Police Reform and Social Responsibility Bill

Lord Coaker Excerpts

Wednesday 30th March 2011 Commons Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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[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.

[Vernon Coaker]

I beg to move, That the clause be read a Second 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.

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[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.

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[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.

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[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.

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[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.

[Mark Tami]

Given the sort of person who is going to be elected to the panels, might it not lead to an adversarial relationship almost from day one? Indeed, the person might have stood on a platform in order to take on the chief constable for something he had done.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.