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My original amendment in Committee sought to remove this part of the Bill altogether because of my concerns about the wide-ranging powers that it confers on the Secretary of State, yet again, to make orders about senior appointments and related matters. I reluctantly accept that the Government are determined to go ahead with the clause because they believe that it supports the previous clause on the senior appointments panel. By this logic, if the senior appointments panel is to be statutory, this clause needs to be, too. I accept that this is at least consistent, even if I am still sceptical about it being entirely necessary. Amendment 7 therefore seeks to improve the clause rather than to dispense with it altogether.
I remain concerned about the wide and rather unspecific nature of the powers which the clause gives to the Home Secretary. Having heeded what the Minister said about the important role of Her Majesty’s Chief Inspector of Constabulary in advising the senior appointments panel, and conscious that the clause is intended to support the panel’s work, I have linked the two together. Amendment 7 suggests that the powers of the Secretary of State should be exercisable, subject to the advice of the HMCIC, and that any proposed regulations are in the best interests of appointments to, or departures from, senior posts.
The amendment also suggests that the Association of Police Authorities and the Association of Chief Police Officers must be consulted before regulations are made. This reflects their important role in senior appointments. Let us not forget, as this Bill seems to,
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These changes would provide appropriate and proportionate safeguards in the Secretary of State’s exercise of these otherwise very wide and vague powers, which, as with many other parts of the Bill, are entirely inconsistent with the stated government aim of greater devolution.
7.15 pm
Amendments 99 and 100, again, address the order-making powers, although I am grateful to the Minister for responding to some of my concerns about specific order-making powers by referring to the Secretary of State’s responsibilities for national security and to the need to have powers to ensure that this function can be discharged effectively. However, I hope he recognises the delicate balance of the constitutional arrangements for policing, which reflect that. In this country, we have long cherished policing by the people for the people, not policing by the state. The amendments would ensure that no one is above the law and that policing is by consent and not coercion.
To achieve this, police officers must have operational independence, at least in theory free from political and other unwarranted interference by the state or by anyone else for that matter. Chief police officers must be able to exercise their professional judgment in any given situation and be free to act without fear or favour. This does not mean that they cannot be held to account for their actions after the event, but their decisions should not be interfered with before and during the event. The police authorities are local bodies made up of local people, so to some extent they are the “people” element in the equation. It is their job to set the strategic direction of the local force while bearing in mind the balance of national and local needs. I feel bound to keep stating this, because for some reason the Home Office does not seem to understand it.
The police authorities hold the chief police officer to account on behalf of local people, which again reinforces the principle that policing is not conducted by the state. This tripartite balance is created very carefully. It is, however, delicate and easily upset, and since the original Police Act was passed in 1996 the Government have made progressive attempts over the years to chip away at the edges in the search for ever more power. Of the innumerable policing Bills that have been passed since then—I have been party to most of them—none has seriously tried to give powers back to local forces or authorities.
Despite many government papers of various hues—green and white—that have claimed to do the opposite and to support greater devolution, it happens all the time. The Government just do not seem able to help themselves. This is not assisted by the general malaise of law by knee-jerk reaction, which usually but not always stems from the latest media frenzy. This makes for incoherent legislation that is rarely thought through or tied to other longer-term strategies and developments. This, in turn, leads to an addiction to regulation-making
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By the Minister’s own admission, he is not clear exactly what regulations might be needed under Clause 3 because the Government are waiting for the senior appointments panel to tell them. To my mind, it is depressing and unacceptable that we should have so many open-ended regulation-making powers. It is bound to affect the tripartite balance, tipping it even further to the centre, and I remain unconvinced that some of the regulations are necessary at all. Many could and should be left to local discretion. Where this is not possible, the sort of measures that they will contain should be better described and more tightly defined before they are put into legislation. At the very least, they should be made subject to positive procedures to ensure that Parliament has a chance to scrutinise what is being proposed and whether it is necessary. This is what these amendments propose.
