TopOfTheCops readers do not disappoint, and several have copied me into emails to Birmingham City Council’s Chief Executive to alert him to the vacancy in the office of PCC for West Midlands. By my reckoning, if he had not managed to declare the vacancy to himself “as soon as practicable” by last night, Thursday 3rd July, then he had by then received safely more than the required 2 notices from West Midlands voters – so the election should be no later than Thursday 21st August, with nominations closing at noon on Friday 25th July, although both those dates could be even earlier. (UPDATED – 4 July PM – this has now been confirmed by Birmingham City Council – see comments section below, and here, where it is clear that this is due to the “notices” from TOTC readers and not to the “notice” from the “appropriate officer” – it looks like TOTC readers have secured compliance with the law, as noted by the Birmingham Mail here)
So, there are pressing things to be getting on with. Another urgent activity falls to the Police and Crime Panel for the West Midlands. They were due to meet anyway on 14 July, and I should imagine it would be difficult to get them together much before this, but when they meet they will have a key responsibility – to appoint someone as an Acting Commissioner until the result of the election is known.
At this point, all eyes turn to Yvonne Mosquito, the Birmingham Councillor appointed by Bob Jones to be his Deputy when he was elected. Cllr Mosquito was initially a rival to Mr Jones, but once the Labour selection was settled they agreed to work together. Many assume that a Deputy takes over in a situation such as this, but the law is less predictable than that. The choice of Acting Commissioner is up to the Police and Crime Panel, save that they must choose a member of the PCC’s staff.
However, I’m going to suggest a couple of reasons why Cllr Mosquito may not want the job.
Firstly, the news is still very fresh and the loss very raw, so at the minute everyone is desperately trying to show respect to Mr Jones, so no-one wants to be clambering, or to be seen to be clambering, to install themselves as incumbent right in the middle of an election contest. Cllr Mosquito was appointed, not elected, to the Deputy position, and if she were to be seeking to be the Labour candidate once more then it could very easily attract adverse comment from other would-be candidates if the system is seen to be giving her special favours. Given past press attention on her portfolio of jobs and other income a pay rise that lasts for less than a month may be a story she could do without at the moment.
Secondly, there is a particular peculiarity in the law if you look closely. Section 62 of the Police Reform and Social Responsibility Act 2011 clearly states at (2) that the Acting Commissioner must be a member of the police and crime commissioner’s staff at the time of the appointment, but if you read more deeply about what the Act says about Deputy Commissioners, at Schedule 1 8(3) it says “The terms and conditions of a person who is appointed as the deputy police and crime commissioner must provide for the appointment to end not later than the day when the current term of office of the appointing police and crime commissioner ends.”
Now there are two ways of reading that. It may mean that the Deputy cannot be appointed to serve for a period beyond the next ordinary election of a PCC, in May 2016. That would mean that the new PCC would not be stuck with the old PCC’s Deputy. Or it could mean that, for the same reason, the Deputy PCC’s term of office only lasts as long as the PCC that appointed them. In other words if a PCC loses office for some reason, and death is one of those reasons, then their term of office stops there, and so does the term of office of their Deputy.
This may be an academic legal discussion. Who in practice is going to force the issue? Is anyone really going to have a go at Cllr Mosquito in the current circumstances and insist she hands back her ID card and avoids the office until the election is over? Perhaps no-one. But if Cllr Mosquito was to put herself forward to be Acting Commissioner, she would be forcing the issue herself, and the Police and Crime Panel might need to take a view on whether she is still the Deputy PCC at all, to avoid the risk of them making an unlawful appointment. She and others might then need to start using “former” in front of “Deputy PCC” in election literature and coverage, which messes up any perception of incumbency. Maybe better not to force the issue, which has the bonus of keeping her time free for the election campaign itself?
So, who could be appointed as Acting PCC, if not Cllr Mosquito? Well, that’s a bit tough. There are three Labour folk who Mr Jones appointed as Assistant Commissioners, and a bunch of others on the Strategic Policing Board – surely one of them could do it?
No. None of them can, because, as TopOfTheCops revealed last year, Mr Jones went to considerable lengths to appoint these people on service contracts, not employment contracts. That means they are not trapped by rules on political restrictions that otherwise impact on every single PCC employee, but it also means they are not members of staff, so can’t be appointed as Acting PCC.
The Office of PCC for the West Midlands has a number of important decisions to make, but it is a puzzle as to who is going to make any that need to be made in the next few weeks. I really hope they haven’t contracted out their cleaning services. It would be a fitting final tribute to pick some long-serving cleaning lady about to retire and have her finish her career as Acting-PCC for a few weeks, as a way of exposing the peculiarities of the Act that has been passed, and as a way of treating civilian staff in pension terms in the West Midlands in the way they appear to have been treating their senior cops.