The report into child sexual abuse in Rotherham has put the former Cabinet member with responsibility for Children's Services and current Police and Crime Commissioner ('PCC') for South Yorkshire
The report into child sexual abuse in Rotherham has put the former Cabinet member with responsibility for Children's Services and current Police and Crime Commissioner ('PCC') for South Yorkshire Shaun Wright in the spotlight and has led to a chorus of demands that the system of PCCs either be abolished or changed so that there are greater powers for PCCs to either be recalled or dismissed. We discuss below the restrictions on removing PCCs from office and some of the suggestions for reform that have been made.
In 2010, Mr. Wright stood down as Director of Children's Services for Rotherham (a role which gave him overall responsibility for education and safeguarding) in response to failures at the Council. This week, a report on child abuse in Rotherham was released identifying that 1,400 children were sexually exploited between 1997 and 2013. The report suggests that there were multiple failures to act by the authorities. Mr. Wright was elected to the office of PCC for South Yorkshire in November 2012, when the new regime of PCCs came into force. Since publication of the report, he has faced widespread calls to resign his office as PCC, but has to date declined to do so (although he has resigned from the Labour Party and his Deputy PCC has also resigned).
PCCs are governed by the Police Reform and Social Responsibility Act 2011 ('the Act'). There are 41 PCCs in England and Wales, one for each police area (with a different system for London). The main function of PCCs is to hold Chief Constables to account, which includes a power for a PCC to call upon a Chief Constable to resign or retire. The Act does not give further guidance on when it may be appropriate to do so but it unlikely that a PCC could remove a Chief Constable unless the decision was defensible on general misconduct/public law grounds (see e.g. Rhodes v PCC for Lincolnshire [2013] EWHC 1009 (Admin), a case relating to a decision to suspend a Chief Constable).
The Act provides that each police area shall also have a Police and Crime Panel ('PCP') whose function is to hold the relevant PCC to account. PCPs may require the PCC to attend before the panel and answer any questions it deems necessary.
Disqualification and complaints
The circumstances in which a serving PCC may be removed from office are highly limited and, barring death or resignation, it is only in cases where a PCC is disqualified from holding office that they may be removed. The criteria for disqualification relates to both election to the office of PCC (for example, for individuals aged under 18, non-UK citizens, MPs, judges etc.) and to incumbents who fall foul of the Act's provisions (whether by taking up a disqualifying appointment or by virtue of committing what could loosely be described as 'conduct' matters). These relate to:
If any of these matters occurs, either the appropriate local authority or the High Court must declare the office of the PCC to be vacant.
In relation to complaints about PCCs, while the Act and associated regulations provide for the investigation of complaints, it is only in cases where a PCC is convicted that they may be disqualified and therefore removed from office. Schedule 7 of the Act and the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2012 make provision for serious complaints and conduct matters about PCCs to be investigated. Less serious conduct matters are subject to 'informal resolution' by the relevant PCP. PCPs must refer serious complaints for investigation by or under the direction of the IPCC. If the IPCC concludes that a criminal offence may have been committed and it considers it appropriate to do so, it shall notify the Director of Public Prosecutions (as happened this week in relation to the PCC for Bedfordshire). However, the Act makes clear that, in respect of PCCs, regulations may not provide for a relevant office holder to cease to hold office or to be required to do so.
In short, unless a serving PCC becomes subject to a bankruptcy/insolvency order or is convicted for an imprisonable offence (regardless of whether or not he or she is actually imprisoned) then that PCC cannot be disqualified and therefore forcibly removed from office. Non–imprisonable convictions (such as for being drunk and disorderly or for certain public order offences) and cautions for imprisonable offences would not result in disqualification.
