Police Reform and Social Responsibility Bill


1.0 Introduction

1.1 We welcome the opportunity to submit evidence and note that the Committee will focus on the introduction of Police and Crime Commissioners as a key element of the Police Reform and Social Responsibility Bill (the Bill).

1.2 We have submitted full responses elsewhere [1] and made it clear that we strongly oppose the plans to introduce directly-elected individuals on the basis that they are not in the best interests of our communities. The observations that follow are in addition to those general submissions.

1.3 Having had the benefit of seeing the Bill we re-iterate our position: that we believe the proposals on police governance as set out in Bill are not in the best interests of our communities. They have not been tested sufficiently, or at all, with our communities who will be expected to pay for and vote on something about which even the architects and experts are unclear and uncertain. If the ambition is to ‘reconnect’ with the people of our communities and increase their local influence we believe those same people ought to be offered a referendum in the same way that plans for mayoral governance have been and are to be tested [2] . We maintain our view that any proposed model of police governance which has at its centre a single elected individual represents significant and substantial risks.

1.4 We invite the Committee to note that with the proposed elections being scheduled for May 2012, the police service of England & Wales will be implementing the biggest constitutional changes in a generation at the same time as taking on the biggest operational challenge it has ever faced [3] with the lowest level of resource available to it in a decade. It seems entirely reasonable that our communities understand the business case for imposing such unprecedented demands on their local policing capability and capacity; that business case has not yet been made out.

1.5 We make a general observation that the Bill appears to have been hastily drafted [4] and are concerned that something of this importance could be published with key flaws going unnoticed. This is a real risk when any legislation is enacted in haste and without sharing the draft provisions with key stakeholders in advance. We draw the Committee’s attention to the remarks of the Chair of the Home Affairs Select Committee [5] describing the Government’s proposals for police reform as presenting an "awesome age nda". We strongly believe that the expedition with which the Government is seeking to introduce these ‘awesome’ changes is itself a source of risk, made great er by the fact that the Bill attempts to elide two significantly different manifesto pledges for restructuring policing governance at a time of unparalleled strategic risk .

1.6 Aside from the substantial organisational upheaval inherent in the proposed arrangements, the Bill brings significant public costs; we do not believe that the extent of either - upheaval or cost - has been made clear.

1.7 Turning to the substantive provisions, we believe that the Bill is unlikely to give effect to the Government’s stated policy intentions and may produce unintended outcomes.

2.0 Police and Crime Commissioners

2.1 We strongly believe that the proposed model - which interposes a directly-elected individual between a vaguely-constituted panel and the chief constable - will introduce conflict, confusion and cost, add further bureaucracy and ultimately reduce rather than improve the intended level of scrutiny given to policing on behalf of those who rely on it locally, regionally and nationally.

2.2 We have a fundamental concern about the widespread misunderstanding of what Police and Crime Commissioners (PCC) will - or more importantly, will not – be able to do. We are concerned that people within our communities believe that, in voting for their PCC, they will be voting for their chief police officer [6] . This elemental misconception has been perpetuated by some reporting in the media and is shared even among the more authoritative sources of information on whom communities rely [7] . We encourage Committee members to consider how far their own constituents fully understand what it is that they will be voting for and the extent to which the PCC will be able to address their local policing concerns under the Bill’s provisions.

2.3 Despite their title it is clear that the Government does not intend PCCs to be able to take certain key decisions - decisions about any ope rational policing matters or key organizational issues [8] will not be within their jurisdiction. PCCs will have no responsibility for decisions around charging, prosecution, prisons or sentencing policy, all of which are high c ommunity priorities. Therefore we believe there is a very real risk that people in our communities (including those who may themselves be considering standing for election) will not understand what people are voting for at all, let alone at a time when they will also be voting - in some areas – for mayors and in others in referenda for whether they even want a mayor.

2.4 We endorse the Government’s ambition for local accountability in public services; we do not share the Government’s view as to the consequences the Bill will bring for local policing. Generally our constitutional arrangements follow a model of democratic appointment [9] . For example MPs a re elected by their constituencies but their election endows them with n o powers or portfolios. Government ministers and local authority leaders are similarly appointed to their positions from among an elected group [10] . So appointed, such office holders exercise powers within the context of collective responsibility and can be removed by Parliament or their councils. Under the developing loc al government provisions, communities that opt to have mayors (in West Yorkshire, up to three mayors) will be able to elect them directly to their positions b ut they will have local choice while their mayor – if chosen - has a broad remit for the delivery of local public services, working within the administrative arrangements for their local authority . By contrast, PCCs will occupy a uniq ue constitutional position. Based on the presidential system of democracy their existence will be imposed upon local communities within each po lice area (which generally bear no relationship to the local government area), they will be elected to a statutory role covering a very large geogr aphical and demographical area [11] but one that in sectoral terms is confined to a very narrow area of policing; they will , by virtue of their election alone, hold significant administrative powers (all but two of which can be delegated to someone else [12] ), will not be subject to any form of screeni ng or vetting (beyond very widely drawn requirements of qualification) and can only be democratically removed every 4 years.

