Local Government - May 2009
“We just want you to answer a few questions” – new police scrutiny
powers and the call to action
The new legislation
The provisions of the Police and Justice Act 2006 allowing local
authorities to scrutinise crime and disorder have at last been
brought into force. Well, they probably have – I must credit
Tony Kilner at ACSeS for spotting that the regulations were made
before the enabling legislation comes into force, but as you don’t
actually need the regulations to make the necessary constitutional
changes, and they will come into force some time soon, we might as
well not worry about that. With impeccable taste and timing,
though, the commencement orders and the regulations are more or
less impenetrable unless you cut and paste a series of interlocking
amendments, and they arrived just at the wrong time for English
local authorities trying to sort out their constitutions ahead of
the annual meeting. They contain some curiosities. At
this stage there is very little guidance except an offer to
consider making changes if they have got anything wrong, and a form
to fill in.
http://www.crimereduction.homeoffice.gov.uk/regions/regions019.htm
SI 2009 No 959 brought into force section 126
and other connected provisions of the Local Government and Public
Involvement in Health Act 2007. These amended sections 19 and
20 of the Police and Justice Act 2006. SI 2009 No 936 brought
sections 19, 20, 21 and Schedule 8 of the 2006 Act into
force. They all came into force in England on the 30 April
2009. The Crime and Disorder (Overview and Scrutiny) Regulations
2009 SI 2009 NO 942 are made under section 20. They came into
force in England on the 30 April, and will take effect in Wales
(foreshadowing future commencement orders no doubt) on the 1
October 2009.
You have to put this into context to
appreciate how fraught it could be. Crime and Disorder
Reduction Partnerships are well established now, but relationships
can sometimes be fragile, and high profile controversies (G20 crowd
control, for example) are difficult to handle. Local
residents, and many of the councillors who represent them, have
strong views on crime and disorder and on the way their communities
are policed. If we are going to let a boisterous Overview and
Scrutiny Committee loose in this arena we need to know the rules of
engagement.
Crime and Disorder Committees
Every local authority now has to have a Crime and
Disorder Committee. The Committee must meet at least once a
year. If executive arrangements are in place, it will be an
Overview and Scrutiny Committee. On the face of the
legislation, it might be dedicated to this purpose, or it might
have other scrutiny responsibilities, but the slight but
significant differences in the rules would make a stand-alone
committee easier to operate, and we are not sure if this is the
intention. It can co-opt additional members, but they have to
be employees, officers or members of one of the crime and disorder
“responsible authorities” or “cooperating bodies or persons”. They
can only vote if the Committee allows them to.
The phrases “responsible authorities” (RAs)
and “cooperating bodies or persons” (CBPs) crop up
throughout. They derive from section 5 of the Crime and
Disorder Act 1998 and keep moving around. RAs are the county
council in two tier areas, the chief officer of police, the police
authority, the fire and rescue authority, any local PCT, and any
Health Board in Wales. They are the main crime and disorder
partners. In England (and with apologies to Welsh authorities
where the list is similar but different) the CBPs are the probation
board, any provider of probation services, parish councils,
NHS Trusts and Foundation Trusts, the governing bodies of
maintained schools and FE institutions, the proprietors of
independent schools and social landlords. In each case, of
course, the body or person must operate in the local authority’s
area.
If the authority is not operating executive
arrangements, Schedule 8 applies. The Crime and Disorder
Committee must either discharge no other functions, or, if it acts
in other capacities, must not discharge other functions when it is
acting as the Crime and Disorder Committee. This is a strange
provision, presumably satisfied by separating the agenda. It
may appoint a sub committee, which is subject to the same
restrictions. It may co-opt members in the same way as an
Overview and Scrutiny Committee, and has similar powers.
Access to information and political balance provisions apply, and
it can delegate under section 102 of the Local Government Act
1972. There are special rules for the City of London.
Joint Crime and Disorder Committees can be established by
Order. A handful of authorities have joint crime reduction
partnerships, so it makes sense, although this could be seen as
part of a bigger plot to make scrutiny a top tier
function.
