Police and Magistrates' Courts Bill [H.L.]

HL Deb 17 February 1994 vol 552 cc353-414

House again in Committee on Clause 11.

[Amendments Nos.89 and 90 not moved.]

Lord McIntosh of Haringey moved Amendment No.91 Page 9, line 24, after ("may") insert ("by order").

The noble Lord said: In moving this amendment I speak also to Amendments Nos.92 to 95. There are two separate threads to these amendments, but I hope that it may be for the convenience of the Committee if they are considered together.

In all these amendments we are concerned with the issue of codes of practice by the Secretary of State about police authority functions. It is as well if we remind ourselves once again, as we did in our consideration of Clause 10, of the recommendations of the Delegated Powers Scrutiny Committee. It considered specifically Clause 11 of the Bill and looked at Section 28A inserted in the 1964 Act providing that, The Secretary of State may by order determine objectives for … police authorities".

The Home Office prepared a memorandum for the Delegated Powers Scrutiny Committee in which it set out its objectives. The committee published that memorandum in its third report which was presented to the House on 25th January of this year. It states: The final form of the objectives, and any subsequent changes to them, will be specified in a Statutory Instrument which has to be laid before parliament after being made, but this would not make the instrument subject to parliamentary control".

The Home Office explained: The objectives are clearly inappropriate to primary legislation because they would need to be changed and developed over time in response to changing circumstances… Parliamentary procedure beyond the laying of the order is not thought to be needed because, although police authorities and police forces are to be required to have regard to such objectives, they represent a framework for the exercise by those authorities of their statutory responsibilities, and are not a tightly drawn regulatory structure".

In paragraph 6 the committee states: The Committee agrees that the objectives do not need to be in primary legislation. We do, however, consider that as the Secretary of State proposes to, make the objectives of policing by an order that will be a statutory instrument, the House should consider whether there is a case for some parliamentary control of an order made under the new section 28A inserted into the Police Act 1964 by Clause 11 of this bill".

That is the purport of these amendments. Amendment No.91 states, Page 9, line 24, after ('may') insert (`by order')".

Amendment No.92 we say that in the same line there should be inserted the words, with the agreement of the organisations representing Chief Constables and police authorities".

That is a slightly different point from that made by the Delegated Powers Scrutiny Committee but nevertheless a point on very much the same lines.

Amendment No.94 states, and any statutory instrument containing any order made under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament".

In this series of amendments we are giving effect to the anxieties expressed by the Delegated Powers Scrutiny Committee. That committee is a new organisation set up by the House in response to the work of the Jellicoe Committee. It is already having a considerable effect on the way in which your Lordships' House can conduct its business, and that is entirely right. It never says in its reports, "The House should do this" or "The Committee should do that". It does not lay down what should be the result. The committee points to problems which it sees in delegated powers and draws them to the attention of the House, or in this case to the Committee. It suggests the areas of anxiety.

That is typical of your Lordships' House. We never ever say that anything is wrong. Whereas in another place standing orders may say that something is out of order, we do not have any power to say that. We simply say in our standing orders or in the Companion to the Standing Orders that such-and-such a thing would be "undesirable". That is the utmost condemnation that this House ever makes of its Members or of its procedures.

It is a powerful and condemnatory report in House of Lords' terms. The mild, questioning tone in which it is expressed should not be misunderstood. The point is very clear. What is proposed here is that varying provisions for determining objectives for police authorities are to be made by order, which would be subject to inadequate parliamentary scrutiny.

The purpose of this amendment is not to change the substance of what the Government want to do but to make sure that their objectives are achieved without any loss of parliamentary control. That is a cause which I believe will not be resisted by government and which should be welcomed in all parts of the House. It should also receive the approval of your Lordships' Committee. I beg to move.

Lord Renton

We are now dealing with codes of practice, although when listening to the noble Lord, Lord McIntosh of Haringey, I felt that he was referring to the earlier part of this clause and performances. If we are now talking about codes of practice in Amendments Nos.91 to 95, I make this comment. Parliamentary practice as to codes of practice varies quite a lot. There are some codes of practice which are non-statutory and others which are statutory, and of those which are statutory, some merely have to be laid before Parliament as proposed by the Government here and others are embodied in statutory instruments, which is what the noble Lord, Lord McIntosh, is suggesting.

I doubt the need for subordinate legislation on this matter. A code of practice is different from secondary legislation and has a different purpose. It is not intended to be part of the law. It is intended as guidance to those concerned. Therefore, I do not agree with Amendment No.91.

I turn now to Amendment No.92, in which the noble Lord is insisting that the code of practice should have, the agreement of the organisations representing Chief Constables and police authorities". That would give them the last word. That would give them a veto, and I do not think that is right. By all means, however, let there be a 'requirement for consultation. Therefore, I would prefer Amendment No.92A to Amendment No.92. Indeed, Amendment No.93 would achieve that object so far as concerns the police authorities. I do not think that Amendment No.92 would be right because, as I say, it provides a veto.

At this lace hour, it is unlikely that we shall be reaching decisions tonight on any of the amendments that are grouped together. That is just as well because several of them overlap or are alternatives to each other and the Deputy Chairman of the Committee would have a confusing task if each of those amendments had to be put before the Committee.

I conclude by saying that there is one other point on which, with deep respect, I must correct the noble Lord, Lord McIntosh. Our Scrutiny Committee did not make any critical comment on the proposed new Section 28C which we are now discussing. Its comments related to the new Section 28A which we discussed before the dinner adjournment. Therefore, I think that my noble friend Lord Ferrers can ignore what the noble Lord, Lord McIntosh, said about the recommendations of our Scrutiny Committee.

8.30 p.m.

Lord Dixon-Smith

I am grateful to my noble friend Lord Renton for clarifying my thinking because I was a trifle surprised by the contribution of the noble Lord, Lord McIntosh of Haringey, who was talking about objectives. Like my noble friend Lord Renton, I thought that we had cleared the question of objectives before we went to dinner and that we were now discussing codes of practice. My understanding of codes of practice at least so far as concerns local government—and the police service is very much a part of local government—is that local government is entirely accustomed to working with notes of guidance and codes of practice from government. Therefore, no new principle is involved in the proposed new Section 28C.

My amendment, Amendment No.92A, was proposed with the idea of restoring to this section the tripartite balance which otherwise might be deemed to have been monopolised. I would not wish to see that balance so monopolised. I look forward with interest to what my noble friend Lord Ferrers has to say on the matter.

Earl Ferrers

I agreè with my noble friend Lord Renton that these codes of practice should not take the form of secondary legislation. That is not really their purpose. The main code of practice which the Home Secretary will issue under Section 28C will govern financial relationships between police authorities and their forces. It will take the form of guidance to police authorities on how they should frame the regulations governing their financial affairs. It will therefore encourage best financial practice, including the delegation of financial management. This code, and any others which may be subsequently issued, are therefore guidance documents, enshrining what currently constitutes best practice.

Parliament should of course be informed of their contents, as the codes will contribute significantly to shaping the relationship between police authorities and their forces; but they should not be regarded as regulatory instruments which require parliamentary scrutiny. It would be equally wrong either to remove from the Home Secretary the obligation to inform Parliament of the contents of the code or to give the code the status of secondary legislation as suggested by Amendments Nos.91 and 94 on the one hand, and Amendment No.95 on the other.

Amendment No.92 proposes that the code should have to be the product of consensus between the Home Secretary, the Association of Chief Police Officers and those representing police authorities. The codes of practice will embody the Home Secretary's view, on the basis of wide consultation, of what best practice constitutes. That is what will be in the guidance. It may be—and indeed I hope it will be—that both the chief constables and police authorities will endorse the Home Secretary's conclusions on "best practice"; but the Home Secretary must not be constrained by the need to achieve consensus in issuing guidance which is designed to lead to better and more efficient management.

Amendments Nos.92A and 93 are not necessary. As I have said, the Home Secretary intends to consult fully with a wide range of bodies, including the Audit Commission as well as organisations representing chief constables and police authorities. The amendments have the disadvantage also of suggesting that consultation should be confined to chief constables and police authorities and, in the case of Amendment No.93, to police authorities alone—and to every police authority. I think that that would be undesirable. For those reasons, I hope that the noble Lord, Lord McIntosh, will realise that the wording of the Bill is best left as it is.

Lord McIntosh of Haringey

The wording contained in the Bill is by no means as clear-cut as the Minister appears to think. It provides in new Section 28C(3) that, The Secretary of State shall lay before Parliament a copy of any code of practice, and of any revision of a code of practice, issued by him under this section". It may be that this is only gesture politics and that the Minister intends that Parliament should be informed but not consulted. If we are to be informed, surely there is no point in the information being laid before us unless we have some say on whether it is appropriate or suitable—otherwise there is no point in burdening your Lordships' House or our Library with that information.

Although I am not at all disposed to pursue these amendments, this little debate has been made thoroughly worthwhile by the remarks of the noble Lord, Lord Dixon-Smith, who said that the police service is very much a part of local government. We agree with that. That is the argument that we pursued above all on Tuesday when we considered Clause 2. We look forward to the noble Lord's active and vocal support in pursuit of that objective. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.92 to 95 not moved.]

Clause 11 agreed to.

Clause 12 [Reports from police authorities]:

Lord McIntosh of Haringey moved Amendment No.96: Page 10, line 5, after first ("State") insert ("by means of a notice issued not less than six weeks previously").

The noble Lord said: With Clause 12 we move to the issue of reports from police authorities. We accept—indeed, we welcome—the idea of reports from police authorities. We think that in general the additional clause which it is proposed to insert after Section 29 of the 1964 Act is a move in the right direction. In our view, it is a reasonable proposal that police authorities should submit a report on the discharge of their functions and the policing of their area.

The problem is purely practical; it is a question of the minimum timetable before the reports can be prepared by the police authority and be received by the Secretary of State. The amendment seeks to insert a six weeks' notice requirement for the reports. That will allow enough time for the police authority to carry out the necessary inquiries, to assemble the information, to take specialist advice, to evaluate the findings and to prepare the report. Within the tripartite system—and I emphasise that precaution—it is right that the Secretary of State should be able to require the reports. If he is going to do so they should be effective reports and there should be adequate time for them to be prepared. I have no doubt that the Minister will reply that that is the intention of the Secretary of State and of the Home Office. It will be helpful to have the matter clarified so that there can be no doubt. I beg to move.

Earl Ferrers

The noble Lord, Lord McIntosh, kindly said what he thought I would say. He did not get it quite right but he was not far off. As he said, the amendment seeks to give a minimum period of notice of six weeks in all cases where the Secretary of State wished to exercise the new power provided by this clause to require a report from a police authority. As noble Lords will realise, this new power in respect of reports from police authorities is based closely on the long-standing power in Section 30(1) of the Police Act 1964, which enables the Home Secretary to require a report from the chief constable.

I hope that the Committee will accept my assurance that it will always be the practice of the Secretary of State to give a reasonable period of time for a response for a request for a report, just as is already the case with similar requests to chief constables. But the amount of notice that is reasonable to give must depend on the nature of the subject matter and its urgency.

As regards the existing power in respect of chief constables, routine returns of information may be the subject of several months' notice. Less urgent requests may well require several weeks' notice. But it is certainly not unusual for very urgent requests—sometimes connected with proceedings in Parliament or Questions asked by Members of Parliament—to be answered in 24 hours or less. Although police authorities will not be dealing directly with urgent operational matters, I really do not think it practicable to provide a minimum period of notice of six weeks. I can think of circumstances in which Members of the Committee would not be too happy at being told that they would have to wait for six weeks for some perhaps straightforward piece of information to be obtained from a police authority.

I assure the Committee that it would certainly not be the practice of the Secretary of State to impose unreasonable demands on police authorities by the exercise of his new power. I ask the noble Lord, Lord McIntosh, to accept that the appropriate period of notice must vary according to the circumstances and that a six week minimum would be impractical. I hope that the noble Lord will realise that it is best to have a bit of flexibility.

Lord Harris of Greenwich

I do not feel strongly about the issue. I agree with the noble Earl that some of the most urgent requests for information will go to the chief officer and not to the police authority. However, if we are talking about Parliamentary Questions we are almost certainly talking about police operations. In such cases the chief officer and not the police authority will be approached by the Home Office.

I am prepared to leave the noble Lord, Lord McIntosh, to decide what he wishes to do about the amendment.

Lord McIntosh of Haringey

I am not entirely reassured by the Minister's answer. I do not reject the assurance that a reasonable time will be given for reports. Indeed, I welcome that assurance and on that basis I shall not press the amendment to a Division. On the other hand, the way in which the Minister spoke gave me the impression that there could be a large number of such requests. I had hoped that routine requirements for reports would not be dealt with by specific requests for reports but by an indication on a regular basis of what should be contained in the annual reports from the police authority. The Secretary of State has plenty of powers in the Bill to require that annual reports should contain the kind of statistical information which he needs for his own purposes, and very properly too.

The idea that there should be a large number of ad hoc reports, some of which might be quite routine or in response to Parliamentary Questions, from a police authority rather than from the chief constable fills me with some disquiet. That was the valuable point made by the noble Lord, Lord Harris, in his intervention.

I hope that it is the intention of the clause that the Secretary of State will make such requests for reports to a police authority only when it is absolutely essential; when there is something about the policing of the area or the performance of the authority's objectives which requires a report to be made to the Secretary of State for the benefit of Parliament or anyone else.

I hope that the Minister will think again about that and, if necessary, will be able to reassure the Committee that the report-giving power will not be the first thing in the prayers at the Home Secretary's morning meetings—"What reports can we ask for from police authorities next?". It should be a power which, although it is necessary, should be used only sparingly if it is not to be a disruption in the work of these authorities. On the basis of the assurance given about a reasonable time being offered, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Baroness Hilton of Eggardon moved Amendment No.97: Page 10, line 7, leave out from ("functions, ") to ("as") in line 8.

The noble Baroness said: The amendment addresses the same clause and it is an attempt to be helpful. As the Minister said, under Section 30 of the Police Act 1964 the Secretary of State may require chief constables to submit reports on any matters connected with the policing of their areas. The new clause appears to duplicate that and suggests that police authorities will be asked for reports oh matters connected to the policing of their area.

The Minister has already said that in relation to urgent operational matters the chief constable will be asked for the report. The noble Lord, Lord Harris, in his intervention stressed that it was for the chief constable to provide operational policing reports. If it is suggested that in future the police authority will be asked for the operational policing report it will have to ask the chief constable to provide a report. That puts the relationship between the chief constable, the police authority and the Home Office in a totally new set up. From top to bottom it will be a linear relationship, which worries us about the whole Bill, with the Home Secretary at the top, the police authority in the middle and the chief constable at the bottom. We are anxious to retain the tripartite relationship where the chief constable is on equal terms with the police authority. The duplication that is implicit in this clause with the Police Act 1964 is a recipe not only for that change in the relationship but also for confusion. I beg to move.

Lord Knights

I support the amendment. The Bill extends considerably the powers which the Secretary of State already has under the Police Act 1964 to require reports from chief constables as to the policing of their areas. Not only is it a duplication, it is an extension. It may well mean the police authority having to seek a report from the chief constable before it can respond to the Secretary of State. More important is the possibility of it being divisive as between the police authority and chief constable. What if the police authority has one thing to say about a particular matter and a chief constable has something else to say? It is one thing or the other and the one thing should be the chief constable in terms of policing of the area.

As regards asking questions of the police authority about the way it discharges its functions, that is a different matter and it is perfectly proper that the Secretary of State should be able to ask such questions. I believe that it will be rather divisive and objectionable to ask additional questions about matters relating to the policing of the area.

Earl Ferrets

I am grateful to the noble Baroness, Lady Hilton, for saying that her amendment is supposed td be helpful. That is in curious distinction to some of the other amendments she has moved. It seems that the purpose of the amendment is to ensure that there should be no clash between the Secretary of State's new power to request reports from police authorities and his longstanding power under Section 30 of the Police Act 1964 to request reports from chief officers. As the Bill stands, the Secretary of State's powers in respect of reports from both police authorities and chief constables could extend to matters connected with the policing of the relevant police area.

There is a degree of overlap here, and it is quite deliberate. Of course, questions relating to operational matters are most likely to be directed to the chief constable. But the general duty of a police authority, as set out in new Section 4(1) under Clause 3 of the Bill, is, to secure the maintenance of an efficient and effective police force for its area". Apart from the addition of a reference to effectiveness, that duty is unchanged compared with the existing provision in the 1964 Act. If we accept, as I think we do, that it is reasonable in principle for the Secretary of State to have power to call for reports from police authorities as well as from chief constables, then I think there will be cases where the Secretary of State would be entitled to call for a report from the police authority—perhaps alongside a related request to the chief constable—about aspects of the policing of the relevant area.

