Police, Fire & Crime – by consent? Now is the time to ask
In light of the recent announcement by the Home Office of a review of police and crime commissioner (PCC) powers that promises to give the public a greater say over policing, the Institute is set to embark on a ground-breaking piece of work to understand whether PCCs are adopting a best practice approach to fulfilling their statutory duties.
Since PCCs are directly elected to be the voice of the people and to deliver on the people’s priorities, there will be concern about what the outcome of the review could mean in terms of the need for greater public consultation. The review will also no doubt be evaluating whether incumbent PCCs are currently putting the law-abiding silent majority who voted for them at the centre of their decision making.
Usually, at this time of year, PCCs should be preparing to gather views about policing priorities, precepts, and turning their attention to developing the next police and crime plan. For police, fire and crime commissioners (PFCCs) with additional responsibilities for fire and rescue, they will also be thinking about following a parallel or joint exercise to develop the integrated risk management plan as part of their fire and rescue plan annual refresh.
It may also be timely to secure commissioning intentions or review service delivery for commissioned service contracts. PCCs will be aware that commissioned services based upon service user feedback lead to better outcomes and increased trust and confidence in policing.
As the nation emerges from lockdown and the impact of the COVID-19 pandemic, we are seeing that the public has more interest than ever in public service delivery. Not for a long time, possibly since the post-war period, has the public been so grateful to public servants and key workers, and never before have they had so much time to consider their own contribution to society.
We have seen a huge rise in the number of people willing to volunteer and create social capital in their local community, and there has been greater interest in how the public purse is being spent.
Communities have also mobilised behind the Black Lives Matter (BLM), and there will be public priorities coming to the fore as a result of the pandemic that have not previously been considered – such as the policing of mass gatherings, the wearing of face coverings, and expectations about the enforcement of self-isolation.
Now is a critical time to plan and shape the ‘new normal’. PCCs will be seeking to better understand public opinion on priorities, developing 2021/22 budgets and Police and Crime Plans, and turning their attention to how these duties can be discharged while remaining legally safe and reputationally intact. This will be critical in creating a new narrative that resonates with the majority in manifestos and preparations for the May 2021 elections.
The changing landscape
Ordinarily, engagement specialist staff in the office of the PCC would be gathering public views using data collated in satisfaction surveys, the British Crime Survey, or victim satisfaction surveys, which would be analysed alongside primary data gathered through face-to-face conversations and online surveys.
There will be established mechanisms in place to gather feedback from protected groups, and attention will be paid to local socio-demographics backed up by crime and incident mapping and intelligence-led policing.
This year is different. There is a new challenge in developing alternative digital methods of opinion gathering in preparedness for the predicted second wave of the pandemic, without excluding the ‘seldom online’ or socially disengaged in this process.
Public meetings, roadshows and other traditional methods will be much more complex to organise safely. There are the usual requirements relating to equality and diversity, but a greater public interest in the wake of BLM and other high-profile stories and crimes which have impacted locally.
The challenge faced when initiating any public dialogue will be how to balance newly emerging expectations of policing – covering issues as diverse as public compliance with the wearing of face masks, and the dispersal of gatherings (which we have seen hit the headlines) – with more prevalent issues such as anti-social behaviour, broken windows theory indicators, neighbourhood policing priorities, and the less visible aspects of policing including cybercrime, serious and organised crime, and human trafficking.
The pending Home Office review will have a broad scope and PCCs will be called upon to provide evidence and examples of best practice, which should help to inform election manifestos and commitments for the future.
In order to remain legally safe and reputationally intact, PCCs must discharge their statutory duties and overtly demonstrate that they have done so. There are specific duties in primary legislation pertaining to public involvement in policing and fire, in setting the priorities and precept. Case law also places additional tests on the processes undertaken and the way decisions are made.
The real risk of legal challenge
Police and crime commissioners are tasked with gathering the views of the local community on policing and crime and incorporating these into their police and crime plan. The same applies to PFCCs in their fire and rescue service integrated risk management plan.
Police and crime panels (PCPs) have a role in reviewing those plans and ensuring that local priorities have been considered. Their effectiveness in discharging this duty is in the depth and strength of the information provided about who participated in the consultation and what they said. The panel will, therefore, need to understand how those views were gathered, any unintended consequences (positive or otherwise) on local policing, and the potential impact on protected groups.
But what if a PCP does not agree that the PCC’s duties to consult have been sufficiently executed? The panel has the ability to establish sub-committees and informal task and finish groups to investigate an issue in greater depth. Of course, the panel has specific powers to make recommendations to the PCC, and this will apply whether the recommendations come from task and finish groups, or from more formal set-piece events in committee.
