New Clause 2

Police Reform and Social Responsibility Bill – in a Public Bill Committee on 17th February 2011.

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Brought up, read the First time, and Motion made (this day), That the clause be read a Second time.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs) 1:00 pm, 17th February 2011

Good afternoon, Mr Chope. I welcome you back to the Chair and members of the Committee back to our last sitting. Unfortunately, judging by the Home Office programme, it seems that we will have more Bills, but I do not know whether we will all be members of the Committees that consider them.

Interestingly, I remember that when the Government were in opposition they said that it was ridiculous for the House to consider so many Home Office Bills in one year. I know that this is their first year in government and they are flushed with enthusiasm and excitement, but I remember being lectured at great length about being unable to scrutinise and plan such Bills properly—but that was in a different era.

The new clause is extremely important. Our debate on the Bill has been interesting—we have agreed with much of it in principle, but have sometimes disagreed, or required clarification, on its detail. That has not been the case with the provision for a single individual to be responsible for a police force, and the establishment of the police and crime commissioners. We will return, on Report, to the matter of one person being responsible for a huge geographical area, about which various concerns have been expressed by a range of stakeholders. It would be interesting if the Minister published all the responses that the Home Office received to that consultation, rather than only a summary. Publishing such a summary is usually a good way of hiding the fact that there has not been much support for a measure.

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

Perhaps the Minister will demonstrate that I am wrong by publishing all the responses.

The flaw at the heart of the Bill is that there is no proper check and balance on the work of the police and crime commissioner. I hear that concern everywhere I go. The Minister, people who surround the Prime Minister, and one or two others do not agree, but that does not alter the fact that the vast majority of people recognise that failure and its huge bearing on operational independence. Such concern is shared by the hon. Members for Edinburgh West and for Cambridge, judging by the number of amendments that they tabled to strengthen the power of the police and crime panel over the commissioner. The police and crime panel is a toothless watchdog. We have no draft of the memorandum of understanding between the commissioner and the constable on operational independence, which makes the concern even more acute.

People talk about operational dependence. I remind the Committee that the Metropolitan police have stated:

“Accountability is essential to securing an efficient and effective police service, as is the operational independence of Chief Officers.”

The Minister will say that he agrees, but those concerns are real. It has also stated:

“New governance structures must have operational independence as their overriding principle… Chief Officers must have the ‘space’ to do the job they were employed to do”.

Under the new clause, the Minister could say that he understands those fears and concerns, and knows what people are saying, but that they have no need to worry. He could say, “Don’t worry about it. I know there’s a problem, but the Bill sets up the new model in such a way that it won’t cause the problem people think”.

The Minister regards the Association of Police Authority Chief Executives as a dinosaur and its members as people who will not vote for their own demise at Christmas, people who are out of touch and standing in the way of the progressive nature of the new Government determined to bring democratic accountability to policing that has never existed before. I know all about the idealistic out-of-touch vision of where policing should go. Let us consider APACE, a body that the Minister listens to and agrees has greater validity than the Association of Police Authorities, although the hon. Member for Edinburgh West is a great fan of APA and often quotes it in support of his amendments. APACE says that

“There will be issues which the commissioner will consider legitimate in their governance but which chief constables will argue are a matter of operational independence. Examples include a promise to increase visibility of police officers in neighbourhoods or the use of sensitive counter-terrorism powers. Strong governance, together with the minimisation of potential conflict and confusion, will only be ensured by high quality and carefully crafted legislation.”

The new clause would give the Minister the opportunity to have the carefully crafted legislation wanted by APACE.

Paul McKeever, the chairman of the Police Federation, said that the

“commissioner should not be allowed to impinge on that operational side of policing. That is the sort of area that needs to be clarified as the Bill goes through Parliament, to ensure that there is an understanding and that we do not have bickering.”

The Association of Police Authorities, which I cannot resist quoting—notwithstanding the Minister’s view of its membership—said:

“The proposed system could therefore incentivize PCCs to seek conflict with Chief Officers”,

alluding to our earlier point about PCCs elected on a particular mandate to pursue a particular style of policing and to encourage chief constables to change how areas are policed.

What are we proposing? The new clause is meant in the spirit of helpful co-operation to the Minister. I shall put it on the record again that it is absolutely essential that the draft or even a draft of a draft of the code of practice defines the responsibilities of the police and crime commissioner, vis-à-vis the chief constable under the new model of governance, and that the Minister has confirmed that he is taking that forward.

