§ 3.17 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that the Bill be now read a second time.
The most substantial provisions in this Bill are in Parts I and IV. Part I will reform the structure of the police service in England and Wales. Its purpose is to improve the management and organisation of the police service, so that it is better able to combat crime. The reforms in this part were foreshadowed in the White Paper on police reform which was published in June last year. Part IV will strengthen and modernise the administration of magistrates' courts. Parts II and III make changes affecting the police in Scotland and Northern Ireland respectively.
The organisation of police forces in England and Wales is based on the tripartite structure of chief constables, police authorities and the Home Secretary. The Bill will strengthen that structure by making the changes necessary to provide effective policing into the 21st century. Our objective is to establish a framework for the management and structure of the service which will allow police men and women to tackle crime and to protect local communities in the most effective way.
The present arrangements involve too many controls by the Home Secretary and central government over the details of local expenditure. They prevent the best use being made of the available resources. We propose to abolish those controls and to give more power to local police authorities and to chief constables, whose business it is to provide a service to their local communities.
Each police force will be maintained, as now, by a police authority. We intend to strengthen local police authorities so that they are better equipped to carry out their responsibilities. Clause 2 provides for the establishment of the new police authorities outside London. They will, in future, be smaller bodies. They will be free-standing with their own money and their own standard spending assessments. Decisions about policing will be taken by the police authority. They will not be taken by a committee of a local authority which can be overruled by the local authority. It will be possible for local people from any background who 458 have relevant skills or expertise to be members of the authority. Each will have a total of 16 members. Of those, eight are to be members of relevant councils, three are to be magistrates and five will be independent members appointed by the Home Secretary. The Home Secretary made an announcement in another place yesterday about how those members will be appointed. My noble friend Lord Ferrers also set out the details of this announcement for your Lordships. I hope that the detailed arrangements involving a published job description and personal profile, and short-listing by regional panels, will help to allay concerns about the independence of those members. Rules governing the appointment of members, including eligibility for appointment, tenure of office and allowances, are set out in Schedule 2 to the Bill. This also provides for the appointment of the chairman to the authority, who will be chosen by the Home Secretary from the overall membership.
Clause 3 sets out the general functions and duties of the new police authorities. The primary duty of each police authority will be to secure the maintenance of an efficient and effective police force for the area. This duty is slightly different from the duty under the 1964 Act as it stands, which is to maintain an adequate and efficient force. This small but important change will ensure that police authorities give priority not only to achieving value for money with the resources available, but also to ensure that the results are consistent with the objectives that have been set. Similar changes are made by the Bill to other references in the 1964 Act to efficiency. In the 1990s, and beyond, we should equally be concerned with effectiveness.
For the first time, there will be a duty on each local police authority to produce a costed local policing plan, setting out its priorities for the forthcoming year. They will do this together with the chief constable, and in so doing they must take account of the views of local people. The Bill requires this plan to be published. Each police authority will also be required to publish an annual report, assessing how far the plans for the previous year have been achieved. Local people will be able to see clearly what their local police are doing with their money and how well they are doing it.
The Government believe that these changes in the Bill will help the police to deal with those things which are of greatest concern to local people. This is not centralisation of policing, as is often suggested. It is precisely the reverse. It is giving away to police authorities and to chief constables various powers which the Home Secretary presently has. It is making those local police authorities stronger, more independent and more influential. It is enabling policing to be done locally, to be the responsibility of local people, and for policing to be accountable to local people.
The Bill makes no changes to the existing pattern of police forces, nor to the areas which they cover. I can make it absolutely clear that the Government have no plans for police force amalgamation. We have no predetermined view that a particular size of police force is better than any other. We would only wish to make changes if there were good arguments that it would lead to more effective policing. However, we intend that the 459 legislation should lay the basis of policing for many years to come. It is, therefore, sensible to allow for the possibility of change in the number or shape of forces, should any alterations become necessary in future.
Under Clause 10 the Secretary of State may make changes to police force boundaries by order. This includes changes to the Metropolitan Police district. But the clause places a requirement on the Secretary of State, if he decides that a change is desirable in the interests of efficiency or effectiveness, to consult interested parties, to give his reasons for any proposed change, and to consider objections to the plan. A change proposed by the Secretary of State can only be made if it is approved by both Houses of Parliament.
Clauses 2 to 8 are crucial in giving local police authorities and chief constables defined responsibilities and in enabling them to get on with the job without unnecessary interference. The Bill also ensures that there will be a clear framework for setting police priorities and measuring performance. Clause 11 enables the Home Secretary to set key objectives for policing and to require police authorities to set performance targets for measuring the achievement of these objectives. The clause also enables him to issue codes of practice relating to the exercise of police authority functions.
The Government are confident that all police authorities will be well equipped to ensure that the force provides a high quality service. Some provision needs to be made, however, for the eventuality of a police authority which fails to meet its obligations. Clause 11 also enables the Secretary of State to direct a police authority to take remedial measures, where a special inspection report indicates that a police force is not efficient or not effective. The power will only be available as a last resort, where there is independent evidence from an inspector of constabulary that a police authority is failing in its duties.
Part I also puts into place a new system of police funding. Clause 13 replaces the current provisions on police grant, under which the Home Secretary refunds 51 per cent. of police expenditure. In future, each police authority will receive a cash limited amount of police grant The Secretary of State is required to report in another place on how he proposes to allocate police grant and he must secure the approval of that House to his proposals.
The new police authorities will also receive funding through revenue support grant, non-domestic rates and the council tax. Clause 22 establishes the new police authorities as major precepting bodies for local government finance purposes.
The Bill will also reinforce the independent scrutiny of police performance. It makes important changes to the role of Her Majesty's inspectors of constabulary. Clause 16 extends their statutory responsibilities to the inspection of the Metropolitan Police. Clause 17 requires that all inspection reports are published and that every police authority publishes a response. This will help to provide much greater openness about what the police are doing and how well they are doing it.
Part I of the Bill also implements those of the Government's proposals, in relation to police rank 460 structure and conditions of service, which require primary legislation. Clause 5 has the effect of abolishing the rank of deputy chief constable. The abolition of chief superintendent and chief inspector ranks will be achieved be regulations. Clause 14 allows for greater flexibility in regulations relating to conditions of service. It also ensures that regulations concerning fixed term appointments may not be made for officers below superintendent rank.
Part I of the Bill paves the way for procedures to deal with police officers whose performance is unsatisfactory and for simplified procedures for dealing with misconduct by police officers. These provisions give effect to the results of the consultation process which followed the publication of the Government's proposals on police discipline last year. The Bill does not itself establish new procedures for police discipline. But the provisions of Clause 14 and Clauses 29 to 33 enable revised procedures to be introduced, and Clause 15 and Schedule 3 make provision for new appeals tribunals to be established.
I turn now to Part II of the Bill. Part II contains purely Scottish provisions on the police. The Bill has no provisions on courts in Scotland. It may assist your Lordships if I explain that the Bill does not deal with police areas in Scotland, nor with the composition, nor constitution, of Scottish police authorities. Part II of the Bill makes various amendments and additions to the Police (Scotland) Act 1967 in pursuit of the Government's policy for reform of the police service. A number of these make provision for Scotland comparable to that made for England and Wales in Part I of the Bill. These include provisions to give greater management responsibility to chief constables, and to give effect to the Government's proposals on police ranks and conditions of service, including discipline.
The Bill also makes various provisions which are relevant only to Scotland. These relate to such matters as subjects to be included in chief constables' annual reports; and the requirement for forces to work together to prevent or detect crime with maximum efficiency.
Part III of the Bill makes changes to the Police Act (Northern Ireland) 1970, to give effect in Northern Ireland to the Government's decisions on police rank structure and conditions of service. The changes introduced by the Bill are comparable to those being made in Great Britain to enable greater flexibility in making regulations, while taking account of the special and different circumstances of the Royal Ulster Constabulary.
Part IV of the Bill deals with the Government's proposals for the reform of the magistrates' courts service in England and Wales. These reforms relate to the management of the service. They will not affect the judicial decision taken in individual cases.
The 1989 scrutiny on the administration of the magistrates' courts found some serious and fundamental flaws in the management and organisational structure of the service. It concluded:There is no coherent management structure for the service. At the national level, the role of the Home Office is so uncertain, and its powers so limited, that it might be truer to say that there are 105 local services, each run by a committee of magistrates. But the local structure is just as confused, with 285 justices' 461 clerks enjoying a semi-autonomous status, under committees which are fundamentally ill-suited to the task of management. It is impossible to locate clear management responsibility or accountability anywhere in the structure".The scrutiny proposed a radical solution, that the magistrates' courts service should be restructured as a single national service, operated as an executive agency. We rejected this option. It had little support in the service, which broadly opposed the ending of local management of the service. However, the weaknesses identified by the scrutiny still needed to be addressed. We published our proposals for this in a White Paper in February 1992.
There are three key objectives behind our proposals. First, magistrates' courts committees, who are responsible for running the service locally, should be better able to fulfil their responsibilities. Secondly, there should be a clear line of management accountability from the courts to the magistrates' courts committees at local level. I am in turn accountable, as the responsible Minister, to your Lordships and the other place, for the administration of the magistrates' courts service. I therefore need some means, consistent with the local nature of the service, of discharging that accountability. This is not the type of direct line management accountability exercised by the magistrates' courts committees. It is of a more general nature. Nevertheless, it needs to be clear if I am to undertake my responsibilities. Thirdly, we want to ensure, in case there is any doubt that the proposals might do otherwise, that the independence of judicial decisions made by magistrates in individual cases remains secure.
Although it is evident from what I have already said, it is worth my emphasising that it is no part of my intention to seek direct managerial control. Had the proposals in the original scrutiny been implemented, I have no doubt that a wide range of detailed controls would have been necessary. As it is, the proposals in this Bill will do no more than provide me with the minimum level of control consistent with my accountability to Parliament.
There are a number of provisions in Part IV of the Bill to which I should like to draw your Lordships' attention. Clause 62 will enable me to amalgamate magistrates' courts committees. There are at present 105 magistrates' courts committee areas. Some are very small, covering for example, the smallest counties and metropolitan districts. Many are much larger. The largest area has over 400 times more work than the smallest. I have published to the service my preliminary conclusions as to the geographical areas of the new committees. I do not propose that all magistrates' courts committee areas should be of the same size. But many of the smallest committees cannot use their resources as flexibly as the larger ones, and this results in a loss of potential for improved value for money, and lower levels of service to the public than would otherwise be possible. I propose that there should be local consultation before making particular orders. The object of such a course is that full account can be taken of local circumstances.
The constitution of magistrates' courts committees needs to be better structured to fulfil the task of 462 providing strategic direction for their local service. Committees will be smaller than at present. They will no longer be primarily representational bodies, but their members will be appointed by a selection panel made up of representatives of local benches, to ensure that the choice of committee members will continue to rest firmly with the local magistracy. They will be able to co-opt up to two members who may be, but need not be, magistrates. If there is a clear weakness in a committee's membership which they decline to rectify by co-option, I envisage that I could do so by making up to two appointments myself.
Magistrates' courts committees comprise volunteers giving their services in their own time. It is not easy for them directly to manage the staff of the courts. Therefore I propose that they should have the assistance of a single head of service, to whom they can delegate much of the day-to-day administration of the service. The head of service will be the line manager of all the committee's staff. Without this managerial control, there will continue to be no proper accountability to the magistrates' courts committee from the staff delivering the service, which was one of the important weaknesses identified by the 1989 scrutiny. I can think of no other public service which does not have a single head who is accountable to those responsible for delivering the service.
This principle is already recognised in some parts of the service and those magistrates' courts committees who have already appointed a head of service in advance of this legislation have, I believe, secured benefits.
All chief justices' clerks and justices' clerks should have a contract of employment with their committee. This is clearly much more satisfactory than the present arrangements under which justices' clerks hold office (and can be dismissed) at the pleasure of the committee. I also want to be sure that magistrates' courts committees have in place a proper framework for managing their staff.
I accordingly propose that contracts between magistrates' courts committees and senior staff should contain certain broad provisions. I envisage that these provisions will include the fixing of a term to the contract—although this may be rolling—and provide for an element of remuneration to be linked to performance. None of these provisions will affect existing office holders, and I do not seek any powers to vary contracts of service between magistrates' courts committees and their staff once they are in force.
I know that in clarifying the accountability of justices' clerks to their magistrates' courts committees in administrative matters, some people fear that the independent advice given to magistrates in court will be undermined. Having given this matter considerable thought, I am satisfied that those fears are groundless. For example, where the justices' clerk is also the head of service, there is no evidence or suggestion that there has been any interference with judicial independence. As confirmation of this and to put the matter beyond doubt, I propose that it be declared, as appears on the face of the Bill, that in giving advice to magistrates in court, or in exercising the delegated functions of a single 463 justice, justices' clerks may not be subject to management direction, either local or national. That provision is incorporated on the face of the Bill and would govern any exercise of delegated powers under it.
The Magistrates' Courts Service Inspectorate has, following the White Paper, already been set up and I propose in this Bill to place it on a statutory footing. The inspectorate's remit will extend only to the administration of the magistrates' courts service, not the judicial work of the courts.
I also propose to issue in directions the standards of performance that I expect the magistrates' courts service to achieve. The inspectorate will examine the performance of the service against these standards. If the required standards are not achieved, or the service is unsatisfactory in other ways, the inspectorate will provide guidance on how improvements can be made. I expect that the vast majority of problems will be resolved in this way. As is normal for any organisation, there needs to be some reserve powers for use on those very rare occasions when a committee, without reasonable excuse, continues to fail in its duties. This Bill therefore proposes a number of incremental steps that I can take in these unusual circumstances. Clearly, the circumstances would be exceptional and all other remedies would have been tried.
Many of the reforms proposed in this part of the Bill are already in place in one area of the country or another, in so far as that is possible within the existing legislative framework. Various committees have appointed either a single justices' clerk to be the head of the staff, or have appointed an equivalent of the chief justices' clerk. The benefits of flexible organisation within larger magistrates' courts committee areas have been exploited by many committees, who have, for example, concentrated their administrative support in a few locations. A number of employees of the magistrates' courts service have fixed-term contracts. Where the reforms I propose have been brought into effect locally, they have been shown to bring benefits to the management of the service.
The police parts of the Bill will help the police tackle crime and protect the public. They should also enable the public to see their local force tackling the things that matter most. No one realises more acutely than the police that they must have the full confidence of local people if they are to deal effectively with the ever-increasing demands placed upon them. This Bill will result in a police service which is better able to respond to what the public wants because it is better organised and better run.
The Bill also brings the administrative structure of the magistrates' courts service, which has remained essentially unaltered for the past 50 years, up to date. The reforms will better enable it to deal with the challenges that the service now faces without undermining its local nature, and they will not interfere with the independence of the magistracy. I commend them to your Lordships.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 3.49 p.m.
§ Lord McIntosh of Haringey
My Lords, my respect for the noble and learned Lord the Lord Chancellor is such that I have an instinctive predilection to agreeing with what he says and to accepting that his arguments are well thought out and persuasive. My instinctive predilection has only been dispersed over recent weeks by the virtually unanimous opposition of every organisation representing those who take part in the work of the police service or of the magistracy to significant parts —indeed, I would say to crucial parts—of the Bill to which the noble and learned Lord has just proposed giving a Second Reading with his usual clarity and courtesy to the House.
On the police side, we have the unanimous opposition of all the representatives of police authorities, the members of the local authority associations of all political parties, both in England and in Wales. We have the unanimous opposition of all the police service—from the Association of Chief Police Officers through the Superintendents' Association to the Police Federation, which represents ranks below superintendent. We have similar unanimous opposition from all of the comparable organisations representing the Scottish police. I have not received any representations from Northern Ireland, but in so far as the same provisions are proposed for Northern Ireland, I would not be surprised if there were opposition there and I do not doubt that as the Bill proceeds there will be representations from Northern Ireland also.
Why is there such unanimous opposition from those who know in their daily lives what the police service and the magistrates' court service are like? I think that it is because what is being proposed here is the overturning of not just a few years of the constitutional history of this country, but of many years of its history. The involvement of local authorities in the police service does not just date back to the Police Act 1964 and to the Willink Royal Commission which preceded it; it goes back as far as the Municipal Corporations Act 1835. At all stages, it has been recognised by those who have been involved in the service and in controlling the service that local authorities play a crucial part in an accountable police service. When I say "accountable", I hope to show to your Lordships that that also means an effective police service.
The Willink Commission which preceded the 1964 Police Act deserves quoting at some length. In paragraph 142, the commission stated:The basic soundness of our present police system is not due merely to the fact that reasonable people operate it successfully—though that is certainly true. Nor, again, is the system sound merely because it follows a tradition of local policing which is traceable back for many centuries—though that also is true. In our opinion the present police system is sound because it is based upon, and reflects, a political idea of immense practical value which has gained wide acceptance in this country, namely the idea of partnership between central and local government in the administration of public services. This idea, working itself out in a variety of ways in our education, health, housing and other services, admirably suits the British temperament. It gives free rein to discussion and ample scope for compromise, thus promoting the growth of an enlightened and mature public opinion".465 Earlier in the report, at paragraph 22, the commission stated:We attach importance to the principle that the ratepayer, through his elected representatives, should have a vote in the scale and cost of the policing of the community in which he lives".In paragraph 230, the commission specifically rejected what is now proposed with these words:It would be inappropriate to assign to the Secretaries of State complete responsibility for the police service in that Ministers cannot in our view be responsible for the acts of individual policemen or for the day-to-day enforcement of the law".From the speech from the noble and learned Lord, it would not appear that that is what is proposed; but it is, indeed, what is proposed because the composition of the police authorities, as proposed in the Bill, will no longer be the tripartite system enshrined in the 1964 Act whereby the Home Secretary, the police authority and the chief constable all have a say in policing, and whereby any dispute between any two of those parties can be resolved with the help of the third party. No, what is now proposed is that the Home Secretary—central government—shall have the power to appoint his own nominees to the police authority who, together with magistrates, will equal the number of local authority members. He will have the further power of directly appointing a paid chairman. That means that a majority of members of the police authority will no longer be members of the local authority. Therefore, instead of having a tripartite system, the proposals put the Home Secretary in command both of the police authorities and, as I shall show by my examination of the Bill, of the chief constables also.
That is shown clearly when we consider the proposals on amalgamations. The noble and learned Lord has assured us that the Government have no plans for amalgamations. If that is the case—and I accept what the noble and learned Lord says—why does Clause 10 provide for the Home Secretary to make orders for amalgamation of his own volition and without waiting for the police authorities to recommend that? Why can those orders make,provision as to the membership of a police authority"?Why do they provide for amending Schedule 1A, which is the list of police authorities, and "any other enactment"? If that is not a Henry VIII clause, I do not know what is. Why do they provide that if the order makes a hybrid instrument, the instrument,shall proceed … as if it were not such an instrument"?What on earth are we doing providing in advance that the protection of the hybrid instrument procedure shall be abolished by legislation on the decision only of the Home Secretary without any parliamentary intervention whatsoever? Finally, why is it that the proposed clauses in the consultation procedures take away the obligation which has existed until now, that when any amalgamation is proposed there should be a public inquiry? If there are no plans to amalgamate police authorities, this is a very strange way of not making any plans.
We are talking about more than just the boundaries of the police authorities. What is at stake here is, in effect, control of the police authorities themselves through the Home Secretary's control of the chairmanship and a 466 substantial part of the membership of the police authorities. Without saying so, that means, in effect, that we are moving in the direction of a national police force. There are perfectly good arguments for some elements of national involvement in policing. There are perfectly good arguments about why, for example, the national police computer facilities and those parts of the service dealing with terrorism, serious fraud and drugs offences should be put on a national basis, but this is not the way to do it. The Bill proposes that all elements of policing, including local and community policing, shall come under the increasing control of the Home Secretary.
If we needed any persuading on that point, those of your Lordships who were present at the meeting upstairs last week which was organised by the noble Lord, Lord Knights, will have heard Sir John Chatfield, the former Conservative chairman of the Association of County Councils, arguing cogently against these provisions in the Bill. He gave the example of the miners' strike. It appeared to the police in the mining areas of this country that to preserve public order they needed reinforcements on a very much larger scale than would have been available from their own resources, so they asked the police authorities and chief constables in other parts of the country for their assistance. That assistance was voluntarily given. Sir John argued—I fear that this is true—that if there had been a government order that that assistance be given, that would in effect have meant that the Government centrally had been setting out to break the miners' strike. There are some of us who feel that there was an element of that in what happened, but the procedure that was adopted meant that the Government did not have the power or the responsibility to undertake such an operation. What is now proposed is to abolish that provision entirely. The Home Secretary can give directions not just to all authorities but to individual authorities that they will assist in any particular operation of this kind. Sir John rightly feared that this would be extremely damaging to the independence from government of policing in this country.
I turn now to the issue of the membership of police authorities. If it is suggested that local authority members do not have an involvement in their community, all I can say is that the provisions which are now proposed, and which were suggested in the Written Answer given yesterday by the noble Earl, Lord Ferrers, do not carry much conviction. After all, many local authority members—38 per cent. of them according to a recent survey—have business interests in their local authorities. Some 62 per cent. of them are school governors. All of them are involved in the other activities of the local authority which have to inter-relate with policing.
They are involved with the safety aspects of highways, the social services, education and with the presence of police as regards training in schools, with crime prevention, with the youth service and with other activities. They are responsible and accountable to their electors for all aspects of their activity including their police activities. Yet the Home Secretary now proposes that it should be a responsibility of the police authority to ensure that there are effective arrangements for consulting local communities about policing and for 467 reflecting their views. The members of a police authority will be expected to act on behalf of local people as the customers of the service which the police force provides. They will be expected, if you please, to consult the public about the work of the police and help to build a partnership between the police and the local community.
It appears that the Government, having totally abandoned any idea of local democracy, are distorting the use of the word "community" in an attempt to take its place. We have a community system in this country and our community is comprised of many activities by voluntary organisations and by local democracy and by popularly elected local councillors. These are the councillors who can provide the links with the community and these are the people who can consult the public about the work of the police. These are the people who, unlike appointed members of a police authority, will be accountable if the public are not satisfied with the work of the police.
If we look at many of the aspects of policing, notably crime prevention, it is quite clear that this will not be assisted by having even the most well meaning of volunteers putting themselves forward, being short listed by a management consultant and by two persons who are supposed to be independent of government—however, we have learnt the meaning of independence from government on many other occasions—and then chosen from the short list by the Home Secretary.
There are many other aspects of the police part of this Bill which I have barely time to do more than touch on. I note the emphasis which the noble and learned Lord gave to performance targets. Clause 11 of the Bill provides that performance targets may be imposed not just on all authorities—in other words, on general principles—but on,one or more particular authorities".Clause 11 also provides that different conditions for different authorities may be applied. If that is not detailed control of the work of the police authorities, I do not know what is.
Let us consider the financing of the police. There may well be aspects in which the Home Office is giving up detailed control of certain kinds of expenditure, but fundamentally the Bill is proposing that the precept on local authorities needs the approval of half the total membership and five out of eight local authority members. That means that the nominated members of the police authority, plus the chairman placing his casting vote, can block a precept on the local authorities in the area. In any case the Home Secretary has the power to increase any precept which is made. We are moving here into the mad system of local government finance and I should have thought that the Government have had enough sad and bitter experience of the inadequacy of our local government finance procedures not to introduce hypothecation, cash limiting, individual standard spending assessments and capping budgets. Some people never seem to learn.
The noble and learned Lord talked about the independence of chief constables. I remind him that the chief constables will now be on fixed-term contracts. They will be on performance related pay and they will 468 probably be sitting in the next office to a Home Secretary-appointed chairman of a police authority who will himself be paid. How that can be squared with increased independence for chief constables I cannot imagine. There are even more absurdities. Clause 21 proposes that there should be commercial sponsorship,of any activity of the police authority or of the police force maintained by it".What does that mean? Does it mean that Group 4 will run the police cells, or that there will be a Maxwell memorial pension fund, or a Shirley Porter blueprint for police housing? The idea of sponsorship is absurd and it should not have a place in this Bill. The Police Federation has made strong objections to the proposal in Clause 4 that the Secretary of State's approval should be required for the appointment of a chief constable. That, again, is a provision which we shall have to take out of this Bill as it is clearly a centralising measure.
I have little time to refer to London but I remind the House of what Mr. Kenneth Clarke said when he was Home Secretary in response to a Parliamentary Question. He stated:I think that London needs a police authority, and the arrangement whereby the Home Secretary is in theory the police authority for London is not adequate if we are to hold the Metropolitan Police to account, as happens with other police authorities, and if we are to assist them by giving clearer guidelines on priorities".That was the view of Mr. Kenneth Clarke and indeed it was the view of the noble Earl, Lord Ferrers, as stated in this House on 26th May 1993. What has changed? We shall seek to put back a police authority for London in accordance with those views.
The Scottish police are deeply dissatisfied with Part II of the Bill. They are dissatisfied with the provision in Clause 45 that the Secretary of State can direct all chief constables to participate in a campaign or operation. That is the analogy in Scotland of the miners' strike to which I referred earlier. The Scottish police are dissatisfied with Clause 54 which states that the Secretary of State can require police forces to participate in a common service, whether that is a computer service or any other. They are dissatisfied with the proposal that the inspectorate can direct chief constables to re-examine a case. They claim that there has been no consultation on many of the proposals which are put forward in Part II of the Bill.
I turn now to the magistrates' part of the Bill. I must remind your Lordships that magistrates are responsible for 97 per cent. of cases in this country which go before the courts; that their cost out of a total criminal justice budget of £6 billion is approximately £350 million, of which they recoup £269 million in fines. It is difficult to understand why there should be this enormous concern about the management of magistrates' courts. After all, they are responsive. They cannot drum up business if they are under occupied. They have to deal with the cases that come before them. The difference between 105 and 60 magistrates' courts committees is not all that great to justify this quite drastic legislative proposal. What is proposed here is that the noble and learned Lord the Lord Chancellor himself can initiate amalgamations of his own volition, whether or not there is a proposal from a magistrates' court committee. At the very least 469 one would have thought that before putting forward a proposal of that kind there should be a costed business plan.
The noble and learned Lord referred to the need for a greater strategic direction of magistrates' courts. I do not understand what that means. I may be naive but I have worked in business all my life where I have been concerned with strategic business plans. But what strategic direction can there be for a magistrates' court system which responds to the need of the cases brought before it? What we have here is another example of centralisation. In the past the magistrates—as the noble and learned Lord clearly said—were independent in every way, but now the noble and learned Lord the Lord Chancellor and the inspectorate between them have a vastly increased control of the chief justices' clerks and of the magistrates' courts committees. I do not say that without evidence.
So far as the chief justices' clerks are concerned, the Lord Chancellor can specify that there should be a contract and what the contract should contain. He has the right to approve or disapprove a short list for the appointment of a chief justices' clerk, and the same applies to a justices' clerk; and he has an inspectorate now given statutory powers, although not independent of his department, which can intervene in the management of magistrates' courts.
So far as control of the magistrates' courts committee is concerned, the Lord Chancellor has the power, as he rightly said, to make two co-options of his own without any intervention from the magistrates' courts committee itself. His approval has to be obtained for the election of a chairman by the magistrates' courts committee. He can give directions on the administrations of the court. He has to approve any communications between the magistrates' courts committee and the management.
In almost every way the power of central government is being increased as regards magistrates' courts. The Magistrates' Association has given a detailed critique of those extra powers. It opposes the power in Clause 62 for the Lord Chancellor to amalgamate courts of his own volition, and it demands a costed business plan. It opposes the power in Clause 63 for those co-options, and says that it should require the agreement of the magistrates' courts committee. On Clause 65, it says that the appointment of a chairman should not be subject to the Lord Chancellor's approval. The consultation exercise showed 96 per cent. of magistrates opposed to that particular provision in the Bill. The Magistrates' Association opposes the chief justices' clerks provision, which it sees as being an extension of the power of the Lord Chancellor's Department, in favour of an administrative chief executive.
The noble and learned Lord has given us an undertaking on Clause 71 which we shall read with great care. He says that the proposals for independence in an individual case will be extended more widely. We welcome the indication of his concern about the Bill as drafted, and we shall read his proposed amendments with great care.
In all of these matters there has been much talk of accountability. Accountability not only means giving an 470 account of one's actions—and the Bill quite properly does that in many cases—but also means being held to account. Under the provisions of the Bill neither the police authorities nor the chief justices' clerks respectively, nor staff of a magistrates' courts committee, will be held to account by anybody except central government. Being held to account is a characteristic of local authorities who are up for re-election at regular intervals. It is not a characteristic of free-standing quangos such as are proposed by this Bill.
I suggest to your Lordships that this Bill is a direct denial of accountability in both of those senses. It is a denial of policing with the consent of the community. It is a denial of the principle that justice should not only be done but should be seen to be done. We shall be very critical indeed of the Bill as it proceeds through your Lordships' House.
§ 4 p.m.
§ Lord Harris of Greenwich
My Lords, we are debating today a Bill of major constitutional importance. We have before us a measure which gives Ministers powers over both the police and magistrates which would have been unthinkable a decade ago.
Before I come to the substance of the proposals before us, perhaps I may say that I think it is objectionable that we are being invited to discuss both issues within a single Bill. They involve matters of such importance that they should have been proceeded with separately: one a Bill dealing with the police and a second dealing with the magistrates' courts. But the Government have decided otherwise.
I say at the outset that the Bill raises issues of such constitutional significance that a prolonged and detailed examination of its provisions is essential. We should not be invited to discuss these issues late at night in a thinly attended House simply because not enough time has been allocated for debate. We have made our views on this clear to the Government through the usual channels.
I have been involved in one form or another with the police service for the last 20 years. Therefore I propose to devote most of my speech to the effect of this Bill on the British police service. In no way does that imply that I find the Government's proposals on magistrates' courts as other than most undesirable, for they involve a huge transfer of power from an independent magistracy to a government department. Perhaps I may give two examples, one of which was referred to by the noble Lord, Lord McIntosh of Haringey.
The noble and learned Lord is inviting us to agree that he and his successors should be entitled to reject the appointment by a magistrates' courts committee of its chairman. On what conceivable grounds can this extraordinary power be justified? Why should a magistrates' courts committee in Northumbria, in West Glamorgan or in Norfolk have to wait around to discover whether the Lord Chancellor of the day is prepared to agree to the appointment of its chairman? And how can it be right for a justices' clerk, the person who provides independent legal advice to lay magistrates, to be subject to a fixed term contract with performance-related pay to be determined in part by the 471 assiduity with which he follows the views of a government department? That is wholly wrong, and we shall resist it.
I turn now to the Bill's provisions relating to the police. I propose to discuss three issues: force amalgamations, national objectives and performance indicators, and lastly the character of the new police authorities.
First, on the question of the amalgamation of police forces, as I indicated to the House on 26th May last year in the debate which we initiated, I am not opposed in principle—nor, I think, would any reasonable person be—to some force amalgamations at some stage in the future. Some may be entirely justified. But this can already be done under the terms of the Police Act 1964. Indeed, it was under the terms of that Act that my noble friend Lord Jenkins of Hillhead carried through a major programme of police force amalgamations between 1966 and 1967. But he and his advisers had to justify those proposals before independent local inquiries when they were opposed either by local authorities or local police authorities.
What is proposed in this Bill is significantly different. It gives the Secretary of State absolute power to carry through amalgamations without any need for a local inquiry. He will be able to amalgamate forces without any requirement for him to justify his plans before an independent inspector. Why? Why should a police force with strong local links with the community be wiped out and amalgamated with others by the stroke of a ministerial pen? Ministers have given no justification for that proposal, and nor did the noble and learned Lord when he spoke on this matter a few minutes ago. We are simply being asked to give a Minister of the Crown unqualified authority to do anything he likes. We believe that this is wrong, and we shall oppose this clause of the Bill.
