House of Commons - Home Affairs Committee

Policing: Police and Crime Commissioners - Home Affairs Committee Contents

Memorandum submitted by Liberty

ABOUT LIBERTY

Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

LIBERTY POLICY

Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research.

Liberty's policy papers are available at

http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml

INTRODUCTION

1. On 15 September 2010 the Home Affairs Committee (HAC) announced an inquiry into British policing in light of the Government's recent announcement proposing to radically change the structure of the police forces. The inquiry was launched in anticipation of the Police Reform and Social Responsibility Bill (expected this autumn)[1] which is due to implement reforms set out in the Home Office consultation paper Policing in the 21st Century: Reconnecting police and the people,[2] to which Liberty provided a detailed response.[3] Initially the Committee will focus on what it considers to be the most significant aspect of the proposals: the newly created role of elected Police and Crime Commissioner, to replace the current Police Authority system.[4] Liberty welcomes the Committee's Policing Inquiry and its focus on what we see as the most troubling aspect of these proposals. Given the widespread and serious concerns regarding these reforms scrutiny by the HAC is crucial.

2. Since the consultation was launched, a separate Home Office consultation has recommended changes to PACE Code guidance to remove the requirement for police to make a record when they stop somebody and ask them to account for their presence or actions.[5] While such changes were hinted at in the Policing Review consultation currently under consideration by this Committee an additional and deeply troubling proposal was not—namely allowing a person's ethnicity to be a factor in a police officer's decision to stop and search without suspicion under section 60 of the Criminal Justice and Public Order Act 1994.[6] The latter would mean that police guidance would, on its face, advise police to directly discriminate on the grounds of race—arguably breaching human rights and race relations legislation and setting the clock back on the significant progress made since the landmark Inquiry into the tragic case of Stephen Lawrence. The proposal to entirely scrap the recording of "stop and account" could also badly undermine race relations—overturning a clear recommendation made by Sir William Macpherson in his Inquiry. It will mean that there will be no reliable data to hold police to account and to protect against discriminatory use of police powers in respect of such stops. Liberty has produced a detailed response in relation to these proposed changes[7] and we hope that the HAC might also consider reviewing these important and substantive changes before any Codes are amended.

POLICING IN THE UNITED KINGDOM

3. British policing has a long and proud history. The vision of Home Secretary Peel, who in the 1800s formulated the revolutionary foundation on which today's police force is based, was to have "policing by consent" by police officers restrained and reinforced by the principles of non-partisanship and accountability to the rule of law, not to Government.[8] However, in recent years as law and order has moved up the political agenda, so too the pressures on the modern police service and its independence have increased. While the use of discretion has always been an obvious and necessary part of day to day police work, legislation in recent years has seen the Government move away from setting clear parameters to policing powers. Yet broadly defined discretionary powers are not a boon for police. In fact they place a massive burden on individual officers. Creative and broadly defined police powers also bring the raised expectations of a criminal justice system that might cure all of society's ills including fear, crime, nuisance and irritation, let alone the substance abuse, truancy and other social problems lurking below the surface. To complete this vicious cycle, raised and unrealistic expectations inevitably lead to public dissatisfaction in police performance. Over-broad and onerous policing powers combined with raised expectations about the role of the police have undoubtedly fuelled the idea—real or imagined—that police are not sufficiently accountable to the communities they serve.

DIRECTLY ELECTED POLICE AND CRIME COMMISSIONERS

4. Recent years have seen increased political interference in operational policing matters, including by the imposition of police performance indicators or targets. There have been numerous changes to British policing over the past decade and it is against this background that the Coalition Programme for Government included a promise to "introduce measures to make the police more accountable through oversight by a directly elected individual, who will be subject to strict checks and balances by locally elected representatives".[9] The Government has said that policing, which relies not only on consent but also on the active cooperation of the people, is not performing because "the bond between the police and local people is not strong enough".[10] As such the Government proposes abolishing Police Authorities and replacing them with directly elected Police and Crime Commissioners.

5. The Government's proposals are presented as a necessary and logical step in order to return to a system of effective local policing whereby police officers engage with, and respond to, their communities. In considering whether this radical reform is necessary, Liberty has two main propositions: first that the proposals will not solve the problems identified in policing; and secondly that these solutions could be provided within the policing structures which already exist.

