as a professional interest in what is in the protocol have continued to have an input into the document we see before us. Those important relationships, which your Lordships' House has discussed in some detail on more than one occasion, between the chief constable, the PCC, the panel and not forgetting the Home Secretary have been laid out with clarity rather than prescription. I do not think it was ever the intention to prescribe through this document.

Those individual responsibilities and their inter-relationship are extremely clear in this statutory instrument. I clearly heard what was said about it not being in legal language. I am sure the Minister will reassure us in terms of any legal challenge. On reading it, I thought it was rather refreshing. Please God that more statutory instruments appear in language that we can read and understand on first reading. I hope that the Home Office will submit this document for the Plain English Award this year. That would be a first for a government department. I commend that suggestion to the Minister. It is very important not just that those who have to enact this understand it but that the wider public, too, can feel that it is something they can see, read and understand.

Briefly, because the House does not need me to read out the instrument before us, I recall clearly that one matter of great concern was the operational independence of the chief constable. I believe that the language used here clarifies the responsibility of the chief constable for maintaining the Queen's peace and having direction over the forces, officers and staff while at the same time not going into that prescriptive detail that would quite clearly hamper the activities and freedom of the chief constable to take those operational decisions. That very important point has been well measured and found in the document.

I remind the House that police and crime commissioners have a statutory duty and electoral mandate to hold the police to account. All too often it has been the Home Office that has, from on high, sought to do that. This moves the responsibility down to a much more local and operational level. That democratic mandate brings policing so much closer to the people who are being policed while at the same time reminding us through the appropriate section that the Home Secretary still has and may at times need to use reserve powers with regard to policing.

The role of the panel, which we have debated in some detail on many occasions and on which the Government made considerable concessions when the Bill was before your Lordships' House, is very important. I am sure that in practice it will come to be seen as a very important role in holding police and crime commissioners to account.

I commend this protocol. A good job has been done here. I know that my noble friend the Minister will ensure that where and when necessary, with the appropriate consultation, the protocol will be a living document that will be amended as necessary as the years go by.

Photo of Lord Dear Lord Dear Crossbench

My Lords, when I spoke at Second Reading of the Police Reform and Social Responsibility Bill on 27 April last year, I described the Bill as a crucial step towards a thoroughly modernised police service. I did not say that the Bill would in itself produce that; I described it as a crucial first step. As we all know, the issue of PCCs was an essential element in the Bill. In fact, one could well say that it was the essential ingredient in that Bill, especially in so far as handling police finances and, even more importantly, the operational independence of a chief officer or interference with that.

We all remember and understand the difficulties that we had when Clause 1 was voted off the table, as it were, in Committee, and the difficulties that we had in discussing the role of PCCs in that environment. It was a lengthy and very detailed series of debates, and I will not go into them. They are fresh in our memories. But it became very obvious as we went through that series of debates that there was a need for a protocol to flesh out the detail behind what we meant by some of those terms. I personally welcome it and speak in support of it tonight.

After the General Committee debate, which took place two days ago in the other place, I ran off 23 pages of that debate on my computer and could not find a single word that passed any comment to say that the consultation process was less than robust. The Committee preoccupied itself very much with trying to tease out a definition of proper or improper political interference, which comes very close to what we are talking about tonight. But I could find no trace of any disquiet there about a lack of proper consultation. Indeed, the consultation has involved all the three existing major players; it cannot obviously go to PCCs as they do not exist yet-they have not been elected. But it involved ACPO, the Association of Police Authorities and the Association of Police Authority Chief Executives. I cannot think of anyone else that it could have gone to, and certainly ACPO is satisfied with the procedure and believed that its views were put forward in adequate fashion. I think-although at second hand, and I am subject to correction at this point-that the other two agencies felt very much the same way. So with the greatest respect, I disagree with our own House of Lords Select Committee on the Merits of Statutory Instruments, which said in paragraph 3 of the report:

"Given the constitutional importance of the governance of the police service, the Committee considers that a full consultation might have provided a more complete test of the robustness of the Protocol".

