Memorandum submitted by the Association
of Police Authority Chief Executives (APACE)
EXECUTIVE SUMMARY
— The Association of Police Authority Chief
Executives is the professional body representing chief executives
and other senior staff within police authorities. We welcome the
opportunity of contributing to the Committee's considerations.
(1.1)
— Whatever model of policing governance
is settled upon it is crucial that the parameters and limitations
are fully understood by all from the outset, along with the projected
workloads and necessary resource implications. (2.1)
— Any model of governance must reinforce
and facilitate the functions given by Parliament to the governance
entity. A key consideration will be the nature of the "body
corporate" and the division of assets. (2.4)
— Identifying the employer, the owner of
the police estate and other assets, the holder of the police fund
and the body having responsibility for proper financial administration
and internal audit arrangements are fundamental building blocks
of any governance arrangements. (2.5)
— Creation of a substantial electorate
and the attendant public expectations highlights the need to rebalance
power locally between the police and their governors. If Commissioners
and Panels are to deliver what the Government wants them to deliver,
they need the powers and resources to do the job. The electoral
mandate alone will not determine success. (2.5)
— The Principles of Good Governance provide
a well-established framework for any governance arrangements in
public bodies and should be maintained. (2.6)
— Clarity is need on transitional arrangements.
(2.7)
— The proposed arrangements offer an opportunity
to improve local management of complaints and we encourage a review
of the relevant legislation. Complaints against Commissioners
and legal challenge to their decisions have to be addressed and
we question whether the IPCC is the appropriate body. (2.9)
— Operational policing has never been defined
by Parliament; it is unclear how this settled and important constitutional
principle will sit with duties on, and expectations of Commissioners.
(3.1)
— Some organisational decisions fall outside
"operational policing" however defined. (3.2)
— A duty upon Commissioners to collaborate
will be necessary. (3.3)
— There will be areas where the aspirations
of Commissioners will overlap and possibly conflict with the operational
independence of chief officers. (3.4)
— It would be helpful to reinforce the
respective functions of Commissioners and chief constables with
a small number of powers and mutual duties to help balance the
roles and give effect to the intention behind the new arrangements.
(3.5)
— There should be local flexibility on
targets with data/information to allow benchmarking and comparative
analysis. (4.1-4.4)
— There is need for adequate and proportionate
checks and balances. The paper recognises that those are best
achieved by a combination of locally elected councillors and independent/lay
members from local communities; members' continued involvement
would bring stability and clarity particularly during any transitional
stage(s). (5.1)
— All sections of the governance entity
should work together. Complexity in arrangements should be avoided
as the public should be able readily to understand the model of
police accountability. (5.2)
1. Introduction
1.1 We welcome the opportunity to submit this
paper and note that the Committee will focus on the introduction
of Police and Crime Commissioners, as a key element of the Police
Reform and Social Responsibility Bill.
1.2 Chief executives have supported their respective
authorities developing their local response and these views have
contributed to the development of the national APA submission.
However we believe we can complement both of these viewpoints
from the specific strategic and structural perspective of the
statutory role fulfilled by chief executives.
1.3 The following commentary is organised around
the Committee's four key lines of enquiry within its terms of
reference:
2. The relationship between Chief Constables and
elected Police and Crime Commissioners
2.1 We are concerned that, without appropriate
balance between the Commissioner, the Panel and the relevant chief
officer the proposed model will invite conflict, add further bureaucracy
and ultimately reduce the scrutiny given to policing locally,
regionally and nationally.
2.2 A Commissioner's greatest strength will
be their local mandate derived from a substantial electorate that
will greatly exceed that of any parliamentary constituency. However
they will be required to balance this local mandate with statutory
duties to ensure that the full range of policing services is delivered
to their communities. Their conspicuousness can be expected to
drive their workload particularly around consultation, communication
and complaints. It will therefore be crucial that the governance
arrangements are fully understood by all at the point of election
and that the many and varied promises on which a Commissioner
may choose to campaign will, in fact and in law, be within his
or her control on appointment. A realistic understanding of the
necessary administration and the ability to access the appropriate
level of resources will also be critical to the success of any
governance model.