Additionally, no government minister may direct a PCC's removal from office (unlike, for example, Local Authority Directors of Children's Services such as Haringey's Sharon Shoesmith in the wake of the Baby P tragedy). Moreover, the PCP itself has no discretion about whether a PCC should be removed or disqualified. The only coercive power the PCP has in relation to a PCC's conduct is to suspend them under s.30. Even then, while this is a discretionary power, it can only be exercised where it appears that the PCC has been charged with an offence which carries a maximum term of imprisonment exceeding two years.
What next?
PCCs enjoy considerable security and are not subject to the same level of scrutiny to which they may subject Chief Constables. It is reasonable to suggest that this is, at least to some extent, a corollary of the fact that they are elected to office. There is no power of recall over PCCs where there are serious concerns over their conduct. While similar plans were floated in relation to MPs after the expenses scandal, these appear to have been put to one side for the moment.
MPs on all sides have called upon Mr. Wright to resign. Several in the media have called for the abolition of PCCs. There has been significant discussion over whether the current legislation could be amended in order that a PCC could be removed from office or recalled somehow. While it could be argued that the retrospectivity of such changes would make them unlawful, such a move would not be without precedent in the regulatory world (see e.g. Antonelli v SoS for Trade and Industry and Holton v GMC) and the prohibition on retrospectivity under the ECHR focuses on criminal offences. Such changes may therefore be lawful and could be applied to PCCs such as Mr. Wright, although realistically we would not anticipate such legislative changes to be made and certainly not in the immediate future.
There are also wider questions than whether such a change would be lawful. PCCs are elected. Critics of the PCC regime argue that the turnout in PCC elections was so low (around 15% and last week in the West Midlands by-election reportedly dropping to below 10%) that their democratic legitimacy is questionable. A counter-argument is that the turnout for the 2014 European Parliament Elections was as low as 35%. Does 35% represent a satisfactory engagement with democratic politics such that recall should not be contemplated where 15% does not? At what point is the line drawn? A power to recall PCCs is one thing, but at what point should there be a power to recall elected officials in general? To what extent should previous conduct in public office be relevant to an incumbent's role? And to what extent should government, MPs, the media and interest groups be able to force elected officials from office for conduct matters beyond the scope of the ballot box?
In 2010, Mr. Wright stood down as Director of Children's Services for Rotherham (a role which gave him overall responsibility for education and safeguarding) in response to failures at the Council. This week, a report on child abuse in Rotherham was released identifying that 1,400 children were sexually exploited between 1997 and 2013. The report suggests that there were multiple failures to act by the authorities. Mr. Wright was elected to the office of PCC for South Yorkshire in November 2012, when the new regime of PCCs came into force. Since publication of the report, he has faced widespread calls to resign his office as PCC, but has to date declined to do so (although he has resigned from the Labour Party and his Deputy PCC has also resigned).
PCCs are governed by the Police Reform and Social Responsibility Act 2011 ('the Act'). There are 41 PCCs in England and Wales, one for each police area (with a different system for London). The main function of PCCs is to hold Chief Constables to account, which includes a power for a PCC to call upon a Chief Constable to resign or retire. The Act does not give further guidance on when it may be appropriate to do so but it unlikely that a PCC could remove a Chief Constable unless the decision was defensible on general misconduct/public law grounds (see e.g. Rhodes v PCC for Lincolnshire [2013] EWHC 1009 (Admin), a case relating to a decision to suspend a Chief Constable).
The Act provides that each police area shall also have a Police and Crime Panel ('PCP') whose function is to hold the relevant PCC to account. PCPs may require the PCC to attend before the panel and answer any questions it deems necessary.
Disqualification and complaints
The circumstances in which a serving PCC may be removed from office are highly limited and, barring death or resignation, it is only in cases where a PCC is disqualified from holding office that they may be removed. The criteria for disqualification relates to both election to the office of PCC (for example, for individuals aged under 18, non-UK citizens, MPs, judges etc.) and to incumbents who fall foul of the Act's provisions (whether by taking up a disqualifying appointment or by virtue of committing what could loosely be described as 'conduct' matters). These relate to:
- Bankruptcy/insolvency/debt relief restriction;
- A conviction (when aged 18 or over) in the United Kingdom, Channel Islands or the Isle of Man, for an imprisonable offence; or
- By being incapable of being elected as a member of the House of Commons, or by being required to vacate a seat in the House of Commons under Part 3 of the Representation of the People Act 1983 (consequences of corrupt or illegal practices).