6. There is already a system of local accountability already in place in legislation—with police chiefs and their forces already held accountable to the public by Police Authorities. Police Authorities have a broad remit of securing an efficient and effective police force for the area, and they must hold the chief officer of that force to account in the exercise of his or her functions and those under his or her command.[11] A Police Authority is made up of 17 members, nine of which are local council members (who are directly elected), and eight of which are independent members.[12] Community involvement is statutorily entrenched at the strategic level of policing through the commitment of Police Authorities to take into account community views.[13] These opportunities already give local communities the ability to significantly impact on local policing issues. Police Authorities are also required by statute to make arrangements for obtaining the views of local people on matters concerning policing of their area and obtaining co-operation in preventing crime.[14] The Police Authority must also take into account whether the public in the area have confidence in the police force and whether the public considers that their views are being taken into account.[15]

7. Perceived problems with Police Authorities may well relate more to accessibility and visibility rather than substantive complaints about the role they play in policing. The Home Office itself noted in the consultation paper that Police Authorities remain too invisible to the public, who don't know how to get involved or how to influence policing in their community.[16] Scrapping Authorities altogether and replacing them with an entirely new and untested model for accountability is a extreme way of increasing the visibility of local police accountability. Police Authorities are already statutorily mandated to take into account the views of the public they serve. Liberty believes that this existing system, which requires consideration of community needs and wants, could be made more visible and accessible to the public. This, in conjunction with the rollback of unnecessary and centralised bureaucracy, could well meet the numerous problems identified by the Home Office consultation paper and which have been identified by the Home Affairs Committee in recent years. This type of reform should at least be considered before these drastic changes are introduced.

8. It is suggested in the Home Office consultation paper that the role of the Police and Crime Commissioner may in future encompass functions "in respect of the wider criminal justice system as further reforms develop".[17] In the House of Commons the Home Secretary was asked whether the Government would consider extending control of the proposed Police and Crime Commissioner to the Crown Prosecution Service. The response was to the effect that both her department and the Ministry of Justice were looking to "extend the remit of police and crime commissioners further in the criminal justice system".[18] Without further detail it is difficult to comment extensively on the further possible role of the Police and Crime Commissioner. Suffice to say, any steps to give an elected politician any control over the prosecutorial function would be a dangerous move indeed. Giving an elected Commissioner any prosecutorial function would be to risk upsetting our finely balanced separation of powers that ensures that those limbs of the constitution that are elected do not exercise prosecutorial functions—a fundamental safeguard against abuse of coercive powers.

POLITICISATION OF LOCAL POLICING

9. The political independence of the police is as important in a democracy as the political independence of the courts. A crucial principle of UK policing is its operational independence and its faithful adherence to non-partisanship. This is what allows every individual in a community to feel protected by the police regardless of their race, religion or political affiliation. If the way a police force operates is overseen by someone who is politically motivated, as an elected Police and Crime Commissioner will inevitably and necessarily be, maintaining the independence of the police from politics will become increasingly difficult. Any change to the way that the police force operates must ensure that police must remain independent of politics, and government must remain independent of the police.[19] Liberty's concern is that the change to directly elected Police Commissioners will not maintain this crucial division.

10. In reality, many of the functions that would be exercised by the directly elected Commissioner (and are currently exercised by the Police Authority) have the potential to influence police operations—be it budget-setting or strategic police planning.[20] At the moment this sensitive fault line between police accountability and the preservation of operational independence is mediated between Chief Constables and Police Authorities. While Liberty does not argue that the current practice is problem-free we do not believe that the case has been made as to why an elected individual will enhance accountability. Under current arrangements the sensitive role of overseeing police operations at a local level is undertaken by 17 individuals with multidisciplinary talents. Their selection is premised on their ability to represent the community they are serving. This will no longer be the case under the new proposals which may well prove counterproductive.

11. The local election process for a directly elected Police and Crime Commissioner will most likely be fraught with difficulty. The sensitive parameters of the Commissioner's role and the importance of operational independence may well be drowned out as candidates seek popular election on local law and order issues. In the political heat of a local election campaign, expectations about what a directly-elected Commissioner can achieve for local law or order may well be raised to dangerously unrealistic levels. Just as politically partisan national discourse around law and order has undermined trust and confidence in policing, so too will local rhetoric from those who may have no experience or understanding of police work.

12. Once in post, we see a very real risk that someone who has been popularly elected will be reluctant to make an unpopular but perhaps necessary decision. For example, a directly elected Commissioner is most likely going to make visibility their focus. While visibility is undoubtedly a crucial part of policing and public confidence in policing, there is a real risk that, for example, anti-social behaviour will be prioritised over and above the large proportion of work that police do which may be less visible but which is nonetheless key to crime prevention or detection such as serious organised crime, terrorism etc. If an elected Commissioner wishes to ensure a happy electorate then the logical conclusion may be to divert funds from these "behind the scenes" decisions to frontline visible policing. This may be the best way to be re-elected, but it may not be the best way to keep the community safe from the perspective of the experienced senior police chief. These concerns were recently raised before the Committee by the current Metropolitan Commissioner, Sir Paul Stephenson, who stated that whatever arrangements are put in place "we must ensure that this does not become just talking about popular visibility issues".[21] Similarly, one could envisage, for example, a Chief Constable wanting to spend some of his or her budget on a marginalized area. This could be restricted or knocked back by a Police and Crime Commissioner conscious that this will not satisfy the community set to re-elect him or her because for example it will mean less visibility in other areas etc.

