§ Consideration of amendments on Report resumed.
§ Clause 10 [Alteration of police areas.]
Earl Ferrers moved Amendment No. 74:
Page 7, leave out lines 47 and 48 and insert:
("(a) specify the proposed alterations and describe the general nature of any related provisions proposed to be included in the order,").
§ The noble Earl said: My Lords, in speaking to Amendment No. 74 I shall speak also to Amendments Nos. 75, 77 and 78.
These amendments concern the powers to alter police areas under Clause 10. Amendment No. 74 addresses the anxiety which was expressed by the noble Lord, Lord Allen of Abbeydale. He was concerned with the provisions of new Section 21A which deal with the procedures which must be followed where the Secretary of State proposes an alteration in police areas. The Secretary of State must give notice of his proposals to any police authority or local authority which would be affected, and that notice must:
describe the general nature of the proposed alterations".
The noble Lord was concerned that that would allow the Secretary of State only to give the most general description of what was intended and would leave interested parties in the dark about important details which they might need to know before deciding whether or not the alteration was a good idea. It was never our intention that that would happen. I cannot imagine that a Secretary of State would simply give notice that he proposed to amalgamate Force X with Force Y without any further explanation of what consequential changes would need to be made.
I am always anxious to try to meet anxieties which are expressed by noble Lords wherever possible. The amendment will therefore make clear that the Secretary of State, when he gives notice, must specify the alteration which he proposes to make and must describe any related changes which will need to be made. Those will vary from area to area; but they are likely to cover such matters as the arrangements for the transfer of police officers and civilian staff and for the transfer of any property or other assets. That should ensure that interested parties will be in a proper position to judge whether the alteration which is proposed by the Secretary of State is one which they would support.
If there is any further detailed information which is not in the notice which is given by the Secretary of State and which a police authority or council would find 189 helpful, it will of course be open to them to request further details. I am sure that the Secretary of State would be happy to provide any information he can.
When the Secretary of State receives representations he may well want to modify his proposals. Amendment No. 77 makes clear that he cannot proceed with a different alteration without starting the process all over again and issuing a fresh notice to interested parties. He will however be able to modify points of detail. It would be absurd if the process had to start all over again, with a minimum of four months further delay because there was some minor modification which might be welcome to all parties.
Some of your Lordships also expressed anxiety about the powers to include in orders supplementary and transitional provisions, including provision amending other enactments. There is no doubt that such a power is necessary. For example, in the unlikely event that my right honourable friend the Home Secretary decided to alter the Kent police area it is quite likely that some amendment would be needed to references which are contained in the Channel Tunnel Act 1987. Such changes would only be made where they were a necessary consequence of an alteration in a police area. Amendment No. 78 makes that clear. I hope that it will reassure your Lordships that the power is only as broad as is absolutely essential for the purpose of giving effect to alterations in police areas. I beg to move.
§ 9 p.m.
§ Lord Allen of Abbeydale
My Lords, I welcome the amendments, which go a long way to meet the points that I raised at Committee stage. The provisions will ensure that those concerned will learn more than just the general nature of the Secretary of State's proposal when he is contemplating a compulsory amalgamation. I also appreciate the softening of the power to amend other legislation. I am most grateful to the noble Earl.
§ Lord McIntosh of Haringey
My Lords, it would be churlish not to join with the noble Lord, Lord Allen of Abbeydale, in recognising the extent to which the Government have felt able to respond to the worries which were expressed at Committee stage. In a sense, it is all hypothetical legislation because the Government have assured us that they have no intention of amalgamating any police forces. They have no plans to amalgamate any police forces. It therefore does not much matter what is put into the legislation because such amalgamation will not occur.
We might have a Home Secretary who considers the record of large and small police forces, draws the conclusion—it can readily be drawn from the statistics —that small police forces are rather better than larger police forces and goes in for an extensive programme of alteration, creating more police forces rather than fewer. To that extent there may be some rational basis for the changes which the Government make.
Of course it is better to specify the alterations and to describe the general nature of related provisions. It is helpful to have the assurance that the Minister gave about matters such as staffing arrangements which 190 would be included in such a specification. In particular, it is valuable to have Amendment No. 78, which takes the sting out of the Henry VIII legislation proposed in the Bill as drafted. To that extent we welcome the changes that are made; we shall not oppose them. That does not mean that we and our colleagues in another place might not seek to put further restrictions on the power of the Secretary of State to impose unwelcome amalgamations. However, that is not. a matter for the discussion tonight.
My Lords, I am grateful for the appreciation which the noble Lord, Lord Allen of Abbeydale, expressed and the more guarded appreciation expressed by the noble Lord, Lord McIntosh of Haringey. As I have explained, I always seek to accommodate your Lordships where it is possible. I am glad to have been able to do so on this occasion. I thought that the imagination of the noble Lord, Lord McIntosh, went into overdrive when he suggested that we might be deciding to split up police forces to make many more. But he is entitled to his flurry of fancies. I think that that would be unlikely. However, I am grateful for the way in which your Lordships have accepted the amendment.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 75:
Page 8, line 2, leave out ("them") and insert ("the alterations").
§ On Question, amendment agreed to.
§ The Deputy Speaker (Lord Brougham and Vaux)
My Lords, I must point out to the House that if Amendment No. 76 is agreed to I cannot call Amendment No. 77.
Lord Allen of Abbeydale moved Amendment No. 76:
Page 8, leave out lines 13 to 16 and insert:
("(a) cause a local inquiry to be held in respect of the objections by a person appointed by him (who shall not be an officer of police or of any Government Department); and
(b) consider the report of the person holding the inquiry before determining whether the proposed alterations should be made and, if so, subject to what modifications if any.
(5) The Secretary of State may himself determine or may authorise the person holding the inquiry to determine the procedure to be followed at such local inquiry and in any case subsections (2) and (3) of section 250 of the Local Government Act 1972 shall apply to any inquiry under this section as they apply to an inquiry under that section.").
§ The noble Lord said: My Lords, although I am grateful for the last group of amendments, I remain unpersuaded that the case has been made out for dispensing altogether with a local inquiry. At Committee stage the Minister argued that local inquiries were very long, very protracted (if that means something different from very long) and very expensive. Unlike the White Paper, he did not suggest that they were unworkable.
It must obviously be attractive to avoid the nuisance of having to send, let us say, an inspector of constabulary to stand up to local examination on the grounds for a scheme. However, against that consideration such schemes are of great local concern. I 191 find it a little difficult to reconcile the Government's line on the issue with their enthusiasm for involving the public in policing matters through neighbourhood watch schemes, parish constables and suchlike.
As I said at Committee stage, if a scheme has been devised it stays in being for a long time. It is surely acceptable to take a little time if it helps to get the scheme right. The Minister relied heavily on the fact that a scheme had been known to take 18 months. Therefore the amendment proposes to put the procedure to be followed in the hands of the Home Secretary or the inspector taking the inquiry so as to enable them to devise arrangements for avoiding undue delay, just as the Minister for Transport has been busily doing over roads inquiries. Incidentally, I cannot help thinking that those in other departments who are saddled with the nuisance of local inquiries will be watching the outcome of our present deliberations with interest.
The Minister rather suggested that the affirmative resolution procedure was an adequate substitute for a local inquiry. However, I fear that he did not dispose of the suggestion that that was not really so in the light of experience of affirmative resolutions in both Houses over many years. I do not propose to go over the arguments again, except possibly to emphasis that the orders cannot be amended. Therefore, if one had views about the sitting of the headquarters of the new force, the distribution of the membership of the new authority or the appointment of the senior officials of the authority there is nothing that one can do about it.
I am aware that there is already provision on the statute book in the Local Government Act 1992 for dispensing with a local inquiry. As I understand it, that provision applies where police amalgamation is a natural consequence of a change in local government structure following a finding of the Boundary Commission.
In discussing the Bill we have so far set on one side the consequences for the police of local government restructuring. Clauses 34 and 35 of the Bill about the powers of the Boundary Commission have not attracted a murmur. I am just beginning to wonder whether that is right. In recommending an unrecognisable West Riding and other unitary authorities in Humberside, Lincolnshire and North Yorkshire, the Boundary Commission has thrown in a recommendation for a unitary police force affecting the existing Humberside and North Yorkshire forces. It did not argue the merits, nor did it consult the police authorities, the chief constables or Her Majesty's Inspectorate of Constabulary.
The proposal involves considerable operational problems from the police point of view and it is unthinkable that the scheme could go ahead without those concerned being given an opportunity to put their views. How is that TO be achieved? Will it be proceeding under the 1964 Act, or under this clause when the Act is in force? If so, how would that fit in with the timetable of the Secretary of State for the Environment?
I find it all extremely puzzling. The only thing that is clear is that the Boundary Commission, by a stroke of the pen—or to be more accurate, by two lines of print 192 —has brilliantly managed to introduce that period of uncertainty which it was the Government's principal object to avoid; or so we are told.
Going back to the main purpose of the amendment, at all events nothing has happened so far to make me believe that there is any justification for doing away with the local inquiry in what might be described as the ordinary amalgamation proposal. Just think what the reaction would be if, for example, the Home Secretary used his powers, step by step, to roll up all the Welsh forces into one force for Wales without having any form of inquiry during the process.
I add that if the amendment were accepted I for one would see no objection if, at a later stage, the Government thought it right to go back to the negative resolution procedure, just as was done in the Police. Act 1946. That was an Act in which, although it hardly bears thinking about nearly half a century later, I had a rather close personal involvement. I beg to move.
The Deputy Speaker
My Lords, I inadvertently said that Amendment No. 76 would pre-empt Amendment No. 77, but it does not.
§ Lord McIntosh of Haringey
My Lords, the noble Lord, Lord Allen, as one might expect, has covered the ground adequately in introducing the amendment. am glad to give it my support. I only wish to add the more political point that if it becomes accepted that local inquiries can be abolished by legislation, then much that we have held dear over a considerable period of time about the necessity to consult the electorate will gradually disappear. I should have thought that that was totally contrary to the Government's proclaimed thinking, in particular in the Citizen's Charter initiative. It is, after all, an essential part of the Citizen's Charter that government departments should be responsible to their clients, to the public, and that they should find ways of listening to their clients' needs and incorporating them into their objectives and performance targets.
Surely this is a case where, in proposing to change the nature of policing provision to people in a particular area, the Government ought, under normal Waldegravian principles, to seek the views of the people concerned. I cannot think that Mr. Waldegrave and the others involved with the Citizen's Charter can have paid attention to what is being proposed here. It seems totally contrary to their principles which are proclaimed as a major part of Conservative philosophy.
Perhaps I may add a further point that there are good precedents for thinking of public inquiries in two different forms. One of them may be long drawn out and protracted, and the other need not be so long drawn out and protracted. The first is the case where there are non-governmental organisations like energy authorities., as in the case of Sizewell power station—there are many other examples which one could cite—making proposals where they have their own private interest but which affects the public interest of many other people Under those circumstances, it is necessary to have the most complete and thorough protection for the people whose public interest is affected by the private proposals.
