WHY DO NON HOME
DEPARTMENT POLICE FORCES GET MISSED WHEN LEGISLATION IS BEING DRAFTED?
Note: The Home Department is the traditional
name for the Home Office and the Home Secretary is technically the Secretary of
State for the Home Department. In this
and other pieces I tend to use the titles interchangeably. I hope that by confusing my readers I can
distract them from the boring nature of the blog itself.
One part of my
work lies in the field of research. This
is not well paid and is a somewhat lonely pastime, but I do enjoy the thrill of
tracking down information in archives, dusty corners of the internet and
guiding people around bits of London. I find that there is often an overlap
between the past and present, indeed life is a continuum. The present is a product of the past. The influence of what has come before is
often apparent in what is done today. Frequently to understand the modern
operating context we have to get past the ‘that’s before my time’ mindset.
The need for
context came to mind recently when I was asked to answer a question about the
position of Non Home Department Police forces (NHDPF) and their extant
constitutional position. I have to be
careful in tackling such enquiries as I am not a lawyer and can claim no
qualification in academic research. All
I can offer is a lay opinion heavily influenced by my studies as an amateur
historian and as an observer of some of the more arcane aspects of policing.
The question I
was asked included ‘why do the government forget NHDPFs when drafting legislation’?
The answer has,
I think, two parts.
Firstly there
are plenty of examples where the process of drafting has, in error, missed out
NHDPFs. A good example can be found in
the process of railway privatisation in the 1990s when those charged with
pulling together the hugely complex legislation to divest the state of
ownership of its railway undertakings overlooked the legislation that gave
British Transport Police (BTP) some its powers.
A Bill was rushed through Parliament in 24 hours to preserve the (rather
unsatisfactory) status quo. (1) Other
examples touching BTP include provisions around football banning orders, road
traffic enforcement at level crossings, possession of firearms and counter
terrorism stop and search powers – all of which were subject to later
inclusionary amendments in primary legislation.
The Police Act
1996 has been amended several times to extend parts of the Act to some
NHDPFs, in certain circumstances. All
this creates a complicated backcloth to the work of these forces.
The reasons why
NHDPFs are ‘forgotten’ are many but the most common causative issue is the use
of language in drafting. NHDPFs are not
‘police forces’, except in so far as their parent Acts allow them to be. The term ‘police force’ is strictly defined
(for convenience reference here is only to England and Wales) both by the
Police Act 1996 and by the Interpretation Act 1978. (2) Consequently NHDPFs are
not included in legislation that relates to police forces, police areas, Chief
Officers of Police etc, unless they are specifically included. Civil Servants drafting legislation need to
take great care that they are creating the ‘desired’ effect in new Bills and
Regulations. Things are made ever so
slightly more complicated in that some legislation uses the phrase
‘constable’. NHDP officers are, of
course, constables – but only when operating in their constablewick. In most cases this concept in not solely
rooted in geography. For example a BTP
officer is a constable on the railway and elsewhere throughout Great Britain
when dealing with a matter connected to the railway but for other purpose BTP
officers are only constables in constrained circumstances (emergencies etc) or
when working on mutual aid etc to Home Office forces.
It is possible
perhaps to anticipate how some current oversights may be corrected in the near
future. The awful scandals that have
hammered the Metropolitan Police in recent years provide a reminder that NHDPF
officers who are dismissed for gross misconduct are not included on the ‘banned
list’ maintained by the College of Policing and are, in theory at least,
appointable as constables in Home Office forces. Surely the public interest requires this to
be changed in the near future?
As an aside it
is worth mentioning that there are some examples of NHDPFs being included in
legislation that leads to a bit of head scratching. Quite why BTP is included in the provisions
for maritime enforcement (including
boarding and seizing vessels) in the Policing and Crime Act 2017 is a mystery.
Part two of my
answer is more straightforward than the first.
NHDPFs are not often left out of legislation because they have been
overlooked. They are excluded because
legislators are wary of including organisations that are not seen as equal to
Home Department forces. Policing
legislation is overseen by the Home Office.
The Home Office position has remained consistent since the formation of
the Metropolitan Police and was much influenced by the Royal Commission of 1839
(3) (which was highly suspicious of ‘private’ attempts to enforce the law).
Put simply the
primary responsibility for policing rests with local chief constables and all
else is auxiliary and complementary.
Local Chief Constables have full jurisdiction over areas covered by
NHDPFs while the Chief Constables of NHDPFs have no responsibility for places
outside their limited demesne (4).
