There has been a step change in thinking across the public sector over recent years. In 2010 the focus was on identifying and delivering efficiency savings. As the current government develops its proposals for the next round of spending cuts, the public sector needs to embrace the challenge of identifying further efficiency savings and delivering opportunities to generate income in order to protect front line services.
The costs of maintaining public sector real estate assets can be significant. It therefore stands to reason that any savings to be realised from maintaining the estate can have a significant impact on the 'bottom line'. In the past, Police and Crime Commissioners (PCC) and forces have sold property assets to generate a capital receipt. But is there another way?
PCCs and forces across the country are, increasingly, seeking to clarify their options for remodelling their existing estates so that they can:
The Police Reform and Social Responsibility Act 2011 (the 2011 Act) sets out the functions of the PCCs. In essence these are to secure the maintenance of the relevant police force and secure it is efficient and effective.
The general power of a PCC to act is contained in Schedule 1, paragraph 14 of the 2011 Act. This allows the PCC to do anything which is “calculated to facilitate, or is conducive to or incidental to, the exercise of the functions" of the PCC.
This is similar to the power available to local authorities under the Local Government Act 1972.
The 2011 Act also amends other statutes. A consequence of these amendments is that, for the purpose of certain sections of the Local Government Act 2003, a PCC falls within the same meaning as a local authority. A PCC therefore has the power under Section 12 of the 2003 Act to invest for two broad purposes, namely:
The functions ascribed to PCCs under the 2011 Act could provide them with an opportunity unlock financial returns through the commercial development of a forces' estate. This is provided that they can demonstrate the development would facilitate or be conducive or incidental to the exercise of the PCC's functions - in other words to maintain the police force or to secure the efficiency and effectiveness of the police force.
Where a PCC could demonstrate that:
then, subject to detailed development of the proposal, and the decision making process complying with applicable public law principles, such a proposal could be argued to fall within the power and authority of the PCC.
While the 2011 Act has introduced these broad powers this is a relatively new and untested statutory framework. The question of what is within the power and authority (or vires) for local authorities has been established through case law over many years. For PCCs and police forces this is a new and evolving area. It will be vital that the PCC and the chief constable are aligned on strategy and outcomes. The rationale must be rigorously tested to mitigate the prospect of a successful challenge on the grounds that the PCC is acting beyond their power and authority.
It is important that PCCs can demonstrate a considered approach consistent with exercising these powers in a reasonable way. Checking and testing the rationale behind any asset development proposal at each stage of the scoping process, including against any internal requirements contained in the PCC's scheme of governance and any relevant guidance, will be crucial. It is also essential that the PCC is clear about:
By identifying objectives and assessing acceptable risk profiles, the PCC and the force will be able to assess the most appropriate model for delivering their requirements.
If you would like to discuss the issues identified in this article or potential delivery options for any planed scheme, please get in contact.
Contributor: Philip Roberts
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com