With the greatest respect, I disagree.

If I had been able to express a view to that committee, I would have said as a one-time senior police officer a number of things. The relationship between police officers and police authorities has always had a potential for discord. It is a matter of a healthy tension between individuals and groups of individuals. Nothing that we do today will change that; it has always been in place. I have experienced some very warm relationships with police authorities and, on occasion, some pretty torrid ones. That was what went with the job, and that is how democracy operates in trying to set out a balance. Mostly, of course, good sense reigned and still does mostly; constructive tensions are a good thing, and usually both sides respect each other. If one looks at the history, one can see that the real tensions to date have been few. We have only ever had one-and I referred to it in an earlier debate in your Lordships' House. It concerned Derbyshire, where the balance got so far out of hand in the hands of the police authority that I personally had to declare that force inefficient because it was being starved of funds. So the risks are there, and they always have been there-and of course they will, let us be honest, continue to be there if we have a balance of power shared between the two.

I would have said to the committee that the protocol as drafted, which we are debating tonight, would have been immeasurably useful to me as a chief officer, if I had had that document to hand-and, mutatis mutandis, it would have been just as useful there as it will be in future. I do not think that it can go any further in a description of either political interference or operational independence. That is the view of the practitioners and certainly the view of ACPO.

I refer to two sets of remarks in the House of Commons General Committee of 23 January, first of all very briefly to what Mr Mark Reckless, the MP for Rochester and Strood, said. He said:

"The protocol is a clear and significant document. I should like to put on record my appreciation of all sides of the tripartite, particularly the police".-[Official Report, Commons General Committee, 23/1/12; col. 8.]

More particularly, the Minister for Policing and Criminal Justice, Mr Nick Herbert, said in winding up that it was,

"important to say that it was always the Government's clearly expressed intention not to try to define operational independence. The police themselves advised strongly, through ACPO and senior police leaders, that we should not attempt to define operational independence in law".-[Official Report, Commons General Committee, 23/1/12; col. 19.]

With the greatest respect, I think that that is the correct approach.

There is a pressure point, of course. I do not wish to weary the House with it as it is very obvious and it was obvious all the way through Committee and Report. The pressure point is that when the PCC comes into office he or she will almost certainly ride in on a ticket to address a specific problem or specific problems and will do their best to make sure that they are addressed. The wise chief officer should do his or her utmost to assist that. After all, it is a demonstration of the will of the general public, which all too often has been not exactly suppressed but not exactly clear in the past. Here you have a mandate to address a problem or problems, and so far I have no difficulty with that at all. Presumably, the resources will be put at the disposal of the chief officer but, if that wish or desire by the PCC is outlandish, improper, illegal or ill judged, it is up to the chief constable to try to persuade the PCC to defer from that stated course of action and, if all else fails, to resist it. That is what we have in a democracy, but I do not believe that we are necessarily going to run against that all the time.

I hope that I will not be oversimplifying what I am about to say, but in my professional experience I found that, when push came to shove, political figures drew back from getting too close to operational decisions. They will be rubbing shoulders with you when things go well, but when things do not they will be in the background saying in effect, "That is the operational decision of the chief officer". I do not want to oversimplify that, and quite clearly that could be the subject of a debate. However, I make the point in general terms-and perhaps I labour it-that there has always been a constructive tension between chief officers and police authorities and their chairmen, and that should and will continue.

In a sense, I regret that we have to spend time tonight debating this, although I understand entirely why we are doing it. We could hardly fail to do so, given the remarks of our Merits of Statutory Instruments Committee. All I would say is that we should try to let good sense, and a sense of balance and mutual respect, flourish in this projected environment. We know that the Minister will review it, when we have had a chance to see whether it has bedded down. It probably is a meritorious decision to do that at the 12-month point, and perhaps again at the three-year point, to make quite sure that we are picking up problems before they get too large. However, let us try to treat both PCCs and chief constables as mature individuals who can rely on the protocol for guidance, and who know that it can be properly amended, in the knowledge that, so far as we are concerned, the professionals in play today are satisfied with the protocol as it stands.

