The constitutional consequences of Mrs Braverman

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The constitutional consequences of Mrs Braverman

Suella Braverman has decided to set fire to a core aspect of the British model of policing, the operational independence of the police from ministers.*

The Home Secretary has done two things which undermine the constitutional position of the police. First, she has been applying overt pressure on the Commissioner of the Metropolitan Police to ban a protest march in London on Saturday. She has been trying to interfere, in explicit terms, in operational decisions that are reserved for the police, not politicians. Indeed in calling on Sir Mark Rowley to take an action which in his view does not meet the necessary legal threshold, she has been asking him to act unlawfully.

In doing this she is undermining an institutional arrangement that has been in place since the Statute of Winchester in 1285. The basis of our policing model is the common law office of constable: police constables are not employees of the executive, but independent public office holders appointed by the Crown.

The operational independence of chief constables is simply an extension of this idea, as Lord Denning noted in his definitive 1968 judgment, referring to the Commissioner of the Metropolis:

“Like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State,….I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and the honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant to anyone, save of the law itself.”

(R. v Commissioner of Police of the Metropolis, 1968)

This model is not without its problems (it is one of the reasons that it is so difficult to remove bad police officers, because they are not subject to employment law), but the benefits to British society have been considerable. Police officers are supposed to make their own independent judgments as to how to enforce the law in respect of citizens, applied fairly to all and free from political interference. While the police do not always live up to that standard, it is well understood to be the standard to which they operate and it constitutes a bulwark in defence of the rule of law and in the protection of liberty.

It is this precious constitutional principle that the Home Secretary has been undermining in recent days. This follows a series of letters to chief constables in the last year, telling them to ramp up the use of stop and search powers and that they should avoid what she considers to be ‘woke policing’. She has been pushing against the principle of operational independence for some time. This week she has driven a coach and horses through it.

The second thing she has done which is dangerous is that when Sir Mark Rowley resisted her calls to ban Saturday’s protest, she then attacked the police as being biased in favour of one side in the so-called ‘culture wars’. She is thus politicising the police and undermining their reputation for fairness and independence in the application of the law. She is also substantively wrong in my view. It will be news to those arrested at the Clapham Common vigil following the murder of Sarah Everard that somehow the Met was biased in favour of the left in its application of Covid laws. I interact with a lot of chief officers in the course of my work and I have never in fifteen years encountered any who

do not understand the importance of them remaining above party politics and applying the law even handedly.

We can only speculate as to the Home Secretary’s motives in taking this course of action. But the consequences of her actions could not be more serious: to have undermined the constitutional position of the police in our democracy. For a Home Secretary to do that is extraordinary and dangerous. Enough is enough.

* I hesitated before writing this piece for two reasons. For one thing, although we have sometimes criticised government policy, I have never in my capacity as Director of the Police Foundation personally criticised a minister. It is vital that the Foundation remains above party politics. However, I do not consider to this to be a party political matter. It is about the role of the police in our society and it is vital that those who write and comment on policing make their considered views known. For another thing it may well be that by the time this piece is published the Home Secretary will no longer be in post. However, the actions of the Home Secretary in recent days have been so reckless in respect to the constitutional position of the police and their relationship to government, that it would be wrong not to put a response on the record.