have pcc's undermind the operational independence of chief constables
DESCRIPTION
A Masters essay which includes a survey of PCc's and ACPO.TRANSCRIPT
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Student ID Number: (7 digit number on student
card) 0860915
Programme of Study: Masters in Police Leadership and
Management
Cohort Number: 1B
Module Title & Code: Advanced Leadership and Strategic Management
Module Leader: Prof Keith Grint
Word count: (excluding title page,
bibliography and appendices) 3035
Date: 8th July 2013
Assignment Question
Answered:
(number and title)
Are PCC's likely to facilitate or undermine the Operational
Independence of Policing?
Is the author of this
assignment formally
registered as dyslexic with the University?
No
Declaration
am submitting is my own. All
are clearly acknowledged and
I am aware of the University
collusion.
submitted here has been
for accredited courses of
if this has been done an
I might otherwise have received
This is to certify that the work I
external references and sources
identified within the contents. regulation concerning plagiarism and
No substantial part(s) of the work
submitted by me in other assessments
study, and I acknowledge that
appropriate reduction in the mark will be made.
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Introduction
The concept of the Operational Independence of Policing dates back to the
formation of the Metropolitan Police in 1829 and helps ensure that the
British tradition for professional policing decisions rather than political
judgments are applied. The office of constable has a long history of
accountability to the law and that quasi-judicial independence has since
been a constant feature of British policing. ACPO argue that the
operational independence is a critical element in enabling them to deliver
a service to the public.
Until recently, responsibility for the delivery of all policing services was
shared between th ree di f ferent bodies. The power sharing
responsibilities were divided amongst the Home Secretary, Police
Authority (PA) and the Chief Constable (Wakefield and Fleming, 2009
cited in Rogers, 2013). This arrangement was referred to as the tri -
partite system established by the Police Act 1964. Under this system, the
Home Secretary was responsible for the overal l efficiency and
effectiveness of policing in England and Wales and was accountable
directly to parliament. The Chief Constable was responsible for all
operational policing decisions within the Force, controlling with autonomy
over any available resource (Rogers, 2013).
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There was also a belief that PAs often failed to hold Chief Constables to
account. It was believed that the lack of powers and autonomy held by
the authority combined to reinforce the position of the Chief Constable
while leaving the authority little option other than to submit to the
operational decisions of the Chief Constable. Reiner (2010) has stated
that PAs ‘play the piper but never name the tune’. Consequently, new
accountability measures have been being introduced that dramatically
alter the tri-partite system.
The Act of Parliament (Home Office, 2011) which introduced the role of a
Police and Crime Commissioner (PCC) states the Commissioner will be
responsible for:
Holding the Chief Officer to account.
Identifying, engaging and representing local communities.
Setting the policing budgets.
Appointing the Chief Constable.
Dismissing the Chief Constable
On 15 November 2012 the electorate were invited to elect PCCs to take on
the key governance role previously undertaken by PAs. Whereas PAs were
comprised of a mix of local councilors and appointed independent members
the new PCCs are directly elected and exercise a role described by their chief
proponents at the Home Office (2011) as being “...to secure and maintain an
efficient and effective policing force through holding the Chief Constable to
account ...”.
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The purpose of this thesis is to explore whether the role of ' the PCC'
has facilitated or undermined the 'Operational Independence' of
Policing. For the purposes of this thesis I will conduct narrative review
collecting information, reading and making sense of a body of research
studies, including research relating to PCCs, PAs, Chief Constables and
Operational Independence. Due to the fact that there is limited academic
research in relation to PCCs, I have utilised quantitative and qualitative
research in the form of a semi structured survey sent out to every Chief
Constable and every PCC across 41 forces to ascertain their views on
the affects of the role of PCC on operational policing. There is very
little empirical research which explores the views or perceptions of ACPO
or the PCCs on the affect of the new role on operational independence.
Spano (2005) contends that qualitative and quantitative research has
advantages and disadvantages. Quantitative research is useful in that
it allows for the development of N data. Qualitative research raises
questions regarding authenticity which may be tainted by bias.
