§ 3.47 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve iself into Committee.—(Lord Derwent.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 agreed to.
§ Clause 2:
§ PART I
§ Police authorities for counties and county boroughs
§ 2.—(1) The police authority for a police area consisting of a county or county borough shall be a committee of the council of the county or borough constituted in accordance with the provisions of this section, to be known, in the case of a county, as the police committee and. in the case of a borough, as the watch committee.
§ (2) The police committee for a police area consisting of a county shall consist of such number of persons as may be determined by the council of the county, and of that number—
- (a) two thirds shall be members of the council of the county appointed by that council;
- (b) one third shall be magistrates for the county appointed by the court of quarter sessions for the county.
§ (3) The watch committee for a police area consisting of a county borough shall consist of such number of persons as may be determined by the council of the borough, and of that number—
- (a) two thirds shall be members of the council of the borough appointed by that council;
- (b) one third shall be magistrates appointed by the magistrates for the borough from among their own number.
§ (4) The magistrates to be appointed members of a police committee or watch committee shall be appointed at such times, in such manner and for such term as may be pre- 1166 scribed by rules made by the Secretary of State; and the other members of a police committee or watch committee shall be appointed at such times, in such manner and for such term as may from time to time be determined by the council responsible for appointing them.
THE CHAIRMAN of COMMITTEES
I should like to point out that there is an error on the Marshalled List: the name of the noble Lord, Lord Milverton, should not be associated with Amendments Nos. 1 and 2, but only with Amendments Nos. 3 and 4.
§ BARONESS WOOTTON OF ABINGER moved, in subsection (2), to leave out "persons" and insert "members of the council". The noble Baroness said: Amendments Nos. 1, 2, 3 and 4 in a sense hang together, and I will say most of what I want to say on all four together. They actually divide into two pairs. Amendments Nos. 1 and 2 are designed to remove the magistrates from the police authorities where they at present sit; that is to say, from what has been the standing joint committee. Amendments Nos. 3 and 4 are designed to prevent the inclusion of magistrates in watch committees.
§ I think it is clear that the intention of this clause is to tidy up, and I think that we are agreed that it is an anomaly that magistrates have until now sat on what may be called a county police authority, but have not sat on the police authority in the boroughs. The tidying up can be effected in either of two ways. One can either add the magistracy to the type of police authority from which they are at present excluded, or one can exclude them from those authorities in which they are at present included. The Bill proposes to take the course of adding magistrates to the borough police authorities; and the Amendment proposes that the magistrates should no longer have an ex officio position at all on the police authorities, either in the counties or in the boroughs.
§ The presence of magistrates on the standing joint committee goes back to the days when the justices were the administrative as well as the judicial authority for local government. It goes back, in fact, to the days before the present democratic system of local government was established throughout the country. Their presence, therefore, 1167 is something of an historical anachronism. They are not only anomalous but also anachronistic. Their presence on the police authority is out of keeping with the spirit of the time in more ways than one. First of all, because the police, like any other public service, ought to be responsible, in so far as they are responsible to anybody, to an authority which is derived from democratic election—that is to say, to the Home Secretary in regard to national matters, and to elected municipal bodies in regard to local matters. After all, that is the pattern in relation to public services generally, and that is the pattern which surely is now also appropriate in the spirit of this age, in relation to the police.
§ The other reason why it seems of some importance that magistrates should not participate in the police authority is the simple yet fundamental one that magistrates must be seen to be entirely independent of police. The magistrates' function is judicial, and they are in no way associated in the initiation or conduct of prosecutions or in the discussion of matters concerning prosecutions. The function of the police may be to bring offenders to court. The function of the magistrates is to adjudicate without bias when offenders, or alleged offenders, have been brought to court. In order to maintain public belief in the independence of the magistracy—and I do not question that that independence is real —it is important that they should not be associated in the authority which controls the police.
§ The importance of this is, perhaps, enhanced by the fact that this Bill takes some steps, though rather modest ones, to increase the control exercised by the police authority, that is to say by the mainly elected police authority over the police. In so far as that control is to be exercised, it becomes additionally important that it should be exercised by an authority which is wholly and solely elected and which does not include members of the magistracy who are appointed rather than elected. For these reasons, I would ask the Committee to accept these Amendments in order that the pattern of the police authority may be brought into line with what is now the accepted pattern of local government throughout the country and 1168 the accepted pattern of democratic control.
Page 2, line 8, leave out ("persons") and insert ("members of the council").—(Baroness Wootton of Abinger.)
Until four years ago, when I was superannuated and succeeded by a county alderman ten years my senior, I was for many years chairman of the standing joint committee of my county. That committee, so far as the magistrates were concerned, consisted of chairmen of benches; and it is my belief that in their capacity as chairmen they acquired experience of the police which was valuable to them as members of the authority—experience not available to the elected members of a local authority. Surely the noble Lady, in view of her long experience, must be aware that neither magistrates nor members of a police authority have anything whatever to do with the initiation of prosecutions. I should like to oppose this Amendment.
§ LORD DERWENT
This, of course is a matter of principle. I am in some difficulty because we are talking about Amendments Nos. 1 and 2, and the real point underlying this also applies, except in detail, to Amendments Nos. 3, 4, 5 and 8. Therefore, I shall put my case on the general question of police authorities, and will not add to it on later Amendments, except as to any points of detail. in other words, the case for Amendments Nos. 1 and 2 is different in detail from the case for Nos. 3, 4, 5 and 8, but the basic principle remains the same. The effect of all these Amendments taken together would be that county and borough police authorities would consist entirely of members of the council appointed by the council. Amendments Nos. 3 and 4 will he leaving the counties as is suggested and will be dealing with county boroughs.
I should like to start by repeating something I said on Second Reading. The Royal Commission discussed the composition of both kinds of police authorities in paragraphs 207 to 210 of their Report. They recognised, thata body associated with local authority ought clearly to contain elected councillorswhom they regarded asentirely fit and proper people to discharge the functions of police authorities".1169 The Commission then went on to say that they thought they could be greatly assisted in their tasks by the inclusion in their number of a proportion of justices. They continued:Through their judicial work magistrates have a close knowledge of police affairs and problems, and they above all people see the fruits and nature of police work. They constitute a body of public-spirited citizens whose services cannot be enlisted through the normal machinery of local government; and the inclusion in the police authority of a quota from the magistracy widens the field of selection".In the view of the Government that is a sound appraisal of the reasons for including some magistrates on police authorities.
As to the first part I quoted, it is interesting to note the view the Royal Commission take of councillors serving on a police authority. There was at that time considerable discussion in the Press and in the country generally as to whether in fact councillors, as members of political Parties, were proper people to be concerned with police authorities. It is argued by some people that perhaps they are not. Here again the Royal Commission took the view that they were proper people. So there were the two sides. The Royal Commission's view was rather that the police authority would be strengthened if its members were also drawn from another source, that other source having particular knowledge of police problems.
I should like now to say a word about the standing joint committee system as we know it to-day. It has worked extraordinarily well, and the County Councils' Association strongly pressed the Royal Commission to keep the present system in the counties, which is 50 per cent. councillors and 50 per cent. magistrates. The general experience in the counties has been such that there is strong support for the Royal Commission view that all police authorities would benefit from the inclusion of justices.
Two main objections of principle have been put forward by the noble Lady and, I imagine, by the noble Lords who also have their names down on the Amendment. The first is, I think, that the inclusion of magistrates blurs the distinction between the Judiciary and the police. Really, I cannot accept this suggestion. It completely overlooks the 1170 true nature of the function of the police authority, which is not to give directions to the police about their operations. The force is under the direction and control of the chief constable. The duty of the police authority is to secure the maintenance of an adequate and efficient force. The view of the Royal Commission was that the objections to associating the functions of the police with the administration of justice were theoretical rather than real. That is in paragraph 208.
Underlying these Amendments is another theory which also I cannot accept. It is not stated in these words, but the theory is that justice up to now has not been thought to be impartial, because there have been magistrates on the standing joint committees. Really, one cannot accept that, and I have never heard it suggested. The second objection which the noble Lady raised was, I think, that the inclusion of magistrates on the police authority diluted the democratic element in the system for administering and controlling the police. I think this objection might have some validity if the magistrates were in a majority, but they are going to be in a minority, and of course amongst the minority of magistrates are likely to be some councillors.
§ THE EARL OF LONGFORD
May I interrupt the noble Lord? Surely, he must agree that the objection as stated by him holds. It does dilute the democratic element. He cannot reject that altogether.
§ LORD DERWENT
If, of course, the noble Earl thinks that democracy exists only in elected councillors. But I really cannot see that one can say that magistrates are necessarily undemocratic. Even if there are any objections to the minority element of non-elected members, I really do think they are outweighed by the advantages—which the Royal Commission saw and with which the Government agree—which magistrates can bring to the special problems of local police administration. I am afraid that I must ask your Lordships to resist this Amendment.
sLORD MORRTSON OF LAMBETH
I have listened very carefully to the Minister of State and to all the arguments he has advanced. But I have 1171 not yet heard him advance any argument whereby the nature, the character, the efficiency of the police authority will be improved in operation by the addition of magistrates, or, indeed, by the preservation of magistrates on the police authority of the counties. That is the real point that he has got to prove: that there is an advantage in the quality, the ability of the police authority, if a one-third element of magistrates is included in the watch committee or in the county police committee. But the noble Lord has not uttered a word which shows that that is the case.
I am not sure of my history about standing joint committees, but I suspect that it is this. When the Local Government Act, 1888, was passed, it took away a lot of administrative powers from the quarter sessions, which formerly administered many local affairs in the counties as such, and passed them to the new county councils. I should imagine that this element of 50 per cent. of magistrates on the standing joint committee may have been provided to comfort the magistrates, by the fact that they were given some locus and some power in local affairs which otherwise might be missing. I can understand that as a transitional arrangement, and possibly as a Parliamentary device to minimise criticism and opposition about the great changes in the Act of 1888. But we are now in 1964 and, whatever may have been the reasons before, there is an onus upon the Government to show, as I have said before, that there is a positive advantage in the inclusion of magistrates.
The Minister quoted, without agreeing with them—because he took the view of the Royal Commission, and I was glad of that—some people who thought that, because local authorities were largely, though not entirely, composed on the basis of local political Parties promoting candidates, they were therefore not suitable to be a police authority. The Minister rejects that argument, and so do I, partly on the ground that, so far as I know, the watch committee, or the standing joint committee for that matter, cannot institute or restrain prosecutions. If I am right, I think that is as it should be, because I should not like a body of 1172 political people to determine, possibly for reasons of political or personal favouritism, who should be and who should not be prosecuted. I think that responsibility is better left with the chief constable, as in national affairs it is left with the Director of Public Prosecutions or the Attorney General, as the case may be. But if that be true, and I think it is true, then this argument of political influence about prosecutions or non-prosecutions completely falls to the ground.
In any case, although councillors, in the greater part—and this has come about not only by our action, but by the actions of the Conservative Party as well—are to a great extent organised on Party lines, when it comes to the appointment of magistrates (I speak in the absence of the Lord Chancellor, which perhaps is just as well) it is a fact that the wishes of political Parties about the appointment of magistrates are taken into account. If you take the past, it was especially the case that the Conservative Party's views were taken into account. In London—and I believe this is true of some places elsewhere—there is a committee to advise the Lord Lieutenant of the County on the recommendations he makes to the Lord Chancellor; and that committee is operative. In other places, the Lord Lieutenant has greater freedom, I believe, though he takes the advice of an advisory committee.
Nominations come to these committees and they have a duty, which I think, broadly, they discharge, of choosing people who, mentally and psychologically, and by reason of their capacity to have a judicial mind, are fitted to be magistrates. That is taken into account, and quite rightly. And if a man has been prosecuted or locked up for something which is discreditable, it is very difficult for him to become a magistrate, and that is quite right. Nevertheless, it is known in the bulk of cases to which political Party these gentlemen or ladies belong. It is another factor which is taken into account by the advisory committees, and probably by the Lords Lieutenant; and I do not think this is unreasonable. Years ago, in what some people call the good old Tory days, but which I would call the bad old Tory days, it was not easy even for a Liberal, 1173 especially if he was a radical Liberal, to become a J.P., and it was very difficult for a Socialist to become a J.P. Those days have largely gone, but even now my people say that they do not get a fair crack of the whip because of their political opinions.