193 The second, as Halsbury's Laws of England makes clear, is the case where the Government themselves, supposedly at any rate in the public interest, make proposals. In those circumstances there is no reason that there should not be an expedited procedure for a public inquiry and that some of the protracted and long drawn out—like the noble Lord, Lord Allen of Abbeydale, I do not know what the difference is—procedures should not be short cut to a certain extent. The purpose of such an inquiry is to inform government about public opinion on a governmental proposal and enable public opinion to play its part in government's thinking. That can be reflected in the political process as well as in public inquiries.
In those circumstances, there is really no good reason that public inquiries should cause delays to proposals which, after all, will themselves last for many years, as the noble Lord, Lord Allen of Abbeydale, said at Committee stage. Therefore, it is difficult to understand why the Government should resist such a modest amendment.
§ 9.15 p.m.
§ Lord Harris of Greenwich
My Lords, I have spoken on this issue on a number of occasions in the past. I do not propose to go over my expressions of view once again, except to say that this represents a new chapter in passing all power to the Minister in Whitehall. The rights of local communities to put forward their views at a local inquiry are being removed. As has been said, once government departments learn what a lovely idea it is to get through the abandonment of one type of local inquiry they may move on to other areas. The same arguments that the noble Earl has used —the saving of money, the streamlining of decision-taking and matters of that kind—can be used in relation to a whole array of other forms of local inquiry. I believe that that would be profoundly damaging.
There is all too little confidence in the quality of administration of government in this country. Ministers continue to come forward with proposals of this kind without realising the disenchantment of the British people about whole areas of public policy-making. The noble Earl may have seen an interesting public opinion poll published in the early weeks of this year. That poll showed that trust in politicians was at a remarkably low level. I recall the figures almost precisely. There was more than eight times more confidence in the police than in the political process of this country. I fear that moves of this kind—the stripping away from local communities of their rights to be heard at local inquiries on issues which affect their communities, like the existence of their own separate police forces—will simply intensify the disillusionment with government. I believe that that is particularly regrettable when it comes to a service like the police. We know that Mr. Howard has no ambitions to merge police forces; he has said it so often that it must be true. However, one of his successors may decide to use just these powers.
The noble Lord, Lord McIntosh, said that the league tables, that would arrive some time towards the latter part of next year or early in 1996, would demonstrate 194 —assuming that they demonstrated efficiency, which presumably would be the purpose of having them—that the smallest police forces would be top of those league tables. There is no way that the noble Earl can ignore that fact, because it happens to be true. If a future Secretary of State decides to amalgamate police forces, the ones that will be amalgamated will be those that the Government's own league table demonstrates are the most efficient.
§ Lord Renton
My Lords, it is with some reluctance and shame that I venture to enter into the discussion because I was unable to hear the first part of it. I hope that your Lordships will accept my apology for that.
I point out that the proposals in the Bill on page 8, lines 13 to 16, and the proposed amendment have a very important factor in common; namely, that in either event the last word will remain with the Secretary of State. These are matters which, incidentally, should be seen to be ones in which there is not undue delay or an appearance of prevarication at the top. Bearing in mind that the police authority for each area and the local government councils concerned will have an opportunity to make known their views, I do not see why it is necessary to cause a noticeable but not very great delay and perhaps apparent prevarication by the holding of a local inquiry by an inspector compared with what is proposed in subsection (4) on page 8.
Therefore my inclination would be in the circumstances, which would be fairly rare, to accept the Government's solution to this matter. With great respect to the noble Lord, Lord Allen of Abbeydale, whose experience I respect greatly because I happened to be in the Home Office when he was there, and to the noble Lord, Lord McIntosh, I would say that the Government should stand their ground on this issue.
My Lords, that, if I may say so, was a very helpful intervention. We come back to the problem of public inquiries. The noble Lord, Lord McIntosh of Haringey, said that he could not understand why the Government would resist such a modest amendment. I shall try to explain to the noble Lord why we should resist it.
It is worth considering exactly what the procedures in the Bill will involve. Before anything happens, the Secretary of State must be satisfied that the alteration in police areas would be in the interests of efficiency and effectiveness. He is not going to be sitting in his bath one day and suddenly decide that it would be a good idea to mess around with police areas. He has to satisfy himself that if a proposal is made, it will be in the interests of police efficiency and effectiveness. That is the first, fundamental point.
Once this test has been passed, he must give formal notice of the proposal to interested parties. That means every police authority which would be affected; every county, every district or London borough council which is wholly or partly within any area that would be affected; and such persons as he considers appropriate. That notice must specify the alterations which he proposes and the nature of any associated changes. He must also give his reasons for making the proposal. The government amendments which we have recently 195 considered spell out that requirement in rather more detail. The Secretary of State has to set out fully and clearly what he proposes to do. All that would be open to challenge in the courts if a Secretary of State's reasons were clearly capricious.
Then the interested parties have a minimum of four months—it was to be two months, but the noble Lord, Lord Allen of Abbeydale, persuaded us that it should be four months—to consider the proposals and make any representations which they may think necessary. That seems to be more than long enough for any relevant questions to be considered and aired.
When he receives any representations from people who have been consulted, the Secretary of State must consider them. This means more than just reading them and writing back saying, "Thank you very much, but as a matter of fact I do not agree". Any Secretary of State who tried to act in that manner would almost certainly be brought up before the courts. The Secretary of State has to consider any objections properly, and he has to give his reasons if he does not accept them.
The Secretary of State—if he still wishes to proceed after all that—must come forward with his proposals in an order which must be laid before Parliament. Before anything more can happen, he must secure the positive approval of both Houses of Parliament. Some noble Lords, and in particular the noble Lord, Lord Harris of Greenwich, the other day, poured scorn on the affirmative resolution procedure as a safeguard. I entirely accept that it is not common for either House to decline to approve matters which are laid before them in that way. But it is certainly their prerogative so to do. If noble Lords are suggesting that, given the opportunity to consider government proposals and to consider whether or not to accept them, Members of your Lordships' House and of another place would simply ignore the opportunity, however objectionable the proposals might be, it does not stand up to fact. Others may be inclined to dismiss parliamentary scrutiny so lightly, but I would not. My noble friend Lord Renton said that in either event—the public inquiry or what is proposed in the Bill—the Secretary of State has the last say. With respect, that is not so. Under the present arrangements one could have a public inquiry; the inspector could say that he felt that the amalgamation was completely wrong and inform the Secretary of State of his view. But the Secretary of State can disregard that, still lay the order and the amalgamation will go through. Under this arrangement Parliament will have the last word.
I believe it is a thorough process. The noble Lord, Lord Harris, says that it gives all the powers to Whitehall. I do not agree. It gives ample opportunity for full consultation, for representations to be made and for Parliament to have the last say. For that reason, I do not believe that the public inquiry procedure is necessary. I realise that some noble Lords think that it is. I shall therefore go a little further and explain why I think that it is not desirable.
I do not believe that public inquiries would add value to the process. However, they would add delay, cost and uncertainty. I must admit that they would also add a great deal of productive employment for lawyers. I see 196 that as a further disadvantage. Some noble Lords may disagree. The noble Lord, Lord Allen, referred to Humberside. He was quite right. The Local Government Commission recommended abolishing the Humberside forces. However, the Government have not yet reached a view in regard to that recommendation and will not reach a view without consulting the forces and the police authorities affected. It has not yet been decided how that consultation can best be carried out.
The lesson which I draw from the amalgamation processes which took place in the late 1960s is that we should do our best not to repeat that experience. Of those amalgamations which proceeded on a compulsory basis leading to public inquiries, none took less than two years to implement and most took three years or longer. It is also instructive to look at what the public inquiries were really like. The inquiries mostly took between four and seven months. The time which was taken up in preparing for them by all parties and the hold-up caused to any progress towards change was of course much longer. At most of the inquiries there were five or more —in one case there were I1—different lawyers all seeking to present arguments, cross-examine witnesses and generally to impress the person holding the inquiry, I cannot believe that that sort of forum is a sensible way to consider the issues relevant to altering a police area.
§ Lord Harris of Greenwich
My Lords, perhaps the noble Earl will forgive my interrupting. I was involved in the processes and of course he was not. No criticism was directed at the time by anyone involved in the process; no criticism was directed at the Home Office in either House of Parliament by anybody. It was felt—I should have thought rightly—that where a substantial number of barristers were present, as there were in the Lancashire inquiry, it was because a large number of police forces were being amalgamated. Does it not occur to the noble Earl that the need for putting difficult arguments of this sort before an inspector and for an inspector to adjudicate on the issue is far more likely to lead to public confidence in the system than for the decision to be taken by a politician in London?
My Lords, of course I realise that if there are matters of concern a number of barristers will be involved. All I am trying to say to your Lordships is that our experience is that it takes a large number of people to put the matters before the inquiry and a long time to resolve the issues. In the end, the Home Secretary of the day does not have to follow the advice of the inspector. Under the proposals that we are putting forward, the Home Secretary cannot do what is proposed until he has the approval of Parliament. I cannot believe that this kind of forum is the right way to consider the issues relevant to altering a police area.
It is also worth looking at the kind of issues which these public inquiries address. In one case the two authorities concerned actually wanted to be amalgamated but they could not agree about how the clerk to the new police authority should be appointed. Because of that the agreement broke down, which led to a public inquiry which lasted seven months. The amalgamation did not take place until three-and-a-half years after it had originally been proposed. In another case the parties 197 involved agreed about virtually everything—except the site of the new force headquarters. That too led to a public inquiry. Other inquiries debated at length the quorum of the membership of a new police authority, the precise amounts of money to be contributed by constituent councils, and other details.
I would also like to point out the effect of the process on the forces concerned. In his annual report in 1966 the then Chief Inspector of Constabulary said:It must be emphasised that the delay in reaching a decision on these matters has adverse effects on the morale of the men in the forces concerned".The following year, in 1967, his annual report said:Unhappily I must again emphasise that, in many cases where prolonged delay has occurred in considering and implementing amalgamation proposals, morale of the force concerned has been noticeably affected".There are, I am afraid, no central records of the cost of these procedures to taxpayers and to rate payers. But those quotations at least make clear to me what the effect was on the forces concerned. I cannot believe that it would be sensible to run the risk of repeating that experience in relation to any possible future changes.
I entirely agree that any proposed changes should be fully considered. I believe that the procedures in the Bill achieve that. In the end, however, you cannot reach a definitive answer about whether a change is right or wrong. That is why the Government do not want to maintain a form of public inquiry which treats these matters as if they are capable of objective proof or disproof. They are not that kind of matter. In considering all these matters and their ramifications, as one does before one comes to your Lordships, and even when one hunts through past documents as well, I was struck by the way this was dealt with in the evidence to the Royal Commission on Local Government in England. One witness was asked whether there was objective evidence on which to base decisions on the size of police areas. The witness said:We cannot produce hard statistical evidence. It is a question of judgment".I agree with that view. It was a view which was expressed by the then Permanent Under-Secretary of State at the Home Office, Sir Philip Allen, on 26th January 1967. He now, of course, glories in the name of the noble Lord, Lord Allen of Abbeydale. The procedures of the Bill do offer a way of reaching that judgment which is fair and thorough but which is not protracted and expensive.
§ 9.30 p.m.
§ Lord Allen of Abbeydale
My Lords, I am grateful to the noble Earl for going to so much trouble and conducting such detailed research. I do not propose to pursue the matter further this evening. I would just say to the noble Lord, Lord Renton, that I am sorry that he was not present to hear the case for the amendment. I do not propose to repeat it all again but it must have made it much easier for him for once to come out in strong support of the Government.