The Home
Office, and to a varying extent, local forces, have a near obsessive fear that
NHDPFs will trespass on matters which properly fall to local
constabularies. This fear is greater
than any felt about the growth of the private security sector or other non
police law enforcement agencies. To
unpick why this is the case is beyond the space allowed for this blog but it is
a resilient cultural component in policing and in the Home Office. In the 1970s during the debate about the rise
in serious disorder on the London bus network the Metropolitan Police and the
Home Office position was that it was better that the problem was left untouched
than that they support an extension of jurisdiction of BTP to buses. In the lead up to the creation of the Police
Covenant (5) a consultation supported the idea of the inclusion of NHDPFs but
the Home Office rejected the idea and prepared a Bill that referred only to the
Police Act forces. Inclusion was brought
about only at the last moment and after considerable lobbying. Even now the
NHDPFs are lumped together for the purposes of Covenant reporting even though
they have little operational commonalty.
The Home Office
is happy to see NHDPFs included in legislation and regulations when it suits
the needs of ‘their forces’. In the
recent right wing disorder BTP provided welcome mutual aid on the streets of
several cities as part of the national effort, this being possible because of
the inclusionary sections of the 1996 Act. But only a few months ago the Public Order Act
2023 limited BTP’s powers to protect transport and national infrastructure
within the strict geographical limits of railway owned property (6), rather
than throughout Great Britain for purposes connected with the railway. This constraint mirrors the current wording
of s60 Public Order Act 1994. (7). All
this is notable because it is a move away from a lengthy period where BTP
enjoyed powers ‘within the vicinity’ of the railway – powers that were removed
when BTP was ‘reformed’ in 2003. (8) The
removal of ‘vicinity’ was not brought about because of any problem – fears that the streets would be invaded by
BTP officers enforcing traffic legislation were not made out . There is no case law that touches the issue
and no significant problems were ever reported.
The cakeist
approach of the Home Office is seen in the production of statistics. Look for the current number of police
officers and you will see a figure that includes BTP (but not other NHDPFs). Research the number of armed officers and the
figures exclude all NHDPFs, even though the ‘big three’ (BTP CNC and MDP) all
have authorised firearms officers and for CNC and MDP firearms are carried by
nearly all officers on operational duties.
This week
(August 2024) a new Home Office Circular was produced. (9) It advises all forces of the updated
Regulations (10) for the appointment of Chief Constables (etc). Such regulations do not apply to appointments
in NHDPFs. The amendments were necessary
to include the demise of the old Senior Command Course and to describe its
replacement, but they also provided an opportunity to remove provisions that
prevent suitably qualified NHDPF officers from being appointed as Chief
Constables of HD forces unless they have first served as Assistant Chief
Constables in a HD force. The Home
Office decided not to remove this impediment.
An argument could be made that to police a city or a county requires
experience of local policing. To have
credibility the argument would work both ways.
Should an officer who has no experience of policing railways or defence
assets or nuclear sites be seen as qualified to act as a Chief Constable in
those sectors? In reality the two tier
nature of policing depicts those specialist
posts as being of lesser importance and therefore as ones that can be
safely occupied without experience. If
this, tit for tat, argument sounds like weak evidence for discrimination
against NHDPFs then a closer look at the Regulations that prevent NHDPF
officers becoming Chief Constables in local forces without moving in at a lower
rank reveals that in certain circumstances candidates can be appointed as Chief
Constables (or Commissioners of the City of London or of the Metropolis) without
any UK policing experience at all. In
certain circumstances the Regulations allow Chief Fire Officers to be appointed
as Chief Constables. Indeed while the
prospect of a qualified BTP or CNC Assistant or Deputy Chief Constable moving to
be the Chief of a local force is anathema,
it is permitted for, say, a colonel in the California Highway Patrol, or an Under Sheriff from Wayne County Police
Department to be so appointed. (11) That such appointments are unlikely (the
idea that US police chiefs could reinvigorate UK policing was one of the early
fantasies of the coalition government) is not the point.
What is the
position of NHPFs on this subject? It is
not clear and clarity is not helped by the fact that the senior ranks of those
forces now contain very few ‘home grown’ officers. Many of the occupants are of a very high
calibre and we see fewer instances of these forces being used as a pension
supplementing elephants’ graveyard. (12) But officers who have never worked in the
junior ranks of BTP, CNC or MDP have little experience of the professional
problems caused by the difference in
status between HD and NHD forces.
There have been
attempts by some of forces to clear up some of the anomalies. At best these efforts have resulted in a few
tweaks to legislation but no real progress has been made and as each year
passes the morass of legislation touching these forces gets deeper and more
complex. In 2013 the Home Secretary set
up a group to look at the issue but within weeks it faded away in the face of
hostility from within the Home Office and other Government Departments.
Of course
NHDPFs are not always blameless. They
too wish to both possess and consume baked goods. BTP in particular follows Home Office rules
when it suits the force and at other times retreats behind their status as the
unloved step child of the Department of Transport. . BTP pays the same rates of pay as other
forces (although it is not required to do so) but does not have the same
allowances or pension arrangements. For
generations BTP followed the requirements of the Home Office in relation to
probationer training but has in recent times abandoned this position meaning
that most other forces no longer recognise BTP initial training. The force has frequently ignored the rules
that bind other forces around the appointment of senior officers, even, in the
last few years, appointing a Chief Constable who was not qualified to College
of Policing Standards.(13). On a
practical level members of the force have tended to ignore their status as
employees of an organisation with constrained powers and (14) have convinced
themselves that they are the same as their local constabulary colleagues. This self delusion has been largely
unchallenged but it is an existential timebomb that ticks away in the background. (15).