There we are; and the fact is that political opinion is taken into account, not as the primary factor but as a factor in the selection of justices, in order that there shall be a fair distribution as between one political Party and another. It is not done because the authorities want them to function politically, but in order to get a wider spread of social class, outlook, general opinion, and so on. But there is an obligation on all of them to be judicially minded on the bench, and to be fair. Therefore I cannot see that a magistrate is necessarily an angel and the councillor is necessarily a suspect. Of course, we all have to recognise that there are aldermen, as well as councillors, and that, though they are not elected, they are equally eligible for the watch committee or the standing joint committee in the county. I cannot see that a magistrate is necessarily a person of particular virtue to sit on one of these committees, and that a councillor is open to some suspicion.
The Minister of State will answer, "Hang it! I am giving them two-thirds, anyway, which is more than they have on the standing joint committees, although it is a new innovation to have them on the watch committees." I see his point; but what I cannot see is how this is going to improve the character, the quality of the work of the watch committees. It may well be that, in the appointment of representatives on the police committees in the counties, or on the watch committees in the boroughs, quite a number of justices may be included who are also members of the council, so it does not mean to say that you are going to exclude magistrates. My noble friend Lady Wootton of Abinger did not argue that magistrates, as such, should be excluded. They will be eligible as members of the council, so some may be appointed in that way. But I still want to know what is the positive, peculiar, outstanding virtue of a magistrate, as against a councillor, that makes him best fitted to sit upon a watch committee or a county police committee.
1174 Even in the counties (although I agree with the Minister of State, to the best of my knowledge and belief, that the standing joint committees have worked well), the powers of the standing joint committees, vis-à-vis the police, are, if anything, less than those of the watch committees of boroughs. There is no logic in keeping the present position, and the Government are proposing, in accordance with their usual slavish notion of making everything the same everywhere, that, because there are magistrates on the county committees there should also be magistrates on the borough committees. But the borough watch committees have worked very well. As a matter of fact, all this talk about greater powers for the Home Office and the Home Secretary is to some extent nonsense, because any chief constable who gets a wink or a smile from the Home Office takes notice of it. The Home Office has extraordinary authority over chief constables—and up to a point I think it is right that that should be so. No chief constable, to my knowledge, wants to upset the Home Secretary.
The only trouble I had was when Wolverhampton wanted to promote a deputy chief constable, and I thought they had better have somebody from outside. We had a lovely row, and I was prepared to withhold the grant. Then we finished up friends and had a nice tea-party one Sunday afternoon. Later on the deputy chief constable got promoted to be chief constable of Barrow-in-Furness, but not of Wolverhampton. This is the kind of thing about which rows occur. But, after all, a little bit of a row between local authorities and the Government is part of the British way of life. It is one of our sports—not quite as sporty as football, especially the last Cup Final match, which was very good. Still, it is part of our way of life, and I do not want to see nationalisation of local government. I have had enough of it with the nationalisation of the Greater London Council election, on both sides. I do not want to see local government nationalised: let them have their disputes. But why do the Government want to interfere with the boroughs, who have had the police authority through their watch committees? On the whole, the system has worked very well. If a watch committee are inclined 1175 to take improper liberties, the Home Office can sit on them; and, at the end of the day, the Home Office is the master of the situation.
I would beg the Minister of State to think again. I think my noble friend Lady Wootton of Abinger is right to seek to exclude the statutory, co-opted, magisterial element from both authorities, and I will vote with her. But I also think it would be right, if we cannot get them off for the counties, that we should keep the status quo for the boroughs. I say to the Minister of State, with great respect (he has stated his case with his customary ability, but not with convincing ability, because he cannot), that I still want to know what is the particular charm of a magistrate which makes him of outstanding, special value as a member of a police committee.
§ 4.15 p.m.
§ LORD STONHAM
I have never been either a member of a local authority or a magistrate. It might therefore be fairly argued that I know nothing about the subject under discussion: but it might equally be argued that I am in a better position to have an objective opinion. I listened with particular interest to what the noble Lord, Lord Raglan, said, because, although we sit on opposite sides, I usually find myself in agreement with him. But it seemed to me that he was expressing a resentment—perhaps understandable, if he took it that way that these Amendments put down by my noble friend are a reflection on, or a criticism of, magistrates. They are nothing of the kind.
The noble Lord, Lord Raglan, told us, engagingly, that he had been chairman of a bench and that he had been superannuated, and succeeded by an alderman who was nearly old enough to be his father, simply because that alderman was a member of the local authority. He said, quite rightly, that the chairman of a bench of magistrates is a person of experience; but those appointed to these committees would not all be chairmen of benches.
I said that the magistrates who are members of the standing joint committee in my county are all chairmen of benches.
§ LORD STONHAM
Yes; I gathered that from the noble Lord's first remark. What I am saying is that there is nothing in the Bill about those who become members of a police authority by reason of the fact that they are magistrates all being chairmen of benches. Quite frankly, one of my principal reasons for supporting these Amendments is that persons of little or no experience that I value are appointed as magistrates.
My noble friend Lord Morrison of Lambeth was speaking about the political nature of some appointments. It is only quite recently—certainly within the last three years—that a certain political Party had a meeting of its executive committee in a constituency to decide how they should answer an invitation to recommend some of their number for appointment as magistrates. They were all stalwarts of the Party; all members of the executive and all people of very great worth. And they decided that, since this was, as it were, an award for merit, they were all of equal merit and so all thirty names went forward. That is one example.
I will give another. This one is very recent, and it concerns a lady who was the matron of a hospital. Your Lordships will say immediately that she was an eminently suitable person for appointment as a magistrate; and, indeed, so far as character was concerned, of course she was. Unfortunately, in all other respects, so far as judgment was concerned, she was not. But although, because of that reason, and in spite of the intense difficulty of getting rid of a matron, her employers were about to do so, she was just at that time appointed a magistrate.
These examples, of which I have personal and recent knowledge, emphasise what my noble friends have been saying about this being a completely undemocratic procedure. The noble Lord, Lord Derwent, put up an Aunt Sally of his own. He said he could not agree that magistrates, non-elected, are necessarily undemocratic.That is not the point. It is not the point that the persons appointed are of themselves not democratic persons and are not supporters of our democracy. It is the fact that the method of appointment itself is a negation of democracy. That is the whole point.
§ LORD STONHAM
No; I did not say anything of the kind. What I am saying, and what I maintain, is that these estimable persons who are appointed as magistrates are appointed in such a way that they are not answerable to a democratically elected authority. Therefore it is an undemocratic procedure. I hope the noble Lord will not again endeavour to persuade the House that he does not understand what I am saying. The principle is undemocratic, not the persons who may be appointed. They may be very good indeed.
Last evening I was in the city of Birmingham, which I was astonished to learn has grown in population to nearly four million. I had gone there to speak on the subject of penal reform. Therefore, a considerable proportion of those who were listening to me—there were no more than 100—were magistrates. A number of us met socially afterwards. There was no question at all among those magistrates who were members of the Birmingham City Council—and quite a number of them were—that the proposal in this Bill to appoint to a police authority persons who are not members of the local authority but who are appointed merely because they are magistrates is wholly wrong, is a slight on the city and on the local authority; and is a lessening of the control which they feel, as elected representatives, they ought to exercise on behalf of their ratepayers and the people they represent.
Another point is that if the police authority is composed of elected councillors, or even if it includes some alder who are themselves elected by the councillors, they can be got rid of by John Smith or Bill Brown after three years at the most. But the persons who are appointed to a police authority simply because they are magistrates cannot be got rid of in the same way. Their removal is going to be very difficult. Therefore, on the grounds of justice, of good sense and of what I understand to be the elective basis of our democracy, I think these are good Amendments, they should he accepted, and they will improve the Bill. But the most important ground of all for these Amendments is that it is bound to lead to difficulty and to em- 1178 barrassment at times if there is a division of responsibility between a magistrate's duty as a magistrate on the police authority and his duty as a magistrate in court. Therefore, I support the Amendment.
THE EARL OF MANSFIELD
To my mind it is very regrettable that questions of politics and democracy should have been brought into this debate. All we ought to be considering is whether the administration of justice from the widest point of view is going to be helped by putting the magistrates on to these committees. Quite frankly, having said that, I cannot myself see how it is to be helped. One reason is that it is difficult to conceive of any local authority which will not have among its members a fair proportion of magistrates; and nothing that the noble Lord, Lord Derwent, has said, has shown me any good reason why magistrates are likely to improve the composition of such committees.
§ THE EARL OF LONGFORD
I apologise for speaking at all, because the arguments have been so well put, but I feel strongly about this question. In my opinion, the criticisms we are making on this clause and the related ones are so strong and overwhelming that I cannot keep silent. I was astonished that the noble Lord should bring in the argument that the magistrates are apparently democratic. I think we must have misunderstood the noble Lord, but he is apparently under the impression that magistrates are in some way a democratic force.
§ LORD DERWENT
I think the noble Lord, Lord Stonham, had been speaking in a form of shorthand and he did not express himself as he should. He now has explained what he meant; and I fully understand him.
§ THE EARL OF LONGFORD
Well, I am glad that between us we have explained it; but surely the noble Lord understood that the most fundamental objection here is that the procedure the Government are adopting dilutes the democratic element. He must, at least, understand our objections on that point. He may feel that the democratic element should be diluted. It is much diluted in the counties at the present time. The noble Lord can, if he likes, continue that or modify that; but he must understand the basis of our objection. Local 1179 government to-day is supposed to be democratic. That is the essence of it. I agree that if one goes back historically one finds that this country was not governed democratically. It was not governed democratically in the counties or at the centre. When I read these particular provisions of this Bill—although on this side, we like the Bill as a whole—and when I listen to the arguments presented by the noble Lord, I am astonished that we ever got democracy in this country at all. It is amazing that we got the Bills in 1832, in 1867 and in 1884, and that women ever got the vote, because people were then able to say: "We are getting on all right and the tradition is that women do not have the vote."
Let us not look at the historical grounds; let us just look at democracy, at the issue of principle. The noble Lord must agree that, apart from this particular instance, local government is democratic. In this way, and certainly in the boroughs, we are actually making local government less democratic. We are introducing a non-democratic element. I am an old City Councillor and I may be told that on some of these committees there are co-opted members. But that is a different thing altogether. They are co-opted by the council; they are headmasters and educational experts, co-opted to the education committees, and so on. This is not a question of co-option; these are appointments. But we are told of the appointments thatone-third shall be magistrates for the county appointed by the court of quarter sessions for the county".We regard this as absolutely fundamental. The noble Lord opposite and his colleagues are actually making local government less democratic in important respects than it has been before. For myself, I hope and believe that the noble Baroness, who put it all with such force and clarity at the beginning, will press this matter to a Division. So far as I am concerned, I feel we must register the strongest protest, because in my opinion this violates one of the most essential features of British government.
I should have thought that, on the whole, magistrates could be presumed to have gained, during their tenure as magistrates, some 1180 knowledge of the police problems and methods of working, and that in that respect they would be valuable on the committee to give what is in some ways an outside, but an informed, opinion on police problems. I realise, of course, that this makes some inroad into what noble Lords opposite are pleased to call the principle of democracy. There are many inroads into this principle. It depends on whether you call democracy merely a matter of free election. How free these elections really are, how free the voter is to choose the man he wants, is a matter of debate. Nevertheless, I would go so far as to say we should not necessarily interfere with this democratic principle without a reason. But I think there is an adequate reason here; and the control of the committee through the casting of the votes, still remains with the freely elected members. One could be very cynical indeed.
One could make the point that perhaps it is best that the committee should be completely democratic; that it should have no technical knowledge of what it is trying to do: therefore it is less liable to interfere in matters which it does not understand. I, personally. would not take that view. I would strongly oppose the Amendment.
§ 4.30 p.m.
§ LORD MILVERTON
Perhaps it may suit the Minister if I say what I want to say now, because I understand he wishes to reply. I was anxious not to speak on the first and second Amendments because, although I am not out of sympathy in any way with them, I wanted to present to the Committee the case of the watch committees of the municipal corporations, who feel very strongly about this matter. Whereas the noble Lady's case goes the whole way, the corporations do not want to go the whole way, because they take the attitude that if the counties like the system and prefer to have it for their own affairs, that is very well, but they see no reason why this should be imposed upon them.
