Rick Muir (London, IPPR): A lot of contradictory claims have been made in recent weeks about ‘police independence’. The Home Secretary says that she could not have intervened in the police investigation into Home Office leaks because it is for the police, not politicians, to initiate criminal investigations. Jackie Ashley argues simultaneously that Jacqui Smith should have intervened, but that it is dangerous for elected politicians to get too involved in policing. Sir Ian Blair says that the elected Mayor of London should not have the power to sack him but concedes at the same time the police should be accountable to the public. So, what is going on here?
The problem is that none of the participants in this debate share an understanding of what is meant by police independence. No one wants to ‘politicise’ policing, with police officers taking their operational instructions from ministers or US-style elected sheriffs. We do not want to go back to the days of the Sidney Street Siege, at which the then Home Secretary Winston Churchill took personal command of a police raid in the East End, standing in the street issuing instructions dressed in a top hat and fur coat. Everyone agrees that the police should impartially apply the laws of the land, rather than serve the executive branch. At the same time everyone agrees that police officers should be accountable to someone, and in a democracy, that someone has to be elected.
The main reason everyone is so confused is that, as with so many things in the British constitution, no one has ever written down what ‘operational independence’ means. There is no single legislative definition – but rather a convention that has evolved over the years, with judges filling in the gaps left by parliament. The most detailed exposition came in the 1962 Royal Commission on the Police, which argued that chief constables should be given complete immunity from political influence in decisions to apply the law in particular cases – for example, in deciding whether to initiate a criminal investigation. More widely the report argued that a chief constable should have considerable room for discretion in areas such as the deployment of police resources. Years after the publication of the report one academic commentator remarked that the notion of police independence it described had ‘taken on the character of a new principle of the constitution while nobody was looking’.
This understanding of operational independence was later widened by the then Master of the Rolls Lord Denning who in a 1968 judgement argued that a chief constable ‘must take steps so to post his men that crimes may be detected and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted…in all these things he is not the servant of anyone, save the law itself’.
Denning’s judgement was highly controversial: while most people accept that politicians should not be interfering in ‘quasi judicial’ matters, such as whether to investigate particular crimes, or to arrest this person or that, the judgement also implied that chief constables were not accountable for wider decisions such as the policing priorities for their area.
This degree of police independence was felt to be a step too far – especially by the left. In the 1980s Labour controlled police authorities demanded greater accountability for the way chief constables dealt with industrial disputes, most notably of course the miners’ strike. The then Labour backbencher Jack Straw introduced a private members’ bill to give local councillors greater say over policing priorities. In the 1990s there was a public outcry when some chief constables shifted resources away from community policing, taking officers off the beat and closing local police stations, to focus on ‘more serious crimes’, with the public and local councillors having no power to prevent it.
In order to end the current confusion we need to set down, probably in legislation, where the balance between police independence and accountability should lie. Our best guide through this morass is to return to the 1999 Patten Report which led to the establishment of the Police Service of Northern Ireland. Patten rightly argued that we should abandon the whole notion of ‘police independence’ stating that in a democracy ‘no public official, including a chief of police, can be said to be ‘independent’’ and that they need to be held to account for their decisions. Rather chief constables should have ‘operational responsibility’, being solely responsible for decisions to enforce the law in particular cases. However, the chief constable should then be answerable for their decisions afterwards, in this case to the Northern Ireland Policing Board. More widely the report argues that the Policing Board, made up of elected and appointed members, should set the budget and the three to five year strategic priorities for the police service.
These principles could provide the basis for a new settlement in England and Wales too, safeguarding the important separation of roles between the executive and the police, while also ensuring that the police are democratically accountable.
They also shed useful light on the government’s proposal to directly elect local police authorities. Some have argued that this risks ‘politicising policing’ and even undermining the rule of law. But it would only do so if these directly elected representatives were taking day-to-day operational decisions. What the Home Office actually proposes is that these bodies should be responsible for setting the medium to long term policing priorities for their local area. Currently this is done by the Home Office (through performance targets) and by unelected police authorities that are barely visible to local people. Surely it is right, as the left argued so forcefully in the 1980s, that the public should have a say over how their local areas are policed in general terms?
Rick Muir is a Senior Research Fellow at the Institute for Public Policy Research