The Police and Justice Bill

ps/03/06
8 February 2006
MPA briefing paper

Author: Sally Benton, Corporate Information Officer, MPA

This briefing paper has been prepared to inform members and staff. It is not a committee report and no decisions are required.

Summary

1. On the 25 January the government published the Police and Justice Bill, following on from the White Paper, ‘Building Communities, Beating Crime: a better police service for the 21st century’ (CM 6360), published November 2004. The paper set out the government’s strategy for strengthening the ability of police and partners to prevent, deter, detect and reduce crime.

2. It also follows the government anti-social behaviour strategy, the TOGETHER campaign of 2003, which preceded the Respect Task Force set up in 2005 and the Respect Action Plan published earlier this year which concentrates on strengthening communities and ensuring effective enforcement and community justice.

3. There are significant opportunities for policing and police authorities in the Bill, mainly centred on greater partnership working with communities and increased resources for children and families linked to the Respect Action Plan.

4. Main concerns arise from the apparent transfer of power to the Home Secretary and away from police authorities and chief constables and increased scope for making major changes to governance of policing in secondary legislation. There are also questions around the practicality of the community engagement aspect of the Bill, and whether or not proposals will increase democratic engagement with citizens or further blur access lines and answerability through extra bureaucratic process without real tangible powers. Changes of accountability at a local level may cause more problems than they solve if they are over bureaucratic, duplicatory and do not coincide with the expansion of the safer neighbourhoods agenda.

5. Below is a brief summary of the Bill concentrating on clauses affecting the MPA in particular. The Bill is attached electronically to this briefing and a hard copy is available in the member’s library for those wishing to consult further.

Part 1 Focusing on Police Reform

The establishment of the National Policing Improvement Agency

6. Clause 1 and schedule 1, establishes the National Policing Improvement Agency and abolishes Centrex and PITO.

7. In general APA and MPA officers support the amalgamation of Centrex and PITO. However APA argue that the NPIA must be radically different, working more effectively than Centrex and PITO. To that end, they propose that half of the funding should be determined by police authorities so that they have a stake in the ownership of the Agency, to balance centralised directive powers.

8. Authorities also have practical concerns over transferring of personnel to the Agency.

9. The MPS are not opposed to amalgamation, but would not support an extension of powers to intervene on operational matters.

Clause 2 & Schedule 2 Amendments to the Police Act 1996

10. Clause 2 gives effect to schedule 2, which amends substantial tracts of the Police Act 1996. This is a key section to the Bill, with substantial implications on police authorities.

Paragraph 1&2 Basic command Units

11. Places BCUs on a statutory footing, and requires all BCUs to be ‘co-extensive’ with a local authority area.

12. In general there are no objections to proposals for BCUs to be ‘co-extensive’ or co-terminous’ with local authorities areas and this is course already the situation in the MPA since the alignment with boroughs in 2000.

Concerns

13. Officers are concerned that such enabling legislation may pave the way for fundamental change in secondary legislation. The APA and MPS have concerns over the strategic intent behind this section of the Bill, particularly by placing BCUs on a statutory footing. Primarily they are concerned that this may be a precursor to unwelcome developments – such as direct funding.

14. Officers question what this will add to local democracy, particularly if in reality more power is handed to the BCU Commanders. This line of governance does not fit comfortably with neighbourhood policing agenda in respect, ‘calls for action’ and blurs lines of engagement, answerability and accountability between the public, police authorities and the Chief Constable/Commissioner.

15. There is also a potential tension between increased accountability at local level which will result in greater responsiveness to local priorities, impinging on the capacity to deal with corporate priorities relating to levels 2 & 3 crime.

Paragraphs 3, 4, 5, 6, 7 & 8 - Membership of the MPA

16. Paragraph 5 changes existing legislation relating to police authority membership.

17. The effect of these paragraphs is to repeal existing provisions about membership in the Police Act 1996 and instead gives the Home Secretary wide powers to prescribe membership by regulations as follows:

18. Paragraph 3(2)/5(2) – provides for only two categories of membership i.e. councillors and others, thus removing magistrates as a specific category of members.

19. paragraph 3(3)/5(4) - the number of members in each category, subject to a requirement for councillor members to be in the majority.

20. Paragraph 3(4)/5(5) - the appointment of members, qualification and disqualification, tenure.

21. Paragraph 3(5)/5(6) – the composition and regulation of selection panels,

22. Paragraph 3(6)/5(7) - appointment of the chair and vice chair of the authority – i.e. removing the current capacity of the police authority to elect its own chair and vice chair (NB: as drafted these provisions would allow for only one vice chair, unlike the current arrangements),

23. Paragraph 3(4)(g) & 3(7) / 5(5)(g) & 5(8) – members’ remuneration and allowances (reinstates Home Office control, overturning, the Criminal Justice and Police Act 2001 provision for police authorities to determine their own remuneration).