13. There is also no guarantee that elected Commissioners will in fact be representative of the whole community they are elected to serve. The Police Minister has said that a Police and Crime Commissioner will need "a very large number of votes to secure their election" and consequently will have a strong mandate.[22] But this assumes that there will be a high turnout at elections, which of course has not been the case for local elections in recent times. Further, the sheer number of individuals that currently serve on a police authority allows greater opportunity for membership to be drawn from a diverse field. Far from undermining democratic accountability, the involvement of several individuals from all walks of life provides for an important check on local policing. Concentrating police accountability in the hands of one figure risks excluding those from minority or traditionally under-represented groups. This could well serve to exacerbate tensions in communities which are already fractured, for example, along ethnic or religious lines.

A SINGLE SOURCE OF POWER

14. Absolute veto for budgets, priorities and the position of the Chief Constable will rest solely with the Commissioner. There is no requirement that individuals who stand for election have any particular expertise or experience in policing, in fact there is no criteria for selection whatsoever. There is also no requirement that the Police and Crime Commissioner be independent of any political party. In fact the Home Office consultation paper suggests that those with party political affiliation should be encouraged to stand for election. When asked in the House of Commons whether there would be an appropriate level of clearance, the Home Secretary responded that there will be no security clearance required for Commissioner nominees.[23]

15. The implications of these proposals should not be underestimated. We need only imagine the extreme, but by no means necessarily unlikely or rare, example of a far-right elected Commissioner. Would such a Commissioner seek to ensure protection for all members of the community under the law? The Home Secretary, when asked in the House of Commons what would happen if a member of the BNP would stand for one of these posts, responded that the BNP has never managed to get more than 15% of the vote in one election.[24] We believe this response is short-sighted. Recent voter-turn out in local elections has been notoriously low and it is easy to imagine that voter turn-out for a directly-elected Commissioner could be even lower. Further, there is no indication that the BNP will not continue to grow in strength—the party may not have won a seat in the last General Election but their overall vote did increase, and there are particular constituencies where the threat of a BNP seat in Parliament was a real one.[25]

16. If this model is to go ahead, unless power is at least shared between an elected Commissioner and the Police and Crime Panel, as we suggest below, the impact on public confidence in areas where a rogue Commissioner is voted in may be irreversible. It could also create a minefield of litigation given Commissioners will be subject to judicial review, and will of course be required to comply with the relevant equalities duties and their obligations under the Human Rights Act 1998. In Liberty's opinion the risk of introducing politics to policing in this way, without adequate procedural safeguards, is too great and is an unnecessary reform to UK policing.

THE NEED FOR CHECKS AND BALANCES

17. If the planned reform is to go ahead Liberty believes there will, at the very least, need to be a number of amendments to the proposed relationship between the directly elected Commissioners and the Police and Crime Panels. Much will of course depend on the detail of the changes as set out in legislation. If there are to be directly elected Commissioners, we recommend that the Panels operate more like the already existing Police Authorities, with a balanced two-way relationship. That is, the Panels must have more than an advisory role—which under current proposals the Commissioner could potentially ignore. The checks on elected Commissioners that the Home Office consultation paper only vaguely proposes must be reinforced so that there is robust accountability of the elected Commissioner to the Panel. The Chief Constable, the directly-elected Commissioner and the Panel should draw up, as a collective, the budget and the strategic plan for the area. The Commissioner could still perform the function of holding the Chief Constable to account—principally by being responsible for engaging with the public and feeding back local views—but any decisions which may affect operations (such as dismissal of a Chief Constable etc) must take place in an appropriate way through the Panel. There must also be clear structures and systems in place for when there is a disagreement between the Chief Constable and the elected Commissioner. We do not consider that the current proposal—ie that the two may have publicly aired disputes[26]—to be sufficient nor particularly helpful for the public.

CONCLUSION

18. Liberty whole-heartedly agrees that a key part of British policing is that all police officers, from the Constable to the Chief, are held accountable. This must mean that police officers who abuse their powers are answerable by way of disciplinary or court hearings and that the needs and security of the local community are heard and are met by those directing operations at the local level. Accountability must not be directly to politicians (whether on the national or local stage) nor must it be solely to those individuals who have the time or inclination to join the police on the beat. Police are, and must remain, first and foremost answerable to the rule of law.

19. The potential costs of the proposal to replace Police Authorities with a directly elected politician could be enormous both to the public purse and the rule of law. These reforms could seriously politicise policing in the UK, damaging that central tenet of independence and undermining community trust and confidence. We believe that scrapping excessive targets and unnecessary demands on police time as well providing the public with more information about the accountability structures which already exist would go a long way to ensuring that police are more locally engaged. If this approach is not adopted, we believe at the very least there must be a much greater balance between the elected Commissioner and their Police and Crime Panel than currently envisaged.

October 2010