Police Reform and Social Responsibility Bill
(13 years, 1 month ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
15:41 - The House divided: - Ayes: 224 / Noes: 320 - Question accordingly negatived.
17:10 - The House divided: - Ayes: 216 / Noes: 311 - Question accordingly negatived.
18:01 - The House divided: - Ayes: 306 / Noes: 222 - Question accordingly agreed to.
19:00 - The House having divided: - Ayes: 37 / Noes: 480 - Question accordingly negatived.
19:16 - The House divided: - Ayes: 179 / Noes: 297 - Question accordingly negatived.
Vernon Coaker (Gedling) (Lab)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dawn Primarolo)
With this it will be convenient to discuss the following:
Government amendments 6 to 10, 12, 13, 15, 20 and 14.
Amendment 134, clause 156, page 102, line 24, at end insert—
‘(2A) Commencement of Part 1 of this Act is subject to Clause [Commencement of Part 1].’.
Amendment 135, page 102, leave out line 27.
Government amendments 31 to 40, 135A, 136 to 138, 42, 50 and 51.
Vernon Coaker
It is very good to be reunited with many of the members of the Committee who did such sterling service upstairs. It falls to us now to scrutinise the Bill on Report, to consider the various improvements that the Government will seek to introduce and—from the Opposition’s perspective—to continue to point out the Bill’s various deficiencies.
As hon. Members will have seen, new clause 4 states that the commencement order for clauses 1 to 103 should not be brought into force until an inquiry into the impact of the Government’s arrangements, which will be given effect in England and Wales by the Bill, has been completed. In other words, the provisions should not be brought into force until we have begun to understand what the impact of police and crime commissioners will be. Obviously, we would ask Her Majesty’s inspectorate of constabulary to conduct the inquiry, and that before commencement the Home Secretary has to consider the recommendations. The Minister knows that we oppose the introduction of directly elected police and crime commissioners, which constitute the major part of this part of the Bill, and we will continue to do so. I seek again to persuade hon. Members across the House of some of the deficiencies we see in the Bill, and hence of the need for us to calm down, row back and consider what is happening and what the Government are proposing.
The Minister has provided no evidence of the need for the change. In fact, the responses to the policing and crime White Paper “Policing in the 21st Century” seem to be a mystery. After nearly 900 responses to the White Paper, all the Government did was publish a summary of them—they did not publish any of them. I challenge him again to publish all 900 responses. I have a sneaking suspicion that had those 900 responses been in favour of the introduction of police and crime commissioners, we would not have seen him for dust as he moved to publish them. He would have published them with a fanfare of glory, called a press conference and said to everyone, “Look, the introduction of police and crime commissioners supported by me, the Prime Minister and a couple of other people and whipped through the House of Commons is supported by these 900 people. No need for an inquiry. No need for anyone to be concerned.” However, he did not do that; he published a summary, on the grounds that it would be disproportionate to go further.
The silence from those who support the Government’s proposal is deafening. I do not know about other hon. Members, but I have not had people queuing up outside my surgery, knocking on my door and telling me that the introduction of police and crime commissioners is one of the foremost policies they want introduced in their communities. No doubt, the Association of Police Authorities would be among those to whom HMIC would want to talk in its inquiry. However—and I hope that hon. Members have read the Committee deliberations—the Minister does not think that the APA is worth listening to, because obviously it would be opposed to anything that the Government put forward. Clearly, given that the Bill seeks to abolish police authorities, it is thought that there is not much point in listening to the APA.
Keith Vaz (Leicester East) (Lab)
I am following my hon. Friend’s arguments carefully. The new clause would put a lot of responsibility on HMIC. Does he feel that it has the resources to deal with what he would have it deal with? As we know, it published a report only yesterday on police numbers. Does he not think that if we give it this responsibility, it would need the resources to deal with it?
Vernon Coaker
My right hon. Friend, who is Chairman of the Home Affairs Select Committee, makes a reasonable point. Of course, there would be a resources issue for HMIC that the Government would need to consider, but given the importance of the reform that the Government are seeking to introduce, and given that the police themselves say that this would be the biggest change to the policing model in this country for centuries, I suggest to my right hon. Friend that it is incumbent on us to say to HMIC that we will ensure that it has the necessary resources.
The Local Government Association—I do not know whether the Minister has a higher regard for it than for police authorities—is also totally opposed to the reform. It is difficult to find a single council that supports it. Surrey county council sometimes edges towards it, but it is difficult to find many others. I would have thought that if this were a great reform, the police would be coming forward and saying, “This will make a huge difference”, but of course they are not. The challenge, therefore, is to find the demand for the change. Local people are not demanding it, so who actually is? The Minister seems to be driven by a belief that he knows best. He accused others of being elitist, but if everybody is saying that the Government have got it wrong, there might be an element of truth in it.
Mark Reckless (Rochester and Strood) (Con)
The hon. Gentleman asked for an example of a council that supports the reform. My council—Medway council—of which my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) is also a member, has supported the reforms, and our council leader, Rodney Chambers, has been a strong proponent, with me, of direct election for those who oversee our police. Surely the key thing, however, is that the electorate voted for it. The Lib Dems stood on a platform of direct election for police authorities, and we stood on one of directly elected commissioners. We now have this compromise involving a panel. The APA commissioned an opinion poll that showed that most people wanted direct election for those who oversaw the police.
Vernon Coaker
I am glad that the hon. Gentleman has cleared up the issue—there is one council in favour of the proposed changed across the country. However, I disagree absolutely with what he said about the electorate voting for this measure. The model in the Bill was not voted for by the majority of people. As he said, the model in the Liberal Democrat manifesto was completely different from the one in the Bill. He gave the game away when he said, “Of course, in the coalition agreement, there was a compromise”. Well, if there was a compromise, it obviously happened after the election, not during the election, so I do not think that anybody actually voted for this model.
Dr Julian Huppert (Cambridge) (LD)
Does the hon. Gentleman accept that the key issue is about having elected people looking after policing? That was the common ground between our two parties. The outcome was not exactly as we would have liked, but it was a balance between the two options. Does he further agree that there is a problem at the moment, in that police authorities do not represent those on district councils? District councils do not have a direct input. In fact, does he think that police authorities, as they currently are, work well at all?
Vernon Coaker
I do not think that police authorities are as bad as they are portrayed. There is some variation among them, but many do a reasonable job. Perhaps they are not as visible as they might be, and perhaps people do not understand exactly what they do, but people such as the hon. Member for Rochester and Strood (Mark Reckless), who sits on the Kent police authority, do a good job.
As for elections, let us say this. We can come forward with different models for this election or that election. However, as the hon. Member for Cambridge (Dr Huppert) will have heard me say in Committee, whatever the arguments about direct elections, the Government’s model is at totally the wrong level of accountability. I do not get people queuing up at my surgeries to say, “Do you know what, Mr Coaker? Nottinghamshire police’s counter-terrorism strategy”—or its fraud strategy or trafficking policy—“is wrong.” People come to my surgery to say, “Mr Coaker, we’re absolutely fed up with the kids at the end of our street,” or, “We’re totally fed up with the drug dealing going on from cars in a car park down the road.” I am sure that that is true for most hon. Members.
That neighbourhood, street-level accountability is what people want, which is why, to be fair to the hon. Member for Cambridge, his party proposed elections at a very local level. Whether that was the right model or the wrong model, if we are looking at where we need to strengthen accountability arrangements, it is precisely at that neighbourhood and street level where we need to do so. We can have neighbourhood policing, community meetings, beat meetings, and so on—all the things that have happened in a calm and measured way, and which have made such a difference to confidence at that level.
Dr Huppert
The hon. Gentleman will be aware that we have discussed that idea in another venue, along with how important ultra-local policing is and how it is different from governance at a higher level. However, I am trying to understand where he is heading. In Committee he proposed directly elected chairs of police authorities, so I am glad that he now prefers the Lib Dem model—I do not remember him saying that before the election, but it is nice to hear that he is moving our way. Why does he think that having a directly elected chair of a panel would be so different from having a single directly elected person who would also act across a whole area?
Vernon Coaker
We are opposed to directly elected police and crime commissioners as set out in the Bill. Having said that, the Bill will presumably go through—unless Government Members vote against their own Whip—so then what should we do? The proper and responsible thing to do is to acknowledge that fact and propose another model—the hon. Gentleman will have seen our amendments. If we are to have a directly elected individual, then as well as saying that we are opposed to that in principle, what we as a responsible Opposition should do is say how we would improve it. The amendment that we moved in Committee—the hon. Gentleman knows this, but I am repeating it for the benefit of other Members—would have made that directly elected individual the chair of the police and crime panel, and thereby would have introduced proper checks and balances in the system.
The proposal that we are putting before the House today offers another way forward. What we are saying is, “Keep them as two distinct entities”—that is, have a police and crime commissioner as a figurehead, but also have a police and crime panel with significantly enhanced powers. These are all things that, with a proper inquiry and proper research, we could check to see whether they might be more appropriate, but I will tell the hon. Gentleman this. If he was stood where I am and he was opposed to something that the Government of the day were doing, he would say that he was opposed to it, but he would also seek to improve and adapt it, to take some of the edge off. That is what we did in Committee and that is what we are doing now.
It is not just the Opposition; hon. Members will no doubt have read Lord Imbert, the former chief constable of Thames Valley police and a former commissioner, setting out his opposition in The Times today. He will not be alone, although it is easier for him, as a non-serving police officer and a noble Lord, to say why he is opposed. He says:
“If passed unamended, this Bill will undermine”
the policing model that we have had in this country for years,
“threatening the crucial political independence and non-partisanship of the police and the Rule of Law itself.”
Yesterday, Liberty published the results of a survey conducted on its behalf by YouGov, which showed the lack of public trust in elected police commissioners. In answer to the question “Who would you trust more to protect your family from crime?”, 65% chose “A Chief Constable reporting to a Police Authority, as now” as their preferred option. “A Chief Constable reporting to an individual politician elected as a Police and Crime Commissioner” was the preferred option of just 15%. Just to show that that goes across the length and breadth of the country, I found out that a survey had been conducted in Hampshire showing that only 5% of the public there support having a single elected police and crime commissioner.
That is just the sort of evidence that any inquiry would have to look at. However, the Government’s response is simply to stand back and pretend that those people are all dinosaurs who would inevitably say that, because they are looking to protect their own interests, when in fact they are trying to say to the Government, “You need to slow down a bit and look at the consequences of what you’re trying to do.” All the Minister says is, “We believe it’s the right thing to do.” I have said to him before that, with respect, simply asserting that something is the case is not the same as arguing the case. Where is the evidence for this change to policing, which will make such a fundamental difference to governance arrangements?
Michael Ellis (Northampton North) (Con)
Does the hon. Gentleman recall saying when he was Police Minister:
“only direct election, based on geographic constituencies, will deliver the strong connection to the public which is critical,”
and if so, did he have any evidence for saying that?
Vernon Coaker
The model of policing governance that we were considering at that time was exactly the sort of model that I was describing to the hon. Member for Cambridge. We were looking to see whether direct elections at a neighbourhood and local level would lead to improved governance arrangements, but let me say this to the hon. Gentleman. When all those people lined up to oppose the idea, I took the view—as did the Home Secretary at the time—that if everybody opposed something that we were trying to do, we should sometimes step back and reflect on whether we had got it wrong and whether, in all honesty, we should change direction. Some say that that is a sign of weakness or not knowing what we are doing, but we cannot have it both ways. We cannot propose to do something, have a public consultation and then say, “We don’t care what the public consultation says. If we disagree, we’re not going to take any notice.” What the hon. Member for Northampton North (Michael Ellis) described was something that was proposed at the time to deal with governance issues, but it was also something that we withdrew because we listened to what people were saying.
We could look at other issues, but I will leave the evidence there. Any inquiry that HMIC conducted would need to consider a range of other matters, but the Minister—and others on the Committee, given that we did not manage to carry the day—had no concerns about politicisation. We will come later to the debate on operational independence and the code of practice—it was a memorandum of understanding, but it has now become a protocol. Whatever: the serious point is that, given that the Government have agreed to the protocol, they must be worried that having a directly elected individual who is responsible for policing in an area risks politicising the role of chief constable. Many people have raised that issue at great length with us.
Mark Reckless
ACPO, the hon. Gentleman tells us, has suggested that there are issues with checks and balances in the new system, but is not the real issue in the current system, with the lack of checks and balances on both the Home Office and the chief constable, and with the weakness of the police authority leg of the tripartite process? Is it not right that we do something, such as introduce direct elections as proposed in the Bill, to bolster the power of that third, local, democratic pillar?
Vernon Coaker
Nobody has said that the existing system is absolutely flawless or does not need improving. I said to the hon. Member for Cambridge that it is important for police authorities to improve their visibility, but I suggest to the hon. Member for Rochester and Strood that we are discussing the Government’s proposals for the future. If ACPO tells us that the Bill’s checks and balances are simply too weak, should we not then say, “We need to look at this, think about it and try to understand what we should do to further improve the system that we want”?
The Minister gets very upset when I say this, but I am going to say it again. The police and crime panels are one way in which the police and crime commissioner is supposed to be held to account, but the panel is a completely toothless watchdog with no real power. It has two vetoes: one on appointments, as the hon. Member for Rochester and Strood knows, but only with a three-quarters majority; and the other on the precept, in respect of which the hon. Gentleman has tabled an amendment, but again with a three-quarters majority. That is it.
The Minister will say, “The panel has to be consulted, referred to and involved,” but how can it be right that there will be a police and crime commissioner, without anybody able to do anything about what he does, providing obviously that what he does is within the law?
Then we come to the huge number of representations about the size of the area that that one person will have to cover. Again, the Government do not think this is a problem. They say, “Oh, there’s no problem with this; it’s fine,” but there is no evidence to support that, and that is why the House should adopt the new clause so that we may have an inquiry and the HMIC can look into the matter.
The Welsh Local Government Association points out that the system in Wales works very well, and it does not believe that replacing between 17 and 19 members of the individual police authorities in Wales
“with a single elected commissioner will…improve public accountability of the police”.
The association does not believe that one individual can properly reflect all
“the divergent communities that exist in police force areas”,
and it cites the huge area of Dyfed Powys, where one individual will cover the whole area.
We can cite other examples. The Avon and Somerset area covers 1,855 square miles, from Thornbury to Yeovil to Minehead. It has a population of 1.6 million and large rural areas such as Exmoor, major urban areas such as Bristol and Bath and significant market towns. One individual will represent all those areas. That police authority area and one or two others that I will mention across the country all point out the difficulty, and we should listen to them.
Simon Hart (Carmarthen West and South Pembrokeshire) (Con)
As the only representative from the Dyfed Powys area here, may I ask the hon. Gentleman whether he agrees that there is very little connection between the voters in our area and the general policing priorities? The indication that I get, which I wonder whether he agrees with, is that an elected police commissioner for the Dyfed Powys area is in fact likely to bring us closer to the policing process, rather than removing us from it. That is the feeling that I, as the only representative from the area that the shadow Minister cites, get.
Vernon Coaker
I do not see any evidence for that at all, and there have been no such representations. On the situation that the hon. Gentleman mentions, people in Dyfed Powys, in other parts of Wales and throughout the country have a problem getting police at a neighbourhood level to deal with the issues that they think are important, and that is why in Dyfed Powys and other areas throughout the country, through the introduction of neighbourhood policing, panel meetings and town and village hall meetings, people want accountability improved at that very level. I fail to understand how one individual representing that huge area will be able to do that. The hon. Gentleman knows the area far better than I do, but how will somebody in St David’s, in that beautiful part of the country, know about that and then be able to compare it with something 40 or 50 miles away?
We talked about moving an amendment in Committee to require this one individual to attend all the parish and ward meetings in an area, so that they really had local and detailed knowledge. These are huge issues, and one person will simply not be able to do the work. Police authority after police authority has made that point to us.
Mr Matthew Offord (Hendon) (Con)
I was fortunate enough to sit in Committee with the hon. Gentleman, and I am sure he recalls the evidence given on 19 January by Ian Loader, a professor of criminology from All Souls college, who said:
“We have gone through a decade or so of trying to run the police from 10 Downing street, and a broad move to try to reorganise the police under the rubric of local democratic accountability seems to me to be important.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 19 January 2011; c. 47, Q 5858.]
That runs exactly counter to the hon. Gentleman’s argument now.
Vernon Coaker
My point is that the system the Government are seeking to introduce will not deliver the improved accountability that we want. The hon. Gentleman does not agree, as I said in Committee, but, to return to the point I was making, at least he has tried to use a piece of evidence—a small piece, but a piece none the less. Where is the massive amount of evidence that contradicts all the evidence that I have brought forward? The Government made great play of evidence-based policy when they came into power, and the main driver of our new clause is that an HMIC inquiry would allow policing experts to collect evidence to understand whether these improved governance arrangements would lead to the improved accountability that we all want.
The Devon and Cornwall, Cumbria, West Midlands and Greater Manchester police authorities all say that one person in charge of policing in their area will mean far too much work.
Michael Ellis
Does the hon. Gentleman not agree that a good piece of evidence is the fact that such a system is already working in London?
Vernon Coaker
First, if the system in London was working so well, why would the Government want to change it? Secondly, the change that the Government are making is to a completely different system from that which operates at the moment. The Metropolitan Police Authority is being abolished. The person who, through primary legislation, is going to be put in charge of policing in London through the Mayor’s office for policing and crime will be an unelected individual appointed by the Mayor of London. They will not be a directly elected individual as per the rest of the country, but an appointee of the Mayor following the abolition of the Metropolitan Police Authority. The hon. Gentleman asked why, if the system works so well, we should not expand it to the rest of the country. If the system in London is working so well, why are the Government changing it? Why not just leave it as it is? We are not changing the system in London to that in the rest of the country—we are completely changing the system in London to another system.