I can think of one or two cases recently where, because of financial considerations, police authorities said that they did not have enough money and that buildings would be closed and so on. There was then a fuss because it appeared that in that area policing would not be what it should be. In those circumstances, it is quite reasonable for the Home Secretary to call for a report from the police authority to ask what is the situation with regard to the police in its area and to ask what is the problem. That is different from calling for a report from the chief constable following perhaps, a riot in the area. There would then be a request for information as to what had happened in that regard. That is a different kind of request.

It is already well established that it is quite proper for a police authority to exert influence on matters of operational policy—to urge the chief constable, for example, to tackle particular problems which have arisen in the area—though I hasten to add that how those problems should be tackled in operational terms is of course a matter for the chief constable. There is an element of overlap but it is reasonable that the Home Secretary should be allowed to call for a report both from the chief constable and from the police authority—either one or both.

Baroness Hilton of Eggardon

I agree that it is perfectly reasonable to ask for a report from the police authority as well as from the chief constable. Indeed, the clause is unexceptional in its reference to the discharge of the authority's functions which would of course include finance, the provision of buildings and equipment and so on. I am concerned about the vagueness of the term: or otherwise with the policing of its area". That implies that a report would be provided about the operational policing of the area. I do 'not see how one can put any other interpretation on those words. I shall take away the amendment and consider the matter.

Lord Harris of Greenwich

I take the point that it is perfectly reasonable to ask for information from a police authority. However, I wonder whether the noble Earl will look at the language, without giving the Committee any commitment. I do not believe that there is a major issue between us but we wish to try to avoid confusion.

I do not wish to pick up the noble Earl on his words but he said that on an operational matter the request was most likely to be directed to the chief constable. My view is that it should always be directed at the chief constable. I do not ask the noble Earl for a commitment but I ask him to look at the language of the Bill because it is desirable to try to clarify the matter if at all possible.

Earl Ferrers

The noble Lord is correct to say that if it concerns an operational matter, the request should be to the chief constable. Of course, I shall have another look at the language.

Baroness Hilton of Eggardon

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 [Police grant and other grants]:

Baroness Gardner of Parkes moved Amendment No.97A: Page 10, leave out lines 21 and 22 and insert: ("and the grants made under this section to the Receiver for the Metropolitan Police District shall be determined with reference to the level of the budget for the Metropolitan Police set by the Secretary of State. ").

The noble Baroness said: This amendment seeks to ensure that the Metropolitan police service will continue to be treated separately as regards the distribution of police resources to reflect the fact that the Home Secretary will continue to decide on the level of the Met's budget under the new policing regime established by the Bill.

London is excluded specifically from the provisions in the Bill which establish new police authorities in the shire areas. The Home Secretary will remain the police authority for London but a new body will be established within the existing statutory arrangements to advise him on policing in London.

Some London boroughs—I imagine, most of them—welcome the creation of an advisory body on policing in London and feel strongly that at least half the members of such a body should be elected councillors. Of course, each borough would like to see its councillors on the committee. However, the fact remains that it will be only an advisory body and the decision on the level of the budget will continue to be taken by the Home Secretary in his role as police authority for London.

At present, because it would clearly be inconsistent for the Government to make an assessment of the Met's need to spend its SSA which is different from the budget agreed by the Home Secretary, its SSA is automatically set at the level of its budget. I believe it to be desirable for that special arrangement to continue because it reflects the fact that the Met will continue to be different from the police authorities in the shire areas.

The amendment seeks clarification of the Government's intentions in that respect by requiring the receiver of the Metropolitan police to be treated differently from the new shire police authorities in the making of grants to police authorities. It requires that the level of the grant should reflect the level of the budget set by the Home Secretary. I beg to move.

Earl Ferrers

The amendment seeks to remove the Metropolitan police from most of the provisions of new Section 31 of the Police Act 1964, inserted by Clause 13 of the Bill. It provides that Metropolitan police funding should be left solely to the discretion of the Secretary of State.

New Section 31 as it stands has been carefully drafted to permit its application to all police authorities without exception. It requires the Secretary of State to determine the amount of grant to be made to each authority; it allows him to use rules or a formula to allocate part of the total amount available; and it requires him to state the considerations he took into account in deciding how much to give to whom.

That is all perfectly compatible with funding the Metropolitan police. It allows the Home Secretary a degree of latitude in deciding how much grant should be received by different police authorities. He is certainly not bound to allocate all central government police grant on the basis of the formula. That would clearly not be right. But he is bound to make clear to another place the basis on which he is making his allocations. In whatever way he determines the funding for the Metropolitan police, new Section 31 requires him to tell another place his reasons. My noble friend's amendment does not seem to want him to do that, and he should be able to do SO.

Baroness Gardner of Parkes

I thank my noble friend for that reply. It was extremely interesting and I shall study it carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.98 not moved.]

9 p.m.

Lord McIntosh of Haringey moved Amendment No: 99 Page 10, line 23, at end insert ("after consultation with such representatives of local authorities and persons representative of chief constables as he considers to be appropriate, and").

The noble Lord said: I did not move Amendment No.98, which was an alternative version of the same point, because I think that on reflection the above amendment, which provides for consultation with persons representative of chief constables as well as local authorities, is more appropriate than consultation only with local authorities.

We are concerned here with the level of grant to police authorities. I believe that it is necessary to set out the background in a few sentences. The White Paper (Cm.2281) on the police service at paragraph 5.14 proposes that there should continue to be joint central and local funding of police authorities. It has been suggested that the division of funding should be 51 per cent. from central government and 49 per cent. from local government. However, none of that actually appears in the Bill.

We know that discussions are taking place among the Home Office, local authority associations and the Association of Chief Police Officers about grant distribution formulae for 1995–96 and we know that the basis upon which those discussions are proceeding is that there should be a 51 per cent./49 per cent. split of grant. All that sou 'Ids entirely sensible to us. We do not in any way oppose the principle.

However, the amounts of money involved are very large. We are talking about £3 billion of police grant. If you want a comparison with local government finance, the figure there is approximately £17 billion of grant to local authorities. Section 78(1) of the Local Government Finance Act 1988 specifies the degree of consultation which will take place on local authority finance. There are elaborate procedures of central consultative committees and so on, some of which are more honoured in the breach than in the observance.

The noble Lord, Lord Dixon-Smith, reminded us a few minutes ago that the police service is part of the local authority service. Surely, therefore, it is right that the same degree of consultation between those who are issuing the grant and those who are receiving and spending it should apply to the police service as to the rest of the local authority services. Moreover, £3 billion is not an insignificant amount. Yet at present it is provided that the Secretary of State should determine the basis of his grant only with the "approval" of the Treasury rather than in consultation with the local authority associations or associations representative of chief police officers.

I do not in any way question the good will of those who are taking part in discussions between the Home Office and those outside organisations. But I think it is right that the consultation process which is taking place should be legitimised in statute, as it is for local government service.

I hope that the proposal will not be thought to be destructive. I would even go so far as to say that it was helpful that the Minister did not seem to think that by saying one amendment was helpful it implied that other amendments were not. But that is his problem and not mine. I believe that the amendment is helpful and is in line with the Government's wish to have a sensible structure for police grant. I hope that it will find favour both with the Government and with Members of the Committee. I beg to move.

Lord Harris of Greenwich

It seems to me that the case for the amendment is self-evident. There is nothing I wish to add to what the noble Lord, Lord McIntosh, said.

Earl Ferrers

Of course I accept that in no way is the noble Lord's amendment destructive. I also realise that the spirit of his amendment is to ensure that the Home Secretary should rim make up his mind in a vacuum. That is an entirely reasonable spirit. But I do not think it necessary to impose upon the Home Secretary a statutory obligation to consult either with local authorities or chief constables, or, indeed, both.

The Home Secretary will in fact consult widely with chief constables and local authorities on the distribution of police funding. The Department of the Environment, which we expect to use the same formula as the Home Office in distributing its share of the funding to the new police authorities, is already bound to a process of consultation with the local authority associations. Therefore, to bind the Home Secretary as well in a similar way would appear to duplicate the process.

The consultation process of the Department of the Environment does not involve chief constables. The Home Secretary wants to be able to discuss his proposed distribution formula simultaneously with the local authority representatives and chief constables. We believe that the most effective and least bureaucratic way of doing that is through a non-statutory process.

However, in view of the noble Lord's remarks, I am quite happy to give the matter further consideration to see whether there is any advantage in drawing the two together or whether it would merely result in greater bureaucratisation of a process which will take place in any event. I shall certainly give the matter a little more thought.

Lord McIntosh of Haringey

I am most grateful to the Minister for that response. I can hardly resist the invitation to withdraw the amendment. I confess that I find it a little strange to argue that, because the Department of the Environment consults on a statutory basis on the distribution of its grant, it would be duplication for the Home Office to consult on a statutory obligation for its portion of the grant. I should have thought that it would simply be keeping the two sets of consultations in line and in particular would permit and encourage consultation with associations representative of chief constables as provided in the amendment. But no doubt those are matters which the Minister will take into account when he reconsiders the issues raised by the amendment. I am grateful to him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No.100: Page 10, line 34, at end insert ("together with the allocation criteria that have been applied. ").

The noble Lord said: In moving the amendment I shall, with the leave of the Committee, speak also to Amendment No.101. We come now to rather curiously worded parts of Clause 13. Subsection (4) of the new Section 31 of the 1964 Act says: In determining the allocation among police authorities of the whole or any part of the aggregate amount of grants, the Secretary of State may exercise his discretion by applying rules decided upon by him and then applied without modification by reference to the particular circumstances of each authority".

There are some elements here which appear to be helpful and welcome. The phrase "without modification" as a qualifier to the rules "decided upon by him" (the Secretary of State) are helpful because they appear to discourage particular treatment of certain police authorities, although, as we shall come to consider when we look at Amendment No.102, that intention seems to be weakened by the wording of subsection (5) in Clause 13.

I believe that everyone who is involved in these grant matters agrees it is important that there should be some transparency, and that the Secretary of State should be able to describe publicly and explicitly the grant allocation formula which he has applied in addition to the amount of grant payable to each local authority, and the considerations which he takes into account.

I have been making comparisons with local government. I am conscious that the complexities of the local government grant system have increased so much in recent years that the claim of transparency is probably difficult to sustain. Much of the revenue support grant and standard spending assessments for local authorities are now far from being transparent. They are dependent on quite complex multifarious analysis with factors which can possibly be expressed in numerical terms but which cannot easily be expressed in plain English. I know that the local authority associations are dissatisfied with the way in which standard spending assessments and revenue support grants are arrived at.

If I am arguing for greater transparency, it should not be thought that I am agreeing that the existing local government finance system is successfully transparent. There was a time in the early 1970s when I thought I understood that system. That period lasted for about six weeks and then changes took place and I lost that understanding. I have never regained any successful understanding of local government finance since that time. Others who have been involved in that area, such as the noble Baroness, Lady Gardner, might feel that complexities are piled upon other complexities in local government finance at such a rate that it is difficult to keep up with them.

The proposed new subsection (4) of this clause can be interpreted in a number of different ways. The subsection may permit the Home Secretary to determine the grant distribution rules and then apply them to police authorities only by reference to the particular circumstances, which have yet to be determined, of equal authority. Line 36 on page 10 of the Bill refers to the, whole or any part of the aggregate amount of grants"— that is, the grant to all police authorities. If there is freedom to vary the parts of the aggregate grant as between police authorities, is it not possible, at least, that the Secretary of State is being given power to vary his grant on his own terms between police authorities? Does that not mean that the phrase "without modification" in line 39 on page 10 of the Bill, has no real value? This is an opaque subsection. We believe that our alternative wording in Amendment No.101; namely, The Secretary of State shall issue common rules, which shall govern his determination of the allocation among police authorities of the aggregate amount of grants is not only fairer but much easier to understand. I beg to move.

Earl Ferrers

The effect of Amendment No.101 is to require the Secretary of State to apply common rules when allocating available grant to police authorities. The Bill takes particular care to avoid imposing too rigid a set of rules and specifically provides a discretion on the part of the Secretary of State, rather than a duty, to use rules to allocate grant. The Bill is also particular in providing the Secretary of State with a power to apply any rules to part of the total grant only, and also lets him treat different police authorities differently. There is good reason for that.

Amendment No.100 would require the Secretary of State to set out these proposed common rules in his report. It is therefore related to Amendment No.101. Work is in hand to devise a means of allocating grant to police authorities on a fair and equitable basis which is determined by the need for policing in each area.

The noble Lord, Lord McIntosh, said that at one time he believed he understood how the standard spending assessment formula worked and that he understood it for about six weeks but after that period it was changed and he no longer understood it. Of course it is a complicated formula and we are trying to find a new formula. However, it is never easy either to find a new formula or, having found it, to understand it. We want to be as objective as possible. However, it is extremely unlikely that any rules which may emerge from such an exercise will allocate grant fairly to both a provincial police authority and to the Metropolitan police district. In addition to local policing, the Metropolitan police, as we know, additionally carry out a range of national and capital city functions for which finance must be provided.

We are also anxious to avoid any one police authority experiencing a significant change in its resources from year to year. We intend to introduce any changes gradually by limiting to an acceptable level the changes which may occur from one year to another. The Bill allows us to do that. We would not be able to do that if the amendments were accepted. My fear would be that the immediate application of common rules could result in some police authorities suffering a sudden and unacceptable decrease in funding.

For those reasons I do not believe that we could apply common rules in the way proposed by the amendments. It would not be fair to do so. I hope that the noble Lord, Lord McIntosh, will realise that we are trying to make sure that such changes as are necessary are introduced gradually so that no police authority suffers a severe decrease in funding in any one year.

9.15 p.m.

Lord Renton

I am a little puzzled by some of the wording in subsection (4). It states that: the Secretary of State may exercise his discretion by applying rules decided upon by him and then applied without modification"— so far, so good— by reference to the particular circumstances of each authority". I do not know how he is to refer to the particular circumstances without finding it necessary to make a modification.

Lord McIntosh of Haringey

The noble Lord, Lord Renton, has a point. There are internal contradictions in subsection (4). The allocation is of the whole or any part of the aggregate amount of grants. That is extremely loose and fluid. Then the Secretary of State exercises his discretion, which again is fluid. Then he applies rules which he decides upon himself without modification, which appears to be slightly more rigid.

We welcome any assurance of transitional relief, which I believe is what the Minister was referring to; in other words, that any changes will be introduced gradually. However, that offer has led him into a misunderstanding of what is contained in the amendments. The noble Earl referred to the dangers of a rigid set of rules. The amendments do not propose a rigid set of rules. They propose that the Secretary of State should issue common rules. If he does not want rigid rules then he will not have rigid rules. That is up to him.

Nor is there anything in the amendments which makes it impossible for the Secretary of State to issue rules which include transitional arrangements to make sure that changes in grant take place gradually over a period of years. That transitional relief element of the Minister's answer is a red herring as regards the amendments. The Home Office appears to be determined that the Secretary of State can do what he likes about grant and can allocate grant between authorities without any real consultation or transparency in the way in which he does so.

I do not consider the answer at all satisfactory. It did not adequately answer the points raised in the amendments. Nor did it answer the criticisms which the noble Lord, Lord Renton. and I made of the comprehensibility of subsection (4). I shall beg leave to withdraw the amendment, but this is a matter to which we shall wish to return at a later stage.

Amendment, by leave, withdrawn.

[Amendment No.101 not moved.]

Lord McIntosh of Haringey moved Amendment No.102: Page 10, line 41, leave out subsection (5).

The noble Lord said: With Amendment No: 102 we turn to subsection (5) of Clause 13, which is even more curiously worded. It states: The considerations which the Secretary of State takes into account in making a determination under subsection (2)"— which is the determination of the aggregate amount of grants and the distribution of those grants— and the rules referred to in subsection (4), "— which are the curious rules about the "whole or any part", "without modification", and the "particular circumstances of the authority"— may be different for different authorities or different classes of authority".

That seems completely to negate any of the suggestions in the earlier subsection to transparency, to rules, to consultation or anything else. In other words, the Secretary of State consults, he sets up rules, he applies them without modification, and he can apply them differently to any authority or any class of authority.

If one were charitable one might think that there was a possibility that the Metropolitan police authority could be thought of as a different class of authority and that that may represent a desire to make a distinction between the Metropolitan police area and the areas outside the Metropolitan police area. In that case it is an idea which has yet to find expression on the face of the Bill. As matters stand, it is a classic case of saying, after well over half a page of verbiage, that the Secretary of State may do what he wants. It is a thoroughly unsatisfactory way to draft the Bill. I beg to move.

