Examination of Witness (Questions 26-38)
Q26 Chair: Could
I call to the dais Rick Muir from the IPPR? Mr Muir, thank you
very much for giving evidence. You sat through the last session,
so you are aware of what we are inquiring into. Is it likely that
the people standing for office as an elected Police Commissioner
are going to be people who are party political?
Rick Muir: I think there will be. I think that is likely,
yes. I think political parties, as I understand it, would be entitled
to stand candidates. I think they should be encouraged to stand
candidates—I think that would be a very good idea—so
I'm pretty clear that they will. The question is then whether
they will be successful. One of my objections to the notion of
the independent commissioners is my concern that, on a very low
turnout, you may get extremist candidates being elected.
Q27 Chair: We will come on to that in a second,
but just on the election and the likelihood of who are going to
be the candidates, as the Deputy Mayor said just now, a lot of
independents had stood in the elections for mayor. Is your anticipation
that it is more likely to be the traditional political parties
putting up candidates, rather than someone who is standing as
an independent, or indeed former chief constables putting themselves
forward?
Rick Muir: I have heard former chief constables tell me they
would be interested in standing, so I think that that could happen,
yes. In fact, I think that would be a very welcome development
because they are people who know a great deal about policing.
So I think the parties will stand, but I do think there will be
a lot of independents standing. The nature of this kind of position,
when you get a single individual post, as with a mayor, those
kinds of posts do tend to attract independent figures. We have
seen the evidence of that with the introduction of directly elected
mayors.
Chair: David Winnick.
Q28 Mr Winnick:
Mr Muir, you are a Labour Councillor in Hackney. That is nothing
to be ashamed about, least of all being a Labour Councillor. Your
view from the left, is somewhat different—is it not?—from
others who have expressed opposition, particularly those senior
Labour Councillors who have on previous occasions written and
expressed quite a lot of disquiet. Why do you think that we should
not be too worried about extremists? You do mention in your paper,
annex B, about the danger of extremists, but you are not particularly
of the view that this should stop the process of electing Police
Commissioners?
Rick Muir: I think that we need to strengthen police accountability.
I agree with what the Deputy Mayor said, that we did see—in
the 1980s and 1990s in particular—a gap emerge between the
police and the public. There are lots of reasons for that, but
I think there is an accountability gap. Police authorities are
too weak. They are not visible enough. The public don't really
know that they exist. As the Deputy Mayor said, for some reason,
significant local councillors very often don't get on to the Police
Authority or don't want to be on the Police Authority, perhaps
because they have other things to do. For whatever reason, there
are questions about the strength of police authorities. They do
vary. I think some of them are quite strong. Some of them do see
their role as being there to hold the chief constable to account.
There are others where I think there is a culture that they are
just there to back up the chief constable. So, for a lot of different
reasons, there is an accountability gap.
I think the question is then what you do about it. I think
that the proposal from the previous Government of having a directly
elected Police Authority—there are a number of different
models. One model was that put forward by the previous Government
that I think would be better, which is to have a wholly elected
Police Authority. There are two reasons why I think that is better.
One is that you would have individual representatives representing
a small area within that Police Authority. I think one of the
problems of the Commissioner model is that the Commissioner is
rather a remote figure because some forces are very large. The
other problem is the problem of too much power being in the hands
of one person. So, if you have a wholly elected Police Authority
there is less chance that one person holds all the power.
Q29 Mr Winnick:
It is the argument against Police Commissioners.
Rick Muir: It is the argument
against Police Commissioners. I think we need more accountability,
but I think the Commissioner model is the wrong way to do it.
Q30 Mr Winnick:
Isn't there a possibility—it is not a possibility—almost
certainly, if this arrangement came to pass, the political parties
are bound to put up candidates. It would be most unusual if they
did not. If one political party does the other will; one assumes
so. Is there not a scenario—it may not be a great danger;
we would see how it works—that in between general elections
there is a tendency for the electorate, as in European elections,
to vote differently because they don't consider that so much is
at stake? Wouldn't there be a possibility that various people
not connected with political parties—there is no reason
why that is a setback—but with particular strong views,
will find themselves elected and some of the views may not be
very desirable?
Rick Muir: Yes. I would be concerned.
If you had the election of single issue candidates, for example,
I think there is a risk of that. People have joked about no speed
cameras candidates getting elected to a Police Commissioner post.
I would be concerned about that, simply because we want people
getting elected to run police authorities who are capable of taking
a holistic view. So yes, I would be concerned about that. There
is a risk of that. As I say, that is the reason why I think the
single commissioner model is the wrong model.
Chair: Thank you. Aidan Burley, please.
Q31 Mr Burley:
Mr Muir, could you give the Committee an idea of your thinking
around the uncertainty that currently exists in relation to this
definition of operational independence and the way that principle
is applied by the courts?
Rick Muir: Yes. I think, as with
a lot in our constitution, this constitutional principle has evolved
over time. The 1962 Royal Commission talked about the impartiality
of the police, the importance of the police being completely independent
of the executive in the application of the law in individual cases.
