Fifth day of the Committee Stage of the Policing and Crime Bill – predicting when my amendment on airport policing will come up

Today is the fifth full day of the Committee discussion of the Policing and Crime Bill.  This is the stage when Bills are debated clause by clause with many hundreds of amendments put forward and considered.  There are rarely votes, but it is the opportunity to explore issues and get statements from Ministers on the objectives of particular clauses and how they are expected to work.

I have three amendments down: amendment numbers 152AV; 152AW; and 152AZ.  These deal with the arcane subject of which Secretary of State should arbitrate in the case of disputes between airport operators and the police about how much the former should pay the latter for providing airport policing for security purposes (ie is it the Home Secretary or the Secretary of State for Transport?) and, in the event of arbitration, how quickly the arbitration should be carried out.

The House sat at 2.30pm and business began with questions, followed by a statement from Lord Peter Mandelson on the industrial dispute in the Royal Mail.  The Committee stage debates on the Policing and Crime Bill then started at about 4pm.

My problem is that there around fifty groups of amendments to be considered and my amendments are about two-thirds of the way through.  I am chairing a meeting of the All-Party Group on Policing with Sir Hugh Orde, the President of the Association of Chief Police Officers, that is scheduled to take place at 7.30pm until 9.30pm.  When will my amendments be reached?

My initial calculations suggest that the business will be completed around midnight and that my amendments should be reached at around 9.30pm or 10pm.  This suits me fine.

However, the first two hours of debate are much quicker than expected – so that by 6pm, I have revised my estimates and am expecting my amendments to be reached about 6.30pm.  Again that suits me fine and I take my place in the Chamber ready to move my amendments.

At this point, the progress of debate starts to get slower and the two preceding groups of amendments take fifty minutes as other issues around airport policing are debated.  The House is concerned that the costs of security may be such a burden on some of the smaller airports that they will go out of business.  So much so, that I am forced to intervene:

“Lord Harris of Haringey: My Lords, I hope when my noble friend responds to this short debate that he will give a categorical assurance that he will not allow the security of airline passengers and those working at airports to be compromised because of what the airport operators say is their financial situation. I trust that we will be given an assurance that, as my noble friend Lord Berkeley said, security and safety will remain paramount.”

In the event, my amendments are reached at 7.20pm and concluded about fifteen minutes later – so I am just able to chair my meeting – albeit arriving a litle breathless and a little late.  All part of the unpredictability of trying to fit other activities around duties in the Chamber.

For those with an interest in the arcane.  This was the discussion on my amendments:

“Amendment 152AV

Moved by Lord Harris of Haringey

152AV: Clause 77, page 102, line 25, leave out “Secretary of State” and insert “Home Secretary”

Lord Harris of Haringey: My Lords, I shall speak also to Amendments 152AW and 152AZ. I begin by repeating the declaration that I made at Second Reading, of being a vice-president of the Association of Police Authorities and a member of the Metropolitan Police Authority. In that latter capacity, I have been involved in the oversight of the discussions about policing with Heathrow Airport as well as with the non-designated London City Airport, which have been protracted and so far unsatisfactory in their outcome.

The amendments deal essentially with two issues; first, to establish which Secretary of State will arbitrate disputes about airport security plans. I acknowledge at once that it is of course the convention that Secretaries of State are indivisible and that the Government are absolutely seamless and work wonderfully together, but the purpose of the amendment is to clarify who will have the lead on these matters. I also want to establish what time limits should apply to settling arbitration disputes.

The first issue is who will arbitrate in practice. This section of the Bill comprises amendments to the Aviation Security Act 1982, which is obviously a Department for Transport Act, and would imply that the Secretary of State for Transport is the relevant Secretary of State. However, the Bill is also a Home Office Bill, dealing with matters of security and policing at airports, which would imply that the Home Secretary is intended. This is made worse by Schedule 6, which deals specifically with policing plans at airports. It contains similar provisions about arbitrating disputes where policing plans are not agreed. Again, the same doubts apply in relation to which Secretary of State is intended to be the arbiter.

Aside from these technical points, there may be a difference in the way in which the two Secretaries of State might view disputes. The Home Secretary, being familiar with national security threats, might place more emphasis on that side of the equation, whereas the Department for Transport, being more familiar with the concerns of airport operators, might place more emphasis on commercial considerations, which is precisely the issue that we have been discussing in the past couple of groups of amendments.

This has raised some concern that profitability might be put before security—I note the assurance that my noble friend has already given on that point. When it comes to arbitrating disagreements about airport security plans and airport policing plans, I trust that what we will see is the very closest working together between the two government departments. It is in no one’s interest to drive airports into bankruptcy, but it is particularly important to ensure that security is not compromised or suffers in difficult financial times. That means that there should be clarity about what airport operators are paying for, and that should relate to those national security matters.