Lord Monkswell

I support the amendment. The anxieties I have had are crystallised. One of the important aspects of the police force is its political impartiality. That consideration does not apply to many other local government functions. Local politicians have a much greater say in how services are delivered, the effect of which has been to produce political tensions. Over the years we have seen different classes of local authority areas with different types of local authorities being treated differently by governments of both political complexions. That is bad enough with different types of local authority areas. I refer, for example, to revenue support grant being given in one year for urban areas, and in another year for the rural shire areas.

Recently, the situation has become more blatant. We have classes of areas receiving apparently specific preferential treatment. I think of Westminster and Wandsworth, and the zero or low poll tax that they seem able to levy. Such political favouritism strikes people as blatantly unfair. It is important that we do not arrive at a similar situation with regard to the police. 'They should be above politics. The Secretary of State should not only be unable to show such favouritism; he should not appear to be seen to do so. I make a plea to the Government. The Bill needs to be redrafted to ensure openness and fairness which everyone can see and to ensure that different police forces are not favoured because of some political correctness in their activity.

Baroness Gardner of Parkes

Perhaps I may take up the point raised by the noble Lord. I fought the case in this House. There was a clear and openly declared argument as to why the Westminster council should have had additional help at the time of the introduction of the non-domestic rate. The reason was that all the money—it was a huge amount—which the City of Westminster was entitled to claim went direct to the Treasury. I do not know whether the noble Lord, Lord Monkswell, took part in the debate. However, the City of London was considered to be so different from other areas that reference to it was taken out of the Bill, as later were references to Westminster and then Camden. I cannot allow the noble Lord's remark to go unchallenged. The matter was discussed and well aired in this House.

Lord Monkswell

Perhaps I may reply. That may be the reality. The problem is that it is not the perception. That is important. The people of this country should see that their police are not being subjected to political pressure, particularly from the Home Secretary.

Earl Ferrers

These matters are always confusing and complicated. The noble Lord, Lord McIntosh, feared that the Bill as drafted would enable the Secretary of State to do what he likes. There is always a difficulty in trying to find a formula which is suitable, using it and sticking rigidly to it so that it has to apply to every conceivable set of circumstances and there can be no flexibility attached to it. The noble Lord's amendment removes subsection (5) of the new Section 31, which is inserted by Clause 13. That subsection allows the Secretary of State to take into account different considerations for different police authorities or classes of police authority when he decides the amount of grant which each authority should receive. It also allows the Secretary of State to apply different rules or formulae to different police authorities or classes of police authority when allocating grant between them.

One effect of the amendment would be to prevent my right honourable friend from providing the Metropolitan police with sufficient money to cover its national and capital city functions. That effect would obviously be undesirable and would act against efficient and effective policing.

The new Section 31(5) is not limited to the Metropolitan police. There could be other classes of police authority, depending on the size of the population in a police area, the extent to which the police area is urban, and so forth. So although one has to have a formula, there must also be flexibility within it. That is why I think it would be wrong to remove that flexibility which I fear the amendment would do.

Lord McIntosh of Haringey

Frankly, that is gobbledegook. There is no point at all in having rules if the rules may be different for different authorities or different classes of authority. We may as well just say: "I think the Met. should have this, Lancashire should have that and Gwent should have the other", and set different rules for each of them and go ahead and allocate the money.

The idea in subsection (4) of having rules which are decided and then applied without modification, which are then permitted to be modified—in other words, to be different for different authorities—is self-contradictory. I know perfectly well what the Government are trying to do; I am under no illusions about it. I suspected that part of the excuse for it would be the differences between the Met. and other police authorities; but it does not get away from the fact that all the talk on the earlier part of Clause 13 on the considerations being taken into account or the rules being set is completely vitiated by the last two lines on page 10 of the Bill.

Lord Renton

Will the noble Lord allow me to intervene? The contradiction to which he referred—and he has made a valid point—could be simply removed by omitting from the penultimate line of subsection (4) the two words "without modification". Then the Home Secretary would have the flexibility which I personally think he should have and which my noble friend has advocated.

Lord McIntosh of Haringey

The noble Lord, Lord Renton, is removing the contradiction by that suggestion, but it is going in the wrong direction. He is then confirming our view that the clause gives the Secretary of State all the discretion he wants. The words "without modification" are of no value in the light of the phrase in subsection (5): may be different for different authorities or different classes of authority". It has no function, no purpose; it is redundant. We would much prefer to see the words "without modification" retained and to remove the phrase: may be different for different authorities or different classes of authority". Alternatively, at least the words: may be different for different authorities should be removed. We might be prepared to argue about "classes of authority", but "different authorities" gives the game away. We know what the Government want to do. They want to set their own rules and they do not wish anyone to know what the rules are. We shall continue to resist this kind of discriminatory provision in such Bills.

Incidentally, although I do not wish to get into the argument about the funding of Westminster, I seem to remember that having won its first battle about the non-domestic rate, Westminster seems to have received very favourable treatment on the cost of snow clearance. Its costs were almost certainly virtually non-existent; but it was given much higher grant status than many northern authorities which have snow clearance problems. Westminster had it coming and going and still does, as regards the distribution of revenue support grant. The effective pleading of the noble Baroness, Lady Gardner, does not make the outcome any more just. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No.103: Page 11, line 7, after ("time") insert (", in the financial year concerned").

The noble Lord said: For the purposes of this amendment, I turn to subsection (7) of Clause 13. I will read out the provision in toto to remind the Committee of the extraordinary situation in which it finds itself: A grant to a police authority under this section shall be paid at such time, or in instalments of such amounts and at such times, as the Secretary of State may with the approval of the Treasury determine; and any such time may fall within or after the financial year concerned".

I know what the approval of the Treasury would be on these matters. The Treasury would set a grant and pay it five years late because that would be very good for the public sector borrowing requirement. What conceivable justification can there be to allow the Secretary of State, with the approval of the Treasury, to pay indeterminate amounts of grant after the end of the financial year concerned?

If there is a case for specific parts of a grant, perhaps performance-related parts, to be paid after the end of the year—I cannot see a case for it but I can see how somebody may argue it—the Bill should say so. What it should not do is give the Secretary of State and Treasury the ability to pay as little of the grant as they like within the financial year concerned. Having risked antagonising the noble Baroness, Lady Gardner, by my remarks on the previous amendment, I hope that as a responsible local government person she will feel inclined to support the amendment. Late payment of grant to a local authority or police authority can be extremely damaging. If it is necessary to have a deferred payment the reason and amount should be spelt out in the Bill. There should not be carte blanche for late payment as is provided in the Bill.

Baroness Gardner of Parkes

I do not intend to go into great detail about snow. After all, the snow was offset by the large refugee contribution. We could go on debating that matter forever.

Referring to the particular amendment, I wondered whether the wording in the Bill was to enable people to receive money in terms of the accounting procedures rather than in reality. I will be interested to hear the reply of the noble Earl.

Earl Ferrers

I am frightened to give a reply. The last reply I gave was said by the noble Lord, Lord McIntosh, to be gobbledegook. I suppose he meant by that that he could not understand it. I do not know whether or not he will be able to understand this reply. He was a bit hard in asking what conceivable justification there could be for paying a grant after the end of the financial year. He said that it was a wicked Treasury ruse so as not to pay grant for another five years. It is always fun to go off at an extreme and exaggerate. I think that the noble Lord, Lord McIntosh, will realise in the quieter moments of this evening when he has left the chamber that he has made the most monumental exaggeration that he has not intended to make.

The fact is that the effect of these three amendments will be to require that all grant is paid to police authorities within the financial year to which it relates. Of course, in the vast majority of cases all grant will be paid in the year to which the grant relates; otherwise, police authorities cannot function and will have no money to secure the maintenance of efficient and effective police forces for their areas.

There is a provision in new Section 31 that permits the Secretary of State, after he has made his main determination for the year, to vary that determination. This could mean that either a different total amount of grant was available or that the amount of grant to be made to certain police authorities was being changed. That could happen if local or national circumstances changed significantly during the year.

New Section 31 (which is Clause 13 of the Bill) requires that all reports setting out determinations of grant, including those which vary an earlier one, must be laid before another place and receive its approval. It is perfectly conceivable that the Secretary of State might make a fresh determination varying an earlier one towards the end of the financial year. If these amendments were adopted, the fresh report would need to receive the approval of another place and the grant would all have to be paid before the end of the financial year. If that were not possible, the grant could not be paid. That would make nonsense of the provision which allows the Secretary of State to vary his original determination. At worst, another place could approve a revised payment of grant just before the end of year guillotine, leaving no time for it to be paid. It is essential that we have some flexibility here.

That is why we would not wish to see the noble Lord's amendments accepted. 'But it is a perfectly good reason to say that there should be flexibility and in this case, far from the Treasury not wanting to pay the grant for another five years, it enables it to pay the grant, which should the noble Lord's amendments be accepted it might not be be able to pay.

Lord McIntosh of Haringey

With his usual moderation, the Minister accused me of monumental exaggeration. But he only achieved that by misrepresenting both the amendments and my arguments for them. I specifically admitted the possibility that there might be some part of a grant which would have to be paid after the end of the year. I said that if there were some good reason for paying a grant after the end of the year, that should be explained in the Bill and late payment should be limited to that part of the grant.

On reflection, I rather doubt whether my moderation was justified. I could have been a good deal more extreme. After all, in local authority finance for a number of years there have been cash limited payments rather than payments based on spending. The £17 billion revenue support grant is all successfully paid on a cash limited basis within the revenue year concerned.

In the old days, when there were grants based on actual spending, it is quite true that payments were made the year after and sometimes the year after that. Sometimes the accounts were not closed for a couple of years after the end of the financial year concerned. But with the introduction of cash limited payments, that was no longer necessary and the Department of the Environment now pays all its grants within the financial year concerned. Police authorities' grants are now to be changed from grants based on spending, where there could be a case for late payment, to cash related grants, where there is no case for late payment.

The Minister has succeeded in misrepresenting the position about payments to a very substantial extent. In his reply he made no reference—though he would have been duty bound to do so if he had been representing the position fairly—to the difference between spending related grants and cash limited grants. I wonder whether he would care to explain to the Committee 'why cash limited grants, which are paid by the Department of the Environment within the year, cannot be paid by the Home Office within the year.

Earl Ferrers

I do not know that I would particularly like to explain that. But I have no doubt that there is a very good reason for it. I shall see what that reason is and let the noble Lord know.

Lord McIntosh of Haringey

It seems to me that this is a fundamental point about which the Minister should have known. I shall seek the opinion of the Committee on this amendment.

The Deputy Chairman of Committees (Lord Lyell)

The Question is that Amendment No.103 be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the "Not-Contents" have it. Clear the Bar.

Division called.

The Deputy Chairman of Committees

Tellers for the "Contents" have not been appointed pursuant to Standing Order No.51. A Division therefore cannot take place, and I declare that the "Not-Contents" have it.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos.104 and 105 not moved.]

9.43 p.m.

Baroness Hilton of Eggardon moved Amendment No.106: Page 11, line 36, at end insert (", with diplomatic protection and with major public events").

The noble Baroness said: Amendment No.106 again concerns the police grant. This subsection of Clause 13 allows grants to be made for national security matters. The amendment is a probing amendment to establish what comes under the heading of "national security". We suggest that diplomatic protection should be included to clarify what the grants can cover.

Providing protection cover for diplomats and other people who are threatened is an expensive outlay for a force and varies greatly from one part of the country to another. It requires five police officers to maintain 24-hour coverage and that is an extremely heavy drain on the budgets of smaller forces. It may also be required erratically. People may visit a country house or go on holiday to a different county from time to time. Those occasions may not be predictable by a force. Our feeling is that that type of erratic outlay should be covered by a central grant.

Does national security cover the cost of policing, for instance, the Conservative Party conference? That is a considerable outlay for the individual forces of Sussex and Lancashire when the party conferences take place there. The cover of the Conservative conference in particular is an extremely heavy drain on the local police force, particularly following the Brighton bombing. If those events are covered by the term "national security", there is no need for the amendment. The amendment is intended to spell out to some extent what is included under the "national security" grant.

Other major public events which happen within a force area from time to time and which cannot be predicted are pop festivals—a heavy drain on police manpower—and, alas, street riots. If there is major public disorder within one of our cities and mutual aid is required, that can mean extremely heavy expenditure for the force concerned. I am somewhat comforted by what the Minister was saying earlier about grants. He seemed to suggest that there was some flexibility in the ability to give forces extra grants during the year and other grants not budgeted for. However, I should be grateful for elucidation of "national security" and whether it covers these unforeseen and erratic events which can throw out a force's budgeting.

Lord Harris of Greenwich

I obviously agree with the amendment as my name is attached to it. I realise that one cannot spell out in the utmost detail what is meant by "national security" in every conceivable case but I think that some more general indication should be given. As the noble Baroness, Lady Hilton, said, there is the question of party conferences. The party conference of whatever government may be in power is obviously more at risk of terrorist attack than the conferences of parties which are not in power. My impression is that there is support for police cover at party conferences. No doubt the noble Earl will tell me whether that is true. If not, it is an immensely heavy burden on the forces in Lancashire and Sussex in particular.

As the noble Baroness said, the burden of providing cover, particularly for diplomats, in some of the smaller police force areas is now extremely substantial. It would be helpful if the noble Earl were able to say what action can be taken to clarify the matter.

Baroness Gardner of Parkes

I see that my Amendment No.106A is grouped with Amendment No.106. That is obviously because it covers more or less the same topic although my interest is the Metropolitan police service. It is therefore of interest that the noble Baroness has covered so widely the areas outside London on which I would not have been able to comment so well.

The Metropolitan police service performs a large number of national and international functions. I use that wording in my amendment because of its role as the police service for the capital. Those functions include protection of the Royal palaces and members of the Royal Family, protection of diplomats and diplomatic premises, the investigation of terrorist offences and compilation of associated intelligence, armed personal protection for Ministers and other VIPs, national Special Branch responsibilities, international investigations carried out at the request of the Government and the extradition of fugitives wanted in a foreign state.

Under existing legislation the Metropolitan police receive an extra 1 per cent. in specific grant to cover the cost of these national and international functions. The shire forces receive a specific grant of 51 per cent. of eligible costs and the Metropolitan police receive 52 per cent. The actual value of the extra 1 per cent. to the Metropolitan police gives them about £15 million in a year in addition to the specific grant of £35 million. However, the actual cost in 1992–93 was £69 million. So there was a shortfall of at least £18 million. The latest estimated cost for the current year is £95 million. We are therefore talking about considerable sums of money.

I was interested when the noble Baroness, Lady Hilton, referred to party conferences. There are also huge football programmes. There must be all kinds of things throughout the country where special demands are made of the police force. It is very important for us to have recognition of the very special costs associated with these matters. I support the amendment.

Lord Monkswell

Perhaps I may use this amendment to ask a question about this part of the Bill. It says that a grant can be made in connection with safeguarding national security. Is that aimed at effectively setting up a tranche of police funding that will be geared to national security and that therefore, in each police force, there will be a certain sum of money for safeguarding national security? Alternatively, is it for making exceptional grants to police forces which are subject to exceptional circumstances? If the grant is to meet such circumstances, surely there are going to be other exceptional circumstances and unforeseen occurrences which will arise apart from those affecting national security.

We need some explanation as to the purpose of these grants and whether the Government have a mechanism. How would they envisage reimbursing a police authority which is subject to really exceptional and unforeseen expenditure which it would be unable to meet in normal circumstances?

Earl Ferrers

The amendments would make the funding of diplomatic protection and major public events, and national and international functions, exceptions to the general rule of police authority funding as provided under the new Section 31. Grant allocation under the new Section 31 requires the approval of another place before any payment can be made. The only exceptions to that in the Bill are grants for capital expenditure and in connection with national security.

Capital funding for major projects at least cannot be catered for in the same way as the bulk of police authority funding. By its nature it is lumpy and driven by factors different from general police running costs. If a police authority needs a new headquarters building, for example, it needs a great deal of money for a year or two and then none for a long time. It may not be possible to quantify how much it will need at the start of the financial year. For that reason we need the separate provision in the new Section 31A.

The purpose of tae new Section 31B is to allow grant to be given for particular police operations against threats to national security which cannot be funded through the normal grant mechanism. Obviously, it is important to keep these exceptions to an absolute minimum. The provision reflects our experience in practice that there are just one or two such cases in which there is a need for special funding provision, but the Committee will understand that I would rather not go into detail on matters relating to national security. My noble friend Lady Gardner of Parkes, quite correctly referred to the fact that the Metropolitan police gets 1 per cent. extra for the international and national responsibilities which it carries out. That is a fact.