I turn next to Clause 11 which gives the Home Secretary power to set a list of national objectives for the police service and specific performance targets to test their ability to meet those objectives. Neither of those powers has been found to be necessary by any previous Home Secretary to Mr. Clarke, who was the initiator of these plans and not the current Home Secretary, Mr. Howard. We are told that the Home Secretary intends to instruct the police to make their two principal objectives crimes involving violence and burglary. At first sight, that may appear to be quite reasonable. However, in reality, it is foolish. Offences of violence include a wide variety of criminal acts from murder to a minor physical conflict between two neighbours who have become rather cross with one another.
In the Government's performance indicators, the clearing up of the murder will achieve precisely the same score as the minor assault. Indeed, the arrest of both angry neighbours will score twice as heavily as that of the murderer, though the offences involving the neighbours will probably have required the attendance of a police officer for half-an-hour whereas the conviction of the man accused of murder may require detailed examination and investigation by detectives for many weeks.
472 How are these arbitrary, statistical judgments to be justified? How can they be described as a test of police efficiency, or command the respect of the police service? I must tell the noble Earl, Lord Fevers, who is to reply to the debate, that I have yet to meet a policeman who regards that approach as other than daft. It has nothing to do with the real world in which the police operate. However, in many respects, it is worse than daft.
The list of national objectives determined by the politician who is for the moment Home Secretary has several objectionable features. By obtaining the annual reports of every chief constable the media will, thanks to performance indicators, be able to construct a police league table. Those forces which follow the Home Secretary's national objectives most slavishly will, of course, appear at the top of the league table, and those that do not will appear at the bottom. The suggestion will be made that forces which appear at the top of the league are efficient while those at the bottom are not. That is nonsense.
Let us say that a chief officer and the local community that he serves are deeply worried about the extent of heroin and cocaine trafficking in the police force area concerned. Heroin and cocaine kill. They destroy families. Moreover, their availability has grown to a most dangerous degree. The United States customs assumes that it intercepts somewhere in the region of 10 per cent. of the heroin and cocaine which is destined for the American market. I know of few policemen in this country who believe that we are more effective in dealing with heroin and cocaine shipments to the United Kingdom.
During the first six months of 1980, heroin and cocaine seized by our Customs had a street value of £2 million. In the first six months of last year, the figure was not £2 million but £34 million; that is, 17 times as much. If we apply the 10 per cent. seizure calculations, it means that somewhere in the region of £340 million worth of heroin and cocaine entered the UK market during that period of just six months. This danger is now widely recognised. Presumably, that is why the Department of Health is about to launch an advertising campaign directed at publicising the threat to young people which is provided by drugs.
However, those chief officers who devote substantial resources to dealing with drugs may find that their force will be rated as less efficient than those which have an impressive record in charging significant numbers of young men with common assault, the least serious charge so far as offences of violence are concerned. That seems to me to be quite absurd. There are scores of other areas of police activity which will be disregarded in the performance indicators. I have in mind the hours of police time spent in dealing with people's domestic disputes, or with missing persons, lost children, the elderly and the infirm or in policing major events; or, indeed, in using large numbers of policemen to carry out checks at times of threatened IRA terrorist attacks.
What is the point of all of that? Why should a politician in Whitehall impose his order of priorities on chief officers whose areas range from scattered rural communities in Cumbria and Dyfed Powys to the 473 inner-city areas such as Handsworth and Tower Hamlets? Why should not each chief police officer make his own decision on operational priorities in his force area as is now the case, taking account of the views of the local community? The Government appear to believe that the Minister in Whitehall always knows best. We do not.
I turn now to the third issue that I want to raise this afternoon. I refer to the proposed new police authorities which were mentioned by the noble Lord, Lord McIntosh of Haringey. Let us be quite clear on what it is about: it is the first major step towards the creation of a national police force. As the House is aware—indeed, the noble Lord, Lord McIntosh of Haringey, reminded us—ever since the passage of the Municipal Corporations Act 1835, the Local Government Act 1888 and the Police Act 1964, our system of policing has been based on a tripartite system between chief officers, local police authorities and the Home Secretary. We have avoided the over-centralisation of power that we have seen in a number of countries on the Continent in which the police are responsible to a powerful Minister of the interior, and the situation in the United States where mayors appoint their senior police officers and are enabled to dismiss them at will.
I have had the opportunity of visiting police forces in five countries in the European Community and about 12 police departments in the United States. They contain many senior officers of considerable ability. However, in conversation with them, what is most significant is the immense regard that they express for the structure of the British police service. They have told me how lucky we are in this country that we do not permit an all-powerful politician to run our police service. They have added that that is why, despite all the great difficulties through which we have passed in recent years, they believe that our police service has such a high international reputation.
I am glad to say that the noble Earl, Lord Ferrers, appears to share that judgment. Speaking in this House on 26th May last year during a debate on the police service, the noble Earl said:In the 30 years that have passed since the previous police Act became law the old tripartite structure, which consisted of police authorities, chief constables and the Home Secretary, has provided an effective police service which can still truthfully be described as not only the best in the world but also the envy of the world".—[Official Report, 26/5/93; col. 345.]I emphasise the words,the envy of the world".Those are the words of the noble Earl, Lord Ferrers. Well, if the system is as good as that, why have the Government decided to destroy it? That is what the Bill does. It has been done without any independent form of inquiry and without any group of people with knowledge and experience in the area agreeing to support it. So far as I am aware, it is a proposal with virtually no friends whatever. For the first time in this country's history, the Home Secretary has been given the power not only to appoint members to the authority but also its chairman who, as the noble Lord, Lord McIntosh, pointed out, will be paid. Every police authority whatever its size will have precisely the same 474 number of members: 16. The elected members, of whom there will be eight, will come from different political parties.
Last night we were told that nominees for the Home Secretary's appointments would be put before him by a personnel selection consultant and by Lord Lieutenants. I am sure that if that duty is imposed upon them they will carry it out in a conscientious manner. But the question of who draws up the list of nominees is of secondary importance. The question is: who makes the decision about whom to appoint and whom to reject? We all know the answer to that: the Minister in Whitehall will make the decision. We can all be quite clear about what is being proposed. If the Bill is passed in its present form there will be a paid political appointee of a Minister in every operational police headquarters in this country—in Exeter, Durham, Preston, Colwyn Bay, Penrith, Bridgend and all the rest. He or she will be supported by up to five other political appointees.
These provisions have nothing whatever to do with the efficiency of the British police service; they have to do with the power of a Home Secretary in future, whatever his party may be, to put his political friends in control of every police force in this country. The risk to the independence of chief officers, which is the bulwark of our present system, is obvious. Henceforth, senior officers will be on limited term contracts which will be extended or not at the discretion of the new police authorities. Similarly, they may be awarded performance-related bonuses.
At present, if the chairman of a police authority were to urge a chief officer to make a politically convenient decision on how to handle an operational issue, be it an industrial dispute or a problem involving new age travellers, the chief officer would say that it was a matter which only he could decide. In my view, that is absolutely as it should be. That is why the operational independence of a chief officer is the best guarantee of the political independence of the police service. That will end if the Bill is passed in its present form, for the chief officer will know that if his limited term contract is coming up for renewal and he takes a firm stand about political pressure of that kind he may find himself without a job. Similarly, he will know that if the new government chairman of the police authority indicates to him that the Home Secretary will find it helpful if he makes a particular type of statement at a politically sensitive time he will be taking a risk if he ignores that pressure. It is because the heads of police departments in the United States and continental Europe have in the past experienced just such pressure that they admire the system of policing in this country and its political independence.
The measure before us today raises issues of the utmost constitutional gravity. We are asked to destroy the carefully constructed balance of power that has existed for a century and a half between local communities, chief officers and the Home Office and create a situation whereby the political independence of the British police service will be at risk of being fatally undermined. That is not only my opinion but the view of every chief officer of police with whom I have 475 discussed this issue. All of this is taking place without the British public having been consulted at a general election. This country does not have a written constitution or a constitutional court. This House is the final guardian of the liberties of the British people. I hope that the House will insist on exercising its authority to strike out these repugnant provisions from the Bill.
§ 4.25 p.m.
§ Lord Taylor of Gosforth
My Lords, I do not wish nor is it appropriate for me to comment on the proposals contained in Parts I, II and III of the Bill which deal with the Government's intentions to reform the police. Nor do I wish to address all the matters concerning the magistrates' courts committees contained in Part IV of the Bill. Contrary to what may have appeared in the press, I have no desire to clash with the Lord Chancellor in this area. Indeed, I support him in seeking to secure greater efficiency in the magistrates' courts by amalgamating some committee areas and establishing an inspectorate to report to him on the organisation and management of magistrates' courts. I apologise to the House in advance for having to leave the debate early on account of a previous commitment.
I wish to address the impact of the Bill on the judicial independence of the magistracy—a matter to which I know the Lord Chancellor attaches great importance, since he has thought it necessary expressly to provide for it in Clause 71. He has told us today that it is one of his three objectives. My concerns are directed not only at the independence of lay and professional magistrates but also of their clerks who, whilst not strictly members of the judiciary—a large part of their work consists of court administration and the management of resources—nevertheless have important judicial functions. In my view, those functions fall into two categories. I say "in my view" because, although I have asked the parliamentary secretary to the Lord Chancellor what he considers those judicial functions to be, he has written to me that hedoubts there is much to be gained from attempting to define which of the functions of justices' clerks are or are not judicial ones".I find that observation astonishing. Since the Lord Chancellor attaches sufficient importance to the principle of judicial independence to enshrine it in a specific clause in the Bill one may have expected him and his department to have taken care to identify the traditional functions which need to be protected.
This matters a great deal. The first category of judicial functions to which I refer is the provision by justices' clerks of advice to the Bench on what the law is and how it should be applied to the facts of a particular case. This function is closely akin to that of a judge in a criminal trial who directs a jury as to the law that it needs to know to decide the case. I would be surprised if anyone, lawyer or layman, sought to cast doubt on whether this was in effect a judicial function. What else could it be? It would clearly not be administrative. In addition, justices' clerks exercise some judicial functions in their own right, which is my second category. For example, in certain cases they can 476 grant adjournments, renew bail, extend the time allowed to pay fines and (very importantly) grant or refuse legal aid. They also have important responsibilities in family cases under the Children Act. Moreover, the trend is towards devolving to them further judicial functions. Soon they will also be empowered to commit actions by consent to the Crown Court and to issue distress and attachment of benefits warrants.
It is absolutely fundamental that nobody providing legal directions or advice to a tribunal of fact, or who is taking decisions which affect the rights or liabilities of parties to proceedings, should be or appear to be susceptible to outside influences of any kind.
What then does the Lord Chancellor propose? In Clause 70(3) he is to be empowered to require by order that a contract made between a justices' clerk and his employing committee shall contain such terms as he, the Lord Chancellor, may specify. Therefore, so far as primary legislation is concerned there is a hidden potential agenda. What will that agenda be? Paragraph 28 of the White Paper A New Framework for Local Justice clearly signals what the provisions will be. It states:These contracts should be for fixed terms … They should provide for remuneration to be related to performance".A cult seems to have developed and to be invading the whole of the public sector whereby fixed-term contracts and performance pay are seen as the panaceas which will give us managerial efficiency. They may indeed be useful tools in a purely managerial context, but in a judicial context, or where there exists a judicial element, they can have no place.
I suspect that the noble Earl, Lord Ferrers, will, in replying to this debate, say that those elements of the contract are intended merely to affect the way in which justices' clerks discharge their administrative responsibilities, and that their independence in respect of their judicial functions is safeguarded by Clause 71. I can only say that I would regard such an answer as a pious hope, but unrealistic. A clerk is a single officer with a single contract of employment. The terms should be a matter between him or her and the employing committee. It should not be required to contain terms inimical to the proper exercise of judicial functions by virtue of ministerial direction.
There is a further aspect of this part of the Bill which I find unacceptable. That is the proposal that each area committee should be required, by Clause 68, to appoint a so-called "chief justices' clerk" from a list approved by the Lord Chancellor. Chief justices' clerk is an inappropriate misnomer. Until now I had believed that the Chief Justice's clerk was my clerk. It is a misnomer for more substantial reasons than that.
There is often a real need for an area committee to be assisted by an able professional officer in the management of the staff and financial resources for which the committee is responsible, which can be considerable. Nobody questions that. I believe that some committees have already taken that very sensible step. They have usually designated their appointee as "chief executive" because that is what he is. What they need in 477 that role is a manager, not a lawyer. What is now proposed is that this new official who is to manage the justices' clerks in the area is to be:capable of exercising any of the functions of a justices' clerkand to have the duty to:promote discussions relating to the law, practice and procedureamong the justices' clerks for whom he or she is responsible. I find that last phrase chilling. The chief justices' clerk will also be on a fixed-term contract incorporating performance-related pay.
There are very real dangers here. I cannot overstress that to insert a clause proclaiming judicial independence, even if it were written in capital letters or red ink, will be no guarantee of such independence if specific provisions elsewhere in the Act, or in the Lord Chancellor's blueprint for clerks' contracts, in fact operate against judicial independence or appear to do so. What is sought to be done is this. One puts in place provisions which would obviously create a grave danger to independence, so obviously that one recognises that one has to do something about it. What does one do? One does not change the provisions so as to prevent that danger arising but waves a wand and puts in a clause which simply says that that danger shall not arise.
It is not hard to postulate how the danger may arise. One of the key objectives which justices' clerks will have, and upon which a proportion of their pay will no doubt depend, is to maximise the throughput of cases in their court. That will also be the objective of their boss, the chief justices' clerk, who will also be trying to speed cases through all the courts in his committee area. How, in such circumstances, are litigants to have confidence that applications for adjournments will be considered independently and on their own merits? Similarly, another of the objectives will be the economic use of resources. Justices' clerks, and more especially their bosses the chief justices' clerks, will be at pains to economise. How are litigants to have confidence that applications for legal aid will be considered independently and on their merits in such circumstances?
That pressure, or the fear or suspicion of pressure, could not arise if the new officer were a manager pure and simple, a chief executive, since there would be no possibility of his attempting to influence the way in which justices' clerks apply their professional expertise, any more than there is of a health service manager trying to interfere in the clinical judgment of an independent doctor. He would truly be and should be styled a chief executive to the area committee. But again, his terms of employment should be a matter for the employing committee, not the Lord Chancellor on the Woolsack.
The reservations that I have expressed are not peculiar to me. The magistrates themselves are seriously concerned that the proposals will prejudice the independence of their courts. The noble and learned Lord on the Woolsack must be well aware of that since their views were very vigorously expressed to him when he spoke to the Magistrates' Association on 9th October. I remind the House that, as has already been mentioned by the noble Lord, Lord McIntosh, the magistrates cope, without being paid, with 97 per cent. of criminal cases in this country. I am surprised that the 478 Lord Chancellor should embark upon a programme of such radical change to their court system despite their objections, and continue to pursue it.
It is a truism that justice should be seen to be done as well as be done. It follows from this that the arrangements we make for justice to be administered must serve not only the requirements of justice itself but also the way the public perceive its institutions and those who work in them. We shall fail in our duty if we allow this Bill to pass in a way which allows the impression to be given that the advice magistrates receive or the judicial decisions taken by their clerks are no longer a matter of their own discretion, but are instead liable to influence by the executive, either through the terms under which they are employed or because they may feel under pressure from a superior officer as to the way in which they exercise them.
I fear that I have detained your Lordships too long in a consideration of only two or three clauses in what is a lengthy and detailed Bill covering two very important topics. But I believe the questions that I have raised to be of vital importance. I was encouraged to note that the Lord Chancellor said on the radio this morning that he would approach today's debate with an open mind. I hope that he will bring forward amendments which address the anxieties that I have raised before we come to consider these clauses in Committee. If he does not I shall feel constrained to oppose those clauses.
§ 4.39 p.m.
§ Viscount Whitelaw
My Lords, I am always glad to have a judge on my side. On this occasion, the Lord Chief Justice opted for the magistrates' courts part of the Bill. I shall take the opportunity—I hope in the interests of all the future speakers and indeed of the House as a whole—to opt out of the magistrates' courts side, in the opposite case from him, and to go straight to the police legislation.
I believe that the Government are wise to introduce a police Bill at the same time as a criminal justice Bill when revising legislation for the protection of our citizens. I also welcome the introduction of this Bill into your Lordships' House, which is well equipped to consider and promote the delicate balance required in the political handling of the police service. In fact, I do not know where in Parliament it could be done better than in this House. That is why I have great faith in this House tackling a particularly difficult Bill with the very difficult problems of handling in regard to the political situation.
I am also very grateful to my noble and learned friend the Lord Chancellor. I am pleased that he will take part in the whole of the Bill because I believe it can equally be of immense importance when we come to look at some of the most difficult parts of the Bill. I thank him very much for the interest he has taken in it.
Four years as Home Secretary and three years before that as Opposition spokesman, when the noble Lords, Lord Jenkins of Hillhead and Lord Merlyn-Rees, were Home Secretaries, have convinced me that understanding between the political parties on police matters is of great value, and that disagreements can be damaging to sensible policing. I also believe that political agreement 479 between parties on the principles of policing has been a crucial factor in the high standing of the British police service over the years.
Of course, there should be no complacency about our police service when, like all other nations in the world, we are faced with a very serious crime problem—the more serious because its character is constantly changing. In these circumstances our response as a nation should be to give our policemen and policewomen every encouragement and the necessary backing to adapt themselves to new and unexpected challenges.
It really goes without saying that they have a most difficult and, indeed, often dangerous task. Of course, policemen and policewomen—like the rest of us—make mistakes, sometimes inexcusable mistakes. No doubt, too, on occasions they are not as effective as they should be in dealing with criminal activities. But I do wish, on the other hand, that their critics would give them credit when it is due. I shall give one example from my experience as Home Secretary. The riots in 1981, particularly those in Brixton and Liverpool, faced the police with a major new problem. They found themselves with two contradictory roles. At one time they were the traditional friendly and helpful British bobby. At the next they were facing street battles which, it was clear, were very dangerous. It was also absolutely clear to me that they had to be trained and equipped for their task with helmets and riot gear.
There were those in the police service, and certainly in the public, who said that the police would not be able to carry out such contradictory roles. But in the years following they have succeeded. That has been of great importance to our society as a whole. The capability of being a complete police force, doing all those roles together—so rare in the world—has been of great value and great importance; and, indeed, of great credit to our policemen and policewomen. I have, therefore, considerable confidence in our policemen and policewomen and their leadership.
The purpose of the Bill must be to provide them with an administration and a legislative framework which will help them to improve their effectiveness. Therefore, at this stage, in the interests of the very many speakers to follow me, I intend to concentrate briefly on two of the major issues involved. There are many others and they can be discussed, of course, in the Committee stage. These that I wish to discuss concern the future structure of the police authorities in each police area.
The most important of those—indeed, the most controversial—is set out starkly in paragraph 7 of Schedule 2 to the Bill, which states that:The Secretary of State shall appoint one member of each police authority to be its chairman".At first sight, this proposal appears to upset the political balance which has been so carefully preserved over the years. The chairman will surely be regarded as the Home Secretary's man, particularly in moments of stress in policing operations. This arrangement would surely run the risk of involving the Home Secretary directly, as other speakers have said, in police 480 operations and that, if I may say so, has always been carefully avoided in the past and, I pray, will always be carefully avoided in the future.
At the very least, there would be accusations of interference in the operational independence of chief constables. Such controversy would surely be undesirable on politically sensitive occasions and very dangerous indeed to our policing service. I am delighted, if I may say so, to see that I am followed by the noble Lord, Lord Callaghan, who, after all, outstripped me for so long when he was Home Secretary as to make me seem almost a very young small boy. But I am very grateful indeed to see him here to give his view of the experience of Home Secretaries. I think that is important. We may, of course, as a body be wrong. We may as a body be silly, but we have kept the tradition of our country in police services over many years which I think should be recognised as being right. All of us have done so. That is why I fear so much a controversy which would be built up on politically sensitive occasions.
I am glad, therefore, that it was announced in Parliament yesterday that my right honourable friend the Home Secretary has appreciated this danger. The new proposal of selection panels will no doubt be dealt with and discussed at the Committee stage, but at present the complete and final power of the appointment of the chairman of the police authority still rests, and apparently will continue to rest, with the Home Secretary.
Therefore, I am sure that my noble friend the Minister of State will understand if I put to him a question. I ask him please to explain the reason for this major change in the whole history of policing in this country. Why is the Home Secretary—who, with his announcement yesterday, has now recognised the danger—still determined to seek that power, with all the risks which his predecessors have deliberately and carefully avoided over all these years? I really think we are entitled, as we go through the Bill. to have a clear and plain answer to that.
After all, Home Secretaries do not have to seek trouble, they get it quite easily themselves. It cannot be helped. Therefore, the reason cannot be that this is being done in order to give the Home Secretary more trouble. That I cannot believe. I think it is an important factor and I hope that my noble friend will be able to give us the reason why. It is very hard, after one has left the job, because one does not know everything about it. However, one is entitled sometimes to ask, "I wonder why?" That is what I am asking today. I should like to know from the Home Secretary, or anyone else in the Government who will tell me, why they really want to make what I consider to be a very dangerous move indeed.
The changes proposed for the membership of the new police authorities also need to be questioned. Some may be right, but they certainly need to be questioned. Is it really wise substantially to reduce their size in every case? Is it really wise to replace local authority members with the Home Secretary's nominees? Will the 481 nominees really know more about local policing and more about their areas than the people from local authorities already do? It is extremely doubtful.
This morning I looked very carefully through the list of all the tasks to be performed if one is to be one of those splendid gentlemen. Well, they are not very different from what everybody else has to do in all areas of their lives. So I am not quite sure what the difference is. However, is it wise? Is it wise particularly at a time when community policing is being rightly stressed? Is there not a danger that local councils would tend to lose interest in their police forces? That would certainly be a loss. I know from experience that many of those councils are proud of their police and are closely interested in their local force. Going round the country as Home Secretary I found—and I say this truthfully—many, of all political parties, who had that pride in their police service and in their local force. I found that very striking indeed. It existed in some very surprising places, and I admired them all the more for that.
Is there not also the fear of a loss? I know that those councils will be sad and very upset at the idea. How will the balance work in those police authorities which have several councils in their areas, such as Greater Manchester and Merseyside—two very important police areas. Noble Lords will not be surprised to know that I had very considerable knowledge of them at one time in my life. Does it really make sense to reduce all police authorities to the same size, irrespective of some of their areas of responsibility? I find it hard to believe so.
I have sought to explain my anxiety about two major changes in this Bill. Far be it for me to be difficult and tiresome about a measure proposed by the party that I support; but when I find that I am anxious and worried it must surely be my duty to speak out firmly, and that I am doing.
Of course there is much more to be discussed. We are very lucky in this House to have the guidance of my noble friend Lord Ferrers, who commands such wide respect. That is of enormous importance.
I believe that this Bill is a most important measure, which, carefully considered and modified—and, inevitably, amended—can be of great value to the British police service in the future. I hope that it will be remembered that it is also a Bill for the police. In my judgment it should command broad all-party support when it leaves Parliament and receives its Royal Assent. That will be in the very best interests of our police service in future.
§ 4.53 p.m.
§ Lord Callaghan of Cardiff
My Lords, we have listened to a number of remarkable speeches. I hope that the Government Front Bench has taken note of some of the remarks that have been made. It is so long since I was Home Secretary that I must say to the noble Viscount, Lord Whitelaw, that I claim no special knowledge or authority in what I have to say. Over a quarter of a century conditions have changed very much indeed. But I cannot be quite so kind to the Government 482 as he was in expressing dissent. He seemed to imply that perhaps they had brought this Bill before this House out of some measure of wisdom that affected them, knowing the greater knowledge and experience that would enable us to review the Bill. If so, I can only say that they must have fallen into virtue by accident. I cannot believe that, by design, they brought in a Bill which they expected to be thoroughly torn apart—as indeed it has been this afternoon.
The noble Viscount, Lord Whitelaw, gave his explanation. I must say that mine is a rather different one. We have had so much second-rate legislation during this Parliament which has had to be corrected in such a remarkable way that I believe we are suffering from a wilful and ambitious group of young Ministers who flit across the political scene from department to department, supping the honey as they go and moving on quickly before their misdeeds catch them out. I am bound to say that I think that is particularly true of the Home Secretary in the Bill that has been produced here today.
I say to noble Lords that if they take up what has been said in the very remarkable speeches that we have heard on all sides, then we have a function which can be of great use—not to the Government alone, who are not my concern, but to the country.
Normally when a Bill of this nature and this constitutional importance comes before us, it comes with the sanction of the Commons. When it comes with that sanction there is a natural reluctance on the part of noble Lords to make substantial alterations unless they feel absolutely outraged by what is taking place or feel that the other place should be asked to think again. We are not under that restraint on this occasion. Whether out of wisdom or accident, the Government have sent the Bill to us; this is the first House to look at it. Therefore we need be under no restraint in what we put forward as amendments, and in carrying them if we believe that they will improve the quality of this legislation. Then it will be for another place to consider whether this is the way to proceed. I believe that it will strengthen another place, where there is a great deal of common sense which is unfortunately so often subordinated to the needs of the Whips and the majority of the Government.
If the Bill were presented to Members of the other place in the form in which it might emerge from this House, they would be able to say to the Whips: "Look, there is no point so far as we are concerned in trying to restore the Bill to how it stood when it went into their Lordships' House". We therefore have an opportunity to play a very important part, not an obstructive part, but a very constructive one, in putting this Bill into a shape in which it will command maximum support. I echo entirely the view of the noble Viscount, Lord Whitelaw, that, as far as is possible, it should command all-party support. The essence of the legal system of this country, and of the police authorities, should be of such a character that neither party should want to upset it in a way that would create political disturbances. It has been one of the great supports of this country.
Perhaps I may tell a little personal story which I hope I have not mentioned before. It concerns the noble and learned Lord, Lord Hailsham, and I hope that he will not 483 object to it. On the day that we were defeated in 1970 and it was possible that he might have become Home Secretary while I was the outgoing Home Secretary, the noble and learned Lord rang me up. He said to me: "If I should he appointed Home Secretary, what points do you think I ought to look for? What is it that I ought to lake account of particularly?". I endeavoured to be as helpful as I could to him on that occasion—although it was unnecessary because he occupied a much more distinguished post—
§ Lord Callaghan of Cardiff
My Lords, I thought then, and I repeat it now, that it was of significance that on a matter of law and order of this kind the outgoing and incoming Ministers were able to communicate in that way. I very much regret that during the past decade, for reasons into which I need not go, those kinds of discussions and that kind of relationship were cut off. However, we are now out of that particular area.
It is for that reason that I question, as others have done, the proposals to alter the constitution and make-up of the police authorities and the appointment by the Home Secretary of a chairman. It has met with a round of opposition from more quarters than I can remember—quarters which rarely come into conflict with the Government. I wonder whether the Government are made up of sadists or masochists, or perhaps both: sadists because they continue to offend as many of their own supporters as they can; masochists because they insist on bringing forward legislation which will not be acceptable.
I echo what was said by the noble Viscount, Lord Whitelaw. What is the point, as one police authority has said to me in one of the many letters I have received, of requiring a police authority which at the moment has 30 members—which is performing satisfactorily, which has a broad representation of the community it represents, about which there has been no complaint, and which wishes to continue as it is—to reduce its numerical membership by nearly one half to 16, so that in this case a very large county will have only eight councillors to represent a population of 1.5 million? Can we have some explanation as to what has led the Government to fit police authorities into this procrustean bed where everyone must be of the same length whether they fit it or not?
What is the Government's view? What has gone so wrong that they must transfer the power to appoint the chairman of a police authority from the members of that authority to the Home Secretary? How will it reduce crime? The Government have produced no evidence. We are entitled to he sceptical until we hear much better reasons than we have heard, with respect to the noble and learned Lord the Lord Chancellor, so far. I say to him and to the noble Earl, Lord Ferrers, that police authorities are totally disbelieving in this matter.
According to the Bill, the cost of implementing these changes will be £21 million. It would be far better to spend that money on putting more constables on the beat. Ministers have become past masters in the art of declaiming that their changes are intended to put more 484 power into the hands of local people. But when they are examined carefully, so often we see, as in this case, that the result is to centralise more power in their own hands. We have seen this on more than one occasion. The Home Secretary was one of the master minds of the poll tax. In his first White Paper he said that he did not propose to establish any formal procedure for the appointment of the chairmen of committees. It was to be left entirely to him. That is contained in paragraph 4.27 of the White Paper. I looked it up myself this morning.
The White Paper stated quite boldly that the Home Secretary would appoint these additional members. But yesterday there was a change. Yesterday, the day before this debate was to take place, at the first sound of gunfire, the Home Secretary took a step backwards. I must say that that should be a great encouragement to the noble Viscount, Lord Whitelaw, and to the Lord Chief Justice in calling for further amendments to be brought forward before we reach the Committee stage of the Bill. It will certainly make the task of Ministers and of the very popular noble Earl, Lord Ferrers, much easier if the Government listen to what has been said not only by others outside but by those in the House this afternoon.
Perhaps I may ask one or two questions as to the way in which the Bill stands after the retreat—the partial retreat—by the Home Secretary yesterday afternoon. We are told that local recruitment consultants and Lords Lieutenant are to prepare short lists and submit them to the Home Secretary. The Home Secretary will then appoint. I have one question. In the light of our experience in the case of hospital trusts and other bodies, is his choice restricted to the names on the short list? In the hospital world we have seen that names submitted for appointment have been disregarded on occasion. He is supposed to choose someone from the short list. But will his nominees be restricted to that? I think that we should have an answer —perhaps not today but certainly when we get to the Committee stage.
The people who are to be appointed as chairmen are to act as customers of the police. I object to this word "customers". Again it is based on the idea that there is no such thing as public service in this country. It is a phrase that the Government might well drop as quickly as possible. Surely councillors and magistrates on police authorities at the present time represent very fully the ordinary members of the public. The Home Secretary wishes his new appointments —the five so-called independent members who are to be appointed—to have discussion and consultation with the public. What machinery will be required and needed for that? How are these five independent members to set up their own consultative machinery? It is already done by councillors and magistrates. They have discussions with members of the public and with their constituents every day of the week. Despite what the White Paper says, I think it unlikely that they will be drawn from all the community.
The Home Secretary emphasises in paragraph 4.22 of the White Paper that they will be drawn from those with financial or management experience. I do not quite see that that covers the whole range of human experience or knowledge. I have every respect for Lords Lieutenant, 485 many of whom I know. They do a splendid job. They meet a circle of local people. Of that there is no doubt. But I am not absolutely sure that they have the same credentials for knowing what happens on the housing estates as do the local councillors. They certainly live in areas usually that are far removed from the housing estates. I say that without any disparagement. It happens to be the fact. But it is in the housing estates and in the industrial streets that the largest amount of local crime takes place. That is where the experience is to be found, and that is where it will be most useful.
I very much echo what has already been said that for the Secretary of State to have the power to select the chairman, as he will do, of this local body and pay him a salary will undoubtedly sever the local ties, whether the chairman lives in the area or not. It will seem to transfer the allegiance of such a chairman from the local community to the Home Secretary. It will be to his patronage that the chairman will be regarded as looking, whether he does so or not.
We have already had complaints about hospital chairmen. It would be a great misfortune if the same complaints were made about the appointment of the chairmen of these authorities. If under a Conservative Government Conservative chairmen had been appointed, there would be a feeling of revenge—I would hope that it would not take place—and of "We'll out them all when we get into power and replace them by Labour chairmen". Where shall we all be then? I say to Ministers with all seriousness: it must not happen. We must not allow it to happen. I urge very strongly that the noble and learned Lord the Lord Chancellor and Ministers should listen very carefully to the great strength of feeling that is founded not on sentiment but on what is best for the future welfare and government of our people and their respect for law and order.
I would ask one question about Clauses 14, 15, 30, 47 and many others. Perhaps the noble Earl, Lord Ferrers, can give me an answer. These clauses concern the conduct and efficiency of police officers, police discipline, fines on constables, reprimands and dismissal. To what extent have they been discussed and agreed with the three police organisations? It would be very unfortunate if they were to come before the House without there being either a large measure of agreement or, alternatively, without some explanation being given as to why there is no agreement on this matter.