2.5 As such PCCs will be ‘policing presidents’. Experience shows that, if stable, responsible, representative governance is to be achieved and public confidence maintained, the presidential model calls for a "healthy system of checks and balances" [13] .

2.6 We s upport the observations of commentators [14] that the ‘adapted’ model proposed for London s has a more rational argument behind it and believe it offer s greater prospects of success and fewer risks . We ask the Committee to note that, while often quoted by the Police Minister in support of the Bill’s proposals, this " London " model is not to be followed – or even offered -elsewhere in England & Wales.

2.7 We share the concerns of others [15] that PCCs will not be representative of the communities covered by their police areas.

2.8 Our primary concern is in the proposals for the PCC. The a ppointment of elected politicians to a position or portfolio allows for a degree of discretion and control over which elected individuals are t o be entrusted with executive powers and provides a safeguard to ensure that the relevant elected person is suited to the particul ar office and can be readily removed from that office should it become necessary or expedient to do so. In an area as sensitive as policing, with its requirements for balancing candour and confidentiality among senior decision-makers, a degree of direction and control over and above the p ure democratic process is arguably necessary . While present in all other aspects of our government this element of discretion and control is absent from the proposed presidential arrangements which do not even require the most rudimentary level of ‘vetting’ a candidate’s background. F rom a purist perspective the freedom for an electorate to choose whomsoever they wish to represent them is unassailable; that purism does not always sit well with the practicalities of polici ng. For example, if despite having no previous criminal convictions in the UK an elected PCC is known to the police as re presenting a security risk, has convictions for offences abroad and/or associations with organized crime nominals, this would unquestionably affect both the relationship of that PCC with their own police force - and those with whom s/he would be required by Parliament to work – and the extent to which that PCC was able to discharge his or her statutory functions.

2.9 We agree that our communities are entitled to reassurance, responsiveness and responsibility in the governance of their policing . This requires a transpare nt, efficient and effective arrangement that is:

i) conducive to, and consonant with, the local government arrangements for the area;

ii) endowed with proportionate powers and subject to appropriate duties;

iii) supported by necessary resources and capable of providing an appropriate level of local scrutiny.

2.10 There are various ways in which these elements can be balanced with the

need for stable, responsible and representative governance (as demonstrated by the ‘London’ variant and the Liberal Democrat manifesto in 2010 which proposed two thirds of members to be directly elected). If democratic accountability and localism are truly the central ambition the logical solution is to elect directly most/all of the body that will hold the police to account. Therefore directly electing an appropriate and representative number of individuals (say 10 in the case of West Yorkshire) would meet the ambition and also hugely strengthen local democratic accountability and widen the pool of people available to foster neighbourhood links.

A new 'Policing Board' elected in this way would address both geographic and poltical balance across huge force areas, and also potentially address issues of diverse represention across the many different communties in West Yorkshire. Such elections could be firmly linked with the local government elections where it could be made clear which candidates were standing as local district policing representatives to the Policing Board for West Yorkshire. It would have the added strength of retaining and developing stronger links and joint working with each of the five Councils in Leeds, Bradford, Kirkless, Wakefield and Calderdale.

The so called 'democratic deficit' and localism agenda would be met if this model was to be adopted.

2.11 Alternatives are:

i) holding direct elections within districts to populate an independent policing board whose members appoint one of their number to be the PCC or Chair (as above) [16] ;

ii) directly electing not just the PCC but an appropriate number of deputies and assistants [17] .

Any of these would achieve the elements set out within the Government’s consultation paper without concentrating all the power and responsibility in one individual who has no ability to build links with the (in West Yorkshire’s case) 2.2m people [18] and whose local accountability is a myth until re-election.

3.0 Police and Crime Panels

3.1 If the Government insist on a single PCC chosen by the presidential method it is essential that panels are properly constituted and empowered to provide the ‘healthy system’ of check and balances identified at para 2.5. One of the Bill’s principal risks is the introduction of party politics into policing and we recognise that a strong, balanced and representative panel with some independent members and the appropriate levels of support could at least mitigate this risk; however, inadequate strength, balance and representation could also exacerbate it.

3.2 We would remind Committee members that our bicameral s ystem of government is a recognition that victory in a democratic contest is

a) not synonymous with public consent (or even assent) to any and all policies of the victor (whether promulgated in a manifesto or otherwise), and

b) no guarantee against autocracy.

This is particularly true where election turnout is low. In Parliament the Upper House has developed out of democratic necessity to keep watch over policy and conduct produced by the party political process (which is what the electoral provisions for PCCs may well create) and note the observation of the the Wakeham Commission [19] that "..it is rarely possible to interpret a general election result as evidence of clear public support for any specific policy."

3.3 W e invite the Committee to note how this Bill will introduce a two-tier system of local governance fo r policing and how, if it is to be both effective and justifiable, this second tier must be properly constituted and endowed with the necessary functions and powers. Otherwise it is simply not worth the effort and expense to create it.