Concerns

24. These provisions represent a fundamental constitutional change, and a significant shift in the balance of power within the tripartite relationship.

25. In light of current discussions around membership arising from the ODPM consultation on mayoral powers, the MPA would be opposed to such extensive changes to the membership, particularly the loss of magistrate members, in view of existing workloads and expertise.

26. If Borough councillors were introduced then officers would be concerned about the reduction of independent members, and possible effects on the political balance of the Authority. The strategic mandate of MPA scrutiny would need urgent clarification. We would also question the value in losing the expertise of both magistrate and independent members, and close attention must be paid to possible duplication of constituencies between AM Members and borough councillors.

27. The Bill makes provision for the Home Secretary to appoint the Chair. This runs contrary to current proposals in the ODPM review of mayoral powers, which suggests that the mayor be chair of the MPA. The MPA have made it clear that their preference is for the chair to be elected by members and taken from the membership. The alternative is for the mayor to appoint the Chair from the membership of the authority. In light of this, officers would suggest that the MPA oppose powers given to the Home Secretary to appoint the Chair in the Bill, which will further blur governance lines.

Paragraph 9&10 Functions of Police Authorities

28. Clause 9 imposes a new core function on police authorities to hold the chief constable/commissioner to account. This makes more explicit current remit of police authorities to, ‘secure and maintain an effective and efficient police force for its area’.

29. Clause 10 confers a power to Secretary of State to impose additional functions on police authorities by order (subject to negative resolution procedure). These mainly concentrate on force compliance with the Human Rights Act 1998, to secure arrangements for the force to co-opt with other forces and to promote diversity within the force and authority.

30. Officers and the APA are supportive of this clause, which effectively clarifies public perception of police authority functions, however they would prefer to see these enshrined in primary legislation.

Paragraphs 11-12, Police authorities: objectives plans and reports.

31. Confers an order making power on the Secretary of State to require police authorities to determine objectives and to issue plans and reports for the policing of their area.

32. These provisions should be read in conjunction with (and impact upon) the proposals at Paragraphs 21-23 of this Schedule (see below) relating to the abolition of the National Policing Plan. In essence this order making power attempts to simplify the planning process by replacing existing provisions in the 1996 Act which require authorities to prepare a three year strategy plan, set local policing objectives, issue local policing plan and to issue an annual report. The Secretary of State will consult with authorities and chief officers before making any new orders under this provision.

33. The APA support attempts to simplify planning processes, but oppose the provision whereby the statutory duty on police authorities to determine local policing objectives will be replaced by additional powers for the Secretary of State. This may further undermine the balance of power in the tripartite relationship, increasing power to the centre and adding lines of bureaucracy both to the force and authority. Officers would therefore argue that this be amended in committee to address these issues.

Paragraph 21, 22 & 23 Setting strategic functions for authorities

34. Essentially paragraph 22 inserts a new section 37A into the Act giving the Secretary of State the power to determine the strategic priorities for police authorities.

Paragraph 24 25 & 26 Power to give direction in relation to police force and to police authority

35. Amends the Police Act 1996, to bring police authorities in line with the Police Reform Act 2002, which made provision for the making of directions where the whole or any part of a police force is considered to be under-performing or at risk of under-performing. Essentially where the Secretary of State is satisfied that a police authority is failing to discharge its functions he may direct the police authority to take specified measures to remedy that failure or to prevent failure. It will also widen sources of information to which the Secretary of State can use to decide whether to exercise these powers.

Concerns

36. Both the MPA and APA are once again concerned about disruptions to the balance of power within the tripartite relationship.

37. Again the draft does not detail the level of ‘strategic powers of direction’. There are real concerns that if passed, secondary legislation will be used in future to enable the Home Secretary to micro-manage police authorities.

38. The current government line remains that the Home Secretary is not looking to increase his intervention powers. These powers have never been used and there are no plans at present to change that. The changes are about making his ‘existing powers more fit for purpose’. However, the APA and officers at MPA are not comfortable with such loose assurances and would seek clarification in primary legislation. It seems to be contradicted by subsection (4) of the Police and Justice Bill, which inserts into the Police Act 1996:

39. “A police authority that is given powers of direction under this section shall comply with it.”

40. MPA officers do not in principle have a problem with the Home Secretary intervening on failing authorities. Yet would seek assurances on what this means in practice, for example, how is ‘failure’ to be measured? Is a police authority to be considered failing if the police force falls below PEPAF and or, the HMIC Baseline Assessments? What shape will powers of direction form, the Education model or, Local Authority model?

Paragraph 27 Arrangements for finding views of the community on policing

41. Paragraph 27 gives an order making power (subject to negative resolution) on the Secretary of State to require police authorities and forces to obtain the views of people in the police force area about the policing of that area, and to obtain their co-operation in the prevention of crime.