I was surprised to hear on the radio this morning, when the noble and learned Lord the Lord Chancellor was giving his views, Mr. Freen, chairman of the Justices' Clerks' Society, say that he could recall examples of pressure being brought to bear on justices' clerks by civil servants—presumably civil servants at the Home Office—about the conduct of court cases during the miners' strike. It was a most serious allegation to make. I do not know whether it was true, but it was made by the chairman of the Justices' Clerks' Society. It means that we must examine very carefully the strength of Clause 71 on this particular matter. I say to the noble and learned Lord the Lord Chancellor that I hope that it is not an example of the Executive encroaching on the judiciary. I say to him in all 486 truthfulness that it could not have happened a quarter of a century ago. There would have been such a roar of protest if that had happened. All of us who were Home Secretaries, certainly in the 1960s and 1970s, were extremely careful in the way in which we, as Home Secretaries, spoke about the functions of the magistrates' courts and the higher courts. I say to the Government that we shall need to look very carefully at Clauses 70 and 71.
In conclusion, it seems to me that Ministers have become too comfortable and too used to their offices. They have become careless in the use of power and their patronage and often unreasoning in their ambitions. The Lord Chancellor is one of the most reasonable of men, but this morning, when he was questioned on the radio about the case for altering the conditions of service of justices' clerks and placing them on short-term contracts, I found him less than totally convincing. I did not understand what the reasons were, having listened to him. Therefore, I trust that he, as a Member of the Cabinet, will fight very hard to ensure that when this Bill comes to Committee there will be amendments tabled which will meet not only some of the anxieties which have been expressed, but others which will no doubt arise. If he is convinced, as I hope he is, then he may have to battle very hard in Cabinet to make changes against a wilful and ambitious Home Secretary. I hope that he will fight that battle on our behalf.
§ 5.12 p.m.
§ Lord Lester of Herne Hill
My Lords, the Government keep telling the public that they intend to get back to basics. That is what I suggest we should do in considering this Bill. We should examine the large powers which the Home Secretary and the noble and learned Lord the Lord Chancellor seek to be given by Parliament to see whether those ministerial powers threaten to infringe constitutional basics—that is, the constitutional principles and traditions on which the separation of powers between central and local government and the police and between central government and the local magistrates, have traditionally been based. As the noble Viscount, Lord Whitelaw, and the noble Lord, Lord Callaghan of Cardiff, have just observed, we should also consider whether the Government can show any pressing need for such a radical and unprecedented extension of Whitehall direction and control.
In the absence of any supreme written constitutional law, the main safeguard against the enactment of legislation infringing the basics of the British constitution is a willingness by Parliament to exercise its sovereign powers by withholding consent from unconstitutional measures.
I submit that, if enacted in its present form, this Bill will indeed threaten to infringe our basic constitutional principles and traditions in its adverse effect on two vital public interests—first, democratically accountable local community policing and, secondly, the independence of the magistrates' courts in administering justice. Those constitutional principles protect us all, not in the Government's words as "customers" but as citizens of this country.
487 The preservation of the peace is a primary function of any state. In this country the administration of the police has always been on a local basis. The office of constable is ancient, older than that of justice of the peace. It was originally associated with the village. The powers of a constable are exercised by virtue of the office and not on the responsibility of anyone else, nor as a delegate or agent of the state or of any Minister. The status of police officers derives from their special constitutional position. They occupy a civil office of trust enshrined almost three centuries ago in the Act of Settlement. The independence of chief constables is of very great constitutional importance. In carrying out their duty of enforcing the law they have wide discretionary powers with which the courts will not normally interfere.
The close link with local government is also essential if the police are to serve the particular needs of their local communities and to retain the confidence of the public in the areas where they operate. It is that vital local link, together with the tripartite relationship between Home Secretary, chief constables and local police authorities, which ensures that the police are democratically accountable to the police authorities of the communities which they serve rather than being a national police force under the political direction and control of the Home Secretary and his civil servants.
As my noble friend Lord Harris of Greenwich has so powerfully explained, together with the other speeches which your Lordships have heard already, these historic constitutional principles and traditions are violated by this Bill. The former chief constable of Devon and Cornwall, Mr. John Alderson, points out in an important violations paper published today by Charter 88 that, for the first time since Cromwell's hated major-generals divided the realm into 12 police districts, taxed the locals to pay for police services and preached their back-to-basics moral creed, England and Wales are to have a minister of police at the Home Office able to control and direct police authorities and chief constables.
Mr. Alderson rightly recalls the wise words of a great Conservative Home Secretary, Rab Butler, when, in 1962, he faced the same range of problems as does the present Home Secretary. Rab Butler said:I am quite convinced that it would be wrong for one man or for one government to be in charge directly of the whole police of this country. Our constitution is based on checks and balances. This has kept our liberty throughout the generations".I am sure that the two very distinguished former Home Secretaries who have already spoken from opposite sides of the House and my noble friend Lord Jenkins of Hillhead would fully endorse those wise words. Would the present Home Secretary do so? I doubt it.
It is difficult to believe that these proposals would have been introduced in the teeth of such opposition from every level of the police service and from across local government had the Conservative Party not lost control in 36 out of 41 local police authorities. They are driven by a combination of party politics, bureaucratic centralism and Treasury accountancy. They will not improve the morale of the police service or police efficiency or public confidence in policing. They do not deserve parliamentary support.
488 I am sorry to say that Part IV of the Bill, dealing with magistrates' courts, is equally objectionable in constitutional terms. The experience which most people have of our system of criminal justice is in the magistrates' courts. Above all, they are the people's courts and, like the office of constable, justice of the peace is an office of great antiquity with proud, historic traditions. The justices' clerks are vital public officers exercising judicial as well as administrative functions. They hold office during the pleasure of the appointing magistrates' committee and they may not be dismissed without the consent of the magistrates of their division and with the Lord Chancellor's approval.
Part IV of the Bill threatens the practical, if not the formal, independence of the magistrates' courts and the justices' clerks. There is, of course, no threat of government interference with the judicial process in individual cases. Happily, that would be quite unthinkable in this country; and Clause 71 puts the matter beyond doubt. The threat is more subtle. It was warned about by the noble and learned Lord, Lord Browne-Wilkinson, in a prophetic lecture on the independence of the judiciary delivered six years ago. The noble and learned Lord explained that he saw an insidious threat to the independence of the legal system, as opposed to the judges who operate it. The threat arises, as he pointed out, by reason of the Executive's control of finance and administration. The noble and learned Lord referred to the reorganisation of the court system, which has produced a very substantial shift from the judges to the civil servants in the Lord Chancellor's Department, some of whose officials perceive that department's role as being far wider than is consistent with any concept of judicial independence. He explained that it is the lack of any clear demarcation between the functions to be performed by the judiciary and the functions to be performed by the administrators which has given rise to stresses.
The noble and learned Lord also referred to the change of governmental policies towards public spending. The Treasury is no longer concerned simply with fixing the amount that a department receives from public funds. It supervises and monitors how each department spends its money. Departments are under a duty to show "value for money".
That system is applied to the Lord Chancellor's Department in just the same way as to any other department. But the requirements of judicial independence make the Lord Chancellor's Department wholly different from other departments of state. It is not for the Executive alone to determine whether or not a particular judicial procedure provides "value for money". In the noble and learned Lord's memorable words:Justice is not capable of being measured out by computer".Nobody, he said, is trying to erode the independence of the legal system; it is happening unperceived and unappreciated.
In a minor way, I have had personal experience, sitting as a Recorder and as a Deputy High Court judge, of that insidious erosion. One is aware, as a judge, of subtle administrative pressure to deal with criminal and civil cases with despatch, to increase the disposal rate and to reduce the backlog. We have not yet reached the 489 stage where staff in the High Court or the Crown Courts receive a bonus for the speed with which cases are dealt, but I wonder what may happen in future.
Part IV of the Bill involves a major erosion in response to Treasury demands to show value for money. It creates a new layer of unnecessary bureaucracy and seeks large powers of administrative direction for the Lord Chancellor's Department over magistrates' courts' committees and over justices' clerks. Of course the noble and learned Lord the Lord Chancellor should have some control because of the need to account to Parliament for public expenditure. But the powers that he seeks in Part IV are quite excessive.
In a well-informed article in today's Times, Paula Davies, a very experienced chairman of an Inner London family proceedings court, points out that justice is not just another product and that a legal service cannot be measured like a manufactured product. The Government seek, as we have heard, to make all justices' clerks work under fixed term contracts of employment, incorporating performance standards and performance-related pay. The Lord Chancellor is to be given default powers if any service underperforms without sufficient remedial action.
What is especially worrying, as the article indicates, is that the performance of the magistrates' courts is to be used in calculations for cash limits for magistrates' courts committees. Paula Davies has visions of magistrates throughputting hundreds of television licence cases to get "brownie points" in one court while another court struggles through a complicated lengthy committal with one defendant.
I have long been in favour of the creation of a robustly independent judicial and legal services commission (of the kind contained in many Commonwealth constitutions) to act as a bulwark against Executive erosion of judicial and professional independence. This Bill shows the real need for greater protection of the independence of the legal system. Meanwhile, the best protection is the willingness of our Lord Chief Justice and his senior judicial colleagues to stand up and be counted and the critical opinion of noble Lords on all sides of this House of this measure.
§ 5.27 p.m.
§ Lord Carr of Hadley
My Lords, it must be something of a bore to your Lordships to have to suffer and to listen to no less than a third former Home Secretary among the first eight speakers in this debate. Let me hasten to assure your Lordships that I shall concentrate entirely on police matters and be as brief as I can. I can be helped in being brief by saying at the outset how strongly I agree with and support what my noble friend Lord Whitelaw said a little while ago. I shall try to reinforce what he said rather than repeat it. Perhaps being naturally somewhat less statesmanlike than my noble friend, I shall reinforce some of his points rather more bluntly than he originally put them.
However, to begin with I wish to say something which may appear to be in favour of the Bill because I feel that it needs to be said. As far as the police are concerned I can see in the Bill many proposals that will 490 improve the efficiency of policing in this country and which I should like to support provided—and only provided—that they can be set in the right framework of power. What is wrong is the framework of power in which it is proposed that they be set at the moment.
Good and effective policing needs efficiency, but it needs much more than efficiency. To be truly effective, good policing must carry a natural authority with the people whom it is serving. My main concern is with the police authorities, but I shall return to them. At this stage I should say that I welcome what was said yesterday by the Home Secretary and repeated in a Written Answer today by my noble friend Lord Ferrers. I welcome it because it shows that the Government have heard what has been feared and that they are prepared to listen. However, I shall explain later why I think that they should listen even more carefully and go rather further.
To begin at the beginning, the police must be firmly based within the community. They must be "our" police rather than "the" police. To the majority of residents, they must appear to be "one of us" and not "one of them". They must be the people's police, not the Government's police. The police must never be politicised. We must never forget that a truly non-political police force is one of the most essential pillars of a free democracy. So far, we have achieved that in Britain not solely but most importantly by refusing to have a national police force.
When I became Home Secretary in 1972 we were completing a process of reducing the number of police authorities by a process of mergers throughout the country. A good many people were fearful about that. I was convinced that it was necessary and, on the whole, I think that we got it about right. I am glad that that process is not being taken further in this Bill and that the police authorities are being left as they are. However, I would agree to this extent with the noble Lord, Lord McIntosh, whom I see frowning at me, that at a later time we shall need to inquire carefully into the way in which the power that is being taken in this Bill further to merge police authorities will be initiated and activated. I shall need quite a bit of assurance—and perhaps more than verbal assurance—on that point.
We will still depend—I am glad of this—largely on local police control as the basis of keeping the police non-politicised and keeping them in touch with the varying needs and wishes of differing local communities and areas. That is good in principle but—I wish to emphasise this strongly—the control of each force must indeed be truly local. This is where this Bill in its present form raises grave fears in my mind as well as in the minds of many other people.
Let me analyse briefly the new police authorities. Personally, I approve of them provided we can get one key area right. I welcome an attempt to reduce their size. Anyone who has served in a Cabinet or on a board of directors of a large company knows that 30 people constitute too big a body in which to have meaningful, good quality, deliberative consultation. I believe that that figure is too high and therefore I am glad to see a reduction. To put it mildly, however, I am doubtful whether a single fixed figure of 16 is appropriate. It may 491 be good to aim at that figure where it can be reasonably achieved, but I believe there must be flexibility to go above that in certain circumstances, particularly perhaps, but not only, in those police areas where there is a multiplicity of local authorities. In those areas I believe that without an enlargement of the figure I have mentioned, one may be in difficulty.
I am not so fussed—as many traditionalists seem to be—about reducing the percentage of seats occupied by local authority representatives. If we were to start from scratch, and we were to have an assurance that 50 per cent. of the members of every police authority were local councillors, that would seem to be a pretty substantial representation of the local authority in the area. I am not persuaded that 50 per cent. is necessarily too low a figure, but again one has to think of the total numbers available in certain areas. I believe the introduction of independent members could be helpful. Like the noble Lord, Lord Callaghan, I believe there are skills other than business skills that are of value in the world. I have spent quite some time as a manager in industry myself, but I welcome the injection of skills other than business skills even into business. However, business skills are needed too.
The people we are discussing must be genuinely local people and genuinely locally appointed and locally based. That matter is particularly important as police authorities are going to have more responsibility than they have been accustomed to having in the past. That increases the sensitivity of the relationship between the authority, and particularly the chairman of the authority, and the chief constable. As has already been said, I believe that is the single most sensitive point in the whole of these proposals, and one which will need close attention.
I think on the whole that if, but only if, we can get this matter of the choice and the appointment of the independent members, and above all their chairman, on to a sound basis, I do not find anything to complain about—on the whole I find something to welcome—in the general structure proposed. However, the key to this matter is the appointment of the independent members. I find the present proposals totally unacceptable. If they cannot be changed fundamentally they will be a stumbling block to my giving my support to any part of the Bill. If the proposals can be changed—I am encouraged by what has happened in the past 24 hours to believe that the Government may have an open ear on this matter—I believe we shall make some real progress. I repeat that I was encouraged by the Home Secretary's statement in a Written Answer yesterday which was repeated by my noble friend Lord Ferrers in this House today.
What has been achieved is a beginning, which I warmly welcome, but to my mind it is by no means the end of the process of adaptation of these proposals which must be made. We must look at this most important matter as a challenge to our ingenuity and determination. If I were still Home Secretary today I would not accept the offer of powers of this kind. I would resign rather than accept them as I believe they are totally inappropriate for any Home Secretary to hold. I believe they must be changed. We shall have to 492 engage in a great deal of thought and ingenuity to change them. We must have the changes not just in terms of assurances. They must be placed on the face of the Bill. I urge the Government to table some amendments of their own in this area before we start the Committee stage of the Bill in this House. I, and many others, would also welcome amendments to reduce the degree of centralisation which many speakers have already referred to, not just as regards the police but in many other areas too.
I end by doing something which I suspect is rather old-fashioned nowadays However, I have been encouraged by what the noble Lord, Lord Callaghan, and my noble friend Lord Whitelaw have said. I end by appealing to the Government, and also to the Opposition parties, to make a strong effort to reach consensus on this Bill before it leaves your Lordships' House. I hope it was conscious wisdom and not just good luck—if it was good luck, I welcome it—that this Bill is starting in your Lordships' House. That is a most fortunate matter. If we can send it to another place having achieved a real consensus on it here we shall do a great service to the future good of policing in this country. I believe the Opposition spokesmen went a little overboard in some of their opposition, but let me say in the same breath that I believe the Government have gone overboard in some of their proposals. I make an appeal to both sides to come back on board, get on the same deck and stick on the same deck until they have reached a consensus of agreement.
§ 5.36 p.m.
§ Lord Knights
My Lords, this, I believe, could well be an extremely sad day in the history of policing in this country. As I see it, if this Bill is enacted in its present form, this debate will mark the end of a system of policing which has existed here for something like l400 years or so. As your Lordships will be well aware, since Anglo-Saxon days at least the maintenance of law and order and the preservation of the peace have been regarded in this country as matters for local communities. This philosophy was confirmed by Parliament when the first paid professional police forces were instituted in the early Victorian years and endorsed by the detailed inquiries which preceded the great police Acts of 1920 and 1964.
The concern of the Crown in these matters has beer in the main to see that the local authorities maintained efficient forces in their areas, rather than to exercise direct control over them. As the noble Lord, Lord Harris of Greenwich, said, it is a system which has been admired and envied across the world. Indeed I understand that at this present moment representatives from the newly-liberated countries of Eastern Europe are seeking assistance and advice in this country on how they should remodel their own law enforcement systems.
This approach has enabled central government and local authorities to work together, generally reasonably amicably, as partners to provide the resources and facilities necessary for an efficient police service. As regards the police themselves, they were described by the 1920 Desborough Committee as acting, 493not as agents of Government, exercising powers derived from that fact, but as citizens representing the rest of the community, their powers resting on the support, both moral and physical, of their fellow citizens".This position has enabled them to be completely impartial in the performance of their duties, and manifestly to be seen to be so. I believe that it is this fact, taken together with the ability of the chief constable to exercise an entirely independent judgment in operational matters, and the part played by local authorities, which has legitimised the police in the eyes of the public over the years. Much of this philosophy is now to be changed, if not totally removed.
In examining the Government's proposals as set out in the Bill, which I submit go directly to the roots of our present system, I am sure your Lordships will agree that it will also be essential to consider the effect the changes could have not only on the ability of the police to continue to exercise their responsibilities with the consent and support of the public, which is so vital to their effectiveness, but also on the checks and balances currently in place to prevent any abuse of power on the part of any one particular member of the organisation.
The fact that the system has existed for so long is no argument for saying there is no room for change. Indeed, some of the provisions in the White Paper and in the Bill are very much to be welcomed, but if fundamental reform is to be undertaken I am sure the House is entitled to know what is thought to have gone wrong with the present system, and why it is felt necessary to so disturb the existing arrangements.
I have to say that I do not find the reasons set out in Chapter 2 of last year's White Paper to be at all persuasive. While to some extent it may be true, as paragraph 2.22 of the White Paper says, thatOverlapping responsibilities, unnecessary controls, and confused lines of accountability frustrate the ability of the police service to meet the needs of the public",I believe that could be remedied without the root-and-branch reform in the constitutional position of the police which is now being advocated.
A more detailed and a little more persuasive argument for change was included in a Report on Practical Police Co-operation in the European Community, which was presented to Government by the Home Affairs Committee of another place in 1990. Their recommendation was:That the Government should now publish a consultation document on the organisation, funding and accountability of the British police. It should seek the advice of those with policing, management, finance and civil liberties expertise and then come forward with White Paper proposals for a police structure for Britain which will suit the needs of the 21st century".Last year's White Paper, although it borrowed the phrase, "Police Service for the 21st Century", and this Bill are clearly not a response to that call. Neither addresses the problems identified by the Select Committee. It is a pity that the procedure that they recommended was not followed in their preparation, which might well have led to a much more acceptable Bill.
So what has prompted the current proposals? I am left wondering whether the answer is not really to be 494 found in paragraph 2.14 of the White Paper where it comments, when dealing with the suggested defects of the present system:The Home Secretary is expected to answer to Parliament for a service for which he has no direct responsibility".One could argue that that may not be strictly true, but whether it is or not, one has to acknowledge that law and order and the problems of rising crime now have a much higher political profile in the light of the demands they make on the country's resources and the effect they have on the electorate's view of the Government, who are being called politically and publicly to account for them to a much greater extent than we have known before.
It follows that it must be very frustrating for a Home Secretary to be faced with a situation such as that in Derbyshire, when a recalcitrant county council denies adequate funds to its police committee. But in seeking—as I believe this Bill does—to reverse the situation and positively to give direct responsibility for the police to the Secretary of State, in that sense the Bill goes much too far.
In particular, in common with previous speakers, I find Clause 2 dealing with the new police authorities extremely worrying. It will remove completely from local authorities any responsibility for the maintenance of law and order in their areas, and this at a time when the Government's crime reduction strategy concentrates on the part which should and can be played by local communities. Local authorities will merely receive a bill once a year from a quango for expenditure which in general they will have played no part in agreeing.
I believe the new police authorities, despite what the Bill may have to say about consultation, will be as remote from the communities in their own areas as are the members of the regional health authorities, and the extent to which they will be able to represent local people hardly bears examination.
Given the Home Secretary's powers to issue directions and to produce prescribed codes of practice for them to follow, they will inevitably be seen as representing the Government much more than local people, and as being motivated by political considerations rather than by the needs and wishes of their communities, of the local people whom they are said to represent.
My second worry is the position of the chief constable in all this. His current constitutional position was described by the noble and learned Lord, Lord Denning, in the Court of Appeal in 1968 in the case of R v.The Metropolitan Police Commissioner ex parte Blackburn and others when he said, supported by his two colleagues:The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area".Under the Bill he will now be required to prepare a draft plan for the policing of the area to be considered by his police authority. It will have to contain the core objectives set out by the Home Secretary together with those of the police authority, who will then consider the plan and presumably alter it if they think fit with no provision being made for the chief constable to be consulted on this, and they will then publish it. Clearly, 495 this seems to set aside Lord Denning's judgment completely, and the chief constable's independent position is completely destroyed. Is that really what the Government are seeking to do? If it is, I suggest that we are entitled to know why. Add to that the fact that he will be on a fixed term appointment, the continuation of which is in the discretion of the police authority, and through it that of the Home Secretary. One can imagine the political pressure that could be placed on him as he gets towards the time of the renewal of that appointment. On his formal independent judgment there will be pressures which we have never seen before and which I do not believe are in the best interests of policing in this country.
In his opening speech, the noble and learned Lord the Lord Chancellor said that the intention of this Bill was to improve the organisation and the management of the police so that they are better able to combat crime. I believe that this Bill opens the way to a political control of the police and, rather than help the police to combat crime, it may well have the opposite effect. In this respect police efficiency turns very largely on the help given to it by communities. Here I do not mean physical help, but the readiness to provide information to the police to enable them to identify, isolate and subsequently to arrest offenders. If that flow of information should cease because the police and the communities have grown apart, then, as I said, the Bill will not help the police to combat crime, it will positively prevent it.
§ 5.50 p.m.
§ The Lord Bishop of Norwich
My Lords, my right reverend Brother the Bishop of Guildford was originally named to address the House at this point. It is very good to have him sitting beside me but, sadly, he is suffering from laryngitis and his doctor has imposed a vow of silence upon him. Some of your Lordships might wish that that injunction also applied to other bishops. So it is largely the words of the right reverend Prelate the Bishop of Guildford that I shall be delivering today. However, I am not just a kind of episcopal ventriloquist's dummy; his lips are not moving and I endorse with conviction everything that he wished to say to your Lordships.
When the Bill was published last December, the Home Office press release began with the statement that it,lays the foundation for a new partnership between the police, the Government and the public".Whether you are talking about Surrey or Norfolk, both the police and the local community would agree about the centrality of the word "partnership"; that is, its centrality to an understanding of the work of the police. It is that fundamental principle which should form the background for our examination of the Bill.
Law cannot be just what legislators think to be an ideal: effective law has to be what society will accept. If law does not have public consensus, it is unenforceable—we have seen that with Sunday trading and the poll tax. Effective law has to be worked out in association with society as a whole. The police are not an arm of the Executive enforcing what it wants; the 496 police are a part of society securing what society as a whole has accepted in law. So the police are not primarily or essentially to enforce law and order determined by the Executive. They are an arm of society which desires to secure its own liberties and order. Without genuine partnership, both the law and the police fall into disrepute.
There is a great deal in the Bill which moves firmly towards the better operation of the police. A chief constable will have greater freedom of movement within his overall financial constraints, and he will be able to deploy his officers with greater flexibility both as to rank and to improving performance. However, there are other aspects of the Bill that militate against the partnership which the Home Office and the police believe to be essential. I should like to draw your Lordships' attention very briefly to just three of those aspects.
The first concern is the provision for the chairman of the police authority to be appointed by the Home Secretary. I shall not dwell on the matter because it has been eloquently and forcefully questioned by three former Home Secretaries. It represents a radical change for which there is no justification. It is a change which puts an unnecessary power into the hands of the Secretary of State and a change which, if there were to be a shift of government to the hard Left or Right, could prove to be an extremely dangerous power.
The second concern is perhaps even more serious. I refer to the reduction in the representation of local councillors on the police authority. That proposed change has to be seen in a broader context. Local government is being steadily eroded. The local authority now has far less responsibility in relation to education, where the real decisions are being passed up to London or down to the local schools. In the educational field, local government is starting to fade. Alongside that, local government reorganisation seems to be moving towards unitary district authorities rather than counties, and so their geographical areas of responsibility will be much smaller.
Now it is proposed that local government will have significantly less responsibility in relation to the police. The cumulative effect is the diminishing of local democracy. Of course, there is a general rule that the smaller the responsibilities the less the abilities of the people who stand for election and of the staff who serve them. By those changes, local democracy is set on a downhill course. I fear that the consequences may be a growing sense of disillusionment. When people do not feel that they can gain access to authority; when they feel powerless to change anything; and when they feel unheard and unnoticed, they are more likely to look around for extreme solutions.
I believe that we should pause now and assess the cumulative and long-term effect of what we are doing to local democracy. Of course, there are worrying details in the Bill which allow for non-elected members of the police authority to determine the payment from local government funds, and the power of the Secretary of State to remove even elected councillors from the authority. There are matters here that I suggest must be amended.
497 My third area of concern relates to national objectives. It is right to have objectives, and performance indicators can be a stimulus. But for those to be set nationally gives too little recognition to variations in the different areas of the country, not to mention the variation in the types of crime mentioned by the noble Lord, Lord Harris of Greenwich. For example, to set as a national objective, as the Secretary of State has already done,the number of burglaries detected per 100 officers",does not allow for variation in density and size of houses. The right reverend Prelate the Bishop of Guildford notes that in Surrey they have one or two substantial residences, "standing in their own grounds" as the estate agents would say, and they are close to London and the M.25, both good for getaway purposes. That means a significantly different situation in type and extent of burglary from a denser housing area in the north west of England. I might add that in Norfolk we have not one or two but one or two hundred substantial residences standing in their own grounds, as well as more mediaeval churches per acre than anywhere else in Europe which are proving happy hunting grounds for thieves, especially with improved communications to East Anglia.
The Chief Constable of Norfolk—and he must be speaking also for his colleagues in other areas—is generally happy with the priorities set nationally, particularly those which refer to the prime importance of tackling crimes of robbery and violence. But he believes that national objectives by themselves are not satisfactory and that objectives should be negotiated with each chief constable to take account of the widely differing situations in various parts of the country. Those agreed objectives could be checked out by the inspectorate but, as the Bill stands, too much is yet again being determined in London.
We have much work to do to restore and sustain confidence in the police. Much in the Bill actually does that, but there are some crucial parts which are deeply worrying. Edging the police towards becoming an agent of the Executive will damage the necessary partnership. Reducing still further the effectiveness of local democracy could build up in the longer term yet more trouble for the police. The police are not there just to produce impressive crime detection statistics, important though that is. The police are an essential element in the sustaining of, a stable society, and for that reason should be accessible and accountable to the local community. Sound though the Bill is in some respects, there are many matters which must surely be amended.
§ 5.59 p.m.
§ Lord Elton
My Lords, I believe we have reached that stage in the evening when short speeches are always welcome. I shall try to oblige your Lordships, first, by not speaking about the magistrates' court part of the Bill; and, secondly, by restricting to a single issue my remarks on the part of the Bill that relates to the police. I shall be brief because the latter has already been dealt with. However, I wish to declare my own position on the matter and to try to persuade your Lordships to share it. 498 I have chosen that issue partly because I spent a year as the Minister for Police at the Home Office under the guidance and authority of my then right honourable but now noble friend Lord Whitelaw and also because I am, in part, by training an historian and I regard the present always as a legacy of the past and the future as a legacy of the present. I am very concerned about that legacy.
The matter which concerns me principally is the power which is to be given to the Home Secretary to appoint, and, crucially, not to reappoint, chairmen of police authorities. Those appointments can be made from among members appointed to those authorities by the Home Secretary himself. Those committees will in turn have the power to appoint, or, crucially, not to reappoint, chief constables on short term contracts.
It is unpopular to tell one's friends that one believes they are wrong on a matter. Subject to the answer which I am sure we shall hear at the end of the debate to the question uttered by my noble friend Lord Whitelaw and echoed by the noble Lord, Lord Callaghan, as to what object will be achieved by the change or what ill it is designed to cure, I believe that they are wrong. However responsibly the new system is operated—and I am sure that it is intended that it shall be responsibly operated—inevitably the public perception is bound to be that referred to by my noble friend Lord Carr of Hadley: namely, that the police will be seen less and less as our police and more and more as their police—that is, the police of central government; in other words, a national police force.
In the short term that may be only the appearance. There may be short term ills such as those described by the noble Lord, Lord Callaghan, of repetitive political appointments. Much more serious is what will happen in the more distant future when I believe that the perception may become reality. It is unpopular to tell one's friends that they may be wrong but it is sometimes necessary to do so. However, it is more unpopular but essential to tell them that they will not always be there. My party will not hold power for ever. I look on this legislation as a legacy for our successors. I am not thinking of the immediate successors which I know the noble lords opposite aspire with confidence to be, though I discourage them from thinking that that will happen in the near future. I look to the more distant future when the Benches opposite, if they are occupied by anybody and are not covered by dust sheets because everything is conducted at the other end of the corridor, may be occupied by members of a party at the extreme end of the political spectrum. It does not really matter which extreme it is; it will be totalitarian. That is the danger against which we have to guard.
The legacy to which I refer will be a police service with common national objectives across the country set by the Home Secretary. It will be maintained by police authorities chaired by people appointed by the Home Secretary and led by chief constables appointed on short term contracts by those authorities. They will set both the policing plan and the policing objectives of the force, and the chief constable will have to meet those objectives and fulfil that plan if he is to be reappointed. What a legacy that will be, coupled with a prosecution 499 service which is also the responsibility of central government, to a government of an extreme political party!
Like my noble friend Lord Carr of Hadley, I see merits in other parts of the Bill. I believe that there is a great deal to be achieved in improving efficiency both in the magistrates' courts and in the police, and that there are ways by which that can be achieved within the Bill. I am a bad curate because I have concentrated on the bad parts of the egg. I assure your Lordships that I believe parts of the egg to be good but I shall not detain your Lordships, much as I am tempted to in order to get a little way back into the good graces of my noble friends on the Front Bench and the Woolsack. However, I believe that I do have a duty to join those of your Lordships who have warned against the distant but very real danger of a national police force eventually emerging from this embryonic move in that direction. Like my noble friend Lord Can of Hadley, I hope that eventually the parties can agree on the way forward, and that my words have been a little helpful in that direction.
§ 6.5 p.m.
§ Lord Stoddart of Swindon
My Lords, so far the speakers in the debate have been senior and distinguished. All of them have either criticised the Bill or expressed reservations about it. We have heard from three former Home Secretaries, one of whom became Prime Minister and another of whom became Deputy Prime Minister. We have heard from the Lord Chief Justice, a bishop and a former chief constable. All of them have in one way or another criticised the Bill. The noble and learned Lord the Lord Chancellor will realise that the Bill will have a very hard passage through the House. It may be just as well if the Government were to withdraw it and reconsider the many aspects of it which have been commented upon by so senior a section of this House.
Just after I decided to speak in the debate I heard one Mr. Portillo speak on television. It was a resumé of a speech that he was to make. In effect, he said that there was a British élite undermining the country's institutions from the Royal family to Parliament. I have some sympathy with what he said. It is true that many of our institutions have been undermined. For example, local authorities have been reduced to mere enablers; the health service is no longer democratically accountable but run by accountants; Her Majesty the Queen is now a taxpayer and citizen of the European Union; and Parliament itself has been robbed of many of its powers by the increased use of enabling Bills and the transfer of legislative powers to Brussels. Who is this élite? The élite is Her Majesty's Government, of which Mr. Portillo is a distinguished member. It is the same elite who through this Bill now seeks to centralise the police into a national police force, to centralise the administration of justice and interfere with the process of delivering justice. I say that despite what the noble and learned Lord the Lord Chancellor said in his opening speech.