The inquiry would also need to look at the arrangements between a police and crime commissioner and the local democratic framework. One of the great successes of the current policing arrangements has been the introduction of the neighbourhood policing model, with the development of community safety partnerships in Wales and crime and disorder reduction partnerships in other parts of the country. Those arrangements have brought together all the various partners at a local level in order to try to tackle crime and improve confidence. The police and crime commissioner is not a responsible authority under the terms of the Crime and Disorder Act 1998.
What, then, is the relationship of the police and crime commissioner with the police and crime panel? Again, we do not understand that, and the Bill is unclear about it. I have referred to the complete lack of power that a police and crime panel has, leaving an omnipotent individual in charge of policing. Police and crime panels will have one person from each local authority—if there are not 10 authorities, we can make up the number with another couple—and a couple of independent members. If there are more than 10 local authorities, we can have a few more so that we stick to the basis of one person per authority. There is no reference to how many people might be in that local authority area or to its size—the reference is just to one person per authority, so it could be a tiny district council and a massive local authority area. My hon. Friend the Member for Houghton and Sunderland South (Bridget Phillipson) mentioned Northumbria, which is a huge area covered by one council and a very small, highly populated area covered by another.
Dr Huppert
Does the hon. Gentleman think it is right that under the current system district councils such as Cambridge city council have no representation on the police authority at all?
Vernon Coaker
That is a fair point. We can, of course, make changes and improvements to the current system. However, the point is that we are introducing police and crime panels when we have not had a proper debate about what their constitution should be; we have merely said there should be one member per authority. The size of the district council area in terms of population is not mentioned. These are clearly things that we need to understand.
We have had numerous representations from people saying that they are concerned about this. Cumbria and Surrey police have expressed their reservations. Cheshire—I do not know if there is anyone here from Cheshire, but I might as well go round the country—says that the police and crime commissioner
“must be able to influence relevant partners if their Police and Crime Plan is to be effective in delivering improvements in community safety and crime reduction. However, if the PCC is not a ‘responsible authority’ they have no statutory role and could, therefore, be ignored.”
That is a serious flaw in the Bill that the Minister needs to address.
Another aspect that members of the Committee reflected on, as would many others, is the cost of the introduction of police and crime commissioners. That will be a particularly important area for HMIC to look at. Different police authorities across the country tell us that there will be a significant cost involved. A police and crime commissioner will have people supporting them—a chief finance officer, a chief executive and other staff. A police and crime panel will presumably need resources to be able to carry out its function properly. A chief constable will become a corporation sole—in other words, a legal entity—and able, unless the Bill is amended as the Liberals tried to do, not only to control staff but own property and assets and so will presumably need more staff to be able to do that.
Madam Deputy Speaker (Dawn Primarolo)
Order. Members have to stand if they want to speak—bobbing up and down like this does not help me. I call Julian Huppert.
Dr Huppert
Thank you, Madam Deputy Speaker. I apologise for being confusing; I was trying to be helpful.
It is a pleasure in many ways to continue the work that we did on the Bill Committee with many right hon. and hon. Members whom I see around the Chamber. These are slightly larger, grander surroundings than those in which we had our last, rather extensive, discussions.
Dr Huppert
Indeed. We have had a fair discussion in Committee, and I am glad that we are continuing it.
The shadow Minister spoke about a desire for delay, and I can understand why he sees that as his role. I am sure that the Minister will respond to the detailed points that he made. I was rather touched by the shadow Minister’s comment about how I would behave if I were in his position. He did not make it clear whether that was in a scenario where the Labour party had completely collapsed and was now a minor party, whether that had happened to the Conservatives, or whether there was a Labour-Conservative coalition. I am sure he can comment on that later.
I want in particular to speak about Government amendment 14, which deals with a rather detailed point raised in Committee by my hon. Friend the Member for Edinburgh West (Mike Crockart). It is a great pleasure to see him in his place. He spotted that lines 4 and 16 on page 22, in clause 30, did not quite fit together—that there was a drafting error. That led to an interesting discussion in which we genuinely explored some ideas—I think we all learned a lot—about what should be the process for suspending a police and crime commissioner, the standards and thresholds and the effects of such a suspension. There is an interesting balance to be struck as regards what should happen. The amendment corrects the drafting error and leaves the provision that a commissioner may be suspended by the panel—I emphasise that the term used is “may” rather than “must”—if charged with an offence that could lead to a term in prison of greater than two years.
Is the balance right? First, the position of police and crime commissioner is very responsible and we would not want to see a holder of it being seriously investigated for a major crime, which would put them in a position that would simply be untenable in the public eye. On the one hand, one could suggest that we should bring the threshold lower and lower until, if we want to be absolutely sure, they would be suspended if they were accused of anything. I think that would be going too far, and I shall come up with a suggestion on that point a bit later.
The flip side of the argument, however, is that such a commissioner has been charged, not convicted. There is a clear difference and a clear principle. Members on both sides of the House mentioned in Committee that we should not punish people excessively based on the fact that they have been charged. There is the principle of innocent until proven guilty that still applies to most public law—I shall avoid talking about terrorist offences on this occasion. Clause 30(3) says that during a suspension period, a commissioner does not draw their salary, their pensions or their allowances. That is a punishment, in effect.
We had a number of discussions in Committee and the Liberal Democrats have had some discussions about our proposals on the way forward. We have also discussed that with the Minister. There is the question of what offences we wish to catch. My hon. Friend the Member for Edinburgh West gave a number of examples of offences that would not be covered by the rules for the possible suspension in the context of offences with sentences greater than two years. I shall not go through every example, but they included racially or religiously aggravated assault or harassment, and I think we would have concerns about a police and crime commissioner who was charged with that. Other similar offences include aggravated vehicle taking, causing damage to property and causing injury. Vehicle taking without consent has a sentence of six months, as does assault on a police constable, as my hon. Friend pointed out. One would have great concerns if a police and crime commissioner was being charged with assaulting police constables, particularly on a regular basis. That would suggest that the relationship was not working
We must work out what to do. Our proposal—I hope that the Government will respond to it and will consider it as a way forward, and I look forward to hearing any other contributions—is that the period should be brought down from two years to six months, as suggested in the amendment originally proposed by my hon. Friend. It should be specified that the charge should be carried out by the Crown Prosecution Service—by a prosecutor—rather than a police officer, as they have powers to charge in some circumstances. We do not want police constables to be able to get at a commissioner with whom they disagree over some issue.
The flip side of bringing the threshold down to give greater public certainty is that there should be no loss of pay, no loss of pension and no loss of other allowances that would be incurred in the job—the person might not be doing that job during that period, but there might be some ongoing costs. That would avoid excessive punishment while providing public certainty that a prominent figure in such an area was not under a cloud and could not get out from under it.
There should also be a provision, regardless of the threshold, for the commissioner to be able effectively to suspend themselves and to say that there is an allegation against—
Madam Deputy Speaker (Dawn Primarolo)
Order. May I remind the hon. Gentleman that we are discussing quite a narrow set of amendments? I am not sure that he is on the point of what we are discussing now—that is, the new clause and the amendments that are being debated and have been selected.
Dr Huppert
I was speaking about Government amendment 14, which I think is in this group.
Madam Deputy Speaker
Order. The hon. Gentleman said at the beginning—and this is my understanding—that that is a drafting amendment and a correction, yet he seems to be making rather a substantial point of debate. If the Government have accepted a change by tabling their own drafting amendment, it normally follows that it is quite minor. That was why I asked him.
Dr Huppert
I had almost finished, Madam Deputy Speaker, and I shall do shortly. There was an interesting debate in Committee about whether we wanted just to correct the drafting order or to go further—
Madam Deputy Speaker
Order. With respect, people can read the Hansard report of the Committee. I have given the hon. Gentleman a great deal of latitude. I think he has come to the main point of what he wants to say, so if he could now conclude on that point it would be helpful.
Dr Huppert
I am happy to do so. I hope that the Government will consider what I have said as well as the self-suspension ideas.
Paul Murphy
I support new clause 4, the case for which was so powerfully made, characteristically, by my hon. Friend the Member for Gedling (Vernon Coaker). I hope that the House will divide on it.
I support the idea of deferring the commencement of part 1. Later, there might be the opportunity to debate my amendment, which would exempt Wales from part 1, but this is an opportunity to reflect on a less drastic course of action—that is, the deferral of the commencement of the Bill. There are one or two reasons for that and I hope that the House will bear with me as I set them out.
Not very long ago, the National Assembly for Wales took the unprecedented decision not to give legislative consent to part 1. That, in my experience—which goes back a few years in such matters—is entirely unprecedented. It has never happened before. As a consequence, the Communities and Culture Committee of the National Assembly has asked for the deferment of part 1. Its headline recommendation reads:
“We recommend that the Welsh Government has dialogue with the UK Government to persuade it to defer introducing those aspects of the bill related to the abolition of Police Authorities, and establishment of Police Commissioners and Police Crime Panels in Wales, at least until the effectiveness of their impact in England has been assessed.”
That is not a million miles away from new clause 4, which asks for the deferral of the commencement until such an assessment has been made by HMIC. That is why I support the new clause.
Policing, as the Minister will know, is not devolved in Wales, although it is in Scotland and Northern Ireland, but it is different in Wales from in England. I cannot see any evidence that there has been any sort of negotiation, discussion or proper Government-to-Government relationship on the issue of policing in Wales in so far as part 1 is concerned. There might have been, and doubtless the Minister will let us know when he winds up.
In Wales, there is a rather different relationship between the Welsh Local Government Association—to which my hon. Friend the Member for Gedling has already referred and which, incidentally, is not in Labour’s hands but is controlled by independents and non-Labour Members—police authorities in Wales, of which there are four, and the Welsh Assembly Government. That relationship is very special because it touches on a working partnership arrangement between the police authorities in Wales and the National Assembly that is unique in the United Kingdom. It seems proper to me to repeat the arguments used in Wales by local government, by the police authorities, by the National Assembly and by the Welsh Assembly Government to ask for the commencement of part 1 to be deferred. One chief reason those bodies ask for the deferment is the fact that there are rather different financial arrangements in Wales for policing. Half of Welsh police forces get their money from the Welsh Assembly.
Simon Hart
I will restrict my comments to the impact of elected commissioners in west Wales, an area that has been referred to already. My comments are driven not by ideology, as some have suggested, but by my practical experience of the area, the reaction of police officers both junior and senior, and, perhaps even more importantly, the reaction of members of the public.
The context to this debate is the ongoing consultation about the future of the coastguard. One might wonder what the connection is, but it is simply that around Milford Haven—the important waterway that divides the constituency of Preseli Pembrokeshire from Carmarthen West and South Pembrokeshire—there is an enormous local attachment to and affection for that emergency service, which might not immediately appear to be an emergency service. Our community is proud of it, feels that it is part of it, and feels that it owns it. It is part of the fabric and architecture of the community. People in the community know only too well that if they pick up the telephone, they will get a trustworthy and local response to what are often traumatic problems.
The reason why I paint that little contextual picture is that Dyfed Powys police, to whom the shadow Minister referred, cover a vast and diverse area. The Minister is not entirely unfamiliar with the area. The police force is not devoted purely, as some would flippantly suggest, to sheep rustling and stolen quad bikes. One in seven terrorist incidents in the UK have a connection to our constabulary. It has the onerous responsibility of looking after the UK’s most important energy hub in Milford Haven, which has two refineries, two liquefied natural gas terminals, and the biggest gas-fired power station under construction in Europe. It is an important strategic area, which our stretched police force has to look after. That is the reason for the great connection with the local community, which I would argue is not enhanced under the current arrangements, but would be enhanced under the proposed arrangements.
Opposition Members may argue that I am simply trotting out the ideological prose as laid out by my elders and betters, but I consulted just three people in preparing the comments that I am about to make: two police constables currently serving in the Dyfed Powys force, and one rather more senior officer with whom I had a conversation at the weekend. The local police authority has—reasonably, sensibly and in a measured fashion—repeated the concerns that the shadow Minister articulated.
The two police constables, without any provocation, said to me, “At long last we’ll be able to do the job that we originally joined up to do.” I pushed them on this point, and their responses entirely endorse the Government’s proposals. They endorse, welcome and encourage the involvement of the local community. The crime panels, which are not directly related to new clause 4, will provide the accountability that some suggest is missing. The involvement of local authorities and elected individuals who are accountable to their wards and regions is a crucial piece of this jigsaw. As was said by two police constables and a more senior officer, whose rank I cannot reveal lest I give away his identity, that involvement will lead to improved prioritisation, which is in the community’s interests; improved cost effectiveness, which is vital in the Dyfed Powys force; and improved customer satisfaction—a phrase I hesitate to use.
In discussing cost and budget reductions in the coming weeks and months, the senior officer was certain that Dyfed Powys police could maintain a decent police force that would safeguard the interests of the community and businesses. However, he said that it would be different. It will not smell the same, and in many regards there will be an entirely different form of policing from what we have been used to. That does not mean that it will compromise the safety of the community or that crime will rise. Those ideas are being bandied about irresponsibly by mischief makers. The changes do not mean for one minute that people will sleep less safely in their beds; quite the opposite. There is a realistic recognition that things have to change, that they will change and that they will look different, but that those changes will guarantee a reasonable cost-effective police force for our community.
Only this morning in Prime Minister’s questions, as Members will recall, there was a suggestion that the proposals will compromise safety and the interests of the communities and the many businesses that rely on police protection—particularly in Milford Haven. I really would urge caution, because that is not the case. It is irresponsible for Opposition Members to bandwagon, to make political statements and to suggest that the proposals will damage the safety of our communities.
The House need not take this point from a lowly Member who represents a distant part of west Wales that most Members, I regret to say, have probably never heard of. As evidence, I put to the Minister the impassioned pleas of two police constables and a senior officer in one of the forces that will be most affected by the proposals. They say that there is nothing to fear, and that with a reasoned approach and a sensible balanced debate we can produce an outcome that is in the interests not only of the Treasury, which always lurks somewhere in the shadows of these debates, but of our communities, which have such great affection for their police forces, upon which they so permanently and reasonably depend.
Keith Vaz
It is a pleasure to follow the hon. Member for Carmarthen West and South Pembrokeshire (Simon Hart), who rightly put the debate in the context of what is happening locally in his constituency. Every right hon. and hon. Member can talk about the local impact of the changes that the Government are making, but I will concentrate my remarks on new clause 4, and particularly on the desire of Opposition Front Benchers that there should be an impact study of the Government’s proposals before they are put in place.
The Government have embarked on a very ambitious and challenging policing agenda. I have just finished reading the speech that the Minister for Policing and Criminal Justice made on Monday, and he used in it the memorable words:
“Reform cannot wait; we do not have the luxury of delay while a committee of wise men”—
slightly politically incorrect—
“deliberate and eventually agree to differ.”
I am not sure whether the Home Secretary would compose a committee of that type, but what the Minister was saying was that the Government want to get on with reform.
Those of us who serve on the Home Affairs Committee have been pretty exhausted by the amount of proposed legislation and the changes that the Government have brought into effect since last May. However, one would expect that from a Government who took office after 13 years in opposition. Of course Ministers, particularly the Minister for Policing and Criminal Justice, who I know has a passion for the debate on policing, want the Government to get on with what they want to do.
Michael Ellis
Was the right hon. Gentleman not also exhausted by the 13 years of the previous Government and their 10 criminal justice Bills and 3,000 new criminal offences?
Keith Vaz
I say to the hon. Gentleman, who has recently joined the Home Affairs Committee, that I was totally exhausted. That was why I hoped we would have a little break when the new Government got into office. Members of the Committee who are in their places today—my hon. Friend the Member for Houghton and Sunderland South (Bridget Phillipson) and the hon. Members for Rochester and Strood (Mark Reckless) and for Cambridge (Dr Huppert), and indeed the hon. Gentleman himself when he is freed from the Protection of Freedoms Bill Committee, on which he is currently sitting—know that the change is rapid. I therefore have some sympathy with the Opposition Front Benchers’ proposal that there ought to be an impact study.
However, I am not absolutely convinced that the best organisation to perform the impact study is Her Majesty’s inspectorate of constabulary. I hope my hon. Friend the Member for Gedling (Vernon Coaker) will convince me of that by the time we get to the Division Lobby. I am not sure where that organisation will fit in the new landscape of policing. If my hon. Friend believes for one moment that a report by HMIC, even though it is under the distinguished leadership of Sir Denis O’Connor, will unite the House or provide the basis for moving forward, he can look at what happened to the report that it published yesterday. Opposition Front Benchers accepted it, but I caught a glimpse of the Minister on the BBC yesterday, and he did not necessarily accept the report. He may or may not have accepted part of it, but as we all know, he certainly did not accept that front-line policing would be affected. It was interesting to hear the Prime Minister’s views on that today.
My plea is that the enormous reform and challenging agenda ought perhaps to pause for a short while, to allow Parliament to consider in even greater detail what the Government are proposing. The Home Affairs Committee has published a report on police commissioners. We did not comment on the idea, because we took it as read that the Government wished to introduce them, depending on the outcome of the Bill, which has yet to be finally voted upon. We examined the implications of what the Government planned to do once the commissioners were in place. I am glad to see that the Government have accepted a number of the points that we made, particularly about clarifying the relationship between the commissioners and the chief constables. We will discuss that in a later debate.
My concern is that we are not stopping and thinking clearly enough, even if we might want to go in the direction that the Government suggest. The Home Affairs Committee examined the need for a study of the proposals, and obviously the most appropriate body to make one would have been the Committee itself. However, we have been rushing to deal with each piece of Government legislation as quickly as we possibly can. I am not sure that HMIC should produce the study, though.
My hon. Friend the Member for Gedling was one of the best Ministers in the last Government, and when he left the Home Office he had gained a huge reputation for what he had done. He will correct me if I am wrong, but I am not sure that when the previous Government introduced radical changes they asked HMIC for an impact study or paused to allow other bodies to conduct inquiries. I can well remember, as Chairman of the Home Affairs Committee, a proposal from the then Home Secretary to replace police committees. Then, all of a sudden, we received a letter saying that the Government had changed their mind, having accepted in full our recommendations on the subject. There is a danger in picking the wrong organisation to undertake the study. The point that I believe my hon. Friend is trying to make in new clause 4, which is the right point to make, is that we should stop and consider the matter, not that we should necessarily delay it.
