Policing: Police and Crime Commissioners - Home Affairs Committee Contents

4  The role and powers of Police and Crime Commissioners

Q 3  A comparison with Police Authorities

31. The first of Sir Robert's Peel's nine principles of policing was that the basic mission for which the police exist is to prevent crime and disorder. The consultation paper states that this mission has "not fundamentally changed", although it notes that what was termed disorder at the beginning of the nineteenth century is now known as antisocial behaviour. Actually the term "disorder" was used in legislation in the Crime and Disorder Act 1998, which also had a focus on "anti-social behaviour" and more recently the term disorder has continued to have considerable currency in the title of the Crime and Disorder Reduction Partnerships established under the 1998 Act. In the consultation paper, the Home Secretary argues that the reforms the Government proposes are necessary to enable Peel's concept of the police's mission to be achieved.[62]

32. The consultation paper refers specifically to Police and Crime Commissioners having a "mission to fight crime and ASB [antisocial behaviour]" and states that they will have five key roles as part of this mission:

  •   representing and engaging with all those who live and work in the communities in their force area and identifying their policing needs;

  •   setting priorities that meet those needs by agreeing a local strategic plan for the force;

  •   holding the Chief Constable to account for achieving these priorities as efficiently and effectively as possible, and playing a role in wider questions of community safety;

  •   setting the force budget and setting the precept;

  •   appointing—and, where necessary, removing—the Chief Constable.[63]

33. A submission by the Police Authorities of Wales gave an overview of the current statutory responsibilities of Police Authorities:

  •   ensuring the police provide an efficient and effective service;

  •   setting the local policing priorities based on consultation with local people;

  •   managing the police budget including setting the police part of the council tax in consultation with local people;

  •   recruitment of the Chief Constable and the Chief Officers;

  •   monitoring police performance, holding the Chief Constable to account on behalf of the public;

  •   ensuring that the Chief Constable delivers a police service that balances both national strategic priorities with the concerns of local people;

  •   monitoring complaints against the police;

  •   promoting equality and good relations between different groups of people;

  •   informing people of their rights if they are stopped and searched by the police.[64]

34. These two lists are very similar, albeit that the power to dismiss a Chief Constable and the power to agree a policing plan are not specifically mentioned in the list drawn up by the Police Authorities of Wales. Mr Garnham, the Chair of the Association of Police Authorities, when asked what he saw as the key difference between the role and powers of Police Authorities and the role and powers proposed for Police and Crime Commissioners, also replied: "Not an awful lot of difference."[65] The similarity in powers between Police Authorities and the proposed Police and Crime Commissioners is a potential concern in the light of Mr Malthouse's argument—outlined in paragraph 10 in Chapter 2—that one of the reasons why Police Authorities have a low public profile is that they do not have enough power to make a difference. However, Mr Malthouse added that the lack of power Police Authorities currently demonstrate could also be due to the large number of independent members who are reluctant to get involved in public debates.

35. The Government is clearly still deciding on the precise powers to be held by Police and Crime Commissioners. When the consultation paper was introduced in a debate in the House of Commons, one Member of Parliament asked whether the remit of Police and Crime Commissioners could be extended to cover the Crown Prosecution Service. The Home Secretary replied: "we ... envisage looking at the possibility of extending the remit of police and crime commissioners further in the criminal justice system".[66] Liberty was concerned about this answer and stated: "any steps to give an elected politician any control over the prosecutorial function would be a dangerous move indeed".[67] We urge the Government to take these concerns into account as it develops the role of Police and Crime Commissioners.

36. Several witnesses suggested additional powers that should be given to Police and Crime Commissioners. The Association of Police Authorities was among those that proposed that Police and Crime Commissioners should be given the power of direction over Chief Constables. It warned: "if PCCs have no greater ability to direct chief police officers than currently, they will be no more successful in delivering the outcomes that local people want".[68] It stated that this power of direction should relate to the statutory duties of Police and Crime Commissioners and should not interfere with operational independence. We discuss operational independence below.