Photo of Lord Imbert Lord Imbert Crossbench 7:45 pm, 25th January 2012

My Lords, you will be relieved to know that my contribution on the Motion will be very brief. I am grateful to the noble Lord, Lord Hunt of Kings Heath, for having secured the time for this debate. I will not go over the ground that he so ably and wisely covered. Suffice it to say that every effort must be made to maintain the global reputation of the British police for being the world's leader in impartial policing, without fear or favour-no matter the colour of a person's skin, their origin, political beliefs or station in life.

So far as the consultation on the protocol for policing is concerned, I repeat the comments that I made when the matter was debated in your Lordships' House many weeks ago. We had been assured and reassured, right from the time when the police reform Bill was introduced, that the fear that the election of police and crime commissioners could be hijacked by political extremists was without foundation. Yet we now find that the Government have had second thoughts, and we now have a protocol setting out the boundaries within which the chief constable and the police and crime commissioner will work. I congratulate the Government on their political courage and good sense in accepting that, perhaps after all, such a protocol is necessary to ensure that a maverick PCC or, indeed, chief officer does not upset the essential balance required for the continued good governance of policing, and that the chief constable's traditional pursuance of non-political, impartial policing is preserved.

I support the regret Motion moved by the noble Lord, Lord Hunt of Kings Heath, but if I may, I will finish with one plea. My final comment is to ask that the Home Office finalise the financial management code-as he who pays the piper calls the tune. I trust that this code, after proper consultation, will help to curb any misunderstandings over financial responsibilities and control for all the stakeholders in this new governance structure.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, I was a little surprised when I saw the terms of the Motion because having lived through the Bill, as other noble Lords did, it seemed that the issue of a protocol was consulted almost into the ground. However, I realise that there may be a distinction between consultation on the content of the protocol and consultation on the statutory instrument. I should fess up; I am a member of the Merits of Statutory Instruments Committee, but I was not there on this occasion. That committee is always particularly sensitive to the need for consultation alongside there being adequate time for Parliament to consider an order before it comes into effect, so I can understand how this arose.

I wondered whether it may have been that the complaint was not about the time spent on consultation but about the fact that the consultees had not come from a sufficiently wide group of people. I am not sure that it could have been different at the time that the work was going on last year, but the landscape will change. There will be more players in place, and I for one am reassured by paragraphs 43 and 44 of the protocol. Paragraph 43 refers to,

"periodic review, in particular during the first term of office of the first PCCs".

The noble Lord, Lord Hunt, has suggested that that should be a quite early review. That would be useful, because we will then see in office not only the commissioners but the police and crime panels. Police authorities have taken part in the consultation but the police and crime commissioner-I emphasise "crime"-has a wider remit than simply the policing function. I would like to see local authorities, possibly through the panels but in their own right, involved in any further consultation that might take place.

As has been said, this started as a concern about what was meant by "operational". As I understood it from the fringes, there was endless drafting and discussion involving those who were most concerned about it. I heard one of those individuals say that by the end of it he wondered whether there was any need for a protocol at all. However, we have a statutory protocol and, as the noble Baroness has said, that was because there was such a call for it in the House. We are in an interesting position; we have something of a narrative in the order, which is almost a plain English guide to the statute. Regard has to be had to the protocol, but perhaps the Minister can give the House some assurance this evening as to the status of the protocol as against the statute. I assume that the statute must override it if there is any conflict, but I am not suggesting that I have seen any conflict.

As I read this, the protocol deals not just with "what" but with "how". That comes not only from the protocol itself but from Section 79(6) of the Act, which says in the definition of policing protocol that it is a document that makes provision for,

"ways in which relevant persons should ... exercise, or refrain from exercising, functions".

So that has a purpose of its own as well.