The Minister for Policing and Criminal Justice (Nick Herbert)
First, I apologise to the Chairman of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), for exhausting him. I look forward, of course, to his inquiry. I very much hope that he will invite me to give oral evidence, but that is entirely a matter for him and his Committee. I am sure that the Home Office will submit written evidence, but of course I welcome the inquiry, as I have welcomed all his reports since he assumed the chairmanship.
It seems to me that the purpose of new clause 4 is to delay the enactment of the important part of the Bill that will create directly elected police and crime commissioners. That has been expressed pretty openly. The right hon. Member for Torfaen (Paul Murphy) was explicit about the fact that he sought that for Wales, so I will seek to address that point.
As I argued in my speech to the Institute for Public Policy Research on Monday, which is on my website and which I am happy to send to any hon. Member—I am grateful to the right hon. Member for Leicester East for quoting it—I do not believe that there is time for delay, because the changes that we need to make to policing are urgent. The democratic deficit must be addressed, and there is a need to drive savings at local level more strongly than they have been driven before. We therefore need to undertake this reform.
Furthermore, if the Government signal any kind of delay now, which the Government emphatically do not wish to do, we would create uncertainty, at a time when, subject to the further deliberations of the House and the other place, others outside are preparing in the expectation that the Bill will become law—the House gave a Second Reading to the Bill—and that the first elections for police and crime commissioners will take place in 2012.
The Home Office has a transition board, which I chair, which includes all parties, including ACPO and the Association of Police Authorities. Those parties may not have proposed the Government’s measure, and they may not be wholly happy with it, but they nevertheless sensibly recognise that it makes sense to sit down and discuss how the changes should be put into place.
I want to emphasise that although the Government are determined to proceed with the Bill and its reform, we have listened. I hope the hon. Member for Gedling (Vernon Coaker) accepts that we listened in Committee, when I believe we had a constructive debate. We also listened to those outside—important views have been put to us—and to the Home Affairs Committee. We will come to debate what the Committee describes as the memorandum of understanding to protect operational independence—we call it a protocol—but we agree that it is a good idea.
We also listened to ACPO’s concerns on ensuring that strategic policing is addressed despite the greater localisation expressed in the Bill. As a consequence, the Bill provides for the strategic policing requirement. We have also strengthened the powers of police and crime panels. The Government have listened and sought to address concerns, but we nevertheless remain committed to the introduction of police and crime commissioners, with the first elections in May 2012, although we could move sooner in London, which already has a Mayor.
The right hon. Member for Torfaen referred to the National Assembly for Wales Communities and Culture Committee request for a deferment of the provisions and asked whether the Government have held discussions with the Welsh Assembly Government. I must reassure him that, right from the beginning, we have sought such discussions and to respect the devolved arrangements in Wales. I have met the Minister responsible, as has the Home Secretary, and our officials have had a great deal of discussion.
The Assembly Government have made it clear that they do not favour police and crime commissioners, but of course, policing is a reserved matter, and the House of Commons has decided that police and crime commissioners should apply in England and Wales—that is what the Bill says. The question is whether we can find arrangements that respect those aspects of the devolution settlement that are within the competence of the Welsh Assembly. We sought to do that through the legislative consent motion that we tabled, which we will shortly debate further.
I very much regret that the Welsh Assembly did not pass that motion, but I repeat that we have at all times sought to address the Welsh Assembly Government’s proper concern, while recognising that it is equally proper that the House of Commons decides on that reserved matter. Saying that we must always follow a request from the devolved Parliament or one of the Assemblies for a deferment is tantamount to saying that the matter is no longer reserved. For so long as the matter is reserved, I believe that the right decisions have been taken.
Paul Murphy
I remind the Minister that things are not quite as simple as saying that policing is reserved. Policing is of course reserved, but aspects of the Bill touch on matters that are not reserved. Local government, which is wholly resolved in Wales, has a huge role to play on the panels, so it is not quite as simple as he says it is. There is more room for negotiation with the Welsh Assembly Government on those very important matters.
Nick Herbert
I absolutely accept what the right hon. Gentleman says. Local government matters are not reserved and local government touches on the panels, but that is precisely why we negotiated the legislative consent motion. It is deeply unfortunate that despite the fact that I negotiated that motion with the Minister responsible, Carl Sargeant, and he agreed it, he did not vote for it. As I said at the time, I regret that, because it was self-defeating. The motion sought to put in place the special arrangements for police and crime panels in Wales, on which the Welsh Assembly Government would have representation. I emphasise to the right hon. Gentleman that we really tried to reach an arrangement and to respect the devolution settlement.
Mark Tami (Alyn and Deeside) (Lab)
The point that my right hon. Friend the Member for Torfaen (Paul Murphy) makes is that the mechanism for election to police panels is a devolved matter, meaning that the Assembly is responsible. How does the Minister square that circle?
Nick Herbert
If I may, I will come to that matter when we reach that specific group of amendments, because the Government have tabled amendments to address it. We must find a way to ensure that the Bill is consistent with the wishes of the Welsh Assembly, which it expressed in rejecting the legislative consent motion. I shall address that question at the appropriate time, but I wanted to respond specifically to the right hon. Member for Torfaen.
When moving new clause 4, the hon. Member for Gedling made a number of wider points in which he attempted to open up once again the arguments for and against police and crime commissioners. I shall not dwell on those other than to say that he has expressed support in the past for the concept of a direct component in police authorities, as was ably pointed out by my hon. Friend the Member for Northampton North (Michael Ellis).
In addition, in Committee, the hon. Member for Gedling moved an amendment for directly elected chairs of police authorities, and the previous Government twice proposed a democratic element. I accept that there is a difference between that Government and this one, but the difference is not that this Government do not believe in democratic reform of police authorities—it appears that all parties do. Rather, the difference is that the previous Government backed down twice, but we have no intention of doing so, because there was a Conservative party manifesto commitment, and as my hon. Friend the Member for Cambridge (Dr Huppert) pointed out, because having directly elected police authorities was separately a Liberal Democrat manifesto commitment.
We now know that the latest proposal from the hon. Member for Gedling is for directly elected chairs of police authorities. In moving and voting for that amendment, the hon. Gentleman wholly undermined his argument on cost, because implementation of directly elected chairs of police authorities would cost not the same as police and crime commissioners, but more. Therefore, the most expensive proposal for democratic reform of police authorities in the House of Commons is from the Opposition spokesman.
What is wrong with proposed new clause 4—I agree with the right hon. Member for Leicester East on this —is that it would put in the hands of the inspectorate of constabulary the power to hold an inquiry, and thereby to delay implementation of the Bill. Constitutionally, that would be very difficult. It would place the inspectorate in an invidious position. Parliament should decide reforms of this kind, after taking into account the views of both Houses and consulting widely. The idea that we can somehow park these matters into an inquiry by an independent body that is meant to look at the effectiveness and efficiency of policing is wrong. It would be very wrong for that organisation to do that, as it would effectively set up the inspectorate as judge and jury on a decision that Parliament had made. We therefore believe that these measures are the right thing to do, and we intend to proceed with them. Nevertheless, we are listening and will continue to do so.
In conclusion, on new clause 4, I would like to point out that, when the previous Home Secretary, the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) was proposing democratic reform of police authorities, he said that those who claimed to have the power, and who wished to hold the power, should therefore be accountable for the power. That is the right principle, and the basis on which we should proceed.
Keith Vaz
I do not wish to interrupt the right hon. Gentleman’s peroration, but I want to make a point about the timing of the election. During the course of the inquiry, the Select Committee picked up some concern about the election taking place in May next year, just before the Olympics, when people ought to be concentrating on security measures and related issues. Is the Minister quite satisfied that this is the right timing?
Nick Herbert
The right hon. Gentleman makes a genuine point. There are two answers. First, I have said that the Government wish to move sooner in relation to London. The transition in London could therefore be made before the elections in 2012. Secondly, the measures relate to a change in the governance of policing. The Bill will not affect the police forces themselves. There are important changes being made, but this is principally a change to the governance of policing. There should be proper discussion, to ensure that in the run-up to the transition the police authorities do not lose sight of such important matters and that the forces that they hold to account do not do so either.
The remaining group of Government amendments will not, I hope, be controversial. They are all of a minor and technical nature, and I will summarise them briefly now. Amendments 6 and 8 will clarify the wording of the Bill so that a commissioner—or, in London, the Mayor’s office for policing and crime—will be obliged to consult a chief officer of a force on a new or revised plan only to the extent that its content is actually new. At present, the wording of the Bill includes two repetitious obligations to consult on the plan—for example, in clause 5, subsections (6)(b) and (8). It would make no sense legally to compel such individuals to consult again on material that had already been discussed. I would expect such discussion to occur naturally and when necessary between a commissioner and his chief officer, so this new wording merely puts a duty on the commissioner to ensure that new content is drawn to the chief constable’s attention. Any more burdensome requirements would be needlessly bureaucratic and prescriptive.
Amendment 9 will bring the police and crime plan issued by the Mayor’s office for policing and crime into line with other mayoral strategies, in regard to some of the matters that the Mayor has to bear in mind when drafting the plan. It is right that there should be a consistent and joined-up approach to the plan and the other strategies. Amendment 10 will clarify the scope of the duty on commissioners and criminal justice bodies to co-operate with each other. On the purpose of the co-operation, it replaces the word “in” with the word “for” in the phrase
“so as to provide an efficient and effective criminal justice system in the police area”
in relation to a commissioner’s responsibilities for criminal justice “for their force area”. This reflects the fact that elements of the system such as a court or a prison that are outside the geographical area of the force may still contribute to the criminal justice system inside the area.
Amendment 12 makes it clear that the general bar on a commissioner delegating the discharge of his functions to another commissioner or a chief constable does not prevent the delegation of functions in the context of a formal collaboration agreement. Amendment 13 will correct a reference to the wrong subsection in the provisions dealing with the delegation of the functions of the Mayor’s office for policing and crime to the Deputy Mayor for policing and crime.
Amendment 14 will correct an internal inconsistency in clause 30, which deals with the suspension of a commissioner. We noted the inconsistency in Committee. Clause 30(1) makes it clear that the threshold for suspension is that the commissioner has been charged with an offence carrying a maximum term of imprisonment exceeding two years, but clause 30(4) incorrectly refers to the limit as a maximum sentence of two years or more. The amendment ensures that those references are consistent. I have noted the suggestions of my hon. Friend the Member for Cambridge (Dr Huppert) for a better way to proceed on suspensions. We had a debate about that in Committee, and I suspect that the other place will return to the matter. The Government will pay attention to the concerns that are expressed. However, we are clear that the current threshold is proportionate, striking the correct balance between protecting the public from criminals and not suspending the public’s representative for trivial offences.
Amendment 15 will correct an inconsistent use of language in the amendments that the Bill makes to the Police Act 1996, reflecting the fact that a commissioner will have the same function of maintaining the police force in his police area as a police authority has now under the 1996 Act. Amendment 20 will ensure that, while members of a commissioner’s staff may be compelled to answer questions and provide documents to a police and crime panel, they will not be required to divulge advice that may have been provided to the police and crime commissioner. That brings the provisions on commissioners into line with the existing arrangements for the Mayor of London, which we are retaining while replacing the Metropolitan Police Authority with the Mayor’s office for policing and crime. Not doing so would weaken a commissioner’s decision making power, as all discussions could potentially be subjected to criticism, which would discourage the free and frank flow of ideas.
I apologise to the House for going into such detail, but I think that it is important to give the public clarity on the amendments. Amendments 31, 32, 38 and 39 concern the appointment of a commissioner’s chief executive. The current wording refers to a “qualified” person. However, the Bill does not impose any qualifications in respect of candidates for appointment as chief executive—in contrast to the position of the chief finance officer, who must be financially qualified in accordance with local government legislation—so there is no need to include the word “qualified”.
Amendments 33 and 40 correct a drafting error in which references to the chief constable in amendment 33 and the Metropolitan Police Commissioner in amendment 40 should have been references to the police and crime commissioner and the Mayor’s office for policing and crime, respectively. Amendments 34 to 37 and 135 to 138 are included to make references to police staff consistent with the rest of the Bill, which refers to them as “police civilian staff”. Amendment 42 is included simply to clarify the Bill. In its present wording, it is unclear what paragraph (2)5 of schedule 7 is referring to when it uses the phrase “for these purposes”. The amendment makes it clear that this means the purposes of sub-paragraph 6.
Amendment 50 will correct a minor drafting error in relation to the replacement of the strategic policing priorities with the Home Secretary’s new strategic policing requirement. It amends the section of the Police Act 1996 that deals with policing objectives, which in future will apply only to the Common Council of the City of London in its capacity as a police authority, with the effect that the Common Council will frame its objectives so as to be consistent with the strategic policing requirement, rather than strategic priorities. This will bring the Common Council into line with other policing bodies. It was our intention to achieve that outcome, but the Bill as drafted did not do so.
Finally, amendment 51 changes a reference to “authorities” in respect of arrangements for the police negotiating board to “persons and bodies”. This is simply to reflect the fact that police and crime commissioners are replacing the word “authorities” and it will no longer be applicable in this context.
Vernon Coaker
I thought the ending of that was brilliant.
Let me say in all seriousness to the Minister that he is introducing a change to the model of policing in this country—the biggest change for centuries—without one shred of evidence that it is the right thing to do. In his response, we heard not one study cited, not one chief police officer quoted, not one police authority quoted, not one council quoted—as I say, not one shred of evidence in support. All the Minister did was repeat what he has done before—stand at the Dispatch Box and assert that he knows best. He accuses me of elitism, but I can see where the elitism lies when it comes to someone saying that they know best. This is no way to reform the police service; it should be done on the basis of evidence.
I have a couple of quick points. I agree with my right hon. Friend the Member for Leicester East (Keith Vaz), the Chairman of the Home Affairs Select Committee, that Governments sometimes need to pause and look at what they are doing. That is the purpose of the new clause. It invites us to reflect on the evidence and on what people are saying and then to legislate and reform on the basis of that evidence, not ideological commitment. My right hon. Friend may well think that there is an alternative to Her Majesty’s inspectorate of constabulary when it comes to who is best placed to carry out the report. Perhaps his Select Committee or other bodies should be involved, but it does not alter the fact that, as he says, we sometimes need to take stock and reflect on how best to move forward and make change.
I also want to deal with what was said by my right hon. Friend the Member for Torfaen (Paul Murphy) and the hon. Member for Carmarthen West and South Pembrokeshire (Simon Hart). When the hon. Gentleman goes back to his constituency, he should tell the people he has been talking to in his local authority and others that, as my right hon. Friend said, proposals in the Bill mean that if local authorities do not nominate members for the police and crime panels, the Home Secretary will take upon herself the power to impose individuals on those panels. That is why my right hon. Friend and others from Wales are so upset by the proposals, which effectively drive a coach and horses through the devolution settlement. Yes, police and crime commissioners are a reserved matter, but local authorities are a responsibility of the Welsh Assembly. That explains why there is such upset and disquiet about the proposals in Wales.
This is a hugely important issue. As I said, the Association of Police Authorities, the Association of Chief Police Officers, the Local Government Association, council after council and ordinary police officer after ordinary police officer all oppose this measure. We have heard not a shred of evidence from the Government. That is why we say there should be an inquiry so that we can take stock, reflect and reform on the basis of evidence, not ideology. I therefore press the new clause to the vote.
Question put, That the clause be read a Second time.
Mr Deputy Speaker (Mr Nigel Evans)
I have now to announce the result of a Division deferred from a previous day. On the question relating to local government, the Ayes were 297 and the Noes were 187, so the Ayes have it.
[The Division list is published at the end of today’s debates.]
New Clause 5
Memorandum of Understanding
‘(1) The Secretary of State must publish a Memorandum of Understanding on the Operational Responsibility of Chief Constables detailing where their actions shall be independent of the Police and Crime Commissioner.
(2) The Secretary of State may by regulations made by statutory instrument bring into force the Memorandum of Understanding published under subsection (1).
(3) Regulations under subsection (2) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of each House of Parliament.’.—(Vernon Coaker.)
Brought up, and read the First time.
Mr Deputy Speaker
With this it will be convenient to discuss the following:
Amendment 149, page 2, line 44, clause 2, at end insert—
‘such that the police and crime commissioner shall have no involvement in decisions with respect to individual investigations and arrests.’.
Amendment 155, page 4, line 15, clause 3, at end insert—
‘(8A) The Mayor’s Office for Policing and Crime must not ask, require or encourage the Commissioner of Police of the Metropolis to act in a manner which could—
(a) put the Commissioner in breach of his attestation under oath in accordance with Schedule 4 of the Police Act 1996; or
(b) conflict with the Commissioner’s exercise of direction and control under section 4(3).
(8B) If the Commissioner of Police of the Metropolis reasonably believes that the Mayor’s Office for Policing and Crime has asked, required or encouraged him to act in a manner that is prohibited under subsection (8A), he may notify the London Assembly police and crime panel.
(8C) For the avoidance of doubt, any purported direction by the Mayor’s Office for Policing and Crime under subsection (8A) has no legal effect.’.
Vernon Coaker
This group of provisions is smaller, but none the less important. It is difficult for us to discuss new clause 5 without a draft of the code of practice, memorandum of understanding or protocol, as we are now to call it. He will know that in Committee I consistently and persistently asked for a draft to be ready for our consideration. To be fair, he did not say that one would be ready for Report, and I am not suggesting that he did, but I expected that a draft of a draft of a draft would be available, and I think that most members of the Committee would have expected the same.
