Police and Crime Commissioners: progress to date - Home Affairs Committee Contents

3  The relationship between commissioners and chief constables

57. The relationship between commissioners and chief constables is a key aspect of the new governance modelfor policing. It is unsurprising, therefore, that it is an area which has attracted concern during the first 18 months in which PCCs have been in post. This has been particularly the case for those instances where the relationship has broken down. In this Chapter we examine the various approaches PCCs have taken to holding chief constables to account, and consider the process for removing a chief constable when they have lost the confidence of their commissioner.

Holding chief constables to account

58. The basis for the relationship between PCCs and chief constables is set out in the Policing Protocol Order 2011. This states that the commissioner has "a statutory duty and electoral mandate to hold the police to account on behalf of the public". The Order also empowers PCCs to "scrutinise, support and challenge the overall performance of the force including against the priorities agreed within the Police and Crime Plan", and to "hold the Chief Constable to account for the performance of the force's officers and staff". However, it also states that commissioners "must not fetter the operational independence of the police force and the Chief Constable who leads it".

59. The evidence we received suggested PCCs were taking seriously their statutory duties, and had developed a range of ways to hold their chief constables to account. Many have done so using public meetings. For example, the Cheshire PCC holds quarterly 'public scrutiny meetings' where the chief constable is held to account against the objectives set out in the police and crime plan.[101] The Surrey PCC's bi-monthly management meetings with the chief constable are webcast live, with agendas and other meeting papers published online.[102] So too are the Warwickshire PCC's regular public meetings, the Sussex PCC's monthly 'performance and accountability meetings', and the Avon and Somerset PCC's 'joint community meetings', for the latter of which the public can submit questions via email and twitter.[103] Commissioners have taken different approaches to structuring such meetings. In Greater Manchester, forums based around a single theme have involved the chief constable being questioned not just by the PCC and his deputy, but also a range of panellists from different walks of life and political backgrounds.[104] In Kent, regular 'Meet the Commissioner' and 'Meet the Chief Constable' meetings take place around the county. These are unstructured, and anyone is encouraged to write in or turn up to ask about any issue that concerns them.[105] In Hampshire, the PCC holds bi-monthly 'Commissioner's Performance, Accountability, Scrutiny and Strategy' or COMPASS meetings, based around a single theme, for which the public is invited to attend and observe, but can submit questions in advance which the commissioner will put to the chief constable.[106]

60. In addition to public meetings, PCCs also hold regular private meetings with their chief constables. In some cases these are structured and minuted, with reports and minutes subsequently published online.[107] In other cases, meetings are informal and may be conducted over the phone or face-to-face. As the Chief Constable for Greater Manchester put it: "The key thing is the phone call at any time of the day or night".[108] Most commissioners use a combination of formal and informal private meetings. For example, the Chief Constable for Bedfordshire told us she met her commissioner between three and four times a week.[109]

61. Some PCCs have developed additional scrutiny and monitoring arrangements. The Cleveland PCC told us he used mystery shoppers and independent custody visitors who reported directly to him on the services delivered by the chief constable and her force.[110] The Surrey PCC's staff attend Surrey Police meetings as a way of gaining a more detailed understanding of the force's performance.[111] Elsewhere, the Avon and Somerset PCC has established a panel of independent residents which reviews complaint files against the police force and publishes reports.[112] Finally, the Thames Valley and Lincolnshire PCCs told us they used negotiated performance measures to hold their chief constables to account.[113] We have discussed already the risks of an over-reliance on performance measures in the previous chapter.

62. The Chief Constable for Kent told us the arrangements for holding him to account were significantly less burdensome than under the former Kent Police Authority. He estimated that the amount the Force spent on preparing for governance boards, audit committees, and police and crime panels was approximately 57 per cent less than under the previous arrangements.[114] If extrapolated across police forces, this equated to an annual saving of around £270,000 in police time.

63. Because they have to work so closely together, commissioners and chief constables must strike a balance that permits them to engage constructively in a non-adversarial manner, but which also provides opportunity for challenge. We asked several of those who gave oral evidence to describe their relationship. The Northumbria PCC told us: "we do not always agree—we have a strong and effective relationship and can disagree while retaining mutual respect".[115] The Chief Constable for Bedfordshire said her relationship was "critical, but very friendly", whilst the West Midlands PCC described it as "One of mutual respect and one of trust […]".[116] Several witnesses refuted the idea that their relationship was cosy, although the Chief Constable for Avon and Somerset admitted that those chief constables who had been appointed since the new governance arrangements came into place were more likely to have "an alignment of approach" with their commissioner.[117] In contrast, there have been some very public examples of a breakdown in the relationship between chief constable and commissioner, which we have examined in previous reports, and look at again in the next section.