I hope that my noble friend will offer some reassurance that the statutory guidance to be issued following Royal Assent will include clear mention of the Secretary of State for Home Affairs being involved. I would also hope for my noble friend’s confirmation that such reassurance will be within the guidance issued, that, if the Secretary of State for Transport has the lead, they should be obliged to act in accordance with it in all applicable cases, and that the paramount importance of security in such cases will be uppermost in their mind.

The second issue in this group of amendments is whether time limits should apply in relation to determining arbitration decisions. We heard much in the Committee’s debates on earlier groupings about who has an incentive to put costs up and who has an incentive to reduce them. Equally, there is an incentive for some to allow these decisions to spin out for as long as possible. If you are currently not paying something, then not doing so until 2011, 2012, 2013 or 2014 seems much better than having to pay it now. So the issue of time limits is critical. The concern here is that a decision could, as the Bill’s wording stands, be allowed to drift indefinitely. That would mean that police authorities and forces could effectively be out of pocket for some months or even years before being reimbursed for delivery of policing services. Although this would be alleviated by interim payments where agreements already exist, it could prove problematic where they do not. In difficult economic times, this might in extreme situations threaten the policing presence at airports, if money cannot be found elsewhere in the police budget to tide them over until agreement is reached.

Perhaps more serious, because it is probably more likely, is a situation where the dispute is about who should contribute which services to the security plan. This could lead to prolonged uncertainty and incomplete security cover in some respects. It is clear that that a prolonged arbitration process in these circumstances would add to an already significant risk. Any absence of clarity in these matters could lead to confusion and potentially very serious consequences. It also makes forward planning and budgeting resources almost impossible if a dispute continues indefinitely.

I appreciate the difficulty in setting a single timescale for all possible disputes and I am not sure that three months is necessarily the right length of time—I am willing to be persuaded that it might be, let us say, four months as opposed to three—but I have included it for the sake of debate. I should be interested in my noble friend’s views on what would be an acceptable length of time and how decision-making within a sensible time limit can be guaranteed. I beg to move.

Baroness Neville-Jones: Amendment 152AX is probing. It seeks to clarify the meaning and practical effect of the powers of the Secretary of State in relation to disputes. If the Secretary of State decides not to exercise his power, or exercises that power but the dispute is not resolved, the amendment would allow him to determine the dispute; in other words, if the consultation mechanism does not work properly between the parties, the Secretary of State may step in and take a decision. Under what circumstances is it envisaged that the Secretary of State would not exercise his power to require relevant persons to take steps to resolve a dispute? Can the Minister assure the Committee that it does not affect the obligation of the Secretary of State—a point which arises later in the Bill—to consult those who have an interest in the dispute? In what circumstances would the Secretary of State simply decide that he was going to decide, rather than trying to resolve a dispute with the parties?

Lord Bradshaw: The noble Lord, Lord Harris of Haringey, made reference to security as if it were some curtain to be drawn so that nobody could probe the situation once security was mentioned. One has to be very careful: there are plenty of people who will raise various obstacles to the proper appraisal of things that are put forward. Security can be one; safety can be one; and we all know how many of these things can be exaggerated.

Lord Faulkner of Worcester: My Lords, Amendments 152AV, 152AW, 152AX and 152BG seek to ensure that disputes about airport security plans and police services agreements are referred specifically to the Home Secretary for resolution.

Given the legislative convention, to which my noble friend Lord Harris in anger referred, of referring to a Secretary of State generically rather than specifically, I assume the amendments seek reassurance that disputes will be referred to the most appropriate Secretary of State, who will make a fair and proportionate determination. This indeed is how we want the dispute mechanism to work.

The provisions amend the Aviation Security Act 1982. Disputes are likely to cover a whole range of matters, of which policing is only one element. All airports within the national aviation security programme will be subject to these provisions, but not all will have a dedicated policing presence. As the regulator for airport security, the Secretary of State for Transport has contact with the full range of security stakeholders operating at the airport, including the police. The Secretary of State for Transport’s remit for aviation security extends to the United Kingdom as a whole, mirroring the application of these provisions. The Home Secretary’s remit for general policing does not extend to Scotland or Northern Ireland. Given these factors, we believe the Secretary of State with responsibility for aviation security as a whole is the most appropriate person to refer disputes to, rather than a Secretary of State who has a more narrow focus in this context.