A huge change to policing is being made. The Minister and the Government have accepted what I said and what was in the Home Affairs Committee report, which was that such is the importance of the protocol detailing the responsibility of the police and crime commissioner vis-à-vis the chief constable—others, for example, the police and crime panel, could be included, as has been suggested—we should have it, yet we are discussing it without knowing even what shape it will be. We do not even know what things might be included in it. The Minister will say, “Don’t worry, it will be ready for the House of Lords.” Why should this House not have a draft available to it, so that it can consider what is in the protocol and make representations about it?
We have no way of knowing what will be in the protocol. Let us suppose it contains things that members of the Committee think should not be in it. I do not know what influence the hon. Member for Cambridge (Dr Huppert) will have, but what happens if he does not agree with what is in it? He will have no opportunity to say anything about it. The hon. Member for Amber Valley (Nigel Mills) served on the Committee with the hon. Member for Cambridge. What happens if he thinks that the protocol should not include one thing but should include another? Why should we not be able to look at it?
If the Minister was stood where I am and I was sat where he is, he would be saying exactly the same thing to me. He would be saying that it is impossible for us to legislate properly because we simply do not know what we are legislating about. It is not good enough to say, “Don’t worry, it will go to the House of Lords.” We have the most fundamental change in policing before us and we have no idea what the Government’s protocol is, although they have accepted that we should have it—that is not good enough. I do not believe that hon. Members on either side of the House would think, either in public or in private, that that is acceptable either. How does, “It will be ready for the Lords” help us to discuss this?
New clause 5 states that any such protocol must have some statutory force. The Association of Chief Police Officers believes it should be enshrined in primary legislation. The Minister said that would be very difficult, so we looked at whether an order-making power could be introduced to allow us to consider the protocol, as it would then be subject to the affirmative procedure in this House and the House of Lords.
Mr Greg Knight (East Yorkshire) (Con)
Does the hon. Gentleman accept that the new clause, as drafted, is in pretty poor shape? Even if we accepted it into the Bill, could not the Minister publish a memorandum under subsection (1) containing the word “none”?
Vernon Coaker
That might be a good debating point, but as a Bill goes through the House we need to debate its principles and the right legislative approach. We do not have the Queen’s counsel support that is available to the Minister, so the odd drafting error might occur, but that does not alter the thrust of what we are trying to do through the new clause. If the right hon. Gentleman had been here for the earlier debate he would know that the Minister, even with his bank of lawyers, supporters and helpers, has had to propose a number of amendments to correct drafting errors. So it is not only me who makes the odd drafting error, but I am doing it on my computer. Notwithstanding any drafting error, if we regard as right the principle that a protocol or memorandum of understanding should be subject to the affirmative resolution procedure of the House, we should support it.
In its evidence and the report it issued yesterday, ACPO said that
“there are three broad areas where we believe improved safeguards are required”.
I shall deal with only the first of those three, as it relates to the new clause. ACPO said of the first area:
“Clarity on the responsibilities of the PCC”—
the police and crime commissioner—
“and Chief Constable. The proposed ‘protocol’ is still early in its development. We believe such a key document will need to be specific and legally binding—such as through a Code of Practice founded in law.”
That was ACPO’s advice yesterday. It continued, at paragraph 50:
“ACPO has real concerns that the Bill does not fully recognise the uniqueness of the tripartite system between the Home Secretary, Chief Constables and local democratic governance. It is considered that the Bill places too much emphasis on local considerations giving disproportionate power to the PCC to the detriment of the necessary national and legal responsibilities placed upon the Home Secretary and Chief Constables. Our concern is to ensure that Chief Constables have sufficient operational independence safeguarding their impartiality to balance the various duties and accountabilities they face. Currently, it is at best uncertain that the safeguards under development in parallel with the progress of the Bill will achieve that aim.”
I think ACPO is clearly telling the Minister that he needs to amend the Bill in a similar way to that suggested in my new clause.
Mark Reckless
The hon. Gentleman is telling us what ACPO said yesterday, but it is not easy for the Minister because ACPO has previously taken an entirely different line. Sir Hugh Orde told the Home Affairs Committee that he did not want anything entrenched in legislation.
Vernon Coaker
No doubt members of ACPO, including Sir Hugh Orde, its hugely respected president, will have considered the discussions on the Bill and will have continued to discuss it with colleagues in deciding on the most appropriate advice and guidance to give the Government. ACPO has regularly said that it is for the Government to determine the governance structure, but it will do its best, whatever structure is finally decided, to implement it and deliver the policing that we would all wish to see. However, it also has a responsibility to point out to the Government where there are problems, and it has done so in guidance. There is a serious need for clarity from the Government regarding the memorandum of understanding, code of practice or protocol.
It is not acceptable for this issue not to be subject to a legislative process, and I should be interested to learn whether the Minister agrees. He has agreed that there should be a protocol, and a draft is in the throes of production—no doubt, a group is working on it and discussions are under way. I suspect that there are disagreements, which is why it has not been issued yet—it is proving more problematic than the Minister expected.
We need a protocol, because we need to clarify the role of the police and crime commissioner vis-à-vis the chief constable. In Committee, we debated at length what their respective roles should be. The police and crime commissioner is elected on a local mandate and will make certain promises, but what is their mandate vis-à-vis the chief constable? Where is the line drawn between what the commissioner would wish to do and the chief constable’s operational responsibilities?
It is interesting that an amendment has been tabled by some of the Minister’s colleagues, who are as concerned as I am. Indeed, the Chair of the Home Affairs Committee, my right hon. Friend the Member for Leicester East (Keith Vaz), has added his name to amendment 149. The hon. Member for Rochester and Strood (Mark Reckless) is the lead Member for the amendment, and he is clearly concerned. The amendment has a great deal of merit, and it tries to deal with the issue. The hon. Gentleman is trying to clarify whether a police and crime commissioner has the opportunity to tell a chief constable to investigate a crime. Is it any crime, or no crime? Is that just a matter for the chief constable? Does the commissioner have any power over that?
What about the funding of units? Can the commissioner tell the chief constable what units they should have? On the apportioning of resources, the Minister looked very upset when I quoted the report by Her Majesty’s inspectorate of constabulary, which showed that only 5% of police and community support officers were not in the back office. What about the commissioner’s ability to say what the correct mix of staff is? They might not want to see as many people doing a particular job, and may want to civilianise. The Minister’s favourite thing at the moment is looking at outsourcing. What if a commissioner does not believe in that? Whose responsibility would it be?
What about the reorganisation of policing? Who has a say on that? What equipment can or cannot be used? It may be an operational decision to use horses or dogs in a public order situation, but does the commissioner have any jurisdiction or say in whether the police have a police or horse section? Is that an operational responsibility? If we had a draft protocol, we could begin to understand the differences in those areas.
We have just seen the police do a very good job overall at the weekend, and I praised the Metropolitan Police Commissioner for it. However, when I recently saw him we discussed containment. What right does a police and crime commissioner or someone else have to tell a chief constable that they had dealt with such a situation wrongly? Does the police and crime commissioner have the right to do more than express an opinion? Police and crime commissioners are directly elected. We are not talking about a police authority. Police and crime commissioners will not be appointed by the Mayor and unelected, as in London. Who has the responsibility for making such decisions? These are hugely serious issues that worry many people across the country.
The Minister’s response is, “It won’t be a problem. Don’t worry about it. Good sense will prevail. Why should the doomsday scenario presented by the shadow Minister happen?” That is a pretty poor way to legislate when we are dealing with such a serious matter. It is not enough to say, “Don’t worry. It won’t happen. Everybody’s good sense will prevail.” The amendments before us are important. Clearly, I am not the only one who is worried.
Mr David Winnick (Walsall North) (Lab)
Has my hon. Friend noticed the lack of enthusiasm for the concept of police and crime commissioners? A good test in the House of Commons, as he knows full well, is whether, on a free vote—which obviously is not going to occur—the Government’s project would command a majority.
Vernon Coaker
No, on a free vote, I do not think the measure would go through. I agree with my hon. Friend. It will be even more interesting to see whether, on a free vote, the new clause, which seeks to give a legislative base to the protocol between police and crime commissioners and chief constables, would be supported by a majority. I suspect it would.
Steve McCabe (Birmingham, Selly Oak) (Lab)
My recollection of the discussion that took place in Committee is that the Minister repeatedly claimed that one of the arguments for a police and crime commissioner was that the public would know who to go to and who to complain to. There would be a single point. He cited the rise in the number of complaints when the Mayor of London took on that responsibility. Is it not the clear message of amendment 149 that the public will go to the commissioner with the expectation that he can intervene in investigations and cases? Unless it is spelled out in new clause 5 or in the amendment, we will be electing people on a false prospectus because the expectation will be that the commissioner has that power. This illustrates the dilemma that the Minister has created.
Vernon Coaker
I agree. That is the point I am making. An individual will stand for election in a police force area, saying, “I will ensure that there are X number of officers in this area and that area. I don’t want to see Tasers used. I don’t want to see such-and-such equipment used. I want to see the police patrolling not in pairs, but singly. I don’t want to see police in cars.” It will not be possible to stop someone saying that in their election manifesto. They are not going to stand for election saying, “I think everything’s wonderful. Vote for me.” What sort of election slogan is that? They would not get elected.
Candidates will stand on an exciting, impassioned, inspirational agenda for change in policing in that area. My hon. Friend is right. That is the nub of the dilemma that the Minister faces—what happens when that individual, enthused with their election victory, or determined to be re-elected, tries to influence what the chief constable does?
Mark Tami
Does my hon. Friend agree that the scenario that he describes will be worse when there is a second round of elections? The police commissioners will be trying to stay in the job and others will be saying how incompetent they are and trying to introduce change. It will be the constant agenda of candidates to run down the police and offer change—sometimes change for the sake of change.
Vernon Coaker
That is a very real danger. The Minister will no doubt try to say that he will address that through the protocol because it will lay out what can and cannot be done. It would have been extremely helpful if Members had even a draft to consider. Without it, it is very difficult for us properly to consider and debate the new clause. Having said that, the new clause is extremely important.
John Mann (Bassetlaw) (Lab)
Has my hon. Friend considered the dilemma of a member of a political party being elected and the same police force being requested to investigate election irregularities of another party member—for example, a Member of Parliament who is re-standing in that police area—if the decision on whether the issue should be investigated by the police is marginal? Has he considered that dilemma that the Government are about to create?
Vernon Coaker
That is another interesting dilemma that might arise. No doubt there are many other such examples in which we could point out the dangers.
I cannot stress enough how important the police feel this is and how important I think it is. I am sure that we will all listen to the Minister when he responds not only to the lead new clause but to the amendment tabled by his hon. Friend the Member for Rochester and Strood.
Mark Reckless
I should first declare an interest as a member of the Kent police authority. I thank the hon. Member for Gedling (Vernon Coaker) for his testimonial to my work in that role, which—who knows?—might find its way into one of my election leaflets.
We have heard about the protocol—let us call it that, so that we use common language—and I note that the shadow Minister refers to operational responsibility in the new clause. It would be great to have a clearly agreed definition for operational independence or responsibility as it is, but it is enormously difficult to do that. ACPO’s position has changed on that, which does not necessarily assist us. The Home Affairs Committee visited ACPO two days ago, and it seems that the draft protocol is bouncing between it and the Home Office. ACPO had no objection to the draft being shared with the Committee when we asked for it. Will the Minister give the Committee sight of the protocol, even if it is still an early draft?
Amendment 149 is a probing amendment, because it is very important to get the views of the House and of the Minister on the record. I have tried to emphasise a point that arose from the 1962 royal commission, which is that there is an important distinction, as I put it in the amendment, that the elected commissioner
“shall have no involvement in decisions with respect to individual investigations and arrests.”
That is an important constitutional protection. The Minister spoke quite strongly on that both on Second Reading and in evidence to the Home Affairs Committee. I am slightly concerned that one remark he made in the Committee, regarding the potential for too strict an interpretation of what Lord Denning said in 1968, should not be taken out of context. The context, as the Home Secretary said on Monday, is that we anticipate that it will be the elected commissioner who is in charge, as with the Mayor of London.
The Minister was very clear on Second Reading and when he gave evidence to the Committee on the role and importance of the elected commissioners and that what we are doing is rebalancing the tripartite system, moving from a police authority leg that has traditionally been too weak and bolstering the role of the democratic and local element with the directly elected commissioner.
I raised that point with the Minister in the Committee on 27 July last year, and asked whether there was any possibility of an incompatibility between what we intended with the legislation and what Lord Denning said in ex parte Blackburn in 1968. The Minister’s reply was important. He said:
“It is often stated, quoting Lord Denning's dictum that the police should be answerable to the law and the law alone. I think that is right in the sense of when they are exercising their powers of arrest and so on that that should not be subject to any kind of political interference. We would all agree about that but, clearly, somebody has to set the police budget and the strategic direction of the police, so there has to be accountability to someone, and our premise is that that should no longer be to the centre, to a faceless bureaucrat, to the Home Secretary; it should instead be to local people through the election of the police and crime commissioner.”
That is what we intend to achieve with the Bill, and it is a distinction that is consistent with what we saw back in the 1962 royal commission.
As the hon. Member for Walsall North (Mr Winnick) knows, the Select Committee received some helpful legal advice on this matter that read:
“This part of Lord Denning’s judgment is not strictly binding as it went beyond the range of issues that had to be decided in that case, and is therefore obiter.”
We then had an assessment from our legal advisers on a leading academic text in this area by Richard Clayton QC and Hugh Tomlinson QC, whose conclusion on Lord Denning’s judgment was:
“The doctrine is an exorbitant one and its legal foundations are very slight”.
I had a look at that leading text and some of the academic debate on the difficulty of defining operational independence and what it was considered to mean. Richard Clayton and Hugh Tomlinson referred to section 6(1) of the Police Act 1996, which the Bill carries over, and wrote that it
“appears to create a specific sphere of responsibility for the police authority”.
They go on to state that section 10(1), which deals with the direction and control of the chief constable, is subject to that provision, and
“only covers immediate operational direction and control but does not bear on the question of the extent to which the chief constable is under supervision of the police authority.”
The Committee went into the academic literature in more detail. We heard from Rick Muir, from the Institute for Public Policy Research, who has done much work—from the left—on this key issue. He agreed with me when I asked whether there was a distinction
“between the individual cases, where clearly the police should have independence in terms of arrest and investigation in those individual cases, and the broader spectrum of setting priorities, determining where budgets are spent and setting policy in general, which is properly the field of elected politicians”.
He observed that unfortunately confusion had arisen because wrongly there had been a
“tendency of chief constables to take Denning to mean that they are in charge of strategy”.
We do not have before us this protocol that the hon. Member for Gedling referred to, but the Committee was able to draw out some of the key issues.
My amendment emphasises the position in 1962. Unfortunately, when Denning made his judgment, he did not have the advantage of being able to refer to proceedings in the House. Judges have been able to do that only since Pepper v. Hart in, I think, 1994. The key 1962 royal commission, which set the consensus on operational independence, was summarised by the legal advisers in a report to the Committee. They wrote:
“The Royal Commission on Police emphasised the need for impartiality and operational independence of the police in relation to ‘quasi-judicial’ decisions”.
The royal commission included in those quasi-judicial decisions
“inquiries with regard to suspected offences, the arrest of persons and the decision to prosecute,”
adding:
“In matters of this kind it is clearly in the public interest that a police officer should be answerable only to his superiors in the force and, to the extent that a matter may come before them, to the courts. His impartiality would be jeopardised, and public confidence in it shaken, if in this field he were to be made the servant of too local a body.”
The commission said in respect of other duties:
“It cannot in our view be said that”
they
“require the complete immunity from external influence that is generally acknowledged to be necessary in regard to the enforcement of the law in particular cases.”
As our legal advisers point out, those other duties include
“general policies in regard to law enforcement…the disposition of his force, the concentration of his resources on any particular type of crime or area, the manner in which he handles political demonstrations or processions”
or
“his policy in enforcing the traffic laws and…dealing with parked vehicles”.
That clear distinction has therefore run all the way through, from the royal commission in 1962 to the evidence that the Home Affairs Committee has taken. That is what I am trying to emphasise with my amendment 149; indeed, it is also what the Minister emphasised when he appeared before the Committee. I would therefore be grateful if he confirmed that he does not resile from any of those remarks.
The other important point to make about Denning’s judgment in 1968 is that it related not to what a police authority could do in terms of a chief constable, but to what a single individual, Mr Blackburn, who as a publicly spirited gentleman came to court with a judicial review, could do. The question was about the extent to which he as an individual could require the Metropolitan Police Commissioner to implement policing in a particular operational manner. That distinction is made clear by further material, including the 1988 case of Hill v. Chief Constable of West Yorkshire, in which it was clearly drawn. In that case, Lord Templeman said:
“The question for determination in this appeal is whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force.”
He concluded:
“A police force serves the public, and the elected representatives of the public must ensure that the public get the police force they deserve.”
It is clearly right that there can be no interference in individual investigations or arrests, but it is important to look at the issue from both sides.
Steve McCabe
I am grateful to the hon. Gentleman for bringing to the House’s attention what I think is a dilemma that the Minister has created. As I have been listening to the hon. Gentleman, I have been reflecting on what would have happened if we had had police and crime commissioners at the time of the Stephen Lawrence murder and the subsequent inquiry. Does he think that it would have been possible for the police and crime commissioner to fulfil the requirements of both clause 1(8)(g) and his amendment 149?
Mark Reckless
Perhaps the hon. Gentleman could cite that provision, which I do not have to hand.
Steve McCabe
I apologise. Clause 1(8)(g) places a responsibility on the police and crime commissioner to
“hold the chief constable to account”
for
“the exercise of duties relating to equality and diversity that are imposed on the chief constable by any enactment.”
In particular, I am thinking of what came out of the Lawrence inquiry.
Mark Reckless
Yes, absolutely. What we saw in that instance was a failure in the operational direction of the Metropolitan police. Rather than waiting years and years for an inquiry to make the Metropolitan police have appropriate respect for diversity and follow up on such crimes in the way it should, a directly elected commissioner with sufficient authority could have pressed for that much more quickly. Indeed, that is one area where we would be looking for clear, elected oversight and guidance for the police.