37. Lancashire Police Authority was one of a number of witnesses to advocate that a Police and Crime Commissioner should be designated "a body corporate, responsible for the budget, employing staff, holding land, property and equipment, and able to enter into contracts." These responsibilities are currently held by Police Authorities. Like several other Police Authorities, Lancashire also stated that Police and Crime Commissioners "should be responsible for recruiting all Chief Police Officers and not just the Chief Constable".[69] Police Authorities currently have the power to appoint and dismiss senior police officers as well as the Chief Constable.

38. Making a single individual responsible for overseeing policing in a particular force area may in itself raise their public profile compared with that of Police Authorities. However, that single individual must have the powers necessary to perform their role effectively, otherwise public confidence will suffer in the long term. Given that there is concern in some quarters that Police Authorities do not currently have sufficient powers, we certainly do not think that Police and Crime Commissioners should have any fewer powers than Police Authorities, or be given new powers beyond those currently enjoyed by Police Authorities. We recommend that Police and Crime Commissioners be responsible for the budget, staff, estate and other assets in their force area, and that they have the same power to appoint and dismiss senior officers that is currently held by Police Authorities.

Operational independence

39. The consultation paper states clearly that operational independence is a "fundamental principle of British policing" which the Government will "protect absolutely". It comments: "Giving Chief Constables a clear line of accountability to directly elected Police and Crime Commissioners will not cut across their operational independence and duty to act without fear or favour".[70] What is less clear, however, is exactly what "operational independence" encompasses and what this would mean in practice if there were a disagreement between a Police and Crime Commissioner and a Chief Constable.

40. There is no statutory definition of operational independence. The principle of operational independence was endorsed by the Royal Commission on the Police in 1962. Chief Constables were given the statutory function of maintaining direction and control over the police force by the Police Acts of 1964 and 1996. However, the Acts do not make explicit reference to operational independence. The Court of Appeal judgment of Lord Denning in the case of Blackburn in 1968 is cited as a key authority on operational independence, although strictly his remarks may be considered obiter—that is, not binding because extending beyond the matters at issue in the case. Referring to the Metropolitan Police Commissioner, and extending what he said to "every chief constable", Lord Denning stated:

No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.[71]

Lord Denning's judgement has its critics, however. Professor Philip Stenning of Keele University has argued:

Despite its obvious shortcomings, Lord Denning's statement of the doctrine of police independence in Blackburn has effectively become the locus classicus on the subject in common law countries around the world, as well as in England itself, thus seemingly ensuring continued disagreement and confusion about the scope, application and implications of it.[72]

Mr Hogan-Howe, the former Chief Constable of Merseyside, gave a summary of what he understood operational independence to mean when he stated:

the first thing that everyone seems to agree with is that the police should have operational independence, in the sense of not starting or stopping an investigation into an individual because of a political interference and policing something or not policing something because of a political view.[73]

41. So far, the lack of an agreed definition of operational independence does not seem to have caused Police Authorities and Chief Constables great difficulties. When we asked Mr Garnham, the Chair of the Association of Police Authorities, what happens currently if there is a difference of opinion between a Chief Constable and a Police Authority over local priorities, he said that, in his personal experience, he had not witnessed such a difference of opinion. He stated that discussions took place "at a more strategic level" and described a difference of opinion about the level at which the police precept should be set, which was resolved in the Police Authority's favour.[74] However, there are grounds for thinking that the definition of operational independence may become more of an issue if Police and Crime Commissioners are introduced. Cumbria Police Authority commented: "with PCCs having an electoral mandate there may be a much stronger temptation for them to seek to stray into operational areas, especially if the delivery of key election promises is at stake".[75]

42. Sir Hugh Orde, the President of ACPO, outlined the concerns in more detail. He commented: "I think we need to understand what happens when the chief says for operational reasons, 'Much as I would like to do that, I don't think I can'".[76] He cited the example of a Police and Crime Commissioner insisting that the number of officers on the street be doubled and said that he saw "huge issues with that". He stated:

Because unless they [the Government] want to then take the responsibility away from the chief constable for removing officers, by definition, from something else—be it the child protection units, be it the rape units, be it the major crime units, the anti-terrorism units, the things that are currently right on the top of this government's agenda around the security of the state—I think that puts the chief in an impossible position.[77]

He commented that he would like to think that "99.9% of those issues, as they are now, are resolved through sensible conversations between those who hold us to account and those who are tasked with this wide policing mission".[78] We, too, anticipate that the majority of disagreements between Police and Crime Commissioners and Chief Constables can be resolved by means of sensible discussion and negotiation. However, we are concerned about the minority of cases in which, under future as under current models, this might not prove possible.