Mr. Portillo has called for a new crusade to rebuild confidence in our established institutions. If he really means what he says, he can start by persuading Her 500 Majesty's Government to drop this Bill which constitutes a real threat to the independence of two of our most important institutions that deal with law enforcement and the delivery of justice. I can assure him of my full support if he does so. I also feel that he will get the support of many others.
Small police authorities of only eight elected members to serve wide areas is the very antithesis of democratic participation and accountability. It is yet another example of sacrificing democratic control to the centralist managerial mania that has gripped the Government. The proposal that the chairmen of these new authorities should be appointed by the Home Secretary is frightening. I say advisedly that it is frightening that the Home Secretary should have such power. It is dangerous and undermines the principle of the police as part of and under the control of the local community. It ends the concept of the tripartite control of the police and tilts the balance of power in favour of centralised control by the Home Secretaty.
Of course we shall be told that Home Secretaries are upright and cautious people who will use their new powers wisely and with discretion. But would the noble and learned Lord the Lord Chancellor be happy with this Bill if there were in prospect an extremist party which might take power in the future and which, under this Bill, could quickly and legally bend the forces of law and order to its own will and purposes? I hope that he will answer that question because it needs to be considered. It was raised initially by his noble friend Lord Elton.
Then there is the provision in Clause 10 for the Secretary of State, by order, to alter existing police areas outside the City of London. That can only mean that the Government intend that there should be fewer and larger police authorities and greater powers of control by the Home Secretary. Furthermore, large size does not guarantee better service or more efficient administration.
In the 1960s I was a member of a watch committee which delivered policing efficiently and effectively in the Reading area. Along came the government of that time. I am sorry to say that it was a Labour Government. The noble Lord, Lord Jenkins, was Home Secretary and said that that was not good enough, we must have a much bigger authority. Therefore, in spite of opposition, he amalgamated the forces of Reading, Oxford, Oxfordshire, Berkshire and Buckinghamshire into the Thames Valley Police Authority. That has not meant better policing in any of the areas, and certainly not in Reading. Indeed, the crime rate has gone up inexorably and the solving of crimes has gone down significantly. Therefore a larger authority does not mean a better authority. I hope that the noble Earl who winds up the debate will take that into account.
I fear that this Government are not content simply to wrest control of the police from democratic institutions and chief constables. In this Bill they seek also to centralise and managerialise the local justice system administered by lay, unpaid magistrates. In Cmnd. 1829, A New Framework for Local Justice, it says in paragraph 2 on page 2 that one of the objectives is: 501to yield improvements in the efficiency and effectiveness of the service, as measured by the time taken to complete cases coming before the magistrates' courts, the unit costs of those cases, the collection of fines and compensation ordered by the courts and the quality of service provided to the public and professional court users".As my noble friend and others have pointed out, the magistrates' courts account for only £350 million—4 per cent.—of the total cost, £8,800 million, of the criminal justice service. Again, as my noble friend pointed out, they collect some £270 million in fines and deal with 97 per cent. of all criminal cases. In the light of those facts and figures it is absurd to suggest that the magistrates' courts system is inefficient and needs a dose of amalgamation and centralisation to make it more efficient. In any event, it is the Government's own policy which has caused an increase in the unit costs of our courts because there have been many fewer cases coming before the courts, and many court hearings have had to be cancelled and so the cost per case has gone up. Therefore, if there has been inefficiency it is the Government's own fault.
To pretend, as the White Paper does, that the measures in this Bill are intended to guarantee the judicial independence of magistrates and their legal advisers is a sick joke. The Government, through the Lord Chancellor, will be able to interfere in the membership, the chairmanship and the actual working of magistrates' courts committees in a way that they have not done hitherto. In my view such interference is inimical to the independence of the judiciary and is yet another dangerous twist of the ratchet towards a completely authoritarian state.
Furthermore, fixed contracts and performance related pay must constitute a threat to the provision of local justice since the system is bound to encourage cutting corners and may lead to miscarriages of justice as a result.
There is no question in my mind, and I believe that the noble and learned Lord the Lord Chancellor will not deny, that this is the thin end of the wedge for the lay magistracy. I believe that in the Lord Chancellor's Department they do not like the lay system and are determined in the long term to replace it countrywide with a stipendiary system. If that happens yet another of our great institutions, indeed one of the oldest, will bite the dust and democracy will be further impaired. Yet another stride will be taken towards the undemocratic throttling bureaucracy which threatens to overwhelm our country, as Mr. Portillo pointed out over the weekend.
This is not simply a bad Bill. In my view it is an evil Bill. The Government have no proper mandate for it. I was tempted to divide the House today because I am so opposed to it. However, I have been persuaded by my noble friend on the Front Bench, Lord McIntosh, that the better course is substantially to amend the Bill in Committee. That I sincerely hope we can do. If we do not I fear for the future of policing and justice in this country.
§ 6.16 p.m.
§ Lord Mackie of Benshie
My Lords, I rise to speak about Clause 2, which contains the provisions for the police in Scotland. I am no expert in these matters. It is not my subject. I am a simple farmer, and I have lived for many years in Angus in that great country, Scotland.
I am pleased with the police. The police have been very good to me. Apart from being a little unreasonable about the speed of my motorcar on occasions, they have served me well and, as far as I can see, they have served the citizens of Scotland well. There is a very good example. Some years ago the Scots football supporters were the hooligans of Europe. Today, as a result of wise policing and good rules about drink and so on, that role has been taken over by the English and the Scots are welcome all over Europe while the English are not. That appears to me to be a major step and to be of great credit to the Scottish police. I am perfectly serious about this. Football hooliganism is one of the major problems today.
I do not believe that we should alter many of the existing conditions, although improvements can be made. Clauses 45 and 54 particularly disturb the Scottish police associations, which have sent me a very good brief. I have had meetings with them and I appreciate their anxieties. Their concern is that under those two clauses, far from seeking the co-operation of the various police authorities, the Secretary of State will be able to direct them to take part in a campaign which may be entirely unsuitable for a district such as Angus or Grampian but which may be of great relevance in Glasgow, Edinburgh and places of that sort. That co-operation can be obtained and is obtained in any case where a serious effort has to be made for a concerted policy throughout Scotland. The chief constables and police authorities have co-operated and will co-operate with the Secretary of State. The same applies to Clause 54.
In Scotland we also have a procurator fiscal. We have had him for a long time and complaints about criminal behaviour by the police go to him as a separate authority. It appears to be unnecessary and it appears to our friends in the police that that needs a new procedure. In fact, the new procedures appear to me to have great dangers, as has already been said. The Government have authoritarian ideas, but they are alleviated by the Government's incompetence. It may well be that we shall have an authoritarian, competent Government and they would be a great danger in regard to the powers that they might seek from time to time.
The great point about the police in our area is that they attract good people, good young men. They go into the police and if they work for 30 years and contribute a high proportion of their pay they receive a good pension while they are quite young. That is a great incentive and, so far as I can see, the Government are on the road to stopping that incentive for quality in police recruits. That is important.
As to other provisions, the Bill states that there are no financial implications for Scotland. Why the devil do we go about abolishing the ranks that have worked 503 extraordinarily well? On big occasions like demonstrations and big football matches I know that we need a chain of command which is absolutely firm so that people know where they are. If lots of people are looking at the seniority list to see who is in command we shall not get the quick action which is required on the many occasions which the police handle extraordinarily well in Scotland.
I do not wish to say much more, but I should like to give a small example of how important local policing and local conditions are. I tell this story a lot. It is true and it is of a certain Sergeant Kippen who was in charge of the police in Kirriemuir; two constables in Kirrie and one or two outside. There are none living there now. Sergeant Kippen ran the town of Kirriemuir with 4,000 people and the surrounding district as a personal fief, more or less. He knew all the problem families. He was fond of gossip which provided him with the necessary intelligence. The people of Kirriemuir trusted him—so much so, that at our annual agricultural dinner, where there was apt to be a little alcohol taken, he used to come to the door of the hall. He would stand there and as the farmers left in various stages of inebriation he would say: "Goodnight, Willie, Tam. If I was you, I'd tak' a taxi". No one ever let him down, he had a complete understanding of them.
I know that that is local policing, which we cannot have everywhere, but the basis is still there. It can only be there if there is a strong local representation with power from the people. If we destroy that and put power into the hands of the Secretary of State, the Government will he destroying something very valuable. In my view, the Bill starts to do that and we should heed the wise advice of the noble Lord, Lord Callaghan, and send it back to the Commons a very different object; in fact, an object of which even the Government might be proud.
§ 6.24 p.m.
§ Baroness Macleod of Borve
My Lords, it is a delight to follow the noble Lord, Lord Mackie, and I agree with everything he said. I too could tell a story or two about the Scottish police, for whom I have great respect.
So many noble Lords are speaking on the Bill that I have decided to be brief rather than comment on its clauses. I think we shall probably spend many days on amendments to the Bill because so many of us have points we wish to discuss.
Despite the eloquent way in which, as usual, my noble and learned friend the Lord Chancellor introduced the Bill, I find it highly contentious. It is also quite difficult to understand at some points. Not only is that so, but I feel strongly that there should be two Bills. Two great departments of state, headed by two overworked Ministers, deserve to have two Bills which make sense not only to both Houses of Parliament, but to the public. Other noble Lords are more knowledgeable about the police than I am. Suffice it to say that their tireless dedication to duty earns our respect and our gratitude.
Having been a magistrate on a very busy Bench for 30 years, I want to comment briefly on the proposals in the Bill in that regard. There are over 27,000 magistrates 504 in the country who are unpaid, who work hard and are responsible, as has been noted, for trying about 97 per cent. of all cases which come to court. This work they have done for over 700 years.
Under the Bill as it stands, that precious and vitally important independence will be undermined. It seems quite extraordinary that the Lord Chancellor of the day, having appointed the magistrates through the Lord Chancellor's advisory committee, on which I used to sit, quite blatantly does not trust them to carry out their duties, he having already appointed them. That will have a particularly adverse effect on the local people when it is realised that the Lord Chancellor will assume a massive increase in direct control and influence over the magistrates' courts. In my experience, this must be wrong.
That leads me to wonder whether those who have drawn up the Bill have ever sat in a magistrates' court. If they had, they would have realised how invaluable are the clerks to the justices. There is a mutual respect and a working relationship which oils the wheels of justice. But if their status is changed, so will their work. Their loyalty and independent advice is given to the magistrates, but if they have continually to look over their shoulders to see whether they are measuring up to performance levels which they probably do not understand anyway, their commitment will inevitably change and we will all suffer.
I have not heard this afternoon the cost of the changes. The new and to my mind totally unnecessary post of chief justices' clerk is advertised at £65,000 a year, plus car allowance. It is suggested that there should be 50 chief justices' clerks. They will all need offices, secretaries and equipment in those. offices, at an estimated total of £5,775,000. I understand that some are being appointed before the Bill has been considered by Parliament. That must be wrong. Those figures may be too small, and if the Crown Prosecution Service—useless as it is—is anything to go by, the sums will have to be redrafted. The estimated initial running costs of the CPS were £4 million a year in 1986. By 1992 they had risen to £226 million.
It is with a heavy heart, and I think it is the first time in my 23 years as a Member of this noble House, that I have had to disagree with my party as much as I do tonight. I very much dislike doing so. I hope that my noble and learned friend the Lord Chancellor and my noble friend Lord Ferrers will not take anything that I have said personally. But the centralisation of power in the hands of officials is alien to all that we stand for in this country. It is vital that justice must be seen to be fair and independent.
§ 6.30 p.m.
§ Lord Williams of Mostyn
My Lords, the arguments which have been addressed to this House have been massive, overwhelming and all one way. The speech of the noble and learned Lord the Lord Chief Justice was such an act of dissection and demolition in respect of the changes to the magistrates' courts system that one wonders how even this Government could possibly mount a convincing reply.
505 For most of my professional life at the Bar I worked in close contact with police officers of every rank. I know that that experience is shared by the noble Lords, Lord Hooson and Lord Thomas of Gwydir, and my noble friend Lord Archer of Sandwell. I think we would all say that the overwhelming majority of police officers in this country are people of dedication and diligence who are informed and activated by a sense of public service and duty. Why is it therefore that police officers of every rank from every police authority are united in their objection to these changes? I entirely agree with what was said by the noble Lords, Lord Elton and Lord Carr of Hadley. We should strive not to be partisan about these important matters. They are too important for partisan party politics.
When the writer Dorothy Parker visited a particularly dismal part of the American Mid West, she said:When I got there, there was no there there".I have made a much more recent and modest pilgrimage, and my search (my journey) was this. I was looking, as an innocent mind, for any sign of a coherent political or philosophic basis, within either the Home Office or the Lord Chancellor's department, for these latest alleged reforms. When I got there, there was no "there" there.
It is not invariably true that bad motive produces bad legislation—not invariably, but normally. The motivation for the change to the police authorities is the removal of local control, the erosion of accountability and the bringing into being of a centralised political control. Three former Home Secretaries have spoken in this House with eloquence of a different type but of a uniform quality. Not one of them could support the changes. The questions posed by each of them in different ways will not go away. I respectfully repeat that those questions are much more important than the party political advantage of a day, a week or a year.
Why does the present incumbent of the Home Office need to have such a large proportion of the police authorities nominated by himself? We had hoped that the day of the placeman, the political creature, had vanished from our country. If the members of a police authority are competent to discharge those heavy public responsibilities which their appointment implies, are they not to be trusted to elect their own chairman?
I turn quite shortly to the magistracy. These proposals are —and it is no good pretending the opposite, however honeyed the pretence may seem—an attempt to take to central authority powers over a part of the judiciary. As noble Lords have earlier pointed out, that part of the judiciary does most of the criminal work in this country, and it has the power in total of imprisoning citizens of this country for up to one year. We are not speaking of an insignificant body of people with limited powers. These changes are not wanted by the magistrates; they are not needed by the system; and they are bitterly resented by everyone who has anything to do with the administration of the magistrates' courts. Surely one casual glance at the list of speakers before and after what I have briefly to say would cause even the most stubborn of administrations to wonder whether on this occasion they had got it entirely right.
506 The noble Lord, Lord Stoddart of Swindon, and I very rarely agree on anything. We are both obviously getting old because I am about to agree with him. We share one characteristic. We share the characteristic that we both had Welsh fathers. Obviously, both our fathers told us to do the same thing: "Read up a text before you deliver your sermon". So I have done exactly the same as the noble Lord, Lord Stoddart of Swindon. I took the trouble to read what the present Chief Secretary to the Treasury wrote. I take it that the present Chief Secretary must reflect at least a part of present government thinking, on the basis that at least the right hand ought to know what the right hand is doing. I quote:Americans still believe in the American dream".Any attempt in America to control the police service or a part of the judiciary centrally would be the subject of amazed disbelief and savage derision.
I quote again:Most Britons are proud of their nation and love its distinctive features".I profoundly agree. Its "distinctive features" have been for over a century in modern form and terms local control by local people, chosen, overseen and subject to recall by other local people. I suggest, with respect to your Lordships, that that is one of the distinctive features that Britain offers, and it is one which is certainly cherished and admired by a large number of us.
I quote one final word from the Chief Secretary:We need to assert the value and the quality of the British way of life and British institutions".Yes, indeed. The British way—rightly, I suggest—rejects and mistrusts authoritarian central control. It cherishes democratic accountability. These are not simply the mottoes of the moment. They reflect something which I believe is central to the belief of all of us who have the honour of sitting in this House. We must not throw away those deeper verities for the limited ambition of the present incumbent of the Home Office. None of those three former Home Secretaries treated that office, which is in many subtle ways the most important great office of state, as a political plaything. I regret to say that I cannot say that about the present incumbent.
The Chief Secretary spoke of two great institutions. One has always been, and presently remains, a locally accountable police force; and the second has been an impartial magistracy trusted by the people and wholly contemptuous of any attempt to direct it by central authority. With one Bill this present Administration are doing their best to subvert both of those great institutions. We owe the public servants in the police service and the magistracy our duty. I believe our duty is that in these two central respects this Bill must be amended so that these vices are withdrawn from it.
§ 6.40 p.m.
§ Lord Ackner
My Lords, it is a very remarkable, deeply depressing and much to be regretted fact that since 1989 the Government have managed to antagonise virtually every component part of the administration of justice. Through my noble and learned friend the Lord Chancellor and his department, they have alienated the Bar, the solicitors and the professional judges. They are 507 now bent on alienating the lay judges—the magistrates—who, without fees or other remuneration, deal efficiently, as we have been told, with 97 per cent. of our criminal cases. In addition they are intent on affronting their legal advisers, the justices' clerks, by destroying their time honoured autonomy.
Not to be outdone by this sorry achievement, the Government, through the Home Secretary and his department, have alienated the police, the probation officers and some, if not a majority of, prison governors and officers; and most recently, as a specious Christmas present, the victims of violent crime, the White Paper published last month savagely reducing the compensation to which in future they will be entitled.
The result is the product of twin driving forces. These are, first, pursuit of power and, secondly, using as a yardstick for decision-making, financial value for money rather than the interests of justice. What constitutes financial value is determined by the Executive and not by judicial decision.
Let me give two examples of how the first of those two driving forces—the pursuit of power—has manifested itself in practice. In January 1989 the Government's Green Paper entitled The Work and Organisation of the Legal Profession was presented to Parliament by my noble and learned friend the Lord Chancellor and was first debated in April of that year. It was produced at the behest of a Cabinet sub-committee on competition, chaired by the then Chancellor of the Exchequer, Mr. Nigel Lawson, who was warned by my noble and learned friend the Lord Chancellor that it would be bitterly opposed by the judges. I refer to page 612 et sequitur of the noble Lord's biography View from No. 11 —not quite the genesis given by my noble and learned friend the Lord Chancellor in the debate. It was described by the noble Lord, Lord Beloff, as another attempt by the Civil Service to establish its control over what had hitherto been an independent and separate part of our national life.
One of its central proposals, which the Government were later obliged somewhat to modify, was the so-called Lord Chancellor's Advisory Committee, a lay dominated committee staffed by civil servants of the Lord Chancellor's Department, of whom all the members were and are appointed at the whim of the Lord Chancellor:an instrument"—said my noble and learned friend Lord Oliver of Aylmerton—by which the Executive can in very large measure control a legal profession which was previously self-regulated and by which it can, by the creation of new classes of practitioner in the courts, secure an ever greater control than it enjoys at the moment over the composition and, of course, ultimately, the conduct of the judiciary at all levels".In the same debate, my noble and learned friend Lord Lane, the then Lord Chief Justice of England, warned in trenchant terms that the growth in the powers of the Executive and therefore of the Government over the administration of justice had steadily increased in recent years. He said:The signs are that it will extend still further, and one asks whether we are now seeing tools being fashioned which by some 508 future, perhaps less scrupulous, government may be used to weaken the independent administration of justice" —[0fficial Report, 7/4/89; col. 1331.]If I may comment, a highly prophetic observation.
That was some four years ago. Perhaps I may remind the House of a more recent example, which was to be found in Clause 25 of the Judicial Pensions and Retirement Bill 1992 —all tucked away there. Under that clause, power was to be taken by my noble and learned friend the Lord Chancellor, at his sole discretion, to continue the senior judiciary in office beyond the new compulsory retirement age of 70, from year to year, up to a period of five years—a system referred to as "judges on contract". I do not need to expand upon how that power could have been abused. Other jurisdictions in warmer climates can provide plenty of examples, past and present.
What apparently my noble and learned friend the Lord Chancellor or his department ignored or overlooked was that more than 50 years ago that concept was rejected by a Royal Commission—the Peel Commission—of which Sir Claude Shuster, as he then was, an outstanding Permanent Secretary in my noble and learned friend's department, was not only a member but specifically and firmly endorsed the rejection of such a proposal. In the debate on Report on 29th October 1992 my noble and learned friend Lord Simon of Glaisdale expressed his astonishment that,this unconstitutional provision ever appeared in the Bill".—[Official Report, 29/10/92; col. 1262.]The offending clause was at the last minute removed.
I shall give but one example of the Treasury's concept of value for money taking precedence over the interests of justice. At least for the past four years there has been a plain, incontrovertible and unsatisfied need for a substantial increase in the number of High Court judges. I shall not weary your Lordships with a recital of the requests that were made, crescendoing in a speech by my noble and learned friend Lord Lane, as Lord Chief Justice, at the Mansion House dinner given by the Lord Mayor to the judges some three years or so ago. In that speech he referred to the "critical situation" and said that the administration of justice was "in peril". That was followed by a similar such speech made by his successor, my noble and learned friend Lord Taylor of Gosforth, who in terms said that the position 'was gradually becoming a national disgrace. A Starred Question was raised by the noble Lord, Lord Mishcon, Where the abuse by the Lord Chancellor of his powers under Section 9 of the Supreme Court Act 1981 in the over-use of deputies was stressed and a debate was subsequently instituted by the noble Lord, Lord Irvine of Lairg. Ultimately 10 judges were provided. The excessive use of deputies continues and I do not think that I am putting the matter too high in saying that on this subject the Treasury placed the Lord Chancellor, responsible for the administration of justice, in a deeply humiliating position by resisting this clear demand over a period of four years.
The matters to which I have referred I hope demonstrate to your Lordships how strongly the tide towards Executive domination is flowing—a tide which is eroding judicial independence, so fundamental to the protection of democracy. What is in essence proposed in 509 this Bill in relation to the magistrates, is to transfer the control of justices' clerks from the judiciary (that is, the magistrates) to the Executive, which is the Lord Chancellor's Department. The Government have taken the concern which has been expressed sufficiently seriously to seek to make special provision in Clause 71. According to the side note, it preserves the,Independence of chief justices' clerk, justices' clerk … in relation to legal functions".That provision, which wrongly presupposes that a firm line can be drawn between legal and administrative matters, is particularly noteworthy for two quite separate reasons. First, that it should ever have become necessary in an Act of Parliament to provide a specific assurance that what the Act provides is to have no impact on the independence of the judiciary underlines the very danger of the provisions which have necessitated that assurance. Secondly, the magistrates and their clerks are totally unmoved by the Government's assurance to be found encapsulated in this clause. They remain convinced that the Executive will use its control of their clerks to manipulate the judicial decision-making process. Speaking entirely for myself, I have every sympathy for the magistrates and their clerks taking such a view.
In the debate on 10th May 1993 on the Maximum Number of Judges (No. 2) Order, I drew specific attention to the then recent prospectus issued by the Lord Chancellor's Department headed A Programme for the Future and to the observation at the foot of page 3, which reads:As the head of the judiciary, the Lord Chancellor is at all times concerned to safeguard the Judiciary's … independence from the other branches of [professions]".I express my respectful doubts as to whether that is the present perception of the judiciary. The reaction of the magistrates and their clerks to this Bill, and in particular to Clause 71, shows that it is not.
It will doubtlessly be protested that all the anxieties are fanciful. But can it really be sensibly suggested that the Lord Chancellor's veto of the appointment of the chairman of that all-important magistrates' courts committee, to be found in Clause 65, and the power of the Lord Chancellor to give directions to that committee requiring them to meet specified standards (Clause 66) are not capable of affecting the independence of the justices or that the power of the Lord Chancellor (Clause 80) to remove the chairman of that committee and even remove members and replace the committee with his own appointees, is not capable of interfering with the independence of justice?
Can it be realistically doubted that the provisions that justices' clerks and chief justices' clerks (both of whose appointments have to be approved by the Lord Chancellor) have to be on fixed-term contracts with terms of service to be laid down by the Lord Chancellor to include performance-related pay schemes (Clauses 68 and 70) cannot redound to the detriment of justice? Is it really open to question that the close monitoring by an inspectorate in the Lord Chancellor's Department and by the chief justices' clerks of the performance of the magistrates' own legal adviser, whose personal career future—and indeed that of the Chief Justice's 510 clerk—hangs upon gaining a satisfactory report from the Executive, cannot but create centralised expediency inimical to the provision to the magistrates of independent advice?
If I am to be accused of fantasy then I am certainly in good company in this House and I think I am so outside it. Perhaps I may draw your Lordships' attention to a recent little book entitled Managing Criminal Justice, a copy of which is in your Lordships' Library. It has been written by two lecturers at Birmingham University. In a chapter with the title, Judicial Independence and Justice Under Threat?, commencing at page 137, the authors refer to the concern which has been expressed that the changes which are now being proposed will put at risk the independence of the lay judiciary inasmuch as their clerks will in future be under great pressure to act as the Executive might expect rather than as the local Bench, to which they have traditionally been accountable, might wish.
They quote from a response in 1992 by a clerk to the justices of St. Helens, Mr. Green, to the proposal that magistrates' clerks should become in future essentially servants of a multi-faceted Executive. He says this:There will be many ways in which the Justice's Clerk can use the influence he has with his magistrates to assist the Executive, compromise the rights of defendants and members of the public, and render sterile an oath which requires decisions to be made without fear of or favour to, inter alia, the Executive".He gives examples,Speaking as your Clerk,he might say,I would advise you to grant legal aid were it not that as the Lord Chancellor I must think of the cost to the Legal Aid Board. Or to commit the accused to trial or sentence, were I not aware as the Lord Chancellor that the local Crown Court is too busy. Or that you fix his trial for hearing in 21 days, were it not as Attorney-General I wish the CPS to have 8 weeks for preparation of the case. Or that you fix the hearing for 8 weeks hence, were it not that as Home Secretary I cannot allow the Chief Constable to incur the expense of a police witness on a rest day. Or that you try the accused, were it not that as Attorney-General I recognise a binding over to be the cheaper course. Or that you should order the prosecution to pay wasted cost, were it not for the embarrassment this would cause me as Court Manager when I next chair the Court User Group. Or that you order a pre-sentence report to be prepared within two weeks, were it not that as Home Secretary I require four. Or that you commit the accused to prison, were it not that as Court Manager I could not take the risk, by increasing the Court's percentage of custodial sentences, of disqualifying myself when as Lord Chancellor I consider the renewal of my contract.Time does not allow me to address myself to the provisions in the Bill which propose a substantial move towards centralisation of policing and away from the tripartite relationship of police, Home Office and local police authorities. This tripartite relationship is clearly a constitutional safeguard of enormous importance which prevents policing falling under national political control. Central appointments, combined with the placing of the chief constable on short-term contracts and performance-related pay, clearly carries a danger of replacing the operational independence of the chief constable with effective control of policing by the Home Secretary. Its provisions, super-added to those in the magistrates' courts section of the Bill, emphasise the Government's obsession with central control.
Like my noble and learned friend the Lord Chief Justice, my breakfast cereal today was coated with 511 assurances given on the radio that the Government have an open mind and will listen sympathetically to any valid criticism of this Bill. Of course, as ever, hope springs eternal but in the present context the lift-off is barely perceptible.
§ 7 p.m.
§ Lord Gisborough
My Lords, Acts relating to the police appear every 30 years or so and it is important that when there is a change it should be well thought out and able to stand for the next 30 years. The last Act was preceded by three years of consultation and the result was that no further Act was needed until now. This Bill has been preceded by little or no consultation with the Police Federation and much, but by no means all, of the Bill is opposed by the federation as being detrimental to policing.
The constitution of policing has always been based on the separation of power between the Home Secretary, the police authorities and the chief constable. If that balance is now upset, as is proposed in the Bill, it would allow the police to be nationally controlled and would lead to the politicisation of the police, something that has always been anathema to all parties. That point has been stressed and warned against by many speakers already.
It will certainly upset committees for them to have thrust upon them a chairman whom they do not want appointed by the Home Secretary and it could cause permanent warfare within a committee. The subsequent fights and antics of the committee will provide interesting and exciting reading in the local press, but it will not do much good to the police or to the furtherance of law and order. However, there are occasions when committees choose Bloggins, because it is his turn to be chairman, or some political and vociferous firebrand who may well not be thought suitable by the Home Secretary. There are times when committees seem to have been taken over by extremes of one party or another.
However, the introduction of appointed men will do little to help. Perhaps one could argue that one could even up the committees with magistrates. They at least have hands-on experience of what is going on in the police and the courts to match the elected members who have hands-on experience of what is going on in the communities, as of course have many of the magistrates. Greater representation by the magistracy would be a good thing. Magistrates combine a strictly non-political office and outlook in the courts with a purposely chosen cross-section of background and politics.
Under the Bill, civil servants in Whitehall would wield very increased experience in setting national policing objectives and in advising Ministers who will appoint their own nominees to the new police authorities. It is hard to see how civil servants in London should be better able to add value to the services delivered to a particular community that may have a special problem.
Some chief constables feel that if the Bill were to become law their operational discretion would be fettered in such a way that they would not be able to respond in a balanced way to local problems without 512 breaching their duty to pursue national policing objectives, police authority objectives and their relevant performance indicators. That would inevitably inhibit their ability to respond to local problems and could not possibly be in the interests of the people living in their local communities.
There is little in the Bill that makes the police more efficient, and yet the growing efficiency in the force that is taking place at the moment may well be jeopardised by it. Surely the principal objective of the police is the reduction and prevention of crime. Their constitution and organisation should be arranged with that in mind. With all the reservations which the police, not to mention the justices' clerks, have about the Bill, surely the sensible thing would be to take it back to the drawing board, to tell the police what the Government want to achieve and to work out a mutually agreeable way of achieving it.
Turning to the magistracy, it is strange to see this measure dealing with the courts being attached to a police Bill. The whole direction of British justice has been to separate the police from the magistracy in the eyes of the public. Therefore, it seems an odd and retrograde step that this important Bill about the magistracy should be attached to a police Bill.
Some parts of the Bill are good: for example, the transformation of magistrates' courts committees into boards of management with comparable powers to those of boards of directors is a useful step forward which has been advocated for some time. But there are other parts, the implications of which are disturbing and I refer in particular to three.
As the Lord Chancellor will know, the imposition of fixed term contracts has been the subject of copious representations to him. It is opposed by clerks, magistrates, and judges alike. It undermines the independence of the office of justices' clerk by exposing him to central direction from London and the pressures to conform thereto. The independence of the office has been the secret of its success and that of the magistracy which it serves. Our forebears went to some pains to secure that independence, as they did, and they thought it important to do so. The Lord Chancellor assures us that Clause 71 of the Bill will protect the position. It reads:When exercising [his] functions [as a justices' clerk] or giving advice to justices of the peace in an individual case … a justices' clerk shall not be subject to the direction of the magistrates' courts committee, the chief justices' clerk or any other person".That is fine so far as it goes, but while I accept that it will deter an overt attempt to influence, I am extremely sceptical if it will be proof against an attempt of a subtler kind which, by a nice blend of damns and faint praise, suggests that future renewal of contract will depend on something more than present performance. That will supply a powerful incentive to a luckless clerk to subordinate the interests of justice to his own self-interest or that of his Bench and advise accordingly. As a magistrate myself, I do not want to believe this but I should be less than frank if I did not say that it is a distinct possibility, having considered the pressures that will be applied to justices' clerks under the new system in the interests of management efficiency.
513 Then there is the question of funding the new arrangements. I am told that the Government confidently predict that the cost can be accommodated within the existing budget levels but steadfastly refuse to reveal the figures upon which they base that prediction. I have therefore had to have recourse to the Management Information System statistics—the M.I.S. figures, as they are called—to estimate whether this is likely to be so. The figures for 1992 are most instructive. They show that in counties like Dorset, Northamptonshire and Cheshire, which have already gone some way down the road suggested by the White Paper and unified their management structures under one justices' clerk for the whole county, the cost per case is much greater than in counties like my own, Cleveland, which have not done so. In Dorset, the cost per case is £29.40; in Northamptonshire it is nearly £31 and in Cheshire it is £31. The cost in Cleveland is still just under £24. This comparison suggests that the Government may be over-optimistic in their estimate and that there will be a similar disparity between actual and estimated cost as there was when the Crown Prosecution Service was set up some eight or nine years ago. Needless to say, I shall await the publication of the first annual report of the new magistrates' courts service in 1996 with much interest.
Finally there is the magistrates' courts service itself. Parliament is the trustee of a unique institution. When it was re-organised by the Justices of the Peace Act in 1949, Ministers enthused about it, hoping that it would attract lawyers of quality to its ranks—and it did. There were then just over 800 clerkships and there was a good chance of a young lawyer of quality getting a clerkship after an apprenticeship of five or six years.
