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.
Collaboration
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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