Policing undermined by failure to distinguish between Government guidance and the law

Forces’ operational independence put under pressure as ministers’ edicts blur the line

The principle that British police officers are operationally independent of Government dates back nearly 1,000 years to the Statute of Westminster of 1285.

This laid the foundation that no one can direct any officer to arrest anyone because it is for the individual constable to decide on the application of the law in whatever situation confronts them.

This applies equally to ministers as well as police and crime commissioners (PCCS) who, in their oath of office, swear they will “not interfere with the operational independence of police officers”.

Ministers can set policy, introduce new offences and lay out the strategy, but, on day-to-day operations, there is no power in statute that allows them to direct officers.

This is not to say that ministers and PCCS have not applied pressure or demanded particular actions, as was the case during the pandemic over the police application of the Covid guidance underpinning lockdowns.

Indeed, it was seen by some officers as a threat to the British tradition of policing by consent, set out by Sir Robert Peel, the founder of modern policing, in 1829, and reaffirming the statute of 1285.

It was why at the height of the pandemic Sir Tom Winsor, then HM chief inspector of constabulary, felt it necessary in his 2020 annual report to remind the Government, police and public that “the police come from and are of the community”, an echo of Sir Robert’s consent principles.

“In sharp contrast to the police in very many other countries, our police forces are not modelled on and do not operate as the obedient and oppressive arm of an authoritarian political leadership,” said Sir Tom.

“The first duty of a chief constable – and the officers and staff under his or her direction and control – is the prevention and suppression of crime and disorder. In this, the chief is operationally independent, and cannot act on unlawful orders or unduly intrusive political direction.”

The principle is that if they are perceived to be subject to political pressure and bow to it, then they risk losing public trust, as some would say happened during Covid.

The key problem in Covid lay in the ambiguity between Government guidance and law.

“Government did not always make this important distinction sufficiently clear when publishing regulations and guidance, neither to the police nor to the public,” wrote Sir Tom.

“Emphatically, the police’s role is not to enforce government guidance; their role is to enforce the law.”

Legal cases have also tested police operational independence, perhaps most famously in 1968 when the crusading Labour MP Raymond Blackburn sued the Met Police commissioner for failing to shut down illegal gambling in London casinos.

Lord Denning, then Master of the Rolls, rejected the appeal, on the basis that the police should have the discretion to prioritise and deploy resources as they saw fit.

The introduction of PCCS in 2010 has created a degree of political oversight but also, in some cases, led to friction over chief constables’ operational independence. PCCS set the budget and local policing priorities which chiefs must “have regard to” but not necessarily obey as “orders.”

However, PCCS can also hire and fire – a significant power. This was tested in 2016 when the South Yorkshire PCC forced the chief constable David Crompton to resign in the aftermath of the inquest into the Hillsborough tragedy over his handling of the force’s response to the findings.

Mr Crompton subsequently sued the PCC and won, on the basis that it was “wholly disproportionate, unfair and unreasonable”.

“Operational independence is enormously important but it is being chipped away by the PCC model,” said one senior policing source.

Another source cited the chief constable who wanted to close a police station but was opposed by their PCC: “The chief said you can keep it open but I am not going to send any officers there. Then the PCC said: ‘Is this the way you want to end your career?’ The pressure some PCCS put on their chiefs is intolerable and illegal.”

‘Emphatically, the police’s role is not to enforce government guidance; the role is to enforce the law’