Discussions are going on at the Home Office and, presumably, with ACPO and others to develop the draft. I accept that it is not an easy process, none the less it is an essential process. How much easier it would be for the House of Commons to debate whether the Minister has found a way of resolving the tension between the police and crime commissioner and the chief constable if we had the draft in front of us and understood some of the principles that he expects to operate under the new model. Will he give us some idea of the things that will be included in the draft and tell us about some initial thinking?

Will the Minister not just say that he expects the draft as soon as possible, but say when we can expect the draft of the draft? Notwithstanding our difference on the issue, I honestly believe that each member of the Committee is now interested in seeing a copy of the draft. When it comes to the Bill being debated on Report and beyond, people will want more information and certainly a copy of the draft of the code of practice. I understand the problems, but the chief constable of the West Midlands police authority said that it would help the Committee’s deliberations and the understanding of those outside Parliament if the code of practice were available.

The code of practice is of such importance, as is people’s concern about the politicisation of policing. They are worried across the board that the model will lead to politicisation. Under the new clause, when the Minister has moved beyond the draft code of practice identifying the operational independence of chief constables when dealing with police and crime commissioners, it should be laid before Parliament, so that hon. Members and Members of the House of Lords have the opportunity to discuss the draft, with its approval being subject to the affirmative resolution procedure. That would give some reassurance to those who have articulated concerns about politicisation.

I do not want to be too long, so I will finish with this thought. Surely, if every police authority, the Association of Chief Police Officers, the Association of Police Authority Chief Executives, local authorities and individual Members of Parliament— virtually everyone—are united in their concerns and worries about the new model, the Minister should try to deal with that by adopting the new clause. The alternative is that the code of practice is agreed somewhere, but what scrutiny will Parliament or any Member have over it? Parliament should scrutinise it, because it is of such importance and is such a fundamental part of the new model that the Minister wants.

If the Minister rejects the new clause, it is incumbent on him to explain how the draft code of practice will be arrived at, who will agree it and what process will be followed to bring it about. I say again that I have  respectfully and politely asked the Minister to accelerate the production of the draft, so that we can consider it. I cannot say how strongly I feel. I am opposed to the principle of the Bill, but I feel extremely strongly that the draft should be made available to us, certainly before Report, because Parliament is entitled to have it when considering something so fundamental. I respectfully ask the Minister again to tell us when we can expect the draft to be put before us, so that we can see exactly what the new code of practice will encompass.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs) 1:15 pm, 17th February 2011

I thank the Minister for his reply. I will not return to the PCP. He knows my views on the PCP, and every time I say that it is a toothless watchdog, he gets up and explains why it is not. I did note that he said that it was a valid to comment to make, if someone thinks that the PCP should have more power, which is exactly my point—I think it should have more power, so it is obviously a valid point. I agree with the right hon. Gentleman that the protocol should not define operational independence. That is a generally accepted point. I also accept his point on not having an artificial timetable.

Before I return to the new clause, I understand that it will take a while to negotiate and come up with something that is not just a draft, but a proposal for discussion and adoption. However, in discussions in Committee, on Report, and when the Bill goes to the other place, we need to see what it will look like. I am not asking for a document to be put before Parliament for agreement; I am asking for a document that will give us some idea of what it will look like and some of the things that it will contain. That would be helpful for the Minister, rather than his talking about this nebulous idea of a protocol, without our being sure of what it is. I know that that will be difficult, and that it will take time to put together and that there will be disagreement and debate. If such a proposal can be drafted, however, it would be helpful.

The Minister recognises the force of what is being said in the new clause, which goes to the heart of the Bill—he will know that from his meetings and discussions with lots of different people. Notwithstanding the model that he is setting up, if he does not get it right, there will be problems. He has agreed that Parliament should be involved in a process—he did not commit himself to what that is—of discussions on the protocol when it is finally put together. I look forward to that, because I think it is important.

I will press the new clause to a vote, because seeing the division of opinion in the Committee on the new clause is an important way of ensuring that we, as a responsible Opposition, keep pressure on the Government to ensure that some of the commitments made by the Minister in what was a reasonably helpful response in many respects are met.

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

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.