Policing Protocol Order 2012

Lord Hunt of Kings Heath Excerpts

Wednesday 25th January 2012 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

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

Relevant document: 46th Report from the Merits Committee.

[Lord Hunt of Kings Heath]

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Browning]

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Hunt of Kings Heath]

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

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

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

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

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

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

Motion withdrawn.