These amendments propose adding to those exceptions. I do not believe that there is a need for that. The funding of diplomatic protection, major public events and of national and international functions, can be dealt with perfectly adequately under the new Section 31. Certain items of expenditure such as these do fall unevenly on individual police authorities and we realise that. It might be possible to take account of them in the formula which my right honourable friend, together with the Association of Chief Police Officers and the local authority associations are currently seeking to devise as a means of funding police authorities by reference to the need for policing. If not, there is still no problem. There is no requirement for any funding allocation formula to apply to all the grant available. Provided my right honourable friend can justify his allocation of grant, and provided the allocation receives the approval of another place, he has discretion over the allocation of grant. Special funding needs can therefore be catered for. New Section 31 is flexible enough to accommodate them. It is not necessary to treat them separately.

One or two of your Lordships referred to party conferences. The policing of party conferences is the responsibility of the local force. I know that it makes fairly severe inroads at any one time, but it is the responsibility of the local force although central government contributes in some shape or form to the security arrangements for party conferences. However, I do not think that amendment is about party conferences. This is a general provision relating to national security. It includes diplomatic protection, but is not confined to that. That is as far as I can go on national security.

As I have said, the Government contribute to the security arrangements for party conferences, but the policing of the conferences is the responsibility of the local force. I hope that the Committee will feel that it is reasonable that we should have such limited exceptions but that there should not be too many.

Baroness Hilton of Eggardon

I am grateful for that response although I am still not terribly clear about what comes under the heading "national security". I should have thought that a little more could have been said without betraying any secrets. We shall consider the Minister's reply carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Gardner of Parkes moved Amendment No.106A: Page 11, line 36, at end insert ("and national and international functions. ").

The noble Baroness said: I wish to move this formally because I have already spoken to it—

The Deputy Chairman of Committees

Does the noble Baroness not want to move her amendment?

Baroness Gardner of Parkes

I wish to move it formally.

The Deputy Chairman of Committees

The Question is, That this amendment be agreed to.

Baroness Gardner of Parkes

Perhaps I could ask for some procedural assistance. I thought that by moving the amendment formally it would appear in Hansard, which otherwise it would not, and that the Minister would be able to say that he had already spoken to it and that I would then be able to withdraw it.

Earl Ferrers

I am most grateful to my noble friend for telling me what to do. I have already spoken to this amendment and I think that my noble friend understands what I have said.

Baroness Gardner of Parkes

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clause 14 [Conduct and efficiency of police officers]:

Baroness Hilton of Eggardon moved Amendment No.107: Page 12, line 4, after ("procedures") insert (", agreed between the Home Secretary and the Police Staff Associations, ").

The noble Baroness said: We now move on from matters of police grant to consider matters relating to conditions of service. We are now into the area of police discipline, pay, remuneration, probation, promotion, rank structure and so on.

The proposed discretionary powers in this clause strengthen the Secretary of State's current obligation to consult the police negotiating boards and the Police Advisory Board on professional matters. In any organisation it is essential that one carries the members of that organisation with one. If there is no obligation on the Home Secretary to agree questions of procedure and discipline with the staff associations, the morale and good conduct of the police service will be adversely affected. This amendment is therefore intended to ensure that the staff associations are formally involved in reaching decisions with the Home Secretary about the regulations. I beg to move.

10 p.m.

Lord Bethell

I am an adviser to the Police Federation and I can say that there is a fair amount of support for the amendment. There is a vague idea of what the procedures envisaged in Clause 14 would be. Many serving police officers fear that they may have an adverse effect on their chances should they ever, as innocent policemen, be the subject of disciplinary proceedings. In particular, it has been suggested that under the procedures there would be a less onerous proof of guilt on a police officer charged with an offence; that the burden of proof would be reduced from "beyond reasonable doubt" to "on the probabilities of the matter". I should be grateful if my noble friend the Minister would comment on that.

Lord Renton

I hope that my noble friend will not accept the amendment. In my opinion it would be unconstitutional. We are dealing with regulations which are to be in the form of secondary legislation. To say that the regulations must be agreed with the police staff associations in effect gives the associations a veto as to the contents of the regulations. If the amendment were to read, after consultation between the Home Secretary and the Police Staff Associations", that would be perfectly in order and would meet the point made by the noble Baroness, Lady Hilton. My comments about Amendment No.107 apply with equal force to Amendment No.108. Having said that, I hope that it will prevent me from making a certain speech.

The Earl of Winchilsea and Nottingham

In rising to add my support for both the amendments, I wish to say that their purpose is to ensure consultation with and involvement of the relevant police staff associations. It is important that the public have confidence that complaints brought against the police by the public are dealt with fairly and squarely. But it is equally important that police officers must be protected from malicious and ill-founded complaints being brought against them and that the present principle in operation—namely, searching for the truth, with the necessary safeguards for the officer—should be retained.

In the main, police discipline proceedings result from complaints against officers. The majority of these complaints are malicious and are a form of counter-charge against officers who have executed the duties with which we charge them. If you, as a police officer, believed that as a result of a complaint against you for doing your honest duty to the community you could be tried before a kangaroo court, operating with a substantially reduced level of proof, what would your reaction be? If I were such a constable at risk of complaints against me which could jeopardise my job and my future as a result of the diligent application of my duty, the way I would avoid such dangers would be to avoid those duties. I would, for example, drive more slowly to an incident or take a wrong turning; turn the volume down on my radio or turn it off altogether; walk around the corner before any incident and keep walking, and also keep my job.

It is my belief that the legislation has professionally emasculated the operational effectiveness of the police service, though dedication and courage remain. I would hate to see us drive those qualities away too. When the whistle blows we want those front-line bobbies to come out of the trenches and confront our common enemy. Under this threatened legislation, if those bobbies want to stay in a job they will stay safely below the parapet—would not you? The police service in its entirety must have absolute confidence that the system is fair.

What is so wrong and terrible about consultation that prompted the Home Secretary to announce his decision on police misconduct at the Police Superintendents' Association Conference at Torquay in September of last year? At that time, all three staff associations thought that they were still in the period of consultation.

We are constantly being exhorted to guard against waste in all its forms. We are told that we must increase our efforts to become more efficient and provide better and more cost effective services and yet here we are ignoring and rejecting the vast amount of knowledge and professional expertise that has been built up over many years by the three police staff associations. That was offered to the Government with all the goodwill in the world but it has been cast aside and, therefore, wasted. Can we afford to indulge in that obscene form of waste? I ask the noble Earl to take note of that and to listen to what the three police staff associations have to say. After all, they are the experts who remain, in the main, anxious to help.

I conclude by quoting from a letter dated 28th January this year to the Home Secretary from the president and secretary of the Police Superintendents' Association. It says: The police service is not against change, but what we ask is only that change takes place after proper and careful evaluation of what is happening now, followed by careful planning and development of what might replace it. The best change—the change likely to succeed and improve—is the change which is implemented by, driven by, and supported by, those involved in carrying it out".

Earl Ferrers

This clause is about the provision of the establishment of procedures in which a member of the police force can be dealt with by dismissal, the requirement to resign, reduction in rank, reduction in rate of pay and reprimand or caution; in other words, how those procedures are to work.

My noble friend Lord Renton was quite right that the staff associations have a clear interest in the content of regulations which affect their members. But it would be quite wrong to fetter the Home Secretary's discretion so that he can only make regulations with regard to police officers provided that he has first had the approval of the staff associations.

As my noble friend said, that would give the staff associations a veto on the regulations. My noble friend said he thought that the point would be met if my right honourable friend had to consult the staff associations before he made the regulations. That is exactly what he does. My right honourable friend is obliged to consult the police advisory board under Section 46 of the Police Act 1964. The staff associations are all represented on the police advisory board. Therefore, they will be consulted before the Secretary of State lays the regulations. However, I believe that it would be going too far to require their consent because that would mean that if the Secretary of State wished to produce regulations which he thought were necessary and appropriate and the staff associations did not agree, then my right honourable friend would not be able to lay those regulations. That would be wrong.

I give the noble Baroness the assurance that consultation will take place on those matters. Moreover, I should say to the noble Earl, Lord Winchilsea, that I understand the anxieties of the staff associations, which he expressed. Regulations will be produced which will change that to which everyone has become accustomed and that creates anxiety. But it is right that there should be a more simplified system than hitherto, and the associations will be consulted before the regulations are laid.

Lord Bethell

Can my noble friend address the point that I raised with him about the reduced burden of proof in disciplinary cases?

Earl Ferrers

I apologise to my noble friend for omitting to address that point. I wonder whether I might write to him on the matter.

Lord Bethell

Yes.

Lord Harris of Greenwich

I do not want to make heavy weather of the matter at this late hour. However, as the noble Earl will recognise, the point raised by his noble friend is fundamental to the anxiety in the police service about the new disciplinary regulations. As it happens, I believe that there is a case for change; indeed, I have made that decision publicly clear. But, nevertheless, there is widespread concern on the question and it is essential that it should be cleared up on the Floor of the Chamber at some stage so that we have a record of the Government's position.

Earl Ferrers

Perhaps I may assist the noble Lord a little in that respect. The criminal burden of proof was always held to be necessary in the past. We are trying now to make such disciplinary matters more a question of managerial decision. Perhaps I may put it this way. If a person is considered to have done something sufficiently criminally wrong, he will be taken before a court and subjected to the criminal burden of proof. Then, whether or not that person has been convicted by the court, you consider whether that officer is of a sufficient capacity and quality to be a competent police officer. In other words, those concerned will have to consider whether they wish that man to remain in the police force. That is a disciplinary matter which should not be subject to the criminal burden of proof but which should be subject to the lower burden of proof which is more likely than not as in a civil case. Therefore, there is a difference. However, it is mostly a managerial decision whether that officer is considered to be a sufficient kind of person to remain in the police force.

Lord Archer of Sandwell

I hope that the noble Earl will forgive my intervention. I hate to be tiresome at this time of the evening, but is he saying that a decision on the facts on which that managerial decision will be taken will be decided on the balance of probabilities and not on the criminal burden of proof?

Lord Renton

Perhaps I may follow up that question. I should have thought that Members of the Committee would have appreciated that it is in the interest of the members of the police forces that the strictest and strongest burden of proof should prevail before they are found guilty of anything. If we are to relax the burden of proof, it cannot be in their interest.

Earl Ferrers

I shall try to help Members of the Committee. If a person has done something criminally wrong, he will appear before a court and be subjected to the criminal burden of proof. It is possible that the court will acquit him and find that he is not guilty of a criminal offence. But then the chief constable is entitled to ask whether that person is of a sufficient calibre to be a policeman. That is a managerial decision. The chief constable may well consider for a variety of reasons, and even though the person may not have been convicted by a court, that nevertheless he is not a suitable person to remain in the police force. That would require a lower burden of proof.

Lord Harris of Greenwich

I do not intend to pursue the point now. As the noble Earl has recognised, we are discussing a highly complex issue. If the noble Earl thinks it a good idea—and, of course, the noble Lord, Lord Bethell did—it might be better if the noble Earl was able to give a fuller explanation of what is proposed on Report. In that way, he would have the opportunity to consider carefully what he will say. It is to be hoped that that would also meet the concerns of the noble Lord, Lord Bethell. As we all know, the issues are highly sensitive. It is obviously most important to get it right.

Lord Bethell

The noble Lord is quite correct. The point I raised is fundamental and one which rouses the greatest anxiety among members of the Police Federation of England and Wales. It would be very much to the advantage of everyone and, I believe, to the police service, if the matter could be cleared up on the Floor of the Chamber on Report as suggested by the noble Lord, Lord Harris of Greenwich, and not in a letter to me from my noble friend.

10.15 p.m.

Earl Ferrers

Of course, I would be entirely happy to do that. I was inveigled into answering by my noble friend's question. That was probably unwise as these are sensitive matters. I hope that in anything I said I have not gone over the bounds of propriety or correctness. I was going to suggest that I should write to my noble friend, send a copy of the letter to the noble Lord and lay a copy in the Library. That may be the best thing to do. Then, if my noble friend wishes to return to the matter or raise it on Report, we can do so.

Baroness Hilton of Eggardon

I return to the amendment and the point made by the noble Lord, Lord Renton. It should refer to consultation and not agreement. I shall withdraw the amendment at this point and perhaps return to the matter on Report with an amendment that refers to consultation with the staff associations. I believe it is important to have this matter on the face of the Bill although the Minister has assured us that consultation will take place. As I said, I will return on Report with an amendment that refers to formal consultation with staff associations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Winchilsea and Nottingham

had given notice of his intention to move Amendment No.108:

Page 12, line 29, after ("terms") insert (", of a type agreed between the Home Secretary and the Police Associations, ").

The noble Earl said: I have already spoken to this amendment.

[Amendment No.108 not moved.]

Lord Mottistone moved Amendment No.109: Page 12, line 29, leave out from ("made") to end of line 30.

The noble Lord said: In moving the amendment I wish to speak also to Amendments Nos.130 and 143 which stand in my name. Amendment No.130 relates to the Scottish part of the Bill and Amendment No.143 to the Northern Ireland part. Amendment No.109 is grouped with Amendments Nos.110 and 111. I understood that the Association of Chief Police Officers was most uneasy about the possibility of fixed term contracts for people of their rank. It seemed to me, looking at the Bill, that it was probably unsound for the regulations laid by the Secretary of State to be the cause of fixed term contracts for anyone because they are of doubtful value in these circumstances. There is a slight feeling that, if this is done by central government, it is a move in the direction of central control of the police force on a matter of great detail which can seriously affect people. It seems to me that the best thing to do is not to have that facility available within the regulations.

However, that does not mean to say, as I understand it, that individual police authorities might in their own wisdom introduce fixed term contracts for people of certain ranks, whatever those may be, and that that would be something for the police authorities themselves to negotiate. I would like to see much less direction from the centre. Members of the Committee are well aware of my feelings in that regard from what I have said on earlier occasions. I am reinforced in that view from what I have heard in listening to the debate today. I believe that the more these matters can be decentralised, the better the situation will be. I would hope therefore that I might receive a little support. However, at this stage, I view this as a probing amendment to discover how my noble friend will react to it. The nature of his reaction will determine what I do next. I beg to move.

Lord Renton

I wish to support my noble friend's amendment for another reason. The flexibility for which my noble friend Lord Ferrers has pleaded in other contexts at earlier stages of this Committee stage has much to commend it, especially when we come to consider fixed term contracts for fairly senior police officers. An officer may have reached the rank of superintendent at an earlier age than most officers do, and he may be fit for a good many more years' service in that rank. For the police authority and the officer concerned to be tied down to a fixed term may eventually deprive the police authority, and the chief officer of police, of the services of a valuable member of the force who should be allowed to continue to serve in that way.

Lord Mackie of Benshie

I should like to support the amendment. There is universal agreement among sensible people and the police that the Government's proposal would be a step which causes great unease and certainly would not add to the efficiency or the status of the police.

Earl Ferrers

I know that the prospect of fixed-term appointments has caused a number of people anxiety. My noble friend's Amendment No.109 is intended to prevent fixed-term appointments in any rank. Amendment No.130 deals with the same matter in relation to Scotland, and Amendment No.143 covers the point in respect of Northern Ireland. The Government have already accepted that fixed-term appointments are not appropriate for rank and file officers, but they do have a part to play in the appointment and management of chief and assistant constables.

The intention of Amendments Nos.110 and 1l1 is to limit the conditions applying to fixed-term appointments and performance-related pay to those which the Home Secretary was able to agree with other people. The Home Secretary will, of course, continue to consult the police authorities and the police staff associations before introducing or amending police regulations, as he is required to do by statute. The Government place great emphasis and value on the consultation process. But we cannot agree to a proposal that the Home Secretary's authority to regulate in respect of matters for which he is accountable to Parliament should be constrained by the need to secure the prior agreement of other interests.

There is another significant difficulty with Amendments Nos.110 and 111. While the amendments require the Home Secretary to reach agreement with representative bodies, no means is provided of establishing which people can be said to be representative for these purposes.

The Government's proposals for the introduction of fixed-term appointments are sensible. They are consistent with increased emphasis on performance and accountability in the police, and reflect established arrangements in other employment sectors.