One of the players that need to find a way of operating will be the police and crime panels, and I made no secret during debates on the Bill that I would like to see them quite muscular. Their scrutiny role is a function that is being developed across Government and indeed across governance, and I think people's views of what it should comprise are changing-not confined to starkly vetoing an action nor indeed simply holding to account, which probably amounts to getting information into the public domain, but a constructive role. When the noble Baroness was dealing with the Bill, she took that on board and that is reflected in the statute. I would like to see the panels pushing the envelope there as far as they can. The noble Lord, Lord Dear, referred to "constructive tension" and I have written down "creative tension"; I guess it is the same thing.

I use this opportunity to say that I hope the police and crime panels will have sufficient funding to do the job that we expect of them, not be treated as an easy candidate for savings in the police service. They ought to have access to sufficient funding, given that they are succeeding police authorities. They will have a role in budget-making and the budget is intrinsically political-not in the sense of political versus operational but in terms of what it will enable the police service to do.

I, too, wrote down "plain English campaign" in thinking about the approach of the protocol; it can be useful in this incarnation and in future ones, but I do not take the point about lack of consultation.

Photo of Lord Henley Lord Henley The Minister of State, Home Department 8:00 pm, 25th January 2012

My Lords, I appreciate that the motivation of the noble Lord, Lord Hunt, may be a fear of the democratic mandate that the PCC will have but, having said that, I am grateful to him for giving us the opportunity both to have a break from the Welfare Reform Bill and, far more seriously, to consider the finer details of the policing protocol which, last summer and autumn, this House argued was a necessity to secure the operational independence of the police service.

I pay tribute to my noble friend Lady Browning, who took the Bill through this House. We are all grateful for everything that she did then. May I say how grateful I am for the chance to hear her today and how much I wish it were she who was still standing at the Dispatch Box to argue this case? Still, I shall do my best to live up to her standards in dealing with the various questions.

I echo the words of the noble Lord, Lord Imbert, when he said that-I hope that I have his words down correctly-we must do all we can to maintain the worldwide reputation of the British police. Yes, that is our aim and it is what was behind the Act as it went through Parliament, which is why the protocol is so important and why are grateful to the noble Lord, Lord Hunt, for offering us the opportunity to debate it on this occasion.

The noble Lord put a number of questions to me. I counted up to seven; I might have got that wrong, but he will no doubt intervene if I do not deal with all the points that he made. First, he echoed the Merits Committee's complaints about a lack of consultation, and I will get to that in due course. I noticed those wonderful words from the noble Lord, Lord Dear: it was with "the greatest respect" that he disagreed with the Merits Committee. I have a great deal of respect for that committee-we created it in the run-up to the 1997 election, it is a great committee and we always take its views with great respect-but I also note that when someone says that they disagree "with the greatest respect", they are disagreeing in pretty strong terms, and I am grateful to him for that.

I also note what the noble Lord, Lord Hunt, had to say about the Merits Committee's view about the ambiguity of some of the wording, and I will get to that on his sixth point, which was about the protocol not being drafted in legal language and whether it will stand up in court. Again, I was grateful for what my noble friend Lady Browning said about how grateful she was that it had been put in plain English. I assure the noble Lord that the courts are pretty good at interpreting things when they are in legal language, but I am sure that if necessary they are equally good at interpreting things when they are in plain English.

On that small point, I assure my noble friend Lady Hamwee about her interpretation of which came first-the statute or the protocol-that the courts would always have to take the statute first, should there be any disagreement between the statute and the protocol. As my noble friend pointed out, though, there will be problem.

The noble Lord, Lord Hunt, talked about problems with the turnout for November elections. As he will remember, one of the reasons why they are happening is the delays, possibly those caused in this House, that meant that we had to push back that date, but I am sure that we will still have a very good turnout in due course.

The noble Lord spoke of the fear of undermining the operational independence of chief constables-again, that is something that I will get to as I deal with these matters-and about the fear of greater insecurity for chief constables. The noble Lord's seventh point was again on the question of whether it would be appropriate to have a review in due course, and I hope that I will deal with that in my remarks.

