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Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011

My Lords, I am sure that we are all very grateful to the noble Lord, Lord Henley, for his explanation of the two statutory instruments that we are debating together this afternoon. As he rightly said, it is only a few weeks ago since we finished proceedings on the Government’s misguided proposals to establish elected police commissioners, but the Opposition will take a constructive approach to these regulations and the many others that are due to come to your Lordships’ House over the next few weeks and months. As the noble Lord suggested, the regulations under consideration have been developed to a very tight timetable to enable London to transfer early from the current Metropolitan Police Authority to the new Mayor’s Office for Policing and Crime. The problem is that, because of the rush, we are not being allowed sufficient time or opportunity to explore the implications of the regulations for the rest of England and Wales before we deal with the issue in London. Can the noble Lord give me some idea of the timetable for all the other regulations that will be produced? There is some hint that there is a less than cohesive approach to doing this. For instance, while a shadow strategic policing requirement and protocol have been laid, the finance code has not—unless that has been done very recently. That makes it difficult to understand the balance of powers between the chief officer, the PCC and the panel because we do not have a complete picture. Similarly the regulations on PCC complaints have been laid but the regulations on panels have not. Again, that makes it difficult to understand how the complaints process will work, for instance, in relation to the powers of the panel to suspend PCCs. It would be helpful if the noble Lord, either here or perhaps in correspondence, could set out the programme that the department is working to so that Parliament can consider the many statutory instruments that will have to be laid. There are three matters missing from the regulations that I wish to put to the noble Lord. The first is the absence of any code of conduct or other means of defining what acceptable behaviour is and is not in non-criminal complaints that are subject to informal resolution. The second is the absence of any sanctions or similar powers for the panel in dealing with PCCs that misbehaved. The third is the absence of any provisions dealing with powers of the panel to suspend PCCs or the process that it should follow. I should be grateful if the noble Lord would comment on that. I have, of course, discussed this with the Association of Police Authorities, which is worried about the lack of clarity with regard to both acceptable standards of behaviour and the panel’s power in relation to informal resolution. That might result in complainants believing that it is better to frame their complaints in criminal terms in order to ensure that they are dealt with satisfactorily. The example that has been given to me is rude behaviour by the PCC, and we have to reflect that this is a political officeholder. Rude behaviour is not unknown from such political office holders—not, of course, the noble Lord himself, who is always an example of chivalry, gentleness and kindness, but there are politicians who do not have the noble Lord’s high standards. Taking the example of rude behaviour, the risk for the APA is that this might be framed as harassment, conflict of interest or fraud in order to ensure that it is dealt with by the IPCC, whose role is much clearer under these regulations, and that there is a proper resolution with meaningful sanctions, in contrast to it being dealt with under informal resolution. This is an important point on which the noble Lord might be able to reassure me. Clearly, however dubious I am about the elected police commissioners, one does not want a lot of complaints being made in an unscrupulous way, which would actually inhibit the police and crime commissioners in the course of their duty. I would certainly be worried if there was a temptation by complainants to, in a sense, upgrade their complaint in order for it to be dealt with by the IPCC because there is a lack of clarity about how the informal resolution process might work. We then come to the issue of what, if anything, a panel can do under the informal resolution proposal to ensure that a PCC makes reparation for bad behaviour. If the panel has no powers in that respect, what happens when a police and crime commissioner rejects a means of reparation that the panel has suggested? What recourse does a complainant then have to ensure that the matter is resolved to his or her satisfaction? Again, I put it to the noble Lord that, if the complainant is dissatisfied, one of their options might be to have recourse to the media. The risk of that, I suppose, is that publicity will have an adverse impact on public trust in policing. The noble Lord will be aware that one of my concerns about the whole notion of elected police commissioners is that it will reduce public confidence. Clearly we can argue about that, and I am very tempted to invite the noble Lord to have another debate about the principle, but I will not do that. However, Parliament having enacted the legislation, it is important that we work together to make it as effective as possible. I am concerned that, if the public do not have confidence in the informal resolution process, as I have said, either they will upgrade complaints in the future or the process will be discredited, and you may well find that the position of the PCC is also discredited. So I think that this is worth looking at. Some other, rather more technical issues have been raised. Is there not a need for regulations to state explicitly that a force cannot be asked to undertake the investigation of a PCC if he or she is the PCC for that force or connected to that force through collaboration, agreement or close association? It is probably implicit in paragraph 19(3)(b) but would there be argument over how ““impartially”” should be interpreted? I understand the logic of appointing the PCC’s chief executive as monitoring officer to the panel—covered in paragraph 7—to achieve national consistency, particularly in Wales where panels will not be part of local government and so will not have automatic access to monitoring officers in local authorities. Is there a risk of putting that chief executive in a difficult situation? Remember the concept of corporate sole means that the employer of the chief executive is the PCC himself or herself against whom a complaint is being made. Is there not a risk that the monitoring officer will not be able to effectively carry out that duty? The panels will be asked to judge whether a complaint is serious or not. I assume that means that they will look to the monitoring officer for advice. Again, I point out to the noble Lord that there will be a delicate relationship between the role of the monitoring officer’s chief executive and the PCC who is their direct and only sole employer. It is rather different in corporate set-ups where the company secretary or board secretary would probably carry out that role. It is rather different if it is the chief executive. Might the Government be prepared to look at that, in terms of advice on how it might work in practice? Paragraph 15(3)(a) raises some concerns. Complaints brought by employees to the PCC cannot be dealt with through these regulations where they concern a PCC’s conduct only towards his or her staff. I well understand that there needs to be provision within employment procedures for handling much of this through established grievance procedures but might there be a possibility that that will not address the situation where an employee is accusing, say, a PCC of a criminal complaint such as harassment? What, for instance, would happen in the case of alleged harassment? What about joint complaints to the chief constable and deputy or assistant chief constable? With the chief constable becoming the appropriate authority for chief officer complaints, there is concern among chief authorities about the potential situation where a joint complaint has been made against the chief constable and someone in the chief officer team. This could result in a chief constable effectively investigating their own complaint. That might strike at public confidence. The question here is whether that should then give the PCC locus in relation to any less senior officer. I would be grateful for some clarification on that. Are there enough checks and balances around the PCC’s ability to dismiss the chief officer? Of course, we have discussed this in our debate on the Bill. It is worth making the point that PCCs will have to take account of general law considerations when exercising their powers to dismiss a chief constable. It is not a matter for the regulations but it might be one for the guidance that I hope will be given to PCCs on this matter. Indeed, I would strongly advise the Minister’s department to look seriously at the advice and training or development to be given to PCCs on these matters. On that, I assume that there will be some development programmes for the newly elected PCCs. I would certainly put that proposal forward to be considered. Turning to the fees regulations, these look straightforward. The opportunity to debate the issue of working dogs’ tails with the noble Lord, with his vast experience of such matters, and with his fellow Defra Ministers from past years would be invigorating, but I shall desist. However, I want to ask him about the financial code. A draft code has clearly been circulated round the usual bodies that comment on police matters. My understanding is that a final agreed version is not yet available, but that the work on the drafting has identified a number of challenges. The real issue here is the introduction of two corporates sole, the chief constable and the police and crime commissioner. The audit and all financial matters are unduly and unnecessarily complicated because of that structure. If there is any information that the noble Lord could give me, I would be grateful.