2.3 The election of Commissioners is likely
to bring greater political influence into policing at two levels:
the Commissioner and the Police and Crime Panel. A strong Panel
with some independent members and responsibility to work with
the Commissioner would mitigate any risks that might accompany
greater politicisation. Steps will be needed to ensure candidates
come from a wide range of backgrounds, although we offer no suggestion
on how this might be achieved. Those with the resources and backing
of mainstream political parties will stand the most realistic
prospect of election and there is a risk of a Commissioner being
elected from a body with extremist views.
2.4 The model of governance will need to reinforce
and facilitate the Commissioner's functions and its selection
will be a fundamental decision directly impacting on the key considerations
in the paper. Other models[27]
rely on a Non-Departmental Public Body (NDPB) arrangement. Aside
from any considerations attending the creation of 41 new "quangos"
there are practical difficulties with this model principal among
which is the fact that NDPBs are arms' length emanations of central
government whose administrative arrangements allow the sponsor
department to call in or override decisions. This, together with
the attendant bureaucracy and administrative infrastructure (and
considerations around the Accounting Officer function) appears
to contradict the paper's intentions and therefore makes such
a model unlikely. Commissioners will need a separate legal entity
(perhaps as a statutory corporation or a trust) and this will
have a significant impact on the necessary support and transition
arrangements.
2.5 Defining the "body corporate"
needs to be determined early. Identifying the employer, the owner
of the police estate and other assets, the holder of the police
fund and the body having responsibility for proper financial administration
and internal audit arrangements are fundamental building blocks
of any governance arrangements. The extent to which these functions
are transferred to the Commissioner will impact significantly
on the influence the Commissioner is able to bring to bear. Creation
of the substantial electorate referred to above, and the attendant
public expectations highlights the need to rebalance power locally
between the police and their governors. If Commissioners are to
deliver what the Government wants them to deliver, they need the
powers and resources to do the job. The electoral mandate alone
will not be determinative of success, particularly if devolution
of power from the Home Office to chief constables significantly
increases the powers of the latter.
2.6 The CiPFA Principles of Good Governance
provide a well-established framework for any public body and should
be maintained.
2.7 The complexity and inter-related nature
of existing governance arrangements make an instant transfer from
the current to the new framework very unlikely. Among the many
considerations (including the setting of budgets, the straddling
of financial years, the creation of statutory transfer schemes
and the handover of outstanding matters such as maternity leave,
complaints and investigations) will be the need for continuity
and due diligence. Clarity is needed on transitional arrangements
and beyond for police authority statutory officers together with
early agreement on how any future statutory officers are to be
appointed, dismissed and protected. To ease the transition period
we suggest that the Panels contain current police authority members.
2.8 Much has been made of the Commissioner's
powers to "hire and fire" chief constables. While an
important feature of any "employment" relationship,
the power to dismiss a senior individual is usually one of last
resort and invariably involves substantial cost. At this level
the key governance issues will generally be around performance,
capability and capacity rather than conduct.
2.9 The Commissioner will need to have some
responsibility for complaints, if only by reason of public expectation.
The role of Commissioners in relation to complaints about senior
officers (a role currently undertaken by police authorities) will
need clarification and we believe that there is an opportunity
for Commissioners' offices to play a significant part in commissioning
or overseeing the resolution of community grievances and non-criminal
complaints. We would encourage a parallel review of the relevant
legislation. The question of complaints against Commissioners
and legal challenge to their decisions/action has to be considered
carefully and we anticipate a substantial workload to arise from
their prominence/novelty. We question whether the IPCC is the
appropriate body for addressing such complaints. Consideration
must also be given to complaints against members of the Police
and Crime Panels.
3. How "operational independence" will
be defined
3.1 What constitutes "operational policing"
has never been defined by Parliament and the authorities at common
law are sparse though well-established.[28]
It is unclear how this settled and important constitutional principle
will sit with duties on, and expectations of Commissioners.
3.2 Decisions to purchase goods and services
surely fall outside "operational policing" however defined.
3.3 The focus on localism has the potential
to detract from the key strategic work required around collaboration.
Section 6ZA of the Police Act 1996 places a duty on police authorities
to secure effective collaboration and we believe a correlative
duty will be necessary for a Commissioner.