Relating pay t performance is, and is generally considered to be, a perfectly reasonable proposition. Distinguishing particularly good performance from the average provides an incentive to people to improve the effectiveness of their contribution. That benefits both the organisation and the individual. The amendment does not prevent the introduction of performance-related pay for rank and file officers or even chief constables. It only says that it cannot apply to assistant chief constables. That would provide for a situation where the financial rewards of the top managers were not dependent upon the quality and effectiveness of their contributions to the police force, but the pay of rank and file officers would be related to the annual appraisal of their performance. I am sure that the Committee will agree that that would be an odd situation.

I acknowledge that fears about increased political pressure have been expressed, but events have shown that chief constables are not greatly susceptible to political pressure; rather the opposite. Appointments to chief officer posts are already made by politicians in local government, with the consent of other politicians in central government.

If the prospect of fixed-term appointments were so objectionable, one wonders why the Police Negotiating Board recommended in 1992 a pay settlement which included acceptance of the principle of fixed-term appointments for chief constables. Both police authorities and the Association of Chief Police Officers wanted fixed-term appointments at that time. Of course, I recognise that what is right for chief officers may not be right for superintendents. That is why we would not consider fixed-terra appointments for superintendents until we have reviewed their operation for chief officers. However, superintendents are senior managers; they are responsible for day-to-day operations in police forces, and we would not wish to rule out fixed-term appointments for them. Regulations would be needed even to allow police authorities at their discretion, to appoint chief officers for fixed terms. I hope that that explains the position.

Lord Renton

Can my noble friend deal with a point which has not been mentioned but which may help us all? Is it envisaged that there will be an opportunity to extend fixed-term appointments year by year? If that is the case, then the point that I made about flexibility would be met.

Earl Ferrers

It would depend upon the nature of the fixed term appointments. The fixed term appointments may be, for example, for four years, with the possibility of extending the period to seven years. It would depend upon the nature of the fixed term appointments.

Lord Knights

I am not sure whether there is some confusion. I am speaking to Amendments Nos.110 and 111, although they have not yet been moved. The Minister has in some sense responded to those amendments. I wish to make these points.

Fixed term appointments and performance related pay are somewhat foreign to police officers. Such concepts seem always to be more appropriate to occupations where employees have transferable skills, whereas the skills of a police officer are generally unique. Performance related pay has seemed more appropriate to the commercial world of profit and loss accounts and perhaps repetitive tasks. The noble Lord, Lord Plant, referred to some of the difficulties of setting up the necessary performance indicators.

Be that as it may, I understand that assistant chief constables have accepted in general terms the Sheehy proposals in the matter, although I personally worry about the effect that such proposals might have on the readiness of a superintendent to put himself forward for appointment as an assistant chief constable with, say, seven years to go before his pension and the possibility of having to leave after three years as an assistant chief constable. That matter has to be addressed.

How will the proposal affect the pension provisions? Different considerations apply to chief constables. I had assumed that the provisions would be discussed later when Clause 4 is recommitted. Somewhat similar provisions to those which I now propose were included with regard to chief constables in Amendments Nos.73 and 74 which were not moved earlier this week.

I must respond to what the Minister said about the effect on chief constables. I believe that if a chief constable is under pressure from a police authority to respond to its wishes in some regard, and he falls back on his independent position, as he is entitled to do, if that occurs 12 months or two years before he is due to apply for a continuation of his appointment—if indeed his conditions allow him to do so—that must affect his judgment unless he is a very strong minded man.

The purpose of the two amendments is to ensure that fixed term appointments and/or performance related pay are not built into the conditions of service of assistant chief constables unless they are in a form which has the agreement not only of the police authorities for whom they work but also of the assistant chief constables themselves. The conditions of service of police officers, which of course include their pay, are laid down in a statutory instrument made by the Secretary of State by virtue of the powers given to him by Section 33 of the Police Act 1964 which the clause seeks to amend. Those regulations cover the administration of police forces and include not only pay but leave and many other matters. Before making such regulations, the Secretary of State is required by the Police Negotiating Board Act 1980 to place a draft before that board for its consideration and, if necessary, conciliation and arbitration procedures which could follow. He does not have to accept the board's views on the draft or any arbitration award which may be arrived at where the board is in disagreement.

The amendments seek to ensure that the new provisions are not forced upon assistant chief constables in terms which they themselves have not agreed. I understand the argument advanced a few moments ago that the Home Secretary must not be restricted as to what he can do and that he should not be put in a position where he cannot do something unless someone else agrees with it. But I am sure that the Minister will agree that not much will be achieved if officers are forced to accept conditions of service which they do not find acceptable.

10.30 p.m.

Lord Renton

Before the noble Lord sits down, can he say whether he envisages that fixed terms should be capable of extension?

Lord Knights

I certainly hope so. I view with considerable dismay the possibility of a chief constable being told on appointment, "It is for three years and no more". To be quite frank, if I were in that position, I should say: "Thank you very much, I'll stay as an assistant chief constable under my old conditions", if they were better.

Lord Harris of Greenwich

I think that the noble Lord, Lord Knights, has for the first time demonstrated the practical problems of this group of inter-related issues: performance-related pay, fixed term contracts and the issue which we shall come back to on 1st March, the character of the new police authorities. There are real risks involved and I hope the Committee has paid attention to the practical experience of the noble Lord, Lord Knights. If we go too far down the road of, for example, fixed term contracts, and it is made clear—as it may often be—in the advertisement for the post, what the character of that fixed term contract will be, one has to accept that a number of very able police officers will not apply for the jobs. Once one has reached the rank of superintendent after, let us say,20 or 25 years' service, there are still a substantial number of attractive opportunities outside the police service. If you pressure senior officers too much in terms of the contracts they are being invited to sign—as I believe is a risk—I think you will do lasting damage to the quality of applicants for many senior positions in the police service. The Committee must recognise that, because it is fundamental to the debate which we are having.

Not only is that the position as regards applications for jobs as chief constables but—the noble Lord, Lord Knights, is absolutely right—why should a superintendent who will not be affected by the fixed term contract apply for an ACPO job? After 25 years' service or whatever it may be, his pension is approaching and he will often, if he is an officer of ability, have opportunities to go outside the police service. Alternatively, he could stay at his present rank, knowing that his contract cannot be terminated.

I say this to the noble Earl not because I want to re-open the issue on Clause 2 but because he should recognise that. There is a great fear in the police service about the politicisation of police authorities. That is a fact. It is because of the inter-relationship of all those issues that I believe there are serious problems here which have to be recognised.

As regards performance-related pay, I do not start as a doctrinaire opponent of performance-related pay in all circumstances. That is an absurdity. I think it works often in some parts of the private sector—not in all parts. Some large public companies have had it demonstrated to them clearly in recent weeks that there can be real problems in making an estimate of what kind of performance-related pay a particular employee should obtain. However, I think the Committee must recognise that as regards public service there is no evidence that it has had any effect at all. It has been introduced in the Civil Service, as the noble Earl is aware. I put a series of questions to the noble Earl, Lord Caithness, when he represented the Treasury in this House. I asked what evidence there was that performance-related pay worked. The answer was that there was no such evidence; it does not exist. That is the Government's own view of the matter, not mine.

I have dealt with the question of the fixed term contract. The noble Earl said, correctly, that chief constables have shown in the past that they cannot be pressured into doing things that local politicians and, I hope, sometimes national politicians want them to do. That is true. But as the noble Lord, Lord Knights, said at the beginning of his speech, the situation changes radically when a chief constable is coming up for renewal of his contract, six, seven, eight or nine months ahead and he is being pressured by some members of the police authority to take a certain action which he regards as undesirable and unprofessional. There will be some courageous chief officers in future who, if this regime is imposed upon them, will maintain a principled position. But let us face the fact that there will be a risk that some chief officers who want their fixed-term contracts renewed will succumb to that kind of pressure. The Committee has to recognise that fact. There is no point in passing this legislation without realising the serious practical problems that will arise from its implementation.

Lord Knights

Perhaps I may quote a hypothetical case, following the comments of the noble Lord, Lord Harris of Greenwich. It was not many years ago that a very strong-minded chairman of a police authority pressured the chief constable of the force to place a traffic warden in a certain position when members of his union were going to or leaving their particular work. The wrangle went on for weeks. I am quite sure that under a fixed-term appointment the chief constable's contract would never have been renewed.

Baroness Hilton of Eggardon

I rise to support the amendments. I have little to add to the arguments that have already been advanced by the noble Lords, Lord Harris and Lord Knights. Studies have been made in the industrial world which show that performance-related pay is counter-productive, lowers morale, increases competitiveness between individuals, reduces cooperation and teamwork and generally lowers production rates. That takes place at a level in organisations where perhaps one can measure performance. Quite clearly, it is much More difficult to measure the performance of people of the rank of assistant chief constable, chief constable and so on. Do you count the number of meetings they attend or the number of letters they write? How do you measure performance, at that level? I think that this is nonsense. It will set up enormous bureaucratic machinery that is not conducive to good morale, co-operation and the kind of spirit that one wants to see in our police services.

I refer to the dangers of fixed-term appointments with centrally-run police authorities. The worst dangers arise in the context of police authorities as currently outlined in the Bill. We hope that they will have a slightly different shape by the time the Bill leaves this House. The current shape of the police authority, the Home Secretary's power to appoint additional members and set policing objectives, the police authority's power to set local objectives and the setting of targets by the authority against which the chief constable's performance is to be assessed all add up to a horrendous mountain of things where it will be impossible for anyone to be successful. Crime will continue, police officers will continue to have complaints made against them and things will go wrong. You cannot run an organisation that is high in morale, co-operation and motivation if you impose these restrictions and burdens upon it. Therefore, I wholeheartedly support these amendments.

Lord Mottistone

I return to Amendment No.109 which started off this discussion. I have one question to put to the Minister. He responded to my noble friend Lord Renton who asked whether fixed term contracts could be extended. He said that there might be an example of four years being extended by three years. Will the regulations referred to in the subsection that I seek to amend by Amendment No.109 be sufficiently broadly drawn so that individual police authorities will be able to strike their own fixed term contract deals with the people they want to employ at higher ranks? Will they be able to provide for a four-year contract with an extension of three years by joint agreement, or will they be so tight that in effect only the Secretary of State sitting in Whitehall can decide what is to be in those fixed term contracts? Has the matter got far enough for my noble friend to be able to give me an answer to that?

Earl Ferrers

Needless to say, the regulations have not yet been produced. But the idea is that fixed term contracts will be capable of extension but not an unlimited extension. I cannot tell my noble friend at the moment whether there will be just one form of contract that will apply throughout the country. I rather doubt it. I should have thought that within certain parameters police authorities would be able to make their own arrangements with regard to the conditions which the regulations state.

Lord Mottistone

That is extremely helpful.

Lord Mackie of Benshie

Will the Minister say something about the point raised by the noble Lord, Lord Clark, with regard to pensions? How will they be affected if the three-year or five-year term ends before the person is due for a pension? The fixed term contracts in industry are a different matter altogether. They are there to attract good people from other companies to come along and put right trouble in the company. They are subject to the ruthlessness of big business. No good man will take such a job unless he has a fixed term contract so that if he gets the sack he can sue the company for a great deal of money. That is the reason for fixed term contracts in industry. I cannot see that they have any relation to the police service.

Earl Ferrers

The advantage of fixed term contracts is a two-way one. A chief constable who joins a police authority can be very good and go on and on. Eventually there may come a time when it might be a good idea if he did not stay on. The idea of a fixed term contract is that a chief constable can take the job and if he is very successful the contract can be renewed. Alternatively, at the end of his contract he can move on to somewhere else. It introduces an area of flexibility, which is good.

As regards pensions, they will have to be adjusted in the light of the fixed term contracts, because all those pensions come under the police negotiating board and are matters that have to be considered when the fixed term contracts come into operation.

Lord Mottistone

I take great pleasure in my noble friend's latest reply to me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

I call Amendment No.110.

Lord Knights

I do not think that my amendment should be moved.

Lord Harris of Greenwich had given notice of his intention to move Amendment No.110:

Page 12, line 31, at end insert: ("() At the end there shall be inserted () Regulations under this Part of this Act shall not contain reference to fixed term appointments for deputy or assistant chief constables unless by agreement between the Secretary of State, persons representative of police authorities and persons representative of chief constables". ").

The noble Lord said: This amendment stands in my name also. Our names are on it together. I intend to say only a few words. I must say to the noble Earl that a number of points have been made this evening, as he will recognise, particularly by the noble Lord, Lord Knights, concerning fixed term contracts. We shall have to have a detailed response from the noble Earl in the future in a substantial debate which might conceivably take place on Clause 4 of the Bill, which is one of the clauses that will be dealt with on Re-committal.

As I and the noble Lord, Lord Knights, indicated, the fact of the matter is that not only is there widespread concern in the police service about these matters. The interrelationship between a new type of police authority, a fixed term contract and performance related pay has to be debated far more vigorously than is possible so late on a Thursday evening, as it is now.

Having said that, which is all that I wanted to say—and that we shall have to go into this matter either on Clause 4, when we come to it, or alternatively on Report, because these issues are absolutely fundamental, as this brief debate has demonstrated-I shall not move the amendment.

[Amendment No.110 not moved.]

[Amendment No.111 not moved.]

Clause 14 agreed to.

Clause 15 [Appeals against dismissal etc.]:

10.45 p.m.

Lord Bethel moved Amendment No.112: Page 12, line 35, after ("resign") insert ("or is reduced in rank, or made subject to a permanent bar on promotion, ").

The noble Lord said: This is the first of several amendments that I have tabled about matters that arise out of the changes in police discipline as envisaged by the Bill. I must apologise for detaining the Committee at such a late hour. My only excuse is that the matter is of some importance. That has already emerged from previous discussions.

Many Members of the police service believe that the Government have adopted a rather strange attitude towards the question of police discipline in that they wish to change fundamentally the rules that have applied up to now over disciplinary action in what is, after all, a disciplined and rigid public service. My noble friend the Minister referred to a new managerial approach in the police service, and there have been references to performance-related criteria.

My noble friend also wrote to me saying that he looks forward to seeing the normal flexibility of the workplace in the police service. I wonder whether it is appropriate to have that sort of flexibility in the police service or whether, indeed, it is possible. That is why I tabled the amendment; and with the leave of the Committee I shall speak also to Amendment No.113. If the Committee will be extremely indulgent to me, I shall touch on Amendments Nos.114 to 116 and Amendment No.119 on the understanding that I shall speak briefly or not at all when they come up later this evening.

It is dangerous to envisage some of the proposals put forward by my noble friend. Amendment No.112 would enlarge the right of appeal of a policeman when he is charged with an offence to those who are reduced in rank, have a freeze put on their careers or are fined. As presently drafted, the Bill will give a right of appeal only to those dismissed 'from the service or who are required to resign.

I envisage problems in that regard. Can one imagine a policeman, reduced from the rank of chief inspector to constable, wishing to carry on in the service? Would not such a finding by a disciplinary tribunal amount, to all intents and purposes, to a requirement to resign? Yet such a finding could be issued against a charged policeman on a disciplinary offence without any right of appeal. I hardly think that that is the sort of justice a policeman expects when he is facing all the problems that we know he faces on a daily basis. Likewise, a sentence could be passed on a policeman that his promotion would be indefinitely halted, or that he would be subject to a fine of up to £750. Again, those are severe punishments; and, under the Bill as drafted, they would not be subject to the right of appeal. I hope that my noble friend will be able to look again at those sections of the Bill and say that he will consider tabling his own amendments at Report stage.

I should mention that other professions where strict discipline is enforced by the bodies themselves, such as the Law Society, are not making changes of this sort. A solicitor who faces being struck off the register of course has the right of appeal under all circumstances; he may seek professional advice and have professional representation at his hearing; he has the right to call evidence and to cross-examine, or have his legal representative cross-examine, any witnesses in the matter on his behalf. And the level of proof to find against him is that the matter be proved beyond reasonable doubt—a point which seems to be a little vague at the moment and about which we hope to hear more shortly.

All that must be seen against a background where the police are under increasing pressure and where there are large numbers of people in society who see the opportunity to complain against the police as a growth area. I can tell the Committee (because I have just received from my noble friend an answer to a Written Question) that in 1985 the number of complaints dealt with in the Metropolitan police area was about 4,000. The figure has risen to nearly 8,000 in less than 10 years. On the other hand, the number of complaints substantiated has hardly risen at all. The figure has risen from 141 to 150. There is a great temptation among people who run up against the police to lodge complaints against them. It happens on a regular basis, often for malicious reasons.

What frightens me is that a complaint against a policeman may be used in order to deal with that policeman on the basis of a supposed lack of confidence or lack of popularity within his police station. These complaints are made so often that it is surely right that they should be dealt with on the highest level of justice and with the highest level of protection available to the accused police officer. Otherwise, it will be open season on police officers who face difficulties and accusations from members of the public with whom they come into conflict.