Either way, they will be played out in public and may capture the imagination of campaigners or journalists, resulting in uncomfortable headlines and potentially damaging reputations just before the next elections.
Risk assessments can help to manage this risk by considering the likelihood of a legal challenge to this process and the potential for a resultant judicial review. The worst-case judgment in court would be a clear instruction to ‘stop, start again and do it properly’.
However, there are benefits to be reaped from undertaking a robust consultation process in the first place. This will avoid the financial and resource impact of defending a legal challenge, along with the reputational damage that can ensue and stick, only to be recalled by opponent candidates at the next election.
The Home Office Policing Protocol states that the PCC should provide the ‘local link’ between the police and the public, working to translate the legitimate desires and aspirations of the public into action. This in itself creates a legitimate expectation for the public that their views, when consulted, will be given conscientious consideration, and that failure to do so could be tested under the Gunning Principles in a court of law.
The public appetite for legal challenge
As campaigners get smarter at bringing legal challenges, it’s important to make sure that robust processes are in place and that the leadership is committed to delivering service change proposals to a safe outcome.
2018 saw a landmark case in policing when a university lecturer who was the victim of a violent attack urged High Court judges to overturn a decision to close police stations.
The background of this legal case should be of interest to all PCCs. In common with other police forces, the Metropolitan Police needed to make huge savings in its budget. Unsurprisingly, it led to a review of the premises they occupy and whether they still needed over-the-counter services at police stations.
The High Court agreed to hear a crowdfunded judicial review application from Paul Kohler, questioning the legality of the consultation process, and the complainant was successful! The case raised important issues about the way in which major consultations are analysed and the extent to which decision-makers can rely on such analyses.
The point here is that the case – and how it was brought to court – demonstrate that the public is now able to mobilise funds and the energy to bring a legal challenge.
Questions for consideration
There may be practical difficulties when planning a public involvement strategy in the current climate with many public engagement specialists still working from home, but it’s still possible to create an effective engagement plan.
Communications staff are busy with aspects of the COVID-19 messaging that need to reach wide audiences. Everyone is under pressure. Are there workarounds and techniques that can shorten the traditional consultation cycle-time and yet still meet legal and political requirements?
For many PCCs, the key question is how to effectively engage with a representative population of consultees when the ‘new-normal’ precludes much of the traditional face-to-face dialogues that have been integral to mainstream consultation practice?
There is, however, a need to widen the debate. More voices need to be heard. Most importantly, there is a need to hear the ‘seldom-heard’.
The pandemic is already known for disproportionally affecting many of the poorest and disadvantaged in the community. Their views need to be heard; in any case, the 2010 Equality Act makes it a legal requirement to have ‘due regard’ to their interests.
The answer to this question will be in the skills and capacity of the team charged with creating, implementing and analysing the consultation, which will need to provide sufficient information for the PCC to make informed decisions. Do the OPCC, force, and any outsourced service providers have the right skills and capacity to undertake the task effectively enough to avoid a legal challenge?
Whatever the outcomes of the consultation, delivery cannot be provided in isolation. PCCs may wish to engage in joint consultation with their fire and rescue service, health authority and local government partners, and will wish to minimise consultation fatigue and ‘not another survey’ syndrome.
Are the right partnership relationships in place to understand joint public sector priorities?
This year, development of policing plans, fire and rescue service integrated risk management plans and council tax precepts need to be as transparent as possible and adopt a consultative approach with key stakeholders as well as victims of crime and the public at large.
This must be a fundamental characteristic of the overall PCC’s involvement strategy. It should also have a secondary aim of informing the Home Office review of PCC powers.
The pressure of time should not deter PCCs from devising rapid but responsible consultations, and they should promote their willingness to listen to the argument before making decisions, particularly if they may cause significant behaviour change affecting community safety and policing delivery.
Failure to consult effectively will risk an erosion of public support and trust at a critical time when the threat of the pandemic is still real. It may also lead to legal challenges on the grounds of legitimate expectations.
The Consultation Institute urges incumbent PCCs to ask themselves the following questions:
- How can PCCs effectively engage with a representative population of consultees when the ‘new-normal’ precludes much of the traditional face-to-face dialogues that have been integral to mainstream consultation practice?
- Do the OPCC, the force or outsourced service providers have the right skills and capacity to undertake the task effectively enough to avoid a legal challenge?
- Are the right partnership relationships in place to understand joint public sector priorities?
Article originally appeared on Policing Insight.
This article is based on the Institute’s latest briefing paper which explores the key issues highlighted throughout this article in further detail. The Institute is hosting a virtual roundtable event for those working in the Police, Fire and Rescue sector and would like to invite you to register your interest in attending the session.