3.4 There will be areas where the aspirations
of the Commissioner will overlap and possibly conflict with the
operational independence of the relevant chief officer. Examples
have been submitted elsewherei but include a promise to increase
visibility of police officers in neighbourhoods, the use of sensitive
counter-terrorism powers and the practice of "kettling"
crowds in policing public order operations.ii Each of these illustrates
the potential for conflict and confusion in a setting where each
party may legitimately claim to be acting within the scope of
their statutory functions and the best interests of their communities.
We suggest these fundamental matters must be addressed as clearly
and as early as possible.
3.5 The ability to hire and fire a chief constable,
set a budget and the strategic direction provide the Commissioner
with some powerful aids to fulfill their role. However, a small
number of further complementary powers might produce greater equality
and clarity between the roles. We suggest that the power implicit
in an electoral mandate needs to be made explicit in the legislative
framework and it would be helpful to place chief constables under
a duty to co-operate with the Commissioner in meeting the latter's
statutory duties (including any duty to collaborate with others).
Binding this duty to those of the Commissioner addresses the risks
of Commissioners moving into areas of operational independence.
Where a Commissioner considers that the Chief Constable is not
co-operating the Commissioner might require a power of administrative
direction, not one that is capable of overriding an operational
decision but sufficient to resolve any organisational or managerial
dispute that might arise. The exercise of such a power could be
put into the public domain. These simple but significant powers
and duties, together with the preservation of operational responsibility
for chief officers, would help balance the roles and functions
of the two parties, giving effect to their respective functions.
4. The extent to which there will still be a need
for national targets
4.1 We agree that the public must be able to
see the performance of their police in dealing with crime and
anti-social behaviour and have access to meaningful data about
crime in their neighbourhoods. HMIC has recognised that information
above force level has little meaning for communities and at the
local level we feel there is no need for national targets.
4.2 National targets provide a useful focus
for local planning/target setting for forces, authorities and
Community Safety Partnerships. However, "being useful"
is not the same thing as "being necessary". Forces,
authorities and partnerships identify what crime and anti social
behaviour is a priority through regular strategic assessments
and local intelligence gathering. Local engagement activity, consultation
and feedback from community meetings, mean police authorities
know what concerns their communities and what their crime and
ASB priorities are. Local, visible targets and how these are achieved
are likely to be of greater importance than any determined centrally.
4.3 Sharing of best practice and information
enabling forces and authorities to benchmark and undertake comparative
analysis is useful in reviewing and informing delivery, but should
not be imposed at the expense of responding to local needs.
4.4 Commissioners will need access to effective
consultation mechanisms and to information that is relevant, consistent
and reliable. In many cases the size and diversity of the communities
covered by their jurisdiction together with the size of their
force will alone make this a significant challenge.
5. Role of Police and Crime Panels
5.1 We note that Panels are to sit "at
the core" of the proposals for checks and balances. We welcome
recognition of the need for adequate and proportionate checks
and balances within any new framework. We particularly welcome
the recognition that those checks and balances are best achieved
by a combination of locally elected councillors and independent/lay
members from the local communities. Police authorities already
have these arrangements in place and their members' continued
involvement in this core function would bring stability and clarity
particularly during any transitional stage(s).
5.2 One effect of the proposed arrangements
is replacing the tripartite arrangement with a quadripartite (Home
Office, ACPO, Police & Crime Panel and Commissioner). Aside
from the additional bureaucracy, cost and complexity, there is
also a risk, without careful crafting of statutory duties and
powers, of Commissioners being the most conspicuous but least
effective party. All parties within the governance model ought
to have a shared primary duty to ensure the best outcomes for
their communities in terms of policing.
5.3 All Panel members, whether lay members or
directly elected, should serve a term of four years. This would
end the annual "revolving door" of elected members and
the attendant loss of knowledge, skills and experience.
October 2010
REFERENCESi see
for example the responses submitted by the Association of Police
Authority Chief Executives May and July 2010.
ii see also R v Metropolitan Police Commissioner
ex p the Free Tibet Campaign (2000) The Guardian 4 May.
27 For example the Police Complaints Commissioner for
Scotland. Back
28
See for example R v Metropolitan Police Commissioner, ex parte
Blackburn (No 2) [1968] 2 All ER, 319. Back
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