Police Reform and Social Responsibility Bill

Steve McCabe Excerpts

Wednesday 30th March 2011 Commons Chamber

[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?

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[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.

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[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.

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[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.