I must say it seems to me that the Government's mind "moves in a mysterious way" its "wonders to perform". We are told that the commissioning of magistrates to police authorities in the counties has been a 1181 striking success. And what do the Government do in this Bill in order to emphasise that? They reduce the number from one-half to one-third, which seems an extraordinary way of expressing public confidence. It seems to me that it is more than likely that the noble Lord, Lord Morrison of Lambeth, was right: that this was a compromise arrived at in 1888, and that the Government perhaps realised that they had overdone it and are slowly reducing it. In any case, that seems to me no reason why the system should be imposed upon the watch committees.
The noble Lord who just sat down talked as if, without this power of magistrates to nominate members of watch. committees, the committees would not have people with experience on the bench. I am not decrying the value of experience on the bench. Having had some myself in my earlier years, I know it teaches one a lot. But I think the noble Lord missed the entire point.
The Association of Municipal Corporations have had a survey made and at present on the average on each watch committee there are at least five members who are magistrates. But the point is that they are not there because they are magistrates, but because they have been elected in a democratic way. And surely if they are on a committee which has the responsibility of the appointment of chief constables and of financing the police in an area, it is the citizens of that area who should elect them, and a portion of the membership should not be handed over to nomination by magistrates, because these magistrates need not necessarily know the area very well. They may have to live within fifteen miles, or there may be some regulation like that, but they may have no real local knowledge.
I realise that in the Government's view a local government body can be greatly assisted by a proportion of magistrates. I would not deny that for a moment. But what I am denying, and what I think noble Lords opposite will deny, is that this is the way to do it. I have here some record of the evidence that was given before the Royal Commission and the evidence is not just the somewhat idealistic views of noble Lords opposite. The Inns of Court 1182 Conservative and Unionist Society, in their evidence, repeated the views which we are now expressing: that it was not right that persons who exercise judicial office should be associated with a police authority just because they are magistrates. The Law Society took the more extreme view that justices, because of their holding of judicial office, should not serve on watch committees, on the grounds that it is constitutionally wrong to intermingle the Judiciary and the Executive. The Association of Municipal Corporations appreciate that view, but they are not prepared to go to that length. While they feel that there is great force in that view, they do not regard the fact of being a magistrate as a bar from membership of a watch committee.
There is a possibility, too, which is not entirely negligible, that nomination might upset the political balance in matters where there is a difference of opinion, and might introduce politics where that has been singularly absent in the past. At present, watch committees represent roughly the political constitution of the borough, and the magisterial members may have political views which concur with the minority, so the natural and proper balance would be upset and, without blaming anyone unnecessarily, a political aspect might be created unnecessarily on the watch committee. That is only one of the many disadvantages which may occur.
This principle of the nomination by a small body to a body which is essentially one for elected membership cannot be pushed off easily by somewhat flippant remarks about democratic ideals. It is a system which runs through the whole of organisation in this country. We accept in our politics the fact that the man who pays the piper calls the tune, and the people who have to pay for the policing of an area are entitled, through their representatives, to have the control to which we have referred. That is why I put down Amendments Nos. 3, 4, 5 and 6, which I hope will receive some approval from your Lordships.
§ LORD DERWENT
May I first of all refer to what we may call the political hare? I entirely agree with the noble Lord, Lord Morrison of Lambeth, that I did in fact say so. I said that there 1183 was a case put forward that political people perhaps were not suitable. I said that the Government disagreed with that view, as did the Royal Commission—though I did not go as far as my noble friend Lord Milverton and say that watch committees were never political. Before I come to the main point of what the noble Lord, Lord Morrison of Lambeth, said—that I had not said why we wanted this; indeed, I had, but I shall repeat it in a moment-1 think the only separate question I particularly want to answer is the suggestion by the noble Lord, Lord Stonham, that their functions as magistrates might affect their duty on a police authority. I gather that to be what he had in mind. We have always had magistrates on police authorities, both in the counties and in the watch committees. I have never heard that suggestion made before, and there is no reason why it should arise now.
May I repeat exactly what I said before as to the reason why we want this? My noble friend Lord Hanworth has supported it in probably better words, but I would again, for the third time, use the words of the Royal Commission, and say that the Government agree with these words. It is for this reason that we think it is right to have a minority of magistrates on police authorities. But before I actually read the words, for the third and, I hope, last time, I would say to my noble friend Lord Milverton that one of the reasons why we reduced the number of magistrates on the new police authorities in the counties was that we thought it quite absurd in this day and age for people with the same responsibilities to have two quite different set-ups. it is as simple as that. May I now, for the third and last time, use the words of the Royal Commission, and say that the Government agree with every word, and it is for this reason that we are opposing these Amendments. These are the words:They"—that is, police authorities, in the counties. and watch committees—can be greatly assisted in their tasks … by the inclusion in their number of a proportion of justices. Through their judicial work magistrates have a close knowledge of police affairs and problems, and they above all people see the fruits and nature of police 1184 work. They constitute a body of publicspirited citizens whose services cannot be enlisted through the normal machinery of local government and the inclusion in the police authority of a quota from the magistracy widens the field of selection.That is the case, and I do not know how I can make it clearer. I have said it for the third time. I hope that the noble Lord, Lord Morrison of Lambeth now understands what I mean. I still ask your Lordships not to accept these Amendments.
§ LORD WILLIS
May I ask the noble Lord a question? The Royal Commission mentioned a quota. Why is the quota fixed at one-third? Why not one-tenth or one-twentieth?
§ LORD DERWENT
Quite truthfully, we are accepting the recommendations of the Royal Commission, and I would ask the noble Lord: Why not one-third?
§ LORD WILLIS
Because it seems to be far too many and undemocratic. By getting one-third in, as was said by my noble friend Lord Longford, you can unbalance the democratic procedure of the watch committee. To get an outside point of view from a magistrate you do not need ten; you could do it with two.
§ LORD DERWENT
The Royal Commission thought that this was a suitable proportion, and we have no reason to disagree with them.
§ BARONESS WOOTTON OF ABINGER
I have some difficulty in replying to this debate, because of the total absence of any concrete, positive arguments put forward in opposition. I think the only noble Lord who had a positive contribution to make was the noble Lord, Lord Raglan. His argument, that were magistrates not to be included on the police authority the police authority might have been deprived of his services, is one which we indeed appreciate; and it perhaps answers the question put by my noble friend Lord Morrison of Lambeth as to what is the particular charm of magistrates. The particular charm of magistrates can be seen opposite in the person of the noble Lord, Lord Raglan. Unfortunately, or fortunately, we do not decide these great issues on personal questions. The problem which the noble Lord, Lord Raglan, put forward, could, of 1185 course, be resolved if he were to offer himself for election to a local authority, in which case, even without superannuation, he might—
§ BARONESS WOOTTON OF ABINGER
Then the answer is in the noble Lord's hands. It is true that magistrates have certain special experience but not all special experience is perhaps relevant or particularly desirable. They have a close knowledge of police affairs, as the Royal Commission said, and they "see the fruits and nature of police work". But they see it from a rather specialised angle, and I think it would be unfortunate if we were to give an ex-officio recognition, up to the extent of one-third, to persons who have this particular angle on police work.
It is also true that magistrates do not always have close contact with the areas which they serve, and there are often good and cogent reasons why their contact should not be too close. It is possible, in certain areas (and all magistrates are, I think, aware of this), that they may he embarrassed by the closeness of their knowledge. This is surely an argument why their experience should be treated as being of a rather special character which may have a place when some individuals combine the functions of councillor and magistrate, but is not, in days when there are elected councils, appropriate to their being given an ex-officio position. One might as well argue that magistrates should be ex-officio members of children's committees because of what they see in the work they do in juvenile courts.
§ We come back to the fact that this is really a historical survival. It is a survival from days when there were no county councils and no elected local authorities, and when all the duties of local administration were conducted and discharged by magistrates. I can only say that I found the attempt by the noble Lord, Lord Derwent, to defend this proposal best described by words used by the Royal Commission in another context—namely that I found his arguments "more theoretical than real". I waited anxiously for him to put forward some positive argument, but none was forthcoming. It is true that we had a little discussion about the nature of democracy, and some misunderstanding. The noble Lord seemed to be a little surprised that we on this side think that a democratic appointment is an appointment which is the result of election. It is perhaps understandable that the noble Lord, speaking for the Party in office, should find that theory a little obscure, since, as recent history has perhaps shown, there are differences in practice, I think, between the Government and the Opposition in the use which they make of democratic machinery within their own organisations.
§ But the relevant issue is surely that here we have a historical survival: that those who used to discharge all the functions of local administration, who are now specialised in a judicial capacity, should still have carved out for them a place, though a minority place, ex officio, on what are, basically, democratically elected bodies.
§ 4.50 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 23; Not-Contents, 69.1187
|Addison, V.||Hobson, L.||Stonham, L.|
|Amwell, L.||Latham, L.||Summerskill, B.|
|Burden, L. Teller.||Longford, E.||Taylor, L.|
|Champion, L. [Teller.]||Milverton, L.||Williams, L.|
|Crook, L.||Morrison of Lambeth, L.||Williamson, L.|
|Douglas of Barloch, L.||Shepherd, L.||Willis, L.|
|Harvey of Tasburgh, L.||Silkin, L.||Wootton of Abinger, B.|
|Henderson, L.||Somers, L.|
|Albemarle, E.||Bossom, L.||Carrington, L.|
|Amherst of Hackney, L.||Boston, L.||Conesford, L.|
|Auckland, L.||Bradford, E.||Cottesloe, L.|
|Balerno, L.||Burton, L.||Crathome, L.|
|Daventry, V.||Grenfell, L.||Meston, L.|
|Denham, L.||Guest, L.||Monsell, V.|
|Derwent, L.||Hanworth, V.||Montgomery of Alamein, V.|
|Dilhorne, L. (L. Chancellor.)||Hawke, L.||Mottistone, L.|
|Dudley, E.||Horsbrugh, B.||Ogmore, L.|
|Dundee, E.||Howard of Glossop, L.||Raglan, L.|
|Ebbisham, L.||Iddesleigh, E.||Rathcavan, L.|
|Eccles, V.||Ilford, L.||Rea, L.|
|Egremont, L.||Jessel, L.||St. Aldwyn, E. [Teller.]|
|Elliot of Harwood, B.||Killearn, L.||St. Just, L.|
|Falmouth, V.||Lambert, V.||Salisbury, M.|
|Ferrers, E.||Lansdowne, M.||Sandys, L.|
|Forster of Harraby, L.||Lothian, M.||Sandwich, E.|
|Fortescue, E.||McCorquodale of Newton, L.||Stonehaven, V.|
|Fraser of Lonsdale, L.||Mancroft, L.||Swinton, E.|
|Fraser of North Cape, L.||Mar and Kellie, E.||Tenby, V.|
|Gage, V.||Massereene and Ferrard, V.||Tweedsmuir, L.|
|Goschen, V. [Teller.]||Merrivale, L.||Waleran, L.|
|Greenway, L.||Merthyr, L.||Wolverton, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ BARONESS WOOTTON OF ABINGER moved, in subsection (3), to leave out "persons" and insert "members of the council". The noble Baroness said: I do not propose to repeat the arguments of principle about the wisdom or unwisdom of magistrates serving on police authorities. Amendment No. 3, however, goes rather further than Amendment No. 1, which your Lordships have rejected, and which was designed to change the status quo in the sense that it was designed to remove magistrates from a position which they already occupy. It is understandable that your Lordships' House and this Committee tend to be a little tender towards the status quo, but the arguments for not adding magistrates to a position which they do not hold are even stronger than those for removing them from a position which they already occupy.
§ It is a fact that there are many existing institutions in this country the abolition of which might be viewed by many with regret, but of which it is equally true to say—and the Committee must be well aware of this—that no one would suggest inventing them at the present time. Members of your Lordships' House have good reason to be aware of the truth of that proposition. This Amendment proposes to veto the Government suggestion that on the watch committees, where magistrates at present have no ex officio right to sit, they should have a right parallel to that which they will have in the county police authorities. The argument here is stronger because it is not an argument, as it were, for maintaining the 1188 status quo; it is an argument against making a definitely undemocratic change, a new change in an undemocratic direction, to add the non-elected magistrates in the borough police authorities where at present they have no official right to sit. I beg to move.
Page 2, line 15, leave out ("persons") and insert ("members of the council").—(Baroness Wootton of A binger.)
