The defenestration of Suella Braverman from the Home Office, after the Fareham MP wrote a wildcat Times article criticising the police’s handling of pro-Palestinian protests, has highlighted the delicate and ill-defined relationship between the executive and the police. To what extent, and how, can the Home Secretary, as the responsible minister for English policing (and for certain national law enforcement functions, like the National Crime Agency), involve herself with the work of the police?
As is so often the case in Britain, it is unclear where statute and custom about police independence becomes a constitutional convention. Some, like the barrister Adam Wagner, have gone so far as to claim that separation of powers between the executive and the police is as much a constitutional pillar of British democracy as that between the executive and the judiciary. It is true that elsewhere in the Commonwealth, codified constitutions do enshrine police independence and functions as constitutional values. For example, sections 196–197 of Papua New Guinea’s constitution make clear that, although a minister oversees the police, that minister has ‘no power of command within the Police Force” except where expressly provided by law, which helps ensure the police force maintains its mandate to be ‘impartial and objective’. Even where constitutions do not expressly mention police independence, other courts have inferred that there is a binding implication from other provisions that the police are free from executive interference. For example, in Canada, the Supreme Court ruled in R v Campbell (1999) that, because the rule of law was a fundamental principle of the constitution, the independence of police was necessarily a component of this. Unless police directly enforced and followed the law, the Court held, A.V. Dicey’s constitutional framing of the rule of law as the equal subjection of all classes to legal rules would be fatally undermined.
Dicey’s observations were of course made with regard to the UK and there is little doubt that a ‘thin’ view of police independence is deeply rooted in the common law. This, as expressed by Lord Denning, then Master of the Rolls, in R v Metropolitan Police Commissioner ex p Blackburn (1968), means that decisions to ‘keep observation on this place or that’ or to ‘prosecute this man or that one’ are solely matters for the police. I do not think even Mrs Braverman would dispute that a Home Secretary should not direct the police to arrest specific people or order surveillance or otherwise task individual law enforcement decisions. In this narrow sense, we can say with some confidence that there is a resilient constitutional convention of police independence. It would be unconstitutional for the Home Secretary to advise the police to arrest a specific person and equally unconstitutional for the police to obey such advice.
This, however, is not what got Suella Braverman sacked. Rather, it was the more vexed question of the broader relationship between the police and the minister at least nominally responsible for them. This issue places two ideas in tension: responsible government, by which the organs of the state are made accountable to Parliament, and the impartiality of law enforcement. This tension is not unique to the police: the role of the Attorney General (which Mrs Braverman also held) is a textbook case of balancing such considerations, as was the former role of the Lord Chancellor prior to the Constitutional Reform Act 2005.
There is also a tension present regarding the impartiality of HM Civil Service. Yet, while the constitutional guidance from the Ministerial Code and the Cabinet Manual deals with the boundaries of ministerial directions to impartial civil servants, the police (who, for a variety of reasons, are not part of the Civil Service) get no mention. In the absence of codified boundaries, history and statute become the next best guide for probing out a convention.
As is well-known, while the office of constable is ancient, the modern British police force begins with Home Secretary Sir Robert Peel’s creation of a uniformed and organised Metropolitan Police in 1829. The rest of the nineteenth century was spent largely in a process of centralisation, by which local authorities’ control and direction over the police was moved piecemeal to the Home Office. In one sense, this disentangled the police from often incompetent local interference (although local watch committees and magistrates retained a large measure of power), but it also nationalised the direction of the police and began repeated clashes between ministers and coppers. The 1880s and 1890s featured a series of resignations by short lived Metropolitan Police Commissioners, all of whom clashed with the Home Office. Meanwhile, the early twentieth century gave rise to fears over the police being too independent, culminating in the police strike of 1918–9 and the subsequent ban (still in force today) on police unionisation.
This abbreviated history sets out a pattern still recognisable today in clashes between Home Secretaries and the police. From these clashes, something resembling a convention developed about the proper constitutional balance. Writing in 1928, the civil servant Sir Edward Troup phrased it as a distinction between the ‘executive’ authority of the Commissioner and the ‘policy’ authority of the Home Secretary. Sir Edward defined ‘policy’ as ‘the means and methods of carrying out [police] duties and to the preparations to be made for doing this effectively’. On those matters, the police were subject to ‘general supervision and direction’ by the Home Office. That rule still underlies statutory directions to the police from the Home Secretary and exists behind informal advice and guidance. For Sir Edward, this system, although as undefined as anything in the British constitution, was a ‘successful reconciliation’ between police autonomy and a central management – in contrast both to continental systems and the American model of near complete autonomy of local police from national oversight. This balance remains the principle behind the English and Welsh system, even as police responsibilities have drastically expanded with fights against terrorism, drugs, human trafficking, motoring offences, and many other modern ills.
The catch, though, to this model may be familiar to observers of the British constitution. Sir Edward said this system was workable only ‘so long as the Home Office exercises its paternal powers with good sense and consideration and so long as the police forces act […] loyally co-operating with the Home Office’. In other words, the system depends on Good Chaps both in the Home Office and in uniform, and only by that can this delicate ambiguity (by which policy direction and the precise meaning of policy remain undefined) continue to function.
From this perspective, the troubling bit about the feud between the police and the previous Home Secretary is not the advice Mrs Braverman was tendering in her Times article (if we take her words at face value). Informal direction that the police should take care to ensure the policing of protests does not show partiality to one faction or another of a disputed political issue is indeed reasonable policy guidance from the minister responsible to Parliament for police policy. Rather, the issues arose in the fact that the trust and norms around this relationship had been broken to such an extent that the Home Secretary was complaining about the police in a newspaper rather than making an effort to work with them.
Such ruptures represent a severe threat to the unusual and distinctly British model of police regulation. If the existing system of a fragile national political balance between Home Secretary and police is to make it to the bicentennial of Peel’s work in June 2029 there will have to be, in Sir Edward’s words, ‘good sense and consideration’ on both sides of the divide.
Elijah Granet.
Elijah Granet studied politics at Columbia University and the University of Cambridge. He has worked as a law lecturer both in Germany and England, as well as working for the Harwood Institute in the US.
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