Sadly, those odds have lengthened over the years and with this latest contraction to 58 chief justices' clerkships and about the same number of justices' clerkships, the service in the last years of the 20th century is likely to be far less attractive than it was in the 1950s and 1960s. This will be detrimental to the good state of the service and I urge the Lord Chancellor to do what he can to prevent it happening should the symptoms become more conspicuous. We owe it to a service that has served the country so well to be concerned for its future well-being.
The Bill is not all bad. It has good points, but it will need a lot of major surgery.
§ 7.10 p.m.
§ The Earl of Winchilsea and Nottingham
My Lords, as the police service is largely an operational service, I should like to focus my remarks at this stage of the Bill on some of the operational worries and concerns that have been expressed to me by everyone—and I mean everyone—who has an interest in this, the first police Bill for 30 years. At this point it is right that I declare an interest as the representative in your Lordships' House for the Police Superintendents' Association of England and Wales. However, all three police staff associations have united in their opposition to many of the proposals in the Bill. It can be said, therefore, that I do not speak only for the 514 superintendents. Their concern, which I profoundly share, is for the operational catastrophe which could result from the implementation of some of the proposals.
As well as being extremely worried about the Bill and its signposting into the future, the police are very angry. They are angry at the breathtaking lack of any meaningful consultation between them and the Home Secretary and his advisers before publication in June of the Government's White Paper on police reform. At that time, the Home Secretary had been in his new post for just two months. He had hardly got his feet under his desk, yet here he was announcing his intention to make drastic changes to the way this country is to be policed!
There has been very little, if any, consultation with police officers who have consistently demonstrated their enthusiasm to embrace constructive and productive change. They have immense experience, some of them having served for 30 years and more, and know what they are talking about. Instead of being consulted, they have been insulted. Quite clearly, this is a case of nanny knowing best. But nanny cannot know best with so little knowledge and experience.
The most sinister of all the proposals are those which seek to halt the unique system of policing which we all enjoy in this country and which has evolved over the years—policing by consent. That system is the envy of the world. Yet here we have a Home Secretary doing his best to destroy it by taking control of police authorities and making them answerable to him and his successors. Our police service is to be politicised. The chief constable of each force will lose his or her operational independence. They will be required by statute to comply with directions given to them by the police authorities but which have been handed down by the Home Secretary.
Another serious matter is that of police discipline. The new disciplinary procedures, as proposed in the Bill, remove the civil rights of police officers. They weaken and curtail the right of appeal against disciplinary findings and legal protection.
Police officers are easy targets and they deserve special consideration due to the nature of their work and a tendency of criminals and mischief makers to level malicious complaints against them. It may interest your Lordships to know that such a case is under consideration now, involving a policeman stationed at the Palace of Westminster, and it is causing him great distress.
From an operational point of view, consider the highly likely outcome should the proper safeguards be removed. An officer will think very carefully before enforcing the law in difficult circumstances or against someone who is known to be in the habit of making complaints against the police. The result of many of those malicious complaints can be worse than suffering a serious physical injury because the resulting inquiry can drag on for months. That inevitably has a most damaging effect on the officer's morale. It can leave just as bad a scar as any violent attack. Quite obviously, due to the powers available to police officers, it is vital that they are brought to book if they violate those powers. 515 But it is also vital that they are given support and backing provided they act reasonably and within the law.
I turn now to the question of future ranks within the police and the proposals to eliminate both one of the two inspector ranks and one of the two superintending ranks as well as that of deputy chief constable. Operationally, that would leave only one rank between inspector and assistant chief constable. That is far too big a gap.
The police service is a uniformed, disciplined service and its ranks are not unlike those of the military. Can your Lordships imagine only one rank between that of leading seaman and rear admiral? Where would the chain of command, levels of authority and lines of responsibility be in the navy if that were the case? Where would that leave the learning process? The same can be said for the police service; and I shudder to think of the operational consequences at major incidents.
The proposals for the abolition of ranks might look good on paper and they might also look politically attractive provided that one does not look too deeply. It might appear that by eliminating those ranks, considerable savings would be made which could be spent on putting more bobbies on the beat, thereby satisfying one of the most often heard cries from the public. In actual fact, the reverse would be true: more work would be placed on the lower ranks which had once been done by the eliminated ranks. Someone has to do the administrative work; and it cannot all be done by non-police personnel.
The police service is very much an operational one and present ranks are needed to maintain operational viability. No evidence exists to counter that claim. Indeed, there is plenty of evidence to show how badly things go wrong where that has been tried. For example, in New Zealand police two ranks were removed which led to confusion and a drop in efficiency. It also led to the creation of 17 grades which replaced the original 10 ranks—not a brilliant slimming down exercise, my Lords.
Although I share the relief felt by all three police staff associations that some of the dottier recommendations contained in the Sheehy report have been dropped by the Government—I refer to performance related pay and 10 year work contracts for police constables, and the 40 year qualification for full pension—I also share their concerns for much that remains.
Quite simply, what is at stake in the Bill is the very bedrock on which our entire police service is based. The Bill seeks to eliminate the close, democratic accountable ties with the local community that it serves and to replace it with a distant, undemocratic and unaccountable political commissar in Whitehall. Is that what we really want? Well, yes it is, according to the Government. After all, do not forget that nanny really does know best, even though she does not listen to anyone.
Finally, I believe that the Government are to be congratulated on one thing. They have successfully united all those who have anything whatsoever to do with our police service in their opposition to the Bill.
§ 7.18 p.m.
§ Lord Harmar-Nicholls
My Lords, all except one of the points that I wished to make have already been made with more authority and clarity than I might have mustered. It would be unfair—we have already had 19 speakers, and there are 19 more to hear—to continue more than is absolutely necessary. I shall certainly not repeat any of the points that are already on the record.
However, perhaps I may seek assistance from my noble friend Lord Ferrers who represents the Government in this Chamber. He knows already—he needs no reminding—that out of 19 speakers, 18 have already made it quite clear that they believe the Bill as it stands is unacceptable. That point will not have been lost on either of my noble friends. I know that they will want to react to it. We should therefore try and guide them to a way in which they can face up to that fact without having to jettison their Bill entirely.
In opening the debate my noble and learned friend the Lord Chancellor said that the Bill would better equip the police to carry out their functions in fighting crime. He said also that the Bill would enable them to meet local feeling. Those are good points. We still need a Bill which will achieve that. This Bill can be altered without anyone in any way losing face to achieve what my noble and learned friend said the Government want to achieve.
The first bit of luck that my noble friends have is that the Bill is starting in your Lordships' House. Every time I come to this Chamber I am impressed by the breadth of its elasticity in being able to face up to unexpected problems. By the Bill starting in this House the elasticity of our procedures, which have centuries of experience behind them, will enable us to enact the Bill without any real problems. To begin with, the Salisbury Rule means that we do not vote on Second Reading. That would not happen in another place. But here it means that all of the criticisms that have been expressed and that are upon the record do not have to be accepted and the Bill signed, sealed and delivered, which would be the effect of a vote. Therefore we do not have the encumbrance of overcoming a vote in this House against the main features of the Bill.
Anyone who has played any part in Government—the Executive as distinct from the Parliament which approves legislation—knows that a government's duty is to produce legislation. That is why we have Whips and so forth. It is important that, having given a great deal of thought to what they should do in the form of legislation, their duty is then to enact the Bill. Parliament's duty is to examine it so that before the Bill becomes an Act where it starts affecting people it is in a form which will achieve what it set out to achieve—in this case better to equip the police for carrying out their functions in fighting crime and, secondly, to meet local feelings.
At Second Reading the principles of the Bill are accepted. But the details which exist in the Bill are clearly not acceptable. We know that the real work on it will be done in Committee. It is at Committee stage where the real power is given to any objections that we may have, and the Committee stage is still some way off. My advice to my noble friend who will be winding 517 up today's debate is this. Whatever speech he had planned in commending the Bill to this House—it would need to be a speech which ensured that the Bill was passed—I ask him to amend; to leave himself as free as possible to meet the different views expressed. That can be done without any loss of face. It is the correct working of the parliamentary system and it is that kind of elasticity and common sense which properly allows us to arrive at legislation which will affect people.
I commend that suggestion to my noble friend. It is the proper and correct thing to do in the circumstances of today's debate; it is also the commonsense thing to do. Perhaps he can find some way of not opening the door for all the criticisms to get through, but to leave the matter in such a way that when we reach Committee stage the amendments will face up to the advice given from so many authoritative sources. I refer to an ex-Prime Minister who was Home Secretary, my noble friend Lord Whitelaw, who was well known and famous as a Home Secretary, my noble friend Lord Carr, who also served in that office, plus many chief constables.
The authority behind the criticisms directed against the Bill is too formidable to be overlooked. The noble and learned Lord, Lord Ackner, is an ex-Lord of Appeal who can speak with all the authority and experience of one of our Lords of Appeal. His criticisms should be taken into account. My noble and learned friend the Lord Chancellor will be doing a great duty in facing up to the message so clearly put forward. He has the instrument of the House and the elasticity of its procedures to help him and I hope that he will find ways and means of doing so.
I said that all the points I had it in mind to make had been made, but one was not made. It is not as important as some of the others but I should like to place it on record. It relates to the disciplining of policemen. As matters stand at present, a policeman is not convicted of a disciplinary offence until the offence is proved beyond reasonable doubt. That is the procedure at the moment. The case must be proved beyond reasonable doubt before a policeman can be convicted. Under the Bill the reasonable doubt is replaced by general employment tribunal procedure. That is not fair. The police have a special and dangerous part to play and they face a lot of prejudice and criticism. When my noble and learned friend is considering, as I suspect he already is, the kind of amendments that he can table at Committee stage to meet the criticisms of the House, I hope that he will take into account the point I have just mentioned; that is, that reasonable doubt will remain one of the tests.
For what it is worth I hope that that advice will be taken. I believe that we shall eventually finish by turning the Bill into an Act of which we can be proud and one which will achieve what my noble and learned friend the Lord Chancellor said at the opening of the debate he wanted to achieve; that is, to better equip the police to carry out their functions in fighting against crime.
§ 7.30 p.m.
§ Lord Archer of Sandwell
My Lords, the noble Earl who is to reply to the debate may be forming the impression that this is not a popular Bill and that it may be subject to detailed scrutiny at later stages. If in the interests of brevity I confine myself to venturing some comments simply on the general principles, I hope that he will not draw any false comfort from me. It is simply that to everything there is a season.
Inevitably at this stage in a debate contributions will echo comments which have already been made. They may be none the worse for that. As my noble friend Lord Callaghan pointed out, it may be important to emphasise the breadth of the consensus in this House.
Perhaps I may begin by echoing a point made by the noble Lord, Lord Harris of Greenwich, and others. This is the Police and Magistrates' Courts Bill. I understand why the Government may wish to have a police Bill, though it is hoped not this one, and I understand why they may wish to legislate about magistrates' courts. However, what still requires explanation is their wish to include both subjects in one Bill. First, that is bad legislative practice. If the Bill reaches the statute book and some future magistrates' clerk wishes to ascertain the matters on which he is subject to direction, or if some future chief constable requires clarification on how far the Home Secretary may tell him how to do his job, each will require a document which is more expensive, bulky and complicated than would otherwise have been necessary. It is not immediately clear how that facilitates the administration of the police or of magistrates' courts.
Of course, if the Government legislate on subjects two at a time, they may push through more business, because I doubt whether the business managers in either House will allow twice as much time for each stage. On that principle perhaps we are to have a Road Transport and Control of Agricultural Pesticides Bill. But it is not simply a matter of legislating on two apparently unrelated subjects. In this instance the Government are sending a signal which runs contrary to a principle that successive governments have tried to establish since the Summary Jurisdiction Act 1848. It has taken a long time.
In the early years of this century magistrates' courts were known as police courts. Some still carry that name; it was carved over the entrances when I first came to the Bar. Admittedly, that is not a period which can plausibly be included in modern history. The courts were often part of a building which was shared with the police station. The police were very much in evidence. Some of my noble friends will remember that. The list of cases was in the possession of a police officer. He would put a case back or take a case out of turn for those he favoured. He would call out the name of the case and another police officer would rise to present the prosecution. It was a police court in more than name and it was perceived as part of the police process. It was expected that the evidence of police officers would be believed as a matter of course. Defendants did not expect the court to intervene between the police and themselves in the interests of justice.
519 During the years there has been a process of dissociating magistrates' courts from the police. In recent years they have where possible been built a suitable distance from police stations. Now the Government bring police and magistrates' courts together again in one Bill. To put it at its lowest, they do nothing to reinforce the message which everyone has devoted so much effort to emphasising during the years. And, to my knowledge, many magistrates and their clerks are troubled by this juxtaposition.
There is one characteristic which both parts of the Bill share in common: each part has been prepared without consulting those who might have expected to be consulted. Neither part of the Bill represents proposals put before the electorate in the form of an election manifesto. The associations representing the various ranks of the police service came to see some of us here last Tuesday. They all said the same: that they regretted that they had been driven to a position of lobbying Parliament because they did not see that as a function of the police service. They said that they had not been accorded any consultation with the Government. They pointed to the Police Act 1964, which was passed after a Royal Commission and three years of consultation. They drew a sad contrast with the present Bill.
The Magistrates' Association and the Justices' Clerks' Society say the same: that the Government issued the White Paper, A Framework for Local Justice, and proceeded to offer consultation not on whether the proposals should be implemented but on how they should be implemented. It was not a Member of the opposition parties who first used the expression "an elective dictatorship". Whatever the constitutional principles, if a government hope for co-operation from those for whom they are providing legislative instructions there are wiser ways of proceeding.
I propose to devote the remainder of my comments to Part IV of the Bill and respectfully to echo much of what was said by the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Lester. That part of the Bill addresses a problem which I concede is not easy, and I fear that it simply exacerbates it. When I began to practise, judicial administration made no great demands on anyone. Administrative discussions were of a simple kind and no doubt if a judge gave an instruction it was carried out. Magistrates' clerks ran their courts with no intrusive philosophy. If an administrative question arose it depended on the relationship between the chairman and the magistrates' clerk. I remember that before the Beeching Report and the Courts Act 1971 Quarter Sessions were run by barristers' clerks who called in the chairman of sessions or the recorder if that was required. He was probably part of the same chambers.
After Beeching there was much moaning at the Bar because lists were arranged by a new kind of administrator who, it was said, did not know what was entailed in preparation for a case and could not estimate how long a case was likely to take. I believe that we overreacted; obviously, we had to come into the present world. But I believe that it then became clear to the profession that there was a whole new science of judicial administration which entailed a theoretical and practical range of questions about the interface between 520 the judicial function and the role of the administrator. Of course, we all recollect the debate about whether the Parliamentary Commissioner might inquire into the courts and the formula which was finally reached in Section 110 of the Courts and Legal Services Act 1990.
Certainly, in this more complicated world we require greater consultation between the judges and the administrators. Usually that runs smoothly because their personal relations are good but sometimes a question arises as to whether a decision is judicial or administrative. The noble Lord, Lord Lester, referred to the well-known lecture of the noble and learned Lord, Lord Browne-Wilkinson. For budgetary purposes it is agreed that a judge should not be an accounting officer. But let us suppose that he makes a decision which makes a demand on resources. Let us suppose that he says, "I will not hear another case today because no jury should be called on to concentrate at this late hour". That may represent his view of what justice requires but, of course, it has repercussions for resources and, now, for performance targets.
The problem is how to maintain the distinction in a particular case. In the case of magistrates' courts, the problem is exacerbated by a further distinction. Lay magistrates are dependent on advice tendered to them by their clerk. He is part of the judicial process. He must advise them on the law and on the correct procedure and, of course, on the consequences of their decision for administration. He may say, "If you adjourn this case it will be a month before we can fit it into the list again".
How does one ensure that that advice does not spill over into recommending one judgment rather than another? Clause 71 appears chiefly to rest on the distinction between advice in a particular case arid general administration. But even in a particular case the Government need to maintain some sensitivity in ensuring that magistrates and their clerks are not inhibited from giving proper effect to considerations of justice. The White Paper announced that the Government were concerned about limiting unit costs and measuring performance in that context. It promised the introduction of cash limits. Now we have the formula which takes account of such factors as the time taken to deal with cases and efficiency in enforcing fines. Today we have heard examples from the noble and learned Lord the Lord Chief Justice and the noble and learned Lord, Lord Ackner.
From time to time magistrates have to decide whether it is in the interests of justice for a case to be adjourned. But if performance is to be judged partly by the time taken to deal with cases—with throughput—may they not feel that they will be rewarded for refusing an adjournment even if justice cries out for an adjournment? Sometimes they are called on to decide judicially whether a fine defaulter should be accorded a measure of mercy or visited with a draconian sanction and what instalments he should be called upon to pay. But if they are to be awarded brownie points for efficiency in enforcing fines, may they not believe that the more that they can squeeze out of the debtor, the better they will be considered to have done their job?
Those are not theoretical problems. There is a real danger that the Government's obsessive belief that the 521 value of everything can be translated into profit and loss accounts will blur those issues of justice which are the essence of a judicial system.
Into that sensitive area enters the inspector. Let me say at once that I am not shocked by inspectors. I am privileged to chair the Council on Tribunals, which investigates and reports on over 60 systems of tribunals. The council has no difficulty in delineating those matters which are within our jurisdiction and those relating to specific judicial decisions.
What are the inspectors to investigate? According to Clause 78, it is "organisation and administration". Does that include performance indicators, how many adjournments have been refused, how many fines the magistrates have squeezed out of people who want to explain some financial difficulty? Those matters come very close to an invasion of judicial objectivity. They are not easy questions but they certainly call for careful scrutiny. I hope that the Government's business managers will allow adequate time during the succeeding stages of the Bill for that to be done, bearing in mind that, with the Government's curious twinning of two distinct subjects, we shall be dealing not with one Bill but with two.
§ 7.42 p.m.
§ Lord Bethell
My Lords, in the years that I have been a Member of your Lordships' House I have never known it to be so unanimous in its disapproval of a Government Bill. I wonder whether my noble friend Lord Ferrers is thinking at the back of his mind that it might save us all a lot of grief if, at the end of the day, he were to withdraw his Motion for a Second Reading. I doubt whether he contemplates that course, but I very much hope that, with his customary diligence, he is noting all the points which have been made and the inexorable criticism that has emerged from speeches so far this afternoon. I hope that he is thinking very carefully of what amendments can be put down.
It seems to be the view of your Lordships that the Bill has somehow gone wrong and that it provides far too much centralisation in the administration of law, order and justice in this country. It seems to be the view that too much power is given by the Bill to the Home Secretary of the day. The point has been made and should be made more than once that it is not particularly the present Home Secretary whom one has in mind. One has to think of future Home Secretaries who may be less careful of their duty to the public than is the present incumbent.
I feel inhibited from speaking for too long and will not do so because these points have been made many times by earlier speakers. At the outset I declare my own interest in that I am an adviser to the Police Federation of England and Wales. The police are only one of many interest groups which have complained today, through various noble Lords, that they have not been properly consulted. That seems to be one of the main problems lying behind the birth of the Bill. I am told that various proposals were put before the Police Federation less than a year ago with a request for immediate response (within a few days) and that then decisions were taken 522 on matters of great concern to the police; namely, on matters concerning police authorities—who should be in charge of them, who should be appointed to them, what powers they should have and what their numbers should be—and on the issue of police discipline, without any further consultation. The latter is a very important point to which I shall turn later. The same complaint has been made by members of the legal profession and other interest groups.
The complaint does not come only from the lower ranks of the police who belong to the federation. Many noble Lords will have seen the letter from Sir John Smith, president of the Association of Chief Police Officers, in today's issue of The Times. He says tellingly that this Bill is contrary to the national interest and gives far too much power to the Home Secretary. I believe that my noble friend will consider that point very carefully.
One has to be very cautious indeed about giving too many powers to any Home Secretary—or Minister of the Interior, as he is called in other countries. We know from our studies of contemporary history what a Minister of the Interior can do if he is given too many powers. I am sure that the instinct of many noble Lords is to curb Home Secretaries. They have enough problems of their own, as former Home Secretaries who have spoken today have made clear. They should not be empowered to commit more mistakes than they can legitimately commit in the course of their tenure of office.
I want to concentrate on a point which has not been dealt with in very great detail, though the noble Earl, Lord Winchilsea, touched upon it; namely, the matter of police discipline. In the list of the contents of the Bill, it is stated that certain sections of the 1984 Act will be repealed:to pave the way for regulations to introduce less formal discipline procedures".That is something which the police view with the greatest alarm.
It is all very well to talk about "less formal discipline procedures". But how would any of us feel if we were the subject of a less formal discipline procedure that could deprive us of our livelihood and our job in the police service and, what is more, make it very difficult for any one of us found guilty under such an informal procedure to find any other job in the sector in which we were trained to work: the sector of security. No one wants to employ a bent copper. Once out of the police force one is more or less out of work for the rest of one's natural life. That is why I believe that the police are quite right to say that they do not want less formal disciplinary procedures. They want the most careful disciplinary procedures to be maintained, as they properly were in the 1984 Act.
I am told that there are no fewer than seven ways in which the Government propose to make those procedures less formal or, as the police would say, more likely to create injustice against the police. We all know that there are certain sections of society where a complaint against the police is the rule rather than the exception when one faces a police problem. A few 523 people will automatically make complaints against the police simply in order to provide themselves with a bargaining counter.
At the moment, when a policeman appears before a disciplinary board he may be legally represented at his own expense. I am told that under these proposals he will lose that right to be legally represented. He will also lose the right at a hearing on discipline to cross-examine hostile witnesses who may come forward against him. He will lose the right to have a staff representative present to advise him and to cross-examine witnesses. He will be permitted to have only what is called "a friend" with a watching brief and no power to take part in the proceedings. If he takes the matter to appeal after being convicted of a disciplinary offence, there will be no staff representative on the appeal board. At the moment, a staff representative sits with the chief constable and others on the appeal tribunal.
It is proposed that only officers dismissed or asked to resign, and not those reduced in rank, should have the right of appeal to an appeal tribunal. What will be the position under that proposal of someone who is severely and humiliatingly reduced in rank from, say, chief inspector to constable? One could imagine that a senior police officer might be reduced in rank merely to avoid the possibility of an appeal, because it is known that were he to be dismissed or asked to resign an appeal would be forthcoming. As I am informed, under the present proposed procedures an officer severely reduced in rank will have no right of appeal. A convicted officer will have to pay for an appeal out of his own pocket. Again, that will have the effect of reducing seriously the number of appeals by police officers found guilty of disciplinary offences. Not many of them will have the money to pay for their own appeals. And, of course, as my noble friend Lord Harmar-Nicholls said, the burden of proof is to be reduced sharply. At present, under the 1984 Act, a police officer must be proved guilty beyond reasonable doubt of the offence with which he is charged. Now a much lower criterion of proof, or probability, will be used to decide whether he is in the wrong or the right.
I should be grateful if my noble friend the Minister would comment on the seven points I have made, but if he does not have time this evening, in what no doubt will be a complicated speech, perhaps he could write to me about them. I have to apologise to him for the fact that I shall be unable to be here at the end of the debate because I have to catch an aeroplane.
I hope that it will be possible for your Lordships to fulfil your constitutional function and put this Bill into the sort of shape that when it goes down the corridor it could be accepted on an all-party basis. I agree with my noble friend Lord Whitelaw on that score. Matters of this kind are best dealt with on an all-party basis and with all-party agreement. I trust that such all-party agreement will also be acceptable to the various professional bodies representing the police service. In that case, the Bill would be able to go forward and be approved by this Parliament.
§ 7.54 p.m.
§ Viscount Tenby
My Lords, perhaps I may begin by declaring my interests, in so far as concerns the Bill, as a magistrate, a member of a police authority, a member of the Magistrates' Association and as someone who represents the Justices' Clerks' Society of England and Wales in the House. I should perhaps say that that considerably litany does not herald the fact that I shall be on my feet for a considerable time. The views I express today are, however, my own.
Because of the great interest in the Bill, and therefore the long list of speakers I propose to confine my remarks to some aspects of only two of the clauses. Other matters, some constructive and others not, are of course of great importance, but I prefer to concentrate upon those proposals which seem to me to pose the greatest threat to our traditional form of government.
The Bill has already attracted criticism, as the noble and learned Lord, Lord Archer of Sandwell, said, irrespective of its contents because two major constitutional sets of proposals, in areas not obviously linked, are presented not separately but in the same Bill. In one way, however, that impatience or economy—whatever it may be—has backfired, because it brings into sharp relief far better than can any words of mine, the underlying themes of both initiatives; namely, the inexorable move towards central control at the expense of local democracy and local government. For a government who are said to espouse the cause of self-regulation, nanny in Whitehall has never been in more robust and interfering health.
I have already spoken on the proposed composition of police authorities in a debate in the House as long ago as last May. Until about that time, my own authority was very much under Conservative control. Despite that, I could not find one member who thought well of these proposals which were already in embryonic form, and that is putting it extremely mildly so as not to offend your Lordships' susceptibilities. The present composition of the body is 36—slightly above the national average of 31—but it includes the Isle of Wight. Two-thirds of its members are elected councillors with the remainder being unelected magistrates. On the presence of the latter, I had an open mind for many years for, after all, they are unelected—a state not entirely unfamiliar to some of us in this House—but I have since Come to accept their presence for a number of reasons. First, the police believe strongly that their input is both expert and useful. Secondly, in my experience they are genuinely independent and vote on the merits of any particular case. But, above all, they do not have a majority, and rarely, except in some legal matters, vote as one.
Those were the good old days. We are now to have a fixed membership of 16 on all police authorities, whatever the size of the area involved, only eight of whom will be elected. The more than halving of elected members in, for example, an authority such as Devon and Cornwall, comprising nearly 4,000 square miles, will have a devastating effect on local representation, and all experts agree that local representation is the key to effective policing. It is quite frankly preposterous to 525 talk of these proposals as likely to produce better results in the fight against crime. Most crime as any policeman will say, is highly localised, and it is precisely because of that that the contribution which local councillors provide, with their additional expertise in education, social services and the like, is so important. That fact has been recognised implicitly since the days of the watch committees and is thereafter enshrined in the Police Act 1964.
In setting out yesterday, in a Written Answer in another place, the objectives for future police authorities, the Home Secretary listed as one of them to:Help to build a partnership between the police and the local community".—[Official Report, Commons, 17/1/94; col. 376.]It might be more appropriate to rephrase that to take account of the Bill along the lines of, "to help to build a partnership between the police and the local community recently destroyed by government action", but, be that as it may, the effrontery—I make no apology for using that word —of dismantling a relationship which has existed for many years and then, amidst the wreckage, to talk about building a partnership, is breathtaking.
So why have the Government decided to damage fatally the tripartite relationship between Home Secretary, chief constable and local authority? I may not be as charitable as the noble Lord, Lord Knights, who put forward one theory. Another one is that I suspect that a few authorities have, at some time or another, misbehaved and that memories are long. But democracy has a habit of being inconvenient, and long may it remain so.
There are other contentious issues in the police side of the Bill: the appointment of authority chairmen; his or her relationship with the Home Secretary, with the chief constable, and with the authority itself; the question of the precept issued on a local authority, and so on, but all have been covered adequately here today.
I turn now to the second barrel of what is a distinctly dodgy shotgun—the proposals intended to improve the performance of magistrates' courts. It is undoubtedly true to say that the past administration of such courts, via the magistrates' courts' committees, has left much to be desired. Professionalism in management was markedly absent and membership of the magistrates' courts committees owed more to popularity or seniority than anything else. The appearance of the Le Vay scrutiny in 1989, however, concentrated minds wonderfully, not just the minds of Whitehall mandarins but also of those forward looking magistrates who wanted a service of which they, and the public they served, could be proud Consequently, many magistrates' courts committee areas put their houses in order. Costs have been substantially reduced, strategic objectives set, administration streamlined, computerisation fully implemented and much, much more. But it was not enough to stop the inexorable and lumbering advance of the government juggernaut. Now after much consultation, but one has to say regretfully little meeting of minds and even less concession than hitherto, the Government have enshrined in this Bill their view of the way forward.
526 Although there are a number of points of great importance in sections of the Bill—for example, the right of the noble and learned Lord the Lord Chancellor to merge magistrates' courts committee areas after consultation and to amend the constitutions of magistrates' courts committees—the two principal constitutional issues lie, first, in the proposals to appoint a chief justices' clerk for each magistrates' courts committee area and, secondly, to put justices' clerks on fixed term contracts.
Let me start with the first. The concept of a chief executive answerable to the magistrates' courts committees for the efficient and cost effective running of the area is one which must attract the support of anyone who wishes to see the service reach the highest standards of management; but we are talking here of the management of resources and it would in my view be most damaging and counter-productive for them to interfere in legal matters or to have individual court clerks answerable to them in matters of law. This would seriously compromise the independence of the advice which they give to their Benches. And this is no mere scaremongering. Even under the present system in recent years we have experienced government influence; for example, in effect saying, "Send miscreants to prison then, once the prisons become full, please punish them in the community". Now we appear to be back at square one. Further, when the unit fine system in the previous Criminal Justice Act became discredited, magistrates were urged to jump the gun before the revised provisions were enacted by Parliament.
At that time our clerk was able to urge us to stand our ground and not bow to political expediency. I wonder whether he would have been able to do that with a chief justices' clerk breathing down his neck or with his career tied up in a fixed term contract—with his local magistrates' courts committee to be sure, but with that organisation responsible to the new inspectorate which in its turn is answerable to the noble and learned Lord the Lord Chancellor. So the temptation to persuade is already there. How much easier it will be to succumb wholly to it under the new arrangements. Let the Government make one conciliatory gesture at least by confining this new executive role to administration matters only, and to reinforce that by calling him or her the chief executive.
Now I turn to the contracts of court clerks. It is proposed that these will be with the appropriate magistrates' courts committees on a fixed term and performance related basis, the noble and learned Lord the Lord Chancellor having the power to determine the terms contained therein. Quite apart from what many would see as the undesirability of trying to equate the operation of justice with piecework, as I have already mentioned, the path of control, though tortuous, eventually leads to the door of the noble and learned Lord the Lord Chancellor.
It is all very well saying that the independence of a clerk's advice to his Bench will be safeguarded (an independence, incidentally, which it has not hitherto been thought necessary to guarantee over the past 600 or so years) but if you are a clerk with a young family to 527 bring up and with perhaps a promising career to protect, the incentive to toe the party line will be powerful indeed. The solution might be for individual magistrates' courts committees to arrange the conditions and terms of the contract, perhaps within a framework supplied by the central council of magistrates' courts committees.
This is an unusual Bill—unusual in that all the principal players who have a role to play in implementing its provisions oppose it in one way or another. It creates in both the police and local courts a degree of central control which is unacceptable. I do not attribute to this Government a deeper and more sinister meaning to this, but I believe they are profoundly mistaken and I beg them to look again, in the light of all the informed opposition ranged against them, at the wider long-term implications of certain of these measures. After all, as the noble Lord, Lord Stoddart, has already said today, once the structure has been put in place, a less benign—let us be quite frank about this—and more efficient government of the extreme right or the extreme left will have the launching pad they need. We must pray that that never comes to pass and it will not do so if wiser counsels yet prevail.
§ 8.6 p.m.
§ Lord Finsberg
My Lords, I commence by apologising for missing some of the opening speeches but I had long-standing engagements that I simply could not break. I should perhaps apologise for being about to break the golden thread which has run through the debate so far and to say that I might perhaps claim an entry in the Guiness Book of Records because I do not see all these sinister things that have been attributed to this Bill. Of course it is not a perfect Bill; no government have ever produced a Bill that is perfect. However, the Bill is certainly nothing like as evil or as bad as most noble Lords who have spoken have implied.
I first read the Bill during the Christmas Recess and I read it again on the plane coming back from Brussels yesterday. I have also taken soundings amongst friends who are in the police, or who are magistrates or in local government, and I must confess that I found it somewhat difficult to relate some of what I have read in the press and heard here today with what I understand the Bill to say. Indeed I wondered whether, having heard all these speeches, I should speak and, as I say, break the tenor of opposition, but I genuinely believe that the Bill is an honourable attempt to blend justice and efficiency. I decided therefore that I would maintain my decision to speak.