We shall follow with interest what happens in Humberside where the period of uncertainty has already started and is causing very considerable anxiety. I should like to think a little more about all this before we 198 reach the next stage but I see no point in pursuing it further this evening. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendments Nos. 77 and 78:
Page 8, line 16, at end insert:
("(5) Where the Secretary of State has given a notice under subsection (1) of this section specifying proposed alterations, the provisions of an order making the alterations may be inconsistent with the notice so far as it describes the general nature of the provisions, and may contain provisions not referred to in the notice.").
Page 8, leave out lines 27 to 29 and insert:
("() Without prejudice to subsection (1) of this section, the power to make orders under section 21 of this Act includes power—
§ On Question, amendments agreed to.
Lord McIntosh of Haringey moved Amendment No. 79:
Page 8, leave out lines 34 to 38.
§ The noble Lord said: My Lords, I would have been tempted not to move this amendment if there had been any understanding at all in the Government's mind or in their speeches about the issue we discussed earlier; namely, public inquiries. It is always wrong to encourage hybrid instruments—perhaps I should not say "always" because I can imagine circumstances in which it might be permissible. Certainly the presumption must be that to give to a Secretary of State, who will almost certainly be in the Commons, the power to overturn the procedures of your Lordships' House, is wrong.
If the Government had been reasonable about public inquiries and had agreed to an alternative procedure which would enable the public to have a say in the Secretary of State's proposals for amalgamation and alteration of areas of police forces, then one might have been a little more tolerant about it. But in practice the Government are operating what I believe they called before the last election a "double whammy". They are cutting out the democratic procedures and making sure that even the restricted ones which they are prepared to admit, and the consultation procedures which they are prepared to accept, can overturn the principles of hybridity which, I must emphasise, are a protection for the general public—the ordinary people of this country —which are enshrined in the procedures of your Lordships' House and of the House of Commons.
The Government are prepared to see those overturned as well. The combination of the two is entirely unacceptable. I am encouraged in that view by the speech of the noble and learned Lord, Lord Simon of Glaisdale, at Committee stage. He said:
One must expect this sort of provision to be revived wherever an Executive can get away with it. Your Lordships will not, I hope, allow the Government to get away with it on this occasion".—[Official Report, 17/2/94; col. 327.]
I am encouraged also by the fact that on 24th February the Procedure Committee considered the issue of hybridity and was concerned with the report from the
Delegated Powers Scrutiny Committee which originally, and without making recommendations—it does not make recommendalions—urged your Lordships to look very carefully at this provision in Clause 10. But the Procedure Committee unanimously to my knowledge (I was there) confirmed the undesirability of proposals in legislation to undermine the hybridity protection which ordinary people have in this country.
I ask your Lordships again: can it be acceptable that we should be pretending, by means of legislation, that something which would otherwise be hybrid—in other words, it would otherwise affect private interests in which the most special care should be given to protect those interests in legislation—should be treated as though it were not hybrid? That is not only a denial of democracy, but defiance of common sense and of the English language. I beg to move.
§ Lord Renton
My Lords, I hope that my noble friend will not accept the amendment. Hybridity owes its origin to the fact that from time to time in many past years an Act of Parliament affected private interests; either private property interests or other financial private interests. It was right that Parliament should be given an opportunity, when those private interests were threatened, to enable the parties to produce evidence, hear argument and so on, before a specially appointed Select Committee of, at that time, either House. However, only a years ago Members in another place decided that hybridity was not for them. It remains part of the procedures of your Lordships' House.
It should be remembered that hybridity is not a free-for-all. We should not extend the concept of hybridity on every imaginable occasion. If we had hybridity here, we would find that there would be delay. I used the word "prevarication" when speaking to a previous amendment. I hope that it was an appropriate word. There sometimes appears to be prevarication. I believe that delay would arise if hybridity were extended, with the elaborate procedure that that involves. From the public point of view, that could become something that is undesirable and irrelevant to the duties of the Home Secretary in deciding whether to make an order. Perhaps I may say in passing, referring to the previous amendment, that when I said that the Home Secretary had the last word, I meant that he had the last word in deciding whether Parliament should be asked to approve the order. That is so. We cannot escape from it.
There are occasions when there is full justification for not invoking the hybridity procedure. We cannot really say in this instance that the property and financial interests of particular members of the public are involved. The alterations that would arise and the adjustments that would have to be made in respect of changing police areas are essentially changes that are in the broad public interest, not affecting individuals—either individual people or individual companies. This is an occasion on which I think that the Government are fully justified in excluding the hybridity procedure. It would undoubtedly mean delay. Goodness knows, it can last for months sometimes.
My Lords, when we considered this matter in Committee, I undertook to consider carefully the points which had been raised before we came back to the matter at Report. Indeed, the House has given further consideration to this matter.
Earlier this afternoon, I introduced some government amendments which spell out in more detail the sort of information which the Home Secretary must give when proposing changes in police areas. We certainly want local people to have a clear idea of what is proposed and a fair opportunity to make their views known. I suggested earlier that local objections can be examined fairly and economically by means of the procedure which is proposed by the Government in the Bill. In resisting the noble Lord's amendment to restore public inquiries, I argued that, on a matter of this sort, which boils down to an issue of judgment in the light of local policing needs, a public inquiry is the wrong way to reach a conclusion.
But the Government do not argue that the Home Secretary should have a free hand in reaching his judgment after considering any objections. He should be required to obtain the support of both Houses of Parliament for his conclusion. That is a substantial sanction. That provision, too, is in the Bill. The Bill permits the oversight by Parliament of orders for amalgamations of police areas by the affirmative resolution procedure.
However, the effect of the amendment which we now have before us would be, in effect, to introduce a different sort of public inquiry. It would be for this House to decide in each case whether a particular order to alter police areas was a hybrid order. But it is quite likely that every such order would be hybrid. If so, an inquiry under the procedures of this House would, if this amendment were passed, be laid on top of the consultation procedures which we have just approved in almost every case.
The procedures of this House for dealing with hybrid instruments are a valuable safeguard. The Procedure Committee confirmed that in its recent report. I suggest that those safeguards should not be imposed mechanically in a matter of this kind.
In this case, we have gone to great lengths to make it easy and inexpensive for local objectors to express their views. We have imposed demanding obligations on the Secretary of State to consider those views and we have provided the most rigorous parliamentary oversight available for this kind of order. It is not easy for ordinary people—and it is not a cheap exercise for anyone--to contribute to the procedures of this House examining hybrid instruments. I really do think that we would he going over the top if we were to superimpose the hybrid instrument procedure on top of the safeguards which are already in the Bill. I agree with my noble friend Lord Renton that that would add considerably not only to the cost but to the delay and uncertainty.
I believe that the logic of the decisions which your Lordships have taken on earlier amendments is that we have accepted that we have provided a reasonable and thorough opportunity for objections to be raised when the Secretary of State proposes changes in police areas. If we have established that those safeguards are 201 reasonable I would ask the House to accept that in those particular circumstances the hybrid instrument procedure is inappropriate.
§ 9.45 p.m.
§ Lord McIntosh of Haringey
My Lords, I wish to respond to the Minister's speech; but, first, I wish to respond to the extraordinary speech made by the noble Lord, Lord Renton. I was so amazed by what he said, because so much of it was out of character, that I wrote down some of it word for word. He said that the amendment would "extend the concept of hybridity on every imaginable occasion". There is no suggestion in the amendment that the concept of hybridity should be extended in any way. The amendment intends that the Bill should not provide that:An order … which would apart from this subsection be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, shall proceed in that House as if it were not such an instrument".In other words, all we are doing is recording what the House in its procedures defines as being a hybrid instrument. We are not suggesting an extension or amendment of the House's procedures
§ Lord Renton
My Lords, I am grateful to the noble Lord for giving way. He has missed the point, which perhaps I did not elaborate sufficiently. I intended to convey that if we are to have hybridity on this occasion, in this type of case, it would be a precedent for having it in almost every imaginable type of case. That is why I used those words.
§ Lord McIntosh of Haringey
My Lords, that is simply not the case. The Bill provides that orders which would be treated by the existing procedures of the House as hybrid shall not be considered as such. We say that if they would be considered by the existing orders of the House as hybrid, they should be treated as hybrid. We are not suggesting any extension or change whatever in the procedures of the House.
Secondly, the noble Lord said that we would need full justification for not invoking the hybridity procedure. Again, I must disagree with him. It is for this House and for nobody else--not a Secretary of State, not an individual nor anybody outside—to decide what the procedures of this House shall be. In its Procedure Committee report of 24th February, which was accepted by your Lordships within the past month, this House has reaffirmed that it wishes to continue with the hybridity procedure and wishes to continue to discourage the Government, the Executive, in legislative proposals from seeking to overturn that hybridity procedure. Any question of justification for not invoking the hybridity procedure is not a matter for Secretaries of State, for people outside or for another place. It is a matter for your Lordships, and for your Lordships alone. That view has been reaffirmed.
Thirdly, the noble Lord said that such orders would be "not affecting individuals". The Minister said quite the opposite. He said that virtually every order would be considered hybrid under your Lordships' procedure. It is difficult to know which of the two opposing views on 202 the Opposite Benches to attack. I prefer to attack the noble Lord, Lord Renton, because again he assumes that, in seeking to take out that circumvention and overriding our hybridity procedures, we are making a judgment about whether individuals are affected. We are doing no such thing. The procedures of the House determine whether an instrument is hybrid. It is for the House and the House alone to make that decision. I thought that the objections raised by the noble Lord, Lord Renton, were quite extraordinary and in total conflict with the views expressed by your Lordships' Procedure Committee and confirmed by the House within the past few weeks.
The Minister makes a different series of points, which may be characterised as severely practical. He talks about the delay and the inconvenience of maintaining the procedures which your Lordships have in order to protect the interests of individuals. It may be inconvenient. As the Minister said, it may be inconvenient that there should be delay because of the need for public inquiries. It is the business of government to be inconvenienced when the public interest opposes the interests of government. It is right for us to protect the interests of individuals against government. It is right for us to protect the procedures which have developed over many years in the form of public inquiries and the procedures of this House to protect the interests of individuals against the Executive.
I found the Government's reaction to this and the preceding amendment deeply offensive to democracy. There is no point in saying that in your Lordships' House, which is not a democratic House, but it is still true. It is true that what is proposed may not be on the grand scale but it is an offence to democracy. It is only because of the hour and the scarcity of people in the House that I shall not press the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 11 [Functions of Secretary of State]:
§ [Amendments Nos. 80 and 81 not moved. ]
Earl Ferrers moved Amendment No. 82:
Page 8, line 47, at end insert:
("() Before making an order under this section the Secretary of State shall consult
§ The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 47. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 83 to 86 not moved.]
Earl Ferrers moved Amendment No. 87:
Page 9, line 5, leave out ("specific").
§ The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 50. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 88 to 90 not moved.
Baroness Hilton of Eggardon moved Amendment No. 91:
Page 9, line I I, leave out subsection (3).
§ The noble Baroness said: My Lords, this amendment is in a group which was spoken to earlier, but I wish to ask the Minister about the amendment which attempts to remove a subsection that we do not understand. Perhaps he can explain what the subsection means.