Some of these powers could be very far-reaching and significant—I have in mind particularly those that relate to collaboration—but they all have an impact on the balance between the central and the local in policing. Given that this has been severely eroded already, we need to be mindful of the aggregate impact and ensure that constraints are put into place. I beg to move.
Baroness Neville-Jones: My Lords, on these Benches we think that Amendment 7 is sensible. Neither the Government nor the Bill say what the process for drawing up any regulations will be. All the organisations that the noble Baroness mentioned have legitimate interests in this area and should expect to be consulted. On a related issue about pay-offs for senior officers to whom some of these regulations will apply, in his letter to my noble friend Lady Hanham, the Minister did not say whether such powers already existed under employment law. Perhaps he could now do so.
In relation to Amendments 99 and 100, I have already spoken about the need for adequate positive parliamentary scrutiny and I will not repeat that point, which I think is a strong one.
Lord West of Spithead: My Lords, these three amendments relate to a concern about the regulation-making powers that the Bill gives to the Secretary of State. However, our highly respected Delegated Powers and Regulatory Reform Committee has scrutinised the Bill and did not find the powers to make secondary legislation inappropriate. Amendment 7 is to Clause 3, which specifies additional matters that may be included in regulations made under Section 50 of the Police Act 1996. That Act provides that before regulations are made under Section 50 either the Police Negotiating Board or the Police Advisory Board must be engaged. As the Association of Police Authorities and the Association of Chief Police Officers are members of the Police Negotiating Board and the Police Advisory Board, it is unnecessary to further specify a duty to consult them in legislation. I believe that that answers the point made by the noble Baroness, Lady Neville-Jones, about consultation.
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Amendment 7 also creates an approval role for the Chief Inspector of Constabulary under Clause 3. While he will continue to have a key role in advising the senior appointments panel, he will not chair the panel. It will no longer be appropriate for him to hold this role under the new system as HMIC now has a strengthened role for performance improvement. Therefore, while the expert advice of the chief inspector will be important in improvements to the appointment and departure arrangements for chief officers, including changes made through regulations, I do not believe that it is right for him to gain a statutory role in regulations under Clause 3. This amendment would give the chief inspector this role in relation to all matters that may be included in regulations under Section 50 of the Police Act 1996, which includes police pay, allowances and annual leave. We do not think that it is appropriate for the chief inspector to have a role in these matters.
Amendments 99 and 100 amend Clause 111, which contains a general power to make an order containing supplementary, incidental or consequential provisions for the purposes of the Act. However, these amendments do not affect the powers to make secondary legislation in Part 1, whereas I understand that the intention of these amendments is to make all those powers subject to the affirmative resolution procedure. Therefore, the amendments are defective.
The noble Baroness, Lady Neville-Jones, asked about the powers in Clause 3 already existing in employment law. Clause 3 is needed to note provision for these powers expressly for the police. The police are not subject to general employment law, which is why it is focused like that. On the basis of what I have said, I ask the noble Baroness, Lady Harris, to withdraw her amendment.
Baroness Harris of Richmond: My Lords, I am very grateful to the Minister who has once again given a very full and frank response. We are not going to get anywhere with these amendments, no matter how hard we try. I can only think that the future will be where we will look to say, eventually, “I told you so”. With those remarks, I beg leave to withdraw the amendment.
Clause 5 : Police collaboration
Baroness Harris of Richmond: My Lords, now begins a series of amendments to Clause 5. Amendments 8 and 9 would remove the current power of veto, which appears to have been given to chief officers over authority collaboration agreements and ensures that an authority only needs to consult a chief officer about agreements which affect the police force, as opposed to just the police authority. Amendment 8 seeks to remove lines 4 to 7 because the ability of a
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Lord West of Spithead: My Lords, when this issue was debated in Committee, I offered to consider further whether there was an anomaly here. Collaboration in policing depends on negotiation and consultation between the forces and their authorities from the outset. This assumption is well understood and it needs to be embedded in the legislation that supports it, which is why we have the proposed balance of provisions on consultation. All agreements between forces have to be approved by their authorities, but only consultation is required the other way around. All parties must have some involvement in plans for collaboration agreements, but the balance of responsibility rests with the police authorities, which have the ultimate accountability for ensuring that collaboration is supported and have the final say in the judgment of the best way to deliver greater efficiency or effectiveness.
