Response to The Policing Protocol Order 2011

Date: 2 May 2022

Rt Hon Priti Patel MP

Home Secretary

Dear Home Secretary,

Re: West Midlands Police and Crime Commissioner: Response to The Policing Protocol Order 2011 Consultation: Government Stakeholder Consultation

I note your decisions to limit consultation on changes to the Policing Protocol Order 2011 (“the Protocol”) to a number of representative bodies rather than engage the public, restrict the consultation to eight weeks, straddling the Easter break, rather than the usual twelve weeks, and close the consultation on a Bank Holiday Monday. However, notwithstanding all of that I am making this response which I intend to publish.

Firstly, I adopt, endorse and support the response made by the Association of Police and Crime Commissioners (“APCC”). I note that at the recent APCC General Meeting on 27 and 28 April 2022, attended by Home Office officials, there was cross-party unanimity among PCCs in support of the APCC position. I attach the APCC submission for ease of reference. 

Secondly, a summary of my response to the Home Office proposals are as follows:

• Many of the proposed amendments to the Policing Protocol go beyond the statutory basis of the Protocol and are therefore ultra vires.
• There is no statutory basis on which a Home Secretary can “hold to account” PCCs or Chief Constables and such a function cannot be claimed within the current legislative framework.
• A Home Secretary does not have statutory sole responsibility for setting “strategic direction on national policing policy” and cannot claim such a role.
• The National Policing Board and its sub-committees have no statutory foundation and their inclusion in secondary legislation would be ultra vires.
• PCCs and Chief Constables have no statutory duty to “reflect on and implement national policy at a local level” and no such requirement can lawfully be asserted
• A Home Secretary has existing powers to require information from Chief Constables. These powers do not extend to PCCs, although a Home Secretary can specify what information all PCCs must publish.
• The proposal that Chief Constables should act in a “politically neutral” way is ultra vires, subjective, unenforceable and at very least, a) is not reflective of a Chief Constable’s duty to have regard to their local Police and Crime Plan, b) contradicts the ultra vires claim that Chief Constables have some notional duty to “reflect on and implement national policy”, and c) imposes an improper fetter on legitimate Chief Constable participation in public affairs.   
• The proposition that a Home Secretary should be increasingly ready to exercise their powers of intervention is unnecessary and is incompatible with the local accountability of PCCs
• The ability of PCCs to provide strategic direction and hold to account in financial matters should not be fettered by proposing that matters defined by a Chief Constable as “operationally independent” are beyond their remit.

Thirdly, the tone and approach of the proposals are flawed. At the same time as the Levelling Up White Paper is advocating for devolution of power to local elected representatives, these proposals argue that a Home Secretary needs to be more directive, more able to “hold to account”, and more able to direct local objective setting that follows what are often arbitrary and transient national imperatives. The proposals are incompatible with a spirit of partnership and joint working. They cast local policing bodies and Chief Constables as the junior partners in the relationship. However, Chief Constables are appointed following rigorous selection processes and can legitimately claim extensive professional operational experience, and PCCs have a greater personal democratic mandate than ministerial appointees. The proposals do not recognise that Home Secretaries should be working to build relationships with PCCs and Chief Constables, not proposing to more readily give them orders, hold them to account, impose policy directions on them and instruct them to write reports in the service of non-statutory engagement mechanisms, all outside of any lawful statutory framework.

While the proposals speak of a wish to “lean in”, the objective appears not to be to engage, listen, learn and respond, but to give instructions and hold to account. The stated objective should be to build deeper and wider two-way communication channels between the Home Secretary/Home Office, Chief Constables and PCCs – recognising that Home Office should be hearing from PCCs and Chief Constables how national policy initiatives are working, or not working, rather than just supposing the communication will all be in one direction, that is to say, from the Home Secretary to Chief Constables and PCCs. A workable partnership between PCCs, Chief Constables and the Home Secretary/Policing Minister/Home Office needs structures and processes that ensure “answerability” as between all parties. The National Policing Board and other processes should be forums for mutual answerability, not places where a Home Secretary or a Policing Minister unilaterally presume they have the authority, legitimacy and knowledge to direct and hold to account.  

Fourthly, the consultation is a missed opportunity to reflect on the more practical issues that have arisen in the exercise of the police governance function in the last decade. For example:

• The Protocol could flesh out how a PCC retains responsibility for “holding to account” in instances where their Force is in effect acting under the de jure or de factooperational control of others. For example, the day-to-day tasking of the counter-terrorism network, or the ad hoctasking from the National Crime Agency, should not fetter the ability of a PCC to hold to account and scrutinise the activities of their Force and, indeed, seek “answerability” from the tasking body. Local lead-force collaborative models pose similar issues. In essence a PCC could reasonably make the tasking body aware of the local implications arising from any tasking, and the tasking body should have regard to these implications. 
• The proposals could set out more clearly the expectations on Chief Constables to provide information to their local policing body in accordance with Section 36 of the Police Reform and Social Responsibility Act 2011, asserting that this provision constitutes a “duty of candour” to provide all the information necessary – proactively if needs be – to exercise the strategic direction and holding to account functions.
• Case law and working experience over the last decade offer instruction on how “holding to account” and “operational independence” operate in practice, and yet the consultation is silent on this topic. For example, it is appropriate for a PCC to seek assurance that the rationale for an operationally independent decision is reasonable, even if that decision has not been made yet. A PCC could legitimately seek assurance that the basis on which an operationally independent decision has been, or will be. made was, or will be, informed by reliable information, and the assumptions on which a decision were founded are reasonable and evidence-based. Where such assurance is not forthcoming, a PCC should be advised to make their CC aware of the possible consequences.
• Over the last decade, progress towards efficient and effective police collaboration has been patchy at best. Some decisions to exit collaborations or not proceed with collaboration proposals have been questionable. The consultation could therefore consider the practical application of the PCC and CC duties to keep police collaboration opportunities under review. The Protocol, as currently drafted, focuses more narrowly on entering into collaboration agreements and ensuring they are effective, not the duty to keep opportunities under review even where this would benefit other forces.  Perhaps the Protocol could advise that the duty to keep collaboration opportunities under review is a “function” of a PCC that could be included in the Annual Report, including the assessment of collaboration opportunities that would benefit both a PCC’s force and other forces.

Overall, the proposals on which the consultation is based are fundamentally flawed. Many of the proposals are ultra vires and therefore unlawful. The tone and content are both contrary to government policy and the interests of joint partnership working. The consultation misses the opportunity to address practical issues that have arisen in the operation of the new local policing governance models. I respectfully suggest that the Home Secretary reflects on her proposals, having regard to all of the matters set out in this letter and withdraws them forthwith. 

If there are any further opportunities for discussion regarding the Protocol, my Office and I would be happy to participate. 

Yours sincerely,

Simon Foster

West Midlands Police & Crime Commissioner

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