This concerns imposing conditions on performance targets. We do not understand how a performance target, which is a statistical measure, can have conditions imposed upon it; and if it is a statistical measure, which should be a neutral mathematical measure, we do not understand how different conditions may be imposed for different authorities. That seems to run counter to any attempt to provide uniform measurement of performances within police forces, which one would expect to operate to a common measuring rod or tool. We are rather puzzled by the subsection. I apologise for not mentioning the point earlier, but I did give notice of the fact that I was going to raise the question again at this stage. I hope that the noble Earl will be able to give us an answer.
As I said, it is a question of providing a ruler, a measuring rod, or something like that, and then suggesting that you are going to use different lengths of inches within it when measuring performance in different places. 'That is what puzzles us about the subsection. We cannot understand why one force will be measured with a different measuring rod from another. We should be most grateful to receive an explanation. I beg to move.
My Lords, I shall try to allay the noble Baroness's puzzlement. It should not prove to be too difficult to do so. The Secretary of State may require that targets should be set by police authorities. The targets will be set by the authority and not by the Secretary of State. However, the Secretary of State may set conditions that, for example, the target to be aimed at by police authorities must be an improvement in the clear-up rate of, say, between 5 per cent. and 10 per cent. That is the basic consideration behind the provision.
As regards the different conditions for separate authorities, the simple fact is that the Secretary of State may. for example, set a different range of targets for rural areas as opposed to that for urban forces because the circumstances for each are different. The provision gives the Secretary of State the ability to apply different ranges of targets for different sorts of forces.
§ Baroness Hilton of Eggardon
My Lords, I am grateful to the Minister for that explanation. It does of course mean that it will be very difficult to compare the performance of one force with that of another. We understood that, to some extent, the idea of having objectives was to make comparisons. Nevertheless, I am grateful for that explanation—
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 92 to 97 not moved.]
§ Clause 12 [Reports from police authorities]:
§ [Amendment No. 98 not moved.]204
§ Clause 13 [Police grants and other grants]:
Lord McIntosh of Haringey moved Amendment No. 99:
Page 10, line 29, leave out subsections (4) and (5) and insert:
("() 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.").
The noble Lord said: My Lords, in moving the amendment I shall, with the leave of the House, speak also to Amendments Nos. 100 and 101 tabled in the name of the noble Earl, Lord Ferrers. I recognise that, in those amendments, the Minister is seeking to attack the point which we made in a comparable amendment in Committee. However, it is still the case that there is far too much flexibility available to the Secretary of State in the rules which he proposes to issue. The provision in subsection (4) reads:
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".
So far, so good. However, subsection (5) says:
The considerations which the Secretary of State takes into account in making a determination under subsection (2) of this section, and the rules referred to in subsection (4), may be different for different authorities or different classes of authority".
Without the amendments tabled in the name of the noble Earl, Lord Ferrers, that gives the Secretary of State complete freedom to say, "I like police authority 'A'. I shall give them much more grant and set my own rules as to why I should do so. I do not like police authority `B'. I shall give them less grant and set quite different rules as to why they should be given less grant".
Quite frankly, Amendment No. 100, which takes out some of the most offensive phrases and inserts,
such formulae or other rules as he considers appropriate',
does not take one very far. If it was a case of formulae alone—in other words, if there was some attempt to have a common and defensible basis for the allocation of grant—we could understand that, but to insert the words,
such formulae or other rules as he considers appropriate",
really means that what the Government are proposing is a cosmetic change in the legislation rather than a real change. Under those circumstances it seems appropriate to urge your Lordships that Amendment No. 99, which requires common rules, is preferable to the government amendments. I beg to move.
The Deputy Speaker
My Lords, I must inform the House that if Amendment No. 99 is agreed to, I cannot call Amendments Nos. 100 and 101.
§ 10 p.m.
My Lords, I explained in Committee why the Government cannot accept Amendment No. 99. Although the noble Lord, Lord McIntosh of Haringey, assured the Chamber in Committee that Amendment No. 99 will not have the effect of requiring the Secretary of State to adopt rigid rules in allocating grant, I am not persuaded. To me the reference to "common rules" which "shall" be applied implies that the same rules must be applied to each police authority. I find it difficult to square that with funding the Metropolitan 205 Police—who we all agree require additional funding for a whole range of national and capital city functions—or with introducing any funding changes gradually so as to avoid large swings in resource allocation.
As I explained in Committee, the Bill specifically provides a discretion, rather than a duty, on the part of the Secretary of State to use rules to determine the allocation of grant. The Bill also provides the Secretary of State with a power to apply any rules to part of the total grant only. It also lets him treat different police authorities differently. I appreciate that these are wide provisions, but I believe they are essential to achieve the flexibility of funding that will be necessary to accommodate both the funding of the London forces and the gradual move to formula funding. I am afraid I find it difficult to accept that the noble Lord's amendment would achieve the same.
We have, however, made a change to new subsection (4) in Clause 13. Amendment No. 100 and Amendment No. 101, which is consequential on it, have been tabled to meet criticisms made in Committee that the wording of this subsection was convoluted and difficult to interpret. New subsection (4) allows the Secretary of State to allocate all or part of police specific grant by adopting rules which depend upon the individual circumstances of each police authority. For example, a fixed amount of grant might be payable for every 1,000 residents or every 100 road miles. That is what the original wording meant. But your Lordships did not like it. Your Lordships considered that it was drafted in such a way that it was difficult, if not impossible, to work out what it meant. The noble Lord, Lord McIntosh of Haringey, even said,The proposed new subsection (4) of this clause can be interpreted in a number of different ways … This is an opaque subsection".We have therefore had another look at it and succeeded—we hope—in considerably simplifying it. But we have not changed its effect. It is now perfectly clear on the face of the Bill that the Secretary of State may use a formula or other rules to allocate police grant, or part of it, if he so wishes. A formula is more rigid than a rule and would necessarily be applied without modification. Accordingly, the express provision about rules applied "without modification" is no longer necessary. We hope that your Lordships will agree that the new wording is clearer and that we have endeavoured to meet the criticisms which your Lordships have made.
§ Lord McIntosh of Haringey
My Lords, I suppose one can say that the Government are trying, even if they are trying by dint of misrepresenting our amendments. I did not of course say, as the Minister claimed, that the Secretary of State shall issue common rules which shall be applied without modification. The amendment says that he shall:issue common rules, which shall govern his determination of the allocation".That may require more complicated rules. To take the Minister's example of the Metropolitan police and its national, ceremonial or royal functions, that may mean that the rules would have to take into account those 206 ceremonial, royal or national functions. As was said on a number of occasions in Committee, that does not apply only to the Metropolitan police. It can apply to the Norfolk police or the Thames Valley police, or the police force responsible for Balmoral. Somebody will know which that is.
§ Lord McIntosh of Haringey
My Lords, I am most grateful to the noble Lady.
If that is the case and those special conditions apply, the rules should encompass those special conditions. It does not seem unreasonable to say that, even in view of the expense of more complicated rules, the complete discretion which was given to the Secretary of State in the Bill as drafted should be denied him.
The Minister now argues that "formulae or other rules" is more restrictive and less opaque. I shall have to read carefully what he said. I very much doubt it. I agree that "formulae" is a safer term but I do not believe that "other rules" is any less discretionary than the wording in the Bill as drafted.
As I said, I shall read in Hansard what the Minister said and think about the matter. It is not a matter to which I wish to return at Third Reading but if I have to I shall do so. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendments Nos. 100 and 101:
Page 10, line 32, leave out from ("applying") to end of line 34 and insert ("such formulae or other rules as he considers appropriate.").
Page 10, line 37, after ("the") insert ("formulae and other").
§ The noble Earl said: My Lords, I beg to move Amendments Nos. 100 and 101 en bloc.
§ On Question, amendments agreed to.
§ Clause 14 [Conduct and efficiency of police officers]:
Lord Fraser of Carmyllie moved Amendment No. 102:
Page 11, line 42, after ("(3)") insert ("Without prejudice to the powers conferred by this section,").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 102 I should like to speak also to Amendments Nos. 132 and 133.
When we discussed this matter at Committee stage I gave an undertaking in the light of a probing amendment to look again at the status and role of the warning in the new arrangements we are introducing for misconduct and inefficiency. I have considered the matter carefully and remain of the view that, while there is indeed a place for warnings within the scope of the new arrangements, that place is at an earlier stage than when a matter of conduct or efficiency is deemed to be sufficiently serious to bring the officer concerned before a formal hearing.
I recognise that a number of your Lordships were anxious to establish that for Scotland Clause 45 did not rule out the possibility of an officer being dealt with at a misconduct or inefficiency hearing in any other way than is set out on the face of the Bill. That is why it was thought necessary to table Amendment No. 133. However, the provision at Section 26(2A) does not constrain the exercise of discretion by the hearing. Once 207 the officer taking he hearing has considered the facts presented he may decide, for example, that there is no need to impose any formal sanction or that a warning would be sufficient. This provision does not prescribe outcomes. It merely indicates that the more serious outcomes cannot be reached unless the procedures prescribed in the regulations have been followed.
That being said, I was anxious to ensure that proper provision was made to enable warnings to be administered at the appropriate time. That is what Amendments Nos. 102 and 132 will ensure on both sides of the Border. Any regulations which are made by virtue of Section 33 of the 1964 Act and Section 26 of the Police (Scotland) Act 1967 covering the conduct and efficiency of constables will be able to include a provision that warnings may be used for less serious lapses of performance or conduct in broadly the same context as this sanction is used within the present disciplinary arrangements. However, there will be no obligation to prescribe in regulations a detailed procedure which must precede an issue of a warning.
I have taken a little time to explain the amendment in the hope that with that fuller explanation it will not prove necessary to return to the issue at a later stage.
§ Baroness Hilton of Eggardon
My Lords, I am most grateful to the Minister for that explanation. I am pleased to hear that the more informal system of giving a warning at an early stage is still allowed under the Bill. I therefore do not wish to pursue the matter any further. I am reluctant to dabble too far in Scottish matters.
§ Lord Lyell
My Lords, my noble friend Lord Campbell of Alloway raised the matter at an earlier stage. I am sure that he will be grateful, as I am, for my noble friend's explanation. I shall read carefully what the Minister said. However, the Minister went through seven of the eight items in the amendment in my name and that of the noble Lady, Lady Saltoun, and the noble Lord, Lord Mackie. In the course of his remarks, my noble friend mentioned that with the previous seven elements there would be an element of sanction. If the procedures have gone through the scales down to a caution, does a caution carry a sanction? Does a warning not carry a sanction? Perhaps the Minister will be able to deal with that matter tonight in one word.
I shall read carefully what the Minister said. Amendments Nos. 102 and 132 give the assurance that we sought.
§ On Question, amendment agreed to.
Baroness Hilton of Eggardon moved Amendment No. 103:
Page 12, line 20, at end insert:
("(3B) The Secretary of State, police authorities, chief officers or other persons, should, on all matters concerning conditions of service, consult with the Police Negotiating Board (on negotiable matters) and the Police Advisory Board (on professional matters).").
§ The noble Baroness said: My Lords, there are three amendments in the group. They all refer to the Police Negotiating Board and appear in the same group. However, the amendments deal with quite different issues. I shall therefore address each issue separately.