Amendment 9 seeks to ensure that a chief officer is not troubled by being consulted on collaboration plans between police authorities about things which do not directly affect the running of the force. I would suggest that there is always a possibility that such plans might in some cases have an indirect impact on force business. Much of the business of police authorities, for example on performance and planning, is carried out in-force. I would hesitate to suggest that there is a clear distinction, as this amendment implies, between work which has a bearing on the force’s activities and work which does not. This close working is as it should be; and to include the chief officer in routine consultation on such matters is the most straightforward approach, would not impose a significant burden and would be appropriate.
Turning to Amendment 8, if employees are under the chief officer’s direction and control, a police authority should not be able to agree provisions affecting the functions they carry out without seeking his approval. I understand why this has been likened to the authority seeking permission from the chief officer to provide resources for itself, but this is not a condition applicable to all police authority agreements or all the provisions of any one police authority agreement. The limits of this approval are intended to be confined to the impact of the collaboration plans, in respect of the functions of those employees, on operational matters. This will be set out in detail in the statutory guidance which police authorities are currently helping to draft and to which chief officers must have regard.
We fully intend to ensure, with the help of our stakeholder partners, that the statutory guidance planned for publication alongside these provisions when implemented will make clear the extent of the consultation and approval processes within these provisions. The publication of guidance on collaboration is important to the successful implementation of these provisions. We are working closely on its development with the Association of Police Authorities, the Association of Police Authority Chief Executives, the Association
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The National Police Protective Services Board, representing the tripartite organisations, Her Majesty’s Inspectorate and the NPIA will sign off the statutory guidance and associated toolkit. An early draft of this material has been received enthusiastically and its publication, which is planned to coincide with the commencement of this Bill in the new year, is keenly anticipated by many in the service who already are in the midst of putting together their plans for closer joint working to meet the need for delivering leaner and more effective policing. In the light of that reassurance I ask the noble Baroness to withdraw her amendment.
Baroness Harris of Richmond: I am grateful to the Minister for his response and welcome what he said about statutory guidance. I look forward to seeing whether it makes any difference.
However, the provision still gives powers to chief officers to veto authority collaboration agreements and confuses ultimate accountability for ensuring that collaboration. The police authority is the governing body of the police force. It is absurd to suggest in legislation that it should have to get permission from the people whom it governs to exercise its functions effectively. Police authorities respect the operational responsibilities of their chief officers, they respect that position in expertise and leadership in policing, and they would think very hard before going against a chief officer’s advice. We really must dispense with this power of veto. I shall withdraw the amendment at this stage, but I predict that there will be problems ahead with this part of the Bill.
Consideration on Report adjourned until not before 8.31 pm.
Water Management
Question for Short Debate
8.31 pm
To ask Her Majesty’s Government what measures they are putting in place regarding the management of water and the conservation of rivers.
Lord Dear: My Lords, in introducing this debate, I thank those who are going to contribute to it and declare my own position in the question of rivers and angling: I am a keen salmon fisherman; I fish also for trout—in both cases, with variable success—and I am a member of the Salmon & Trout Association.
As many of us know, the European Union’s water framework directiveestablishes a new and integrated approach to the conservation of our rivers and watercourses, and it introduces new, broader ecological
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There are a range of issues of concern, but I shall focus today on one aspect of the water framework directive: barriers across rivers that obstruct the movement of fish and invertebrates. These are an important reason why many rivers are not achieving the ecological status that is sought. As I think most of us know, the ability to move up and down rivers is critical for migratory fish such as salmon, sea trout and eels, to name but few. However, other fish species also migrate within the river system, and barriers such as weirs and dams can reduce their chances of spawning successfully.