64. Notwithstanding the nature of the relationship between PCCs and chief constables, our evidence suggested there are some risks inherent in the new governance structure. The Police Foundation argued that more informal interactions, which are unrecorded, could result in less transparency to decision-making than existed under the police authority model. Whilst a more informal process allowed decisions to be reached more quickly, it could become more difficult for police and crime panels to scrutinise those decisions after the event.[118]

65. A further risk is that, in holding chief constables to account, commissioners may inadvertently or otherwise interfere with their operational independence, contrary to the Policing Protocol. This was a particular concern of the Police Federation, who told us its members had provided anecdotal evidence that PCCs were "interfering in operational matters outside their remit". This was especially the case for commissioners who had prior experience in policing, and so "found it difficult to let go of the reins of previous roles".[119] The Chief Constable for Thames Valley noted that whilst some areas, such as budget-setting and the drawing up of the police and crime plan, clearly sat with the PCC, and others, such as the decision to investigate or arrest, were the responsibility of the chief constable, there would inevitably be a "grey area" in between.[120] She gave the example of staffing smaller police stations that have a low foot-fall. On the one hand, the decision to keep these open is an operational one as part of the allocation of scarce resources. But the commissioner will also have an interest because of the community effects and because they may have a priority to maintain front-line policing. In such situations, both commissioner and chief constable may have a legitimate locus.

66. Finally, the Stevens Commission recently concluded that commissioners' "new powers of dismissal risk exerting a damaging chilling effect over the leadership of the police service, and undermining the relationship that should ideally exist between a chief constable and a PCC".[121] Professor Loader from the Commission likened the position of chief constables now to one of football managers reliant on the confidence of the club boss, whereas a preferred model would be a "system in which chief constables can exercise and articulate their professional judgement without fear of being sacked if they lose the confidence of their PCC".[122] In contrast, Lord Wasserman believed that everyone lived with the prospect of losing their job, and chief constables should be no different.[123] Policy Exchange argued that, rather than viewing the relationship as having a chilling effect, it should be seen as one of "creative healthy tension".[124] Perhaps unsurprisingly, the commissioners we raised this with agreed. The Thames Valley PCC described the conclusion of the Stevens Commission as "a huge exaggeration", whilst the Kent PCC said: "I do not see the evidence for it"—a view also taken by the Chief Constable for Sussex.[125]

67. Commissioners have developed a range of informal and formal approaches to holding their chief constables to account, both in private and in public, for the delivery of policing. The relationship between both parties has to balance an open and constructive approach with robust challenge where necessary. Commissioners must continue to guard against the inherent risks of the new governance model by ensuring decision-making is as transparent as possible, and avoid any temptation to interfere in the operational independence of chief constables in accordance with the Policing Protocol. Indeed, commissioners and chief constables should regard the Policing Protocol as the foundation on which their relationship is based, and training on it should form part of the induction period we have proposed for PCCs. Behind the new accountability framework lies the power of PCCs to fire their chief constable. Whilst the Stevens Commission concluded that this power risked having a chilling effect on the decision-making of chief constables, the evidence we received does not support this assertion.

The process for the removal of a chief constable

68. In our previous Report on PCCs' power to remove their chief constables we said: "it is essential to commissioners' role as directly elected office-holders that they have the power to dismiss chief constables".[126]This power and its effects, perceived or otherwise, has been one of the most controversial aspects of the new governance arrangements for policing. But as the Police Foundation told us: "if [the] relationship breaks down irretrievably, someone has to have that power to remove the other".[127]Policy Exchange put it bluntly: "At least this way everybody knows who is taking the decision and there is proper democratic accountability for it".[128] Notwithstanding the right of commissioners to hold and exercise such a power, the evidence we received to this inquiry suggested several ways in which the process for the removal of chief constables could be improved: by tightening up the existing legislation, by providing better training to commissioners, and through a formalised mediation process between PCCs and chief constables.