208 Amendment No. 103 attempts to ensure to some extent that police forces do not go in separate directions. The Bill gives discretion to police authorities and chief officers to vary conditions of service within their force areas. The amendment seeks to ensure that before such variations, the authorities and chief officers at least consult the Police Negotiating Board or the Police Advisory Board.
There would be anxieties if forces developed too disparate conditions of service. One might have some forces in which officers had noticeably worse conditions. Those forces would therefore have difficulty in attracting bright, ambitious officers to transfer from other forces to join them. It may be a flight of fancy. but one might have a police authority which wished to mark out its police force in a distinctive fashion rather like the 18th century regiments which were set up by rich colonels—young sprigs of the aristocracy. They dressed their regiments in yellow trousers and pink jackets. One can imagine Ruritanian uniforms developing in some force areas with masses of braid, badges and brightly coloured uniforms, rather like some of the American police forces. Perhaps we might not wish to see that in this country. Amendment No. 103 is an attempt to preserve uniformity throughout the police service, while not fettering too greatly the discretion of the police authorities and chief officers.
We addressed Amendment No. 126 earlier. It attempts to place pensions on the same footing as other aspects which are dealt with by the Police Negotiating Board. We addressed that at an earlier stage and there was no clear answer why pensions were dealt with separately. We feel strongly that pensions should have the same kinds of safeguards as other aspects of people's conditions of service.
Amendment No. 127 is an attempt to fetter the Secretary of State and ensure that he does not reject or amend agreements that have been made by the Police Negotiating Board or awards of the Police Arbitration Tribunal, say, for reasons of national importance. Those could include the financial state of the nation.
There have been occasions in the past where the Police Negotiating Board or the Police Arbitration Tribunal has made an award to the police service which has seemed satisfactory to all parties. Considerable demoralisation and upset has been occasioned by a Home Secretary who has then decided for some reason not to accept that award or negotiated agreement. I think, quite reasonably, it is expected that if the Secretary of State is going to reject such an agreement, it should be for some reason which is of sufficient importance that it can be described to the police service in terms which the police understand. Reasons of national importance would be understood and would do much to maintain morale when a pay award or some other award had apparently arbitrarily been rejected. I beg to move.
§ 10.15 p.m.
My Lords, I have every sympathy with the intention behind the first of the noble Baroness's amendments, Amendment No. 103. It seeks to ensure that there is proper consultation with all interested 209 bodies before any regulations affecting police pay and conditions of service are made. It is quite right that such consultation should take place and that all those with a contribution to make should have the opportunity to make their views known before changes are made.
But provisions to that effect are already in place. Section 2 of the Police Negotiating Board Act 1980 provides for consultation on matters within the remit of the Police Negotiating Board. Before making regulations on such matters the Secretary of State must consider any recommendations made by the board and must furnish them with a draft of the regulations. Section 46 of the Police Act 1964 requires the Secretary of State, before making regulations on matters not covered by Section 2 of the 1980 Act to furnish the Police Advisory Board with a draft of the regulations and to take into account any representations which the board may make. So the position is already that sought by the noble Baroness. I do not, therefore, disagree with the spirit of the amendment but I think that it is unnecessary.
With regard to Amendment No. 126, the procedure, which has been in place since 1980 and which replaced a similar procedure which operated before the setting up of the Police Negotiating Board, is that the Secretary of State has to consult the Police Negotiating Board before making regulations relating to pensions. It is also open to the board to make representations to the Secretary of State on pension matters. This amendment would permit the Police Negotiating Board to negotiate and, if necessary, to seek arbitration about pensions issues.
The current arrangements have stood all parties in good stead for many years. They have never caused difficulty for any of the constituent bodies of the Police Negotiating Board. When the Edmund-Davies Committee considered questions relating to police negotiating machinery, it recommended that pension matters should continue to remain non-arbitrable, and the present position accords with that recommendation. The committee took the view that the arrangements, which it recommended, were essential to safeguard the Government's legitimate concern to oversee pension settlements in view of their permanent and repercussive nature across the whole of the public sector.
Amendment No. 126 would not, at the end of the day, provide for the Police Negotiating Board to exert any more influence than it is able to do under the current statutory consultation procedures. In either case, the Secretary of State has the right to reject advice or recommendations and act as he sees fit, subject to parliamentary scrutiny of the regulations he proposes to bring into force.
If the anxiety which lies behind the noble Baroness's amendment is that of securing fair treatment for police officers in dealing with their pension provisions, then I can say that the current procedures provide it. As I have said, Parliament will always have the last word in relation to any proposed new or amended regulations.
Amendment No. 127 seeks to restrict the Secretary of State's present powers in relation to regulations governing police pay and pay-related conditions of service. Under the existing arrangements the Secretary 210 of State is required, before making any such regulations, to take into consideration any recommendations of the Police Negotiating Board, or an award by the Police Arbitration Tribunal which has the same status, and to furnish the board with a draft of the regulations before they are made. He is not, however, bound to accept the recommendations. If he considers it appropriate, he may make regulations which do not accord with the recommendations of the board. Where the Secretary of State decides to reject or vary a Police Negotiating Board recommendation he will of course inform the board of his decision and the reasons for it. But it is not then open to challenge by the board either on the ground that these matters are not of national importance or on any other grounds.
Any regulations which the Secretary of State may make are, however, subject to parliamentary scrutiny. Parliament is the proper place for decisions of this sort to be subject to review. I hope the noble Baroness will agree that that is the position and that is as it should be.
§ Baroness Hilton of Eggardon
My Lords, I thank the noble Earl for that response. In relation to Amendment No. 103 I was not quite clear whether or not he had addressed the issue of the discretion of police authorities and chief constables. However, I will read his response with some care. I am grateful to him for his explanation on the other two amendments. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 104 not moved.]
§ Clause 15 [Appeals against dismissal etc.]
Earl Ferrers moved Amendment No. 105:
Page 12, line 28, leave out from ("dismissed") to ("by") in line 29 and insert (", required to resign or reduced in rank").
§ The noble Earl said: My Lords, I beg to move Amendment No. 105 and speak also to Amendments Nos. 107, 108, 112 to 114, 136 to 138 and 140 to 142. When the Committee was considering the recommitment of Clauses 2 to 4 of the Bill on 1st March I said that I would introduce amendments to give police officers who had been reduced in rank an avenue of appeal to the Police Appeal Tribunal. These amendments, which also cover the similar position in Scotland, achieve that end. I commend them to your Lordships.
The noble Lord, Lord Harris of Greenwich, argued with considerable force the severity of the financial and other consequences which could arise in certain circumstances where an officer had been reduced in rank. It would be rare for a police force to take action as severe as that which he outlined unless the officer's offence had been very bad, but I accept that the consequences of such a reduction in rank might be sufficiently severe for the individual concerned to justify the grant of a right of appeal outside the force. That is what these amendments do. I beg to move.
§ Lord Harris of Greenwich
My Lords, I believe that the noble Earl dealt with this matter on re-commitment. We have been debating this Bill for so long that it is almost impossible to remember when it was. Nevertheless, in the statement he made on that occasion he indicated that the Government were prepared to meet 211 us on the point. It was a matter of real concern to at least two, and possibly all three, of the police organisations. The noble Earl has met us completely, and I am most grateful to him.
§ Lord Bethell
My Lords, I too wish to say that I am pleased that my noble friend has taken this step forward on questions of disciplinary hearings and appeals by police officers. I hope that we will be able to take a further step later in the Bill.
§ On Question, amendment agreed to.
Lord Bethell moved Amendment No. 106:
Page 12, line 29, after ("resign") insert ("or is reduced in rank, or made subject to a permanent bar on promotion, or is fined a sum exceeding one week's pay").
§ The noble Lord said: My Lords, this amendment follows on from the amendment just moved by the Minister and agreed to by your Lordships. Provided that the Bill remains in its present state, it will be possible for police officers who are found guilty of a disciplinary offence to appeal to a tribunal if they have been sentenced to dismissal from the police service, if they have been required to resign or if they have been reduced in rank. Amendment No. 106 would allow an appeal also for those police officers on whom is placed by a disciplinary tribunal a permanent bar on promotion or a fine of more than one week's pay.
I believe it is arguable that all those police officers who are convicted of a disciplinary offence should have the right of appeal, provided that the penalty awarded to them is of a significant size. I suggest to your Lordships that the awards that I have just mentioned—a permanent bar on promotion or a fine of a week's pay—are extremely significant and that they merit the right of appeal.
A senior officer or even a middle-ranking officer on whom a permanent ban on promotion is awarded may not feel that he has been very severely punished. He may be an officer in his forties or fifties. He may have reached the rank of inspector or superintendent and he may be content to continue in the service at his present rank, irrespective of the ban that has been imposed. But if he is a young officer and if he is a constable, the matter is much more serious. As is only too obvious, a constable cannot be reduced in rank by a disciplinary hearing because he is already at the lowest rank. Therefore, for a constable the concession made by my noble friend the Minister is of no use whatever. But a punishment of a permanent ban on promotion is extremely serious.
I suggest that a young police officer who is permanently prevented from promotion will be very unlikely to find himself able to remain within the police service. If he is forced by the invidious position in which he finds himself to leave the police service—again, as has been mentioned by noble Lords many times in the course of today—he will find it very difficult to obtain alternative employment because it will he known both among the police services and in the private sector that he left the police service because an important punishment was awarded against him at a disciplinary tribunal. Therefore, I believe that such 212 people who are punished in that serious way should have the right to appeal. It is only common justice that they should have the right to appeal.
Again, on the second ground, I feel that appeal is justifiable. A constable who is punished by a fine of one week's pay will find himself out of pocket to the tune of £400 and the maximum fine awardable is £700. That is a very serious punishment for a constable arid I believe that there should be a right of appeal against it.
The whole proposal reminds me of the days of National Service, when it was said that military justice came in two sorts, just like military clothing: officers and other ranks. One could envisage a situation in which two police officers—say, a sergeant and a constable—might be convicted of some act of misbehaviour. The sergeant might be reduced to the ranks and would have the right of appeal under my noble friend's recent proposal. The constable would not be reduced to the ranks because he was already in the ranks and he would be subjected to a heavy fine. The first one would have the right of appeal and the second would not have that right. There is there an anomaly which I believe my noble friend the Minister would do well to address. ] beg to move.
§ 10.30 p.m.
§ Lord Archer of Sandwell
My Lords, I delay your Lordships at this advanced hour only to add one further consideration to what was urged so concisely by the noble Lord, Lord Bethell. Your Lordships will not have failed to notice that the appeals we are considering are appeals not only against the penalty which is imposed but appeals against the finding of fact upon which a decision was based—a finding of fact which may cast a shadow on the officer for the remainder of his life wherever he goes and whatever he does and which will certainly be on his file officially for what could he a number of years.
The curious effect of the criterion in the Bill is that the right of appeal against the finding of fact depends upon the penalty imposed. Let us take the example cited a moment ago by the noble Lord, Lord Bethell, of two police officers both involved in the same incident; both subjected to disciplinary proceedings. One of them is visited with a heavy penalty, either because of his rank or because of his previous conduct. He will have a right of appeal against the finding of fact. It may be that on appeal the finding of fact will be reversed. The burden will be totally removed from his shoulders. The other, perhaps because there were mitigating factors, will have no appeal because the penalty imposed on him is only a light penalty. He will be saddled with that finding of fact for the rest of his life. It is a situation worthy of Lewis Carroll. For that reason also I hope that the noble Earl will consider seriously the amendment.
