For over forty years the police have too often evaded democratic oversight of their operations by pointing to a 1968 judgment by Lord Denning (R v Metropolitan Police Commissioner, ex parte Blackburn  1 All ER 763)
On Monday the policing minister, the excellent Nick Herbert, killed off the idea that Denning’s judgment exempts the police from democratic control – which must surely be the corollary of tax financing of public services. He stated clearly for the record that the ambit of operational independence, i.e. where the police answer only to the law (and hence judges) and not to political authority, was limited “to specific operational matters and the decisions the police have to make as constables in arresting somebody and in pursuing investigations”.
The common law will now develop in a new context. Judgments which followed Denning, e.g. stating a police authority “is subject to the overall direction of the Secretary of State” or that it is for Chief Constables “to decide how available resources should be deployed”, will have to be reconsidered.
This is because Parliament has spoken. Statutory Instruments in theory represent the will of Parliament. The reality is that they are written by civil servants, signed by a minister and, in the vast majority of cases, go through on the nod without being debated in Parliament.
I did not feel that this was an acceptable way to deal with the Policing Protocol Order, which sets out the division of powers between Chief Constables and the Police and Crime Commissioners who will be elected in November. Parliament should agree this and not just representatives of the Association of Chief Police Officers and the current unelected police authorities.
That is why, with the support of the majority of the Home Affairs Committee and other MPs such as Douglas Carswell and David Hanson, I ‘prayed against’ the Order and obtained Monday’s debate. Judges will now be able to resolve disputes between elected Commissioners and Chief Constables, not on the basis of what Lord Denning thought in 1968, but according to the intentions of Parliament in 2011 as set out in the Policing Protocol Order 2011 and the Hansard record of Monday’s debate.
Extracts from debate
Keith Vaz: “I pay tribute to the hon. Member for Rochester and Strood, who has taken a strong interest in the protocol and was extremely active on the Home Affairs Committee in ensuring that we put a recommendation on it into our report. As r h and hon. Members know, he is due to become a father for the first time in early March, but I would say that the protocol is probably his first child. He was determined that we not only put it in the memorandum, but had a debate, and Members on both sides of the Home Affairs Committee supported him wholeheartedly. He believed, as do we all, that proper parliamentary scrutiny of important proposal is important. …”
Mark Reckless: “It is a pleasure to follow the right hon. Member for Leicester East, the Chair of the Home Affairs Committee. He has referred kindly to the protocol as my baby or my first child, but I should say, at the very least, that the Minister – I am not sure whether this is the right phrase – shares its parentage, as well as that of the overall policy …
… The protocol is a clear and significant document. I should like to put on record my appreciation of all sides of the tripartite, particularly the police. Adrian Lee, the chief constable of Northamptonshire, speaking for the Association of Chief Police Officers, has gone a long way and, in some areas, given significant ground; Tim Godwin and the Metropolitan Police Service have also moved a long way. Given the traditional position of the chief constable having direction and control, it is significant, as noted in paragraph 8.1 of the explanatory memorandum, that the MPS “Specifically welcomed the clear statement that the elected local policing body would set the strategic direction and objectives of the force.””
The Minister for Policing and Criminal Justice (Nick Herbert): “They [the police] answer to police authorities now, but they will answer to directly elected police and crime commissioners. It is not the intention in the legislation or the protocol to interfere with such operational independence, but we did not think that it would be wise to try and define it. We sought to give clarity in an accessible form to what the legislation says, and have set it out in the protocol.
Mark Reckless: It is welcome that the protocol develops that clarity. I think we all agree that it is not sensible to try to define operational independence in law and that chief constables should have the day-to-day control of their forces, but does the Minister accept that there has been some uncertainty about police authorities and the issues they deal with, and about the remarks made by judges in some cases? I gave an example in relation to oversight by central Government. The protocol and the will of Parliament as expressed in the agreement between the parties we have witnessed today set a new context in which the common law will evolve.
Nick Herbert: I agree, and I think that my hon. Friend will be reassured by my later comments about the judgment he mentioned … Where an accommodation has to be reached between the elected police and crime commissioner and the chief constable [e.g. over whether to use Tasers], the idea that the chief constable could make such decisions regardless of the views of the elected police and crime commissioner is, in my view, erroneous. I am happy to make that clear. I can see that my hon. Friend the Member for Rochester and Strood is concerned so I will give way to him briefly.
Mark Reckless: Were the police and crime commissioner not to give a budget for Tasers, the question of the chief constable’s being able to deploy would not even arise, because the budget is a matter for the PCC.
Nick Herbert: My hon. Friend must be correct when it comes to the new deployment of such a weapon; the issue is whether chief constables could go on deploying existing Tasers. However, I have stated that the Government’s view, which is that while a strict interpretation may be that is an operational matter for the chief constable alone to determine – that would be for the courts to decide – realistically, a chief constable would not be able to pursue such an operational decision in the absence of support from an elected police and crime commissioner. I hope that that also helps to answer the points raised by the Chair of the Select Committee.
I hope those comments also address the concerns raised by my hon. Friend the Member for Rochester and Strood, who described Lord Denning’s famous judgment in R. v. Metropolitan Police Commissioner, ex parte Blackburn, in 1968, as “exorbitant”. Lord Denning said that the police were accountable only to the law, but it is now widely agreed, I think, that that is a narrow and legalistic interpretation of police accountability. The police must now answer to someone for the kind of policing they practise; somebody must set the budget for them and set the plan, and the people must have a voice. The idea that the police answer only to the law in the exercise of their functions is surely relevant only in relation to specific operational matters and the decisions the police have to make as constables in arresting somebody and in pursuing investigations, where it is widely agreed and accepted by all sides that there should be no political interference.”