Concerns

42. This replaces existing section 96 of the Act and places the duty to engage in secondary legislation, enabling the Secretary of State to order authorities to make consultative arrangements. Current duties for police authorities to obtain co-operation with public in preventing crime would now be subject to powers of direction from the Home Secretary.

43. The APA would strongly object to these changes, since powers to consult are fundamental to the police authority statutory function in holding forces to account and maintaining an efficient and effective police force, and will obstruct the police authority from conducting its statutory duty.

Clause 3 Police Authorities as Best Value Authorities

44. This clause amends section 1 of the Local Government Act 1999 to limit the extent to which the best value provisions of that Act apply to police authorities. However the Bill will retain:

45. a duty on police authorities to secure best value

46. a duty to meet BVI’s and BV standards

47. Inspection provisions relating to BV.

48. Powers to the Secretary of State to require certain action.

49. While MPA and APA officers support reductions in bureaucracy, in principle, fundamental problems are apparent in the current draft, mainly that it seems to leave police authorities with a duty to secure best value with no powers to do so. New proposed Inspections also form part of the best value review process.

50. Ideally the APA would like to see the Bill amended to allow for police authorities to have the ability to conduct best value reviews, but in a way that allows flexibility to tackle unnecessary overload of bureaucracy and align reviews to proportionate and appropriate circumstances.

Clauses 4, 5 & 6 Powers and Duties of Community Support Officers and Exercise of Police Powers by Civilians

51. This gives powers CSOs a standard set of powers, this includes the same powers as constables to deal with truants and makes consequential amendments to the exercise of police powers by civilians.

52. The MPS and APA believe that beyond minimum powers, forces must given flexibility in deploying CSO’s as local flexibility best delivers local requirements in policing.

Part 3 Crime and anti social behaviour

Schedule 6 Amendments to the Crime and Disorder Act 1998

53. Schedule 6 makes a number of amendments to the Crime and Disorder Act 1998, including: provisions attempting to make CDRPs more accountable and in parallel with this, to include greater emphasis on setting strategies; provisions aimed at CDRP/DAT merger or greater co-operation; provisions to improve data-sharing.

54. This Schedule deals with the proposed changes to CDRPs to create ‘CDRP-plus’ arrangements. This is the Government’s response to ensuring greater accountability for community safety issues at sub-strategic level. However the draft is somewhat unclear, and any changes must coincide with the recently published findings into the Home Office review of the partnership provisions of the Crime and Disorder Act 1998.

Concerns

55. MPA officers and the APA are concerned that fundamental changes to the governance arrangements of CDRPs will be possible via secondary legislation and maintain that any changes should be subject to full parliamentary scrutiny.

Clause 15: Role of local authority overview and scrutiny committees

56. The clause inserts new sections 21A and 21B into the Local Government Act 2000. It extends the remit of the local authority overview and scrutiny committees to Crime and Disorder. The committees will provide overview reports to CDRPs. Subsection (4) puts ward councillors under a duty to respond to a call for action, on crime and disorder from any member of the area they represent. They may refer action to the scrutiny committee, if informal means have failed. Scrutiny committees are required to consider a ‘call for action’, or ‘trigger’ and can place a duty on responsible authorities to consider reports and recommendations in light of calls for action.

Concerns

57. APA and MPA officers and the MPS agree that lines of answerability between citizens and BCUs should be improved. However they question whether or not ‘calls for action’ will address this and deliver tangible results. No real powers are given to scrutiny committees to deliver and the public may, in reality be disappointed by such arrangements.

58. In the current draft, the ‘trigger’, may add an unnecessary level of bureaucracy, instead of focusing on improving citizen focus in current local accountability structures, such as CDRPs. It is possible that added mechanisms to improve local accountability may hamper current work to improve citizen focus, and neighbourhood policing. Best practice may therefore come from improving existing practice arrangements on citizen engagement, such as safer neighbourhoods.

59. If introduced, strict guidelines must be incorporated to avoid unnecessary ‘calls for action’ both from politicians or members of the public. The co-option of police authorities as members of local authority CDRP scrutiny committees is absolutely essential in maintaining police authority statutory functions.

Conclusion

60. Further clauses concentrate upon the extension of parenting contracts and parenting orders, provision for the establishment of Her Majesty’s Chief Inspector for Justice, Community Safety and Custody and miscellaneous measures to deal with computer misuse, forfeiture of indecent photographs of children and amends the Extradition Act 2003. All of which do not have direct governance relevance to police authorities but will be considered during consultation with the MPS.

MPA submission

61. It is proposed that a joint response with the MPS, is sent to the Home Office, prior to the 2nd Reading in the Commons on the 22nd February. Given the short timescale I would be grateful for comments by Friday 10th February. If applicable the joint letter will then be drafted and sent out for your approval the following week.

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