§ Viscount Mountgarret
My Lords, in the Committee stage my noble friend kindly said that he would give due consideration to all the arguments raised on this matter. It is fair to say that it is manifestly obvious that that has happened. My noble friend will 213 probably feel that he made considerable concessions towards the argument as in the previous amendment. For that we clearly must be grateful.
However, I feel that the points raised by my noble friend and the noble and learned Lord, Lord Archer, should be taken on board to the extent that it is not right for an anomalous situation to exist as between two members of the police force. One perhaps does not need to say more than that. I do not see why this anomaly should exist.
In Committee my noble friend said that I did not seem to mind how long justice took to be enacted. I believe he said that justice delayed is justice denied. I do care; I care very much. I should have thought that the system could be looked at rather than the Act. It is undesirable to take a long time to listen to appeals and collect together further evidence. If it does take time to ensure that fairness is done, then it must be regarded as time well spent. I suggest that justice expedited swiftly is justice misdirected. I hope that my noble friend will be able to consider these matters again, and perhaps sort out the anomaly which seems to exist, at a later stage in the Bill.
My Lords, I do not find that too much of an anomaly exists here. In the last amendment I signified that the Government were willing to provide access to a police appeals tribunal to a police officer who had been reduced in rank. But these amendments raise other issues. The first is the matter of including in the Bill a reference to a permanent bar on promotion. Such a bar is not one of the penalties listed in Clause 14(3) about which the Secretary of State must make regulations and without which such regulations it is not a penalty which chief officers can then impose. I suggest that it would look odd if the Bill were to provide access to an appeals tribunal in relation to a penalty which there is no intention of allowing chief officers to impose.
The second matter covered by the amendment of my noble friend Lord Bethell is the provision of access to a police appeals tribunal in any case where an officer is fined more than one week's pay. I really see no need for access to outside appeal in such a case. Not only will the officer have already been able to appeal to his chief constable but the amount of any fine is normally limited by regulation. Access to a tribunal is not available at present as of right. An officer is free to appeal to my right honourable friend about such a matter but my right honourable friend would only rarely appoint a tribunal to advise him in such a case.
My noble friend and the noble and learned Lord, Lord Archer of Sandwell, referred to the example of the sergeant who is busted to a constable for an offence while a constable who is also with the sergeant is just fined. Both my noble friend and the noble and learned Lord said that the sergeant has the right of appeal and the constable has none. They complained in schoolboy language that "That's not fair". But there is quite a good reason for this. The reason why the sergeant has the right of a tribunal is that he is liable to a very much greater penalty, as the noble Lord, Lord Harris of Greenwich, explained previously. The constable is 214 liable to a lesser penalty for the reason that he is a constable and for the reason that he cannot be busted further.
I really would suggest to your Lordships that it would be unreasonable for him too to have access to a tribunal. We ought to try to remember what we are doing here. It is to try to simplify the procedures of discipline. In this kind of case a constable will have the right of a hearing in front of an assistant chief constable and two superintendents. If he objects to the fine or the penalty that he has applied to him he can then appeal to his chief constable. If his chief constable agrees with the fine or penalty he will be in the position of having four senior members of his police force all saying, "That man was wrong and that is the penalty which should apply to that man". I really think that it is not reasonable in those cases for there to be an appeal tribunal. I hope my noble friend will see that.
§ Lord Bethell
My Lords, I am grateful to my noble friend for the concession which he has made on this clause. Once again my noble friend and those who have supported the amendment find themselves discussing it at a very late hour with a small number of your Lordships present. In the circumstances, I think it would be wrong to take the matter to a Division at this stage, although it may come up later.
I should yet again, because I am obliged to do so, declare my interest in that I am an adviser to the Police Federation of England and Wales. I should add that the members of the Police Federation view with some foreboding the ideas put forward by my noble friend and the whole philosophy, which he mentioned again a few moments ago, that the disciplinary provisions of the Police Act need to be simplified or need to be made more flexible, which is one of the themes of all our debates on the police provisions of the Bill. It is very apparent to members of the police service that justice in the disciplinary cases that will be brought against police officers may well be made more flexible at their expense. That is their fear. I am bound to say that these fears have not yet been allayed by anything that my noble friend has said. However, on the specific point of the amendment, I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendments Nos. 107 and 108:
Page 12, line 35, leave out from ("dismissed") to end of line 36 and insert (", required to resign or reduced in rank").
Page 12, line 39, leave out from ("order") to end of line 41 and insert ("dealing with the appellant in a way—
§ On Question, amendments agreed to.
§ Schedule 3 [Schedule to be inserted in Police Act 1964: appeals tribunals]:
Lord Bethell moved Amendment No. 109:
Page 53, leave out lines 10 to 13 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: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 110 and 111. These amendments relate to the composition of appeals tribunals. Again, the proposals put forward by my noble friend seem to have been made at the expense of the staff association of police officers, whether of chief police officers, superintendents or of those of more junior rank represented by the Police Federation.
At the moment, a police tribunal consists of a qualified legal expert, a member of a staff association and a chief police officer. What is proposed is that the qualified lawyer should remain; that a present or past chief officer should take the place of the member of the staff association and that there should also be a member of the police authority. In other words, we are left without the member of the staff association.
My amendment would reinstate the ex-member of the staff association and also insert a magistrate as a member of a five-person tribunal as opposed to a three-person tribunal. I do not understand why the Government have thought it necessary to remove the presence of a representative of the staff association from the tribunal.
On 17th February, when we were discussing these points in Committee' at roughly the same time, my noble friend the Minister said that the presence of a member of a staff association was an irrelevance. He did not think that such a person was competent to judge whether or not the accused officer was fit to remain in the service. If that is really the Minister's view, I wonder how he can square it with the whole procedure of industrial tribunals which exists in our country and where there is, on almost every occasion, a member of a trade union or staff association on an appeals tribunal. Is this issue really to be tackled head-on right across the board or is it only in the police service that a member of the staff association is not to be included in appeals tribunals?
Either a very radical reform of the whole basis of appeals on this question is to be considered by the Government or the police are being singled out. At the moment members of the police service feel that they are being singled out. Therefore, I beg my noble friend the Minister to say that he can envisage seeing a member of a staff association reinstated or left, as is the present situation, as a member of the tribunal.
At Committee stage he said that a five-person tribunal was unwieldy. If he finds that unwieldy, can he suggest how a three-person tribunal can look after these appeals with a member of a staff association included? Has he anything to offer? I shall be interested to hear my noble friend's views on this matter before deciding whether to test the opinion of the House on this amendment. I beg to move.
My Lords, much as I appreciate the way in which my noble friend's amendments have been thought out, they are not ones which I am disposed to advise your Lordships to accept. He is of course concerned to reinstate a member of a staff association on the tribunal. As my noble friend has been correct 216 enough to inform your Lordships that he advises a staff association, it is not surprising that he has tabled an amendment of this nature.
§ 10.45 p.m.
§ Lord Bethell
My Lords, I hope that my noble friend accepts that in this House I speak for myself and that when I declare my interest, I am doing so in order to declare my interest. I speak for myself in this matter. It would be surprising if I were to speak in any other way than according to my own personal beliefs.
My Lords, I am grateful to my noble friend and entirely accept that, as with all noble Lords, my noble friend speaks for himself and not on behalf of anyone.
The fact is that the tribunal consists of a qualified lawyer, an ex or serving chief constable and a member of the police authority. The chief officer of police who sits on the tribunal, and who will in most cases be likely to be a retired police officer, will have experience of the command of a force and he will have served in all ranks of the police service earlier in his career. He or she will be able to give an informed view as to whether or not the officer concerned has met the standards of the police service. The inclusion of more than one representative of the police in the membership of the tribunal is unnecessary and would result in an over-large tribunal which might have difficulty in forming a corporate view of the case.
If my noble friend wants an additional member of the staff side on the tribunal, he will then say that we have to balance that with a magistrate member. That would give a tribunal of five members. I can only repeat what I said previously: a tribunal of five members would be unwieldy and would not make for efficiency.
The purpose of the provisions is that the tribunal will contain a qualified lawyer, a chief constable who will know what is expected of the police and who has been in the police service, and a member of the police authority (which is the organisation that is responsible for policing in that area) who will know the standard that is to be expected of those policing that area. I think that that is the right sort of membership for a body dealing with such matters. I do not think that it is right that we should incorporate additional people because the point is not to ensure that there will be on the tribunal a person who may come from, as it were, the same stable as the person who is being considered by the tribunal, but that the tribunal should be properly composed of people who have adequate responsibilities and adequate knowledge. I suggest that the tribunal, as proposed, would cover all those neccessary aspects of policing in the community and by the knowledge of the chief constable.
§ Lord Bethell
My Lords, I appreciate what my noble friend has said. It bears out what he said in Committee on 15th February. He said that one is concerned as to whether that person is a sufficiently competent and reputable person to be a member of the police service, and that a representative of its staff association would be an irrelevance in that respect. I do not agree that a member of a staff association would be an irrelevance in 217 respect of deciding whether a police officer should be dismissed or otherwise punished by the disciplinary hearing. I believe that he would be of help to such a tribunal. However, that is not something on which one could reasonably seek to divide the House at shortly before 11 p.m. Perhaps the matter will arise at a later stage. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 110 and 111 not moved.]
Earl Ferrers moved Amendments Nos. 112 to 114:
Page 53, line 33, leave out from ("appealed") to end of line 34 and insert ("against, and as from the date of that decision or, where that decision was itself a decision on appeal, the date of the original decision appealed against.").
Page 53, line 36, after ("force") insert ("or in his rank").
Page 53, line 38, after ("force") insert ("or in his rank").
§ The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 105. I beg to move.
§ On Question, amendments agreed to.
Lord Bethell moved Amendment No. 115:
Page 54, line 4, 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: My Lords, Amendment No. 115 is even more serious than those to which I spoke in the past few minutes. In the Bill as amended, a police officer found guilty of an offence will no longer have the right to have his appeal paid for out of police funds. At present such an appeal is funded out of police funds, but under the Bill those funds will not be available.
That provision is wrong. It is contrary to natural justice because it will discourage many police officers who believe that they have a good appeal from bringing the matter to a tribunal. The cost of such an appeal is considerable. I am advised that the cost of a one day appeal for a person receiving professional advice is as much as £2,000. If an appeal lasts longer, it will cost several thousand pounds on a pro rata basis. Perhaps my noble friend will comment on that.
I ask myself what kind of convicted police officer will be able to afford that sum of money having recently been through the trauma and moral and material cost of having been found guilty of a serious disciplinary offence. I do not believe that many will be able to afford the cost. It is unreasonable to expect someone in that position to be able to find the money out of his own pocket.
I believe that a prisoner in one of Her Majesty's prisons can have the legal costs of his appeal met out of public funds. Perhaps my noble friend will take that on board and elucidate. It would be bizarre if what were available to a convicted prisoner were not available to a police officer.