§ LORD MILVERTON
I wish to say just one word in support of this Amendment, which is also one of mine. In another part of the Royal Commission Report they said that anything which tended to confuse in the public mind the duties and position of the Judiciary and the watch committees should be avoided. That confusion, among other things, is what this Amendment is trying to remedy.
§ LORD DERWENT
I, too, will not go into a long speech again but, really, from the Government point of view, this is much the same as the earlier Amendment, where I was very careful to talk about police authorities. I have the point which the noble Baroness raises, but, in our view, this will help all police authorities to have a little—I was almost going to say fresh air, but that would be rude, but some assistance from an outside source, who will be in a minority and will help the police authorities. Furthermore, we think, as I have already said, that the time has come when we ought not to have a variety of police authorities all over the country in so far as the authorities' composition is concerned. So I am afraid I must resist this Amendment, too.
§ BARONESS WOOTTON OF ABINGER
The Minister's argument seems to be that if you have made a mistake in the past in one respect, it is better to duplicate it rather than undo it.
§ LORD MORRISON OF LAMBETH
May I add to that? Never let the anti-Socialists say in future that the Socialists want to make everybody alike. This Government want to make every-
§ Clause 2 agreed to.
§ Clause 3 agreed to.
§ Clause 4:
§ General functions of police authorities
§ 4.—(1) It shall be the duty of the police authority for every police area for which a police force is required to be maintained by section 1 of this Act to secure the maintenance of an adequate and efficient police force for the area, and to exercise for that purpose the powers conferred on a police authority by this Act.
§ (3) The police authority for any such police area may, subject to the consent of the Secretary of State, provide and maintain such1190
§ 5.4 p.m.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 23; Not-Contents, 65.1189
|Addison, V.||Henderson, L.||Somers, L.|
|Amwell, L.||Hobson, L.||Stonham, L.|
|Burden, L. [Teller.]||Lindgren, L.||Summerskill, B.|
|Champion, L. [Teller.]||Longford, E.||Williams, L.|
|Colwyn, L.||Milverton, L.||Williamson, L.|
|Crook, L.||Morrison of Lambeth, L.||Willis, L.|
|Douglas of Barloch, L.||Shepherd, L.||Wootton of Abinger, B.|
|Gardiner, L.||Silkin, L.|
|Albemarle, E.||Fortescue, E.||Massereene and Ferrard, V.|
|Amherst of Hackney, L.||Fraser of Lonsdale, L.||Merrivale, L.|
|Auckland, L.||Fraser of North Cape, L.||Merthyr, L.|
|Balerno, L.||Gage, V.||Molson, L.|
|Bossom, L.||Goschen, V. [Teller.]||Monsell, V.|
|Boston, L.||Greenway, L.||Montgomery of Alamein, V.|
|Bradford, E.||Grenfell, L.||Ogmore, L.|
|Burton, L.||Hanworth, V.||Raglan, L.|
|Carrington, L.||Hastings, L.||Rea, L.|
|Conesford, L.||Hawke, L.||St. Aldwyn, E. [Teller.]|
|Cowley, E.||Horsbrugh, B.||St. Just, L.|
|Crathorne, L.||Howard of Glossop, L.||Sandwich, E.|
|Daventry, V.||Iddesleigh, E.||Sandys, L.|
|Derwent, L.||Ilford, L.||Stonehaven, V.|
|Dundee, E.||Lansdowne, M.||Strathcarron, L.|
|Ebbisham, L.||Long, V.||Swinton, E.|
|Eccles, V.||Lothian, M.||Tenby, V.|
|Egremont, L.||McCorquodale of Newton, L.||Tweedsmuir, L.|
|Elliot of Harwood, B.||McNair, L.||Twining, L.|
|Falmouth, V.||Mancroft, L.||Waleran, L.|
|Ferrers, E.||Mansfield, E.||Wolverton, L.|
|Forster of Harraby, L.||Mar and Kellie, E.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ buildings, structures and premises, and make such alterations in any buildings, structures or premises already provided, as may be required for police purposes of the area.
§ 5.15 p.m.
§ LORD MILVERTON moved, in subsection (1), to leave out "maintenance of an adequate and efficient police force for" and to insert "efficient policing of." The noble Lord said: I should like to discuss with this Amendment, Amendments Nos. 13 and 14, to Clause 5. The Home Secretary said in the Second Reading debate in another place that the effect of Clauses 4 and 5 was to preserve largely intact the present functions of the police authority. He went on to say that he fully understood the anxiety 1191 of the local authorities that the law should not be changed in such a way as to diminish the importance of the police authorities' functions. He also said that the Bill did not give the police authority power to issue instructions to the chief constable, but that the authority had not that power now. These are statements which I submit have not the force of law behind them, though they have been widely asserted without supporting argument. One could go into a long dissertation on why, on voting legal authorities of some importance, the Home Secretary's stated view does not seem to be correct. But perhaps it is better to eschew argument about what the law is, while making it clear that the law, as understood by the Home Secretary, is not beyond dispute.
§ It is not suggested that the power to give instructions to chief constables on general matters of policy is ever likely to be used to any great extent. If it ever were used by an authority, the deduction to be drawn would be either that the chief constable was unfit to hold his post or that the watch committee were unfit to represent the electors of the area. But there will be occasions when, for example, policy decisions about prosecutions have to be taken; and it is surely right that, as in other matters of local concern, elected persons responsible and responsive to the public, rather than an officer acting in his own right, should make the decision.
An example which springs to mind is prosecutions policy which was recently —and may be still, for all I know—in operation at Manchester regarding importuning by men. While establishments remain unfilled, all branches of the criminal law cannot be enforced with equal vigour, especially in large towns, and if there is to be a drive against importuning, or indeed if this branch of the law is to be enforced less rigorously than others, then the decision surely should be that of, or at least subject to review by, the watch committee. The Reverend Basil Higginson, writing in the Guardian on September 5, 1963, put the matter in a nutshell in the concluding sentence of his letter when he said:
If the Watch Committee do not control such decisions why have a Watch Committee at all?
§ The Royal Commission said that it was necessary to put an end to the anomaly that a police authority appears to have responsibilities for the efficient operational policing of its area and yet has not technical competence in the matter and no adequate system of inspection. There is, in fact, no more of an anomaly here than in any other department of local government. Local authorities obtain the advice they need on technical matters in the field of public health, housing and so on, just as in the case of the police. It is not enough for the Home Secretary to say, in reply to this point of view, as he did in another place on Second Reading, that if discussions between the chief constable and the watch committee resulted in such persistent disagreement that the efficiency of the force seemed in question, then it would be the duty of the authority to set in motion machinery for requiring the chief constable to retire, subject to the Home Secretary's approval.
§ It is by no means certain that the police authority will be in a position to ascertain whether or not the chief constable is efficient or, indeed, whether efficiency is the sole criterion. While there is power under Clause 12 to require reports from the chief constable, if the subject matter is such that it appears to the chief constable that a report is not needed for the discharge of the functions of the police authority the chief constable may request the authority to refer the requirement to the Secretary of State, and it would be for the latter to decide whether a report should be given to the police authority.
§ Moreover, even though the police authority are to be responsible for maintaining an efficient police force, it seems doubtful whether the types of occasion when a police authority might properly wish to give a chief constable directions are such that refusal to follow such instructions could be held to be inefficiency on the part of the chief constable in directing and controlling the force. For example, if a watch committee formed the view that their force had acted with unnecessary violence in dealing with a political demonstration, this is not to say that the demonstration has not been dealt with efficiently—indeed, the criticism might very well be 1193 that it had been dealt with only too efficiently
§ Then it would be difficult to prove inefficiency if with a limited force at his disposal, and against the wishes of the authority, the chief constable decided to concentrate on one branch of the criminal law rather than on another. This is necessarily a matter for discretion, as is the manner of handling a demonstration. The basic question at issue is: in whom shall the discretion reside? As Clauses 4 and 5 stand, it clearly resides in the chief constable, and it is far from clear that, even in the last resort, the police authority will have any power of control.
§ The effect of these Amendments would be to remove the restriction on the police authority's oversight of operational and administrative matters, and to put the chief constable under the general direction of the police authority in this respect. The word "general" must be emphasised because there is no wish to take power obviously to enable police authorities to intervene in specific prosecutions or inquiries. That, everybody would agree, I think, would he quite wrong. Admittedly, a watch committee may use their powers mistakenly. But so may a chief constable, and it is one of the advantages, surely, of representative government that errors in matters which concern the liberty of the individual are less likely to be made, and prejudices less likely to be felt, when a number of persons acting in committee, but properly advised, are responsible for a decision rather than one individual.
§ And watch committees, or individual members, can be dismissed from office without any right of appeal. In the last resort, the elected representatives should have final control over all their chief officers in the carrying out of local authority functions, and this includes policing. In the ordinary way, watch committees will need to do no more than review from time to time policy, the execution of which is normally the responsibility of the chief constable. Similarly, the health committee would be unlikely to wish to do more than review, as occasion demands, the way in which, for example, the responsibility for inspecting unfit houses is discharged. It is good administrative practice that deters local authorities from using their powers to control detail as a general rule. The same situation should 1194 surely prevail in the case of the police—as it has done up to now—if the principles of accountability in representative government are to be maintained and the powers of an individual over the freedom of his fellow men are to be properly controlled. These Amendments were drafted accordingly. I beg to move the first of them.
Page 3, line 30, leave out from ("the") to ("the") in line 31 and insert ("efficient policing of").—(Lord Milverton.)
§ LORD DERWENT
As my noble friend has said, this Amendment must be read in conjunction with Amendment No. 13 if one is to find the intention behind it. The effect of this particular Amendment would be to place a duty on a police authority to secure the efficient policing of the area. This is not a minor Amendment but one of fundamental importance. The duty laid on a police authority by subsection (1), which isto secure the maintenance of an adequate and efficient police force for the area",would be deleted by the Amendment. Whatever may be said for adding to the statutory duties of a police authority in regard to the policing of the area, it will surely be rather strange to leave to implication the primary duty of securing an adequate and efficient police force. Quite apart from that, in our view this is fundamentally the wrong attitude to adopt towards this set-up.
In the Government's view, the Bill strikes the right balance—and it is a balance—on the one hand, between proper local concern for the provision of an efficient police force and, on the other hand, the need to safeguard the chief constable and members of the force from improper local interference in the duty of law enforcement. It is the chief constable who has the primary responsibility for policing the area efficiently. The responsibility of the police authority is to provide an adequate and efficient force, and if it sees—this is important, because this is fundamental to the whole balance of the Bill—that it is not being used efficiently (and this is not only its own view of the matter, but is the advice of Her Majesty's Inspectors of Constabulary who are always visiting), after informing itself by way of the reports for which it has a right to call from the chief constable, it can in the last resort also 1195 consider the use of its reserve power to tell the chief constable to go.
That is the division of responsibility. There is no question of proving that the chief constable is inefficient, but that the force is being inefficiently administered. If a formal responsibility for the efficient policing of the area is to be placed on the police authority, the authority would be encouraged—there have been authorities who have not needed much encouragement—to issue directions to the chief constable as to the disposition of the force, which is not its proper function. It is right and proper that a police authority should see to it that there continues to be an adequate and efficient police force for its area; but it would, in the Government's view, be wholly wrong to write into the Bill any suggestion that it was in some way responsible for the day-to-day operations of the police force. If the Amendment were carried, that is exactly what would result.
I did not quite understand what my noble friend was saying about Manchester and prosecution, and what a local authority might want to do about prosecutions. Let us be quite clear on this point. Parliament makes laws and local authorities make by-laws, and so on, and it is the responsibility of the chief constable to see that these laws are kept by the general public. But in no circumstances whatever is it the job of a local authority to say who should or should not be prosecuted. That is what it seemed to me my noble friend was saying. We cannot have that sort of thing creeping in.
In spite of what my noble friend says, the intention of the Bill as drafted is to leave undisturbed what we believe to be the existing relationships between police authorities and chief constables. A police authority will have a duty, as to-day, to inform itself about the policing of the area—so long as it does not seek to interfere with the day-to-day running, the operational responsibilities of the chief constable. In the Government's view—and we have taken good advice on this—a police authority has never had power to give general directions to the chief constable, and the better police authorities have never even attempted to issue such directions. It is essential to preserve the police force as a "neutral" body concerned with the impartial en 1196 forcement of the law, and it makes it inadvisable and undesirable that a police authority should have powers of direction. If these two Amendments were accepted. the local authority would have power of direction over day-to-day running and might even, as my noble friend hinted, try to influence prosecutions. I must ask your Lordships not to accept this Amendment.