69. Section 38(2) of the Police Reform and Social Responsibility Act 2011 states that a PCC "may suspend from duty the chief constable of the police force for that area". Where a suspension is in relation to the conduct of a chief constable, the Police (Conduct) Regulations 2012 require clear grounds for such action, and provide for a process of review. But, as policing barrister James Berry noted, the legislation is silent on the grounds for suspension where the decision does not relate to conduct, nor does the Home Office provide guidance on how it might be applied, or what safeguards should be taken into account to ensure any suspensions are fair and proportionate.[129]

70. In the same way, Section 38(3) of the 2011 Act permits a commissioner to "call upon the chief constable of the police force for that area to resign or retire", but again is silent on the grounds upon which they may be required to do so. The Chief Constable for Thames Valley noted that this contrasted with the previous legislation, which empowered a police authority to remove a chief constable "in the interests of efficiency and effectiveness".[130] Like any employer, PCCs must still take account of employment and discrimination law in reaching a decision to use Section 38(3) to remove their chief constable. But the lack of any guidance or criteria from the Home Office on its use is more likely to result in its interpretation being tested in court. James Berry told us: "The answer may not be one which the Home Office or Parliament intended".[131]

71. To date, no commissioner has attempted to use their power under Section 38(3). Were they to do so, Schedule 8 of the 2011 Act sets out the process they must follow. This requires them to provide a written explanation to the chief constable, who can in turn make a written representation to the PCC. The commissioner must notify the police and crime panel and provide a copy of the reasons given to the chief constable as well as any written representations. The panel is required to consult HMIC and hold a scrutiny meeting where it can take evidence from both parties. It must then make a recommendation to the commissioner. However, the decision ultimately rests with the PCC irrespective of the panel's determination. It was this final point that dissuaded Carmel Napier, former Chief Constable for Gwent, from challenging the Gwent PCC to use the statutory process when he asked her to take retirement in June 2013. In other words, she did not see any value to using the Schedule 8 process because she believed the end result would be the same. Furthermore, because the statutory process was not engaged, there was no formal role for the police and crime panel. The Local Government Association told us the case "highlights the relative ease with which PCCs are able to circumvent what are already limited formal powers of scrutiny".[132]

72. A further difficulty with the legislation relates to the extension of chief constables' contracts. At present appointments are made for a fixed term of five years. This is extendable for three years, and thereafter on a year-by-year basis subject to agreement between the post-holder and the PCC. Where a chief constable is close to the end of their contract, a commissioner may decide not to allow an extension. This was the case in Avon and Somerset, where the chief constable had already completed eight years in post and the incoming PCC decided not to renew his contract on a yearly basis, instead inviting him to re-apply for his post, which he chose not to do. Again, there is no statutory process for scrutiny of the decision by a commissioner not to extend a chief constable's contract in the same way there that is for their appointment or removal. As one witness put it, a PCC who held concerns about the performance of their chief constable who was nearing the end of their contract, could simply 'let the clock tick', thereby avoiding scrutiny by the police and crime panel.[133]

73. In addition to discrepancies in the legislation, there is also a case for improving the training for commissioners in handling the suspension and removal of their chief constable. For example, in Lincolnshire, the PCC's suspension of the temporary chief constable was overturned following a Judicial Review which found that the decision had been "irrational and perverse". The taskforce finally set up by the Lincolnshire Police and Crime Panel to review the case subsequently recommended that commissioners be provided with induction training "with a focus on Police Regulations and employment law/human rights legislation".[134]

74. In the cases of Gwent, Avon and Somerset, and Lincolnshire, an underlying factor that will have played a role in the subsequent events in each case was the working relationship between the PCC and chief constable. Where that relationship breaks down, there may be a case for some kind of mediation process. For example, the Chief Constable for Thames Valley told us that in the Gwent case it would have been better to have had some kind of discussion about what the issues were before making the request to retire.[135] One suggestion was that HMIC could play a role in this respect. Another was that the PCC's chief executive or the deputy chief constable could provide such mediation.[136] Indeed, Section 42 of the Policing Protocol Order 2011 states that local resolution of differences should be sought where possible, although "professional advice may be offered by HMIC".

75. The removal of a chief constable should follow due process. It is clear to us that there are a number of ways in which the procedure of removing a chief constable can be improved to promote greater public confidence. We recommend that the Home Office bring forward proposals to amend the powers of commissioners to suspend or remove chief constables under Section 38(2) and 38(3) of the Police Reform and Social Responsibility Act 2011 by stipulating the grounds on which they may do so. The Home Office should also provide guidance to commissioners on the use of their powers in both respects. In the case of a suspension there should also be a clear system of safeguards similar to those which guide suspension in respect of conduct.