Nigel Mills (Amber Valley) (Con)
On the point that the hon. Member for Birmingham, Selly Oak (Steve McCabe) just made, I note that my hon. Friend’s amendment states that
“the police and crime commissioner shall have no involvement in decisions with respect to individual investigations”.
If there were a high-profile murder, would my hon. Friend think it appropriate for the commissioner to say to a chief constable, “I think you should put more resource into that investigation. What you are doing now is not sufficient and there is real community concern”? Or is my hon. Friend saying that that would be inappropriate?
Mark Reckless
That is a very good example, which helps to elucidate the point. It would not be appropriate for the elected commissioner to say, “On this particular individual investigation I would like fewer”—or more—“police”, or, “You should investigate it in this way rather than that.” We do not look to the elected commissioners to do that, but I see a strong role for them in ensuring that justice is colour blind and that the police do not make assumptions about a witness or potential suspect on the basis of ethnicity or any other inappropriate basis. We have seen strong progress by the police in that area, but, with the Macpherson inquiry and the way in which some measures have been rolled out, there has not necessarily been the sensitivity that there might have been. The elected commissioner will have a relationship with the wider electorate, however, so they will sometimes be in a position to lead the police in particular areas regarding social attitudes.
I have huge respect for the police, given my work with them in Kent, but there are particular traditions in policing and the work force are made up in a particular way. Those things have changed, with a very welcome and greater number of women now working as police officers, and there has been a significant improvement in black and minority ethnic representation. In Kent, we had the first black chief constable in Mike Fuller, who did an extraordinary job of engaging with the public and involving them closely with the work of Kent police. The police have a significantly smaller proportion of graduates, although it is higher than it was, and the elected commissioner will be able to lead in those areas. I look to him to do so.
I emphasise to the House that the distinction I draw, going back to the 1962 royal commission at least, works both ways, and I am very concerned about budget setting, priorities and some of the management of public protest. My hon. Friend the Member for Cannock Chase (Mr Burley) asked some probing questions of various witnesses, but the question of whether there should be a presumption that police officers will travel in pairs, and the extent to which officers might be on bicycles, on foot or in cars, are very properly areas for elected oversight, and inevitably political decisions. If we do draw that distinction, the Bill will help chief constables.
Vernon Coaker
May I be clear about what the hon. Gentleman just said? Did he say that an elected individual should be able to try to influence the chief constable in terms of patrolling in pairs, individually or whatever, and in terms of the other examples he used? Or did he say that he thought it should be open to the police and crime commissioner to direct the chief constable on those matters?
Mark Reckless
In almost all those areas, there will invariably be agreement. There is give and take, and that has been my experience on a police authority. I am sure that in most instances it will apply to the elected commissioner and to the chief constable. I am not convinced that “direct” is the right word, but there might be public concern, as there was a few years ago in my area, about the police spending too much time in cars and not being available on the beat. Indeed, I have often heard it said that two officers who go out on the beat together will naturally tend to talk and enter into exchanges with each other, whereas one police officer on patrol might have a greater tendency to engage with the public.
I think that we would look to elected commissioners to reflect the public view, although I would not necessarily be comfortable with that in individual instances. It would be right for the elected commissioner to say, “Previously we’ve had this presumption that officers should patrol in pairs, but I think in future the presumption should be that where possible officers patrol individually,” and I would expect the chief constable to give effect to that. However, if there were issues regarding safety, I would look to the chief constable to have those considered appropriately within the discussion.
I do not agree with the view of ACPO, nor do Conservative Members or members of the Committee necessarily accept it, that police officers operate in a sort of political vacuum where they can, without reference to the elected authority, make the decision themselves. I think that people will campaign on these issues to become the elected police and crime commissioner. In many respects, it is entirely proper that the chief constable should then implement proposals with a democratic mandate behind them, as in the case of the Metropolitan police service following what Boris Johnson, the Mayor of London, said about a stronger emphasis on knife crime and having more officers on public transport, particularly buses. The Metropolitan police did then implement that, and that is perfectly proper.
I should emphasise that this point goes both ways. We need to ensure that chief constables recognise the appropriate and entirely proper role of the elected commissioner in making such decisions, but there is also the other side of the coin. My experience on a police authority is that I often get asked about operational matters. A sergeant may ask me whether I thought that a particular police community support officer should be deployed from one area to another, or a constable may ask me whether I am happy about how they have dealt with a particular offence, or whether I think that a particular individual should be charged or dealt with in a certain way. It has then been incumbent on me, as a member of the police authority, to say, “Hang on a minute, this is not a proper area for an elected politician to be determining what happens within the police.” I have always been very clear about that, and when there has been an issue that is a shade of grey I have referred it to our excellent area commander in Medway, Steve Corbishley. Such sensitive issues need to be dealt with at that higher level. One cannot necessarily expect every constable, sergeant or even inspector to be totally au fait with where this line should be drawn. I am echoing the emphasis that the royal commission, and the Minister in Committee, put on this complete protection in relation to individual investigation and arrest. That is an important safeguard, and it should work both ways.
The Bill uses the phrase “have regard to” in relation to the police panel as against the commissioner for the budget, the commissioner in respect of a strategic policing objective, and the chief constable’s need to have regard to the policing plan determined by the Minister. We may be firing the starting gun for litigation, but if so, I hope that Members, particularly the Minister, have given a clear steer to the courts as to the role that we see elected commissioners having and the need to rebalance the tripartite relationship. Lord Hoffmann, in the case of Regina v. Chief Constable of Sussex ex parte International Trader’s Ferry Ltd, said that, even under the current arrangements, where regard must be had to the policing plan, the chief constable’s discretion was therefore “subject” to the statutory plan. Together with the roles of the chief constable and the Home Office, we have a rebalancing of the tripartite system. We are bolstering the democratic local element by having direct election, and that should provide a far stronger voice for the public in setting policing policy and priorities.
John Mann
I note the volume of Members taking part in the debate: I think attendance is under 3%. Doubtless everyone has better things to do. I note that fact because at some stage—not today—quorums will have to be challenged in the House if Members, not least on the Government side, do not turn up to promote the Bills that they propose.
I commend my hon. Friend the Member for Gedling (Vernon Coaker) on his excellent approach to trying to dismantle the Bill, and I fully support new clause 5. Let me give an additional reason why it is appropriate for the House to vote for the new clause. When this fragile coalition collapses, which will no doubt happen soon after the May elections, if this Bill has reached Royal Assent by then, rather than wasting primary legislative time immediately, my hon. Friend could use a statutory instrument to remove the most objectionable parts of the legislation, which were most eloquently described by the hon. Member for Rochester and Strood (Mark Reckless). He wishes to direct where police resources go and to make operational decisions, such as those, as he said, on the question of whether policing should be single or double. Those are fundamental operational decisions, and it is quite extraordinary that anyone could oppose the new clause, which seeks to rectify the damage that such a loss of operational independence will cause.
This is an outrage. My hon. Friend the Member for Gedling and I come under the same police authority in Nottinghamshire, and I do not know whether he has found a single member of the Nottinghamshire police who supports the idea that an elected politician with such powers should be above them directing their work, as the Government propose. In my experience, there is great resentment about what the Government are doing to the police, including the idea that a politician should be elected to do that job, on whatever manifesto. That person might come from the mainstream parties, might be a maverick independent or might be a former senior police officer who has perhaps been forced out of the police for reasons that they choose not to declare. There are many different motives why someone might wish to stand for such a position, but when there is an election, the one certainty is that somebody will be elected. We have seen this with elected mayors: however low the turnout, somebody is elected and sometimes the population is rather aghast at what they have ended up with as a result of their inaction, or their inability or refusal to vote.
It is bad enough when such things happen in local authorities, but to put such a person—an elected politician, playing to the gallery for election and re-election—in charge of operational policing matters is an outrage. This modest but well-written new clause at least offers some opportunity to pull that back. Of course, it could go further. If I were writing the memorandum of understanding, I would ensure that some of the other dangers to British policing that are being and have been brought in by this reckless Government were also rectified. There would also be an opportunity to build in something to stop the use of regulation A19, whereby experienced police officers—including those in my area—are refused the opportunity to continue in policing with the experience and training that they have built up, which the taxpayer has paid for. They want to stay on, doing a job and earning a decent living serving the public, but they have been removed by this Government. Police in my area are also very angry about police pensions.
The dangers to police pensions, and to the basis on which people join and remain with the police, which has been undermined by this rotten Government, could be rectified by some wisdom in a memorandum of understanding or in the statutory instrument behind it, or could be dealt with by emergency legislation on day one when this fragile coalition collapses.
Mr David Burrowes (Enfield, Southgate) (Con)
It is always interesting to hear the hon. Gentleman scrutinise a Bill. He is speaking on behalf of the three Back-Bench Members of Her Majesty’s Opposition who are present. However, has he asked the people of Bassetlaw properly whether they want to have a stake in the policing in their area, to hold the police to account and to determine the priorities for policing? Is he not being presumptuous in assuming that he knows exactly what they want before there is a properly elected commissioner?
John Mann
I never like to be presumptuous. As I am sure the hon. Gentleman knows, I constantly communicate with the people of Bassetlaw about their views. However, one has to prioritise. My question to them at the moment, which they are answering in their thousands, day in, day out—I am sure that there will be more answers by the end of tonight—is whether they agree with the 30% cut in police and fire services that his Government, backed by the Liberals, are bringing in. That is an even bigger danger to their standard of living and quality of life, and to the security and safety of businesses, pensioners, young people, and the whole population in my area.
I assure the hon. Gentleman that I have had no representations from anybody asking for another elected politician. The Government have prided themselves on getting rid of 50 MPs. Looking at the green Benches today, it appears that they might already have got rid of a random assortment of 50 MPs. Those MPs will be replaced by about 44 new politicians. It is almost a job swap. This is costing the taxpayer money. More crucially, it is diverting us away from the priorities. I know that Members from all parts of the House, and especially the Liberals, will want to vote for this excellent new clause, because it gives us the opportunity to clarify that we will not have meddling by politicians in any area of police operations. I cited the dangers of that in my earlier intervention.
The Government have given us statistics that show that across the country, cases about elections and petitions of one kind or another have been taken to the police, including by political parties. In the county of Nottinghamshire such cases have been taken by political parties, including by the Conservative party. I think that that was a bit spurious and a waste of police time, but the party was entitled to do it. If politicians or their backers are doing deals with one party or another, in the traditional way, to become the candidate for this new elected position, and they are also using the police in making allegations about elections—be they parliamentary, local or even potentially for police commissioners—how will that be dealt with? How will there be impartiality when there is one elected person at the very top? That is a fundamental flaw in the Bill and in the Government’s logic.
There will of course be an opportunity—I will not speak to this point now, Mr Deputy Speaker—to reject this rotten Bill tomorrow at 6 o’clock, or perhaps even earlier. In the meantime, any logical, rational, law-and-order politician in this House will back the excellent and considered new clause moved by my hon. Friend the Member for Gedling, because it will amend the Bill in a way that provides some protection. The people in my area want effective policing that is run by the police, and they want the police to be accountable.
I do not know whether as a boy the Minister liked to play with Meccano or Lego, but I can see that he has built up the idea that it is his job to meddle, to take apart and to rebuild. He has taken that forward into adult life, and when it comes to the police force, because he is the Police Minister he has to do something to demonstrate that he is worth his money.
The Minister could tell the police, “Here are the resources I’ve battled with the Treasury to get you. Go out there, catch criminals and give the general public confidence in security and safety. Get on with your job and do a good job, and we will hold you accountable to ensure that you do.” Oh, no. He cannot do that. Instead, he has to meddle and try to rebuild everything, just as the Government are doing with schools and the health service. The excellent new clause 5 would at least pull the Government back from that, so I recommend it to the House, and I trust that all Members will vote for it.
Tom Brake (Carshalton and Wallington) (LD)
It is a pleasure to follow the hon. Member for Bassetlaw (John Mann), who is clearly a grand master when it comes to playing to the gallery. I must say, I was rather worried for his health, or indeed his sanity. I wonder whether he actually believes his doom-mongering vision of the world, but he is certainly very effective at getting across his concerns. He will be very disappointed about this, but I suggest that he should not hold his breath while he waits for the coalition to collapse, because 2015 is a long way away.
I now turn to the new clause and the amendments. It is clearly welcome that the protocol, or the memorandum of understanding, is being discussed and drawn up.
Vernon Coaker
Does the hon. Gentleman agree that we should have a draft of that to consider, even if it is a draft of a draft? It really is not good enough that it will be available to the House of Lords to consider without our having had it in front of us.
Tom Brake
I think that the Minister and I would probably agree that in an ideal world it would have been useful to have a draft, but I do not think it is essential. I am sure that the House of Lords will deal with the matter in the professional way that we would expect.
It is interesting to note that initially senior officers had strong reservations about whether they wanted a protocol, so a degree of flexibility will be needed. I have some sympathy with amendment 149, but I suspect that the Minister will make it clear that there is every expectation that the police and crime commissioners will have no involvement in decisions on individual investigations and arrests. That will be a clear requirement.
The one point that may require clarification is what would happen in a case that actually involved the police and crime commissioner. For instance, if they had been assaulted, would the amendment prevent them from taking a decision about whether charges should be pressed? I do not know whether the hon. Member for Rochester and Strood (Mark Reckless) considered that in tabling the amendment, and if he has a response I would be very happy for him to intervene on me at this point. If he is not going to, the Minister might want to pick up on that point when he responds.
In an ideal world we would have been considering a draft protocol, but clearly a lot of work on it is still going on. I am sure that means that when it is put into the public domain, it will be strong and satisfy Members. As I said, I understand where the hon. Member for Rochester and Strood is coming from on amendment 149, but it is clear that there will be no expectation whatever that the commissioners will get involved in individual decisions. One would expect that the police and crime panels would have forceful things to say if they did so.
Nick Herbert
First, I confirm again to the House something that has been confirmed on a number of occasions: the Bill does not change the legal position that the direction and control of forces remains with the chief constable. Therefore, the basis of the legal relationship between police authorities and chief constables is maintained in the direction of control in the Bill.
Nevertheless, there is concern about ensuring the fundamental principle of the operational independence of chief constables, which we debated at considerable length in Committee. As we discussed at some length, there is no statutory definition of operational independence, and indeed, there is general agreement that it would be unwise to attempt such a definition. The matter has been considered on a number of occasions by the courts—my hon. Friend the Member for Rochester and Strood (Mark Reckless) spoke of one key case. However, ACPO, which is concerned to ensure that the operational independence of chief officers is not in any way threatened, has said that it does not wish us to try to define it in law.
The debate on the proper role of the chief constable and the proper role of the local body that holds them to account will continue—as it does between police authorities and chief officers and others, with the matter sometimes ending up in court. That is part of what Sir Hugh Orde, the ACPO president, described—not pejoratively—as the tension that should exist in the relationship. However, as I said in Committee, to some extent, we are talking about shades of grey.
Mark Reckless
Is not one limitation of existing case law that an individual litigant—or a company such as International Trader’s Ferry—trying to get the chief constable to do something is different from the relationship that the Minister describes between the police authority and its statutory powers and the chief constable? The Home Affairs Committee heard from witnesses who felt that there is significant scope within the existing regime for police authorities to be more assertive in setting policy—it just happens that they have not done so.
Nick Herbert
My hon. Friend’s point is well made. However, the police and crime commissioner, who will have a mandate, could be more assertive. That is the basis and thrust of the chief constables’ concerns. I cited the example of London. The Mayor of London stood on a manifesto of placing uniformed officers on public transport and tackling knife crime. Whether that cut across the operational independence of the Met has been debated but not resolved, but it is significant that those things have happened, and the Metropolitan police have willingly implemented them. We must accept that, to some extent, there are areas of negotiation and shades of grey, which is why all parties agree that it would be a mistake to try to define in statute the notion of operational independence.
However, equally, we are all agreed—as I indicated on Second Reading, the Government were already minded to do this—on drawing up a protocol, as the Home Affairs Committee recommended, to try to set out the precise roles of the police and crime commissioner and the chief constable in the new arrangements, and to broaden the protocol to cover the role of the police and crime panel, given that that is new, and the role of the Home Secretary. It is worth stating that the Government’s intention in introducing that reform is not to abandon the tripartite, but to rebalance it, because we feel that it has been too distorted in the past, particularly in relation to the accrual of power by the centre and the Home Secretary.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
Can the Minister enlighten us as to what would happen if someone breached the protocol?
Nick Herbert
May I come to that in a moment? I will address the status of the document shortly.
As I mentioned earlier, the Home Office has set up a transition board to discuss how the present system will migrate to the new one. One of the issues that we are discussing is the protocol; that work has begun. ACPO has nominated Chief Constable Adrian Lee of Northamptonshire police to be its representative. He will sit on a working party, alongside Home Office officials and representatives from other organisations including the Association of Police Authorities and the Association of Police Authority Chief Executives, to discuss the issue. Work is therefore ongoing.
Nick Herbert
I repeat that we do not envisage this being a statutory document. It was originally called a memorandum of understanding by the Select Committee, and I do not think that the Committee’s recommendation envisaged it being a statutory document. Its purpose is to clarify the roles and responsibilities in law. In other words, it will be seeking not to set law but to explain what the law is. The danger is that we will be drawn into a means of setting law, when all the parties involved have so far said that we should not seek to define operational independence by statute. They have said that we should leave the matter to the understanding of the courts and the existing case law.
Mark Reckless
Will the Minister agree to supply the document, at least in draft form, to the Home Affairs Committee as well as to the House of Lords? The Association of Chief Police Officers and the Home Office are negotiating, but should not the negotiations be for the tripartite system, although we do not yet have the elected commissioners in place?