I must say that we would be making a great mistake if we thought that there was not immense sympathy amongst the general public for the concepts in this Bill. I do not think anyone who has been in touch with the general public would deny that. Of course many organisations who do not like change will be mustered against the Bill, but in the end it is the duty of a government to try to protect the general public. I believe there is an opportunity here to do that. What people want is to have an idea that Parliament is trying to assist them. I believe they will accept that if it is done in a genuine way.
528 I spent 10 years on the bench as an active JP and I accept the assurances given by the noble and learned Lord the Lord Chancellor on the question of interference, non-interference and independence of the justices' clerks. Perhaps that is natural because, when I was a Minister, I never said anything that I did not intend or that I did not believe. I am quite sure that that thread runs through this Government too. Therefore I do not believe that many of the charges can be or should be sustained. For example, the new composition of the police committees is practical. I do not believe that it provides centralisation to the degree that is spoken about. We must not dismiss all ideas of centralisation because we have repeatedly heard demands from the public and elsewhere that something should be done to get the police to work more closely together than they do in these days of growing crime and the speed with which it is possible to get by motorway from one end of the country to the other.
I carefully read the parliamentary Answer yesterday on the police authorities and the question of the appointment of independent members. I can see nothing in that proposal that would indicate to me that only placemen are to be appointed. I believe that the skills that are likely to be produced are those which should not be lightly dismissed. I would hope that what is said in the last paragraph of the Answer, that the Lord Lieutenants would be involved, would doubly reassure most people that the independence of the people selected would be genuine. My understanding of the proposals is that the Secretary of State or the Lord Chancellor can only select people from the list that has been drawn up of what I would call the independent, great and good, people not connected with any party machine, and that there is no question of the man from Mars being imposed from outside as chairman.
I very much welcome the fact that the City of London police are to remain as a separate force and that their future is safeguarded. I am delighted that the nonsensical idea of a police authority for London has been removed. As one who spent 44 years of elected service in London, I know that that idea was never wanted by ordinary people; it was only wanted by politicians, and occasionally politicians can be proved to be wrong. I am delighted that my noble friend has removed that particular clause.
I hope that there will be similar treatment for the idea that would provide in the Bill for the amalgamation of the City of London magistrates' courts committee with the rest of inner London. I do not think that that would be particularly helpful.
I have some sympathy with those who would have preferred two Bills, and I agree that this Bill should not be examined in a party political spirit. I would certainly repudiate the attack made on the Home Secretary for what he has produced.
There is a very good practice—it is not adopted enough in another place—of being able to send a Bill to a special standing committee. I feel that if the Criminal Justice Bill had come here first, and if this Bill had gone to the other place and been subjected to the special standing committee process—and I went through that when I was a Minister dealing with mental health 529 legislation in 1982—it might have ironed out some of the difficulties that many noble Lords have pointed out to us. At least we should have been able to find the right solutions if matters were raised in that way, but clearly it is now too late for that to happen.
I hope that as the Bill proceeds, and as my noble friend Earl Ferrers responds, some of the misunderstandings and misconceptions that I have heard uttered this afternoon will be cleared up so that the public does not get the wrong impression of this legislation.
§ 8.15 p.m.
§ Baroness Fisher of Rednal
My Lords, following what the noble Lord, Lord Finsberg, has just said, perhaps I may say that if greater consultation by the Government had taken place some of the points that he raised in his final words need not have been expressed. The folly is that there has been no consultation. The Government made up their mind, as they made up their mind on education and on other matters, that we all have to get into a little trough and be called good performers. We have to be measured on our performance almost as though we were some theatrical stars putting in for an Oscar.
It was in 1989 that the Le Vay Report started off the scrutiny of magistrates' courts and obviously sowed the seeds for some kind of reorganisation, and perhaps it is as well for us occasionally to see if we can do things better and more efficiently. The magistrates' courts took that report very seriously and implemented many of the recommendations. Most justices' clerks and their staff now have professional management qualifications. They have attended courses and seminars to improve their skills in the area of the courts, not only in managing people, which means to say the client population as well as the magistrates, but also in managing budgets.
Therefore the main concern which all court users will have is the threat from this Bill to judicial independence. That is causing considerable worry. If the Government's intentions become law the day will not be far away when magistrates' courts will be urged to dispense justice with their eyes firmly fixed on the public purse. We are finding this in all realms, and we must look at it seriously. Perhaps the only people who are not supposed to take it seriously are those hospital authorities, among which I include Wessex and the West Midlands.
I am at a loss to understand how courts can speed up the legal process on the grounds of cost effectiveness. There are many decisions in divisional courts and the Court of Appeal which constantly remind justices that, although delays are undesirable and put a strain on the public purse, the main factor is to ensure that justice is done by all the parties. I am sure that the noble and learned Lord sitting on the Woolsack would agree. If delays have to take place so that justice prevails, that is a system which we all want to uphold. In order to follow this principle, it will be necessary for courts to grant further adjournments to give both sides the opportunity of being heard.
I know that the Lord Chancellor has been requested to cost the new structure. There may be good reasons 530 why he does not want to do that, but it seems that the requests have been refused on the grounds that the greater efficiency expected of the new management will result in savings in real terms. We have heard that on many occasions, but it never really works out in practice. Reading between the lines—and this is the worry for justices' clerks—it seems that massive redundancies may take place in the future to save costs.
Many noble Lords have suggested that there are some dangerous centralising proposals in this Bill. I would agree. We almost have a Gilbert and Sullivan opera taking place, where the Home Secretary becomes the Lord Chief Constable, then the Lord Chief Sentencer, and then the Lord High Executioner to police and magistrates' committees if they do not act the play correctly. That is the way I see it. However, perhaps we should not take the theatrical performance analogy further.
As other speakers have said, the police and the magistrates are being dealt with together. We have not yet received a reason as to why the Government made the decision to deal with two important bodies under the same Bill. Such matters are important not only for the people employed but also for ordinary people. The people who go before the magistrates' courts are not those we see coming out of the higher law courts under the glare of television lights because they have won their cases. Those who appear before magistrates are, in the main, people who cannot afford justice. Moreover, many of them are being denied it now because of the cutbacks which are taking place as regards legal aid applications. I am talking about real things that affect ordinary people. Therefore, what we are seeing is a disregard of the Citizen's Charter and all that that was supposed to give ordinary people. As one noble Lord said, we have come back to the precept that Whitehall knows best.
The important question is: will increased management of courts reduce crime? It may in fact have just the opposite effect as regards the prison population. If brownie points are to be obtained for sending people down, it may mean that one will try to get the efficiency factor going up the scale when the inspector comes around by putting more people away.
If we are to have performance-related pay, I hope that the noble and learned Lord the Lord Chancellor will, in Committee, spell out clearly what kind of performance is necessary. Performance-related pay is, I suppose, the modern word for what was once called "piecework" in manufacturing industry. Coming from Birmingham, one knows about manufacturing industry. The worker's related pay was based on what he produced. Therefore, they counted how many cars went off the ramp or how many boxes of chocolates were made. Thus, you were paid according to how much you produced: if you produced 10 boxes you received x amount of pay. In other words, what was produced could be seen and counted.
However, as regards the proposed performance-related pay, what will be counted? What will be its important aspects? I fail to understand what is proposed because nothing will be visible; it will be some kind of hypothetical product. Therefore, I hope that the criteria 531 will be clearly defined in Committee. For example, will it be the amount of money as regards fines collected, the number of people sent to prison or the number of poll tax payers who have not paid their bills and whom we have made cry in the courts because they cannot afford to pay in any event? What are we to judge in assessing performance? I think that my noble friend the Chief Whip is looking at me now and is probably saying, "Well, the performance ought to end now, Doris", or something like that.
§ Baroness Fisher of Rednal
My Lords, perhaps I may now return very clearly to home. I was appointed a magistrate in Birmingham in 1961. I feel sure—and the noble Earl who is to reply to the debate will correct me if I am wrong—that Birmingham is the largest magisterial Bench in the country. There are over 400 magistrates and just over 40 magistrates sit every day on a fortnightly rota, with two courts sitting on a Saturday. Perhaps that is an indication of the amount of crime that goes on in that great city. Of course, it is not all crime; many people who appear before the courts these days do so because they cannot pay their bills. So I have some knowledge of magisterial functions. I have always felt proud that the Birmingham Bench is very competent—and, rightly so. It should be.
However, the fact that worries me is that the Birmingham magistrates' court committee will no longer be able to stand as an entity in its own right in the future. I understand that Birmingham, Solihull and Coventry are to be joined together. The idea is that the expenses can be shared and so many Birmingham cases can, perhaps, be sent to Coventry or Solihull. That sounds all right on paper, but the people who appear before magistrates' courts are not the most wealthy in our society and the cost of travel from, say, Birmingham to Coventry will be quite considerable. If one looks at a map of the motorway, it looks as though Coventry is only half an inch away from Birmingham. But the cheapest journey from Birmingham to Coventry, by whatever means of transport, will cost between £3 and £3.50. It will be unfair if people appearing before the courts are to be asked to travel greater distances. It is an important point to bear in mind if one is thinking of transferring cases from the Birmingham courts to others.
I am aware that other speakers have talked about what is proposed as a centralising measure. I agree with that view. However, I also think that it has ominous party political overtones. I say that because, if we look at the metropolitan districts in the country, it will be seen that they are places such as Birmingham, Coventry and all the others in the North. All of them are controlled by a particular party; namely, the party to which I belong. Moreover, not one of those metropolitan districts will have an independent magistrates' court committee. It seems to me to be quite ominous that such a separation should be taking place. I ask the noble and learned Lord the Lord Chancellor to look at that 532 implication quite seriously. Not only is it a centralising measure, but to my mind it has very ominous party political overtones.
§ 8.27 p.m.
§ Lord Mottistone
My Lords, it is always a pleasure to follow the noble Baroness, Lady Fisher, because she talks in practicalities and brings us back to earth. She talks about such matters as piece rates, whereas I believe that, perhaps, some of the people who invented parts of the Bill have no such experience. At the outset, I have to say that, notwithstanding the customary excellent introduction by my noble and learned friend who sits on the Woolsack, I believe the Bill—that is, especially so far as concerns magistrates—to be unnecessary and potentially seriously damaging to the fair and impartial administration of local justice.
I do not have such strong views about the part of the Bill which relates to the police because I do not have the same close relationship with and, thus, understanding of that important law enforcement body, as I do with the magistrates. However, I have much concern about certain clauses in the police part of the Bill and I propose to pursue those in Committee together, I now know, with many other noble Lords who will be pursuing the same points.
I should add that I know that my noble and learned friend is aware of my view that Part IV of the Bill is inappropriate for the Isle of Wight in particular because of its geography. I am most grateful to my noble and learned friend for his repeated emphasis that, in the event of the Bill becoming law, he will give serious consideration to the express wish of the Isle of Wight to retain its independent magistrates' court committee. However, I want to impress upon your Lordships the fact that, quite apart from the unsuitability of most of it for the Isle of Wight, it is a thoroughly unwelcome Bill for England and Wales as a whole.
The magistrates were full of hope that their affairs would be looked after by a government department which would understand their needs and their peculiarities better when the responsibility for their administration was transferred from the Home Office to the Lord Chancellor's Department. That was because the Lord Chancellor's officials concerned with the appointment of magistrates really did understand them—and still do understand them—so well. Unfortunately, the difficulties that we have experienced with the Home Office seem to have occurred with the change in departmental responsibility.
Part IV of the Bill is a product of what was called the Le Vay Report which was commissioned by the Home Office five years ago. I draw to your Lordships' attention two features of that report. First, the officials who conducted the inquiry never visited the county of the Isle of Wight, and in other parts of the country they refused to meet chairmen of the Bench, chairmen of magistrates' courts' committees or any experienced magistrates. They appear to have met only officials. Secondly, the report was universally condemned by the majority of the people it would have affected.
The contrast between that behaviour in conducting a local inquiry and that of the Local Government 533 Commission in its study into the possible creation of a unitary authority in the Isle of Wight and many other places is striking. That commission went out of its way to seek advice from all those who might be affected by change. A good example of how it did it can be found in paragraph 98 of its recently published progress report dated December 1993. That report as a whole should be compulsory reading for all central government officials who seek to change any form of local administration. The Local Government Commission specifically recommended that the Isle of Wight retain its own magistrates' courts committee. Subsequently, the Secretary of State for the Environment approved that recommendation.
Both subjects of this Bill—police and magistrates—are matters which for centuries have been found by Englishmen and Welshmen—and, for most of the time, central government—to be best administered at local level on behalf of the Crown. I refer to the Crown and not the Government. For most of those centuries the Crown was being served. When I was in the Navy I served the Crown, not the Government. By that process the administration of justice has been in keeping with local feeling and is as effective as practicable in the local environment. With that background of long-established, well-tried practice we need to take special care not to upset it unnecessarily. Over the years, Conservative Governments in particular have been well known for their caution in not upsetting well-proven practices.
Why therefore do this Government—whom normally I support — wish to make changes which in different ways will increase the centralisation of both police administration and that of magistrates? I suspect that it stems from Ministers who over the past 14 years have encouraged central government officials in all departments to take greater responsibility for their actions, including the handling of public money. At first sight, this appears laudable as a general aim. However, it seems to me to have had the effect that officials say to Ministers that they will try to take greater responsibility for spending public money but they can do so only if they and Ministers have greater control over those outside Whitehall who have a hand in spending it. With the greatest respect to Ministers, they have fallen for that. Thus, we have been faced with the dangers of creeping centralisation—it has crept a long way—that even the Soviets have realised does not work.
One aspect of the Bill, which has been the subject of an Answer to a Question, is the appointment of "discovered" local people by central government officials instead of locally-selected JPs and locally-elected councillors, who have volunteered in the first place for their respective positions, in order to constitute some of the committees.
I turn to the effect of those matters on Ministers who are responsible for the administration of magistrates. Mr. Le Vay was asked to see how the Home Secretary could have greater control over magistrates' courts. Referring to paragraph 3 of his summary, Mr. Le Vay found that they dealt with 95 per cent. of all criminal proceedings and provided a relatively quick, cheap service costing about £200 million a year to run. That 534 sounds pretty good. The cheapness is not unexpected. Magistrates are unpaid and their travelling expenses are less than your Lordships are allowed. In my experience, the quality of those magistrates is also good. They are carefully selected. Many are public-spirited, intelligent and experienced people who volunteer for the task. However, the sting was in the tail of the paragraph in Mr. Le Vay's report which said that the service was highly fragmented. I doubt whether that is strictly true. My magistrates' courts committee has been very tightly managed ever since the retirement of a justices' clerk. We had to recruit a new one before Le Vay was on our doorstep.
The noble Viscount, Lord Tenby, suggested that the improvement in efficiency came about because Le Vay was travelling around. We started to increase efficiency not only before Le Vay but before my noble and learned friend the Lord Chancellor took up office and started issuing documents so fast that we could hardly keep up with them. Our efficiency depended upon getting a new young clerk. I suspect that over time that has happened to everybody.
Mr. Le Vay went on to propose a series of centralising modifications to the process of administration which would cost £600 million a year to operate—three times as much as the so-called locally-based fragmented system. My noble and learned friend the Lord Chancellor is not going the whole way with Mr. Le Vay's detailed proposals, but sadly he picks up his advice about centralised management. In his latest pamphlet on the reforms, which has been described as propaganda, he says that the magistrates' courts now cost £300 million. He does not mention the £270 million that comes in in fines. One is not allowed to talk about those because they may encourage people to have more fines. The pamphlet says that as the new arrangements settle down value for money gains will more than offset initial costs.
The noble Baroness who spoke before me said that people had asked what those money gains would be and got the same answer. There is absolutely no proof of such a gain, whatever that statement means. If it means what I think it means, earlier experience of other government changes certainly refutes it. The likely long-term result of taking away the administration of the courts from local areas conducted by committees of JPs, with a strong element of local businessmen among them all selected locally by fellow magistrates, will be that the quality of volunteers for the magistracy will diminish, the new remote administrators, who will report more directly to central government, will be less effective in managing the local affairs of the magistrates' courts and the relevant local authorities will have less say in how local money is spent. As other noble Lords have said, there is also a strong risk of the independence of local justice being eroded notwithstanding Clause 71 of the Bill.
In his new pamphlet my noble and learned friend makes various claims about practices which are either currently in effect, mainly due to the initiative of local JPs and administrators and their clerks, or unnecessary. I understand that much the same could be said of that part of the Bill dealing with the police. Examples in the 535 Bill of practices which are currently effective without further legislation are subsections (1) and (2) of Clause 62 and the whole of Clauses 63 to 71. The only useful parts of the Bill are Clauses 78 and 79 setting up an inspectorate, and my noble friend has already implemented that without waiting for legislation. Therefore, I imagine that legislation is not necessary.
Examples of unnecessary bossiness are found in subsections (3) to (7) of Clause 62. A careful study of the 1979 Act shows that in that Act my noble and learned friend has all the authority which he says in his pamphlets he needs. An enormous amount of authority is built into the 1979 Act. I had no idea just how easy it was for the Secretary of State to intervene if he felt like it. Happily, Secretaries of State have not done so to any great extent.
As suggested by other noble Lords, is it too late to ask my noble friend who is to wind up to withdraw this Bill today in view of what he has heard in this debate? The only noble Lord who has spoken wholly in favour of it is my noble—and if I may put it this way—and urban friend Lord Finsberg. To withdraw the Bill would spare us much unnecessary legislative time, much potential unpopularity for the Government and a lot of really hard work traipsing through the Division Lobbies. implore my noble friends to think seriously about that suggestion.
§ 8.41 p.m.
§ Baroness Hamwee
My Lords, I apologise to your Lordships for having been unable to hear all of the opening speeches in this debate, although I was able to hear the noble and learned Lord the Lord Chancellor. Reports of powerful opposition to the Bill made their way quite swiftly into the Moses Room, where I was attending a Committee.
Like other noble Lords, I do not consider it necessary at this time and after so many speakers to echo all the disquiet and criticisms that have been expressed. There has been both quality and width in that regard.
I had not intended to refer at all to the police, although I share the views of those who are concerned about further quangoisation and the further leaching of democracy. However, I cannot resist remarking on the references by the noble and learned Lord the Lord Chancellor to efficiency and effectiveness. Those, of course, have been the twin objectives of local government for many years and indeed have been successfully achieved by many local authorities. It is ironic that the police authorities will be decoupled from the local authorities in order to try to attain those objectives.
I shall confine my remarks to Part IV of the Bill regarding magistrates or, as many of your Lordships have noted, the Bill within the Bill. Like other noble Lords I was sad to see the two very different subject matters dealt with in one Bill. I fear that it is not becoming for the sections dealing with magistrates to be introduced at the same time as the police Bill. That seems to me to be a conjunction rather than a separation of powers.
I shall refer only to some parts of Part IV, but that should not he taken to mean that I approve of the rest. 536 Others of your Lordships are both more expert and more learned—in the way in which we use that term in this House—with regard to the separation of powers, but I too subscribe to the view that they should not merely be separate but should be seen to be separate.
I understand the anxieties that have been expressed: the threats to judicial independence, not just with regard to the role of the chief justices' clerk, although the understandable human response to the role will be to feel pressured by central government; the whole question of cash targets and requirements, no doubt, to dispose of cases cheaply, possibly out of sequence—and many of your Lordships will have heard references to what happened during the miners' strike; the issue of performance related pay, which is fashionable these days although I suspect that it is a fashion which will not endure; and performance targets. The hardest performance target to assess is that of quality. That can easily lead one to concentrate on what is more readily quantifiable, and in this context that would be a great pity.
The noble and learned Lord the Lord Chancellor referred to the scrutiny having identified flaws in the structure of the magistrates' courts and a lack of coherence. Does that really matter? Why is there an urge to centralise? The noble Viscount, Lord Tenby, referred to inexorable centralisation. It is clear from today's debate that your Lordships are prepared to stand out against that centralisation and it cannot be taken for granted. The magistrates' courts service is inevitably a demand led service. No doubt there will be a question of cash limits, and cash limiting must change the thrust of the work. Efficiency is important but it is by no means all.
I have to confess that I am not clear whether costings of the changes have been prepared. No doubt there will be no new money. There is another irony, in that in 1985 the outer London courts saved a layer of administration. If that is to be reimposed it will have to be paid for, probably from existing limited budgets.
The magistrates have been very open-minded about the prospects of an inspectorate but they are right in calling for it to be truly independent. Its role will be diminished if it is not independent. The inspectorate could achieve savings without changes to the magistrates' courts committee. Again to refer to outer London, the magistrates regard the changes made in Outer London in 1985 as having achieved substantial benefits. Proper local control has been achieved, with the magistrates' courts committee working in partnership with the local authority. Coterminosity has meant cost-effectiveness and efficiency and has saved the salaries of the full-time clerks to four outer London committees and their support staff.
Of course I welcome the commitment to local consultation before the proposals proceed, but one must feel that already there has been an adequate response to the proposals as they have been known so far. It is sad that there is not greater optimism among those who work in the service that their reactions have been taken on board.
In outer London the proposals involve an area from Hillingdon to Havering, from Richmond to Bexley. To 537 put it another way it is an area which stretches from Heathrow to way down the Thames. The communities which comprise those areas are not related—other than quite loosely geographically—administratively or in any other way. Those who live in the extreme west regard the east as a foreign country. The whole culture and ethos of the magistracy is that it is local justice. I am advised that not only will a cultural change be required but there will be practical problems. Magistrates who are required to relate to a wide area may be deterred. New recruits may be deterred. There may be resignations because of the travel and the distances involved. Members of the committees are thought likely to have to be full timers in order to cover the area. Currently they have jobs and reflect their communities.
Are the magistrates trusted? Surely they are. If they are trusted why is it necessary for one, the chairman, to be approved? The very job of being a magistrate must involve assessment of personality. I would imagine that that is the day-to-day work of those sitting on the Bench. I would expect that magistrates could apply that in choosing their own chairman.
The political message to the cynics among us reeks of yet another placeman and I believe that it reflects no credit on the Lord Chancellor and it is unfair to suck magistrates into the controversy. We are told that many of the reforms are already in place in different parts of the country. Exactly so. The magistrates have the common sense, the intelligence and the energy to put reforms into place, to deal with their own work in the most effective way for their own local circumstances. They can and should be autonomous and I believe that they can be trusted to apply changes where they are needed. Similar points could be made with regard to the Lord Chancellor's default powers.
It is clear that there is a will among the magistracy to co-operate, but there is a distinct resistance to being compelled. I cannot help but compare the situation with that of local authorities where the same kind of energy and drive for efficiency exists, but there is a distinct dislike of being told what to do by central government. Dare I say that magistrates are even more respectable than members of local authorities?
In these days of deregulation, I do not understand why the Government are impelled to make changes which are clearly so unpopular and, I believe, so unnecessary.
§ 8.51 p.m.
§ Baroness Seccombe
My Lords, I do not intend to detain your Lordships for long. There are many measures in the Bill which I welcome as an initiative to ensure that we have modern, efficient police and magisterial services. Tonight, however, I wish to confine myself to magisterial matters and to concentrate on one or two points which are troubling me.
I have had the privilege of being a magistrate since 1968. We sat in an out-of-date court house and I well remember that cut into the stone over the main entrance were the words: "Police Court". The clerk of the day explained that thinking had changed and they had tried 538 to obliterate the words without success, because now it was a magistrates' court. That is the way I have always seen it and that is the way I wish it to stay.
I joined a Bench of 26 and since that time we have grown to 150. When I compare the modus operandi of those days with today, it could not be more different. We have, over the years, developed; training is now a high priority and since the Le Vay report, the magistrates' court committee has become highly professional, attracting those members who have managerial and specialised skills.
The contribution that is made by magistrates—over 29,000 nationwide—must never be underestimated nor taken for granted. In my experience, there has always been a very positive response to new initiatives and, when intensive training has been required, magistrates have generally given weekends and evenings to comply with the demands.
There are many magistrates who have made great sacrifices to work on the Bench. Promotion for some has been denied because of their absence from work. Others have lost pension rights involving large sums of money. But this they have done without complaint, feeling that it was a worthwhile contribution to the community.
It is therefore with great sadness that I hear their views today. I have had many letters and calls expressing fears for the future of the service. There seems to be a unanimity of feeling that there is a centralising thrust and a generalised approach of legislation by regulation with control of practically every aspect in the hands of the Lord Chancellor's Department. Magistrates see their work today as a serious and creatively serious job and just cannot understand why there must be such a radical change. For me, one of the most exciting events in my life was when my colleagues elected me chairman of the Bench. We, no one else, had just appointed a young, enthusiastic and highly efficient clerk. I like to think that, during my term of office, we worked as an efficient team. I had trust and faith in him and I know that he had complete loyalty to the Bench and his magistrates.
It therefore concerns me that this partnership may not exist in future in the same way. Fixed-term contracts and renewals confirmed or rejected by the Lord Chancellor take away that special link. I can well imagine the difficulties a justices' clerk would face in serving two masters: first, the bureaucrat and administrator from some higher authority based miles away; and secondly, the magistrates he serves. Local democracy would be lost.
My second point has already been raised by other noble Lords, but I feel I must repeat it, if I may ask for the indulgence of the House. I find it very difficult to understand the proposal that the chairmanship of the courts committee would have to be confirmed by the Lord Chancellor. As we have heard before, all magistrates have, after all, been appointed by him. I believe that members of the committee are quite capable of choosing the right chairman and should continue to do so with their usual know-how.
In the past 25 years, I have often been invited to speak to groups about the role of a magistrate. One of my main points has been the independence of the 539 judiciary. I have always felt this to be of paramount importance and now I have grave concern whether it will continue to be so.
People who perform voluntary service as magistrates care deeply about their work, otherwise they would not continue. I fear that the changes proposed would be damaging and result in fewer people coming forward and in those currently serving wondering whether the work is worth while. I shall listen to my noble friend the Minister most attentively and I hope that he will be able to reassure me and all my fellow magistrates that the proposed legislation will not alter the basic concept of an independent, voluntary lay magistracy.
§ 8.57 p.m.
§ The Earl of Carnarvon
My Lords, I think that the House has been exceptionally lucky to listen to some wonderful speeches today, three from Home Secretaries, a brilliant one from my noble and learned friend Lord Ackner and a specialist speech by the noble Lord, Lord Knights. I shall speak only for a short while on one particular point in Schedule 2.
I am bitterly opposed to the alterations in the Bill affecting the membership of the police authorities and to the powers of the Secretary of State to appoint the chairman and five members. If the Bill is not altered, in my county of Hampshire the police authority would consist of just 16 members, of whom only eight would be elected from Hampshire and the Isle of Wight, to represent 1.5 million people. At the moment, there are 25 elected members and 12 magistrates.
I should like to quote from an excellent speech given by the noble Lord, Lord Moyne, at the Mansion House on 6th January this year, only a week or so ago. He said:I believe we must be reminded, all of us, of the importance in a healthy democracy—of a degree of diffusion of power away from the Centre: of the importance of a certain level of local government autonomy: the necessary checks and balances of a free society".I agree wholeheartedly with the local government associations that it is entirely a matter for the local authorities concerned to decide which of their members should serve on the police authorities. I hope very sincerely that the Government will look again at their proposals which I believe have little or no support at all in the country at large.
§ 8.59 p.m.
§ Baroness Miller of Hendon
My Lords, due to pressure on legislative time, two amending topics have been compressed into this one Bill. Personally, like so many other noble Lords and in particular my noble friend Lady Macleod of Borve, I wish that they could have been kept separate or at least that the Title had been the other way round, so that it had become the Magistrates' Courts and Police Bill.
Magistrates' courts are still sometimes colloquially and incorrectly called "police courts". I was most interested to hear what my noble friend Lady Seccombe said about when she started in her court. They are most certainly not police courts. They are independent from the police and from the Government. The fact that they are not the rubber stamp of either cannot be emphasised too strongly.
540 With that very mild criticism of my own, perhaps I might mention that I have listened this afternoon and early evening to a long, long stream of criticisms. I am only sorry that I was not in the Chamber to hear my noble friend Lord Finsberg, who, I understand, welcomed several parts of the Bill.
I remind noble Lords that the police find some parts of the Bill useful and welcome, as indeed do many of our magistrate colleagues. However, having listened to so many criticisms this afternoon—and certainly I do not wish to take up the time of the House emphasising anything that I have heard before—as a relative newcomer to this Chamber I crave the indulgence of noble Lords when I say that I shall take all my courage into my hands and emphasise those parts of the Bill that I believe are welcome. I have heard so many noble Lords give very interesting advice to my noble friend Lord Ferrers. If the Bill has to go away for further consideration, I should like some of its good points also to be considered at that time.
As to the police, the Sheehy Report was not a Government White Paper; it was an independent study which Parliament is free to accept or reject in whole or in part. This country is not governed by Royal Commissions or committees of inquiry, however eminent their members, and thank goodness for that! The fact that the Government have carefully listened to those representations that were made to them about the report before drafting this Bill is not a U-turn, as some media pundits instantly dubbed it. It was a reasonable course for which the Government, and the responsible Ministers, ought to be commended.
It was inevitable that there should be an instant outcry from some quarters—some of them not previously noted for their support for the police—against the Bill, even before its terms were published. I must confess that I particularly commend the proposals to strengthen police authorities by the introduction of outsiders to be nominated by the Home Secretary under the very stringent qualifications that were announced yesterday. This proposal does riot reduce the independence of the police in conducting their operations. It simply adds to the authority people who are not active politicians as members to the supervisory body. I have to confess that I am glad that the supervision of the police will not be totally in the hands of councils whose schools have refused to allow policemen in to talk about road safety, or councils who take a detached view—to put it absolutely mildly—about truanting, which is the seed-bed of juvenile crime.
The Bill does not diminish the democratic local accountability that the noble Lord, Lord Lester, who, I notice is not in his place, called for in his article in The Times on 17th December. On the contrary, Clause 3 of the Bill requires local authorities to participate in setting local policing objectives and targets. More significant is the requirement in Clause 9 for local authorities to include police matters on their agenda; for one of the members to be responsible for answering questions on police matters; and for the police authority to be summoned to attend meetings of councils to answer questions,on the discharge of the police authority's functions".541 If that is not "democratic accountability", then plain English has lost its meaning.
I now turn to the courts part of the Bill. Here I speak from my 23 years' experience as a magistrate. Our lay magistracy is justifiably proud of the part that it has played in our judicial process for some 700 years. It provides a very effective and, in these days of value for money, an inexpensive system of justice which deals with about 90 per cent. of all criminal cases and about 7 per cent. of matrimonial and other types of work. To foreign friends, to whom our use of lay magistrates who are not lawyers is somewhat puzzling, I always explain, with massive over-simplification, that we in the magistracy are a sort of jury that has the power to fix the punishment. The wide cross-section of the public from which magistrates are now recruited has disposed of the misconception that the bench is filled with retired colonels and matrons in flowery hats. Of course, being human, magistrates sometimes go wrong, or they say or do foolish things. But the very low percentage of successful appeals against magistrates' decisions shows that largely they work very well and very efficiently.
The clerks too are conscientious professionals, although I have to say that occasionally one is found who needs to be reminded that his or her function is to advise on the law when required to do so, and is never to interfere or even seem to interfere with the fact finding process.
However, despite the many qualities of the magistrates' courts, everything needs to change. Everything needs to evolve with the times. My colleagues on the bench were almost universally relieved at the Government's rapid U-turn on the ill-considered unit fine system which used doctrinaire egalitarianism and rigid mathematical formulae in place of what we know to be judicial common sense and experience.
There were the same concerns about the exclusion of consideration of previous convictions. Any experienced magistrate could have explained that it is not a question of punishing a person twice for the same offence. Someone who commits the same crime after having been punished is committing a more serious crime the second time. It is as simple as that.