I shall start with what was probably the noble Lord's fourth point: operational independence. We have always been clear about our commitment to the absolute preservation of operational independence. As my right honourable friend made clear in the debate in another place, that is not something that can be defined in law but it is a cornerstone of policing in this country. That commitment has been made both here and in another place on a number of occasions.

I turn to the consultation process itself, which seemed to cause concern to the noble Lord, Lord Hunt, although, as the noble Lord, Lord Dear, put it, it did not seem to cause concern in another place, nor does it seem to have caused concern to anyone else here other than the Merits Committee. Again, though, with the greatest respect I suggest that the committee is wrong; as my noble friend Lady Hamwee put it, it has been consulted almost to death.

The order was not drafted in isolation. It relied heavily on the active engagement of the Association of Police Authority Chief Executives, the Association of Police Authorities and the Association of Chief Police Officers, the former Deputy Commissioner of the Metropolitan Police Service, and the deputy mayor for policing and crime and his chief executive in their former capacities as chair and chief executive of the Metropolitan Police Authority and the Greater London Authority itself. I have no doubt that once police and crime commissioners are elected, there will be a need to seek their views on the protocol, but I stress that this document was issued by my right honourable friend the Home Secretary and it therefore reflects her interpretation in the context of the Police and Social Responsibility Act of how the policing landscape should operate effectively. The protocol that we have now had the opportunity to debate and consider is the result of determined negotiations between all those stakeholders, who have a broad range of robust views on operational independence. It is obvious to me that such a range of opinions also extends to debates in another place and to those in your Lordships' House.

I appreciate that the noble Lord-I think this was his seventh point-would like to see a further review of that protocol before the end of 2013. My right honourable friend in another place gave no firm commitment about a review date, but he said that the Government would consult the PCCs although, as the noble Lord, Lord Dear, made clear, we cannot do so until they exist. However, he also stressed that the protocol, issued by the Home Secretary and setting out her expectations of the formal landscape, will enable the public to understand the respective roles and responsibilities of all parties. That process is obviously open to review in the future but no firm date can be given.

Thinking again about the wording of the Motion in the name of the noble Lord, Lord Hunt, who talks about the lack of a "robust consultation process", I would also make it clear that this process has not been rushed in any way. We placed in the Library of the House a draft protocol, in which my noble friend Lady Browning invited Members from all sides of the House, whom she later met, to discuss the text. She then acted on the comments that she received. That engagement with Members of the House would not have been possible without the open-at times frank-approach that she took in reaching out to all sides on a matter in which I know she is considered to be above her colleagues. My ministerial colleagues in the Home Office and I are very grateful to her for continuing that process.

I think these numbers relate to the fourth and fifth questions about undermining operational independence and fears of greater job insecurity. I shall say just a little more about that matter for the benefit of the noble Lord, Lord Hunt. As he reminded us, further orders will come before this House so there might be opportunities for other debates on the affirmative Motions and, no doubt, on some of the negative Motions that the noble Lord will seek to find means of debating as well. One of the key themes that has run through the numerous debates that we have had so far on the matter of operational independence and the safeguarding of the officers responsible is the fact that it is very difficult, as my right honourable friend made clear in another place, to define what operational independence is.

Primary legislation and common law provide some clarity on the legal principles that underpin the operational independence of the office of chief constable. For example, Section 29 of and Schedule 4 to the Police Act 1996 require members of police forces to be attested as constables on appointment and set out the wording of the declaration that they must make. Case law sets out the important principles that constables act as officers of the Crown in carrying out their duties, but are not to be regarded as servants of any executive authority, and exercise their powers independently at their own discretion. If the noble Lord wanted, I could cite case law going back to 1611 on that issue. I see that he shakes his head and does not require it at this moment. It also sets out the duty on chief constables to secure the preservation of the peace and uphold the law in their areas in the way that they see fit.

