Jim Gallagher: Independence must be at centre of police bill

Getting the governance of policing right is unusually important. The police hold the coercive power of the state over citizens and have a lot of discretion in its exercise. So they must be held to account, and be subject to democratic scrutiny and influence.

We must avoid the risk that this coercive power can be directed for political purposes. That’s why oversight of the police is complex. Powers and discretion are vested in constables as officers of the law. They are answerable to the courts, and can be directed by the prosecutor, but not by local or national politicians.

Great Britain also has a tradition that policing is a local service, enforcing the law of the land, and not a national agency enforcing the will of government. Of course, central government has always taken an interest in policing, especially in recent decades. But Scottish policing has rested on a tripartite model, in which responsibility is distributed between central and local government and chief constables.

It’s easy to see what’s wrong with the tripartite system. It’s not easy to see who is in charge, and change is difficult to push through. Police boards have not always been strong supervisors of forces. It’s pretty clear that St Andrew’s House thinks chief constables are not sufficiently controlled and directed.

The relative weakness of police boards is a problem, but they have been getting better. Abolishing them may make it easier to push through change; and may subject a chief constable to greater control. But more control and direction carries risks. The reform bill, currently before MSPs, could have stronger safeguards against such risks. These could be built on the role of local councils and the operational independence of the chief constable.

Local control has provided a safeguard against central state control. But under the bill, policing will no longer be a local government function. Councils will have some replacement powers, but much weaker than at present. The commander for each council area must submit a local policing plan to the council. The police must also participate in community planning, which is led by the council. These things already happen in practice now. So this is hardly greater local accountability.

Alternatively, a single force could still be part of local government. Rather than a quango appointed by ministers, the new Police Authority could be a local government body, consisting of elected councillors. Ministers could have the powers over funding and appointments as they do now. If the objective is to cut costs by reducing the overheads of eight forces, this approach might deliver it just as well.

Financial control counts for a great deal. Under the bill this will be centralised with ministers. Apparently local councils will be able to supplement police budgets, but will not be able to decide to spend less – say to have fewer police officers in their area and more youth workers, and transfer resources accordingly. Even if councils are no longer to run policing, there is no obvious reason to forbid them this choice.

Those who sentence criminals, prosecute or investigate crime, need appropriate independence. Judges are wholly independent of government. The Lord Advocate prosecutes “independently of any other person”. Chief constables have operational independence. The local authority employs but cannot direct them, and ministers cannot direct the council, still less the chief constable.

The bill makes a valiant attempt to create a framework of legal powers to allow this to continue. The chief constable is “responsible” for the policing of Scotland and must “account to” the new Scottish Police Authority, which “maintains” the service. Plans are to be approved, alongside the budgets which ministers will set. They will also have a power to direct the Authority.

This does gather a lot of power into ministers’ hands. The most important is the power of the purse. Ministers are not afraid to exercise it. They have used it – in the absence of any specific legal power – to determine the number of police officers forces employ. If policing is to be national not local then this power will inevitably rest wholly with ministers. How many more powers do they need?

The power to appoint and dismiss is critical. The Police Authority for Scotland is to appoint the chief constable, but only with ministers’ agreement. There are also new powers for the Authority to retire senior officers. In a rare example of the legislation draftsman’s humour, the clause is entitled, “Senior officers: retirement for efficiency or effectiveness”. This need not be because the individual is inefficient or ineffective, but because the Authority thinks it would be better if he went. It could apparently be exercised to dismiss the chief constable, with ministers’ agreement, if there were a dispute about how operational responsibilities should be exercised.

Ministers also want a power to give directions to the Authority. These will not apply directly to the chief constable, but there are no limits on what they can be about – except not to a specific police operation. So they might be about numbers or deployment of staff, style of policing, or indeed dismissing senior officers.

This very wide set of powers will give ministers much more control over policing than now. I am sure they want them so they can make the police service run better, and to ensure that public services are “joined up” in pursuit of national outcomes. And, understandably, ministers always feel that they are accountable for what happens anyway, even when they have no control over the decision of an arm’s length body.

There are, however, dangers. If ministers are micro-managing, they are not exercising strategic oversight. For policing there’s also a danger of misuse. It is unlikely, but it would happen, if at all, only insidiously and gradually. It might be better to draw firmer boundaries around ministers’ powers over operational policing to be as sure as possible it doesn’t. Here are some suggestions.

l First, appointments: ministers have always approved the appointment of chief constables. When there were numerous forces this safeguarded against the risk of perverse local decisions. In practice, central government approved the short-list from which the local police board chose. This emphasised that the police authority made the choice. If this practice were followed in future, it would make it quite clear ministers were not appointing “their man” to police Scotland.

l Second, dismissal: the powers to require the chief constable to retire are broadly drawn and capable of misuse. It is not clear they are needed at all. Proper independence surely requires security in appointment unless actually “inefficient or ineffective”. Removal should require the agreement of parliament as well as ministers, as in the case of a judge.

l Third, powers of direction: These are the sort of “belt and braces” that officials love. The trousers would stay up without them, but if they remain then they must have a defined purpose. Obviously they should not extend to a specific police operation; but not to classes of operation either: for instance, policing protests against government policy. Nor should they extend to hiring or firing individuals.

l Finally, operational independence: in the past this was implicit – chief constables must be independent because there are no powers to direct them. With more centralised governance, it would be better made explicit. The Lord Advocate offers an excellent precedent: he accounts to the Scottish Parliament, but his independence is explicitly safeguarded in statute. This could work equally well for the chief constable so that he or she discharged operational responsibilities “independently of any other person”.

It’s clear that the Scottish Parliament wants a single Scottish Police Force. Let’s be sure to get its governance right.

• Jim Gallagher is a fellow at Nuffield College, Oxford, visiting professor in the School of Law at Glasgow University and former head of the Scottish Justice Department.