THE EARL OF MANSFIELD
These Amendments, however well-intentioned, would wreck both the efficiency, and probably to some extent the discipline, of any police force. I can speak with some authority on this point, having been Chairman of the Police Committee of the combined counties of Perthshire and Kinross-shire for a considerable number of years. The chairman of any police committee from time to time, and now I am afraid with increasing frequency, receives requests, in some cases amounting to preremptory demands, from various local people that various things shall be done in their particular neighbourhood, or sometimes even generally, in connection with the police. Districts will ask for more police; they will ask that roads should be patrolled to prevent petty local crime; most of all they will ask for more police cars and police traps to be set up to curb the activities of the all-too-numerous inconsiderate and unscrupulous motorists.
All such questions, if not absolutely per se ridiculous, are solved by consultation with the chief constable, if there is any merit in them whatsoever. But it would put the chief constable in an absolutely impossible position if his local police authority were to say to him: "You shall move a police constable to such-and-such a place. You will patrol such-and-such a road. You will in fact carry out the efficient running of your force according to the dictates of people who very often are swayed entirely by local considerations, and often electoral ones". For these reasons, I hope your Lordships will most emphatically reject an Amendment which will do no good and in fact do a great deal of harm.
§ BARONESS WOOTTON OF ABINGER
We seem to be getting into rather a curious situation. It may be possible to explain it to the Committee or to any very sophisticated audience, but it 1197 is going to be extraordinarily difficult to explain it to anyone outside. In this Bill we are constituting police authorities. The natural question which follows is, what is a police authority for? But when it is suggested that the police authority exists to secure the efficient policing of its own area, the Minister holds up his hands in horror and says that to lay that duty on the police authority would be entirely wrong. The argument is simply that the police authority is to exist to inform itself. It seems to be a self-educative body rather than a body which is to act as an authority. If that is the situation, then it is surely gravely misnamed. Let it have some name other than "authority", since its one function is not to exercise authority in the sphere which, apparently, it exists to control. The Minister was obliged in the end to fall back on the argument that the police authority has never exercised this power, and apparently that was his concluding card—that if a thing has never happened (and we understand the point of view of the Government), then obviously it ought never to happen.
§ LORD DERWENT
May I speak again? I cannot let that particular speech go by. What has happened in times past is that there has been doubt in some minds, and only in certain quarters, as to the respective division of responsibility as between the standing joint committees and, in particular, the watch committees and their chief constables. Nothing is being altered by this Bill in that particular connection. It is being spelled out. For the noble Baroness at this stage to say that she does not understand that the police authority have a duty, which is laid down in the Bill, to see that they have an efficient police force, but that the day-to-day running of the force is the responsibility of the chief constable—
§ LORD DERWENT
May I first finish what I am saying? I cannot understand how she can state that she does not understand that the responsibility for the day-to-day running belongs to the chief constable and not to the authority.
§ LORD DERWENT
The noble Baroness implied it. If she was not referring to day-to-day running, I am afraid I do not know to what she was referring.
§ On Question, Amendment negatived.
§ 5.38 p.m.
§ LORD STONHAM moved in subsection (3), to leave out "may" and insert "shall". The noble Lord said: I hope it will suit the convenience of the Committee if I discuss with this Amendment Amendments Nos. 11 and 12, which are on precisely the same point although they deal with different powers. I suppose it is the case that one rarely has a Bill of substance in which at least one Amendment is not moved during Committee stage with the object of making powers mandatory instead of permissive. I must confess that frequently I have listened to such discussions and could not see much in them. However, on the three points now raised, it is difficult to understand why the Government are leaving these powers as permissive and not making them mandatory or compulsory.
The three subsections to which I have referred state that the police authority
may … provide and maintain such buildings, structures and premises … as may be required for police purposes …".
Then they state that it
may … provide and maintain such vehicles, apparatus, clothing and other equipment as may be required for police purposes",
and then go on to state that it
may … make arrangements … for the use … of the services of officers … and the making of contracts and payments".
§ I should have thought in regard to all these powers that it was absolutely imperative that they should be exercised by the police authority. There is no "may" about it, because if these powers are not exercised, then there will be no police force in the area, or at least it will not be housed or clothed or paid—and certainly then there would not be a police force.
§ What makes the choice of the word "may" in the three subsections I have quoted even more extraordinary is that the other subsections in this part of the Bill simply bristle with the use of the word "shall": for example, that it "shall" be the duty of the police authority to secure the maintenance of 1199 an adequate and efficient police force; that it "shall"be the duty of the police authority to appoint the chief constable and decide the number of persons of each rank which will constitute the establishment of the force; that the police force "shall" be under the control of the chief constable; that the chief constable "shall" retire when the police authority say so; that there "shall" be a deputy chief constable, and that police authorities "shall" give a chief constable a chance to make representations before they sack him. Even the Home Secretary is not left out. He is told that he "shall" not approve the appointment, as first chief constable of a combined force, of anyone other than the chief constable of a force which ceases to exist. There is no limit to the "shalls".
§ I absolutely agree with every one of those which I have read out. They are all perfectly right and proper. It therefore seems all the more extraordinary that these really important and necessary powers in subsections (3), (4) and (5) of Clause 4 should be permissive and not mandatory. Surely, a police authority must maintain a police force, must appoint its head, must decide the size of it and the ranks. It must also provide and maintain buildings, it must clothe and equip the force, and it must pay that force. In order to make sure that all these things are done, I submit that in each of these three subsections it is necessary to delete the word "may" and insert the word "shall". I beg to move.
Page 3, line 39, leave out ("may") and insert ("shall").—(Lord Stonham.)
§ LORD DERWENT
Perhaps it would be better if I spoke first, before there is further discussion, because this is a highly technical subject. The speech which has just been made by the noble Lord, Lord Stonham, was almost word for word the speech I made to my advisers at the Home Office when I first saw the clause.
§ LORD STONHAM
The noble Lord will at least make it clear that I never heard nor read that speech, and, such as it is, the speech is entirely my own.
§ LORD DERWENT
What I mean is that when I first looked at the clause I was entirely on the same side as the 1200 noble Lord is now. I hope I can explain the difference in this difficult problem of "shall" and "may". In brief, in dealing with this clause, subsections (1) and (2) lay down a duty, something that must be done, and subsections (3), (4) and (5) empower the doing of certain things. It is customary, I am informed by the draftsmen—and I am not a Parliamentary draftsman—in nearly all legislation to use the two words "shall" and "may" in this way. When there is a duty imposed which does not leave anything to the imagination, as it were, we use the word ' "shall" and otherwise we use the word "may". It may be (I shall come on to the other subsections in a minute) that noble Lords opposite are feeling rather worried about whether a police authority could, in fact, avoid doing its duty under these subsections. In fact, they must be read in conjunction with subsection (1), because it is its duty under subsection (1) to secure the maintenance of an adequate and efficient police force. So that is the saving clause covering the later ones where the word "may" is used, because if it carries out its duty under subsection (1) then it must use the powers that are available in the later subsections.
The difficulty is this—and I know it is difficult to explain because it is highly technical. Subsection (3), for example, is worded in this way—as may be required for police purposes of the area.But if we are going to make it a duty we must for drafting purposes, apparently, itemise the exact duties and say who decides what buildings do this, that and the other. This is the normal method of drafting. Of course, when we come, to subsection (5) (I know it sounds complicated, but this is difficult for me, too) the substitution of "shall" for "may" would be quite clearly wrong. The subsection, which follows the existing law, confers a genuine discretion on combined police authorities to make arrangements for using the staff and facilities of the constituent authorities. They do not have to do it. Combined police authorities will very often have their own staff and services. So in subsection (5) "may" is correct. I do not think I have made myself clear.
§ LORD DERWENT
I can only say that I understand this is the normal practice in drafting. When there is a duty the word is "shall", and when you are giving powers with some discretion as to how they shall be used, the word is "may". I really cannot explain it any more clearly than that; that is how it is.
§ BARONESS WOOTTON OF ABINGER
The noble Lord will agree, I am sure, that although Statutes are written in Parliamentary English, it is the intention that they shall be written in English. I think the noble Lord will also agree that the word "may" is permissive, and that it therefore implies that a thing either may be done or may not be done. One of the best tests for seeing whether "may" or "shall" is the right word, is to substitute" need not" for "may". If we were to substitute "need not" for "may" in this Bill we should, indeed, get a very curious situation. We should be in the position of saying that the police authorities may, but need not, provide such buildings as are required for police purposes; a police authority may, but need not, maintain such vehicles and apparatus as are required for police purposes. It seems very odd that a permissive word is used, and the Minister rather gave the game away at the end, when he said that "may" is used when there is discretion. It seems odd that a permissive word is used for circumstances when it would be disastrous if the power were not exercised, when a police authority would not be carrying out the function which it is apparently created to perform.
§ LORD DERWENT
May I go one stage further—and probably get even more muddled? If the noble Lady will look at subsection (3), she will see that the point is really this. It gives authorities discretion as to what they do as regards alteration of buildings, and so on. They have a discretion as to whether they do it, if the buildings are required for police purposes, provided that they have an efficient police force. I am not a draftsman, but I am told this is correct.
§ 5.46 p.m.
The EARL OF MANSFIELD
While agreeing with the noble Lord, Lord Derwent, that the word "shall" would be unsuitable in subsection (5), I must 1202 say that the reasons for its not being put in the other two subsections (3) and (4), as stated by the Parliamentary draftsmen, appear to me to come out of Alice in Wonderland. I really do not think we ought to pay too much attention to these draftsmen. After all, they are the people who provide us with the raw material for most of the work that we do here in putting their mistakes right.
I am in entire agreement with the noble Lady opposite in regard to the question of the maintenance and provision of buildings. I would point out that, if this clause goes through unchanged, a parsimonious local authority would, apparently, be able to neglect its duties in the provision and maintenance of such buildings. The noble Lord, Lord Derwent, tried to avoid that one by referring to subsection (1), and saying that they would have to secure the maintenance of an adequate and efficient police force in the area. But he omitted to state what the machinery would be for bringing them into line if they did not so do. A local authority which wanted to save money on its rates—and I can assure the noble Lord that, unfortunately, there are quite a few of them which do so where police forces are concerned—would simply sit back and say, "This is permissive. We need not provide any more new houses for policemen." I think the noble Lord would agree that police housing is one of the most burning questions at the present time, and we very seldom get enough money out of the Treasury for the purpose. At the same time, they could refuse to renew police uniforms, overcoats and boots at reasonable periods.
In regard to both of these subsections, I cannot see that there is any justification whatever for their being made permissive rather than mandatory. If a police force is to be efficient it must have efficient buildings and efficient equipment, and they are not going to be provided for if these subsections go through unchanged.
§ LORD FORSTER OF HARRABY
If we substitute the word "shall" for the word "may", will it not make rather nonsense of "subject to the consent of 1203 the Secretary of State"? I thought, in view of the words "subject to the consent of the Secretary of State", "may" was made necessary by the qualification added.
§ THE EARL OF LONGFORD
Is that point valid? In subsection (2) we have the words, "shall, subject to the approval of the Secretary of State", so that particular point hardly arises.
§ LORD FORSTER OF HARRABY
I agree; and the same position arises if you strike out from this subsection the words, "subject to the consent of the Secretary of State". If you are going to make it mandatory, you do not require those words to be there.
§ THE EARL OF LONGFORD
I am sorry, but I did not quite follow the noble Lord. I was pointing out that in this respect subsections (2) and (3) are on the same footing: in each case the authority's action is subject to the approval of the Secretary of State. But I would ask the noble Lord, Lord Derwent, whether he is happy to come down here, as the Minister, and give us this explanation. Is it really quite good enough? After all, we are supposed to be talking English. I do not think it is enough to say that the draftsmen decree that the word "may", when used in this way, is to have a certain meaning. Are not we ourselves in charge of the use of the English language? Must we accept this dictation? Is it not rather an insult to our intelligence (I know the noble Lord would be the last person who would wish to do that) to say that we must accept this because the Parliamentary draftsmen prefer this extraordinary use of the English language?
THE EARL OF MANSFIELD
Before the noble Lord replies, might I say one more word on the question of the consent of the Secretary of State? The consent of the Secretary of State would, of course, be withheld if any proposed building or alteration, or any provision of equipment, were held to be unreasonable or extravagant, either through this situation or per se. But there is nothing whatever in these clauses to say that the Secretary of State is in a position to compel a mean local authority to do its duty.