I commend the amendment in particular to your Lordships. I believe that if nothing is done about the situation, morale in the police service will suffer to a great extent. A large number of people are ill-disposed towards the police and are looking for ways of bringing 218 actions against them. If the appeals of police officers must be paid for out of their own pockets, the police service will not benefit as a result. I beg to move.
§ Viscount Mountgarret
My Lords, I support my noble friend simply because I am slightly puzzled. At present the police can have their appeals assisted substantially by the police fund. The Bill reverses the position, and I do not understand the benefit of that to anyone. I agree with my noble friend. I do not believe that it is fair to put the police into a category different from other citizens.
In Committee I said that I found this provision to be unacceptable. The noble Earl said that although I found it to be unacceptable not everybody agreed with me, and certainly the Government did not. We are not dealing with everyone. We are dealing with the police. I suspect that not many policemen agree with this proposal
If an appeal is spurious surely the court could say that the appellant should pay his own costs and award costs against him. However, I do not believe that a police officer should be put at risk of having to dip into his own pocket to a very large extent because that may taint his view as to whether or not he wishes to appeal.
I hope that the Minister can go some way towards accepting the amendment. It is a gentle amendment which certainly does not wreck the Bill in its entirety. The Government would be demonstrating a great deal of good will if they took away the amendment and thought again about this matter. I am sure that the Minister cannot commit himself immediately but I ask him to reconsider this issue.
My Lords, the normal practice in a case heard before a tribunal is for each side to bear its own costs. It is proposed that that should be the practice for the new appeal tribunals.
My noble friend Lord Bethell referred to convicted police officers. He asked whether a convicted police officer could afford to pay the costs and said that even convicted prisoners do not have to do so. I remind my noble friend that nobody is being convicted. It is a disciplinary matter which has come before the assistant chief constable, two superintendents and also the chief constable. They may have decided that the officer's conduct has been such that he is no longer suitable to be a member of the police force. That is a matter for their professional judgment. In addition, the policeman can appeal to a tribunal. It is not a question of being convicted in a court but a disciplinary matter, which is totally different.
My noble friend said that he did not think that a police officer should have to pay for that out of his own pocket. My noble friend Lord Mountgarret asked why he should dip into his own pocket in order to present his case. A tribunal will consider whether a police officer who has been reduced in rank, dismissed or required to resign by his chief officer, is fit for the police service, either at his former rank or at all. It seems right that anyone who wishes to challenge the chief officer's decision in that way should be expected to have sufficient confidence in the merits of his own case to be prepared to pay his own costs. All the costs of the tribunal will be met by the police authority. The 219 appellant would have to meet only his own costs. We should expect a tribunal to award costs in any case in which the appellant won his case or in which it found that there was merit in the appeal.
I must tell my noble friend that the past few years have seen a rise in the number of appeals to the Home Secretary from appellants who have been relying solely on technical grounds rather than on the merits of their case, or on grounds with very little real merit at all. That clogs up the system for those who have a genuine grievance. That is not right.
One comes back to the principle that this is a question of discipline where a person is considered by four senior officers to have been the wrong person to remain in the police forces. If he wishes to challenge that, it is only right that he should be prepared to accept that challenge, knowing that if he is successful it is almost certain that costs will be awarded in his favour.
§ 11 p.m.
§ Lord Bethell
My Lords, I am grateful to my noble friend the Minister for the small mercy of an assurance that a successful appellant will most likely have his costs awarded out of public funds. That is a step forward. However, I am not sure that one can so easily brush aside the problems that face a police officer in such a position. One may well say that an appellant should take upon himself the responsibility of covering the cost of the appeal, but I wonder how many police officers have the wherewithal to pay for an appeal.
There are many qualities which one is required to achieve in order to enter the police force—for example, a certain height, strength, intelligence and acumen—but forensic skills are not one of them. Therefore, it will be important for police officers appearing before tribunals to have, if they so wish and if their careers are on the line, the assistance of a legal adviser and professional help to ensure that their cases are properly presented. That costs money; indeed, it may cost several thousand pounds. I do not know how many police officers in that situation would have such a sum of money to spare to cover the costs involved.
I return to the difficulty which we all face this evening. It is now 11o'clock; there are not many of us here; and it is the second time that this has happened. Indeed, the same situation arose on 17th February in Committee. It will not, therefore, be appropriate to divide the House on the point, although I believe that there is much support for the amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Archer of Sandwell moved Amendment No. 116:
After Schedule 3, insert the following new schedule:
§ AMENDMENT To TRIBL NALS AND INQUIRIES ACT 1992: POLICE
§ APPEALS TRIBUNALS
In Schedule 1 of the Tribunals and Inquiries Act 1992 (Tribunals under genera1 supervision of council) after Tribunal 36, there shall be inserted—
36A. Police Appeal Tribunals established under section IS of the Police and Magistrates' Courts Act 1994".").
§ The noble and learned Lord said: My Lords, on 17th February when we last discussed the issue I remember that we were debating it as Big Ben chimed the hour of midnight. I recall remarking that perhaps the noble Earl and I might reconsider the matter at a more intellectually stimulating hour and that he might then revise his view. It is a sad commentary on the world in which we live that whenever I express an optimistic hope it transpires to be misplaced. The light which illuminates the subject for the rest of us has still not penetrated the Government. The noble Earl very generously gave me his time for a discussion and kindly wrote to me afterwards. However, we appear to have made very little progress.
The purpose of the amendment is to bring police appeals tribunals within the supervision of the Council on Tribunals. At the outset I should declare an interest in that I am privileged to chair that council in succession to a number of distinguished Members of your Lordships' House. For those noble Lords who are not familiar with the Council on Tribunals, perhaps I may briefly describe its purpose and functions.
It was the Franks Committee on tribunals and inquiries which reported in 1957 that placed at the very centre of its recommendations the establishment of a council on tribunals —indeed, there were two: one for England and Wales and one for Scotland--to keep the constitution and working of tribunals under continuous review and to make recommendations in relation to statutory inquiries. Effect was given to the proposal in the Tribunals and Inquiries Act 1958 with two subsequent up-datings in 1971 and 1992. For the record, the only reservation is that there is no separate council for Scotland, although the council has a separate Scottish committee.
In relation to tribunals, the council has supervision over those set out in the schedule to the Act. At the last count, there were 65 tribunal systems in the schedule, ranging from industrial tribunals and mental health review tribunals to the sea fish licensing tribunal, which is convened very infrequently; indeed, it is not convened at all at present.
Similarly, the wireless telegraphy tribunal was established in 1947 and has never been convened at all. On the council there are 15 of us, all part-time. We comprise lawyers, academics, former senior administrators and people with experience on tribunals. We are served by a full-time secretariat. We are purely advisory, with no executive functions. By statute we have to be consulted about procedural rules for certain tribunals, and beyond that we make representations when we have evidence of a need.
We are required to report at least annually to the noble and learned Lord the Lord Chancellor and our reports are made public. I would be surprised if this debate were not referred to in the annual report for the ensuing year. Beyond that, our most devastating sanction is to invite the Minister to lunch, but we rarely need a sanction as we have good relations with most of the departments and other authorities with whom we deal and they appear to find our suggestions helpful.
I hope your Lordships will forgive that excursion into the ambience of the council, but in the course of the discussions on this Bill 1 gained the impression from
time to time that in the Home Office at least not everyone was fully acquainted with the subject matter of this debate. I hope I may outline briefly the history of the issue. The Police Act 1964 established an appeal against a disciplinary finding to the Secretary of State. Paragraph 3 of Schedule 5 provided that,
The Secretary of State shall … appoint one or more persons",
to hear appeals. Your Lordships will observe the word "shall". The provision was mandatory. Section 19 of the Tribunals and Inquiries Act, then the 1971 edition, defined a statutory inquiry within the jurisdiction of the council as,
an inquiry … held in pursuance of a duty imposed by any statutory provision".
So the persons appointed by the Secretary of State constituted a statutory inquiry within the supervision of the council and the council duly supervised, and no one ever questioned the propriety or the desirability of that arrangement.
The Police Act 1976 changed the situation, quite unintentionally. I have it in mind that it was changed by a government of whom I was a member. What we did was unintentional. Section 12 amended the 1964 provision to provide that the Secretary of State may appoint one or more persons to hear appeals. That was re-enacted in the Police and Criminal Evidence Act of 1984. It was never intended that that should remove the inquiries from the supervision of the council and it was only later that it was noticed that it had had that effect. But of course those persons were no longer appointed in pursuance of a duty but only of a discretion and so they did not fall within the statutory definition.
But there was a simple way of rectifying the position to what it had been and to what everyone had always considered it to be. The Tribunals and Inquiries Act provided that, even if an inquiry was not held in pursuance of a statutory duty, it could nevertheless be designated a statutory inquiry for that purpose by ministerial order; and when the problem came to light the Home Office readily agreed in 1985 that that should be done, and that story is set out in the annual report of the council for 1985–86.
The Home Office never delivered on its promise. I have not been told why but I am sure it was a pure oversight. So this Bill appeared to provide a ready opportunity to rectify the matter. When the question was raised with the Home Office, for the first time ever it said it did not think it was appropriate. In the debate in Committee the noble Earl said that the main concern of the council is with major tribunals with a permanent existence and their own staff—an argument which formed the burden of his subsequent letter to me. Alas, that is simply wrong. Some of the tribunals under the supervision of the council meet regularly and they have a staff which devotes the whole or the majority of its time to the work of the tribunal. That would be true of industrial tribunals, although their members are selected from lists for each individual sitting. The members are part time; some of their chairmen are part time and some are full time.
But an educational appeals committee, for example, which decides on admission to and exclusion from 222 schools, is convened as and when it is required in a particular place, at a particular time from such people as are qualified to sit, such as members of the local authority and who happen to be available on that day. Such staff as they lay claim to are a clerk, who is usually any available employee of the education authority or the school trust.
Probably more than half of the tribunals supervised by the council are convened on an ad hoc basis as the occasion arises. Some are convened, as I have already indicated, only very rarely. I intend no disrespect in saying that it is precisely the tribunals which do not sit regularly, do not occupy the same premises on a regular basis and do not have a full-time staff which may be more at risk of giving rise to questions of training, accessibility, listing and all the other matters which occupy the attention of the council.
Indeed, I am not sure what is the distinction between an ad hoc tribunal and one which has a continuous existence. Is there some metaphysical essence of tribunalness which continues to exist when a tribunal is not sitting and which subsists in some platonic cave in the case of some tribunals and not others? Would Bishop Berkeley accept that some tribunals continue to exist when there is no one about in the Quad? The distinction is not an easy one to grasp; but if there is any criterion of continuity or ad-hocness there is a whole spectrum under the supervision of the council.
All this concerns tribunals. I accept that I may have been partly responsible for starting this hare by entering into a discussion about tribunals. The Bill speaks of police appeal tribunals, but if the Home Office envisages that what we are speaking about is essentially a transitory institution, then I suppose that they would be inquiries rather than tribunals. It is of the very nature of an inquiry that it is ad hoc and transitory. But no one argues that that should exclude the supervision of the council from inquiries. Indeed, the Act under which we exist is the Tribunals and Inquiries Act.
The other argument which the noble Earl advanced —although in fairness only in passing—is that the police appeals tribunals will have no links either with central or local government. That is a puzzling argument. Members of the tribunal are to be appointed by the Secretary of State and some from a list compiled by the Lord Chancellor. It is true that they will no longer advise the Secretary of State because their decisions will be self-authenticating, like the vast majority of tribunals.