It is also a great step forward in the administration of justice that the hitherto secret proceedings of the magistrates' courts committees will be made public. I have not heard anyone mention that this afternoon. There is no reason why matters which go wrong and which are then dealt with by the committee should be concealed from the public gaze. Nor is there any reason why its administrative decisions should not be announced openly. I welcome that. I also believe that the creation of a chief justices' clerk —which I know many noble Lords have found difficult to accept—who is responsible for a whole district will not only provide uniform administration but will improve the running of individual courts. I am sorry, however, that the opportunity has not been taken to- provide for magistrates' training to be centralised. That would help with securing consistent sentencing. Equally, it would prevent local magistrates' clerks from indoctrinating 542 new magistrates with their own personal views, which I am sorry to say does sometimes happen. Not all courts are as perfect as the ones which so many noble Lords have been describing. I hope that my noble and learned friend the Lord Chancellor will consider implementing this suggestion under his administrative powers.
I am also particularly glad to see that the subsequent Act will provide for the clerks to be under contract to the committee, and for fixed terms. At the present time it is only with great difficulty that a court can get rid of a clerk with whom it is not happy. I believe that the proposed courts inspectorate will be welcomed by all magistrates, because at the very least a report with no complaints will be equal to a seal of approval.
On the basis of what I have heard today and what I have said —I suspect that it is like a report that is given on children in school: you will have to try to do a little bit better—my seal of approval has been reduced from nine out of 10 to seven out of 10.
§ 9.9 p.m.
§ Lord Plant of Highfield
My Lords, along with the vast majority of other noble Lords who have spoken in the debate I have very considerable doubts about the wisdom of the Bill. Most of my worries have been covered in the speeches of other noble Lords and I shall try not to repeat what they have said. I shall confine my remarks to the police aspects of the Bill while at the same time endorsing the views about the excessive degree of centralisation of magistrates' courts to which other noble Lords have given their attention.
The first thing I want to say is that while it might be argued by Government Ministers that this Bill is on a par with other reforms in the public sector that they have undertaken since 1979—for example, in the case of health or education—I feel that there is in fact no analogy at all between those reforms and the proposals of the present Bill. Many commentators on other public sector reforms have argued that where they were centralising it was with a view to dispersing power subsequently to other groups. For example, education reforms took power away from the LEAs and gave it to parents, governors and so forth. That is a rather charitable view of those reforms, but it is a point of view and one sincerely held. However, the present Bill does not take power to the centre to redistribute it; rather it keeps it at the centre—in the power, for example, of the Home Secretary in regard to the composition of police authorities and in respect of his prescriptive role in relation to the objectives of policing. What this Bill and the other reforms that I have mentioned do have in common is a kind of critique and distrust of professionalism and the idea of service and a desire to replace service by contract and the professional exercise of discretion by constraining performance indicators.
As many noble Lords have said, drawing from great experience, greater effectiveness in the operation of the police, which we all want to see, cannot be secured at the cost of the link between the police and the local community. The Bill operates with a rather mechanical view of effectiveness which it hopes to be able to quantify. However, as the noble Lord, Lord Knights, argued, effectiveness is critically dependent upon the 543 support of local communities. That is both central but intangible and certainly not quantifiable. Despite what the noble and learned Lord the Lord Chancellor said in his speech at the beginning of the debate, I cannot but feel that the effect of the Bill will be to distance the police from the communities in which they have their roots and which they serve and from the citizens from whom they draw consent.
There is a curious contrast between the assumptions about the scope and capacity of government embodied in the Bill and assumptions which Conservative Ministers have adopted since 1979; for example, in relation to the role of the state on the one hand and the economy on the other. Ministers have argued since the mid-1970s for limited government in relation to the economy because Ministers and civil servants have limited, fragmentary knowledge and government actions are full of unforeseen and unintended consequences. What is it that changes in relation to policing? How is it that the Secretary of State, in Clause 11, can determine the objectives and performance targets for all police authorities however diverse they might be? How is it that he has the knowledge to appoint members of an authority without knowing about local and diverse needs and to appoint its chairman without knowing whether that person will carry the trust and the confidence of the authority over which he or she will preside?
How is it that he knows that all police authorities should be the same size irrespective of local needs, the size of communities, as the noble Earl, Lord Carnarvon, said, and the diversity of the areas to be covered? These are all massive assumptions about what central government can know, which are undermined by the very critique of those assumptions that are embedded in Conservative Party approaches to other views of the relationship between the state and other areas of public policy. That is wholly inconsistent.
I turn now to performance indicators since, like the noble Lord, Lord Harris of Greenwich, I believe that that is the area in which the unintended consequences of centralised directives will show themselves in both a large scale and in a dramatic way. I speak with some feeling because about five years ago I was misguided enough to publish a pamphlet with the Institute of Economic Affairs on another topic but which, in passing, advocated performance targets for the police and fixed-term contracts for chief constables.
I now regard my own views then, as the result of a subsequent five years of work and reflection, as being naive and mistaken, or "daft" as the noble Lord, Lord Harris of Greenwich, would have described such performance indicators. There are many technical reasons why I believe that the arguments I put forward then, which in some senses parallel what is in the present Bill, are mistaken. Some of them are technical reasons. But the two other reasons which do carry weight are these: first, if performance targets could be set in a wholly objective and technical way, then there might indeed be a lot to be said for them. But that cannot be the case. These targets embody policy choices and those choices are going to be politically controversial. If judgments about the effectiveness of a police force are 544 to be made in terms of such targets, then the judgments of effectiveness are going to be politicised just because the targets will reflect policy preferences which are also politicised.
Secondly, since advocating that view five years ago, I have worked under a régime of performance indicators in a university in relation to research performance. That has led me to see the truth of the argument of the noble Lord, Lord Harris of Greenwich; namely, that people have all sorts of devices to meet performance targets. If one has a set of performance targets one has every incentive to maximise the kind of behaviour which will satisfy them and relatively neglect most of the other things one is supposed to do. The noble Lord, Lord Harris, gave a long list of those this afternoon. I thought that what he had to say was entirely plausible arid has certainly been borne out in my own experience having to operate as an academic in terms of a set of tightly drawn performance indicators.
Of course, human ingenuity being what it is, people can devise ways to meet performance targets in—to put it at its mildest—a not wholly transparent way. That is very dangerous. If there are centrally imposed performance targets, as Clause 11 of the Bill says, the consequences of that, if they go wrong could be quite catastrophic and large scale just because they are highly centralised. Obviously there are local performance targets in other parts of the Bill; nevertheless the Secretary of State has the power to direct and determine performance targets for the police and I think that that is a very dangerous thing. I wholly endorse the points made by the noble Lord, Lord Harris of Greenwich.
I am in favour of requiring a chief constable to be as explicit as possible about how he exercises his discretion and being prepared to defend the way that discretion and his policing priorities are arrived at and the justification for them. He should obviously be asked to report on efficiency and effectiveness. But these cannot be turned into quantitatively measurable targets.
It is also important that the delivery of police services should be concerned not just with efficiency and equity—the two mantras of modern public administration—but crucially, in the case of the police, with equity; of treating like cases in a like manner and treating all people equally before the law. Indeed, in a diverse society it seems to me that equity and fair dealing between various groups is part of what effectiveness and efficiency must actually mean. These things cannot be quantified in any very straightforward way and yet they are vital to both securing the consent of the communities over which the police exercise authority and in terms of their effectiveness within those communities.
So my overall point about performance indicators which I feel strongly about—having, as I say, argued in favour of them at one time—is that I am now wholly convinced that to turn these politically controversial and nationally defined performance indicators into measures of effectiveness and to link the future appointment of a chief constable to them would be politically disastrous and very bad for public confidence in the police in this country.
§ 9.19 p.m.
§ Lord Trevor
My Lords, as a magistrate of 34 years' standing and as a member of the North Wales police authority for 11 years, I wish to put forward that authority's views which are shared by the chief constables and the authorities of the other three forces in the Principality; namely, Dyfedd Powys, Gwent and South Wales. One of our main concerns is the proposal to reduce the membership of the authorities to 16 persons. Membership varies throughout the country. Currently our authority has 32 members from the two counties of Clwyd and Gwynedd, made up of 20 elected members and 12 magistrates. Two-thirds of the members are democratically elected and are representative of the population of 700,000 which rises to approximately 1 million with the seasonal holiday influxes. The magistrate members represent 16 petty sessional divisions. Reducing those numbers, particularly the number of magistrates, cannot possibly be fair as the magistrates will not be representing the views of those residing in their areas.
The Home Secretary's proposals to appoint the chairman, particularly if he is to be paid, and five members of the authority have inherent dangers. We feel that they will be government nominees, and as the strata from which they are to be selected were unknown until today, we still think that they could lack knowledge of the problems facing the force, particularly in the more remote areas. Furthermore, we are unclear about whether the appointed members will be governed by the same rules of practice and codes of conduct as the elected members currently are. In addition, they will lack the background information in many fields; for instance, of the unfortunate but necessary need to close many rural police stations where the incidence of crime is relatively low and to transfer that manpower to the more populated and troublesome areas to reinforce their colleagues who have to deal with a very high caseload of crime. Furthermore, it is unlikely that they will appreciate the need for air support units to transfer additional officers speedily to serious incidents—to say nothing of the frequent use of helicopters to transfer seriously injured persons (whether from mountaineering accidents or road traffic accidents in remote places) to hospital for speedy and specialist attention. Frequently, by the use of that transport seriously injured patients can be in hospital within 20 minutes instead of sometimes having to undergo a difficult and tedious ambulance operation lasting upwards of two hours.
On the amalgamation of forces, three of the four forces in the Principality cover very sparsely populated areas with long and difficult lines of communication. Increasing the size of those areas will, we think, exacerbate the problems and cause enormous difficulties for any members of the force should they have to transfer for any reasons to an area far removed from their family and friends. That will cause further serious undermining of morale, which is already at a low level. The needs of the rural forces are totally different from those which have very heavily populated and primarily urban areas.
546 The fixed-term contract for a period of four years for chief constables, and the abolition of the rank of deputy chief constable and other ranks but with the ability to appoint an assistant, is to be deplored. It automatically reduces rank structure, lessens the field of experience and could be seriously detrimental to future promotion prospects.
Finally, we understand that the proposed changes could cost up to £21 million during the first year. That sum of money would enable an additional 1,000 constables to be placed on the beat nationwide. We feel that that would be preferable to making such drastic changes to an organisation that has worked so satisfactorily for many years, and would help considerably in arresting the ever-increasing rise in crime, thereby enhancing the prospects of a higher detection rate which, in the majority of forces, is at a very low level.
These views are also those of the Association of Metropolitan Authorities, the Association of Chief Police Officers, the Police Federation and the Association of County Councils.
§ 9.25 p.m.
§ Lord Dixon-Smith
My Lords, after more than six hours of debate it is not my intention to trawl yet again over ground that has already been well trawled by those far more experienced and eloquent than myself. I cannot help feeling some sympathy, however, with my noble and learned friend the Lord Chancellor and my noble friend the Minister who have honourably fulfilled their job in bringing the Bill before the House and, as a result, have had perforce to listen to a sustained and almost completely unanimous attack the like of which I, in my innocence, had not expected. One lives and learns.
I cannot help but speculate what the tenor of the discussion on the Bill might have been if it had not been for the proposals for constitutional change—in other words (I discuss the issue in the context of the police authorities although there are parallel points with regard to magistrates) if the proposals had left the police authorities as they are or had merely confined change to such change as is necessary to accommodate the consequences of the Local Government (Wales) Bill, the Local Government etc. (Scotland) Bill and, in due course, the recommendations of the Local Government Commission for England. We need to recognise that local government is in a phase of transition and that that transition will have to be accommodated.
However, had the constitutional changes been so confined, then I suspect that local government would have welcomed much in the Bill. To deal locally with police planning, local standards of service and levels of police manpower have been powers which local government have sought for many years. It remains the fact that in the discussion today the deeper and more serious constitutional implications have rightly taken precedence over those managerial problems.
Policing has always been a matter of delicate balance in management and control. The tripartite arrangements between the Home Office, the police authorities and chief constables have worked and served this country well. They have enabled the police forces to serve their 547 communities and to police their communities with the general consent of those policed. The anxiety expressed today is that that balance is changing. I hope that in his response to the debate the Minister will indicate that he will consider how best to respond to matters raised in the debate before the Bill is before the House again. If not, I foresee many long and difficult sittings. However, if my noble friend does so indicate, then this House will have done a remarkable job. Not only will we have seen a change with regard to this Bill but, to use the words of the noble and learned Lord, Lord Ackner, for once the tide of executive domination will have been stilled. That may be something which, speaking as an old local government man, we would wish to see; that is, local government once more taking a stronger place in the affairs of this nation.
§ 9.30 p.m.
§ Viscount Hanworth
My Lords, at the outset I must apologise to the House. I came by train and if I stay until the end of the debate I shall almost certainly not arrive home tonight. However, my speech will be extremely brief.
Both aspects of the Bill relating to the magistrates and to the police have unfortunately much in common which has been criticised. In both there is a substantial cost in the introducing of paid government officials who will have powers of affecting policy.
In the case of the magistrates, whatever the noble and learned Lord the Lord Chancellor may argue, the Bill seeks to extend government power and influence to such an extent that the independence of that service could be deeply compromised. What was always intended to be a locally managed service would be replaced by central direction from the Lord Chancellor's Department. Why is that? Is it because the proposals are based on an old 1980 report on the magistracy which recommended some changes, most of which have already been taken into account and implemented? Is it because some overall centralisation and common approach throughout the country is thought to be desirable? If so, is that a distorted view of efficiency, overlooking the much vaunted principle of subsidiarity and the need for justice in real life to be attuned to local conditions? Or is it unrealistic fantasy on the part of civil servants and Ministers which drives them to do something new at all costs? Or perhaps it is to meet the political need to be seen to be doing something about our crime wave.
Associations representing all those who work in the courts are united in their opposition to the proposals. They are the practitioners. Why were they not adequately consulted? They recognise the need for some change, but it should be effected only after proper consultation, proper costing of the changes and careful consideration of the impact on judicial independence.
Whatever the motives, let us look back for a moment on the failures of this Government's policy on, for example, education and national health, to mention but two. Surely they should have learnt their lesson by now, after more than a decade, that only very gently should existing practice be disrupted, and even then each step taken gradually.
548 I do not propose to deal with the Bill in detail. However, I am dismayed by the assumption by the noble and learned Lord the Lord Chancellor of discretion over so many matters. For instance, they include direct control of magistrates' courts committees. No fewer than eight clauses introduce those new powers. Then there is the notional appointment of chief justices' clerks with attendant new responsibilities to their statutory master; the introduction of five-year contracts for justices' clerks and others. I hope that those officers cannot seriously be assessed on the commercial concept of performance—a truly fantastic proposal.
There are many further provisions of the Bill which other noble Lords raised in the debate. I say only this: the Government have shown in so many ways that the Ministers and their advisers are really not very clever—I need quote only the muddle over graded fines. They should not presume to interfere so easily with a system of magistrates' courts in England and Wales which is in the main running efficiently and cheaply. It has worked well for centuries and we are justly proud of the quality of lay justice. Those who support and advise our lay justices must do so without the fear that some future government, perhaps even more centralising than this one, will interfere with and manipulate the judicial process.
I am afraid that I condemn this Bill as it stands root and branch as being an inroad into common sense and once again a case of government interference which is not justified and will lead to a nonsense. The study of its provisions raised the question of whether, notwithstanding all conventions, one should put forward a Motion to oppose the Second Reading. I eventually decided not to do so, but I remain tempted to believe that that might have been the correct course to adopt.
§ 9.36 p.m.
§ Lord Monkswell
My Lords, like the vast majority of noble Lords who have spoken tonight, I argue that the centralising tendencies in the Bill in respect of both the police and the magistrates will be detrimental to the fabric of our society. I do not wish to spend a great deal of time going through the Bill chapter and verse as it relates to those centralising tendencies but I wish to comment on the risks involved, bearing in mind recent history. I also wish to identify some of the problems that We face and the opportunities that we have.
One cannot stress too much the risk of alienating the police and the magistrates from the local communities which they serve. The centralisation of power and control which is exhibited in the Bill, using the police and the magistrates as mechanisms of the central control of society, are doomed to failure. The risks of the breakdown of social order, and of violence to the police and to magistrates by local people and by the police towards local people, is too horrific to contemplate.
During the early 1980s society faced great tensions predominantly as a result of government policies which gave rise to a recession and escalating mass unemployment. Those social tensions blew up in Brixton, Toxteth and Moss Side. They involved conflicts between local communities and the police who 549 were seen to be instruments of social control. Local councils expressed great anxiety about the behaviour of the police.
We almost reached a total breakdown in the relationship between the police forces in our large urban conurbations and the local councils representing the communities. That relationship was held together as a result of the Stirling work which was undertaken by people who believed in the cohesion of society; for instance, the noble and learned Lord, Lord Scarman, Gay Cox, who was a county councillor in the Greater Manchester area and chair of the Greater Manchester Police Committee and many other people. In the face of great difficulties, they developed a positive relationship between the police and local communities. That developing understanding was thrown into great stress again by the whole business of the miners' strike in 1984–85 when the police were perceived by many people as being used as an instrument of the state to destroy or at least repress the miners. As I said, a lot of work was done by some very significant people in seeking to make the police more responsive to local communities.
Another factor in the mid-1980s was the emergence from recession and the expansion of the economy with the reduction in unemployment. That reduced the pressures. There is, too, the ultimate risk. We can see only too clearly what has happened in Northern Ireland where, in recent history, going back 25 years, we have seen the breakdown of trust in whole sections of the community and the police force which is supposed to serve it, leading to violence on a horrific scale and the loss of life which is so objectionable to us all. That demonstrates the ultimate risk from which we must draw back.
What in fact has changed in the last couple of years? In probably the last 10 years we have seen a growth in what has been described as the underclass. That is a significant minority of our community who appear to have no stake in the community, owe no allegiance to society and feel that they get nothing from it. They are alienated.
We must also contend with the increasing use of firearms in the inner cities. Let me give the example of Moss Side. In the area in Wythenshawe that I represent as a local councillor, firearms have been appearing quite regularly. We need to be very careful about those two factors: the rise in the underclass and the availability of firearms. If, over that, we lay the perception that the police force and the magistracy are under centralised control and direction, I feel that we are almost lighting a trail to a powder keg. Those are some of the risks to be faced if the Bill goes through unamended.
I was very interested in the comments of the noble Lord, Lord Dixon-Smith. He identified some of the factors that need to be taken into account. The changes that are taking place in the structure of local government are bound to have an effect on the relationship between local government and the police forces and an effect on the areas of magistrates' courts committees. Those effects need to be taken into account. The problem which concerns me is whether the Bill can be amended 550 in such a way as to get rid of the risks and address those significant changes that are taking place. I am not sure that it can. I suspect that it would require an enormous amount Of hard work by your Lordships effectively to change the Bill radically to do what it needs to do and to prevent it from doing what it must not do.
I am very tempted to go along with the views of the noble Lord, Lord Mottistone, and ask whether the Government could withdraw the Bill as it stands, take it away and redraft it to address the genuine needs that exist. Could they not bring back a Bill with a similar title but radically different? In that way it would alleviate the burden on your Lordships' House and on Parliament in general. There is a need radically to revise the Bill that we have in front of us.
§ 9.45 p.m.
§ Lord Borthwick
My Lords, I wish to say just a few words about what happens at home. In the old days we always had lieutenant colonels coming along to be chiefs of police. Then we had no trouble. Things seemed to go along very well. I do not know why they have disappeared. There may be a reason somewhere. We no longer have a chief of police running our force at home. They should come back. They are trained men. We should save money on training. I have heard complaints today about people having to pay for the training of the police. We have a body of men, properly trained, who understand the job, but we do not use them. At the end of their military service, they took on five or 10 years as chief of police. We had no trouble then and everything went well. I should like that system looked at and perhaps reintroduced.
§ 9.46 p.m.
§ Lord Hooson
My Lords, I fear that the Bill has few friends. I have been in the Palace of Westminster, either in the other place or in your Lordships' House, for 32 years. I do not recollect a Bill receiving a greater blitzkrieg than this one has, and by heavy bombers at that. I refer not just to the three distinguished former Home Secretaries who have spoken. Almost everyone who has spoken in the debate has great experience of police authorities, the magistracy, and so on. The noble Lord, Lord Finsberg, and the noble Baroness, Lady Miller, were valiant in their efforts to support the Bill. The noble Baroness, Lady Seccombe, criticised the Government more delicately than others have done, but the criticism existed nevertheless. The Bill really has no friends. That creates a serious situation. It embodies potentially—I shall come to the reasons why at the end of my speech—the makings of a serious constitutional crisis, because of the decision to introduce the Bill in your Lordships' House. I shall come to the consequences of that decision in a moment.
I am sure that I am not alone among your Lordships in having reflected during the course of the debate on the difference between reform and change. Reform is something that is called for. A service often cries out for reform, but here it seems to me that we have change almost for change's sake. There has been no great 551 demand for any of these measures. The proposals contained in the Bill indicate an ideological rather than a practical, pragmatic approach.
As has been pointed out during the debate, two Bills are encompassed here. Each subject matter, as noble Lords rightly emphasised, merits separate consideration. But the undoubted concerns that have been expressed are, in reality, common to both parts of the Bill. Your Lordships are rightly worried about unacceptable centralising tendencies with regard to both services, as encompassed in the Bill, and appreciate that the proposals involve the setting up of a framework concerning, respectively, a control of the police and the magistracy which could in the future—I emphasise "could" and not "would"—lead to the politicising of both services. Therefore there is a feeling of unease throughout your Lordships' House that there is a real threat to the independence of both the police and the magistracy involved in some of the key provisions of this Bill.
Anxiety has also been expressed on a large number of other aspects of the Bill—for example, the disciplinary provisions in relation to the police and the financial implications of the proposed reforms to the magistracy. The noble Baroness, Lady Macleod, in particular mentioned those matters. I have made inquiries in my rural area of Wales, which has a small population. It has a perfectly adequate magistrates' service but a new centralised magistrates' court is now being built at a cost of £3 million. These and other matters will obviously have to be scrutinised with great care in Committee. However, in this winding-up speech from these Benches I wish to concentrate on what I regard as the core issues.
As the noble Lord, Lord Carr, said, there may well be constructive changes proposed in this Bill but essentially we are primarily concerned and engaged in what I believe he designated as the framework of power—that is a fair way of putting it—in relation to both aspects of this Bill. The noble and learned Lord the Lord Chancellor made an interesting opening speech which, I am bound to say, concealed more than it revealed. What is meant by the phrase "the strengthening of police authorities"? The most strengthened authority one can have is a dictatorship but that is unacceptable. What is meant by "the strengthening of police authorities"? The claim the noble and learned Lord made in relation to the police is the reverse of centralisation. With the greatest respect to the noble and learned Lord, I am bound to tell him that I could not follow that point at all.
The noble and learned Lord also said in relation to magistrates' courts that there was no coherent magistrates' structure. However, there is such a structure and it has worked for years. It is not a blueprint or a scientifically presentable structure but it exists and it has worked perfectly well. "Coherent" is a buzzword—I hear it used in reference to business and other matters—and it often conceals a great deal. The police and the magistracy are integral parts of the criminal justice system. In their present shape and form they are, like so many other things in this country, the result of evolutionary processes. The police and the magistracy are the result of an evolutionary process that 552 has occurred over a large number of centuries. I had not realised, until I heard this debate today, that the police have evolved over a longer period than has the magistracy. In my initial notes I had it the other way.
However, both services are essentially locally based and controlled though they are co-ordinated on a national basis, and this has involved a delicate balance being struck over the years in these two vitally important and sensitive areas. If there is ever a case for a broad consensus approach in politics, I believe that this certainly is such a case and it is uniquely important that it be adopted on these two subjects. We have a heavy duty in the longer term interest of this country and its people to get the balance right and to avoid the danger not of acceding to an ambition to control the magistracy and to control the police—that ambition may not be there—but of providing the means whereby political control can be subtly introduced into our police forces and into the magistracy over the years.
The magistracy is a vitally important part of our judiciary. As has been pointed out, it deals with some 97 per cent. of all criminal cases in our country. As the noble and learned Lord the Lord Chief Justice has pointed out, not only must the magistracy be independent of government but it must feel independent of government and it must appear to be independent of government. The same applies to the police. A former Home Secretary has spoken in the debate today of his experience of industrial unrest when the. police were called upon to preserve law and order in difficult circumstances, and often in the full glare of television cameras. If the chairman or chairwoman of some of the police authorities involved could have been accused of being a placeman or placewoman of the government of the day, what hay the people wanting to undermine our system would have made of it. I think it would have created an impossible position for any Home Secretary.
The Government give the impression, which they may not intend to do, when they deal with the public either in the form of elected local government representatives or even the magistracy, that they are dealing with a potentially irresponsible body of people That is totally incorrect. The magistracy and the representatives of local government are quite capable of carrying out the duties imposed upon them without government interference. I totally refute this approach of the Government, which two very distinguished ex-Home Secretaries on their own side have refuted today.
In recent times we have surely learnt enough to appreciate that some of the placemen of our time sometimes have ideas about the discharge of public duties which fall short of the traditional standards of public duty in our country. All I need say is that the record of the police authorities and of the magistracy is at the very least as good as the record of some directly appointed government appointees.
The impression made upon me is of a government largely in the hands of young men in a hurry, ideologues who think that business and marketing management techniques can be imported willy-nilly into our public services. We have performance related pay. That is all very well if you are in business. If you are selling oil, 553 motor cars or clothes this may be a very important factor, but the public are not customers of the police force; they are not customers for their security; they are not customers asking for or buying justice. There should be a considerable limit, if I may put it that way, on the importation of ideas of management which are perfectly valid for business—the noble Lord, Lord Carr, has great business experience himself—as distinct from those that are valid in a public service.
Perhaps I may now turn to the specific and to those provisions which deal with the police. We surely have the right to hear from the Government at this stage in the light of the thread that has run through so many speeches in this debate as to the fear that they are laying down the foundations for what could eventually be political control of the police.
If we look at Clause 2(1) of the Bill, why should there be only three magistrates on all police authorities, whereas the Secretary of State is going to have the right to appoint five directly? What is its justification? I do not think that the Secretary of State should be allowed to appoint any people to the police authorities. I think that the magistrates should be entrusted with appointing eight. Why is there need for these placemen and placewomen? We are going back in history. What is the experience of the Home Office that pushes the present Home Secretary, or his predecessor, in that direction? Or is it simply that he wishes so far as he can to control the police authorities?
If we turn to Schedule 2 paragraph 7, why should the Secretary of State appoint the chairman of each police authority? What is the possible justification? Surely when this debate is replied to by the noble Earl he must deal with this. What is it in Home Office experience that justifies this departure?
I have already posed the question of what effect this might have had during a miners' strike, but has the Home Secretary considered its consequences long term? If so, what does he consider those consequences are likely to be? Referring to paragraph 10 of Schedule 2, why should the Secretary of State have the power to determine that a member of a police authority should serve for a shorter term than four years? He is given the right to appoint for such a shorter term as he,may determine in any particular case".Why should the Secretary of State have that power?
In the reply to the debate, I believe that we are entitled to be told—and the question has been asked many times—what experience the Home Office has had that makes it necessary or desirable to have such powers. There are other matters involved which I shall not go into at this late stage, but which will need to be asked in Committee.
I have already expressed the view, which I believe is widely held in your Lordships' House, that police authorities should appoint their own chairman. If so, surely those should be the people to have the power to remove that person from office if it is in the interests of efficiency or effectiveness of the police authority to do so.
With regard to the magistrates' courts, again, the greatest concern is that too much power is going to the 554 Lord Chancellor's Department. Throughout the Bill there is an insidious tendency to undermine the independence of the Bench. I emphasise the word "insidious". I do not regard the powers in the Bill as an attempt by the noble and learned Lord the Lord Chancellor to undermine the authority of the magistrates' courts and the independence of the magistracy; it is the insidious effect of those powers that will undermine their independence.
I now turn to Clause 71 of the Bill, to which the noble Lord the Lord Chief Justice referred. If it was not for the insidious nature of the powers that the Lord Chancellor is taking to himself, Clause 71 would not be necessary in the Bill. It has never been necessary in any other Bill, so why is it necessary here? Human nature being what it is, if the power of intervention is given the inevitable effect would be a possible reduction in the independence of the justices' clerk. As regards many occupations—certainly business—it is my view that performance-related pay and fixed-term contracts may have a particular relevance. However, we must remember that we have public services in this country which, over centuries, have proved to be second to none in the world. On those subjects, I should have thought—and I am not usually one to say so—that experience and knowledge are very important. I cannot think of any debate where the experience and knowledge of former Home Secretaries, chairmen of police authorities and chief constables are more relevant than here.
Some people react well and perform their best under the influence of either the carrot or the stick; but there are an awful lot of people who do not. Many people perform quite as efficiently and sometimes more successfully than their counterparts in business or in industry simply through a high sense of duty. I have among my friends—and, indeed, in my own family, as I am sure do other speakers—persons who are at their best when put under pressure and others who perform their best when they are not under pressure. I suspect that many of our best judges and magistrates are those who are at their best when not performing under pressure. The same is true of magistrates' clerks. Likewise, I think that most barristers, as I am sure the noble and learned Lord the Lord Chancellor will agree, perform best when under pressure. Therefore, often when they go up on the Bench they prefer to be rid of the pressure.
Shot through the Bill are the tendencies to increase the powers of intervention of the Lord Chancellor's Department and the power to influence the views, approach and performance of justices' clerks through the influence, which eventually could easily become an insidious influence, of the chief justices' clerks, with both the justices' clerks and the chief justices' clerks being on performance-related pay. How does one judge the performance in his duties of a magistrates' clerk? How does one weigh them up?
Almost without exception at the Bar, and I am sure in the solicitors' profession as well, the factor one always looks for in a magistrates' clerk, certainly in my experience, is his independence. He is there to guide the Bench on the law as he sees it. I am bound to say that the best magistrates' clerks whom I knew in my 555 experience were great eccentrics who very often did not care a button for the Bench, the Bar or anyone else: they gave their views quite independently.
It is totally unacceptable that justices' clerks should be on fixed term contracts and performance-related pay. Are they to be judged by the amount of fines they get in, the speed with which they deal with cases, or the least number of adjournments granted by their Bench? Are they to be judged by national standards? The noble Lord, Lord Trevor, in expressing the views of his police authority, referred to what happened in the Principality. Socially, historically and geographically things are different in different parts of the country.
The view of those sitting on these Benches is that these subjects are the wrong matters for an ideological as opposed to a pragmatic approach. The experience and cumulative wisdom of this House has been expressed in many directions. I refer to what I said at the outset of my speech. I believe that there is potentially a very serious danger of a constitutional crisis arising in this matter. The noble and learned Lord the Lord Chancellor will correct me if I am wrong, but the provisions of the Parliament Act 1911 do not apply to a Bill that is introduced in the House of Lords; they apply only to Bills introduced into the House of Commons and come thereafter to the House of Lords. I have checked this matter with the Clerks. If that is so, the restraints imposed by the Parliament Act do not apply to this Bill.
If one turns to the Salisbury doctrines which have been advanced, they apply only to matters which are manifesto commitments, and neither of these matters is a manifesto commitment. Therefore, if the fears and concerns of the House are not met, in my view it is quite in order for this House to throw out the Bill. That can be done without invoking any of the powers which belong to the Government by convention or the specific provisions of the Parliament Act.
It is important to have a consensus approach on such a vital matter as the police and magistracy. I refer to the suggestion made by the noble Lord, Lord Carr—I think with the approval of the noble Viscount, Lord Whitelaw, and the noble Lord, Lord Callaghan—that there should be a meeting to consider this debate and its possible effect on the passage of the Bill before it proceeds further in this House. Though it has been suggested on the Government Benches that this Bill be withdrawn, I believe it is better to have the kind of meeting indicated by the noble Lord, Lord Carr. If the crucial objections to the Bill can be met there may be hidden in the Bill very sensible reforms, and no doubt a consensual approach can be obtained. Such an all-party meeting can be on Privy Council terms since there are enough Members on the Benches to enable that to happen. But it seems to me that, unless the noble and learned Lord the Lord Chancellor and the noble Earl, Lord Ferrers, are able to persuade the powers-that-be to move amendments without such a meeting, we will go headlong into what is potentially a very serious but avoidable constitutional crisis. It is vitally important that the noble and learned Lord the Lord Chancellor and the noble Earl, Lord Ferrers, convey to the Government the feelings of this House and insist that those fears are met.