We then saw the principle evolve with the Denning judgment in
1968, which was controversial because it seemed to go beyond simply
that the police should be impartial and should apply the law in
particular cases, and seemed to cover a whole range of other things
as well, around the management of resources and so on. That is
where it gets rather vague, because there are three levels of
decision-making: one is the law, so Parliament passes the law;
the front line is the application of the law by a constable or
by the chief constable; and then in the middle there is a whole
series of things around strategy and budget setting for the local
force, which I think are areas where there must be public accountability.
The danger with the Denning judgment was it just said, "Well,
the chief constables just had all of that and it sat with them".
In practice it didn't quite work like that but there was tension
and there was a lack of clarity.
That is why I think the most interesting innovation
was the Patten Commission in Northern Ireland that set all of
that out very clearly. It said the police apply the law in an
individual case. They initiate criminal investigations. They make
arrests and so on. The Policing Board in Northern Ireland sets
the three to five-year strategic priorities for the force and
approves the budget, and I think that is a very helpful clarification
of the different roles. The problem that we got into previously
was there was a time—particularly I think around the 1990s—where
chief constables were making decisions about the nature of policing
going on in their forces. We had this retreat away from community
policing, which we are all familiar with, and we have now moved
back to community policing with neighbourhood policing. But you
had a position where chief constables were making decisions to
close police stations and to take officers off the beat, decisions
in which the public were not involved in any way at all and Members
of Parliament were not involved in. It seems to me that that is
the sort of thing that elected representatives should be deciding.
So medium to long-term strategy and budget setting should be for
the accountable local bodies, and I think if we clarify that that
will be a lot clearer.
Q32 Mr Burley:
No one wants to go back to the days of Churchill barking orders
in the street in an actual kind of police operation, but one of
the criticisms that is frequently laid against this proposal is
that it will politicise the police. Would you accept that, in
effect, all policing is, in a sense, political? The decision to
investigate one type of crime rather than another with limited
resources, as every police force has, is a political decision.
The decision, as we saw in the 1980s, to take officers off the
beat, because the chances of them randomly finding a burglary
in progress were the same as winning the lottery, and to put them
in cars and in stations, that is a political decision. In a sense,
all policing is political so that is an irrelevant argument.
Rick Muir: You are right; it is
political. The question is about the balance between the independence
of the police from the Executive in order to apply the law in
individual cases and to do the operational management of the force,
and so on, and the role of the elected representatives. The 1962
Commission and the subsequent legislation established this tripartite
arrangement, which was one solution to the problem. That emerged
because there were cases of corruption with local authorities
having too much control of the police and interfering in operational
policing.
We then created this slightly strange arrangement,
the tripartite arrangement, to try to keep the politics out and
it was a kind of a balance. My view is that it went too far the
other way. It took the police too far out of the realm of local
accountability and we need to shift that balance back. The question
is then how we do that without politicisation. I don't think anyone
in this country wants to go down the American route.
Q33 Mr Burley:
You stated earlier that you were in favour of a wholly elected
authority rather than just an individual, and I think that is
probably just where we would differ. You said that you worried
about extremist candidates standing. I put it to you that we do
not have a single BNP MP in this country but we do have BNP councillors.
Isn't the risk of having the BNP, and other undesirable fringe
parties, greater if we are electing a committee, as we do with
councillors, rather than a single individual, which is more akin
to an MP where we do not have any BNP MPs?
Rick Muir: It is difficult to
know, I think is the answer. It depends on the turnout; that's
the crucial thing. I think if people turn out—as we saw
in the general election where the BNP were wiped out in Barking
and Dagenham—then most British people are sensible, moderate
people and don't want to vote for extremists. So the question
is will there be significant interest in these elections in order
to generate that kind of turnout? And I think that's my concern.
You may want to time them to sit alongside other elections, for
example, which might raise the turnout, but that's the crucial
problem, and I think the danger is if people don't know what these
figures are, who these figures are—the fact that they are
electing a rather remote figure for a police force, if you live
in the Thames Valley—then that I think raises the risk of
a low turnout.
Chair: Thank you. Mark Reckless.
Q34 Mark Reckless:
In this area, we have this one case from Lord Denning in 1968,
which Sir Hugh Orde referred to as "a fine case", that
the police should answer to the law and the law alone. But is
it not the case, both in the 1962 Royal Commission with the Patten
Report, and also for us when we had the Minister before this Committee,
that when this is being considered by politicians a distinction
is being drawn between the individual cases, where clearly the
police should have independence in terms of arrest and investigation
in those individual cases, and the broader spectrum of setting
priorities, determining where budgets are spent and setting policy
in general, which is properly the field of elected politicians?