Nick Herbert
First, the Association of Police Authorities is certainly involved in the drafting; it is part of the group discussing the matter. I agree that negotiations must reflect the tripartite system, and I want to reassure my hon. Friend about that. As to supplying the draft to the Home Affairs Committee, I am happy to agree. Furthermore, if my hon. Friend would like to meet me and officials to discuss it further, I think it would assist our deliberations. I would like to organise that as soon as possible, bearing in mind the considerable experience that my hon. Friend brings as a member of a police authority with a particular view.
I appreciate my hon. Friend’s purpose in proposing amendment 149, according to which
“the police and crime commissioner shall have no involvement”
in deciding whether a person is investigated or directed. In fact, that is the existing common law principle and the courts have consistently stated that the Executive must not interfere in operational law enforcement decisions, so there is no need for that to be written expressly in the Bill.
I hope that the hon. Member for Gedling will accept the good faith with which I agreed with the recommendation of the Home Affairs Select Committee. I hope he will acknowledge that I have listened to the Association of Chief Police Officers and others who have expressed concern about operational independence; restated that we do not seek to cut across that principle; and confirmed that we will bring the draft document before Parliament at the earliest possible opportunity. I appreciate that he would have liked to see it sooner, but I hope he acknowledges the very considerable steps we have taken in this regard.
Vernon Coaker
Before I comment on the Minister’s remarks, I would like to thank my hon. Friend the Member for Bassetlaw (John Mann) for his support on the issue of the necessity for this memorandum of understanding. It was interesting that the hon. Member for Carshalton and Wallington (Tom Brake) commented on what was said by the hon. Member for Rochester and Strood (Mark Reckless)—that there was an expectation of no involvement. That is part of the problem. The Minister is right to say that the common law position precludes interference, but I am trying to deal with what will happen when the new model comes into effect, particularly the concern that it will change the parameters within which the policing model works.
Vernon Coaker
That is exactly the point. Concerns have rightly been raised about who will be elected and the mandate and manifesto on which they are elected, and particularly about the possibility of its being imposed on the chief constable. Those are very real concerns. The Minister knows that there is a general acceptance of trying not to define in statute too rigidly. I say sincerely that I appreciate he is acting in good faith. I did not say that he had promised to bring the matter before us on Report. My expectation was that he might have been able to do so, but he did not say that and I know that he has acted in good faith.
The Minister seems to have moved again in respect of this new clause. To be fair, it shows the difficulty of trying to navigate through this area, which is one of the most important parts of the Bill. None the less, I noted that the Minister said that he “may” decide that it is necessary to include a statutory legislative provision on which to base the protocol. I agree with the right hon. Member for Dwyfor Meirionnydd (Mr Lywyd): it is essential for the Bill to contain a requirement with regard to the protocol.
Question put, That the clause be read a Second time.
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 151, in clause 28, page 21, line 9, leave out ‘5 or’.
Amendment 152, page 112, line 15, leave out Schedule 5.
Mark Reckless
New clause 6 deals with the police and crime panel and, specifically, the powers that it may or may not have in respect of assessing and setting the precept. Ever since I first considered the issue of elected commissioners and their proper role, I have found the issue of budget setting particularly knotty and difficult. As a strong proponent of elected commissioners, I see a good argument for giving them the power to set the precept and the budget, and just letting them get on with that. I can see the argument that they have the mandate, so surely they should make the decision.
However, I have at least a slight concern about giving such significant budget-setting power over a whole electoral term to one individual. That is why I am attracted to some of the ideas we have heard, including from colleagues on the Liberal Democrat Benches, about the police and crime panel. There has been a very positive, highest common factor rather than a lowest common denominator approach, and the Bill has been improved through the interchange of ideas between Conservative and Liberal Democrat Members.
We have heard about the capping arrangements of the Labour party in recent years. There was capping under previous Conservative Governments but it seemed to become almost standard in Labour’s 13 years in government for Ministers to set a number—it was never quite clear how they determined that number—over which anything, regardless of the circumstances and however low the council tax base, was capped by central Government. That approach seems wrong to me and we have a proposal to deal with it in relation to local government: instead of having a Secretary of State—I assume for Communities and Local Government—capping a council above a certain level, that Secretary of State would have reserve powers to require a local referendum in an area where he considered an increase to be excessive. That strikes me as a reasonably sensible balance, and certainly an improvement on the status quo and the current capping power.
Dr Huppert
This issue is effectively about the principle of capping, which causes real problems. Is my hon. Friend aware, in the local government context, of councils in Cambridgeshire that used to charge zero council tax and were prevented by capping from charging any at all? We do not want the same sort of ridiculous problems happening with police precepts.
Mark Reckless
Yes, I am aware of that issue. The predecessor council to mine in Medway, Rochester upon Medway council, similarly had no council tax and when Medway took over as a unitary authority, we had one of the lowest council taxes in the country—virtually the lowest except for the Scilly Isles at one point. However, we had the same percentage limit as everyone else, so when central Government put a new burden on local government and we had to fund it as a fixed cost, we were less well-placed to do that because the amount we could get through a percentage increase was less than other councils that had previously had higher taxes could get.
A similar regime to that for local councils has applied to police authorities, but to an extent it has been less controversial than that for councils because police authorities have not had the same democratic mandate as local government. There are only nine elected councillors on my police authority among 17. It is true that the majority of those nine must approve the precept as well as a majority of the 17, but it is certainly less of a democratic mandate than that for local councils in which all the local councillors are elected. I have understood, previously, that when the Communities Secretary, rather than the Home Secretary, has capped an authority, that has not been popular with the authority, but I have understood why it happened. However, I can see the attraction of moving from that to a referendum power as we are doing with local government.
I think there is a potential problem or issue, which I hope can be resolved through the Bill or its application, with bringing in the new body—the local police and crime panel. The panel will have a representative from every council in the police area, and I particularly welcome the involvement of district councils, which have been so important in developing crime and disorder reduction partnerships and community safety partnerships. Their involvement on the ground will be a real advantage: it will bring real insight to the commissioner and the force and it will pull local government more generally into the new arrangements. We hear a lot about the Local Government Association or police authorities not liking the new arrangements, and people who have a particular stake in the existing process might say that, but the districts coming in is going to be a real gain.
There is dispute about how strong the panel will be, and its powers are characterised in various ways, but one of its key powers will be its oversight and scrutiny of the budget. It is proposed that, in extremis, if three quarters of the panel agree, the panel can exercise what is described as a veto in the Bill, and paragraphs 7 and 8 of schedule 5 prescribe that the Secretary of State can make further regulations on that. In Committee, the Minister described some of his intentions for the regulations, but I am a little unclear about that because the regulations referred to in the Bill seem to be about how that veto process will work, whereas quite a lot of the detail that the Minister gave to the Committee seemed to refer to when or where there would be a referendum and the Secretary of State’s involvement. That is one of the issues, because it is envisaged in the Localism Bill that the Secretary of State will have referendum-calling powers and will presumably use regulations to determine how that happens. It is envisaged in the Police Reform and Social Responsibility Bill that the panel will have a veto and that there will be regulations on that. The crossover is not clear. There will be a directly elected individual who will come to office with a great mandate. One of his responsibilities is to set the budget and the precept, yet there are two other bodies—the panel and the Secretary of State; it is not clear whether it is the Secretary of State for Communities and Local Government or the Home Secretary—who have at least some locus standi in setting the budget.
Dr Huppert
I am interested in the point that the hon. Gentleman made about having to use litigation. There is serious concern about what would happen if, when a budget was set, there was uncertainty and we had to use court orders. I am sure that he is aware of the cost of rebilling, and there is an important principle that we want to set all the amounts of council tax, while we still have council tax, at the same time, rather than send out multiple letters, which would just add to the cost of that process.
Mark Reckless
In my reference to litigation, I was alluding to the fact that the prospect of dispute, at least on the first occasion, given the narrow time scales and the costs of rebilling, would not be a positive thing. I have worked closely with my hon. Friend on the Home Affairs Committee on the issue—his hon. Friend the Member for Carshalton and Wallington (Tom Brake) is strongly involved in these issues too— and I feel that there is a significant measure of agreement between us. In the coalition, it is important that we decide what we want to do, and state that clearly in the Bill and subsequent regulations so that we do not face the prospect of litigation.
Some Liberal Democrats may like the idea of a complete veto for the panel, but I am not sure that many of my Conservative colleagues would necessarily agree, given that the commissioner has a directly elected mandate and the members of the panel are appointed. However, I am convinced that a measure of financial oversight by the panel and by the councillors from every council who serve on it would be valuable. It will keep the commissioner linked in to local government, which is extremely important. The Minister has a criminal justice portfolio, and there is extraordinary scope for the elected commissioners to act in the wider criminal justice area. However, we do not want a great division to open up between local government and the work of the elected commissioner in criminal justice, so that knitting together is important.
Steve McCabe
I recognise that the hon. Gentleman feels strongly about this element, but if it is valid to argue that the commissioner must be virtually in a negotiation position with the panel so that they arrive at the right decision on the precept, I do not understand why, in every other respect, the commissioner should be able to arrive at his decision independently, with the role of the panel being simply to scrutinise it. Why does the hon. Gentleman make an exception in relation to the precept? Surely the logic of his argument is that the panel should have a different set of powers in relation to the commissioner.
Mark Reckless
The power over the precept is an extraordinarily important one, particularly over the whole elected term of the commissioner. Even I, as a strong supporter of directly elected commissioners, would be slightly nervous about one individual on his own taking those budgetary decisions for a number of years. I welcome the involvement of the panel in that, but I do not envisage a constant negotiation—[Interruption.] I apologise to the House.
A three quarters majority will be required. What is needed is almost a reserve power, so that if the commissioner wants to slash the budget massively against the will of the local area, or put through really hefty increases, there is some oversight and some way that that can be mitigated. The panel is a sensible body to do that, but we need to be clear what it would then do. Would it veto the plans and would the commissioner be obliged to accept that, or would it just say, “Go away and think again”?
The present wording, “have regard to”, represents an intended compromise, but leads to considerable uncertainty. As none of us wants to see litigation on this aspect, I am proposing instead that we bolster the local crime panel with a clear power. That will not necessarily be a veto as, if it is, it will be a soft veto. If the panel was seriously worried about the precept, there could be a referendum in the local area. The members of the panel would be appointed by the councils in that area, so those councils would bear the cost of a referendum. They would think long and hard before calling a referendum if they were paying for it.
That arrangement would provide some protection. If the commissioner went off in one direction, away from others, it would give some possibility of pulling him back, but it would not make him subject to the panel, because the commissioner would have the directly elected mandate, whereas the panel would be appointed. Giving the panel the power to require a referendum would be a sensible way forward.
We may be envisaging a referendum power, but it seems that we are expecting to import parts of the Localism Bill into the policing environment, when we already have a separate police and crime panel as a check on the elected commissioner, whereas we do not have a similar check in local government. I propose that the two should be distinct and that the Secretary of State for Communities and Local Government should have the power of referendum for local councils, but in the policing universe where we are setting up a panel that will be representative, that panel should be responsible. In extremis, it would have the power to call a referendum on the local precept. We therefore would not need the central oversight and dictation of the Secretary of State in this area.
The new clause would bring greater clarity and provide the local and democratic arrangements that we need. I commend it to the House.
Steve McCabe
I shall be brief. I am intrigued that the hon. Member for Rochester and Strood (Mark Reckless) has tabled the new clause. It is a matter of great regret that he was not a member of the Committee that scrutinised the Bill. What we are beginning to hear in his contributions is how much doubt exists in the hearts of Conservative Back Benchers about some of the key elements of the Bill. That was evident in some of his earlier amendments, but it is extremely evident in this group. He is prepared to tolerate a single elected individual having enormous power over the shape and influence of an area police force over a four-year cycle. He is prepared to tolerate a police and crime plan that might change the shape and direction of the force beyond all recognition. Despite being a loyal and active member of a police authority that has massive experience and whose benefits he regularly tells us about, he is prepared to put up with all those measures.
The hon. Gentleman realises in his heart the fundamental danger that, if the Government persist with their present approach to cuts in police funding, at some stage authorities in parts of the country of the kind he represents will be on a collision course with the Government. The police commissioner will be forced to look at the question of the precept as a means of off-setting the budget cuts that the force is facing. The hon. Gentleman does not want to be in that position when a single elected police commissioner is able to bring forward a proposal for a hugely increased precept, because he fears what the electors in his area will say about that and the repercussions for himself and his party followers.
Mark Reckless
I must say that that really is not the case and has not been my experience. In Kent we have been able to find significant savings in our budget while protecting the front line and, in the words of our chief constable, have an opportunity to have a more efficient and effective force. As an elected Member, I looked to constituents in the private sector who are suffering and wanted to see some savings made in the police budget. My colleagues did not agree this year—they perhaps did not have the same direct election focus—but then they did come to realise this and we found significant savings. It is because we have that democratic element that we are able to find the savings and get the police to operate more efficiently, and the elected commissioners should be able to do that even better.
Steve McCabe
That democratic element cannot be fundamentally unique in relation to setting the precept but absolutely different in relation to any other aspect of the work of the commissioner. It is my contention that the people who support the amendment fear what will happen when the precept has to be ratcheted up to compensate for the cuts. They know that there will be massive electoral consequences and so are seeking to insert a device to denude the commissioner of the one power that they fear more than any other.
Dr Huppert
I am not sure that I agree with everything the hon. Gentleman is saying. Does he not agree that the precept is in some sense absolutely key to what is happening, because it sets the total envelope of resource available to a chief constable to do their job? It is one of the most fundamental decisions that could be made by the commissioner.
Steve McCabe
If I was to stand as a candidate for police commissioner and was setting out my stall for the kind of police force I would want to see, I would not have to put on my election material the caveat, “By the way, I’ll have no power over the fundamental decision about funding.” With the greatest respect, I think that the hon. Gentleman has missed the point. The Government are trying to have it both ways: they want to create political commissars to run the police, but they also want to retain the power to mitigate the risk that the commissioner might come up with a precept that is unacceptable to the electorate. That is classically what is wrong with the Bill. It is designed to give the commissioner power in the areas that suit the Government, but at the heart of the Conservative party there is a doubt about that. The Government are trying to back the proposal while simultaneously watering down its key element because they fear that the course of action that they have embarked on will have electoral consequences for them.
Michael Ellis
Will the hon. Gentleman confirm whether the previous Labour Government did something very similar on elected mayors?
Steve McCabe
I am talking about police commissioners, although I am happy to tell the hon. Gentleman that I am not particularly a fan of elected mayors. However, if we are going to have mayors, I would have them elected, not imposed under a shadowing arrangement first, because that suggests that there is some doubt about their validity. If he wants to talk about elected mayors, he should move on to safer ground.
Dr Huppert
I am still unclear. If the hon. Gentleman does not support the alternative in the new clause, is he saying that he prefers the existing mechanism, which involves the Secretary of State? Which is he arguing for, or is he arguing against both?
Steve McCabe
I am saying quite simply that the nature of the existing powers, as I understand them, would give the Secretary of State the right to intervene. If the Government do not have faith in their own system, it seems right that they should have the power to intervene. However, what I do not want is a scheme that says, “We’re in favour of police commissioners, but by the way we’re going to limit their power when it comes to the area where we think there could be electoral disadvantage for us.”
Dr Huppert
It is a pleasure, as ever, to follow the hon. Member for Birmingham, Selly Oak (Steve McCabe). We have spent much time together on the Bill Committee, on a previous Bill Committee and in the Home Affairs Select Committee crossing swords on some of these issues. I am encouraged by the new clause in the name of the hon. Member for Rochester and Strood (Mark Reckless), because it would do some useful things for which I argued in Committee. It talks about strengthening the panel. We talked earlier about the Liberal Democrats’ initial manifesto commitment to having a strong panel, and there have been negotiations among the different sides about how to fit the two models together. However, the new clause moves in the direction I tend to prefer, so as ever it is a pleasure to work with him.
The new clause also leans more towards local accountability, which to me is very important. I have always been a localist—not only since the formation of the coalition Government—and I think that this policy should be about local determination. That was what was wrong with capping council taxes. We had councils that could not make sensible decisions owing to capping powers and because the Secretary of State was too remote from what was going on locally. Those councils could not make sensible decisions whether on tiny increases in very low council taxes, because those increases went above a certain percentage, or on moving from a council tax of zero, which was possible in a few rather unusual places, because any increase broke the percentage rule.
What the hon. Member for Birmingham, Selly Oak said was interesting. First, there is the issue of the precept. Why is the precept different from all other areas? We could adjust a whole lot of different premises, but the precept is the key. As I said in my intervention, it is what determines how much money is available to the chief constable. If only one decision could be made by a commissioner each year, the total amount of cash is surely the one for which we would want to provide the most control. It is also the one on which there would not be advice and policy guidance from other bodies on how to operate and what the constraints might be. It is properly a decision to be taken locally.
There are questions about what one does if a commissioner makes a decision that is held to be unreasonable by other people locally. This applies whether to a commissioner or a council leader. Whatever the structure, there will always be situations in which there is disagreement about whether something is being done appropriately. The question is: how do we resolve that disagreement? I was interested in the response that the hon. Gentleman gave to my question. He seemed to be arguing for the Secretary of State to have that power, but that is precisely the opposite of the localist agenda that I would like put in place. The Secretary of State should not be interfering in how the precept is set. They should do their utmost not to have anything to do with it, if possible. They should have a role in setting the framework, but they should not have the power to say, “That is too much. I’m the Secretary of State and I say so.”
Steve McCabe
Perhaps I can clarify matters a fraction for the hon. Gentleman. My point is that the police Minister and the Secretary of State inevitably have some responsibilities for the police that go beyond localism, as was discussed extensively in Committee. In fact, if I recall rightly, we discussed what would happen if the budget was set too low and therefore did not enable the police force to fulfil its obligations. The argument that the Minister advanced at the time was that the Secretary of State should have the power to step in. The hon. Gentleman seems to arguing for a pure form of localism that completely ignores that—
Mr Speaker
Order. Interventions are becoming increasingly lengthy, and they need to be rather shorter.