Rosenthal & DiMatteo (2001) warn that reviews based on a sample of
studies that are l imited in size or methodological rigor, the
conclusions drawn from the analysis are suspect. With a return of 18
Chief Constables and 15 PCCs, I would argue that my research is
statically significant. I will also explore previous academic research to
support or negate any findings. This research will not look at the wider
affects of the role of the PCC on strategic policing due to the word limits of
this essay.
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Before we can look at any affects on operational independence, we must first
look at the history and definition of what that means.
History and definition of Operational Independence
There is no single legislative definition – no one has ever written down
what ‘operational independence’ means but rather a convention that has
evolved over the years, with judges filling in the gaps left by parliament.
The most detailed explanation 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. More widely the report argued that a Chief Constable should have
considerable room for discretion in areas such as the deployment of police
resources. This understanding of operational independence was later
widened by 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...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.
(http://www.opendemocracy.net/blog/email/rick-muir/2008/12/11/what-
do-we-mean-by-police-independence)
Reiner (2013) reminds us that Peel’s Metropolitan Police Act of 1829 was
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met with some hostility and a fear that policing might become an agency of
the government. Thus, Peel and the early Commissioners deliberately
insulated the service from direct central and local government control, to
prevent politicising policing.
Politicisation of Policing
The architects of the British policing model were Sir Robert Peel, a former
Prime Minister and Home Secretary; and Charles Rowan and Richard
Mayne, the first Commissioners of the Metropolitan Police. Peel
established the Metropolitan Police Service for London in 1829; this is
largely recognized as the founding moment of modern British policing.
Peel, a politician was involved in the shaping of policing from the outset,
so why should Chief Constables be in fear of any political involvement
today?
Whilst there is no exact match for the PCC model, Chief Constables raised
concerns citing a variety of examples including; the UK policing political
scandals of the 1950s that led to the reforms of the 1960s, and various
models from the USA.
Sir Paul Stephenson, a former Commissioner of the Metropolitan
Police, argues that:
". . . There must be an appropriate space between policing
and politics to protect the principle of police operational
independence ... Just as the politician has no role in
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operational policing – I stress, ‘operational ’ – so the police have
no role in politics. The Police Service is not part of nor the
arm of any administration, of any government. (O’Neill, 2009)
A recurring critique of PCCs has been that their introduction risks
‘politicising’ the police (Liberty, 2010). This is usually meant in terms of
police resources being used instrumentally to further narrowly
formulated political interests which could erode police legitimacy. This, in
turn, raises questions about ‘what forms of political influence over
policing are appropriate’ (Newburn, 2012) and it is here that much of
the debate about the suitability of PCCs can be situated. More
fundamentally, the very idea of operational independence, sits firmly at
odds with the PCCs statutory responsibility to ensure that the police
force is efficient and effective.
Rogers (2013) argues that the PCC is a dominant political figure who
may in turn rely upon populist policies in order to retain their position
via the electorate. As Rogers et al (2013), point out, there is a
temptation for politicians to play to the gallery on matters of crime and
policing when holding the Chief Constable to account. This raises the
question of what exactly does 'accountability' of a Chief Constable mean.
Accountability
While independence (in the policing context) is alluded to in terms of
freedom from control or direction, there are some who use the term more
broadly to refer to freedom from requirements of accountability,
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direction or control.
Enshrined within the concept of police accountability is the need for the
powers awarded to the police to be balanced with a commitment to
ethics and human rights (Morgan, 1989; McLaughlin, 1989). The case for
such stronger public accountability, and for more effective democratic control
of policing, has been regularly highlighted over the years (Reiner, 1993;
Goldsmith, 2000; Leishman et al., 2000; McLaughlin, 2007; Loveday, 2009),
and particularly when things seem to have gone wrong – e.g., Brixton Riots
(Scarman, 1981), the murder of Stephen Lawrence (Macpherson, 1999), the
shooting of Jean Charles de Menezes (O’Driscoll, 2008), the death of Ian
Tomlinson in the G20 protests (Greer and McLaughlin, 2010) and most
recently in relation to the August 2011 riots in various UK towns and cities
(Birch and Allen, 2012).