The Government have proposed some ideas for removing unnecessary barriers and installing fish passes, but there is a complicating factor: the fairly obvious one of the growing demand for hydropower schemes, which could lead to the construction of new barriers and new uses for old, obsolete barriers. If these schemes are not introduced in a managed and sustainable way, they could make it impossible to achieve the good ecological status that most of us would seek and the water framework directive requires.
I shall return to hydropower, but first want to address the general issues surrounding barriers. Under existing legislation, anyone who installs a new barrier in a river or stream that obstructs the passage of salmon or sea trout must install a fish pass. If they are altering an old barrier, they have to install a new pass in that way. However, the provision as the law stands has a number of defects. First, it applies only to salmon and sea trout and does not cover other migratory species, such as eels, shad and lampreys, or freshwater fish that migrate within the river system. Secondly, it does not apply to existing, unaltered barriers.
To remedy these defects, the Government issued a consultation paper in January which proposed to extend measures on fish passage to all fish that need access to different parts of the watercourse to help them complete their life cycle. It also required the installation of fish passes in an existing barrier. Similarly, screens would in principle be required on all abstractions from rivers.
The proposals were welcomed by all fisheries and angling bodies—no surprise there: they would, of course. However, I understand that the Government now intend to delay the necessary regulations until at least May 2011. This is regrettable. It will make it far more difficult to achieve the water framework directive’s objectives on the grounds that the Government are, I think, concerned at the economic implications of some of the proposals for small businesses and landowners, and we know that the economic climate is difficult.
While I understand some of the reasons that lay behind that decision to delay, the concerns are in many ways misconceived. Granting additional powers to the Environment Agency need not mean that they would be used immediately—I would in any case expect the agency to use any new powers sensitively. The suggested powers would enable the agency to respond much more effectively to proposals for new hydro schemes, and in ways that did not jeopardise the attainment of the water framework directive’s objectives.
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I think that we all recognise that hydropower schemes have the potential to cause significant environmental damage. The Environment Agency estimates that 1,200 schemes will be operating by 2020, and those schemes require barriers. Barriers are needed to create the head of water necessary to drive the turbines. Unless properly-working fish passes are provided, barriers will prevent fish migration and the movement of invertebrates. Fish passes require a good flow of water through them to work effectively. Fish such as salmon are attracted to the very strongest flow in the river if they are moving up it to breed. If that strong flow is at some distance from the fish pass, the fish will not find or use the pass, may not find alternative migration routes, and will be lost to the breeding stock completely.
In addition, barriers can cause migratory fish to mass in unnaturally large shoals below them, attracting increased predation—from seals, for example—increased poaching, which is fairly obvious, and the risk of disease outbreaks. This can be a particular problem when the barrier is the first obstacle that salmon and sea trout encounter at the head of the tide in their return migration to their natural river to breed. An illustration of the damage that can be caused is provided by the monitoring data on the effectiveness of the fish pass in the Tees barrage. It was estimated that only 15 per cent of the fish seeking to go over the barrier there actually made it and that none of them went through the fish pass.
While I do not want to labour the point too much, I shall highlight one particular difficulty to emphasise it: what seems to be the conflict of interest within the Environment Agency. The agency is, first, the protector of the environment, with a duty to oversee implementation of the water framework directive and safeguard fish and fisheries—which is all about the environment. On the other hand, it also has a duty placed on it to further the development of renewable energy and help meet the Government’s ambitious targets for it. It is difficult to see how this dual role can easily be managed by one agency and within it.
Against this background, four steps might be taken. First, I hope that the Minister can give an assurance that the agency and the Government can agree that the first duty of the Environment Agency in these circumstances is to protect the aquatic environment and its associated ecosystem. Secondly, the agency has to be empowered to do the job properly. There should be no delay at all in introducing the additional powers that are now at the discretion of Government, particularly where hydropower schemes are concerned, and I contend that we should not have to wait until 2011 for that.
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