Part 1 of the Police Reform and Social Responsibility Bill - Constitution Committee Contents

Part 1 of the Police Reform and Social Responsibility Bill

1.  The Constitution Committee is appointed "to examine the constitutional implications of all public bills coming before the House, and to keep under review the operation of the constitution." In carrying out the former function, we endeavour to identify questions of principle that arise from proposed legislation and which affect a principal part of the constitution.

2.  Part 1 of the Police Reform and Social Responsibility Bill concerns police governance and accountability. It provides for directly elected police and crime commissioners in place of the police authorities currently responsible for overseeing police forces. The new commissioners will in turn be monitored by new police and crime panels largely comprised of local councillors. Equivalent provision is made for London, where the existing Metropolitan Police Authority will be replaced with the "Mayor's Office for Policing and Crime".

3.  Part 1 is self-evidently of constitutional importance. In this report we draw to the attention of the House a number of constitutional issues arising under Part 1 of the Bill.

A constitutional imperative

4.  From a constitutional perspective, the chief risk with Part 1 is that of politicising operational decision-making. Grounded in the original Peelite vision of the accountability of police officers to the law, and not to government,[1] and amply reflected in the very extensive case law that exists on police powers,[2] the operational independence of the police is rightly regarded as a constitutional imperative in the United Kingdom. In our judgement it is essential to ensure that any reform to the governance of the police does not jeopardise this principle before that reform is implemented.

5.  The Association of Chief Police Officers (ACPO) has expressed its concerns regarding operational independence in the following terms:[3]

"Our professional judgment is that an effective framework of safeguards is essential to achieving the Government's ambition without creating substantial threat to the impartiality of police officers making decisions, such as the deployment of resources. Our professional view is that creating effective safeguards for such a radically different accountability regime is extremely challenging."

6.  The Government have emphasised that the reforms are intended to preserve this principle:[4]

"The operational independence of the police is a fundamental principle of British policing. We will protect absolutely that operational independence. 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."

7.  The issue of operational independence was the main constitutional concern during the second reading debate on the Bill in the House of Lords.[5] It was also at the heart of the debates on the Bill in the House of Commons.[6] While all parties in the House of Commons were agreed on the fundamental importance of the principle, debate focused on the question of how it could be maintained in practice in the novel institutional environment of powerful and directly elected police and crime commissioners. The Home Affairs Committee suggested the idea of a protocol or memorandum of understanding to develop and clarify the concepts of operational responsibility and impartiality;[7] Ministers have agreed to produce such a document.[8]

8.  At the time of writing it is not clear whether the Government consider that the proposed protocol or memorandum of understanding should have statutory imprimatur or be subject to formal parliamentary approval. The Government should, before commencement of the Bill's committee stage in the House of Lords, publish a draft version of this document in order that Parliament may properly scrutinise it, with a final version being published prior to the conclusion of parliamentary proceedings on the Bill.

9.  Clauses 2 and 4 of the Bill set out the long-established principle that police forces are under "the direction and control" of their chief constable (or Metropolitan Police Commissioner). Nonetheless, the Government need to do much more to ensure that the constitutional imperative of the operational independence of the police will not be compromised.

Specific issues


10.  The core task of the new police and crime panels[9] will be to advise and scrutinise the work of the police and crime commissioners—not the police. There are powers to require attendance and information from the commissioners and their staff. The panels also have a number of related powers, most notably to veto a proposed precept. Nonetheless, the powers of the panels are in some respects sharply limited. For example, as regards the power of a police and crime commissioner to remove a chief constable, the policing and crime panel is limited to making a recommendation. The panel also has no role in the suspension of a chief constable.

11.  The Coalition's programme for government described the new police and crime commissioners as being "subject to strict checks and balances by locally elected representatives".[10] The House will wish to consider carefully whether Part 1 of the Bill delivers this.