I shall not detain the Committee further at this very late hour, but I hope that we shall be able to debate these matters at a more appropriate time in the future, either during this Committee stage or on Report. I shall be anxiously awaiting what my noble friend can say on the whole question of police discipline; not just on the amendment I have put down, but on the principle of the matter. I beg to move.

Lord Harris of Greenwich

Having been involved in introducing in this House the first police complaints Bill, which set up the original Police Complaints Board, I should like to say something about this issue.

That Bill was not greeted with universal enthusiasm in the police service and nor was its successor, which went a great deal further. Nevertheless, I think there has been an immense improvement in the past 20 years in terms of public confidence in the complaints system, a complaints system which sometimes leads inevitably to disciplinary action being taken against police officers who have misconducted themselves. I therefore do not start off with any prejudice in this matter against change but I am to some degree at least sympathetic to some of the arguments—not all of them, if I may say so—of the noble Lord, Lord Bethell.

I am very seriously worried about proposals in the Bill which deny an avenue of appeal to officers convicted of disciplinary offences, except of course those who have been sentenced to be dismissed or required to resign. and about proposals which preclude the right in such cases to legal representation. It was the present Government who extended the right of legal representation in police disciplinary cases. I believe that decision was taken by the noble Viscount, Lord Whitelaw, when he was Home Secretary; or if not by him, then by his successor. I was surprised at the time that the Government had gone so far as they had, but they did so. We are therefore faced with a situation where it is now being suggested that some of those rights should be removed. That makes me slightly uneasy because I can understand some police officers being seriously concerned about the removal of a right of appeal, particularly in some of the most serious cases.

I wish to cite a particular example to the noble Earl, but I do not ask him to react to it tonight. It demonstrates some of the problems which are involved in this approach. I give as an example the case of an inspector with 15 years service who is reduced to the rank of constable, which is not an wholly unlikely event in some circumstances. I want to give some figures because that enables me to illustrate the degree of my anxiety.

The pay for an inspector on the top rate, with four years in that rank, on the current scales is £26,496. Reduced to the rank of constable on a 15-year rate, and again using current scales, he will get £21,267. That is a loss every year of £5,229. Assuming that the officer completed 30 years service in the circumstances which I have described, the loss is £78,435. There is no right of appeal and no legal representation. That causes me anxiety.

But it is more serious even than that. If that inspector served for 30 years and then drew maximum commutation and residual pension—using current scales because that is the only sensible way in which to approach this matter—the maximum commutation for the inspector would be £78,435 and the maximum commutation for the constable would be £53,167. Therefore, there is a loss of commutation lump sum of over £13,000. That, again, is in circumstances with no right of appeal and no right of legal representation.

Assuming a life expectancy after retirement of 20 years, the inspector's pension over that 20 years would total £264,980. For a constable the figure is £212,670. That is a loss of pension over a period of 20 years of over £52,000.

In summary, therefore—and this is the substance of the matter—the losses to an inspector with 15 years service and reduction in rank to constable, is: loss of pay in service, as I have indicated, £78,436; loss of lump sum commutation, £13,073; loss of pension over 20 years, £52,290. That is a total loss of £143,799. There is no right of appeal and no legal representation. The Government have to ask themselves the absolutely fundamental question. I am certainly in favour of vigorous disciplinary action being taken against those who misconduct themselves. But I am also strongly of the view that people should have a proper right to have their case heard on appeal and to be legally represented in circumstances of this sort where they can be gravely damaged financially.

I am not asking the noble Earl to respond in detail to this point tonight, but we deserve a very clear answer to this matter. I am seriously apprehensive about the consequences of what is being proposed here. I very much hope that the noble Earl will look at this matter between now and Report stage because I shall certainly be very reluctant to allow it to go through without some changes being made in the areas which I have analysed.

11 p.m.

Viscount Mountgarret

The noble Lord, Lord Harris, opened his remarks by saying that he was not entirely supportive of my noble friend Lord Bethell. If that is the case, I should like to hear him on an occasion when he is supportive. I have seldom heard such a splendid example of the dangers which are inherent in the Bill as it stands and which my noble friend is trying to remedy.

We have reached the part of the Bill that causes me great concern. I believe that it threatens to undermine the right of police officers to the natural justice to which they are entitled. The police are a force in a way not dissimilar to the military. The military, by which expression I embrace all the forces, are subject to military law which encompasses the right of appeal where most offences are concerned. I do not see why the police force is threatened with treatment different from that which has served the Armed Forces so magnificently.

The provisions threaten to make a police officer a second-class citizen-a different citizen. When a police constable arrests a criminal who is tried, convicted, and perhaps sent to gaol, that criminal has the right to appeal against anything of which he or she is found guilty. The criminal knows that, except for dismissal from the service, the police officer does not have a similar right of appeal, with the serious consequences that have been outlined in part so well by the noble Lord, Lord Harris. I find that distinctly concerning.

An analogy has been suggested between a police tribunal and an industrial tribunal. The two cannot be compared. They are quite separate. Industrial tribunals deal with employment. An employer would be very reluctant to reduce a person's rank because of the contract of employment that exists between an employer and employee. That would happen only rarely. But the police are different. When officers join, it is felt that they are suitable to remain in the service. If, however, they are found guilty of a serious offence, it is then felt inappropriate that they should retain their rank. If an industrial tribunal found that an employer effectively reduced an employee's pay by giving him a different rank, for want of a better word, I suspect that the tribunal would construe that action on the employer's part as constructive dismissal. That difference does not seem to have been embraced by the Home Office.

My noble friend referred to Amendment No.119, thus widening the discussion. I do not believe that we should get too involved at this stage in trying to do too much, any more than we want to extend this evening any longer than is absolutely necessary. However, it has to be said that the provisions of Amendment No.119 are something that we should bear closely in mind. A police officer may find that he is liable for the cost of his appeal. It would be wrong to allow a situation whereby a police officer feels that he cannot proceed because of that. At the moment, the police fund meets those costs for him unless the Secretary of State is minded to make a direction otherwise.

I shall not comment on the point made by the noble Lord, Lord Harris, about legal representation. It answers itself. A serious issue is being embraced in the Bill. I hope that my noble friend will take these points back, think about them again and see whether it is possible to bring forward amendments on Report which go some way towards relieving the anxieties. Although they have been expressed by only three Members of the Committee tonight, I suspect that if more Members were present they would be echoed in all parts of the Chamber.

Lord Archer of Sandwell

Having sat mute but attentive throughout virtually the whole of the debates today, I cast off my taciturnity to make the three into a four. I too support the amendments and specifically Amendment No.113. It is my misfortune, however, that in one respect my view differs from that of the noble Lord, Lord Bethell. The noble Lord said that he was seeking to enlarge the right of appeal. As the noble Lord, Lord Harris, pointed out, it is not the noble Lord who is seeking to enlarge the right of appeal but the Government who are seeking to restrict it.

The Bill restricts the range of punishments which may be the subject of an appeal. In Section 37 of the Police Act 1964 the provision was simple. It stated that, a member of a police force who is dealt with for an offence against discipline may appeal to the Secretary of State". It was as simple as that. There was no limitation on the orders against which he might appeal and, presumably, there was a right of appeal against any finding of fact or any punishment or disposal of the matter.

That provision was amended by Section 103 of the Police and Criminal Evidence Act 1984. But the amended provision gave the same width of the right of appeal. It stated that there was to be an appeal "against any punishment awarded. " So far as I am aware, that is still the position. Therefore, we are asking for an explanation of why the Government seek to restrict the right of appeal. Members of the Committee will not have failed to notice that the limitation applies not merely to the range of punishments against which there may be a right of appeal but against the finding itself; against a possible finding of fact. According to the Bill, the right to appeal against the finding depends upon what ultimately is the punishment inflicted. Clearly, the Government, like everyone else, value this right because here they are making express provision for it. It is no light action to remove a right so fundamental for the protection of individuals. Those who seek to do so carry the heavy burden of explaining the reason.

The noble Lord, Lord Harris, gave a vivid explanation of the possible financial consequences of some of the provisions which, if the Bill goes through unamended, will no longer carry a right to appeal. It is not merely, as the noble Lord, Lord Bethel!, put it, the serious cases. Any finding of fact against a police office for a disciplinary offence is likely to be carried on his record for at least a substantial distance into the future. It is likely to affect his whole career.

We ask: why is there a proposal to take away what on the face of it is a fundamental right of the individual, which apparently has been operating without any difficulty for a long period of time?

Earl Ferrers

Members of the Committee have argued this evening strongly in favour of an appeal to the police tribunal where an officer has been demoted or barred from further probation. The noble Lord, Lord Harris, gave a graphic description of the financial constraints which that may put upon an individual. I shall read again with interest what he said so that I can absorb it later. I have no doubt that one can always find difficult and tragic circumstances visited upon people who either lose their job or rank.

Since I have been at the Home Office, I have been appalled by the length of time that it takes for the resolution of disciplinary cases. That is different from the matter to which my noble friend Lord Bethell referred; namely, the police having complaints made against them. Of course, he is right that that often happens. A special procedure exists for dealing with that.

However, we are now dealing with disciplinary offences; that is, where a person has done something wrong and it is considered that he should be disciplined. The proposed system is much simpler than the previous system. The noble and learned Lord, Lord Archer of Sandwell, asked why we need to change from the present system. We wish to change the system because, if a person is disciplined, it is in the interests of justice that he should know as quickly as possible what his position is. Often people are suspended for years and then are reinstated, in which case a huge sum of money is attendant upon that reinstatement. Alternatively, a person may be dismissed—

Lord Archer of Sandwell

I am grateful to the noble Earl for allowing me to intervene. Would that not be an argument against ever giving anyone an appeal against anything?

Earl Ferrers

I do not think so and I shall explain why. We are trying to provide a reasonable disciplinary procedure so that all disciplinary cases, even those in which there is a reprimand, receive a hearing before an assistant chief constable and two superintendents. The case is considered and the person is disciplined.

If he does not like the judgment, he can complain to the chief constable, who either upholds or overturns the decision. If the chief constable upholds the decision, the person receives the appropriate penalty, which may be demotion. Under the new arrangements, if the case results in dismissal or a requirement to resign, he will have the right to g o before a tribunal. That tribunal will consist of a qualified lawyer, a current or ex-chief constable and a member of the police authority.

In introducing those procedures, we intend to give an officer the right of an internal appeal to his chief constable. My noble friend Lord Bethell argues that the officer should be able to take a stage further his appeal against demotion to an external body; namely, the police appeal tribunal. I do not believe that a tribunal should be granted the power to interfere in the internal management of the police force. I do not see how such an external body could form a judgment as to whether the person concerned was capable of performing the duties of the higher rank. Those are matters for internal management and not for external review. However, the position is different where a person is being dismissed or required to resign.

There is a right of appeal in all cases as regards disciplinary matters. As I explained, the officer can appeal to his chief constable against the decision of the hearing by the assistant chief constable and two superintendents. He can therefore only lose his rank if four senior officers have considered that to be the appropriate course to take. Such an officer will not now have the right of appeal to an outside force. However, I question whether he should have such a right. Who serves in what capacity in the police force is part of the management of the force. I believe that it would be very serious for the police service if police officers were allowed to continue to serve in posts for which they were not fitted and for which their senior officers considered them to be unsuitable. That is the reason why we are making the change. As a result of that change, it will be quicker and simpler. Moreover, justice will be done a very great deal quicker than has been the case under the present system.

11.15 p.m.

Lord Harris of Greenwich

Of course it will be a great deal quicker because the Government are taking away the right of appeal. If there was no disciplinary procedure and we simply had instant dismissal, it would be even more speedy. The Government introduced the right of appeal in the extensive list of cases in which it now operates. It was not a decision taken many years ago. To the best of my recollection, it was the noble Viscount, Lord Whitelaw, and Mr. Brittan who went along with it.

Let there be no doubt about it. The Government must surely return to the issue, especially as regards the situation of a reduction in rank in the circumstances that I described. I am certainly at one with the noble Earl in saying that people who are unsuitable to serve in the police service should be removed from it. However, I am not in favour of a financial penalty of over £140,000, in the circumstances to which I referred, without any avenue of appeal and without any right of legal representation. That seems to me to be objectionable.

The noble Earl very kindly said that he would reflect on the matter. The noble Lord, Lord Knights, who has had to leave the Chamber, asked me to tell Members of the Committee that he is strongly in favour of the points that I am now putting forward. He, too, regards it as quite unjust to remove that right of appeal in such circumstances; namely, the reduction in rank issue. I very much hope that the noble Earl will reflect on the matter to see whether something can be done. Otherwise, we shall have to return to the matter on Report. Speaking for myself, I would find it very difficult to let the Bill leave this place with such an oppressive clause within it.

Viscount Mountgarret

My noble friend the Minister referred to the fact that he found the length of time involved with appeals and all the various procedures very worrying. Time should not be a consideration of any sort in such matters where a man's livelihood, future and retirement are at stake. If it takes a long time because of the gathering of evidence, and all the relevant things that go with it, then I say: so be it.

My noble friend did not answer my point. I do not blame him; but I should be grateful if he could say why there should be a different procedure for the police as opposed to the military court martial. I understand his point that outside tribunals should not be seen to be interfering, as it were, with the internal workings of the police. That is understandable; but in a court martial the offender is tried by people within the military—I hope I may refer to the army in this context—only up to a certain level of offence. Where the offence is a serious one, the judge advocate is called in. He is an independent person who has legal knowledge and he is in a position to advise and guide the president of the court martial as regards all the arguments that have been promulgated.

On an appeal there is usually, in serious cases, a barrister who represents the defendant. I do not see why the police should be treated in a different fashion. If we are not to have an independent tribunal for the police, we at least should have something like an independent barrister, or judge advocate—call it what you will—to guide the chief constable, or to whom the police officer concerned might refer. I still hope—I have asked for this—that some of the arguments that have been made this evening might be taken on board by my noble friend because I, and I believe a number of others, consider these to be serious matters which should he discussed again at another stage of the Bill.

Earl Ferrers

Of course I shall consider what has been said in the Committee this evening; it would be wrong of me not to do so. However, I do not propose to follow my noble friend down the avenue of comparisons with courts martial on which he is obviously an expert but on which I am not proficient. My noble friend said if the process to which he referred took a long time, that did not matter. I remind him of the old adage that justice delayed is justice denied. I remember the case of a police officer—I may have remembered this incorrectly—who was being dismissed for having taken some money out of the canteen in lieu of some Kit-Kats or Mars bars. I believe he had taken £5

The case had passed through all the appeal procedures and it was referred to me as Minister of State in the Home Office. It was then referred to my right honourable friend the Home Secretary and the whole process lasted about three or four years. I do not believe that kind of system of meting out justice can be correct. If my noble friend believes that in a case where such a small sum of money is involved the procedure I have described should be adopted, I can only say that he and I part company. However, I shall of course take note of what has been said this evening because these are important matters.

Lord Bethell

I am glad to hear that my noble friend will take note of what has been said this evening because although we are a "thin" Committee, I have gained the impression that there is strong feeling on the part of many Members of the Committee that amendments of this kind should be accepted by this Chamber and should be included in the Bill.

As regards what my noble friend said a moment ago, he is correct to point out that justice delayed is justice denied. However, what we do not want is rough justice. We may want more of a court martial regime but not a drum-head court martial, or execution in the field. I hope that my noble friend will bear all that in mind. One point arose from the interesting intervention of the noble Lord, Lord Harris. If I am correct in my assumption, a senior officer—an inspector or a chief inspector—who is required to resign under this procedure would resign with his pension rights intact. On the other hand, if he were reduced to the rank of constable, his pension rights would be reduced to those of a constable. He would therefore endure a more severe punishment by being reduced to the ranks than if he were merely required to resign. He would benefit financially from the so-called more severe punishment which carries a right of appeal than from the punishment of being reduced to the ranks. This is just one of many anomalies in this Bill and one of many difficulties that I hope my noble friend will look at before we resume the Committee stage on Monday. I have tabled another amendment which I hope will be discussed rather earlier in the day.

In the meantime, in view of the late hour and in view of the fact that we do not really have much of an attendance in the Committee, in spite of the fact that if there were to be a Division we would probably win it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.113 not moved.]

Clause 15 agreed to.

Schedule 3 [Schedule to be inserted in Police Act 1964: appeals tribunals]:

Lord Bethell moved Amendment No.114: Page 54, line 3, leave out sub-paragraph (c) and insert: ("(c) one shall be a person chosen from a list maintained by the Secretary of State of persons who have retired from the police service as chief officers of police within the previous five years. ").