All this
represents a meandering answer to a simple question. A more straightforward answer would be to say
that until the constitutional and legal status of NHDPFs are aligned with
forces established by the Police Act 1996 there will always be differences in
the way legislation applies to the 7,000 or so officers of these ‘other’
forces. It is about time that this was
sorted out.
Philip Trendall
August 2024
Notes
(1)
Transport
Police (Jurisdiction) Act 1994, 1994 c.8
(2)
The
Interpretation Act 1978, 1978 c.30 Sch One refers to s101 of the Police Act
1996, 1996 c.16 for definitions relating to policing. S101 makes it clear that a police force is a
force maintained by a local policing body.
This definition does not include the British Transport Police Authority.
(3)
See
A Web of English History: https://www.historyhome.co.uk/peel/laworder/constab.htm
for the general background. The
authors (who included one of the Commissioners of the Metropolis) were keen to
promote a single model of policing.
Their views have remained in the ascendancy ever since. Note their comment: “…. and that the practice of investing
private hands with public powers for their own use, is fraught with much
inconvenience, and some danger of mischief to the public by large associations
… [Accessed 22 August 2024]
(4)
This
is sometimes described as having ‘shared’ jurisdiction – but it is in reality a
one way street. There are a few minor
differences in powers, for example BTP’s right of access to otherwise ‘private’
parts of the railway – but even this is limited. See s31(2) Railways and Transport Safety Act
2003, 2003 c.20
(5)
The
covenant, or rather the requirement to report on it, was eventually contained
in the Police, Crime, Courts and Sentencing Act 2022, 2022 c.32
(6)
Public
Order Act 2023, 2023, c.15
(7)
Public
Order Act 1994, 1994. Both the 1994 and
2023 Acts only allow BTP to authorise stop and search etc on railway premises –
the alternative would be to allow the power to be used elsewhere in a matter
connected to the railway. Searching
someone already on railway premises is rather late if the aim is to protect
railway infrastructure. It also gives
rise to the so called ‘St Pancras paradox’.
This arises from an incident involving disorder between rival football
fans arriving at St Pancras and King’s Cross Stations. A BTP authorised s60 allowed fans to be
searched as they hunted for their opponents at the adjacent stations – but the
authorisation was only valid while the potential foes were in the stations or
if they crossed the Pancras Road by the railway owned subway. Those that chose to use the road crossing
could not be searched until re-entered railway property.
(8)
Railways
and Transport Safety Act 2003, 2003 c.20
(9)
Home
Office Circular 007/2024: Appointment of senior officers. Circular amending Annex B made under Police
Regulations 2003 to implement changes to the appointment of chief officers.
(10)
“Annex
B (Amendments) – Appointment of Senior Officers” is made by the Secretary of
State under regulation 11 of the Police Regulations 2003 (S.I. 2003/527),
following approval by the College of Policing in accordance with regulation 46
of those Regulations. This determination was made on 26 June 2024 and amends
the determination “Annex B – Appointment of Senior Officers” (“Annex B”). The
amendments come into force on 1 July 2024.
(11)
See
Schedule 8 to the Police and Social Reform Act 2011, 2011 c.13 and The
Appointment of Chief Officers of Police (Overseas Police Forces) 2014, 2014 No
2376
(12)
The
phrase ‘an elephants’ graveyard’ was used in the late 1980s by the Sunday Times
in a description of BTP Headquarters.
(13)
To
be clear this is not a reference to the current Chief Constable who is fully
qualified to serve in any force.
(14)
One
of the key differences between NHDPFs and their Police Act colleagues is that
most (if not all) NHDP officers are the holder of the office of constable AND are
employees. There is a clear
understanding that the former takes precedence over the latter. The Police Federation of England and Wales
(which does not represent NHDP officers) makes much of the fact that police
officers are generally not employees.
However in practical terms it is hard to see what difference this
employment status makes.
(15)
This
characterisation is of course mine. A
serious incident involving BTP that does not go well could easily lead to a
debate about whether the force can be trusted with the full range of public
duties. The failures (some of which were
unfairly attributed to BTP) surrounding
the Manchester Arena terrorist attack in 2017 sparked such a discussion. During discussions about the re-introduction
of firearms to BTP in 2011 one of the strategic issues was whether the force
could survive if a police shooting ‘went wrong’, especially if this occurred
outside the core jurisdiction of the force.
Scott
Trendall Ltd delivers consultancy, training and advice on subjects relating to
the management of major incidents, civil protection, railway policing and
counter terrorism. The company also provides
research services on related topics, family and police history. For further information please contact philip@scott-trendall.co.uk
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