§ 10.9 p.m.
§ Baroness Hilton of Eggardon
My Lords, this has been a long and interesting debate. Concern has been expressed on all sides of the House about the contents of the Bill and the proposed seizure of power by the Home Secretary over the police service, and by the Lord Chancellor over justices' clerks and magistrates. As the noble Lord, Lord Hooson, has just said, that seizure of power may not in the short term have sinister connotations, but with a change of regime in the years ahead it might be disastrous for the unwritten constitution of this country.
We have heard excellent contributions from many noble Lords, including three ex-Home Secretaries and other noble Lords who have direct experience of the police service and the magistracy. Almost all have expressed universal disquiet about the provisions of the Bill, except the noble Lord, Lord Finsberg, and the noble Baroness, Lady Miller. As my noble friend Lord McIntosh said, there was also universal opposition by practitioners outside this House—police officers, magistrates, local police authorities, justices' clerks—who are all opposed to the centralising arid politicising provisions of the Bill.
As has been said by many noble Lords in the House this evening, the Bill effectively presages a national police force for this country, without proper consultation, against the tide of public opinion and, as my noble friend Lord Archer said, with no electoral commitment. The present tripartite system has begun to work well over the past few years. It has matured and has created innovative ways of dealing with and preventing crime on a local police basis.
Democracy, of course, can be uncomfortable, and there are stresses and strains within any system which has to be run by more than one person. It may be that the Home Office has been unable to cope with the reality of democracy in the past few years, and that is why simplistic solutions are being sought and attempts are being made to scapegoat the police service for the rise in crime in this country.
As my noble friend Lord McIntosh said, a case could be made for centralised control of some national police functions. For example, countering terrorism, serious drug problems, serious fraud and perhaps motorway policing could all be placed on a national basis. One could also lay down rules for common and standardised equipment for radios, computers and motorcars. All of those could provide savings in time and money. However, that is not an argument for a national police force, and it is certainly not provided for in this particular Bill.
Almost all crime, all public order and traffic problems are local. That has been stressed by several noble Lords, including the noble Viscount, Lord Tenby, and the noble Lord, Lord Lester. The noble Lord, Lord Lester, in particular stressed that the local nature of policing has been an important and historic element of our constitution going back to the Middle Ages. The noble Lord, Lord Carr, said that local police are a pillar of democracy. The noble Lord, Lord Mackie, gave us some vivid examples of local policing in Scotland.
557 My noble friend Lord Callaghan, from his position as an elder statesman, described the last two Home Secretaries as wilful and ambitious young men. The noble Lord, Lord Hooson, referred to them as young men in a hurry. I believe that it is also unfortunate that the last two Home Secretaries were trained as barristers. The only sort of crime that they have encountered is the sort of crime that goes to Crown Courts. That gives a distorted view of the work of police and magistrates' courts where, as we have heard from many noble Lords this evening, 90 per cent. of crime is dealt with. That 90 per cent. of crime is local, petty crime, which causes problems for people within their local community. It is not the sort of crime which normally hits the national headlines.
Crime prevention and crime control essentially are local matters. As the right reverend Prelate the Bishop of Norwich said, these can be dealt with effectively only in partnership with the local community and the local authority. It is those partnerships, in many of the most difficult parts of the country and many of the most difficult high rise estates, which have recently been producing some encouraging results in the reduction of crime and of drug taking.
The noble Earl, Lord Winchilsea, also said that policing requires local consent to be effective. There are many hopeful projects throughout the country where the local community has begun to back the police, to come forward as witnesses, and so crime has levelled off and in some cases been reduced.
Perhaps I may turn to Clause 11 which gives the Home Secretary power to set national objectives. Some of the draft national objectives have been set for the current year and they are necessarily generalised and meaningless when set at such a high national level. As the noble Lords, Lord Plant and Lord Harris, and the right reverend Prelate the Bishop of Norwich said, setting objectives at this level can often be counter-productive, particularly when they result in league tables and performance indicators which are often nonsensical at ground level.
The first set of objectives which has just been published includes response times, for example. Police have known ever since the police service began that it is desirable to arrive rapidly at the scene of incidents, so the setting of response times is not exactly an original or innovative idea. But if it is set as a national objective with the pressures of league tables, comparisons and media attention to response times, I am sure it will lead to more police accidents, more accidents in which innocent people are involved. If the emphasis is on speed, it will lead to more police officers in cars, fewer foot patrols, and less time will be spent on victims of crime and such matters as domestic violence, child abuse and education in schools. Above all, I believe that, as has also been pointed out by some noble Lords, the times will be fiddled. Over 30 years ago, when I was a constable in Stepney, when the fire brigade arrived at the scene of a fire, officers would say: "Show that we were called at such-and-such a time and we arrived at 558 such-and-such a time". Times were always fiddled in the past, and I am sure that they will be fiddled in the future, regardless of computer dispatch and so on.
Another objective which has been set as a national objective during the current year is the clear-up rates for burglary and violent crime. Clear-up rates, not arrests. I have known clever detective inspectors who could produce 60 per cent. clear-up rates without any increase in crimes solved or offenders arrested. If those are a sample of the kinds of objectives that will be set in future years at national level, I think they are a nonsense. They will not work and reported crime will continue to rise. In a way, the Home Secretary will be left without any excuse in future because he will be the man or woman who is directing the police service of the country. It will be impossible to find any other scapegoats for the rises in reported crime.
More serious, in some ways, than the setting of national objectives for the police service is the move to centralised and, effectively, political control of the police service. Many noble Lords have spoken against the provisions of Schedule 2 to the Bill on the composition of police authorities, the appointment of so-called independent members and the appointment of a paid chairman. Even more sinister, perhaps, is the provision which is also contained in that schedule which gives the Secretary of State the power to disbar members from police authorities, including elected local authority members. That is a prescription for political distortion of police authorities.
The noble Lord, Lord Harris, saw the provisions of Clause 11 as the first step to a national police force. The noble Viscount, Lord Whitelaw, said that the new arrangements would upset the balance of power. Both of my noble friends Lord Callaghan and Lord Stoddart said that 16 members was far too few to be representative of a police authority area. At present there is an average of 31 members. The noble Lord, Lord Knights, said that the police authorities would inevitably be too distant and unrepresentative of the people whom they served. Only eight elected councillors, for example, for the whole of that vast West Midlands conurbation cannot be expected to represent the interests of the people of Birmingham, West Bromwich and the other towns that make up that vast area.
The Home Secretary mysteriously said that the new police authorities would be more representative of local people. Does he mean by that that there will be more women appointed, more people from ethnic minorities and more people appointed from crime-ridden local estates? I doubt it.
The current police authority's members comprise 38 per cent. who have business experience; 62 per cent. who are school governors; and one-third who are magistrates. That provides a reasonable spread of experience and local knowledge. The arrangements published yesterday for finding the five centrally appointed members give a pivotal role to lord lieutenants—who are all male and all white; many of whom come from military backgrounds; and many of whom are declared Conservative Party supporters. It is unlikely that they are the people who will be finding more representative members of police authorities.
559 Many noble Lords, including the noble Lord, Lord Can, my noble friend Lord Callaghan and the noble Viscount, Lord Whitelaw, have expressed their concern about the power that the Secretary of State has taken to himself to involve himself in operational policing and to politicise control of the police service. An example of the dangers that that may bring about are exemplified by the Metropolitan Police, in which, as noble Lords know, I served for some 34 years. The symbiotic relationship that exists with the Home Office has inevitably over the years muzzled Commissioners of the metropolis. They cannot speak out against their police authority because they are of necessity required to maintain good relationships with the Home Secretary. They cannot do that if they set themselves up in opposition to him. On occasion, that role has been adopted by police authorities when arguing with the Home Office under the present tripartite system; but the Metropolitan Police have had no such barrier between themselves and the Home Office. It is interesting to note that the one senior officer who has not publicly resisted the proposals in this Bill is the one senior officer in the country who has the Home Secretary as his police authority. I fear that this is a portent of things to come when all chief constables are on short-term contracts and are answerable to a police authority chairman who is the paid appointee of the Home Secretary. As the noble Lord, Lord Carr, said, that is a totally inappropriate arrangement. Many other noble Lords were also concerned about the political appointment of the chairman of the police authority.
The Home Secretary has claimed that these measures will bring police forces closer to the community, and that they will give greater freedom to chief constables. I think that the Home Secretary, like Humpty Dumpty, believes that when he uses a word it means just what he chooses it to mean.
Centrally appointed police authority members cannot be closer to the community than elected councillors or local magistrates. As for "freedom for chief constables", they will be working on short-term contracts to Home Office and police authority objectives within cash limited budgets. Despite some relaxation of Treasury rules, the main freedom will be to divert police pay into capital expenditure, thus leading to fewer, not more, policemen on the beat.
There are other provisions in this Bill which give cause for concern in relation to the police. My noble friend Lord Callaghan, the noble Lord, Lord Bethell, and other noble Lords have drawn attention to the new arrangements for disciplinary procedures, which under Clause 14 will become more informal in future. They may speed things up, but there are the twin dangers not only of rough justice for police officers but also of the possibility that abuses of power may be shuffled under the carpet.
Another matter of concern is the powers given in this Bill to amalgamate forces without a public inquiry. The noble Lord, Lord Harris, and my noble friend Lord Stoddart, expressed concern about that.
In relation to magistrates' courts, we see the same desire, as my noble friend Lord Williams of Mostyn has said, to centralise power in the misguided belief that 560 centrally run bureaucracies are efficient. The noble Lord, Lord Harris of Greenwich, and the noble and learned Lord the Lord Chief Justice, expressed concern about the new arrangements, which threaten the independence of justices' clerks and magistrates in the discharge of their judicial functions. If chairmen and members of magistrates' courts' committees are appointed by the Lord Chancellor, it will inevitably undermine the independence of the magistracy, which is an important plank of our democracy.
The noble Lord, Lord Taylor of Gosforth, was also scornful about the merits of short-term contracts and performance related pay, as were the noble Lord, Lord Gisborough, and my noble friend Lady Fisher. By placing justices' clerks on short-term contracts within a hierarchy that leads ultimately to the Lord Chancellor's Department, power is being given to politicians to run the judicial system of this country.
I suspect also that people will be less willing to volunteer as magistrates if they are as demoralised as was suggested by the noble Baronesses, Lady Macleod and Lady Seccombe. If they are made to feel mere cogs in a vast bureaucratic machine, then the whole principle of a lay magistracy may be undermined.
As my noble friend Lord McIntosh said, there is one major missed opportunity in the Bill—the provision of a police authority for London. That was proposed in the original White Paper but ironically it was abandoned because of fears of political control by Labour councillors. In view of the provisions in the Bill for political control by the present Government, I find that truly astonishing. Nor have we seen much sign of the feeble "advisory body" proposed instead by the Home Secretary.
In conclusion, the contents of the Bill have been almost universally condemned. They are a recipe for the political distortion of operational policing and of the running of the magistrates' courts of this country. It is unfortunate, in my view, that our last two Home Secretaries were trained in the combative and adversarial systems of the Bar. Like Humpty Dumpty, they believe that "glory" consists in having "a nice knock-down argument" regardless of the evidence or the underlying principles. The evidence is that local policing works well when in partnership with local people. The underlying principle, as my noble friend Lord Williams of Mostyn so effectively affirmed, is that the police service and magistrates' courts should be subject to local democracy and not to centralised political control.
In the light of the almost universal criticism of the Bill I would hope—and, as the noble and learned Lord, Lord Ackner, said, "Hope does spring eternal"—that the noble Earl the Minister will take up the suggestion of the noble Lord, Lord Mottistone, arid many of his, noble friends and withdraw the Bill.
§ 10.26 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, when one comes to reply to this debate it is nice to feel that one is among friends. I admire the ingenuity of the noble Baroness, Lady Hilton of Eggardon, and of my noble friends Lord Mottistone and 561 Lord Bethell—even the noble Lord, Lord Hooson, tried to jump on this bandwagon—in suggesting that we ought to withdraw the Bill. I like to accede to their requests whenever I can but they know perfectly well that that is not a realistic option. We have an important Bill here and it is right that it should be discussed.
I welcome the observations that have been made this afternoon because policing is very important. I agree with my noble friend Lord Carr who said that they must be regarded as "our" police and not as "the" police. It is important that we should discuss these matters.
§ Lord Hooson
My Lords, I thank the noble Earl for giving way. He obviously misunderstood my suggestion. I did not suggest that the Bill should be withdrawn. I said that I did not think that it would be withdrawn. I wanted him to accede to the suggestion of the noble Lord, Lord Carr.
My Lords, if I have interpreted the noble Lord's suggestion incorrectly, I apologise. I had made an incorrect note and that was my mistake.
In a forthright speech the noble Lord, Lord Callaghan, said that he thought that what we have in the Government is a group of young, ambitious Ministers flitting from department to department and sucking the honey from wherever they go. I have never been a young, ambitious Minister. Of course the noble Lord, Lord Callaghan, was, so he probably recognises it. All I can say to the noble Lord is that I cannot think why anyone would want to suck the honey out of the Home Office because the bees there make some pretty rum stuff.
A number of noble Lords talked about power as if my right honourable friend the Home Secretary wants power. The noble Lords, Lord Stoddart and Lord Harris, referred to it and the noble and learned Lord, Lord Ackner, used that phrase too. The noble Lord, Lord Williams of Mostyn, said that this was making the Bill a political plaything. If your Lordships' reaction to the Bill is an example of the thrills and the adrenaline of power I can only say that my noble and learned friend the Lord Chancellor and my right honourable friend the Home Secretary must have a very curious sense of enjoyment.
It is important for the Bill to be discussed and I was sorry that the right reverend Prelate the Bishop of Guildford was not able to participate, as he had wished, because of an indisposition. I can understand the feeling. I was going to make an intervention from the Back Benches on the Ordination of Women Measure but I landed up in hospital with a torn achilles tendon and was not able to do so. I merely concluded that the Almighty must have thought that if I was going to make that kind of speech I had better get out of the light. The right reverend Prelate was given only laryngitis. I wonder what kind of speech he was going to make. When the right reverend Prelate the Bishop of Norwich made the speech for him and embellished it with some of his own remarks, I thought that the right reverend Prelate the Bishop of Guildford had not done anything really bad. But I hope that he does get better.
562 I am also grateful to my noble friend Lord Harmar-Nicholls. He always gives one good advice. He suggested that I should not deliver the speech that I was going to deliver, but as he did not know what I was going to deliver I cannot understand why he advised me not to deliver it. But I take that in good heart. I am grateful, too, to my noble friend Lord Finsberg for "breaking the golden thread", as he put it. I thought that it was a piece of rusty barbed wire which he had broken. But I am grateful for his help and that of my noble friend Lady Miller of Hendon who drew attention to the good measures in the Bill. There are many parts which are good.
Your Lordships quite rightly homed in on the anxieties. I come back to the point made by the noble Lord, Lord Callaghan, my noble friends Lord Whitelaw and Lord Carr, and others, that it is very important over matters of policing to get as far as possible a consensus view. It is not always possible. If one makes any change there are bound to be some people who say that it is wrong. There is a great sense of contentment in familiarity and in what one knows.
This legislation has been described by my right honourable friend as the biggest change for 30 years. It is not surprising, therefore, that people are concerned that there should be change. They are also concerned as to what that change might bring. It is right that people should be concerned about policing. They are concerned about it and they are also concerned for the police.
I wish to pay my own tribute to the police. I believe that they are a fine body of people. They work hard and often dangerously in a society, some parts of which are becoming increasingly contemptuous both of the law and of the police. They carry out their duties with great professionalism and great courage, frequently with great bravery and almost always with great friendliness. I never cease to be amazed at the most appalling and vicious treatment to which they are sometimes subjected.
Despite all that—and the fact that they know that that is part of the risk which they take on when they become police officers—they still smile and take pride in their job. Therefore, my respect for the police is boundless. Anything which this Bill does is not in any way a reflection on the men and women in the police service. It is really an attempt to reorganise the structure of the service in which they operate so that their efforts and their talents, as well as the resources which are put at their disposal, can be used to better effect.
If this is the biggest change for 30 years I accept that it is not possible to achieve that without some kind of hurt and anxiety. It is up to Ministers to try to explain what the reasoning is. I shall endeavour to do that but I shall not be able to answer all the points which your Lordships have raised today.
One of the most important points which has been made is that there is a centralising of control. The noble Lords, Lord McIntosh, Lord Harris, Lord Stoddart and my noble friend Lord Elton, all referred in various ways to the possibility of there being a national police force. The noble Baroness Lady Hilton described the measure as presaging a national police force. The noble Lord, Lord Hooson, referred to it as the political control of the 563 police. I would defer to no-one in my opposition to a national police force. It could be quite wrong and wholly undesirable. The Bill does not do that, neither does it presage it. It does not provide a stepping stone for a national police force. That just does not enter the frame.
The Government cannot and do not want to direct policing. Chief constables must have operational freedom. That is explicit in Clause 4 which places police forces under the direction and control of chief constables. I would be the first to say that centralisation of control over the police service would be a disaster. I do not believe that that is the right thing to do, nor that it would be the effect of the Bill.
However, I understand the concerns. The fact is that the Home Secretary is responsible for the annual expenditure of some £6,000 million on the police service and has to account to Parliament for that expenditure and, ultimately, to the public for the state of law and order. The Bill provides and alters—yes, alters—the framework under which the Home Secretary can do that while at the same time allowing policing to be carried out in the locality by local people —by the police authority; by the chief constable.
In future, the Home Secretary will no longer decide how many police officers a force will have. That will be decided by the chief constable and the police authority. They will have to decide how to use their money and whether to spend it on constables, vehicles, plant, equipment, computers or whatever. That is their responsibility. Police authorities will be free-standing bodies. They will not be police committees which discuss things with the chief constable and then have to go to the local authority where they find their recommendations overturned. The police authorities will be free-standing bodies and will have the responsibility for policing in their areas. They will produce their own policing plans. That is not centralisation.
The Bill provides for the devolution of a lot of managerial responsibility to chief constables. In the same way, police authorities will have a larger role and one which will, I think, be the most significant. The Bill places on them a new duty to take into account the views of local people about policing in their area. That will concentrate much more power in local hands.
This is a process of giving some of the powers of the Home Secretary away—down to the police authorities. However, we want to see smaller police authorities because smaller authorities have a sharper cutting edge. It is proposed that they should consist of eight councillors, three magistrates and five independent people. It was never intended that those independent people should be the placemen of the Home Secretary or party hacks. That was the last thing that my right honourable friend had in mind. One must remember that in the past 30 years the local councils have not had the prerogative of running police authorities. Independent members have always been there in the form of magistrates. The independents are a very valuable group of people. In order to make it clear that they were not 564 going to be my right honourable friend's placemen arid that they would be independently chosen, my right honourable friend made the—
§ Lord Harris of Greenwich
My Lords, with great respect to the noble Earl, they are not to be independently chosen; they are to be independently nominated. The decision will be that of the Home Secretary.
My Lords, I said that they would not—I forget what I did say now. They will be selected by an independent body—
My Lords, I am sorry, but your Lordships have asked me, as a Minister, to try to explain what the Bill is about but when I try to explain it, your Lordships are kind enough to say "No".
The independent members will be selected by the independent bodies which we hope will be run by the Lords Lieutenant who will submit short-lists of names to my right honourable friend. He will then make the choice, but that is not appointing party hacks or placemen. In order to make that clear my right honourable friend made the statement yesterday, whereupon the noble Lord, Lord Callaghan, said that at the first whiff of gunfire my right honourable friend goes running. I thought that that was a bit tough. Because there was an area of doubt, my right honourable friend made the matter clear. If he had not made it clear, the noble Lord, Lord Callaghan, would have said, "This is intolerable", but when he does make it clear, the noble Lord says that he is on the run. All that my right honourable friend is doing is being a listening and understanding Home Secretary who is trying to make the matter perfectly clear.
Many noble Lords have expressed concern about the appointment of the chairman. I readily recognise that the matter is controversial. The noble Earl, Lord Carnarvon, objected to it. But who does the Home Secretary choose the chairmanship from? He chooses it either from the councillors, over whom he has no control, from the magistrates, over whom he has no control, or from the independents, who will have been chosen by an independent body. Therefore, the chairman will not be an individual, as it were, parachuted in to some local police authority in order to run it. He will be chosen from the people who are on the committee. He will not be paid; he will receive allowances and expenses.
§ Lord Williams of Mostyn
My Lords, will the Minister indulge us with an answer to a simple question? Why is it necessary for the Home Secretary to choose the chairman?
My Lords, if the noble Lord had contained himself for half a minute longer I would have provided him with the answer and we should all have got along a little more quickly.
565 The noble Lord may not like this, but the fact is that £6,000 million is being spent per year on policing. Ninety per cent. of it comes from Government. It is not unreasonable that the Home Secretary, who is responsible for law and order—and he doesn't half get stick when people complain about the state of law and order—should have some say in ensuring that money spent by the police authorities will be spent by an authority which is under proper control and is well run.
§ Lord Williams of Mostyn
My Lords, that is not the question I put. I have contained myself for a further half minute.
If the committee is competent to carry out these important functions, is it not to be trusted with choosing its own chairman?
My Lords, I do not think that that was the noble Lord's original question. I believe that he asked why it was necessary to appoint the chairman. If the noble Lord did not ask that, plenty of other noble Lords did. I have explained why it is considered desirable for that to happen.
A number of noble Lords referred to the independent members. The noble Lord, Lord Callaghan, asked, under the selection arrangements which were announced, whether the Home Secretary would be free to choose someone not on the selection committee's short list. As a matter of law, that is so. As a matter of fact, that will not happen. If he felt unable to appoint five members from the names on the short list he would probably invite the selection committee to come forward with a few additional names.
The noble Lord, Lord McIntosh, referred to the police authority membership. He said that in taking together five independent members, three magistrates, and the chairman, there is a majority of non-local government members on the police authority. That is not true. The chairman will be drawn from the membership and the local government members will always retain half of the membership.
The noble Lord, Lord Harris, asked about amalgamations. They can be done at the moment. The reason that amalgamations are dealt with in the Bill is because the present system is lengthy. It can take up to 18 months or two years with a great deal of uncertainty.
My noble friend Lord Trevor said that the money being spent could buy 1,000 more police officers. Of course, the reforms will create the framework that will allow the 128,000 police officers and the 40,000 civilian staff to provide a better and more effective service. The small start-up costs in relation to that will be greatly outweighed by the long-term benefits.
The performance indicators were considered by the noble Lord, Lord Harris, as daft. The noble Lord, Lord Plant, was worried about them. Performance indicators should be a method by which the police can test themselves and by which others can know what the performance is and whether or not the methods are successful. I do not see that that is a wrong thing to do. I believe that it is perfectly reasonable for any 566 organisation which is responsible for dealing with a lot of money to be able to show to others that it is doing the best that it can; and if not, why not.
The noble Lord, Lord Callaghan, and my noble friends Lord Harmar-Nicholls and Lord Bethell referred to the discipline cases and the burden of proof. The issue to be determined by police managers is whether or not the person concerned acted properly as a police officer. Any question of criminal activity would be a matter for the Crown Prosecution Service and the courts would have subjected them to the same level of proof as for any other citizen. Police managers must see whether police officers behaved as they should behave, and, if not, what is the appropriate response. It is appropriate, when determining that question, to have regard to the same level of proof as would be appropriate to outside employment.
§ 10.45 p.m.
§ Lord Hooson
Will the noble Earl allow me to intervene? I have been waiting patiently for him to deal with the question of what the deficiencies are in the present service that make the changes necessary. On a number of occasions I have asked, as have other noble Lords, why the changes are necessary. What is the raison d'être?
§ Lord Hooson
In my speech I set out the provisions in the clause and the schedule to which I was referring, which go to the heart of the matter. What are the reasons for those changes? What is the reason for the need for centralised control?
That is where I part company with the noble Lord, Lord Hooson. It is not centralised control. The onus is to give local people the responsibility for running their own police authorities and the chief constable for running his show; and to allow the chief constable and the police authorities to decide how they intend to spend their money. In return for that, the Home Secretary must obviously have some kind of control.
§ Lord Hooson
If the noble Earl objects to the term "centralised control", perhaps he can simply say what are the reasons for these specific changes.
I am happy to answer that question. It is probably more a matter for Committee stage if we are to keep interrupting, but I am happy to answer.
Ever since I have been in the Home Office there has been a constant desire from everyone, including the police, to see change. One of the reasons is that people considered that the Home Secretary had too many powers and controls over the police. Now he is releasing some of them. He wants to see local people running their own local show. Noble Lords may splutter, but the fact is that many police committees are committees of local authorities.
The noble Lord, Lord Monkswell, shakes his head, but I can give one example. In Derbyshire this year the chief constable wanted a budget of £86 million; the police committee agreed that it would submit a figure of 567 £83 million to the local authority, and the local authority turned it down and said £80 million. How does the chief constable then function? In future, that police authority will have its own money and be able to decide how to spend it.
I had perhaps better turn to Part IV of the Bill, which relates to the magistrates' court service. Its purpose is to rectify the fundamental problems in the magistrates' courts service which were outlined by the scrutiny of 1989. It would be inconsistent with the responsibilities that my noble and learned friend the Lord Chancellor has for the service if he did not seek to address those problems.
The service is hampered by the fact that it has to operate in the 1990s within a statutory framework that was designed to meet the needs of the 1940s. Many changes have occurred in the intervening half century. The demands now made on our system of local justice make reform of that framework imperative.
I am the first to acknowledge the long and proud history of the magistrates' court service. The reforms imply no criticism of the efforts of the people who are dedicated and committed magistrates and court staff. The service will continue to be locally based and run by committees which will be made up almost entirely of local magistrates. That is the answer to my noble friend Lady Seccombe, who asked whether they would still continue to be lay and voluntary—and I forget her third point; but they will be all three of those.
A subject which has worried many noble Lords is that of judicial independence. Some, including the noble and learned Lord the Lord Chief Justice, have said that they fear the judicial independence of magistrates may be threatened by the provisions in the Bill. The noble Baroness, Lady Fisher, said that the Bill would centralise control and that there would be party political overtones. I hope not.
Noble Lords fear that if justices' clerks have fixed-term contracts and performance-related pay they will no longer be able to advise their magistrates without the encroachment of management considerations. They fear that justices' clerks, with the chief justices' clerk breathing down their necks, will advise their magistrates to apply the law in such a way as to meet the committee's targets, or to save the committee's budget, or to follow a directive issued by the Government. I do not believe that that will happen. My noble and learned friend the Lord Chancellor is, of course, sensitive to any possibility that the independence of the judiciary is in danger. He is second to none in his concern to preserve and protect that vital part of our constitution. However, he sees nothing in Part IV of the Bill which will threaten that independence.
There are, in fact, elements of the reforms which will strengthen the independent role of justices' clerks in giving advice to their magistrates. For the first time, justices' clerks will be protected by full employment law, which they will be able to use if they are dismissed for exercising their independence in advising their Bench. To put beyond any doubt the fact that the fears which have been expressed are unfounded, Clause 71 contains the statutory declaration that was promised in the White Paper, A New Framework for Local Justice. 568 That clause provides that management may not direct justices' clerks in the advice which is given to individual cases. I can also state unequivocally that this aspect of their work will be excluded from the appraisal of their performance which is required under the Bill. It will also be possible for clerks to gain extra protection by negotiating that the terms of Clause 71 should be reflected in their contracts.
The noble Lord, Lord. Harris of Greenwich, was concerned that justices' clerks will be subject to fixed-term contracts and performance-related pay determined by how they follow government directives. While justices' clerks' contracts and performance-related pay will depend on them following the directives of their employers, that will be the magistrates' courts committee and not the Government. Performance-related pay will not be related to the legal functions which are protected by Clause 71.
The noble and learned Lord the Lord Chief Justice said that the chief justices' clerk's responsibility to promote the discussion of legal matters is chilling. In the course of the consultation on the reforms, the Justices' Clerks' Society proposed that there should be a statutory forum in each area in which the chief justices' clerk and justices' clerks could discuss legal matters. Such a forum is not appropriate for establishment in statute but the impetus for it is contained in Clause 68. The chief justices' clerk will not be able to direct the advice which justices' clerks give to their magistrates in individual cases.
Many points were made that I should have liked to answer, but I do not believe that I should be approved of if I wearied your Lordships any longer. In all this we want to—
§ Lord Archer of Sandwell
My Lords, I am grateful to the Minister for giving way. Will he at least satisfy the curiosity of those of us who asked why the Government are legislating on subjects two at a time when for 140 years successive governments have tried to distance magistrates' courts from the police?
My Lords, I expect that the simple answer is efficiency and effectiveness. I realise that it has its inconveniences but, on the whole, it was considered that this would be the best way—if I may so put it—of killing two birds with one stone. I realise that that is a most unattractive simile but it is a way of dealing with two matters. The noble Baroness, Lady Fisher, laughs but my noble friend Lady Seccombe said that she sat in a magistrates' court which was called a police court. There is a connection between the two and it was considered that this would be the best way of dealing with it
§ Lord Callaghan of Cardiff
My Lords, I am obliged to the Minister. He has put up a good defence of the Bill and I believe that he is reaching the end of his remarks. However, it is disappointing because this morning the noble and learned Lord the Lord Chancellor said on a radio programme that he intended to listen to what was said in this House with an open mind. With respect, what the noble Earl, Lord Ferrers, has done is give a perfect defence of the indefensible without any 569 indication of an open mind in any way. I have heard no concession by him to any of the criticisms that have been made from his own Benches, the Liberal Benches, the independents or the Benches on which I sit.
This is no twopenny-ha'penny Bill. It is a Bill of major importance. It is one of the major planks in the Government's legislative programme for the current session. It cannot simply be wished away even by a gallant defence by the noble Earl. I regret that the Leader of the House is not present. I do not criticise him. I am sure that he is engaged on other business. But he is the figure who in the Cabinet is the only one, with respect—I do not know what role the noble and learned Lord the Lord Chancellor plays; no doubt some holders of the office play a different role from others—who can convey to the Cabinet the sentiment of this House today when a major constitutional Bill and one of the major Bills in the Government's programme has been almost friendless.
I want to ask the noble Earl, for whom I have a great deal of respect, how it will be conveyed to the Cabinet that, had their major Bill been subjected to a vote today, it would have been very hard to obtain a majority. How do they intend to steer the Bill through the House from now on? Do they intend to adopt the view of the noble and learned Lord the Lord Chancellor of listening with an open mind, or are we to continue to hear very gallant defences from the noble Earl, Lord Ferrers?
My Lords, I hope that the noble Lord, Lord Callaghan, will continue to hear gallant defences from the noble Earl, Lord Ferrers. If I may say so, I think that he is being slightly unfair. He has criticised the Bill 570 and so have a lot of other speakers. It is slightly unfair to expect government Ministers to stand up and say, "I am so sorry and I quite agree that the whole thing is an absolutely stupid Bill." Of course the noble Lord would expect me to defend the Bill and put the Government's case. But because one puts the Government's case it does not mean that one has a closed mind. I do not have a closed mind and neither does my noble and learned friend. The noble Lord, Lord Callaghan, may be in some doubt as to how the message of this Chamber will be conveyed to my right honourable friend, but I shall see that it is conveyed to him. I can give him that assurance.
I had a few wonderful remarks with which I intended to finish. However, I merely say that I realise that this is a controversial Bill. I realise too that over matters of policing and matters of the judiciary one wants to obtain as broad a consensus of opinion as possible. But I also recognise, as I am sure will all fair noble Lords, that, if a change is going to be made, some things will alter from the status quo and become something different. It is right to be apprehensive about what that difference will be. We will have the opportunity to discuss that at the Committee stage.
I believe that it is right, when affairs and matters have changed after so many years—in the magistrates' courts case it is about 40 years and in the case of the police about 30 years—to try to make the changes necessary for the future. I am grateful to your Lordships not always for what has been said but for the way in which the majority of noble Lords have said it. I can assure the House that we will take note of what has been said. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.