43. The Minister seemed to be against including a statutory definition of operational independence in the Bill to introduce Police and Crime Commissioners. He said that ACPO's view was that "we should not attempt to define this [operational independence] in the legislation" and that a definition could be "problematic". He stated that he had "sympathy with that view". He also referred to the Independent Commission on Policing for Northern Ireland chaired by Lord Patten.[79] The Patten inquiry noted "overwhelming advice" that it would be "difficult if not impossible to define the full scope of a police officer's duties".[80] It favoured rejecting the concept of "operational independence" and replacing it with the notion of "operational responsibility", to remove all doubt that Chief Constables should be held to account on operational matters.[81]

44. Mr Muir, a Senior Research Fellow at the Institute of Public Policy Research, agreed that shifting to the concept of operational responsibility would be "very sensible". He said that "the notion of independence has just confused the matter" and commented: "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".[82] He advocated that, rather than defining the term in the Bill, there should be a "memorandum of understanding". He commented that "some kind of understanding between the Police and the Home Office—written understanding—is important, so everyone knows where they stand".[83] This would be a considerable improvement on the current arrangement of unwritten convention.

45. It appears to us to be significant that all three contributions on the issue of operational independence refer specifically to criminal investigation and prosecution. Essentially they relate the issue of independence to criminal law enforcement rather than to performance. None of them refers specifically to the first and foremost role of the police, set out by Robert Peel (which we quote in paragraph 31 of this report and which were quoted in terms of strong approval by the Minister when he gave evidence to us). That purpose—to prevent offending and reoffending—is at the heart of local partnership working and is clearly seen by Ministers as a crucial priority for the police. It may be that relating a definition of operational independence specifically to law enforcement, as distinct from overall performance, would be the right way forward. We recommend that the concept of operational independence should continue to apply in respect of the important work of the police in detection and law enforcement, including arrest, but that the concept of operational responsibility be developed and clarified in a memorandum of understanding between the Home Secretary, Chief Constables and Police and Crime Commissioners. It is important that arrangements are made for parliamentary scrutiny of the terms of any such memorandum and subsequently its impact on police work. The police and not politicians must, as now, be solely responsible for individual decisions with respect to arrest and investigation.

Partnership working

46. Police and Crime Commissioners will be working not only with Chief Constables, but also with a whole range of local bodies that have an interest in crime reduction. The Police Federation commented: "It is imperative that the PCCs have a mandate to liaise with all groups in the wider criminal justice arena and with community safety partners".[84] The consultation paper states that the police service has "taken strides to make better connections with its community and its partners" and mentions in particular local community safety partnerships.[85] The Crime and Disorder Act 1998 places a responsibility on the police and local councils to work together alongside other key partners, such as voluntary organisations, the NHS, and the local fire and rescue service, to reduce crime and disorder in their areas. The consultation paper discusses the role of local partnership working under the proposed new structure for policing and states:

By repealing some of the regulations for CSPs [community safety partnerships], and leaving the helpful core statutory duty on those key partners to work together, CSPs will have the flexibility to decide how best to deliver for their communities. We are considering creating enabling powers to bring together CSPs at the force level to deal with force wide community safety issues and giving Commissioners a role in commissioning community safety work.[86]

47. Councillor Kemp, the Vice-Chair of the Local Government Association, told us that the impact of the introduction of Police and Crime Commissioners on local partnership working to reduce crime and disorder was one of the Local Government Association's "principal concerns". He commented that the partnerships were currently "very powerful".[87] He also said that he did not know what the consultation paper meant when it referred to the possibility of "giving Commissioners a role in commissioning community safety work".[88] ACPO Cymru was particularly concerned about how Police and Crime Commissioners would interact with local partnership groups in Wales where community safety "straddles the devolved and non devolved partnership landscape and the influence of the Welsh Assembly Government on our devolved partners is as important as the department for Communities and Local Government in England".[89]