All this throws up the first two
oddities.
- The obvious people to co-opt are the police,
but what does that mean? It could mean a police authority
member or officer, but it is not clear if it includes police
officers. It could include the local police chief, but we are
not sure if it could include anyone else in the police force,
because police officers are not employed by the police authority,
and, although they act under the general direction and control of
the chief constable, technically they hold a crown office.
And if the police chief does not want to be co-opted, it would be
strange to co-opt someone from the PCT or one of the
CBPs.
- It is the Committee that decides whom to
co-opt, and whether co-optees are to cover all or some of its
functions, not full Council.
- How and when is the Committee to decide on
voting rights? This decision is also for the Committee, not
full Council. Does it give standing voting rights, or does it
take ad hoc decisions (“we are going to let you vote on this, Chief
Constable”)? This is not only procedurally important, it also
governs the application of the local authority’s Code of Conduct,
which only applies – but must apply – to co-opted members who have
the right to vote. (“Having given you a vote, Chief
Constable, you now need to write down all your personal interests
and give them to the Monitoring Officer”.)
- If they are to be given voting rights, and
the Committee has other scrutiny functions, how does the power for
the Committee to allow them to vote stand alongside Paragraph 12 of
the Local Government Act 2000, which provides that members of
Overview and Scrutiny Committees can only be given voting rights
under a formal scheme made and publicised by the authority?
Section 19(9) of the 2006 Act provides in terms that the Crime and
Disorder Committee is an Overview and Scrutiny Committee under the
2000 Act.
The function of the committee is to review or
scrutinise decisions or action taken by the Council, the police and
the other RAs in connection with the discharge of their “crime and
disorder functions” under section 6 of the Crime and Disorder Act
1998, and to make reports and recommendations about them to the
Council.
Three more conundrums:
- The section 6 functions are limited to the
formulation and implementation of the strategy for reducing crime
and disorder, and anti-social and other behaviour adversely
affecting the local environment, and for combating the misuse of
alcohol, drugs and other substances. “Implementation”
includes keeping the strategy under review and making changes to
it. This is quite different from operational policing.
Although making, reviewing and implementing the strategy provide a
useful peg for general debate, will questions like “Why did your
officer hit that man with a riot shield?” be ruled out of
order?
- Scrutiny is limited to “actions and
decisions” of the RAs. Although these include the police
authority and the chief officer of police, they do not include
other police officers. The same point arises.
- Section 19 (1) of the Police and Justice Act
2006 makes it clear that reports and recommendations can only be
made to the Council or its executive. However, the
Regulations talk about reports and recommendations made to RAs and
CBPs. There is a world of difference between making
recommendations to the executive (which is responsible for
recommending the strategy and implementing those parts of it which
fall to the local authority), or promoting a debate in full Council
(which is responsible for adopting the strategy) and making formal
recommendations to the police. Is this a watering down, or
will there be further legislation?
The Councillor Call to
Action
Then the basic idea is to mirror the Local
Government and Public Involvement in Health Act 2007 “Councillor
Call to Action” system. The original version included a
“community call to action” triggered by a request from a member of
the public, but amendments from the 2007 Act saw this off.
The Crime and Disorder Committee must be able
to make a report or recommendations to full Council or the
executive. Any member of the Council must be able to refer a
local crime and disorder matter to the Committee, usually by
putting it on the agenda. A local matter is one which falls
within the usual definition and which relates to the member’s ward
or electoral area. The Committee must consider the matter,
and can make a report or recommendations to full Council or the
executive. It must take into account any ward member powers
that could be exercised, and any representations from the member
about why it should make a report. If it decides not to make
a report or recommendations, it must explain its reasons to the
member. If it makes a report or recommendations, it must send
a copy to the member, and it may copy the report to any of the RAs
or CBPs that it thinks appropriate. Every recipient must
consider the report or recommendations, respond to the Committee
telling it what action, if any, it proposes to take, and “have
regard to the report or recommendations in exercising its
functions”. The response must be in writing, and must be
given within 28 days, or, if later, as soon as reasonably
possible.