However, it is important to clarify—I am happy to answer the noble Baroness’s point—that the Home Secretary may well have significant interests in security at the airport, particularly with regards to policing or the functions, for example, of the UK Border Agency. When this is the case, we fully expect that the Home Secretary would be consulted. The dispute resolution provisions already enable this by providing broad powers for the Secretary of State to decide procedures based on the nature and complexity of the matter. Similarly, if it were ever the case that the dispute was to be determined by the Home Secretary, we would expect the Secretary of State responsible for aviation security to be consulted, when appropriate. We have considered this dispute process in consultation with others, and both the Association of Chief Police Officers and industry support the approach taken in the Bill. I hope this provides the Committee with some reassurance.

7.30 pm

Amendment 152AX would require disputes about the content of a police services agreement or the costs of policing to be referred to the Home Secretary before the requirement to produce a police services agreement had been established. Clause 77 prescribes the requirement for an airport security plan, containing a holistic range of security measures. If dedicated policing services are identified in an airport security plan, only then is there a requirement to draw up a police services agreement as set out in Schedule 6. The amendment pre-empts disputes over policing and police services agreements in a clause which is essentially about the preceding stages of the security planning process.

Amendments 152AZ and 152BA raise the importance of ensuring that disputes, whether about the contents of an airport security plan or a police services agreement, do not drag on unnecessarily. We agree that there is very little to be gained from allowing such a situation to develop. Disputes need to be handled in a timely and effective manner. What we would question, however, is the inclusion of a mandatory cut-off period for the handling of disputes, which are likely to vary considerably in length, depending on the nature of the issue itself and the complexity of operations at the airport concerned. On the one hand, it may be that a determination need only resolve a dispute about a single security measure. At the other end of the scale, although it is unlikely, a determination could, require a full consideration of final policing levels at an airport, needing a complete reassessment of the airport security plan and police services agreement. This process could also involve, for example, an inspection carried out by an external party, such as Her Majesty’s Inspectorate of Constabulary. At one end of the scale, three months might actually represent too long a period to determine a dispute, while, at the other, it could well be insufficient.

It is precisely because of the fact that disputes are likely to be very different that the Bill provides the Secretary of State with broad powers to determine a dispute in a manner he considers to be most suitable. Although the Secretary of State’s primary concern will be to ensure that an effective and fair determination is provided, the importance of ensuring that a determination is provided within a reasonable timeframe is also something of which he may be mindful. The Secretary of State may be able to provide an indicative timetable to parties at the start of a dispute once an assessment of the complexity of the dispute is made, to provide the parties with some level of certainty so as to assist budgetary considerations, for example. However, I caution that this will be dependent on the individual facts of each dispute.

It is worth noting that, when parties have been unable to agree a police services agreement and may be in breach of a requirement to have one in place, the airport operator will still be required to make payments in respect of the interim policing services being provided at the airport. The Secretary of State’s determination, once made, can require repayment to the airport operator by the police if that is judged to be fair in light of payments made to the police during this interim period. Thus the Bill ensures that there is no financial incentive for an operator to seek to prolong disputes indefinitely.

In light of the assurances I have offered I hope that my noble friend will feel able to withdraw his amendment.

Lord Harris of Haringey: My Lords, I am grateful to my noble friend for those responses. I was less clear at the end of the first part of his response than I was at the beginning as to how exactly he envisaged the arrangements working between the various Secretaries of State. What I hope is that, in whatever guidance emerges, there can be clarity about the important nature of security within all this. I would not want to see a position in which commercial issues overrode the situation. However, I understand what the noble Lord, Lord Bradshaw, and others highlighted about the importance of clarity on what security means and enabling that to be assessed independently by those able to take a step back from it. That is what I envisage the Secretary of State’s role will be. I am grateful that we may be able to look at these matters. Any indication that my noble friend can give before Report as to the nature of the guidance to be issued would be extremely welcome.

As for time limits, I understand that there will be different sorts of circumstances and welcome the fact that there will be circumstances in which an airport operator may be required to pay money from the period from which arbitration takes place. However, I was slightly confused by the language that my noble friend used. He said that the Secretary of State may consider whether the time limit would be reasonable. I may have misheard what he said, but the implication was that it would be up to the Secretary of State to decide whether to operate within a reasonable timescale. I am sure that that is not what he intended, but could there be clarity in the guidance to make it explicit that the Secretary of State is required to act in a timely manner and that, potentially, if it were felt that he was operating too slowly, it would be a matter subject to judicial review. On the basis that that is what my noble friend meant, I beg leave to withdraw the amendment.

Amendment 152AV withdrawn.

Amendments 152AW and 152AX not moved.”

It is now 11.10pm and the House is still sitting and still debating amendments to the Policing and Crime Bill.

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