Five things every PCC needs to know - a lawyer's view
Though PCCs wield substantial power, that power is not without its limits. Over the last three and a half years, we have seen a range of legal issues arise for PCCs. In this article, we look at five essentials PCCs and their staff need to bear in mind as they endeavour to ensure that their constituents have the benefit of an efficient and effective police service.
The judge over your shoulder
As a public authority, a PCC's actions are subject to challenge and control by way of judicial review. Any decision or action which is beyond a PCC's statutory powers, which is irrational in legal terms, or which is reached in a procedurally unfair manner has the potential to be declared unlawful and quashed by the High Court. Since 2012, PCCs have been involved in challenges relating to decisions not to reappoint Chief Constables, to suspend a Chief Constable pending investigation of a disciplinary matter and to a decision not to appoint a civilian liaison officer due to concerns over vetting. The expense, administrative burden and reputational impact of high profile court proceedings can be substantial, and PCCs need robust decision-making frameworks and a keen understanding of the scope of their own authority to ensure that they use their powers in a way which can successfully withstand legal challenge.
Navigating the minefield
One of the essential functions of a PCC is to take action where there are concerns over their Chief Constable's conduct on the hopefully rare occasions where it may be necessary. Some newly elected PCCs may inherit 'legacy' matters from their predecessors. Others may find themselves in a situation where they need to decide on whether disciplinary action is necessary and, if so, how this should be pursued. Unfortunately, the legislation governing police disciplinary matters is piecemeal, complex and loaded with procedural requirements. Correspondingly, it carries a significant risk of error. Accordingly, it is of critical importance that PCCs and their staff are able to get to grips with these requirements, to follow them to the letter, and to make sure that their actions are proportionate and have a solid basis.
With control of a substantial budget, and with a democratic mandate to secure efficient and effective policing, PCCs have licence to be bold, creative and ambitious about what they can do for their area. Moreover, Parliament has given them broad statutory powers to do this, laying down wide-ranging general objectives, and passing legislation which provides that PCCs may do 'anything which is calculated to facilitate' the exercise of their functions. Any notion that a PCC's role is little more than one of keeping an eye on the Chief Constable has been firmly put to bed. Of particular note are a range of innovations pioneered in some police areas in relation to collaboration with other emergency services, a referendum on the police precept, taking responsibility for police complaints assessment, and setting up free schools. With government plans to expand the role, PCCs should not be slow to explore the possibility to do things differently.
…but choose wisely
As a public authority, PCCs are subject to specific requirements about how they buy services, supplies or works where the value of those contracts exceeds certain thresholds. The Public Contracts Regulations aim for the best mix of quality and effectiveness for the least financial outlay through a fair process of open competition. With such a substantial budget, PCCs cannot afford to get their procurement decisions wrong. Disappointed bidders will often be sizeable commercial undertakings with a developed understanding of the applicable procurement rules who are unafraid to challenge such decisions in court. It is imperative that PCCs have a solid understanding of the general requirements as well as targeted, timely, project-specific advice.
Who watches the watchers?
Because they have a mandate from the electorate, there are only a narrow range of circumstances in which PCCs can be forced from office (for example, on conviction for an imprisonable offence). Even so, they are subject to other kinds of formal (and less formal) oversight. The Home Affairs Select Committee has shown itself prepared to scrutinise (and criticise) PCCs and the policing governance system, they are answerable to their Policing and Crime Panel, well-informed commentators follow PCCs and their discharge of their responsibilities closely, and a number of matters have received widespread media attention. In addition, the fact that the role of PCC is still at an embryonic stage means that there is an increased likelihood of further changes to the system. The reaction to the Rotherham sexual abuse scandal (where the Home Secretary actively considered introducing sacking/recall powers) highlights how potent the non-legal checks on PCCs can be, and how important it is for PCCs to have a coherent narrative of their record and successes.
From a legal perspective, the most effective PCCs are those who have a solid appreciation of the boundaries of their powers and who, when making decisions, consider and weigh all available evidence in a fair way, with an open mind and can articulate their reasons. The existing and the newly incoming PCCs represent a breadth and diversity of experience and have differing agendas; whilst many would hope that a good dose of common sense and pragmatism can achieve the desired outcome, the five factors outlined above cannot be ignored in what is a substantial and significant public post created by statute.