The noble Lord said: In moving Amendment No.114 I shall speak also to Amendments Nos.115 and 116. The amendments attempt to vary the composition of police appeal tribunals. They would have the effect of adding a magistrate, a representative of the professional associations and a retired chief constable as opposed to a serving chief constable. I believe that that would amount to a significant improvement in the proposals already put forward. I beg to move.

Lord Harris of Greenwich

I have one or two questions to ask about this issue. First, as I understand it, at the moment on any appeal tribunal there is a representative of the appropriate staff association. If I am right on that point, and I believe that I am, why has that representation been withdrawn?

The noble Baroness, Lady Trumpington, says "what?". What is being withdrawn is the right of the staff association to be represented on the tribunal. Why is it being withdrawn? An explanation has to be given.

Secondly, we are dealing with an organisation which will be hearing appeals against dismissal. Where a person outside the police service appeals to an industrial tribunal there is always an employee's representative on that tribunal. If the existing right is to be withdrawn there will be no employee's representative on the tribunal.

The two issues are clearly related. Why is this change being made? What is the justification for it? I shall be truly interested to hear the noble Earl's response.

Earl Ferrers

My noble friend referred to Amendments Nos.114,115 and 116. We feel that a tribunal of five members would be unwieldy. The proposal to add to its membership a magistrate as well as an officer belonging to the staff association of the appellant would keep the tribunal in balance, but would make it very much larger.

The Government's own proposal that one member of the tribunal should be a police authority member—who may be a magistrate—would include on the tribunal a member of the body which is responsible for the efficiency and effectiveness of the local force who is also an informed member of the public which that force serves.

The chief officer of police who sits on the tribunal, and who will in most cases be likely to be a retired officer, will have experience of the command of a force and will have served in all ranks of the police service earlier in his or her career. He or she will be able to give an informed view as to whether the officer concerned has met the standards of that service.

That membership seems to us to give the right balance to the tribunal and I do not believe that the addition of more members would do anything other than to add numbers without adding extra opinions of weight.

The noble Lord, Lord Harris of Greenwich, asked why no representative of a staff association will be included in the membership of the tribunal. We are considering here people who are being dismissed. The matter concerned is whether that person is a fit person to be a police officer. Those who come to that conclusion would be the legally qualified expert, a retired chief constable who has served in all ranks of the police service, and a member of the police authority who is responsible to the people in the area which the police force serves. In that respect, a member of the staff association from which the appellant is drawn has no locus in the matter. One is concerned as to whether that person is a sufficiently competent and reputable person to be a member of the police service. A representative of his staff association would be an irrelevance in that respect.

11.30 p.m.

Lord Harris of Greenwich

I have not made myself clear; and I apologise. The hour is late and no doubt we are not hearing one another with the appropriate degree of clarity. I did not ask that question. I asked a different one. Is it or is it not true that at present a representative of the staff association sits in such circumstances? If the answer to that question is, yes, he does, the next question is: why is he being removed? That requires a different answer from the one given by the noble Earl. Of course, I may be wrong. Perhaps the Minister will assist me.

Earl Ferrers

I agree that the hour is late. My hearing is reasonably all right; it is merely the comprehension that is slowing down a little. I thought that I had detected the noble Lord's question aright and had answered it correctly. I have tried to explain throughout this discussion that the disciplinary system which we propose is more geared to whether a person is a fit person to be in the police service. That is different from what has happened heretofore, when a member of the staff association was present. We believe that in the future the important matter to be addressed in this case is whether the judgment requiring a person to be dismissed or required to resign is wrong. The question at issue is whether the person is fit to be in the police service. A staff association representative is not a valid member to have on the tribunal in that circumstance.

Lord Monkswell

Perhaps I may intervene in seeking to assist the noble Earl. The issue always under question in such tribunal settings is whether a police officer, of whatever rank, is a fit person to be a police officer. While I agree with the noble Earl that the objective of the exercise is to make a judgment as to whether someone is. or is not suitable to be a member of the police force, that judgment must not be made in isolation. Perhaps I may remind the noble Earl that justice must not only be done; it must be seen to be done.

The British system has evolved to ensure that justice is seen to be done, and is done. Industrial tribunals were referred to as an example. A representative of the trade unions sits on an industrial tribunal to help to arrive at the correct judgment. That also ensures that those members of a trade union who are involved in an industrial tribunal have some confidence that justice is being, done, and can see that it is done. That is one of the crucial points. We must all accept that the tribunals do not sit in public; they are not reported verbatim in the press and media. 'Therefore, we have to find some mechanism to ensure that people see the operation of the tribunal and to enable justice to be seen to be done as well as being done.

Lord Mackie of Benshie

I must say that I was following the argument reasonably well before the noble Lord spoke; now I am not.

Lord Bethell

I fear that I am still not convinced by what my noble friend had to say. It is correct, as I understand it, that in many professional tribunals or industrial tribunals a member of the defendant's staff association is present as one of the representatives. I should have thought that my noble friend might see some merit in the idea, although I take his point about not making a tribunal too cumbersome with too many members. Of course, one wants to get such things over as quickly as possible.

I ask my noble friend to consider how a defendant, a person complained against, can be represented by a member of his staff association. It is not enough simply to say, as the Home Office says, that more flexible personal procedures are needed and we no longer concentrate on precise matters for detailed proof. It is desirable that a person should have the support of a professional association member. I am sure that would be the view of a member of the Home Office who found himself in such an invidious situation. In the meantime—

Earl Ferrers

Perhaps I may interrupt my noble friend. I believe he has put a different complexion on the point. I thought he was saying: would it not be fair for a member of the staff association to be there to represent a person?

Lord Bethell

No, a member of the tribunal,

Earl Ferrers

In that case I misunderstood him. For the reasons I have given, I do not think it appropriate for a member of a staff association to be on a tribunal where it is being decided whether or not a member of that association is fit to be a police officer. As I explained, there is a legally qualified chairman while the other two people are responsible for the running of the force—the chief constable and a representative of the police authority for the area being policed. Those are the people best placed to decide whether an individual is suitable to be in the police force, not a member of the staff association. However, as in all these matters, I shall pay attention to what has been said this evening.

Lord Bethell

I am grateful to my noble friend. On that understanding I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.115 and 116 not moved.]

Lord Archer of Sandwell moved Amendment No.117: Page 54, line 16, after ("may") insert ("not").

The noble Lord said: In moving Amendment No.117, I feel it may be for the Committee's convenience if we also discuss Amendment No.118. Amendment No.120 relates to a quite separate matter, and if it meets with the Committee's approval, I propose to speak to it when its turn is reached on the Marshalled List.

I must begin by declaring an interest. I am privileged to chair the Council on Tribunals and the amendments represent the considered view of the council. The schedule makes provision for the police appeals tribunals which are to be substituted under Clause 15 for the present procedure of appeals to the Home Secretary. Paragraph 5 makes what appears to be a curious provision. It begins by saying that the tribunal, may determine a case without a hearing".

I assume that that means without an oral hearing. If a tribunal meets for the purpose of discussing its conclusions, that may be referred to as a hearing and the tribunal is unlikely to dispose of the matter without doing at least that. So I assume that what is meant is an oral hearing, but I do not propose to pursue that drafting point for the moment.

The provision is unusual. There are cases before some tribunals that can be resolved quite fairly and satisfactorily without a hearing provided that the tribunal reads the documents that have been submitted, ensures that the parties have been given an opportunity to submit whatever documents they think fit, and each side is afforded an opportunity to read those submitted by the other and to comment on them. The tribunal then reaches its conclusions on those documents. For example, if the issue turns on the construction of the documents, that is a reasonable proceeding. Each party has said in writing what it wishes to say and so no oral hearing may be necessary.

But that is an unusual situation. Normally, it is more satisfactory to give an appellant the opportunity to come before a tribunal to put his case and call whatever evidence he thinks will assist the tribunal. Certainly, that is important where anything turns on the question of which of two people is telling the truth. One has to bear in mind that many of the determinations of these tribunals will be based on disputed questions of fact which will affect the future career of police officers. The formula that is usually preferred by the council is that the appellant, or perhaps better either party, shall be entitled to a hearing but there will not be one unless it is asked for.

The present provision says that there will be no entitlement to a hearing even if it is asked for. That in itself appears unsatisfactory. But the proposition enters into what appears at first sight to be the realm of farce. I read paragraph 5(1): A police appeals tribunal may determine a case without a hearing but shall not do so unless both the appellant and the respondent have been afforded an opportunity to make written or, if either so requests, oral representations and any such representations have been considered".

That appears to mean that the tribunal does not have to accord a hearing, even if it is asked for, but that if it does not it must, when requested, hold an oral hearing to decide whether or not it will hold an oral hearing. I do not know whether or not I have misunderstood. If the draftsman is drawing a distinction between a hearing and something else—for example, an opportunity to make oral representations—it seems to me to be a curious use of the English language, and is certainly likely to make for ambiguity. It still sheds no light on the purpose behind the provision. The noble Earl may be able to enlighten us, or perhaps it will emerge that it is all a mistake. We can only hope that the Government do not really mean what they appear to be saying in the sub-paragraph.

Viscount Mountgarret

Perhaps my noble friend will feel that by accepting the amendment it may go some way to cut down the length of time referred to earlier this evening in regard to the hearing of cases and the consideration of appeals. It seems to me that if we cut out all these written and oral requests and representations have been considered it will cut down the time very substantially.

Earl Ferrers

I shall do my best to enlighten the noble and learned Lord, Lord Archer, although it will be difficult in the face of one so experienced in these matters and also in tribunals. The schedule as it stands allows the police appeals tribunal to decide for itself whether or not it wants to hold a hearing. When it comes to such a decision its members will have read with care the appellant's reasons for appealing and as much supplementary material as he has chosen to put before that body, as well as the chief constable's reply. Should the tribunal decide that it is able to determine the case without holding a hearing it will offer the appellant a chance to come before it and make oral representations as to why it should not take the course of action that it intends to take. After hearing him or her, if it still feels that a hearing is not needed in order to determine the case, I do not believe that it should be required to hold one. The point is that provision has been made for the officer to put his point of view, personally or by his representative, as to whether a hearing should be dispensed with.

It may help the noble and learned Lord if I were to explain a little further that a hearing in police appeal cases does not necessarily mean a complete rehearing of the case. In fact, those are extremely rare and are expected to remain so.

A hearing in an appeal case will offer the appellant an opportunity to say why he considers that he is fitted for the police service and why he should therefore be reinstated. But one would have expected any material of substance on this matter to have been laid before the tribunal already as the basis for the appeal. If it has not, the appellant or his representative will have an opportunity to say so when the oral representations are made. The tribunal will then have an opportunity to decide whether a hearing would be beneficial.

The noble and learned Lord's amendment offers appellants no real benefit and could operate to delay the conclusions of the tribunal. At present, delay is a significant factor in police disciplinary proceedings, as I explained earlier. That is what my right honourable friend is trying hard to minimise so far as possible.

11.45 p.m.

Lord Archer of Sandwell

It is a late hour, but I confess that I am more puzzled than ever. I hoped that the noble Earl would explain that I had misunderstood what the draftsman was trying to say. But I fear that I have understood it correctly. As I understand it, the tribunal will sit, and the appellant will come along, because he has a right to come along, in order to explain why he should have a hearing.

As the noble Earl has just indicated, the hearing will probably simply take the form of the appellant coming along to address the tribunal. Most of the evidence will already have been submitted. So he comes along to explain why he should have a hearing. At a certain point he is stopped by the tribunal which says, "We have heard what you have said about why you should have a hearing. We do not think you should have a hearing and therefore we will not allow you to go on and produce the next two sentences that you intended to address to us about why you should still remain a police officer. "

One can think of no more time-wasting procedure, no procedure which is more likely to irritate people, and no more wholly pointless way of doing things. I wonder whether I could prevail upon the noble Earl at least to reconsider the drafting of this provision, so that what is being said can be made clear. But I should prefer him to address the common sense of it. Frankly, to me nothing seems to be more calculated to annoy everyone and to waste time than to allow someone to come before a tribunal and speak to it but to circumscribe just what he may say when he gets there.

It is a late hour and I do not propose to pursue the matter further this evening. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.118 not moved.]

Lord Bethell moved amendment No.119: Page 54, line 43, leave out sub-paragraph (1) and insert: ("() The costs of an appellant shall be defrayed out of the police fund of the relevant police authority unless the tribunal directs otherwise. ").

The noble Lord said: This amendment would put right one of the most dubious paragraphs in the Bill that is before the Committee; namely, the one that requires an appellant before a police complaints tribunal to defray the costs of his appeal unless an order is made to the contrary. I believe that that is a most unusual procedure and I urge my noble friend to correct it at the first available opportunity.

To the best of my knowledge, an appellant in a criminal case, or any other case that would come before a professional body, would receive the costs of the appeal from a fund. My amendment proposes that the police fund should defray the costs of the appeal in question.

Perhaps before the end of this short debate my noble friend will be able to indicate what would be the average costs of an appeal to a police tribunal. I suspect that it will be a substantial four-figure sum, if not more. But it is clearly a sum that will be difficult for any police officer who has recently been dismissed from the service or who has resigned to find. I predict that many police officers in that situation who believe themselves to have a case on appeal will be deterred from appealing simply because they do not wish to use any money that they may have saved to pursue an appeal, or they may not have the money, in which case they will be in no position to appeal.

I believe that this provision goes against natural justice and I ask my noble friend to accept the amendment. I beg to move.

Lord Archer of Sandwell

I rise again briefly to support Amendment No.119. This is another instance where the Government are changing the present position. Under the present system the appellant is liable to pay costs only if the Secretary of State so directs, and that would entail the Secretary of State requiring a reason so to direct. That is the effect of Section 37(5) of the Police Act 1964.

That represents the normal practice in relation to similar tribunals. Of course an appellant should be penalised if he has acted frivolously or unreasonably and caused money or time to be wasted. But here the assumption is that he will have to pay his own costs—I appreciate that there is a distinction between paying the whole costs and paying only his own—unless the tribunal has a specific reason for directing otherwise. Clearly it cannot direct otherwise unless it has some reason for so doing.

The noble Earl was involved earlier today in a number of exchanges as to whether the Government should be castigated for making changes or castigated for allowing matters to remain as they are. But this is a change which on the face of it could operate grossly unfairly. The onus must be upon the Government to establish a reason for making the change.

Viscount Mountgarret

I too strongly support Amendment No.119. My noble friend indicated that he would look at all the arguments postulated this evening and think about them. I hope that it will be in order for him to raise these matters again at Report stage. It would not be fair to ask the Committee to come to a view at this time of night and we would not obtain a representative view of the feeling of the Chamber. They are extremely important matters and I hope that my noble friend will consult with his right honourable colleague, because this situation has to be unacceptable.

Earl Ferrers

My noble friend says that the situation, "has to be unacceptable". All I can say is that it may be unacceptable to him but that does not mean that it is unacceptable to everyone or even to the Government. There is a perfectly good reason for the provision. Whether or not it is acceptable to the individual is a matter for each person.

My noble friend Lord Bethell is quite right. The Bill proposes arrangements which are different from those which obtain at present. The reason for that is that the past few years have seen a considerable rise in appeals to my right honourable friend which have been relying solely on technical grounds rather than on the actual merits of the case, or on grounds which have little real merit to them at all. The normal practice in tribunals is for each side to bear its own costs. It is proposed that that should be the practice for the new appeal tribunals.

The tribunals will have the task of examining whether an officer who is dismissed or who is required to resign by his chief officer is fit for the police service. It seems to us right that anyone who is going to challenge the chief officer's decision—the challenging of four senior police officers (the hearing will be held in front of the assistant chief constable and two superintendents, and that will then be considered by the chief constable)—should be expected to have sufficient confidence in the merits of his case to be prepared to pay his own costs. All the costs of the appeal tribunal itself will be met by the police authority, and the only costs the appellant would have would be his own. We would expect tribunals to award costs in any case where the appellant won his case and in any case where they saw merit in the appeal. But the principle that the person ought to be prepared to stand his own costs seems to me to be correct.

Lord Bethell

Is my noble friend able to answer my question about the approximate cost of an appeal?

Earl Ferrers

I am sorry but I cannot do that. It would obviously depend on circumstances. The only cost would be the person who goes with the appellant.