§ LORD DERWENT
May I try once more? I am glad to see the noble Lord, Lord Silkin, in his place, for he might be able to help me. I will promise to have another look at this point if the Amendment is withdrawn. I have had these arguments before. Perhaps we may put it in slightly different words, as to what is the case for the Parliamentary draftsmen, who, in my view, are right. "May" is appropriate where we are concerned with a power exercisable as the circumstances may require, which in fact is what they say. In subsections (1) and (2) we are concerned purely with a duty, and therefore the correct word is "shall"; but the other subsections are giving powers which are exercisable as circumstances may require, and it is customary then in draftsmanship to use the word "may". I will, of course, take it back, in view of what your Lordships have said, but I am told that this is how it usually works out. If the noble Lord, Lord Silkin, can give me any help in the matter, I should be most grateful.
§ LORD SILKIN
Since I am appealed to, and not having heard any of the arguments either way, I would not altogether accept the noble Lord's statement as to the uses of the words "may" and "shall". The word "shall", of course, is used where it is intended that it should be a direction: the word "may" is used where it is intended that there should be an option, a discretion. As I understand it, the purpose of my noble friend's Amendment is that it should be a direction rather than that it should be optional on the part of the authority. This seems to me a perfectly clear issue. I do not think my noble friends are raising a legalistic issue. They are raising a point of substance. They want it to be a duty rather than to make it discretionary; and if that is the point on which the noble Lord is going to seek further advice, I think he may get some.
§ LORD DERWENT
I am very grateful to the noble Lord. I wanted a good legal opinion. If the noble Lord, Lord Stonham, will withdraw this Amendment, I promise to take it back and have another look at it. If it needs altering, I will put down an Amendment for the next stage of the Bill. If we think it does not need altering, I 1205 will let him know why, and he can do what he thinks appropriate.
§ LORD STONHAM
I am most grateful to the noble Lord, Lord Derwent, for that offer, which of course I accept with the greatest alacrity. In fact, I would have invited him to take that course, but he has relieved me of that responsibility. May I say this, however, before asking the leave of the Committee to withdraw the Amendment on that understanding? These three Amendments positively leapt at me when I read the Bill, and my notes on them have been written while sitting on this Bench this afternoon; so it is a ready-made case. What is more, it is quite obvious from the debate that they have appealed to other noble Lords in exactly the same way.
But I think the most compelling argument of all is that the noble Lord, Lord Derwent, indicated that when he read this passage he thought exactly the same as I did, but that when he walked into his office the "boys" blinded him with science: he did not quite understand what it meant, but he knew they were right. I would ask him to go back in the certainty that if he and I, and apparently most other noble Lords here, do not understand why this is right, it is a virtual certainty that the police authorities who will have to interpret it will not understand it, either. The result will be that we shall run the risk, as the noble Earl, Lord Mansfield, has said, of having some police authorities using these subsections, in the way they are at present worded, as an excuse for not doing their duty properly. That is certainly a possibility, and I therefore hope the noble Lord will consider those points. With that, and with his assurance, which I gratefully accept, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clause 5:
§ Chief constables
§ (4) Without prejudice to any regulations under Part II of this Act or under the Police Pensions Act 1948, the police authority, acting with the approval of the Secretary of State, may call upon the chief constable to retire in the interests of efficiency.1206
§ 5.58 p.m.
LORD MILVERTON moved, in subsection (4), to leave out
in the interests of efficiency".
The noble Lord said: Although the form of this Amendment sounds rather curious, it has, I think, a very good reason behind it. Subsection (4) of Clause 5 derives from a recommendation of the Royal Commission, in paragraph 180 of their Report, that
arrangements … be introduced to enable a police authority to retire a chief constable in whom it has lost confidence".
This recommendation derived from a suggestion made to the Commission by the Association of Municipal Corporations referred to in the previous paragraph of the Royal Commission's Report, that it was inappropriate that a chief constable should be retired under Regulation 52 of the Police Pensions Regulations, 1955 (which is now Regulation 60 of the Police Pensions Regulations, 1962), because under this regulation the authority had to pass a resolution referring, to inefficiency, which would attract undesirable publicity.
§ It will be seen that the subsection in its present form does not appear to meet this objection, the force of which was recognised by the Royal Commission, because it would appear that the police authority's resolution would have to refer to "the interests of efficiency". What the Association had in mind was that the police authority should have the right to invite the Secretary of State to put a chief constable on the retired list, as is done in the Armed Services, and that this should be accepted generally as a retirement with credit and distinction. If it were necessary to pass a resolution referring to the interests of efficiency, this would necessarily throw doubt on the high regard in which a chief constable had been held by the police authority.
§ In these circumstances, it is suggested that the words "in the interests of efficiency" should be left out altogether. The Amendment provides for just that. It is difficult to suggest an alternative form of words. The Committee may he prepared to accept that it should be left entirely to the discretion of the police authority as to the circumstances in which they can call upon a chief constable to retire, having regard to the fact that the approval of the Secretary 1207 of State is necessary before the subsection can be brought into effect and a safeguard for the chief constable is thus provided.
The matter was raised in Committee in another place and the Home Secretary said:
It is not a question of proving that the man himself is inefficient but a question of deciding whether or not in the interests of efficiency there should be a change at the head of the force.
This is not disputed; but the Home Secretary's words apply equally to the operation of Regulation 60 of Police Pensions Regulations. What is needed is a provision for retirement which excludes altogether this reference to inefficiency. The chief constable's reputation is bound to be called in question, even though his personal efficiency is, strictly speaking, not the relevant consideration. It seems to me that the point the Home Secretary made is a little too subtle for public opinion. I beg to move.
Page 4, line 25, leave out ("in the interests of efficiency").—(Lord Milverton.)
§ LORD DERWENT
The effect of this Amendment would be that a police authority would have a general power to retire its chief constable, subject to the Secretary of State's approval, whether the retirement was in the interests of efficiency or not. In view of the quasi-independent character of the office of chief constable, and of the functions he exercises, it is important to define closely the circumstances in which he may be retired. Compulsory retirement on the grounds of age or ill-health is dealt with in the Police Pensions Regulations. This is both in the general interest and a reasonable protection for the chief constable himself, since his independent functions make him especially liable to victimisation. Under the Bill a chief constable can be removed from office under the Disciplinary Code if he commits an offence against discipline and under this clause if his retirement is in the interests of efficiency.
We come to what my noble friend has called the Home Secretary's remarks, which he said were "a little too subtle". But are they really? I shall repeat the sense of them. It is worth noting that a 1208 chief constable has not himself to be positively inefficient before he can be retired; but he could be retired, under this clause, in the interests of efficiency; that is, the efficiency of the force. If a chief constable has neither misconducted himself nor put himself in a situation where his retirement would be in the interests of efficiency, what reasonable ground would there be for suggesting that he should be removed from office, other than on grounds of age or ill-health? It would be quite wrong if he could be removed merely because there was a degree of incompatibility between him and the police authority—something which fell short of ill-discipline or inefficiency.
The emphasis in Clause 5(4) on the retirement being in the interests of efficiency ties in with the duty of the police authority under Clause 4(1) with respect to the efficiency of the force. The police authority's concern is with the efficiency of the force. Therefore, I think it is right that it should have the power to retire, in the interests of efficiency, the officer charged with the direction and control of the force. But to give the police authority a general power to retire its chief constable on unspecified grounds would take it outside the duty conferred by Clause 4(1). The chief constable is not the servant or employee of the police authority, liable to removal in accordance with the terms of a contract of employment. If this Amendment is accepted we come near to re-enacting the 19th Century powers of summary dismissal which are specifically repealed by Schedule 10 to this Bill. I am afraid that I must resist this Amendment.
§ LORD SILKIN
I should like to say a word on the Amendment. I find myself largely in agreement with the noble Lord, Lord Derwent, in rejecting the Amendment. I agree that it would be giving the local authority the great power to recommend a dismissal on no specified grounds and without necessarily having to give any reason. The noble Lord, Lord Milverton, justified his Amendment on the grounds of the benefit to the chief constable; but I should have thought that, as between dismissal on the grounds of inefficiency and dismissal without any grounds at all, the chief constable would prefer the former.
1209 But I wonder whether it is right to go even as far as the noble Lord, Lord Derwent, went. I can understand a chief constable being recommended for dismissal because he himself is inefficient. What seems to me to be unfair is that he should be dismissed, not because he himself is inefficient, but in the interests of the efficiency of the service itself. There may be a man who is a perfectly efficient chief constable and who is doing his job extremely well; but for some purposes of reorganisation he is recommended for dismissal. That seems to me to be quite wrong. Although the Home Secretary could refuse approval, strictly speaking, on his own interpretation of what these words meant, he would find it a little difficult if it could be shown that the service could be improved by the man's removal from office. Yet it could be grossly unfair to the chief constable. I should have hoped that it might be possible to find another form of words which would make sure that the only ground for dismissal is, in fact, the inefficiency of the chief constable himself.
§ LORD DERWENT
May I point out to the noble Lord that I think this should be read in conjunction with Clause 29, where he has the right of appeal. That clause reads:Where representations are made under this section the Secretary of State may, and in a case where he proposes to require the exercise of the power mentioned in subsection (1) of this section"—which deals with the point we are talking about—shall, appoint one or more persons (one at least of whom shall be a person who is not an officer of police or of a Government Department) to hold an inquiry and report to him and shall consider any report made under this subsection.That is an additional safeguard for the chief constable. But there is no doubt there can be circumstances where, without being able to say that a chief constable is himself inefficient, and without being able to say that he has not an efficient police force, it would be in the interests of a particular police force that he should be retired. I am informed that there has been that sort of case.
I agree with the noble Lord that in the majority of cases it could be due to inefficiency, if the chief constable goes under this clause, but not necessarily 1210 so. It might be that he would rather go under the general terms than to be thought inefficient. But I will have another look at it, although I do not think we shall get anywhere. I think that this power is necessary to the Secretary of State and to the police authority.
§ LORD SILKIN
I do not think that the mere fact that a chief constable can appeal really meets the case. What can he appeal against? It may be the fact that it is in the interests of efficiency, but even then it would be wrong to dismiss a chief constable who himself has done nothing to deserve dismissal. He could not appeal on that. It might well be true that in the interests of efficiency in the widest sense better service could be obtained by dismissing a chief constable, but I would be against that, and he would have no ground for appeal.
§ LORD DERWENT
I appreciate the noble Lord's point about appeals, but I still think that there may be cases where, quite apart from the efficiency of the chief constable or of the force, it might be advisable for the benefit of the force that the chief constable should leave the force, if the watch committee or police authority ask for it. It would not happen in these circumstances, of course, unless the Secretary of State had also gone into it, and that undoubtedly involves the Inspectors of Constabulary.
§ LORD MILVERTON
I do not wish to press the Amendment. I should like to say merely that the object was to enable chief constables to be retired—I prefer that word to "dismissed"—with honour, possibly in the interests of the efficiency of the force, but certainly without any reflection which the use of that word would entail if it were in a published statement. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ Clause 6:
§ Deputy and assistant chief constables
§ (4) Appointments to the office of deputy chief constable, and appointments or promotions to the rank of assistant chief constable, shall be made, in accordance with regulations under Part II of this Act, by the police authority 1211 after consultation with the chief constable and subject to the approval of the Secretary of State.
§ 6.15 p.m.
§ LORD MILVERTON moved, in subsection (4), to leave out "after consultation with the chief constable and". The noble Lord said: I should like to speak on this Amendment and No. 16 at the same time. The effect of these two Amendments, taken together, would be that appointments to the office of deputy chief constable and appointments or promotions to the rank of assistant chief constable would be made by the police authority otherwise than after formal consultation with the chief constable and without the approval of the Secretary of State. However, the two Amendments have been drafted separately, as the two issues, which are separate, can be considered separately.
Paragraphs 171 and 172 of the Royal Commission's Report read as follows:
171. The deputy chief constable holds an appointment and not a rank. In a large force the deputy has the rank of assistant chief constable, but in a small force he may be a superintendent or even an inspector. The deputy chief constable in English and Welsh boroughs is appointed by the police authority; elsewhere he is appointed by the chief constable with the approval of the police authority. As the deputy is required to take charge of the force in the chief constable's absence, we think it is right in principle that he should he appointed by the police authority after consultation with the chief constable. We further recommend that the appointment of a person to be deputy chief constable be subject to the approval of the Secretary of State.