If any of these matters occurs, either the appropriate local authority or the High Court must declare the office of the PCC to be vacant.
In relation to complaints about PCCs, while the Act and associated regulations provide for the investigation of complaints, it is only in cases where a PCC is convicted that they may be disqualified and therefore removed from office. Schedule 7 of the Act and the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2012 make provision for serious complaints and conduct matters about PCCs to be investigated. Less serious conduct matters are subject to 'informal resolution' by the relevant PCP. PCPs must refer serious complaints for investigation by or under the direction of the IPCC. If the IPCC concludes that a criminal offence may have been committed and it considers it appropriate to do so, it shall notify the Director of Public Prosecutions (as happened this week in relation to the PCC for Bedfordshire). However, the Act makes clear that, in respect of PCCs, regulations may not provide for a relevant office holder to cease to hold office or to be required to do so.
In short, unless a serving PCC becomes subject to a bankruptcy/insolvency order or is convicted for an imprisonable offence (regardless of whether or not he or she is actually imprisoned) then that PCC cannot be disqualified and therefore forcibly removed from office. Non–imprisonable convictions (such as for being drunk and disorderly or for certain public order offences) and cautions for imprisonable offences would not result in disqualification.
Additionally, no government minister may direct a PCC's removal from office (unlike, for example, Local Authority Directors of Children's Services such as Haringey's Sharon Shoesmith in the wake of the Baby P tragedy). Moreover, the PCP itself has no discretion about whether a PCC should be removed or disqualified. The only coercive power the PCP has in relation to a PCC's conduct is to suspend them under s.30. Even then, while this is a discretionary power, it can only be exercised where it appears that the PCC has been charged with an offence which carries a maximum term of imprisonment exceeding two years.
What next?
PCCs enjoy considerable security and are not subject to the same level of scrutiny to which they may subject Chief Constables. It is reasonable to suggest that this is, at least to some extent, a corollary of the fact that they are elected to office. There is no power of recall over PCCs where there are serious concerns over their conduct. While similar plans were floated in relation to MPs after the expenses scandal, these appear to have been put to one side for the moment.
MPs on all sides have called upon Mr. Wright to resign. Several in the media have called for the abolition of PCCs. There has been significant discussion over whether the current legislation could be amended in order that a PCC could be removed from office or recalled somehow. While it could be argued that the retrospectivity of such changes would make them unlawful, such a move would not be without precedent in the regulatory world (see e.g. Antonelli v SoS for Trade and Industry and Holton v GMC) and the prohibition on retrospectivity under the ECHR focuses on criminal offences. Such changes may therefore be lawful and could be applied to PCCs such as Mr. Wright, although realistically we would not anticipate such legislative changes to be made and certainly not in the immediate future.
There are also wider questions than whether such a change would be lawful. PCCs are elected. Critics of the PCC regime argue that the turnout in PCC elections was so low (around 15% and last week in the West Midlands by-election reportedly dropping to below 10%) that their democratic legitimacy is questionable. A counter-argument is that the turnout for the 2014 European Parliament Elections was as low as 35%. Does 35% represent a satisfactory engagement with democratic politics such that recall should not be contemplated where 15% does not? At what point is the line drawn? A power to recall PCCs is one thing, but at what point should there be a power to recall elected officials in general? To what extent should previous conduct in public office be relevant to an incumbent's role? And to what extent should government, MPs, the media and interest groups be able to force elected officials from office for conduct matters beyond the scope of the ballot box?