12.  The core functions of the police and crime commissioners will replicate those currently undertaken by police authorities; these being to secure the maintenance of an efficient and effective police force and to hold the chief constable to account. Clauses 5 to 8 make detailed provision for the issuing by the commissioners (or Mayor's Office) of police and crime plans to which chief constables, in exercising their functions, must "have regard". The plans will cover such matters as financial and other resources and local objectives for crime and disorder reduction. Clause 14 amends the existing arrangements for obtaining the views of communities on policing, specifying that those views are sought before a police and crime plan or precept is issued.

13.  We note the concentration of powers in the hands of individual police and crime commissioners. The Government must ensure that the values of pluralism, equality and diversity adequately inform the new arrangements for representation and engagement with communities by individual commissioners. Further, the Government must ensure the strength of the arrangements for engagement with communities in geographically-large force areas.


14.  With a view to ensuring collaboration and, where necessary, inter-operability between police forces, clause 79 establishes the "strategic policing requirement". The Home Secretary must, from to time to time, issue a document setting out what, in her view, are national threats and "appropriate national policing capabilities" to counter them. Chief constables in the exercise of their functions must "have regard"[11] to this document; police and crime commissioners must hold them to account for the way that they do so (clause 1(8)(b)).

15.  The Government should explain why they consider that the strategic policing requirement is a sufficiently strong arrangement to meet the risks of fragmentation and insufficient attention to national threats. In particular, the Government must explain why they consider that the duty to "have regard" to the document is sufficiently compelling.


16.  Police and crime commissioners will be elected for a maximum of two four-year terms, beginning in 2012. Where there are three or more candidates, the Bill provides for the system of "supplementary vote" (first and second preference votes only), as is currently used for mayoral elections in a number of English towns and cities (including London). In contrast, the Fixed-term Parliaments Bill currently envisages that Parliament will have five-year terms and the Parliamentary Voting System and Constituencies Act 2011 gave voters the choice of "first past the post" or alternative vote (AV) for elections to the House of Commons.

17.  The Government should explain clearly the rationale for adopting the supplementary vote system for the election of police and crime commissioners. In particular, the Government should explain why they have seen fit to recommend a different system to either of those put to the vote in the 5 May referendum on the voting system for the House of Commons.

18.  The Government should also explain the choice of a four-year term for police and crime commissioners. We note that, in the light of the Fixed-term Parliaments Bill, it is currently envisaged that elections to the National Assembly for Wales would also take place in 2016.[12] The Government should explain their assessment of what impact this clash of electoral dates may have.


19.  The Government have previously indicated their support for effective post-legislative scrutiny.[13] The Government should explain their position on post-legislative scrutiny of the Police Reform and Social Responsibility Bill.

1   Metropolitan Police Act 1829. Back

2   For recent examples, see R(Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 and Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564. Back

3   ACPO, Briefing for House of Commons committee stage on the Police and Social Responsibility Bill, (March 2011) paragraph 5. Back

4   Policing in the 21st century: Reconnecting police and the people Cm 7925 (2010), paragraph 2.13.  Back

5   HL Deb 27 April 2011 cols 128-230. Back

6   See House of Lords Library Note, Police Reform and Social Responsibility Bill, LLN 11/013, pp. 5-7. Back

7   Home Affairs Committee, 2nd Report (2010-11): Policing: Police and Crime Commissioners (HC Paper 511) paragraph 45. Back

8   HC Deb 13 December 2010col 769; HL Deb 27 April 2011 col 128. Back

9   In consequence of local government being a devolved function in Wales, the formal organisational arrangements for the Welsh panels will differ from those in England: see Schedule 6. Back

10   HM Government The Coalition: our programme for government (2010) p13.  Back

11   Case law on other legislation confirms that the duty to "have regard" does not mean a duty to follow.  Back

12   HL Deb 29 March 2011 col 1221.  Back

13   For example, in relation to the Academies Act 2010. Back

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