But to avoid the potential pitfalls such as the risks of undue politicisation and
undermining the operational command of Chief Constables, it seems clear
that there also need to be effective “checks and balances” in the
governance framework and in the system of accountability. This point was
recognized by the coalition government and reflected not only in the
scrutiny role of the new Police and Crime Panels but also in a protocol,
setting out the principles governing the relationships between chief
Constables and PCCs (Home Office, 2011).
As a “one-to-one” relationship, more than anything, the PCC model seems to
reflect the traditional “principal-agent” accountability model (Hughes, 2003)
where one party – “the agent” (the Chief Constable) – is held to account by
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another – “the principal” (the PCC) for the execution of certain stipulated tasks
or responsibilities.
The debate around police accountability centres on the proposition that
accountability needs to be more effective but how that is achieved is
open to debate (Mawby & Wright, 2005). One view is that accountability
to local communities is the key (Home Office, 2008), another view
promotes political accountability along political party lines as the way
forward (Freeman & Webster, 2006). A third view proposes local and
national oversight (Gove, 2005). So how can accountability and
operational independence be achieved, or is there an alternative?
Operational Independence versus Operational Responsibility
Lord Denning's statement of the doctrine of police independence in
Blackburn has effectively become the 'locus classicus' on the subject in
common law countries around the world, as well as in England itself, thus
seemingly ensuring continued disagreement and confusion about the
scope, application and implications of it.
Denning was strongly criticised by Labour Party spokesman Jack Straw
et al ( Jefferson & Grimshaw, 1984; Spencer, 1985; Lustgarten, 1986)
as giving Chief Constables too much power, for which they were not
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democratically accountable. The Minister seemed to be against including
a statutory definition of operational independence in the Bill to introduce
Police and Crime Commissioners. He said that Chief Constables held a
view that "we should not attempt to define operational independence in
the legislation" and that a definition could be "problematic".
The Patten inquiry noted "overwhelming advice" that it would be "difficult
if not impossible to define the full scope of a police officer's duties". It
favoured rejecting the concept of "operational independence" and
replacing it with the notion of "operational responsibility", to remove all
doubt that Chief Constables should be held to account on operational
matters.
Patten’s criticisms of operational independence clearly influenced
a later Home Office (2003) consultation paper, which addressed
police accountability as part of its remit and proposed formally
adopting ‘operational responsibi l i ty’ in place of ‘operational
independence’.
As a result of the consultation process the Home Office (2004)
produced Building Communities, Beating Crime. In an appendix on the
triparti te relationship there are no references to the terms
‘ independent ’ or ‘independence’ in the section on the Chief
Off icer’s role — there are, however, six references to ei ther
‘responsible’ or ‘responsibility’ in seven short paragraphs.
I would argue that policing is an inherently political activity. Wherever the
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autonomy level sits, whatever the level of accountability, the impact of
policing on shaping social order makes it politically irresistible. The effect
of law enforcement activity on gaining votes in parliament makes the
joining of politics and policing not only inextricably but also inevitable.
Newburn (http://blogs.lse.ac.uk/politicsandpolicy/2011/08/17/tension-
police-politicians/) argues that we cannot keep politics out of the police,
and should not seek to. The vagueness of the distinction between
matters that are ‘operational’ and those that are questions of ‘policy’ has
meant that the ‘principle’ has been used by senior officers and others as
a means of attempting to resist political influence much more generally.
There should be operational freedom, but also accountability. It is in
this sense that ‘operational independence’ is so obviously a misnomer.
The Independent Commission into the future of policing in Northern
Ireland set up after the Good Friday agreement, chaired by Chris
Patten, made precisely this point in 1999:
"In a democratic society, all public officials must be fully
accountable and a Chief of Police cannot be an exception.