Rick Muir: I absolutely agree
with that. That is where it needs to come in. That is where the
confusion has arisen. I think there has been a tendency of chief
constables to take Denning to mean that they are in charge of
strategy, and of course the police authorities approve the budget
and the policing plan, and so on. A lot of them are presented
with something that the chief constable has developed and written
and are asked to approve it. I think politicians should be much
more active in that role. This is important to the public; whether
you have neighbourhood policing or you have police patrolling
in cars is, as you said, a political issue. It is of huge importance
to the public and, therefore, those kinds of strategic decisions
should be made by elected representatives. I absolutely agree
with that.
Q35 Mark Reckless:
We had a very helpful note, prepared by the legal advisors in
the Scrutiny Unit for the Committee, that I think broadly takes
that line on the development of the law. I just wondered if you
had any thoughts on how to clarify that position so that the chief
constables, at least, understand. There has been some suggestion
that perhaps a protocol could be discussed or that it is sufficient
for the Minister to have set out his views to this Committee,
or perhaps as the legislation passes. Do you have any advice on
that?
Rick Muir: I think
some kind of memorandum of understanding would be important. I
don't know whether you need to go as far as writing it into the
Bill, but I think that some kind of understanding between the
police and the Home Office—written understanding—is
important, so everyone knows where they stand. That is what we
have in Northern Ireland and it works pretty well, so I see no
reason why that couldn't function in England and Wales as well.
Chair: Thank you, Mr Reckless.
Nicola Blackwood.
Q36 Nicola Blackwood:
You have mentioned the Patten Inquiry. As I understand it, that
inquiry identified part of the problem in this area with the phrase
"operational independence", as though it implied, in
some way, that a chief constable would not be subject to any kind
of scrutiny for operational decisions and suggested that, instead,
we should be shifting to the concept of operational responsibilities,
where of course a chief constable would have the responsibility
to make decisions about operational matters, and so on, but after
that operation, would then be held to account for the way in which
he had done that, which I think is what we all understand the
way the system should work. Do you think that there is any value
then for shifting this concept to operational responsibility and
enshrining that in some way in legislation?
Rick Muir: I think
that is very sensible. Patten was, I think, the first person in
a long time to look at this and I think he got it right, that
clearly in a democratic society, no public official is independent
of the will of the public at some level. Police and chief constables
have to be accountable, even for their decisions in individual
cases, so when they are applying law in an individual case they
have to be accountable after the fact. So they should be called
in to justify decisions that they have made in those individual
cases, where that is appropriate. So, yes, I think it would be
helpful to move to that, because I think the notion of independence
has just confused the matter. It is a question of balance between
the impartiality of the police and the accountability that we
need to the public.
Q37 Nicola Blackwood:
So do you think that that should be written down?
Rick Muir: To be
written down in some kind of memorandum of understanding between
the police and the Home Secretary prior to this happening. I know
Hugh Orde told me he disagrees with this, because he said to me
that the difference between what is written down and what happens
can often be very different. Often it will be about the personalities,
there will be cultures that develop in individual organisations,
and so on. But I think that we need a starting point and we need
something that when these new commissioners come in, who may not
be very familiar with all of this, they understand what their
job and what the job of the chief constable is, and that is very
clearly codified, if you like. So yes, I think that is essential,
and will be one way of safeguarding against politicisation.
Nicola Blackwood:
Thank you.
Chair: Mr Reckless has
another quick question.
Q38 Mark Reckless:
Yes. On that point, we have heard from Kit Malthouse previously
that police authorities haven't tended to take a sort of confrontational
approach or want to have public disputes, but in the note that
has been prepared for us, we understand that the editors of the
main text, John Beggs QC and Hugh Davies, have taken the view
that Lord Denning's judgment, the doctrine, was an exorbitant
one and its legal foundations are very slight. Then they discuss
that they recommend the Police Authority should take these matters
to judicial review. Their position is there is considerable scope,
even within the law as is, for police authorities to have much
greater scope in terms of general policy, but it is just that
that has not happened. Is that also your understanding of the
legal position?
Rick Muir: I think
that's right, and I think non-confrontational is the way this
has developed. I think that has to change. I think one of the
problems with the way police authorities operate is, because they
are not very visible, what happens—they are public bodies;
people can look at the minutes if they want—but I think
there is no real sense in many police authorities, and I know
there are differences between different bodies, but that our job
here is to hold the chief constable to account, if you like, to
hold his or her feet to the fire to make sure that they deliver.
I think in some police authorities there has been this development
of a sort of, "We're there to back up the chief constable".
One chief constable kept describing it as, "His Police Authority"
as if he owned it, and I think that is wrong. The police authorities
are there to represent the public and that has to be clarified.
I know people from police authorities will be outraged about what
I have just said, but I think that a lot of the people that I
interviewed for my research—
Chair: We are getting
Mr Reckless excited, which is always very dangerous.
Rick Muir: Yes.
But many of the people that I talk to for my research back that
up, people who work with police authorities, who work within police
authorities, chief constables and so on.
Chair: Thank you very
much, Mr Muir. Thank you so much for giving evidence to us this
morning. If there is any other information you think is helpful,
please don't hesitate to write in to the Committee. That will
help us with our deliberations. Thank you.
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