Dr Huppert
Thank you, Mr Speaker, although this is a matter of great interest, so I have sympathy for the hon. Gentleman, having made my own mistakes earlier this afternoon. I lean towards pure localism. Let us remember that the people on the panel making the decision will be councillors appointed by their local authorities. In Cambridgeshire, for example, I find it hard to see how, say, the representative from Cambridge city council could look at a budget that was insufficient to provide the basic policing and say, “Yeah, that’s fine. I can’t be bothered to interfere with this one.” I do not have that lack of faith in our local councils or our local democratic system. I have concerns, although I prefer the new clause to the original proposals, under which the Secretary of State would have had a strong role. However, I do not entirely agree with everything in the new clause. In particular, I am not comfortable with the idea of having to have a three-quarters majority, which we discussed in Committee, as Members will know. I tend towards a somewhat lower figure.
Michael Ellis
My hon. Friend has misgivings about having a 75% majority, but does he not feel that it ought to be that high, because that is what would be required to overrule a democratically elected figure, which ought to be a severe circumstance and rare happening?
Dr Huppert
It is important to remember that, with the exception of the two independents—another example of how I would not have designed the system—the majority of panel members will be democratically elected, representing their councils in their system. They are not directly democratically elected, but they are indirectly democratically elected. As I am sure the hon. Gentleman will know, the model in London is a two-thirds majority for scrutiny of a democratically elected individual, so I am more comfortable with two thirds. That does not make a huge difference for a typically sized panel, which will have 12 people. We said in Committee that the difference will be between nine votes and eight votes, but it is more useful to look at it the other way. In order to stop the veto, the commission would have to get four or five people either to vote with him or not to be there. That makes a bigger difference as the panel gets bigger.
The structure of the new clause is more positive than has been described, because it leans towards trying to have sensible discussions and negotiations. It starts with a commissioner making a proposal. Then the panel looks at the proposal and comments on it, before the commissioner works out what he will do. Unless it is vetoed, the precept is set, but if it is vetoed, it does not go to a referendum straight away. Ultimately, that is something that we are all trying to avoid, because of the associated costs of running unnecessary referendums and the risk of re-billing, which is a particular problem with this issue and capping. There is then another opportunity, over 14 days, for the two sides to negotiate and see whether they can come to a more sensible arrangement that works for both of them. Only if that is not possible is a further step taken.
That step is not about saying, “Secretary of State, tell us what to do. It’s up to you.” It is about saying that what should be done is up to local people. It is up to the commissioner to set one option and the panel to set another, and then the public will decide which they prefer. That is a much more appropriate way of doing things. The panel would act responsibly when it came to cost, with the exception of the independents, who do not have that responsibility and are a piece of undemocratic grit in the system. However, it will be local decision making that makes a difference. Local people should have a say in how their precept should be set and how their policing should be run. That is what I would like to see. I am delighted that the hon. Member for Rochester and Strood (Mark Reckless) has moved the new clause for discussion, and I hope that the Government will consider it carefully.
Chris Bryant (Rhondda) (Lab)
It feels as though I have entered a meeting of the Home Affairs Committee, which is where I was yesterday, but I am not going to talk about the Metropolitan police in quite the same way today.
I sympathise with some of the arguments about localism which have been advanced by the hon. Members for Rochester and Strood (Mark Reckless) and for Cambridge (Dr Huppert), who spoke in favour of the new clause, but I say to them that, although there may be a natural constituency in some police authorities, in many there is not. In the South Wales police area, for instance, it is not easy to conceive of a single constituency of interest. The area does not exist in any other denomination, as it were, and it crosses local authority boundaries, brings together Swansea and Cardiff, which is something extraordinary in itself, and brings the valleys together with two of the three big cities of south Wales, so it would be very difficult to come to a really local idea.
The new clause is primarily about money, however, so I want to ask the Minister a few questions. I realise that he may not be able to answer this evening, but I hope that he will write to me on some of these matters, because they are—in relation to chapter 6, in particular—quite important.
The Bill partially determines the way in which somebody is elected, but there is a great deal more work to be done on exactly how the electoral system will work—for precisely the reason that I mentioned: the constituencies do not exist. New constituencies are being created, and we need to ensure that, in terms of how elections are managed, there is some consistency within the constituency that we create. I just wonder whether—
Mr Speaker
Order. Can I just gently point out to the hon. Member for Rhondda that it is on the subject of precepts that he will want to focus his remarks?
Chris Bryant
I know I am chancing my arm, Mr Speaker, but I cannot chance it anywhere else on Report, and these issues have not yet been covered.
Of course, the issue of precepts is fundamentally about money.
Mr Speaker
Order. Can I just remind the hon. Gentleman that there will be an opportunity on Third Reading for him to dilate? Whether that is convenient for him is unknown to me—but it might be appropriate.
Chris Bryant
Mr Speaker, I do not know whether you really want me to dilate at any point.
I was merely trying to say that, on the matter of money, which is the point at hand, there is a question about how any commissioner would be able to make sure that in advance of future elections there was enough money to be able to pay for the process of explaining to the electorate the supplementary voting system, which will not have been used in many other parts of the country. I would be grateful if the Minister were able to expand on how he will achieve that, on the precise powers that will be available to the Electoral Commission and on when he will bring forward supplementary powers in relation to that.
Having chanced my arm as far as I think you will allow, Mr Speaker, I surrender to the rest of the debate.
Nick Herbert
In the three minutes that are now available to me, I will have to try to explain why my hon. Friend’s approach is interesting but wrong in relation to how the precept is dealt with.
I explained in Committee the process following a veto, and the Home Secretary will set that out in regulations. They will require, as the amendment would, that the police and crime commissioner considers the panel’s recommendations and then proposes an amended precept, which must take the panel’s recommendations into account.
This is where the Bill diverges from the proposed changes, however. Under the regulations that we propose, we say that, if the amended precept is “excessive” under the definition in the Localism Bill, the police and crime commissioner will set the precept but a referendum will be triggered. The panel will not be able to prevent that, but it will be able to propose an alternative precept with accompanying reasons that will have to be published. The public will then have to decide—having both sides of the story.
Nick Herbert
I do not have time, I am afraid.
As we envisage the situation, the public will be able to decide whether to go with the police and crime commissioner’s precept, but only when a precept is excessive. Under the changes that my hon. Friend the Member for Rochester and Strood (Mark Reckless) proposes, however, the public would decide every time a panel vetoed a precept, unless the commissioner and the panel were able to reach an agreement within two weeks of the vote. We have not gone down that route, despite considering it very carefully, because referendums are very expensive and the police and crime commissioner would have to pay for them on each occasion. If the commissioner’s amended precept is not excessive within the Localism Bill definition, regulations will require the proposal to go again before the panel. Following that, the police and crime commissioner will be able to set the precept without a referendum. He or she must consider the panel’s recommendations. Where the panel has voted again to reject that precept, he or she must publish the panel’s alternative precept and its reasons and must set out in the same document why he or she did not implement the panel’s proposals.
I accept that the public must have a role in deciding what precept they pay, and under our policy they will have one, or potentially two, opportunities to do this—once when they elect their police and crime commissioner, and again when a police and crime commissioner sets an excessive precept.
Ann Clwyd (Cynon Valley) (Lab)
I beg to move amendment 2, page 100, line 10, leave out clause 152.
Mr Speaker
With this it will be convenient to discuss amendment 154, page 100, line 17, at end insert—
‘(a) A specialist unit shall be established within the Crown Prosecution Service, reporting to the Director of Public Prosecutions, so as to ensure minimal delay in decisions relating to arrest warrants issued under this section.
(b) A specialist unit shall be established within the Metropolitan Police so as to ensure minimal delay in the issuing of arrest warrants under this section.’.
Ann Clwyd
The amendment would remove clause 152. At the outset, I should like to say that whatever one’s views on the changes proposed by the clause, it should not be part of the Bill. It is a justice measure in a Home Office Bill, which is already packed. It would be better if the Government had not crow-barred it into the Bill. However, I am glad that we have an opportunity to debate the measure, although we cannot debate it to the extent that other Members and I would have liked.
The Government propose to change the law on the procedure for obtaining an arrest warrant in a private prosecution in a universal jurisdiction case. Such cases are concerned with the gravest crimes against humanity: war crimes, torture, genocide and so on. The Government propose that the consent of the Director of Public Prosecutions should be required before any such arrest warrant can be issued.
My area of interest is human rights, so it is on the human rights implications of the clause that I shall focus. I object to the clause and the Government’s proposals because they will undermine the UK’s standing on international human rights issues. The current situation in Libya and recent events there and elsewhere in north Africa and the middle east provide a helpful context for the debate. For example, if anyone from Gaddafi’s regime—his sons or other senior political and military cohorts—tries to visit the UK at some point in future, they will be affected by this change in the law.
The Prime Minister, the Foreign Secretary and other Ministers have been strong in their condemnation of Gaddafi, in their calls for him to face justice, and in their support for the International Criminal Court investigation. I agree with them. The best place for Gaddafi to end up is in front of a court on an ICC indictment for crimes against humanity. However, the existence of the ICC does not absolve us of responsibility to ensure that those most serious of crimes can be prosecuted within our jurisdiction.
Jeremy Corbyn (Islington North) (Lab)
Does my right hon. Friend agree that the current situation is the best one, because it keeps the Government away from allegations of political bias in cases in which arrests are sought for a court in this country? Clause 152 will bring every prosecution into the political orbit, where it certainly should not be.
Ann Clwyd
My hon. Friend hits the nail on the head as usual, and I shall develop that argument in a few minutes.
We still have obligations under the Geneva conventions —they are obligations, and not discretions or permissions —to bring before a court persons suspected of committing the gravest crimes against humanity when we are able to do so. This change in the law will undermine our commitment to those Geneva convention obligations.
Why, then, are the Government seeking to change the law? The Justice Secretary, yesterday, and the Foreign Secretary, last Thursday, set out clearly in replies to questions in the Chamber the reasons why the Government are seeking to do so. The first reason that they gave was that it is too easy to obtain an arrest warrant. They suggested that anyone could turn up on a frivolous pretext, spin a yarn to the court and walk away with an arrest warrant—put a penny in the slot and out comes a warrant! I cannot believe that that argument has carried any weight with anyone at all.
Dr Huppert
I share the right hon. Lady’s deep interest in human rights and I absolutely accept her point. May I, however, go back to what she was saying earlier about the arrest process? Does not she accept that a prosecution is more important than an arrest, and that whether or not the clause is passed, the Attorney-General’s consent will still be required for a prosecution, making the issue a political one? Are we not having the wrong debate? Should not we be debating the Attorney-General’s role in private prosecutions?
Ann Clwyd
That is certainly a subject for future debate. I agree with the hon. Gentleman when he said in Committee:
“I am not persuaded that there is a need for change…I do not think that a sufficiently strong case has been made about why the current system is not working.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 17 February 2011; c. 684.]
I hope that he still holds that view.
Michael Ellis
Does not that 80% failure rate indicate that people have been making frivolous and vexatious applications? Also, is it not right that proper evidence should be tendered to a court or other authority before the issue of an arrest warrant that could have international ramifications?
Ann Clwyd
Perhaps the hon. Gentleman is not aware of the facts. The fact that there have been 10 applications and that only two were granted means that the judges who currently implement this legislation are absolutely spot on. They do not take frivolous applications—quite the contrary: they are only too careful. They are experienced judges, not ordinary magistrates. The current system works comparatively well, and no one can point to any frivolous applications.
Sir Gerald Kaufman (Manchester, Gorton) (Lab)
My right hon. Friend might be aware that a document issued by the Liberal Democrats in June last year stated:
“The issue of the arrest warrant for a war crime is decided only by specialist legally qualified magistrates such as the most senior district judge at Westminster Magistrates’ Court. They are well qualified to decide whether the high threshold of evidence, liability and jurisdiction has been met and that no immunity applies…The removal of the right of public prosecution in such cases would have the effect of turning our country into a safe transit point for war criminals, torturers and those guilty of genocide from all over the world.”
Ann Clwyd
My right hon. Friend makes a very good point. Indeed, all the human rights organisations, including Amnesty International, Human Rights Watch, Redress and Justice are opposed to this change in the law.
In Committee, the Minister conceded:
“The problem is not that large numbers of warrants are being issued—the Government are aware of only two”.––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 17 February 2011; c. 682.]
It is incredible that the Government think that that is too many, and that there should be rather fewer. The fact that two arrest warrants have been granted in 10 years should be a matter of concern, not because it is too many but because it is too few.
Mrs Louise Ellman (Liverpool, Riverside) (Lab/Co-op)
I agree with my right hon. Friend that war crimes and crimes against humanity are horrific, but does she really think it just that an arrest warrant was issued against Tzipi Livni who was here seriously to negotiate peace between Israelis and Palestinians and to save lives?
Ann Clwyd
Well, the other reason the Government gave for the change in the law is, I suppose, the real reason, in respect of which my hon. Friend has hit the nail on the head: it is the Tzipi Livni case. The Government, as the Foreign Secretary and the Justice Secretary explained, are changing the law because of an Israeli politician. Changing the law at the request of a foreign Government does not, I would argue, enhance our ability to act as an international peace broker. It does exactly the opposite by undermining our credibility to speak as a country that takes human rights seriously.
Mr Andrew Love (Edmonton) (Lab/Co-op)
Is it not incongruous that at the same time as we continue to speak here about human rights, justice and democracy in the middle east, we also have to move this particular amendment?
Ann Clwyd
Indeed. I think it sends the wrong signal at this particular time. I hope I can persuade many more hon. Members of the force of my argument.
In today’s The Guardian online, there is an article, stating that coalition criminal justice plans
“make a mockery of universal jurisdiction”.
It continues:
“Giving suspects from ‘protected countries’ immunity from war crimes arrests would turn the UK into a safe haven for suspects”.
That was written by an eminent human rights lawyer, Daniel Machower. He goes on to say:
“A legal case for changing the current judicial process, through the senior district judge, has not been made out and parliament is entitled to reject the proposed change on that basis alone.”
I have my own views on the Tzipi Livni case. I happen to regard the crimes documented in the Goldstone report as pretty damning. The very strength of the current system, however, is that it does not matter what my view is: it is a decision taken by a court without political considerations and on the basis of the evidence alone. That is the system that the Government are going to undermine.
Ann Clwyd
I do not know what the hon. Gentleman is talking about—and I doubt whether he does either.
The Opposition Front-Bench team has tabled an amendment proposing to create new units in the Crown Prosecution Service and the Metropolitan police. As the Minister observed in Committee, however, these units already exist for war crimes investigations. The fact that they already exist, and have done for some time, helps to show us what will happen when the Director of Public Prosecutions becomes a gatekeeper for all universal jurisdiction cases: nothing. Yes, nothing will happen. As we learned from a report in The Guardian last month and the work of the all-party group on the prevention of genocide, nearly 400 war criminals are believed to be in the UK right now—from Iraq, Afghanistan, Sri Lanka, Rwanda, Zimbabwe and the Congo. How many prosecutions have there been? One—just one, which is the Zardad case.
I conclude here because this is the core of my case. The clause is important because it communicates our attitude towards crimes against humanity and towards international justice.
Glenda Jackson (Hampstead and Kilburn) (Lab)
Will my right hon. Friend allow me to intervene?
Michael Ellis
It might be useful to inject some legal realism into the debate. At present the law in England and Wales provides for no real evidential threshold, and contains no requirement for a prosecutor to check the credibility of a claim before an arrest warrant is issued. In other words, all that is required is for an individual to go into a police station or the equivalent and make an allegation. That allegation amounts to a prima facie case: the establishment of a prime facie case is the smallest burden that must be borne. Attention-seeking lawyers and campaign groups are being given an opportunity to use the arrest warrant process as a campaign tool. To describe it as providing immunity from prosecution is completely wrong in law, in fact and in degree, and if newspapers have described it thus they are simply wrong.
Dr Huppert
I had much experience of disagreeing with the hon. Gentleman on this matter when the Bill was in Committee. I am now trying to understand how he squares what he is saying with what is actually happening. As we have heard, eight of the mere 10 applications that have been made in 10 years were rejected by the district judge, so the threshold is clearly higher than he is suggesting. Moreover, the clause does nothing about the process of applying for an arrest warrant. People could still apply for one; there would just be a delay before it could be granted.
Michael Ellis
I have a feeling that any Member of Parliament who was subject to the arrest warrant would not be so cavalier as to consider that one or two instances were nothing to worry about. We ought to have a system that applies fairly across the board.
According to a case study, in March last year the former Vice-President of Bosnia, Ejup Ganic, was arrested at Heathrow airport after Serbian judicial authorities issued an extradition warrant. He was accused of conspiracy to murder 40 Yugoslav People’s Army soldiers in an attack in May 1992. He was subsequently released on bail when the judge remarked that the arrest warrant issued by Serbia had been politically motivated. It was reported that Serbia had yet to produce any real evidence, and that most of its supposed evidence consisted of news articles about the incident. City of Westminster magistrates court blocked Ganic’s extradition in July last year. The presiding judge—who, as was pointed out by the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman), had considerable experience—said that he had been led to believe that the extradition proceedings were
“brought and being used for political purposes, and as such amount to an abuse of the process of this court”
Having worked in the criminal justice system for 17 years, I am concerned about the way in which the English legal system is perceived abroad, and the ramifications of some of the incidents that have occurred. For generations, the United Kingdom has been at the forefront of peace conferences and other such meetings. The very recent meeting to discuss Libya is a classic example. Circumstances in which people were fearful of entering this country because an extremely low threshold might result in their arrest would be injurious not only to the reputation of the United Kingdom’s legal system, but to the UK’s overall reputation for being a place where peace can be sought and arrangements can be made across the negotiating table. It is not in the interests of world order and international peace for obstructions to be placed in the way of people wishing to enter this country in the way that they have been doing. That does not, of course, apply to only one country; there are several other examples.