No public official can be said to be “independent”. Indeed,
given the extraordinary powers conferred on the police, it is
essential that their exercise is subject to the closest and
most effective scrutiny possible. The arguments involved in
support of “operational independence” – that it minimises
the risk of political influence and that it properly imposes on
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the Chief Constable the burden of taking decisions on
matters about which only he or she has all the facts and
expertise needed – are powerful arguments, but they
suppor t a case not for “ independence” but for
“responsibility”.
Furthermore, as the Patten report argued, there may be a clear tension if
Chief Constables invoke independence as a way of avoiding full scrutiny.
Similar arguments are being played out today in Police Scotland,
which has retained the tripartite system. Chief Constable, Stephen
House:
"We cannot support a position where the Scottish PA may
seek to give direction to the Chief Constable in relation to any
matter relating to operational policing as this would
fundamentally erode police operational independence with all
the dangers that this brings to a democratic society. It is
absolutely essential that the Scottish PA does not enable
politicisation of the police, as may be the case in England and
Wales through the election of PCCs."
So what research is there to support or dispute these views.
Previous research
The role of PCC has only been in place for 6 months and as such there is
limited recent academic research to rely upon. The creation of PAs
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was to ensure on behalf of the public that their police forces are
‘efficient and effective’, but research shows that Chief Officers have
always resisted the very concept of a loss of operational independence.
This is evidenced in responses to a survey by Caless and Tong in 2013.
From 2008 to 2010, they interviewed 85 ACPO Officers, and obtained
completed questionnaires from another nine. This total of 94 partici-
pants represents 43% of all Chief Officers (there are 218 in total), and
is the first major research study of Chief Officers in England and Wales
since Reiner’s in 1991.
Interviewee 72: " I ’ve no problem at all with oversight: it ’s
a necessary and healthy part of democracy at work, but the
PA has long exceeded its democratic remit and now sees
itself as some sort of ‘OffCop’,
Some Chief Officers argued that the oversight by PAs had become an
excuse to impinge on or influence the ‘operational independence’ of the
police. Something which appears to be re-occurring in arguments
today:
Interviewee 60: "I have a hands-off relationship at the
moment. They tried to interfere with my operational
decision-making, so I froze them out for a while"
Caless and Tong argue that this kind of stubborn defensiveness is often
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a ‘default’ position for some Chief Officers.
Former Chair of the Metropolitan Police Authority, Kit Malthouse,
believed that Chief Officers were not kept in check by PAs and that as
a consequence, their power had grown out of control:
". . . they are incredibly powerful individuals. Each one
controls a standing army, they have extreme powers to
incarcerate you and me and to use force against us when
they see fit."
Malthouse expressed a common belief (Mawby & Wright, 2005;
Williams, 2003) that Chief Constables, and by extension Chief
Officers in general, operate unaccountably.
Caless and Tong's research also identified that Chief Officers views on
any challenge to their authority or operational independence was not
isolated to PAs (See chart below).
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Caless and Tong postulate that Chief Officers themselves seem unaware
of the impression they give about PAs, HMIC, and the Home Office and
I would argue there appears to be no change in attitude in relation to
the new role of PCC.
Sir Hugh Orde on behalf of ACPOS outlined the position of Chief Officers:
"...In our view there remains much to be resolved...Ultimately
it is not for police chiefs to determine how they should be held
to account, but there is a need for absolute clarity in the
relationship between Chief Constable and PCC."
Sir Hugh Orde sites the Peelian traditions of British policing arguing a need
for a clear commitment to maintaining operational independence. Sir
Hughes comments about ambiguity are reflected by a significant number
of respondents in my research.
My research
My research survey posed 10 questions (see below results) relating to
operational independence including a free text question.
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Conclusion
In conclusion, my research shows that there is a disparity in opinion
between Chief Officers and PCCs in relation to how the new role of PCC
is perceived to be affecting the operational independence of policing. The
response from Chief Officers seems to suggest that the role of PCC
has/or may undermined operational independence with a number of
exceptions, whilst PCCs appear to believe that the system is working
well, with operational independence being facilitated and maintained.
The role of PCC seems to be no different to the tripartite system that
went before it, in that Chief Constables fear an erosion of their ability to
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police without political interference, which from my research is certainly
nothing new and is inevitable.
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