76. We are concerned that commissioners can side-step the statutory scrutiny process set out in Schedule 8 to the 2011 Act for the removal of a chief constable by simply threatening to use it.Accordingly, we recommend that police and crime panels inquire and report into the circumstances whenever a chief constable's service is brought to an end irrespective of whether the Schedule 8 scrutiny process is formally engaged.

77. It is also not right that the statutory scrutiny process can be side-stepped where a chief constable is close to the end of their contract, and the commissioner chooses not to agree an extension. We recommend that the Home Office bring forward proposals to extend the Schedule 8 process to include scrutiny by the police and crime panel in such instances to bring it in line with the process for the removal of a chief constable.

78. We have recommended earlier in this Report the need for a period of training for new commissioners before they take office. We believe that instruction in respect of their duties under the 2011 Act, the Police (Conduct) Regulations 2012, and other relevant employment law would form a useful aspect of that training period. Finally, we recommend the Home Office, HMIC,CPOSA, and the Association of PCCs work together to develop a third party mediation process that commissioners and chief constables can refer to when their relationship breaks down. Training on this process should also be included in the induction period for new commissioners.

101  PCC0005 (Police and Crime Commissioner for Cheshire), para 2 Back

102  PCC0008 (Police and Crime Commissioner for Surrey), para 2.3 Back

103  PCC0001 (Home Office), para 6, PCC0035(Police and Crime Commissioner for Warwickshire), para 8, and PCC0030(Police and Crime Commissioner for Sussex), para 9 Back

104  PCC0042 (Police and Crime Commissioner for Greater Manchester), para 3.1; Q 124 (Chief Constable for Greater Manchester) Back

105   Q 643 (Police and Crime Commissioner for Kent) Back

106  PCC0024 (Hampshire Police and Crime Panel), para 2.2 Back

107   For example, PCC0017 (Police and Crime Commissioner for Avon and Somerset), para 3.2, PCC0018 (Police and Crime Commissioner for Thames Valley), para 7, PCC0030 (Police and Crime Commissioner for Sussex), para 8, PCC0035 (Police and Crime Commissioner for Warwickshire), para 8,and PCC0045 (Police and Crime Commissioner for Northumbria) Back

108   Q 124 (Chief Constable for Greater Manchester) Back

109   Q 124 (Chief Constable for Bedfordshire) Back

110  PCC0006 (Police and Crime Commissioner for Cleveland), para 3.3 Back

111  PCC0008 (Police and Crime Commissioner for Surrey), para 2.4 Back

112  PCC0017 (Police and Crime Commissioner for Avon and Somerset), para 3.2 Back

113  PCC0018 (Police and Crime Commissioner for Thames Valley), para 7, and PCC0031(Police and Crime Commissioner for Lincolnshire), para 2.1 Back

114  PCC0059 (Kent Police) Back

115  PCC0045 (Police and Crime Commissioner for Northumbria) Back

116   Qq 83 (Chief Constable for Bedfordshire) and 427 (Police and Crime Commissioner for the West Midlands) Back

117   Qq 235 (Chief Constable for Sussex), 425 (Police and Crime Commissioner for Avon and Somerset), 432 (Chief Constable for Avon and Somerset), and 654 (Chief Constable for Kent) Back

118  PCC0033 (Police Foundation), para 20 Back

119  PCC0020 (Police Federation) Back

120   Q 262 (Chief Constable for Thames Valley) Back

121  Policing for a better Britain, November 2013 Back

122   Q 296 (Professor Ian Loader, Stevens Commission) Back

123   Q 389 (Lord Wasserman) Back

124   Q 386 (Policy Exchange) Back

125   Qq 201 (Police and Crime Commissioner for Thames Valley), 269 (Chief Constable for Sussex), and 667 (Police and Crime Commissioner for Kent) Back

126   Home Affairs Committee, Sixth Report of Session 2013-14, Police and Crime Commissioners: power to remove Chief Constables, HC 487  Back

127   Q 364 (Police Foundation) Back

128   Q 385 (Policy Exchange) Back

129  PCC0039 (James Berry), para 15 Back

130   Q 267 (Chief Constable for Thames Valley) Back

131  PCC0039 (James Berry), para 11 Back

132  PCC0007 (Local Government Association), para 16 Back

133  PCC0049 (Cllr Roger Seabourne), para 10 Back

134   Lincolnshire Police and Crime Panel, Task Group Scrutiny Report, January 2014 Back

135   Q 267 (Chief Constable for Thames Valley) Back

136   Qq 260 (Chief Constable for Thames Valley) and 270 (Chief Constable for Sussex) Back

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Prepared 5 May 2014