Therefore, striking the right balance in setting some clear boundaries within which we expect the day-to-day relationships between the key parties-that is, the PCCs and chief constables-to operate has been a key point of negotiation. I was grateful for the remarks of the noble Lord, Lord Dear, when he talked about there being possible tension on those occasions but that tension not necessarily being a bad thing. I think my noble friend Lady Hamwee described it as a creative tension. I forget the precise wording that the noble Lord, Lord Dear, used; I think it was "constructive tension". However, I think we would all agree that tension can exist without being a bad thing on those points.

I hope that such assurances, including those of people such as the former Commissioner of the Metropolitan Police and his deputy, who endorsed the protocol alongside ACPO, the Association of Police Authorities and the Association of Police Authority Chief Executives, will be sufficient to remind the noble Lord that we have got the boundaries right. The protocol is written in plain English, which seems to disturb him, but perhaps I will hear on another occasion that he prefers them to be written in another manner. I am certainly satisfied that, in setting those boundaries, there remains enough flexibility in the protocol for it to be the starting point for a much more detailed and public-focused discussion of how to reduce crime and how to make sure that we get the policing service that we want and one that, as the noble Lord, Lord Imbert, put it, maintains its reputation of being one of the best in the world.

I hope I have dealt with all the points put by the noble Lord, Lord Hunt, and those raised by other noble Lords. If I have not, I will write to noble Lords in due course.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Home Affairs), Shadow Deputy Leader of the House of Lords, Shadow Spokesperson (Cabinet Office) 8:15 pm, 25th January 2012

My Lords, I thank the noble Lord, Lord Henley, for his response to this statutory instrument debate and his assiduous attention to detail, which we all welcome. The noble Lord, Lord Imbert, put it so well when he talked about the reputation of the British police, which is of course a matter of concern to us all.

The Merits Committee has come in for a little criticism. Perhaps I ought to point out that the history of the noble Lord, Lord Henley, is a little misshapen. I remind him that the Merits Committee was set up after the Wakeham royal commission recommended such a committee, and it was under the auspices of a Labour Government that that royal commission was established. I had the honour of being the first chairman of the committee. I think the point that the committee made was in the context of the London situation. The Government are rushing all these orders through because they want to implement the Bill in London in double-quick time. The problem with that is that it gives less time for the general consultation and process to be undertaken in relation to the orders. Already, I see that the Merits Committee has reported on another order, the Elected Local Policing Bodies (Specified Information) Order 2011, which we will no doubt consider in due course. It is a pity that there has not been a little more time to consider these in general.

The noble Lord, Lord Henley, is able to reassure the House about the operational independence of chief constables. All I say to him is that when the police commissioner has both hire and fire powers and powers over budget, his or her abilities to delve into the operational matters of the chief constables will be legion. We will have to see. I welcome what he said in relation to a review-that the Government could not say when such a review would take place. However, it would be better-I am grateful to the noble Baroness, Lady Hamwee, for her support on this-if such a review was undertaken as quickly as possible.

On the question of language, of course I welcome plain English. I agree that the protocol is very well written. The specific question was whether it could still be used in court. The point made by the Merits Committee is that the protocol was not written in usual legal language. That was the point that I put to the Minister. He reassures the House that he does not think it will be a problem. I am not sure that the courts are used to dealing with plain English, so perhaps it will be a challenge for them.

On the question of turnout, it was a bit rich for the noble Lord to say that it was all your Lordships' fault that the election would take place in the dark nights of November. The Government had another choice; they could have brought it in next May. Not only would that have given your Lordships and the other place a little more time to consider these orders in some detail, but we might have been able to knock on doors in the evening in daylight. As it is, the Minister feels that there will be a good turnout. I certainly hope so and we all have a responsibility to do all we can to encourage a high turnout. However, a November election will not necessarily encourage that.

This has been a very good debate and I thank all noble Lords who have taken part. I beg leave to withdraw the Motion.

Motion withdrawn.

Sitting suspended.