48. Professor Jonathan Shepherd, of Cardiff University, whose research led to the development of a successful violence reduction programme as an integral part of the strategy of Cardiff's Crime and Disorder Reduction Partnership, established by the Crime and Disorder Act 1998, was cautiously positive about the role that Police and Crime Commissioners might play in relation to local partnership working. He said: "If the commissioners are able to bring a higher level of management to partnerships, that would be very helpful".[90] He commented that Police and Crime Commissioners would need to ensure that community safety partnerships have "adequate analytical capacity" and "are delivering the coalition commitment to data sharing and use".[91] He also stressed the need for Police and Crime Commissioners to know "what the distinctive contribution of each partner agency is" and commented that their induction process would be important.[92] He was in favour of greater flexibility for local partnership groups "within certain parameters" and noted: "we would not want to see crime prevention or crime reduction strategies introduced that were known not to work or were even positively harmful".[93]

49. Bearing in mind the findings of our sister Committee, the Justice Committee, that most of the services that affect reoffending are outside the ambit of the police and outside the scope of the criminal justice system generally, we consider that it will be important for each Police and Crime Commissioner to understand, support and indeed drive the crime reduction work of local partnerships and to ensure that they have the appropriate analytic capacity and are held to account for their effectiveness in reducing crime in their area.

The role of central Government

50. The counterbalance to increasing the role of the public in policing is decreasing the role of central Government. The consultation paper states: "The Home Secretary has been given stronger and stronger powers to intervene; to set national objectives; publish data relating to performance; issue codes of practice and guidance; and direct police authorities".[94] There is reference to the need to "free professionals from central guidance and targets so they can focus on cutting crime and rebuilding confidence in the system".[95] The consultation paper does, however, still envisage a role for central Government in policing. It states: "The Government will continue to have a role in setting the national strategic direction for the police".[96] It refers to the existence of "issues of sufficient risk or national importance to warrant national oversight and requirement" and states that the Home Secretary intends to retain powers to ensure that these are dealt with effectively.[97]

51. Our witnesses agreed that there are some aspects of policing in relation to which the Home Secretary would need to retain powers of intervention. Mr Hogan-Howe, the former Chief Constable of Merseyside, outlined three distinct areas. Firstly, he said that the Home Secretary should have the power to intervene if there was "failing or dishonest leadership". Secondly, he said that there was a need for an overview in relation to "counter-terrorism and serious organised crime". Thirdly, he referred to the need for a view from the centre on procurement and capital investment in order to achieve value for money.[98] We agree that the Home Secretary should have the power to intervene in these circumstances. We will return to the subject of central procurement in a future inquiry.


52. Under the Government's proposals, there would also be a role for Police and Crime Commissioners in dealing with regional, national and international crime, and in joint procurement. The consultation paper states: "Commissioners will be a under a strong duty to collaborate, in the interests of value for money and to tackle cross border, national and international crimes (such as fighting serious organised crime and terrorism)".[99]

53. Mr Garnham, the Chair of the Association of Police Authorities, gave an example of collaboration on procurement between five Police Authorities and five Chief Constables in the south west. In autumn 2008, the five Chief Constables and Police Authority Chairs in the region agreed in principle to move towards a common standard for uniforms and equipment. A series of workshops were held in 2009. In June 2010, the five Chief Constables "expressed their preference for a regional catalogue of items from which each force could choose its favoured option". The Association of Police Authorities commented:

The five Chairs accepted that the use of a regional catalogue represented a pragmatic way forward in the circumstances, but were disappointed that after two years work, it had not been possible to embark on a more ambitious programme of standardisation.[100]

The Association of Police Authorities explained that this disappointment was a catalyst for changing the governance arrangements underpinning collaboration in the south west: there is now a "Lead Force approach", which means that specific forces are responsible for leading on specific business areas.[101] It also listed successful regional initiatives on collaboration in the south west, including "cash savings on vehicles, telecommunications and recruitment advertising" and "operational improvements in areas such as counter-terrorism, covert policing, firearms, automatic number plate recognition ... and kidnap and extortion".[102] It gave further examples of good practice across England and Wales.

