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
POLICE AND CRIME PANELS
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.
POLICE AND CRIME COMMISSIONERS: REPRESENTATION AND
ENGAGEMENT
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.
STRATEGIC POLICING REQUIREMENT
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.
ELECTIONS OF POLICE AND CRIME COMMISSIONERS
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.
POST-LEGISLATIVE SCRUTINY
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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