Mark Durkan (Foyle) (SDLP)
Does the hon. Gentleman not accept that the example he gave has nothing to do with private prosecutions being pursued in relation to universal jurisdiction, as it was an extradition matter? Does he not also accept that the court had a very serious threshold and made a very serious judgment, so the process clearly could not be abused for political purposes?
Michael Ellis
It is important to remember that there is the issue of fear of arrest, as well as arrest itself. If someone were to say to anyone in this House, “There’s a prospect of your being arrested should you enter the United States, or France,” they would think very carefully before entering those countries, even if they knew there were no grounds for any allegations and they were entirely innocent. They would not put themselves through the hassle.
Mark Durkan
Can the hon. Gentleman therefore tell us how this clause removes that fear? What signal will people have that the Director of Public Prosecutions would not entertain any such warrant?
Michael Ellis
There seems to be a fear, including in apparently authoritative newspapers, that the provision will grant immunity from prosecution, but all it does is raise the test to the same level as for prosecutions that occur by the thousands per week in this country. Whenever there is an allegation against an individual—whether for murder, shoplifting or anything in between—the Crown Prosecution Service has to consider two tests: whether it is in the public interest to proceed, and whether there is a realistic prospect of conviction. No one suggests that the need to consider whether there is a realistic prospect of conviction in those contexts in effect means immunity from prosecution for everybody, and that is all that will be applying here.
Dr Huppert
This brings us on to what I consider to be an important point. Shortly after an arrest, the Attorney-General has to engage with deciding whether to continue with the private prosecution; that is one of the weaknesses of the private prosecution system. Does the hon. Gentleman think that one way in which this clause might help with prosecutions is that it would be hard for the Attorney-General to overturn a decision by the Director of Public Prosecutions, because he could not come up with the claim about the relevant person being just a magistrate? In fact the Attorney-General might find that he was in a weaker position, and it would be easier to proceed with a prosecution.
Michael Ellis
I am not concerned, as my hon. Friend appears to be, about the Attorney-General, because safeguards are built into our system in this country. The Attorney-General has been in a position similar to that envisaged in the Bill for decades, and there is no evidence whatever that that has been a problem in other areas. There are prosecutions in this country that can take place only with the consent of the Attorney-General, and there are other prosecutions that can take place only with the consent of the DPP—I myself have been involved in one or two of them—but no one is suggesting that those cases involve political interference. The reality is that we have to have safeguards against the misuse of a process that has increasingly been employed in highly controversial circumstances and has deeply injurious effects on international relations and British relations. As I have already enunciated, my primary concern is to maintain the good standing of the English legal system.
Jeremy Corbyn
The hon. Gentleman is deeply confusing me; I hope he did not confuse the courts in the same way when he was practising. We are trying to ensure that people against whom there is prima facie evidence of war crimes or crimes against humanity could be subject to an arrest warrant in this country. The opposite of that is that they would be welcome in this country. I am sure that is not the hon. Gentleman’s intention, but it is beginning to sound a bit like it.
Michael Ellis
Of course it is not my intention that war criminals be welcomed to this country. They would be welcome to be prosecuted in this country, and I would support that. The reality is very different, however, and we must ensure that only appropriate people in appropriate circumstances are subject to the heavy penalty of arrest.
Mike Wood (Batley and Spen) (Lab)
The hon. Gentleman said that this provision had been increasingly used—10 times in the past 10 years—but what evidence has he got to suggest that that is the case?
Michael Ellis
As I have said, there are several offences that are rarely used, but whose presence on the statute book is in itself damaging. Many would argue that although the 42-days provision was hardly ever used, its presence on the statute book would not be uncontroversial. During the 13 years of the Labour Government some 3,000 new criminal offences were created, dozens of which have never been prosecuted yet remain on the statute book. The principle is that one ought to be interested in justice for every individual, rather than having no justice for a handful and thinking that because only a handful are being subjected to injustice we should not worry about it.
Mike Wood
Is the hon. Gentleman agreeing that this provision has not been increasingly used? If so, does he wish to retract what he has just said? Either it has been increasingly used or it has not. He said that it has been used 10 times in 10 years, but what was the incidence in the previous 10 years? If he cannot produce that evidence, or if the evidence suggests that this provision has not been increasingly used, perhaps he should withdraw what he has just said.
Michael Ellis
That is a matter of personal opinion. As I have indicated, one would have to make a comparison with the previous 10 years. The universal jurisdiction law is a common law matter and has, therefore, presumably been available for decades. If it has been used only 10 times in the past 10 years, one would have to go back to see what happened during the previous 10 years. Perhaps one would discover that during that period it had never been used once. If that is the case, it has been increasingly used; I would just posit that.
I am conscious of the fact that other hon. Members would like to speak, so may I conclude by saying that Canada is not considered to be a country that is in any way permissive towards war crimes, yet it has adopted a tack similar to the proposed British solution? Although boasting a very broad piece of legislation implementing universal jurisdiction, Canada’s law requires that all claims based on universal jurisdiction first be personally approved by its Attorney-General or deputy Attorney-General before they can be introduced in any court. So I would posit that to Labour Members, and say that if Canada has done this and is doing it—
Michael Ellis
I am going to finish now. If Canada has done this and is doing it, I see no reason why England and Wales should not do it as well.
Vernon Coaker
I start by saying that we support the Government on the clause. It is strangely placed in this Bill, as it deals with a foreign policy and justice issue, but our foreign policy team has made its support clear. The provision is essential to maintain universal jurisdiction: it allows for the prosecution of war crimes and crimes against humanity anywhere in the world. We also support continuing with private prosecutions.
We do not believe that there should be any weakening in the standards for and likelihood of prosecution, as that would be completely wrong. However, there is a difference between the standards and procedures for arrest and the standards and procedures for prosecution. For prosecution, a higher standard of proof and the agreement of the Attorney-General are needed, whereas for arrest they are not. That means that there could be cases where people are arrested but there is no likelihood of prosecution, because the evidence is not there and the Attorney-General will not give agreement, perhaps because of campaigning on international issues in this country. We do not believe that that is appropriate, especially if it deters people from coming to Britain for purposes associated with diplomacy or peace. So it is essential to make the change that the Government propose, which would bring arrest better into line with prosecution but would not affect the chances of a prosecution. However, if the Director of Public Prosecutions is to take these decisions, he will need to do so swiftly. Justice must not be denied by being delayed.
Mr Love
Is my hon. Friend not concerned about this? We have been told that the DPP will consult the Attorney-General, who can, of course, consult his Cabinet colleagues, but all that will take place behind closed doors. Is there not a real case to answer about the politicisation of the process?
Vernon Coaker
That would have been a real danger with the initial proposal concerning the Attorney-General—my hon. Friend is right to highlight that concern—but when the DPP gave evidence to the Public Bill Committee he was very clear about the thresholds that he would use and the way in which he would conduct his business. My hon. Friend is right to raise this issue, but the moving of responsibility for this area from the Attorney-General to the DPP is a significant step forward.
Mr Love
The core of this matter is that the DPP will consult the Attorney-General about the public interest test, and that will be the subject of debate, not the standard of evidence that is available. I return to the same question. As that process will take place behind closed doors, is my hon. Friend not concerned about the politicisation of the process?
Vernon Coaker
The point that I am making is that the DPP’s involvement is to prevent that politicisation, and I was reassured by what he said when he gave evidence to the Committee.
Jeremy Corbyn
I am disappointed in the shadow Minister’s line of argument, because on the question of arraigning someone for crimes against humanity or war crimes, he appears to be saying that there has to be a foreign policy consideration. Surely the decision whether to grant an arrest warrant should be made solely on an evidential basis within international law. It should not be about the perceptions or otherwise of this country, or any other, about foreign policy.
Vernon Coaker
I know that my hon. Friend feels strongly about this, but we are supporting the amendment because this is not only about arrest but about securing prosecution and increasing the likelihood that people can be prosecuted. That is why we support what the Government propose, now that the DPP is involved.
Mr Offord
I am sure that the shadow Minister will recall the DPP’s evidence to the Committee. He said:
“We have people who can work around the clock and…enough trained people so that someone is always available.”—[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 126, Q241.]
That would prevent anyone from fleeing justice in this country.
Vernon Coaker
That is one reason why I said that if the DPP is to take decisions he will need to do so swiftly. As I have said, justice must not be denied by being delayed. We believe that the Crown Prosecution Service and the Metropolitan police should play a strong role, as they have in the past, and must not be hit by the cuts. That is why we tabled amendment 154—to ensure that there is no delay and that wherever possible things are dealt with as speedily as possible so that the arrest warrant is granted where appropriate, and we can secure a prosecution.
Dr Huppert
I shall try to be brief because a number of hon. Members wish to speak. I have written an article today for “Liberal Democrat Voice” if anyone wants my comments in full—I am sure that hon. Members read it frequently. [Interruption.] There is only one version—unlike what happens with the Labour party, whose members seem to give different messages from the back, the front and the side.
I want to talk about how the system would work, and I urge hon. Members to look at the transcript of the DPP’s evidence to the Public Bill Committee, which was very detailed and very reassuring for those of us who want to make sure that prosecutions go ahead. He made it clear that a team was available, as has just been mentioned, and that it would be ready to act. He understood the issue of timeliness and advanced the idea of using a lower threshold test when there is not enough time to gather evidence. Importantly, he also offered to look in advance at evidence about people who we know should be prosecuted, so as to be ready to go at very short notice—to update what would be required and to be able to go ahead. I was very encouraged by that.
Mr Michael McCann (East Kilbride, Strathaven and Lesmahagow) (Lab)
I am the chair of the all-party group for the prevention of genocide and crimes against humanity. My right hon. Friend the Member for Cynon Valley (Ann Clwyd) has made the point that there are more than 400 war criminals in Britain, but is the hon. Member for Cambridge (Dr Huppert) aware that only 29 of them are being pursued by SO15? Does that not demonstrate that we have to separate the wheat from the chaff? Clause 152 will do that: it will get right to the heart of the matter and ensure that we have the evidence base to ensure that war criminals are prosecuted.
Dr Huppert
The role of the police is important. Private prosecutions are the wrong way to go about dealing with such people. If a private prosecution has to be used the state has failed to go ahead—but I would like to see it do so. Private prosecutions are an essential safeguard where the state has failed.
Dr Huppert
I shall give way once more, but then I want to conclude and allow other hon. Members to speak.
Yasmin Qureshi
Does the hon. Gentleman not accept that the provision has been introduced because of the arrest of one individual? We are changing centuries of our law and tradition for the sake of one person.
Dr Huppert
My position was well summarised by an Opposition Member who spoke earlier. It is a shame that there has been a conflation of two separate issues—one about Israel-Palestine and the whole sordid tale there, and the other a legal debate about what the system ought to be. I wish it were possible to have that discussion.
The DPP made it clear that he would talk to the Attorney-General, but he said five or six times that there would have to be a very powerful weight in favour of prosecuting, because the crime is one of universal jurisdiction. The public interest would have to be overwhelming. I take comfort from that, because I am concerned that at present the Attorney-General can stop any process going ahead. We do not have a functioning private prosecution system in this country, because the Attorney-General can stop any such prosecutions at any stage. Including the DPP in the provision would make it harder for the Attorney-General to do that, because straight after the DPP—a recognised independent person—said, “Yes, there is a case. This person can be prosecuted,” the Attorney-General would be faced with the prospect of saying, “Actually the DPP is wrong. He doesn’t understand this,” and trying to end it.
The provision makes prosecutions easier, and it is prosecutions that I am concerned about. I should like to hear more about how the Government will make sure that the police take stronger action. I should like to hear whether they agree with recommendations from the Joint Committee on Human Rights, on which I serve, that would weaken the role of Attorney-General in terminating private prosecutions. My remaining concern is about the fact that the DPP may decide not to go ahead because the evidence is too weak. If that is genuinely the case, I do not think that any of us would have a problem with it. However, what worries me are cases in which the DPP does not get round to making a decision because there is a pocket veto. I should like an assurance from the Minister that the Government will report on such cases. If there are a large number of them in which a pocket veto is exercised and no proper decision is made, I hope that the Government will look at the matter again and make sure that there is due process.
Mr Deputy Speaker (Mr Lindsay Hoyle)
There are two minutes remaining, as I will call the Minister at 6.54 pm.
Sir Gerald Kaufman
We heard one Liberal Democrat voice. May I, in the remaining two minutes, quote the Liberal Democrat document which I have already quoted with regard to Tzipi Livni, who has been mentioned? It says:
“Tzipi Livni, as Israeli Foreign Minister, was one of those responsible for authorising these attacks”—
on Gaza, which deliberately targeted civilians and civilian infrastructure—
“and made public statements that appeared to encourage the Israeli military to use disproportionate force and engage in deliberate destruction with no legitimate military objective.”
Sir Gerald Kaufman
I will not give way, because I have only two minutes.
That is the person whom this lot are trying to acquit of the right even to be prosecuted, and even the issuing of a warrant against her. Her parents were terrorists who murdered great numbers of people. She was an Israeli spy in Paris when the Israelis were murdering people all over Europe and were changing the law to suit this war criminal.
Nick Herbert
The purpose of clause 152 is to require the consent of the Director of Public Prosecutions before an arrest warrant for war crimes under the Geneva Conventions Act 1957, and for the few other offences over which the United Kingdom has asserted universal jurisdiction, can be issued on the application of a private prosecutor.
Much of the criticism directed at this provision seems to assume that it will end the right of private prosecution for universal jurisdiction cases—a point that appeared to be made by the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) in his brief speech—and, by extension, that it will damage the principle of universal jurisdiction itself. I emphasise that this is simply not the case. Of course the provision has no effect at all on the ability of the police to investigate, and of the Crown Prosecution Service to prosecute, alleged offences of universal jurisdiction, but we think it is right that citizens should be able to prosecute these cases, grave as they are. That is why, under our proposal, anyone will still be able to apply to a court to initiate a private prosecution of universal jurisdiction offences by issuing an arrest warrant, where appropriate.
Our approach, therefore, differs from that proposed by the previous Government, which removed the right to private prosecution of offences alleged to have been committed by a foreign national on foreign soil.
Nick Herbert
I will deal with some of these points as I go on.
All that the provision will do is prevent a warrant being issued in cases where there is no realistic prospect of a viable prosecution taking place. It would not, as the right hon. Member for Cynon Valley (Ann Clwyd) claimed when she moved her amendment, give immunity to war criminals. That is not the case.
It has been argued that the consent requirement will lead to delay and allow someone who ought to be prosecuted to leave the country. That is the force of amendment 154. That is a serious point, which the Director of Public Prosecutions addressed when he gave evidence to the Public Bill Committee. I urge those hon. Members who are concerned about the provision to read, if they have not done so already, the DPP’s evidence to the Public Bill Committee, which I believe will give them a great deal of reassurance as to how he would approach the matter.
The DPP is well aware that speed is important in dealing with such applications. He explained that the Crown Prosecution Service has suitably trained staff available around the clock, and they stand ready to act immediately in emergency cases. He also had helpful advice for anyone who wants to pursue a crime of universal jurisdiction, which is that they should not wait until the suspect has arrived here, but should engage early with the CPS. He said that they
“should come to us”—
that is, the CPS—
“with whatever evidence they have, and we will undertake to look at it and to advise.”
It has also been argued, and we have heard this evening, that there is a risk of political interference, given the likelihood that the DPP would consult the Attorney-General.
Nick Herbert
If the hon. Lady will forgive me, I will not give way; time is short.
I raised such a risk in questioning the DPP, but he made it clear in his evidence that
“the decision is the decision of the Director of Public Prosecutions, taken independently.”
He added that consultation between the DPP and the Attorney-General, which is regular,
“acts as no inhibition on the independence that I would bring to the decision. At the end of the day, the decision is mine, it is independent and it is reviewable.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 124-130.]
As my hon. Friend the Member for Cambridge (Dr Huppert) pointed out, the DPP also said that there are powerful public interest reasons to prosecute in a case that has satisfied the evidential threshold.
The necessity for the provision has been questioned on two grounds. It is said that the sort of people whom it is designed to safeguard are already covered by immunity. Although this is true of some of the visitors against whom arrest warrants have been sought in the past, it is not true of all. Immunity from criminal jurisdiction applies to certain Ministers, and warrants have been sought against Ministers not covered and those who are not Ministers at all.
Nick Herbert
I am sorry. I do not have time.
It is said, too, that few warrants have been issued in universal jurisdiction cases, but the problem lies in the perception that a person who is not a British citizen, does not live here, and indeed has no connection with this country apart from being present here, might be at risk of arrest for a very grave crime where there is no prospect of a viable prosecution. That such an occurrence is rare misses the point. The fact is that people who are, or have been, in leading positions in their countries, with whom the Government would wish to engage in discussions, may be discouraged from coming here. That is our concern. That, in turn, creates a risk of damaging our ability to help in conflict resolution or interfere with foreign policy.
Amendment 154 would require special units to be set up in the police and the CPS. The responsibility for investigating universal jurisdiction cases lies with a specialist unit of the Metropolitan police. That unit has the specialist skills and expertise required to conduct those cases, or to decide that an investigation in this jurisdiction is not warranted or feasible. The unit is best placed to evaluate the prospects of being able to protect witnesses or secure their evidence at any trial, identify an individual responsible for the particular conduct to the criminal standard, and deal—
Mr Deputy Speaker (Mr Lindsay Hoyle)
I ask the Serjeant at Arms to investigate the delay in the No Lobby.
Mr Matthew Offord (Hendon) (Con)
On a point of order, Mr Deputy Speaker. During the last debate, I heard a Member make a comment about another Member in this Chamber. The language that they used certainly was not parliamentary. Will you take some action, or advise me on how I might make a complaint against the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) for the comments he made when the hon. Member for Liverpool, Riverside (Mrs Ellman) stood to make an intervention?
Mr Deputy Speaker (Mr Lindsay Hoyle)
If it had been within earshot of me, obviously I would have dealt with it straight away, but I did not hear anything.