Some more curiosities:
- On receipt of a request from a member, the
duty is just to consider it and decide whether or not to make a
report or recommendations. In the 2007 Act provisions, for
other matters, the duty is to consider exercising the complete set
of scrutiny functions. This should not cause a problem in
practice but the constitutional drafting is messy.
- There is no duty to publish the report.
There is therefore no reference to the access to information rules,
or to the exclusion of exempt or confidential information, in the
various exchanges.
- The response deadline is different from the
2007 Act call to action.
- There seem to be two kinds of “reports and
recommendations” under section 19. First, there is a general
power to make reports to the Council on the discharge of crime and
disorder functions. These must be copied to all the RAs or
CBPs – quite a long list. Secondly, there is the specific
power to make a report on a matter referred by a Councillor.
The Committee may refer these to a RA or CBP. Logically, the
first type must include the second, but in practice they have to be
distinguished to prevent the long list of CBPs coming under a duty
to respond to a report that has nothing to do with them.
- We are increasingly worried about the
proliferation of duties to “have regard”. Assume, for
example, that a Crime and Disorder Committee recommends to Council
that it should review the strategy to include a reference to the
operation of stop and search powers in a more sensitive way.
It is likely to send a copy to the police chief. He or she
must then have regard to those views in any decision that is made
about the exercise of those powers. Or suppose that it makes
a recommendation about licensing policy, and three years later the
Council adopts a new policy which goes against the recommendation
without reviewing the views that had been expressed by the
Committee. Failure to “have regard” would be a legitimate
ground for judicial review.
Powers to compel attendance and
require information
Overview and Scrutiny Committees have power under
section 21 of the Local Government Act 2000 to require executive
members, ward members exercising delegated powers and officers to
attend meetings and answer questions. They may invite other
people to attend meetings. Section 22A of the same Act
enables Regulations to be made to allow information to be obtained
from LAA partners. There has been consultation about how this
might work, but there are no regulations yet. There has been
a hint that this will be extended beyond the world of LAAs, but
this will need legislation. The Local Authority (Overview and
Scrutiny Committees Health Scrutiny Functions) Regulations 2002 SI
2002/3048 allow Health Overview and Scrutiny Committees to obtain
information from local health bodies and to interrogate their
officers, subject to confidentiality exemptions.
The new powers add to this. If the Crime
and Disorder Committee makes a written request to the RAs or CBPs,
for information about “the discharge, or decisions made or other
action taken in connection with the discharge, by the responsible
authorities of their crime and disorder functions; or … local crime
and disorder matters in relation to which the committee has
functions under or by virtue of section 19”, then the information
must be supplied. It must be given by the date specified in
the request, or, if later, as soon as reasonable possible. It
must be depersonalised, by the removal of any personal data, unless
identifying an individual is necessary or appropriate for the
exercise of the Committee’s functions. Information should not
be given which would be reasonably likely to prejudice legal
proceedings or the current or future operations of the bodies
concerned.
In addition, the Committee can require the
attendance of an officer or employee of the RAs or CBPs, provided
reasonable notice is given. Again, the status of police
officers is unclear. The chief officer of police is a
responsible authority, not an officer or employee of a responsible
authority, and the employment status of other police officers makes
it doubtful that they are “officers or employees” of either the
police chief or the police authority.
Final thoughts
Some of the points we have made may be messy in
practice, but none is insuperable provided you are not too
enthusiastic about voting co-opted members. It is good to see
a similar process for crime and disorder matters as for other
matters, but it is a pity that there are differences, and
that health scrutiny could not be brought into line at the same
time. It is silly that there should be three different
processes for local government, health and police scrutiny.
Scrutiny officers will need to be on their toes. And this
process falls short of community involvement, and the Government’s
plans for a Community Empowerment Bill are next on stage.
All that most authorities have to do right now
is alter the terms of reference of their Scrutiny Committees and
tweak the Councillor Call to Action to pick up the 2007 Act
provisions. Pity about the timing, though.
Graeme
Creer
Partner