3.4 L ocal Pane ls will, in our view, have three clear strategic roles, namely to:

i) keep a close eye (and rein) on the product of what will be local, single-issue elections in which the policies and approaches of individual office-holders may be highly idiosyncratic;

ii) provide a local democratic forum in which PCCs must explai n, develop and defend their policies, plans and actions with their local government partners;

iii) provide a safeguard for local chief constables particularly where some of the proposed statutory powers (such as those relating to suspension and dismissal) are under consideration.

However we do not believe that the Bill’s provisions go far enough towards producing these outcomes.

3.7 In this respect we believe the Panel should:

i) have a remit beyond that of watchers watching the person watching the chief constable – to include an element of scrutiny of policing performance against local, regional and national plans and

ii) be responsible for standards, complaints against the PCC [20] and compliance with good governance principles.

3.8 The strength of a panel will depend, not only on the legislation, but also the quality of those serving on it. To that end panel members should:

i) hold significant and relevant portfolios within their local authorities together with the necessary skills, abilities, knowledge and understanding;

ii) include lay representatives from communities and

iii) be paid for their work.

3.9 With these improvements the panel would offer a meaningful and necessary element that not only meets the key requirements identified above but also one that is consistent with the Government’s wider proposals such as those in the Localism Bill; without them the panel simply represents the central imposition of a token tier of local administration which is both incongruous with local government reforms and inconsistent with the Government’s aims of cutting bureaucracy and cost.

4.0. Conclusion

4.1 The introduction of the proposed governance arrangements is of constitutional significance and will involve an ambitious programme of both organisational and cultural change. Some independent commentators have questioned the need for such large scale, far-reaching and expensive change to policing [21] , at this time or at all and have called for a clear business case detailing attendant costs. Given that the Government has decided that such change – along with the expense - is necessary, we believe it is vital that the legislative framework is ‘right first time’ and avoids the need for further bureaucracy, upheaval and expense. We further believe that, as currently drafted, the Bill will fall short of producing the level of change to meet the intention or justification behind it.

4.2 To be effective, the new arrangements will need to provide the governance body with the additional powers and resources they need to deliver the organisational and cultural change required. Simply transferring the existing powers and resources from police authorities (a body of - on average - 17 people) to a single elected individual is very unlikely to achieve this.

4.3 It seems clear that the policy intent is to allow the new governance body replacing police authorities to exercise their statutory functions in a way that they feel best meets the local requirement. This can only be achieved if the legislation leaves questions of the local division of assets to be decided by that new governance body locally.

In our view the option which:

i) brings the least risk;

ii) involves the least bureaucracy;

iii) carries the least cost;

iv) makes the fewest assumptions;

v) offers the greatest flexibility and

vi) therefore the greatest likelihood of achieving the policy intent

is the transfer of all those assets and employees that are currently maintained by police authorities to the new body, allowing the first incumbents to decide which of those assets and employees are best utilized under the direction and control of the chief officer and which are best utilized under other arrangements. Not only would this prevent police authorities from having to second guess the requirements of their successors, it would also be entirely consistent with the aims of the Bill and the Government’s wider policy of localism. Conversely, if irreversible decisions have been taken in advance of their being elected to office, the very first incumbents will have been deprived of a unique opportunity to establish themselves and their offices at the beginning of what is intended to be a period of significant strategic change.

4.4 Finally we would urge Committee members to note that, in bringing about accountable, accessible and effective governance of local policing, the electoral mandate of a single individual will not alone be determinative of success.

January 2011

[1] Submissions to Home Office 14 September and Home Affairs Select Committee 14 October 2010

[2] See the Localism Bill 2010

[3] The Olympic and Paralympic Games

[4] By way of example the arrangements for the setting and monitoring of the Policing Plan we understand that By way of example clause 5(8) - arrangements for the Policing Plan - is one of several that have been wrongly drafted and are to be amended.

[5] The Rt Hon Keith Vaz MP on 22 November 2010

[6] in much the same way as the sheriff model in the United States

[7] see, for example, the editorial in The Times 2 December 2010 which describes the “putative chief constable” campaigning on populist issues

[8] such as police officers’ terms and conditions of service

[9] Interestingly this is another model used in appointing police chiefs in the US and one that - like the sheriff model - is not going to be applied here

[10] Tellingly so too is the current Chair of the Metropolitan Police Authority

[11] far larger than most of their parliamentary or even European Parliament colleagues

[12] see clause 18

[13] See e.g. Sargentich, T., The Presidential and Parliamentary Models of Government The American University International Law Review 1992/3 Vol 8 pp 579-592

[14] see e.g. Robert MacFarland, The Guardian 20 December 2010

[15] for example Liberty – September 2010

[16] We recognise the additional bureaucracy and potential for narrowing of focus in such a model

[17] While the Bill allows for delegation of some functions it stops short of requiring the arrangements necessary to take account of the scale of the PCC’s portfolio and the diversity of interests they will represent

[18] Other areas could make a similar argument based on population (Greater Manchester, West Midlands ) or geography (Devon & Corn w a ll, North Yorkshire)

[19] Royal Commission on Reform of the House of Lords, 2000 Cm 4543 at para 4.23

[20] in contrast to the Bill’s proposals at Sched 7 which propose for appointed commissioners to investigate the conduct of elected ones

[21] see, for example, the response of Liberty, Sept 2010