Police Reform and Social Responsibility Bill (Programme) (No. 2)

I should first declare an interest as a member of the Kent police authority. I thank the hon. Member for Gedling (Vernon Coaker) for his testimonial to my work in that role, which—who knows?—might find its way into one of my election leaflets. We have heard about the protocol—let us call it that, so that we use common language—and I note that the shadow Minister refers to operational responsibility in the new clause. It would be great to have a clearly agreed definition for operational independence or responsibility as it is, but it is enormously difficult to do that. ACPO's position has changed on that, which does not necessarily assist us. The Home Affairs Committee visited ACPO two days ago, and it seems that the draft protocol is bouncing between it and the Home Office. ACPO had no objection to the draft being shared with the Committee when we asked for it. Will the Minister give the Committee sight of the protocol, even if it is still an early draft? Amendment 149 is a probing amendment, because it is very important to get the views of the House and of the Minister on the record. I have tried to emphasise a point that arose from the 1962 royal commission, which is that there is an important distinction, as I put it in the amendment, that the elected commissioner"““shall have no involvement in decisions with respect to individual investigations and arrests.””" That is an important constitutional protection. The Minister spoke quite strongly on that both on Second Reading and in evidence to the Home Affairs Committee. I am slightly concerned that one remark he made in the Committee, regarding the potential for too strict an interpretation of what Lord Denning said in 1968, should not be taken out of context. The context, as the Home Secretary said on Monday, is that we anticipate that it will be the elected commissioner who is in charge, as with the Mayor of London. The Minister was very clear on Second Reading and when he gave evidence to the Committee on the role and importance of the elected commissioners and that what we are doing is rebalancing the tripartite system, moving from a police authority leg that has traditionally been too weak and bolstering the role of the democratic and local element with the directly elected commissioner. I raised that point with the Minister in the Committee on 27 July last year, and asked whether there was any possibility of an incompatibility between what we intended with the legislation and what Lord Denning said in ex parte Blackburn in 1968. The Minister's reply was important. He said:"““It is often stated, quoting Lord Denning's dictum that the police should be answerable to the law and the law alone. I think that is right in the sense of when they are exercising their powers of arrest and so on that that should not be subject to any kind of political interference. We would all agree about that but, clearly, somebody has to set the police budget and the strategic direction of the police, so there has to be accountability to someone, and our premise is that that should no longer be to the centre, to a faceless bureaucrat, to the Home Secretary; it should instead be to local people through the election of the police and crime commissioner.””" That is what we intend to achieve with the Bill, and it is a distinction that is consistent with what we saw back in the 1962 royal commission. As the hon. Member for Walsall North (Mr Winnick) knows, the Select Committee received some helpful legal advice on this matter that read:"““This part of Lord Denning's judgment is not strictly binding as it went beyond the range of issues that had to be decided in that case, and is therefore obiter.””" We then had an assessment from our legal advisers on a leading academic text in this area by Richard Clayton QC and Hugh Tomlinson QC, whose conclusion on Lord Denning's judgment was:"““The doctrine is an exorbitant one and its legal foundations are very slight””." I had a look at that leading text and some of the academic debate on the difficulty of defining operational independence and what it was considered to mean. Richard Clayton and Hugh Tomlinson referred to section 6(1) of the Police Act 1996, which the Bill carries over, and wrote that it"““appears to create a specific sphere of responsibility for the police authority””." They go on to state that section 10(1), which deals with the direction and control of the chief constable, is subject to that provision, and"““only covers immediate operational direction and control but does not bear on the question of the extent to which the chief constable is under supervision of the police authority.””" The Committee went into the academic literature in more detail. We heard from Rick Muir, from the Institute for Public Policy Research, who has done much work—from the left—on this key issue. He agreed with me when I asked whether there was a distinction"““between the individual cases, where clearly the police should have independence in terms of arrest and investigation in those individual cases, and the broader spectrum of setting priorities, determining where budgets are spent and setting policy in general, which is properly the field of elected politicians””." He observed that unfortunately confusion had arisen because wrongly there had been a"““tendency of chief constables to take Denning to mean that they are in charge of strategy””." We do not have before us this protocol that the hon. Member for Gedling (Vernon Coaker) referred to, but the Committee was able to draw out some of the key issues. My amendment emphasises the position in 1962. Unfortunately, when Denning made his judgment, he did not have the advantage of being able to refer to proceedings in the House. Judges have been able to do that only since Pepper v. Hart in, I think, 1994. The key 1962 royal commission, which set the consensus on operational independence, was summarised by the legal advisers in a report to the Committee. They wrote:"““The Royal Commission on Police emphasised the need for impartiality and operational independence of the police in relation to 'quasi-judicial' decisions””." The royal commission included in those quasi-judicial decisions"““inquiries with regard to suspected offences, the arrest of persons and the decision to prosecute,””" adding:"““In matters of this kind it is clearly in the public interest that a police officer should be answerable only to his superiors in the force and, to the extent that a matter may come before them, to the courts. His impartiality would be jeopardised, and public confidence in it shaken, if in this field he were to be made the servant of too local a body.””" The commission said in respect of other duties:"““It cannot in our view be said that””" they"““require the complete immunity from external influence that is generally acknowledged to be necessary in regard to the enforcement of the law in particular cases.””" As our legal advisers point out, those other duties include"““general policies in regard to law enforcement…the disposition of his force, the concentration of his resources on any particular type of crime or area, the manner in which he handles political demonstrations or processions””" or"““his policy in enforcing the traffic laws and…dealing with parked vehicles””." That clear distinction has therefore run all the way through, from the royal commission in 1962 to the evidence that the Home Affairs Committee has taken. That is what I am trying to emphasise with my amendment 149; indeed, it is also what the Minister emphasised when he appeared before the Committee. I would therefore be grateful if he confirmed that he does not resile from any of those remarks. The other important point to make about Denning's judgment in 1968 is that it related not to what a police authority could do in terms of a chief constable, but to what a single individual, Mr Blackburn, who as a publicly spirited gentleman came to court with a judicial review, could do. The question was about the extent to which he as an individual could require the Metropolitan Police Commissioner to implement policing in a particular operational manner. That distinction is made clear by further material, including the 1988 case of Hill v. Chief Constable of West Yorkshire, in which it was clearly drawn. In that case, Lord Templeman said:"““The question for determination in this appeal is whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force.””" He concluded:"““A police force serves the public, and the elected representatives of the public must ensure that the public get the police force they deserve.””" It is clearly right that there can be no interference in individual investigations or arrests, but it is important to look at the issue from both sides.