Lord Bethell

I shall shortly beg leave to withdraw this amendment also, but it is only because we are sitting at this very late hour and because there are so few of us. Again, as several noble Lords have pointed out, I feel confident that, were there to be a true test of the feeling of the Committee, several, if not all, of these amendments would be carried. I hope that it will be possible for us to debate these matters at a later stage and at a time when there is a good turn-out of people who can discuss these matters and vote on them if necessary. All this can be avoided if my noble friend will look seriously at these questions and take on board the matters that have been raised in these short debates. In the meantime, I can only apologise once again for having delayed the Committee at so late an hour. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

Lord Archer of Sandwell moved Amendment No.120: After Schedule 3, insert the following new schedule: SCHEDULE 3A ("AMENDMENT To TRIBUNALS AND INQUIRIES ACT 1992: POLICE APPEALS TRIBUNALS In Schedule 1 of the Tribunals and Inquiries Act 1992 (Tribunals under general supervision of council) after Tribunal 36, there shall be inserted— 36A. Police Appeal Tribunals established under section 15 of the Police and Magistrates' Courts Act 1994". ").

The noble and learned Lord said: I shall begin by repeating a declaration of interest which I made in relation to my earlier amendments. The purpose of this new schedule is to provide that the police appeal tribunals shall be subject to the supervision of the Council on Tribunals. In exercising the existing jurisdiction to hear appeals against a disciplinary finding, the Secretary of State appoints a three-member inquiry to consider the appeal and to report to him. That procedure was established by paragraph 3 of Schedule 5 to the Police Act 1964, which provided that, with certain exceptions: The Secretary of State shall … appoint one or more persons", to hear appeals. I emphasise the word "shall". That was a statutory inquiry within Section 1 of the Tribunals and Inquiries Act 1971, as it then was, and was consequently within the supervision of the council. A statutory inquiry was defined by Section 19 as inter alia, "an inquiry … held … in pursuance of a duty imposed by any statutory provision".

Section 12 of the Police Act 1976 amended that provision in the 1964 Act to provide that the Secretary of State "may" appoint one or more persons to hear appeals. That was later substantially re-enacted in Section 103 of the Police and Criminal Evidence Act 1984. It was never intended that that should have the consequence of removing the tribunals from the supervision of the council but it had that effect because they were no longer appointed in pursuance of a duty but only of a discretion.

That consequence was not noticed at the time when the amendment was enacted but some observant character later noticed it and perfectly properly pointed it out. I am not sure when it was noticed but certainly in 1985 it was the subject of correspondence between the Home Office and the council. It was agreed that matters should be suitably amended. The Tribunals and Inquiries Act 1971, which was substantially re-enacted in 1992, provided in effect that even if an inquiry was not held in pursuance of a statutory duty, it could nevertheless be designated as a statutory inquiry for this purpose by ministerial order. It was agreed that that should be done. I disclose no confidences. This story is set out in the annual report of the council for 1985–86.

If that order had been made, I doubt whether I would have needed to trouble the Committee with this new schedule at so late an hour. I am sure that it was by oversight. After it was agreed that it should be done, it was never made; no order was made by the Secretary of State. So a consequence which was intended by no one is that for the moment an inquiry is not within the supervision of the council.

That could have been rectified in the Bill in dealing with the new arrangements which are not substantially different from the existing arrangements except that a statutory tribunal is an even stronger candidate for supervision than an inquiry appointed ad hoc. So one would have expected it to be corrected in this Bill. It was not and whether that was by oversight or otherwise, I do not know. But that need not deter the Committee. This amendment simply seeks to insert it.

If arguments are necessary, they come readily enough. First, there is a strong element of public interest in the working of this procedure. Both the police and the public will wish to be reassured that it operates properly and fairly and that the procedural rules have been scrutinised by the council. Secondly, this procedure is analogous to the procedure which, for those who are not members of the police force, is dealt with by employment tribunals. That is a point made more than once in the course of the Committee's debates today. To my knowledge, no one has ever questioned that employment tribunals should be, and are, within the supervision of the council.

Normally in moving an amendment, I would seek to anticipate the arguments which might be deployed against the proposal; but for the life of me I cannot anticipate what arguments might be used against this proposal, and why the Home Office should fear scrutiny by the council. I have had no indication that the Government propose to accede to it. It may help if the Committee hears the Minister and we take it from there. I beg to move.

Midnight.

Earl Ferrers

I am glad that the undoubted capacity of the noble and learned Lord to consider most things has nevertheless made him unable to anticipate the arguments which I shall give in reply to his amendment because otherwise I would have had the rug pulled from underneath my feet. The noble and learned Lord has advocated bringing the police appeals tribunals within the scope of the body which has the good fortune to have him as chairman; namely, the Council on Tribunals. But that body is not concerned with small, ad hoc disciplinary appeals bodies such as this one which have no continuing existence or staff, which are the responsibility of local police authorities and which have no links either to local or central government.

It is the police authority which is to be responsible for the efficiency and effectiveness of its force. It is as part of those duties that we have arranged for a police authority member to be a member of any such police appeals body which has to be set up to deal with the case of a particular officer. The police authority member will represent the local public interest in ensuring the good conduct and efficiency of the local police force. It is for the police authority to make sure that such an appeals body operates its procedures in a way which is fair to the police officer concerned.

In any of this we do not see a role for the Council on Tribunals whose main concern is major tribunals which generally have a permanent existence and their own staff. Indeed, we find it difficult to envisage who would respond to the council's inquires, should it make any, when the appeal bodies have no permanent existence.

The noble and learned Lord based much of his claim for a police appeals tribunal on the fact that in 1985 there was an intention on the part of the Government to place existing tribunals under his council's wing. Considering their ad hoc nature, I am surprised that that was ever considered.

Be that as it may, the new tribunals are an entirely different matter. They will be set up as and when needed by the police authority and will have no continuing existence or staff. Even that for senior officers (which will be set up by my right honourable friend) will be a rare body. We know of no senior officer tribunal which has been set up in the past 10 years. I want to help the noble and learned Lord as much as I can. I assure him that the model rules of procedure that are advocated by his council will be fully taken into account when the tribunal rules are set. I hope that that will at least give him some cause for satisfaction.

Lord Archer of Sandwell

The Minister's final kind undertaking certainly gives me some satisfaction, but I confess that I am far from fully satisfied. I did not appreciate most of the arguments that he advanced. First, he said that the new tribunals will be ad hoc, but surely the old tribunals were ad hoc. The provision in Section 37 of the 1964 Act was that when an appeal was made the Secretary of State should appoint three suitable persons. Nothing could be more ad hoc than that. This is a far more stable and permanent tribunal.

The kind of tribunal which the Minister described is not by any means the only kind of tribunal within the supervision of the Council on Tribunals. There are over 60—I think that at the last count there were 65—different systems of tribunals in this country coming within the supervision of the council including, for example, the controller of plant varieties. It is difficult to understand why the fact that the tribunal is convened only from time to time and may not always consist of the same members should be an argument against the supervision of the council.

Not only was it the case that in 1985 the Home Office agreed that the appropriate amendment should be made by order, but since 1964 the tribunals have been within the supervision of the council. They have been there. The council has supervised them. It never occurred to anyone to argue, "They're only ad hoc"—nor have I heard the rather surprising argument that they are not really to do with central government. Some of the tribunals which are frequently supervised by the council deal with cases between individuals. Many of the cases heard by industrial tribunals are cases between individuals.

I cannot help feeling that the situation has not been fully considered by those who advise the noble Earl. It may be that at this late hour I am not as articulate as I would hope to be at a different time of day. It may be that, as the Minister said, he himself is not as open to consider these matters as he might be at a different time. Perhaps it would be better if we both returned to the matter either privately or on the Floor of your Lordships' House at Report stage. For the moment, but only for the moment, I am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 [Reports from inspectors of constabulary]:

Lord McIntosh of Haringey moved Amendment No.121: Page 13, line 26, leave out from ("published") to end of line 27.

The noble Lord said: In moving Amendment No.121 I should like to speak also to Amendment No.122. Both are probing amendments which have been tabled because we find some difficulty in understanding the provisions of Clause 17 about the publication of reports by the inspectors of constabulary. Our first difficulty is in subsection (1) which provides that, "the Secretary of State shall arrange for any report received by him … to be published in such manner as he thinks fit".

The next problem is in subsection (2) which provides: The Secretary of State may exclude from publication … any part of a report if, in his opinion, the publication of that part-(a) would be against the interests of national security".

The problem we have with the provision, in such manner as he thinks fit", is that it is not at all clear what considerations the Secretary of State will take into account in using the discretion which is given to him. Let us suppose that the report is critical of a police authority. It is not intended that we should have democratic control of police authorities but let us assume that we do and that the police authorities are under the control of a party different from that to which the Home Secretary belongs. Clearly, the provisions in the Bill would allow the Secretary of State not only to publish the whole report but to jazz it up, issue a video, send it to the popular press and, generally speaking, to make a good deal of political capital out of it.

On the other hand, let us suppose that the report were critical of the Home Secretary and the way in which he had intervened in the affairs of the police authority. Presumably in the Bill as drafted the Secretary of State would be permitted to pick and choose and to publish as little as he liked. Perhaps he may choose the minimum manner of publication and simply lay it in the Libraries of both Houses.

We do not believe that the Secretary of State should have this degree of power, and the removal of the phrase, in such manner as he thinks fit", would diminish that unjustifiable power.

The second problem that I raised was the interests of national security. Those interests are always claimed when there is any possibility of a move towards open government. "Against the interests of national security" could be interpreted as criticising the ability of a police force to deal with public disorder. We accept that it is right to exclude from publication any part which might jeopardise the safety of any person. That does not mean that this blanket exclusion for national security reasons is justifiable. We suggest that the proper phrase should be, would seriously jeopardise national security".

In other words, that which it is convenient to exclude should not be excluded. I beg to move.

Earl Ferrers

The amendments deal with the provisions regarding the publication of inspection reports. These reports have been public in practice since 1990; but it seemed right to us to go a step further and require them to be published. It is a small but important step towards even greater openness about police performance.

I would find it difficult to go along with the detail of the noble Lord's amendments. Amendment No.121 seeks to remove any discretion for the Secretary of State to decide exactly how a report should be published. In fact, we are likely to continue the current practice whereby inspection reports are made to the Secretary of State but a copy is sent to the police authority and the chief constable and is made available in local libraries in the police areas to which they relate. The copies are also freely available from the offices of the inspectorate to anyone who wishes to see them.

Amendment No.121 will still leave it to the Secretary of State to decide exactly in what form a report should be published. I believe that it is right that we should leave the matter open. I can assure the noble Lord, Lord McIntosh, that we have no intention of making publication any less open than it is at present and we might in future decide to give these reports an even wider circulation.

Amendment No.122 raises more important matters. Police forces deal with very sensitive matters relating to security. Inspectors can and do look at all aspects of the force's work, including those relating to security matters. I believe that the noble Lord would agree that an inspector must be free to comment on those matters without the fear that any comments that he may make will present a security risk by being put into the public domain. That is why the clause allows the Secretary of State to exclude from publication any part of the report which would be against the interests of national security.

The noble Lord's amendment would raise that threshold to matters which would seriously jeopardise national security. That may not seem a great difference but it is clearly a tougher test. It means that matters which would be against the interests of national security could be published so long as they fell short of the higher threshold of seriously jeopardising national security. I do not believe that it would be right at all to require publication of matters which are against the interests of national security.

I assure the noble Lord that in accordance with the clause the Secretary of State would take a tough view as to what should be excluded from publication. The Government wish to put as much as possible into the public domain, whatever praise or criticism an inspector may make. But the needs of openness must obviously be curbed slightly where matters of security are at stake.

12.15 a.m.

Lord McIntosh of Haringey

I confess that I am far from satisfied with the response to Amendment No.122. Unfortunately, it is the experience in many departments that whenever the Civil Service is up against the wall as regards local government issues, it simply invokes the plea of national security to exclude matters from publication. It is a very different situation in this country from, for example, that in the United States. I believe that the higher test of seriously jeopardising national security is much more appropriate than the very loose and broad way in which the phrase "against national security" is commonly interpreted. Perhaps we shall have to wait for a proper freedom of information Act under a Labour Government to achieve what we want in that respect.

I was interested in what the Minister said about the way in which it is expected that there will be publication in response to Amendment No.121. I am grateful to him for his assurance that the Government do not intend to restrict publication any more than it has been restricted since publication became normal in 1990. I must confess that the description of the publication procedures which he set out seemed to me quite reasonable.

Of course, that still leaves the Secretary of State free to publish more widely those reports which he finds politically convenient. It is not clear to me what is the criticism of the amendment. Is the Minister saying that it is wrong that the amendment limits the discretion or is he saying that it is wrong because it leaves it in place? It seems to us that it will be much better if the kind of publication procedures which he described were enshrined perhaps not in statute but at least as a code of practice for the Secretary of State. Secretaries of State often issue codes of practice for other people. Let us issue one for them, I should like to see something more explicit than the wide powers which are given to the Secretary of State in Clause 17. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.122 not moved.]

Clause 17 agreed to.

Clause 18 agreed to.

Clause 19 [Common services]:

Baroness Hilton of Eggardon moved Amendment No.123: Page 14, line 28, after ("State") insert ("after consultation with persons representative of Chief Constables and persons representative of Police Authorities").

The noble Baroness said: I rise at this late hour to move this amendment. It forms part of the theme that we have been following throughout the amendments to the Bill; namely, the assumption of power by the Secretary of State and his apparent reluctance to involve himself in democratic discussions with those who will be most directly affected by his decisions.

The amendment relates to the use of common services. I am very much in favour of more uniform use of such services by the police force—that is, the common use of technology, equipment and so on. However, there have been disasters in the past due to decisions within central government and the failure properly to consult chief constables and police authorities. The introduction of the forensic science service as an agency, for example, has caused considerable distortions in force budgets and a number of strange, local hiccups caused by forces adopting their own systems of sifting and various ways, entirely budget driven, to restrict the number of tests needing to be carried out due to the pricing system that the forensic science service introduced without consultation. Similar disasters happened with the introduction of the National Automated Fingerprint Identification Service (NAFIS) where there was a decision by central government and a failure to consult police forces and police authorities.

I am sure that. the Minister will say that the Secretary of State does, in fact, consult. However, I believe that many of us would feel more comfortable if it was actually written on to the face of the Bill that, before he could force police forces to use centrally provided facilities or services, he must formally consult representatives of chief constables and people representing police authorities. That would produce much greater efficiency and effectiveness in the long run and much better co-ordination and feeling throughout the police service. I beg to move.

Earl Ferrers

The regulation-making power contained in Clause 19 is not a power that we would anticipate using very much. Chief constables and police authorities usually recognise when it is important to participate in a common service and they usually do so voluntarily. We would only use the power where, for example, a particular police authority took such a parochial outlook that it wanted to opt out of a common service in a way which jeopardised the efficiency or effectiveness not only of its own force but also that of other forces.

The Home Office takes full account of the views of chief constables and police authorities when considering the provision of common services. Before exercising the new power it is virtually certain that, in practice, we will consult the Association of Chief Police Officers and representatives of police authorities in one of the tripartite bodies in which so much business affecting the police service is already carried out. However, I know that the noble Baroness would like to see the consultation made a statutory requirement. If she will be good enough to allow me to do so, I shall consider that proposal before the next stage of the Bill's proceedings. Of course, I cannot tell the noble Baroness what the result will be, but I shall certainly consider the matter.

Baroness Hilton of Eggardon

That is a splendid note of harmony upon which to finish the day's business. I am most grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 agreed to.

Lord Harris of Greenwich

I understand that it is proposed to finish the day's business at this point. I do not know who agreed to it, but "we" on these Benches did not. However, I do not want to ruin a most agreeable evening. Nevertheless, it might be nice if someone told us what was going on. I shall not press the point.

Earl Ferrers

We seem to have come to that stage of the proceedings at which we thought we would conclude for the day. I do not know whether noble Lords opposite wish to continue, but that is the position so far as I am aware.

Lord McIntosh of Haringey

If there has been any lack of consultation, it is probably my fault. I suggested to the Government Whip's Office this morning that it would be more suitable to finish before Clause 21. I understood that had been agreed. I had a message from the Government Chief Whip's Secretary to that effect, and I conveyed that message to the noble Baroness, Lady Gardner of Parkes. I am sorry that the message was not conveyed to the noble Lord, Lord Harris, and I apologise to him for that.

Earl Ferrers

I am grateful to the noble Lord, Lord McIntosh, for making the matter clear. If it is convenient to him to adjourn, I can assure him it is convenient to me. I only hope it is convenient to the noble Lord, Lord Harris, and to everyone else. If that is so, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at twenty-five minutes past midnight.