172. We recommend the same arrangements for the appointment of assistant chief constables. Most officers of this rank are, in fact, deputy chief constables; and it would be pointless to place the appointment of the deputy in the hands of the police authority while leaving the chief constable to appoint to the one post from which, in the larger forces, the deputy could be found. Moreover the post of assistant chief constable is often a stepping stone to a chief constableship in another force, and it is essential that persons appointed to these posts should be selected from the widest possible field, so as to ensure that they are filled by the best men available. In all cases, therefore, appointment should be by the police authority after consultation with the chief constable, and it should be subject to the approval of the Secretary of State.
§ The objection which the Association of Municipal Corporations offer to that provision for consultation with the chief 1212 constable does not mean, of course, that the police authority should, as a matter of practice, do other than consult their chief before making the appointment or promotion in question. Obviously, it is the proper course for the police authority to take. But the statutory provisions suggest that, whilst in all other spheres of local administration authorities can be trusted informally to consult the appropriate chief officer before making appointments to senior posts, in their guise as police authorities they cannot be trusted to act responsibly. It is true that, in the absence of a chief constable, a deputy has to assume command of the force, but for that matter a deputy town clerk has to accept the responsibility of acting as the chief executive officer of local authority in the absence of the town clerk. The fact that a chief constable has a greater degree of independence than other chief officers does not really alter the issue.
§ Admittedly, so far as the counties are concerned, the proposal in the Bill would give slightly greater powers to the police committee of a county council than are at present enjoyed by the standing joint committee, as will be seeen from paragraph 171 of the Report, but this is no good ground for providing for a uniform arrangement for boroughs and counties which detracts from the existing responsibilities of the borough police authority, against whom, so far as the Association is aware, there is no evidence of misuse of powers.
§ Nor is it necessary for these appointments and promotions to be subject to the approval of the Secretary of State. Though there is a provision in Statute for certain other chief officers—for example, medical officers of health—to be appointed subject to the approval of the Minister, there is no existing statutory provision with regard to deputies. Therefore, the Association of Municipal Corporations see no reason why there should he one in relation to the police. The Home Secretary, in Committee in should be one in relation to the police. have the power of approval because it was from the deputy and assistant chief constables that chief constable posts were filled. But this argument would apply equally all down the line to the appointments of lower ranks than 1213 deputy, from which deputies are filled, and does not seem to me to give very strong support to that case. I beg to move.
Page 5, line 9, leave out from ("authority") to ("subject") in line]10.—(Lord Milverton.)
THE EARL OF MANSFIELD
It is greatly to be hoped that your Lordships will reject both these Amendments, particularly the first one. I can imagine nothing more likely to impair harmonious relations in the highest ranks, and consequently the efficiency of any police force, than for the chief constable to have foisted upon him a deputy whom he does not wish to have. For that reason alone, the Amendment would do a great deal more harm than good.
With regard to the other Amendment, I cannot see any reason why the Secretary of State should not have the final word. Surely, when you come to the material from which chief constables are to be chosen it is a very different thing from that from which it is merely a question of promoting inspectors and superintendents. The chief constable, after all, is the king-pin, the universal joint, of the police forces; and to say that he is to have no voice in the selection of the man he has to work with would be a great mistake. After all, it is not that the approval of the chief constable must be obtained; only that he must be consulted. But I cannot imagine that any responsible local authority would go against the advice of their chief constable and appoint as deputy a man whom the chief constable did not think was suitable for the position.
§ LORD DERWENT
I should like to deal with the two Amendments separately, but I will speak to them both. The first Amendment would delete the requirement that a police authority should consult the chief constable before appointing a deputy or assistant chief constable. On that, I must say that the case has been put strongly against the Amendment by my noble friend Lord Mansfield. This provision follows a recommendation of the Royal Commission. It would be clearly wrong for a deputy or assistant chief constable, the two immediate people who are going to support the chief constable—and the deputy, at any rate in his absence, will 1214 answer for him—to be appointed without any consideration of the chief constable's own views. I am sure that this must be wrong. Although my noble friend Lord Milverton says, "Of course the police authority would do it", I think it is right and, indeed, essential that we should make it statutory that the opinion of the chief constable must be taken. Indeed, when it comes to the Secretary of State's approval of a post, it would be a great help to him to know what that opinion was.
It has been suggested by my noble friend Lord Milverton that, in practice, a local authority as a rule consults its chief officers before appointing their deputies, but that in these cases it is not a statutory obligation. I agree. But it is not a true analogy with the senior officers of a police force. The chief constable has a special status in relation to the police authority. The relationship is quite different from that of an employee of a local authority. And there is the special matter about his responsibility for operational efficiency. There is also the fact that a police force is a disciplined body in which the chief officer must have confidence in his immediate subordinates. Without that, a disciplined body cannot function. I think it is absolutely right, so far as the first Amendment is concerned, that we should resist it, because the police authority should be under a statutory duty to consult the chief constable before making these appointments.
As regards the second Amendment, this would delete the requirement that appointment of deputy chief constables should be subject to the Secretary of State's approval. This provision also is based upon a recommendation of the Royal Commission. There are two main grounds for requiring the Secretary of State's approval. The first is that in the case of a deputy chief constable, as I have already said, the officer will take command of the force in the chief constable's absence, and he should enjoy the Secretary of State's confidence. Just as the chief constable's appointment is subject to the Secretary of State's approval, so also should the deputy's appointment be, because he will on occasions be dealing with the Secretary of State, in the absence of the chief constable.
1215 The second point is that both these posts are stepping stones to chief constableships, and the persons appointed should be selected from the widest possible field so as to ensure that the posts are filled by the best men available from the forces in which they are then serving. The requirement of the Secretary of State's approval will assist the police service in reaping the benefits of the higher training schemes now available, such as the Police College.
There will have to be a good deal of interchange in these senior ranks in the police forces—such changes make for efficiency. Perhaps I may add that it is intended that the Secretary of State's control in this matter should be exercised in the same manner as the corresponding control over the appointment of chief constables; that is, a short list of those considered suitable is drawn up by the police authority, which always carries out that procedure when it wants to appoint a chief constable, and the Secretary of State then says which, if any, of the names on the list he would not approve for appointment. There might be only one on the list, but that one would have to come out and the police authority would have to make the choice from the remaining names. All these posts should be advertised.
If these two Amendments were approved, the police authority would have absolute control over these posts, when it has not that sort of control under the Bill for any other police post. Even that would be anomalous. I am sure it is essential, in the interests of police efficiency and smooth working between the chief constable and his subordinates, and between the chief constable, his subordinates and the Secretary of State, that both these Amendments should be rejected.
§ LORD MILVERTON
I do not feel strongly enough about the principle I have enunciated to press the point further, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ Clause 7 [Other members of police forces]:1216
§ 6.28 p.m.
§ LORD MILVERTON moved, in subsection (2), after "by" to insert "the police authority upon the recommendation of". The noble Lord said: Subsection (2) of Clause 7 provides that appointments and promotions to any rank below that of assistant chief constable shall be made subject to the Secretary of State's regulations by the chief constable. This provision brings borough police forces into line with county police forces, and follows a recommendation of the Royal Commission, who thought it inappropriate that police authorities should have powers relating to the appointment, promotion and discipline of the police.
The Commission noted that the Desborough Committee recommended as long ago as 1919 that these powers should be in the hands of the chief constable of all forces, and the Oaksey Committee, reporting in 1949, endorsed this view. They said:
The Chief constable and the officers who advise him see the men at work, and they alone can have a sufficiently intimate knowledge of the merits of the individual candidates to decide who should be selected for promotion.
Appointment the Oaksey Committee regarded as largely a formal matter, which was, in any case, in practice, generally left to the chief constable.
In practice, conflicts between the watch committee and the chief constable rarely arise, and, as the Oaksey Committee said in paragraph 222 of their Report:
Watch committees really do no more than confirm the recommendations of their chief constables.
The Association of Municipal Corporations do not share the conclusion that this points to the surrender of the appointment and promotion powers of watch committees. Chief constables, like watch committees, can be subject to prejudices and affected by personal considerations; and no chief constable, however capable and conscientious, should, in the opinion of the Association of Municipal Corporations, have power to promote without being answerable to someone.
§ The need to justify a proposal to a committee is salutary. If the chief constable is given the right to make his own 1217 promotions there will be a far greater risk of favouritism and of a tendency to promote from within the force, instead of from another force which is acknowledged to be a desirable practice. When a man has to explain his recommendations to a committee, it helps him in making his own decision, and it helps him to be fair in making that decision. Therefore, it is suggested that the risk of the wrong man being promoted by a chief constable, unanswerable to the watch committee, is a greater risk than that of a watch committee's rejecting the recommendation of the chief constable in the hope of securing the promotion of another man. I beg to move.
Page 5, line 24, after ("by") insert ("the police authority upon the recommendation of").—(Lord Milverton.)
THE EARL OF MANSFIELD
Once more the Association of Municipal Corporations put forward a proposal which would strike at the efficiency and discipline of police forces. Nothing is more calculated to shake the confidence of a chief constable than for him to feel that he could not promote the men whom, from his own experience, he considered to be the most suitable. I do not think the Association's claim that a watch committee is going to be more impartial and more thorough in vetting qualifications of a candidate for promotion has any validity whatever. Once more, I hope that this Amendment will be rejected.
§ LORD DERWENT
The effect of this Amendment would be to provide that appointments and promotions to subordinate ranks would be made by the police authority upon the recommendation of the chief constable. It would mean that a police authority could not make an appointment or promotion which was not recommended by the chief constable, but could decline to appoint or promote the man he had recommended. Even this limited opportunity for interfering with the chief constable's discretion in these matters is quite unacceptable. As the Oaksey Committee put it in 1949:The chief constable and the officers who advise him see the men at work and they alone can have a sufficiently intimate knowledge of the merits of the different candidates to decide who should be selected.We feel that it is quite inappropriate that promotions and appointments— 1218 again, I stress this—in a disciplined force subject to the direction and control of the chief constable should, even nominally, be made by an outside person or body. I would add, however, that the most effective way of ensuring that the right man is promoted is by the introduction of adequate arrangements for the holding of selection boards within the force, and by ensuring that the chief constable is fully and properly advised when he makes his promotion decisions. Her Majesty's Inspectors of Constabulary give close attention to these arrangements when they are visiting forces, and there is no suggestion that favouritism is a serious risk in county forces at present where this arrangement operates. I would add, before asking your Lordships to reject this Amendment, that the Police Federation have endorsed the provisions now in Clause 7(2).
§ THE EARL OF LONGFORD
May I ask the noble Lord a question, which may be rather a "fast" one? If necessary, perhaps he can answer it in some other way. I sympathise with his arguments, which seem to me very strong; but if some police constable, for example, or some other police official, felt himself aggrieved—and, after all, in this wicked world there might be a case where a man had been treated unjustly because he "got across" the chief constable—would there be any machinery for appeal? It may be difficult for the noble Lord to answer that question, and I will support him if this Amendment is pressed to a Division.
§ LORD DERWENT
I can answer it in this way correctly, so far as it goes. There are, of course, the ordinary methods of complaint inside the force, but that does not quite meet the case put by the noble Earl. There are also the Inspectors of Constabulary, and I think it could probably be brought to their notice —in fact, I am sure it could. There are also, and even more important, when this is a matter entirely within the jurisdiction of the chief constable (I am not talking about the man who has a grouse because he has missed promotion, but if there is a real complaint). in every police force representatives of the Police Federation who function very independently, serving policemen. There is not the slightest doubt that if there is 1219 a genuine complaint it can be placed before the Federation. They have almost endless powers of bringing complaints forward. I think the point is covered.
§ THE EARL OF LONGFORD
I am most grateful to the noble Lord. I think that that is an excellent answer, if I may say so.
§ LORD SILKIN
Might I ask a question on this matter? This subsection deals with appointments and promotions. The arguments which have been put forward against the Amendment are directed to promotions: that the chief constable knows his officers, and so on; and that he is in the best position to judge. But would this apply necessarily to appointments? Appointments could be from outside, and the chief constable is in no better position to know the merits or demerits of a candidate than the committee is. I should be grateful if the noble Lord would direct his mind to the question of appointments.