The Bill is not clear as to who would convene a tribunal on a specific occasion. Perhaps the noble Earl will tell us when he replies. Perhaps it is to be the police authority. Whoever is to have the duty of receiving the notice of appeal and convening the tribunal, it will be a duty imposed by statute, and this will be a statutory body.
The merits of the argument amount to this. The Franks Committee recommended the establishment of a council on tribunals so that the public, and particularly those most immediately concerned, could feel confident that some independent minds were directed to ensuring that tribunals and inquiries which they supervised offered the best attainable service and a high standard of 223 justice. I believe that purpose has largely been achieved and that that is generally recognised. That is why the Police Federation would like to see police appeals tribunals accorded that advantage.
The Council on Tribunals is not intent on gobbling up every tribunal in sight. Sometimes when we are consulted about a new tribunal or new form of inquiry we say that we do not consider that it is appropriate for supervision and that no purpose would be served by that. But this is a classic example of what was envisaged by the Franks Committee. What puzzles me is why the Home Office is so reluctant to accord it. Why is it so anxious not to submit the tribunals to supervision? I could not help wondering whether the debate was about metaphysics or some other agenda. I find it hard to believe that the Home Office has suddenly developed a passion for metaphysics. I ask myself: is the debate really about resources? But I could not fathom what resources are involved. There are no resource implications. It would cast no economic burden on tribunals or those who convene them. The Council on Tribunals would not be likely to revise its budget in the light of one addition to the schedule.
By process of elimination I was driven to conclude that the debate is about changing the status of police officers as office holders charged with a public duty and carrying public authority to employees who do not have offices but jobs and whose liability to be hired and fired is at the highest a question of internal management—a phrase which was used more than once by the noble Earl in the course of our earlier debates.
Perhaps the tribunal is not a tribunal but an internal decision point which is no concern of the public and of justice. It has become clear more than once in the course of these debates that the Bill is not about rights. The Home Office prefers a hierarchical structure in which people know their place and not their rights. That includes police authorities, chief constables, senior officers and junior ranks.
I am sure that the noble Earl does not subscribe to that perspective of the world. I would not believe it of him for a moment. I do not believe that this is his Bill —as at one stage he was at pains to point out to us. He and his officials have to argue their brief as best they can. However, the arguments which they have produced will not carry that burden. Metaphysical arguments do not stand up, and we have heard no others. I am content to submit this amendment to what my noble friend Lord Callaghan described as the independence of mind which characterises your Lordships' House. I beg to move.
§ 11.15 p.m.
§ Lord Slynn of Hadley
My Lords, in view of the last few speeches I should perhaps begin by stating that I have no interest to declare. Nor do I believe that the hour between eleven o'clock and midnight is necessarily too late for intellectual discussion. Despite that, I shall be extremely brief.
There is no doubt that if the Franks Committee did not achieve all that it hoped to achieve in its report the establishment of the Council on Tribunals has been of considerable importance. It has done two things which the Minister distinguished in his elegant speech in 224 Committee in reply to such an amendment. The first thing which it seeks to do is to supervise the making of procedural rules for tribunals. There is no doubt that the council has kept under review the procedural rules and the constitutions of many tribunals. But no less is it important that the council should ensure that legal justice is achieved through the complaints of individuals and through reports of the council on an annual basis.
I believe that over the years the Council on Tribunals has achieved a great deal in ensuring public confidence in the way in which tribunals operate. It may be largely a question of impression and experience. My impression, based on my experience, is that this police appeals tribunal has all the essential features of a classic tribunal in which the police are involved and the public need to have confidence.
At Committee stage the Minister said that its rules would be modelled on the principles laid down by the Council on Tribunals. That is the first of the two tasks which I suggest the council has. That is excellent. But it is no less desirable, in my view, that this new police appeals tribunal should be subject to the supervision of the Council on Tribunals. I do not believe that it is an answer to say that this is merely an ad hoc body and that there is no permanent staff. Those are two points which the noble Earl made in his speech at the Committee stage. On the contrary, that seems to me to indicate an even greater need for the tribunals to be supervised by the Council on Tribunals. It is even more important, not less important, that they should be subject to review.
I quite understand that administratively it may be more difficult to supervise ad hoc tribunals than it is to supervise permanent tribunals with a large staff and impressive premises. But that, I suggest, is not a good reason. Administrative convenience or inconvenience has always been regarded as an argument against anything that the Franks Committee suggested. In this case, I suggest that that is no answer. Indeed., if, as the noble and learned Lord, Lord Archer, said at the Committee stage, since 1964 comparable committees have been subject to the supervision of the Council on Tribunals, it cannot be said that administratively it is either impossible or unduly difficult for them to be supervised by the Council on Tribunals.
I very much hope that the Minister will reconsider the Government's position in regard to this. I do not believe that any convincing argument—however elegant—has so far been put forward that justifies excluding this type of tribunal from the list. It is for that reason that I support the amendment
§ Lord Harris of Greenwich
My Lords, I have some sympathy with the amendment. The character of the tribunals has been changed radically as a result of the omission of the staff association representatives. I did not speak on the previous amendment proposed by the noble Lord, Lord Bethel], but I think that there is, as a result of that omission, a substantial sense of injustice felt by many members of the Police Federation. That being so, it strengthens the argument for oversight by the Council on Tribunals. There is—perhaps "suspicion" would be too harsh a word—some substantial 225 doubt about the character of the new bodies. For the life of me, I do not begin to understand why the Government have adopted the attitude they have.
It seems to me that there are no major resource implications, as the noble and learned Lord, Lord Archer, rightly said. That being so, I am puzzled as to why the Government are not prepared to move in the direction advocated by the noble and learned Lord.
I hope that the noble Earl will reflect on the issue. He has a significant problem on his hands as regards the federation and the character of the new tribunals. It seems to me that the most modest move in that direction would be to accept an amendment on the lines of that put forward by the noble and learned Lord, Lord Archer.
My Lords, the noble and learned Lord, Lord Archer, was kind enough to come to talk to me about the matter the other day. I was grateful to him for that. I long to be helpful and accommodating to him, particularly when he is supported by what I might describe as the howitzer of the noble and learned Lord, Lord Slynn, at his side.
However, as I understand the argument of the noble and learned Lord, Lord Archer, it is twofold: first, that because until 10 years ago police disciplinary appeals tribunals fell within the scope of the council, they should now do so again; and, secondly, that there will be no proper oversight of the conduct of the tribunals if they are not within the area of the authority of his council. Although the noble and learned Lord has been, as always, very persuasive, I find it difficult to agree with him on either point.
The police appeals tribunals set up under the Bill are entirely different bodies from the current police disciplinary tribunals. What may or may not have been agreed for the current bodies is, I think, irrelevant to what is right for the police appeals tribunals that are set up under the Bill. I find it difficult to agree with him that these tribunals will be at risk of not functioning properly if they are not overseen by the council. They will have to operate under rules which will have been laid before your Lordships' House. They will be set up by a police authority which will be concerned to ensure that the tribunal's proceedings are properly conducted. They will be chaired by a lawyer of at least seven years' standing who will be approved by the Lord Chancellor as competent to carry out such a chairmanship. Appellants would, if they considered that the tribunal had not been properly conducted, have recourse at law, which would avoid similar mistakes being made by other tribunals.
I believe that the council does a valuable job in ensuring the proper functioning of the major tribunals that have become a feature of our society. But I question what advantage there would be either for police officers or the public interest in extending their responsibilities to cover these somewhat ephemeral and locally-based bodies. I find it difficult to see how the council would even become aware that one of these bodies created by the police authority especially to deal with a particular case had come into existence at all or who would 226 respond to any inquiries which the council might choose to make when those appeal bodies had no permanent existence.
A police authority might set up an inquiry that took place for possibly a day or more and then vaporise when its work was over. It is an ad hoc body and its composition is unique to that case. I do not see how the Council on Tribunals would know that a tribunal had been set up, where it had been set up, when it would sit or of whom it would be composed. It does not seem to me that, valuable and eminent though the council is—especially under the leadership of the noble and learned Lord, Lord Archer—it is a suitable vehicle to be involved with police disciplinary tribunals.
The noble and learned Lord made light of his work by saying that his most burdensome task was to give Ministers a lunch. If that is his most onerous duty, I can only say that he must have an easy time; and I would like to thank him for having made the life of my ministerial colleagues, albeit not myself, that much less oppressive than it normally is.
I find it difficult to think that this is the proper thing to do. Your Lordships have argued strongly about it. In the light of what has been said by your Lordships, including the noble and learned Lord, Lord Slynn of Hadley, I am prepared to have another look at the matter, but I cannot give any guarantee that I will be able to give the noble and learned Lord, Lord Archer, any more satisfaction than I have been able to date. I do not want to raise his hopes too much, but I am content to have another look at it, if that meets with his approval.
§ Lord Archer of Sandwell
My Lords, the noble Earl cannot say fairer than that. It may be a little premature to say that it is a pleasure doing business with him, but the future will tell us that. I would be happy if he thought about it further.
Perhaps I may rectify one or two misapprehensions under which the noble Earl appears to labour. The fault may have been mine. At this late hour I rather skipped over some of the functions of the council. The council does not have the function of reviewing particular decisions of a tribunal. That is a matter for further appeal tribunals or, in the last resort, the courts. It is not a matter for the council at all. What the council does is review such matters as the need for training, the provision of proper premises, and making the tribunal user-friendly and ensuring that when people come to a hearing they are not on the verge of a nervous breakdown and have not been kept waiting longer than necessary. It is matters of that kind to which the council normally directs its mind. The noble Earl says that he does not know how the council will learn that this transitory inquiry exists. But it is no more transitory than, for example, an educational appeal committee, which, as I ventured to indicate earlier, is convened as, when and where there is a need for it. Those who convene it then tell the council about it. We have arrangements that work perfectly well. As I tried to indicate, most of our arrangements work on the basis 227 that there is no need for acrimony or discord because people are happy to receive the suggestions of the council. They find them helpful.
I am sorry if I gave the impression that we spend the whole of our time having lunches with Ministers. I was trying to convey that normally we have very good relations both with Ministers and officials. Usually a letter is sufficient for the purpose. Sometimes they want a discussion with us. In the last resort, occasionally we offer a lunch. I should be very happy to offer hospitality to the noble Earl if ever he thought it right.
Normally we are listened to and that is why it has been so frustrating in the course of these debates to discover that there are those who simply do not listen. But that may have been our fault. Perhaps we have chosen inopportune times to put our arguments and perhaps we have put them elliptically. I am happy to hear that the noble Earl will reflect further on this matter. If I can assist his reflections, I should be happy to do so. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.228
§ 11.30 p.m.
§ Clause 19 [Common services]:
§ [Amendment No. 117 not moved.]
Earl Ferrers moved Amendment No. 1 18:
Page 14, line 28, at end insert:
("() Before making regulations under this section, the Secretary of State shall consult—
§ The noble Earl said: My Lords, this amendment refers to an amendment which has been taken before. I beg to move.
§ On Question, amendment agreed to.
§ Baroness Trumpington
My Lords, I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at twenty-eight minutes before midnight.