54. Some progress is clearly being made on collaboration, but there is scope for significant improvement. It is vital that a duty be placed on Police and Crime Commissioners to collaborate with one another. This is particularly important given that the National Policing Improvement Agency, which plays a role in encouraging collaboration, is due to be phased out by spring 2012 under the Government's proposals.[103] The Police and Crime Commissioner should spearhead long overdue collaborative procurement reforms. We expect that Police and Crime Commissioners will want to join together to form a representative body. Such a body should be used by Commissioners to facilitate collaboration between forces .

Central targets

55. At one point the consultation paper states: "We will do away with central targets".[104] Lancashire Police Authority stated: "We believe that it is necessary to have some targets in order for both quantitative and comparative assessment and that it would be facile to say that all targets will be removed".[105] Most other witnesses who commented on this issue were of the view that some central guidance was valuable for benchmarking purposes, although some preferred the concept of "national standards" to "national targets".[106] The difficulty is that a national standard, by virtue of its existence, effectively becomes a national target—a point made by Cumbria Police Authority, which commented: "Any national standards become de facto targets. We would welcome guidance on minimum standards—which are helpful in benchmarking performance—but caution against the setting of statutory standards".[107]

56. Surrey Police Authority had an interesting suggestion in this context. It commented that "it may be better to have national priorities rather than national targets and to place a duty on Commissioners (and Chief Constables) to give consideration to those priorities when setting their local strategies and targets." It gave the example of knife crime and commented that the Home Secretary might identify knife crime as a national priority to which all Commissioners and Chief Constables must give consideration in their planning processes. It stated:

Where a force has low levels of knife crime and it is not a public concern, it would be justifiable not to set a local target which could in fact unduly increase fear of crime. On the other hand, where there is a high level of knife crime, the Home Secretary may expect to see the Commissioner setting a local target for addressing the problem.[108]

As Surrey Police Authority points out, any such system would have to be underpinned by "an accurate and audited national set of performance data in order to assess the extent of problems and compare areas".[109] We see merit in the suggestion that there be a set of national priorities to which Police and Crime Commissioners should have regard when setting local goals.

62   Home Office, Policing in the 21st Century, pp 2-3 Back

63   Home Office, Policing in the 21st Century, p 11 Back

64   Ev w52 Back

65   Q 101  Back

66   HC Deb, 26 July 2010, col 731 Back

67   Ev w3 Back

68   Ev 40 Back

69   Ev w39 Back

70   Home Office, Policing in the 21stCentury, p 12 Back

71   R v Metropolitan Commissioner, ex parte Blackburn [1968] Back

72   Philip Stenning, "The Idea of the Political Independence of the Police: International Interpretations and Experiences", June 2004, p 22 http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/meetings/pdf/Stenning.pdf Back

73   Q 52 Back

74   Q 103 Back

75   Ev w13 Back

76   Oral evidence taken before the Home Affairs Committee on 27 July 2010, Policing HC (2010-11) 362-i, Q 85 Back

77   Q 73 Back

78   Ibid. Back

79   Oral evidence taken before the Home Affairs Committee on 27 July 2010, Policing HC (2010-11) 362-i, Q 54  Back

80   Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in Northern Ireland, 1999, p 32 Back

81   Ibid. Back

82   Q 36 Back

83   Q 35 Back

84   Ev w11 Back

85   Home Office, Policing in the 21st Century, p 6 Back

86   Ibid., p 40 Back

87   Q 132 Back

88   Q 134 Back

89   Ev w14 Back

90   Q 161 Back

91   Q 154 Back

92   Q 156 Back

93   Q 157 Back

94   Home Office, Policing in the 21st Century, p 5 Back

95   Ibid., p 37 Back

96   Ibid., p 19 Back

97   Home Office, Policing in the 21st Century, p 17 Back

98   Q 53 Back

99   Home Office, Policing in the 21st Century, p 13 Back

100   Ev 46 Back

101   Ibid. Back

102   Ev 46 Back

103   Home Office, Policing in the 21st Century, p 32 Back

104   Ibid., p 3 Back

105   Ev w39 Back

106   See, for example, Ev w19 Back

107   Ev w13 Back

108   Ev w34 Back

109   Ev w34 Back

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