§ LORD DERWENT
As regards appointments below the rank of assistant chief constable, that matter is fully within the power of a chief constable. What we are trying to develop in police forces generally is interchange, with a view to further promotion at the higher ranks of, perhaps, inspector and above —perhaps even down to sergeant. I would add that since the Police College has been going, and the Inspectors of Constabulary have been enlarged in number, there is a close liaison between the chief constables. Although many of the senior posts are now advertised, and interchanged between the forces, there is sometimes an arrangement for exchange direct between chief constables, with, of course, the approval of the man, with a view to accelerated promotion for very efficient men. So that appointments below the rank of assistant chief constable will come within the province of the chief constable.
§ LORD MILVERTON
In view of the hostile reception which this Amendment has had, I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 7 agreed to.
§ Clauses 8 to 11 agreed to.1220
§ Clause 12:
§ Reports by chief constables to police authorities
§ (3) If it appears to the chief constable that a report in compliance with any such requirement of the police authority would contain information which in the public interest ought not to be disclosed, or is not needed for the discharge of the functions of the police authority, he may request that authority to refer the requirement to the Secretary of State; and in any such case the requirement shall be of no effect unless it is confirmed by the Secretary of State.
§ 6.38 p.m.
§ LORD STONHAM moved, in subsection (3), to leave out "or is not needed for the discharge of the functions of the police authority". The noble Lord said: This, again, is a point which struck me very forcibly on reading the Bill, and I have no idea whether it has been raised at any stage of the Bill in another place. Clause 12 deals with the provisions for reports by chief constables to police authorities. Every chief constable is obliged to give a report each year, and he is also required on other occasions to submit reports when he is asked to do so by the police authority. But, as subsection (3) of Clause 12 stands at the moment, if it appears to the chief constable that a report in compliance with such requirements of the police authority would contain information which, in the public interest, ought not to be disclosed, or is not needed for the discharge of the functions of the police authority, he may request that authority to refer the requirement to the Secretary of State.
§ I do not think anyone would object to the chief constable having discretion not to disclose information which he thought in the public interest ought not to be disclosed. I therefore do not object to those words in the subsection at all. But it seems to me virtually insulting to the police authority if the chief constable is in a position to decide what information the police authority needs for the discharge of its functions. Surely it is the police authority who should be able to decide the types of information it needs for the discharge of its functions. I am not talking about security or about something which it is not in the public interest should be disclosed; I am talking about giving discretion to the senior police 1221 officer of a police area to be able to make up his mind and decide, when he has had a request from a police authority for a report for certain information: "No, you do not need to know that for the discharge of your functions as a police authority".
§ I think that is the outside edge: that we should be left with a chief constable having that discretion. It can almost bring to naught the powers of a police authority in particular circumstances where it is at loggerheads, for example, with a chief constable. If we had another Sheffield case, for example, would not that chief constable be able to say: "You do not need that information for the discharge of your functions; I am not going to give it to you."? This subsection as it now reads would leave him with that absolute discretion to say that a certain type or class of information, say a report, which had been asked for, was not needed by his employing police authority.
§ There may be—and no doubt the noble Lord will give it—a reasonable explanation for the inclusion of these words in the clause, but, as I look at it, the words are not only unnecessary but are offensive to the police authority, and no chief constable should be given the power to decide what types of information were needed by his own employing authority for the discharge of its proper functions as a police authority. That is my view, and unless there is a very satisfactory explanation of this, which I find difficult to believe can be forthcoming, I hope your Lordships will support this Amendment. I beg to move.
Page 7, line 39, leave out from ("disclose") to ("he") in line 40.—(Lord Stonham.)
§ LORD DERWENT
This Amendment would deprive a chief constable of the opportunity to question a requirement for a report on the ground that the report was not needed for the discharge of the functions of the police authority; that is the situation. It was quite clear in the debate in another place that there were two main misunderstandings about this matter. I think the noble Lord, Lord Stonham, is still labouring under these misunderstandings, and I hope to persuade him that they are misunderstandings. He suggested, first, that Clause 12(3) placed the chief constable in the position of a final arbiter of what he would or would not report to the police authority. 1222 That is quite incorrect. A chief constable does not have the last word on that matter at all the Secretary of State is accountable to Parliament as to whether or not he, the Secretary of State, upholds the action of the chief constable. If the chief constable refuses to provide the information, it is for the Secretary of State to uphold or turn down the decision. In relation to Provincial police forces, too, the Secretary of State will be answerable to Parliament.
The second misunderstanding, I think, concerned the range of subjects within which the chief constable would be expected to report to his police authority. That misunderstanding came out more in the other place than in what the noble Lord has said, but I think I ought to amplify this matter.
§ LORD DERWENT
However, I think I ought to explain; it is important that the House should understand this point. Honourable members moving the Amendment in another place maintained that as the subsection stood the range of subjects would be unduly restricted. My right honourable friend then explained that a police authority would, without question, be entitled—and when I say "entitled", we must remember that if a chief constable refuses and he is not upheld, he puts his own job at risk—to ask its chief constable about such matters as (this is important, and I am repeating here what my right honourable friend said) the deployment of the force, its allocation as between crime prevention and traffic policing, and about the state of crime generally, or in particular parts of the area. It could ask about the extent of police protection provided in a certain district and call for a report and comment on it. Unless the police authority could obtain information on such matters (this is the point, of course) it could not possibly tell whether or not it was desirable in the interests of efficiency that the chief constable should be retired. It is on things of this kind that the chief constable would have to give a report. What my right honourable friend explained (and this is the reason why the clause is drawn in this way) the police authority could not do would be, for example, to bombard the chief constable with innumerable questions of detail on operational matters.
1223 It is quite clear that a police authority would be able to obtain relevant information about the deployment of the force—there has been a little misunderstanding about that; not about where police constable So-and-so goes, but about the general deployment—even though it has no power to issue directives about it. It can ask questions about it and get an answer. In many cases, certainly in matters involving expenditure, the chief constable could be expected to volunteer the information without formally being asked to do so.
§ LORD STONHAM
May I interrupt the noble Lord before he leaves this point? So far I have listened to him very carefully and have made a note of what he has said. The only thing that his right honourable friend indicated might be regarded as something the police authority did not need for the discharge of its functions was in that it could not bombard chief constables with questions of detail. Would he please say, first, whether that is the only thing his right honourable friend said, and, second, who is to he the judge of whether or not it is a question of detail?
§ LORD DERWENT
People must not really be so distrustful of chief constables or, indeed, of police authorities; they are reasonable. It should be clear from the word "Go" if a chief constable is being unreasonable; but if it is not clear to a police authority that he is being reasonable in refusing a report—and chief constables are reasonable as a rule—then it goes to the Secretary of State. What it is quite clear a police authority must not do is to ask why police constable So-and-so was on duty two days running on that corner, or why were three officers there, when two would have been quite enough. It is that kind of thing the chief constables would be justified in not answering. But if the police authority were to ask, for example, why had no policeman been into such-and-such a ward, it would be perfectly within its rights and would expect an answer. If a chief constable refused it, undoubtedly he would not be upheld by the Secretary of State.
Perhaps I might elaborate a little more before I sit down as I think this matter is important. Against this background, it is reasonable that a chief 1224 constable should, when faced with a requirement which goes beyond what is needed for the discharge of the authority's functions, be able to question it under the procedure in the subsection. What the chief constable is doing in refusing a report is questioning the demand, but he is not the final arbiter as to whether or not he should answer it.
I will give certain examples where the procedure could be invoked. First of all the police authority is entitled to information which gives it a general picture of the efficiency of the police or enables it to assess the weight to be given to a complaint that, say, a particular part of the area is inadequately patrolled by beat constables; but, having got the general picture, the chief constable should not be bombarded—and I repeat the word "bombarded" for it must be remembered that councillors and others are often under great pressure from their constituents—with an unreasonable number of requests for detailed reports, which would tend to trespass on the chief constable's responsibilities.
Alternatively, the police authority should not be entitled to a report on a matter entirely within the chief constable's discretion; that is to say, the authority should not be able to question in this way the chief constable's decision about a particular promotion appointment or disciplinary case. Still less should they be entitled to ask for a report about a chief constable's decision to prosecute or not to prosecute in a particular case—and this is perhaps the most important point of all; and as a matter of fact there have been cases where this has happened, on the part not of a local authority, but of individuals. I think that gives the picture. I do not think the fears of the noble Lord, Lord Stonham, are in the least well grounded, because the final arbiter is not going to he the chief constable. I emphasise that the chief constable will not be the final arbiter.
§ LORD MILVERTON
May I make one comment? It seems to me that, as we have gone steadily on, the attitude of the Government has been in effect to denude local authorities more and more of any real power, and if they are to be denuded of all rights to information which they may want, it is quite impossible for them to say—which they 1225 are supposed to be able to do—whether the chief constable is efficient or not; they will not know anything about it. It seems to me that removal of the words proposed to be left out is essential to ensure that police authorities will be able to discuss with chief constables in an informed manner matters of local concern about the administration and operation of the force, and it is surely essential that those discussions should take place if the chief constable is to be responsive to public opinion and if the police authority are to be able to advise him about his duties in the way in which the Royal Commission and the Home Secretary himself has contemplated.
It seems to me that it is only if these words are left out that the watch committee, or the police committee in the county, will be able to play their proper part in the administration of policing of the area, and if necessary, in the last resort, to obtain information justifying a requirement to retire. All of these duties are placed upon the local authorities, and they must be given a position in which they can exercise that responsibility, and therefore I support this Amendment.
§ THE EARL OF LONGFORD
May I ask the noble Lord whether he could give us an assurance, now or later, that this will not involve the whittling down of the scope of the reports which chief constables have in recent years been accustomed to give? After all, chief constables make very interesting reports on the state of crime in the areas for which they are responsible. Strictly speaking, if a chief constable was slack or arrogant he could refuse to report on the state of crime under this head. May I take it that it is not the intention to narrow the scope of existing reports?
§ LORD DERWENT
I assure the noble Earl that we are in fact crossing the "t's" and dotting the "i's" of what is at present happening to a large extent. At this moment no watch committee ought to—and I might say very few do —try to interfere in the detailed day-to-day running of its police force. We are merely putting that into the Statute to make quite certain it does not happen. But, as regards general reports which are now available to the watch committees on the general running of the police, they will be available in exactly the same way in the future to the police 1226 authority, and questions of the kind I have described which affect the efficiency of the force will be answerable by the chief constable. It may well be that you will get an intolerant chief constable, and I say that under this Bill his job will at once be put in jeopardy. People on the whole are reasonable, and where it is a proper request he is not entitled to refuse. If he does the case goes to the Home Secretary and, should it be a very glaring case, the chief constable obviously puts himself in peril. The Secretary of State says to the police authority, "I think you had better consider whether it is in the interests of the efficiency of the force that he stays on". Unless he provides the necessary information to the police authority the force cannot be efficient because in general terms it cannot be watched over. I hope that is an answer to the noble Earl: the range of reports they will be getting will not be narrowed.
§ LORD DERWENT
I can give that assurance. I really cannot accept from my noble friend Lord Milverton the sweeping statement, after what I have said, that the police authorities will be denuded of the right of asking questions. I have explained at great length that they can ask innumerable questions, and to the vast majority they are entitled to a proper answer. I cannot see that that is taking anything away from the existing position; it is only being clarified. There have been many doubts between chief constables and watch committees as to what their respective responsibilities were. We have now laid it down and there should be no doubt in future. I hope I have satisfied the noble Lord, Lord Stonham, that the chief constable is not getting all these powers. All we are trying to do is to prevent him from being improperly badgered, if I may use that phrase.
§ LORD STONHAM
The noble Lord has not completely satisfied me. I concede at once that it was incorrect for me to say the chief constable is the final arbiter. The clause clearly sets out that the Secretary of State is quite properly the final arbiter and in so far as I said otherwise, I withdraw it. But the chief constable is the arbiter, as the clause stands, as to what he shall decide it is proper, for the functions of the 1227 police authority, to be disclosed, and that is what I object to. The noble Lord said that chief constables were responsible, reasonable people. So are police authorities responsible bodies. I should have thought that, at the very least, these words are unnecessary, and at worst they can be harmful. While I am not going to press this now, I must tell the noble Lord that we may raise it again, because I do not think the present position is wholly satisfactory. With that I would ask your Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ House resumed.