Congratulations are due today to Bob Jones, the West Midlands Police and Crime Commissioner, for outsmarting the Home Secretary on the politics of PCCs. Mr Jones, or some clever member of staff, has spotted that, while the Government went to a great deal of trouble to ensure that PCCs could not have employment contracts with people who were politically active, it conspicuously failed to ban PCCs from having service contracts with them.

As revealed by Fiona Hamilton in today’s Times, a Freedom of Information request from your favourite PCC blog at TopOfTheCops has established that what looked like a recruitment campaign earlier this year for “Assistant Commissioners” and non-executive members of a “Strategic Policing Board” was, technically speaking, not a recruitment campaign, but a procurement exercise in drag. The folk appointed are not Assistant Commissioners, or Board Members. They hold no employment or office. They are contractors providing a service, who can be dispensed with at a month’s notice, and who have no employment rights.

So what?

Well, Mr Jones, who was a Labour Councillor when elected, and who appointed a Labour Councillor as his Deputy, used the ‘recruitment campaign’ to appoint, wouldn’t you know it, 3 Labour Councillors (Faye Abbott, Judy Foster and Mohammed Nazir) to the, I guess technically non-existent, positions of Assistant Commissioners, giving them each £22,500 per year on top of their Council allowances for the two and a half days a week they spend ‘delivering a service’.

Some crumbs fell from the banqueting table for other parties too – £7,500 each for Lib Dem Councillor Ernie Hendricks, Conservative Councillor Tim Sawdon, former Independent PCC Candidate Cath Hannon and businessman Brendan Connor – all as non-executive members of the Board, but actually on service contracts.

Now, you all know the Police Reform and Social Responsibility Act 2011 as well as I do, and I’m sure that when you were going through Schedule 16 of that Act and got to section 200, you noticed that any PCC employee who isn’t the Deputy PCC is automatically in a politically restricted post. So, Councillors cannot be employed by a PCC – but it turns out they can work for him, as long as they don’t count as employed.

So – general smug feelings all round in the West Midlands then? Well, maybe not. This sort of thing does not come about without certain complications….

1) Everybody else who works for the PCC is politically restricted. Everyone else. That includes the Chief Executive, of course, but also the office cleaner if the PCC employs them. It is just about the most all-encompassing political restriction I’ve ever seen. Even Civil Servants are allowed to be involved in local politics, and in local government the restrictions are themselves restricted depending on the nature and  seniority of the post, but all PCC employees are politically restricted. Which is why this law always looked a bit dodgy. It is overbroad. It shows no proportionality or consideration of degree or purpose. In its effort to be whiter than white the issue of those workers’ entitlements under Human Rights law is ignored and so the law could easily be subject to challenge. But how much more is this likely when, thanks to Mr Jones, it can be shown that someone else recruited like an employee, referred to in terms similar to an employee, and working like an employee, can through this ruse retain their active involvement in politics? This loophole undermines any Human Rights defence of just about any political restriction – as it becomes impossible to show the restriction is ‘necessary’ or ‘reasonable’ when they manage perfectly well without it in Birmingham.

2) Councillors around the country take note – here is a way to employ your political mates on decent rates without those pesky rules getting in the way. Think of what you could do – this could make politics popular again!

3) Except there are those other rules – procurement rules. Did these appointments that aren’t really appointments meet the rules that cover the award of contracts?

4) Contracts for service have previously raised their ugly heads because they allow folk to earn money in an, ahem, ‘tax efficient’ way. Are Mr Jones’s contractors paying personal income tax rates on these earnings, or perhaps less?

5) People who are not employees cannot be disciplined. They can’t be prosecuted for malfeasance in a public office because they don’t have an office. There is no established fair procedure to tease out what really happened in any given problem, and they lack the protection of employment law, which could make them overly agreeable to the PCC if their income depends entirely on his good humour.

If Mr Jones has put a nail in the coffin of the concept of political restriction, there will be few people happier than TopOfTheCops.   I note that a number of potential and actual candidates at the PCC election faced life-changing barriers to standing due to the political restriction rules. I favour registration of employees’ political affiliations, not the current pretense that they don’t have any.

But…

…you knew there would be a but…

… I also note that the West Midlands Police Authority, 17 members made up of a mixture of Councillors and Independents and led by Bob Jones, seems to have been replaced by a Strategic Policing Board, 9 members made up of a mixture of Councillors and Independents and led by Bob Jones. You could come to the view that not much had changed, that this flagship PCC policy doesn’t really apply in the West Midlands, and you might note that a net change of 8 members has only saved £30,000, meaning that on a per-member basis the new arrangements are actually more expensive than what they replaced.

The curious thing is that the Police Reform and Social Responsibility Act specifically bans people on service contracts to the police or to PCCs from standing to become PCCs. In other words, when the Government were drafting the legislation, they knew about this loophole, but for some reason only closed it for those who wanted to be PCCs, leaving Mr Jones free to use it to recreate the police authority in miniature and resist the Government’s entire reform.