The Policing Protocol Order 2023

Statutory Instruments

2023 No. 649

Police, England And Wales

The Policing Protocol Order 2023

Made

12th June 2023

Laid before Parliament

13th June 2023

Coming into force

3rd July 2023

The Secretary of State makes this Order in exercise of the powers conferred by section 79(3)(b) and (5) of the Police Reform and Social Responsibility Act 2011(1).

In accordance with section 79(4) of that Act, the Secretary of State has consulted representatives of elected local policing bodies, representatives of chief officers of police of police forces maintained by those bodies, representatives of police and crime panels and such other persons as the Secretary of State thinks fit.

Citation, commencement and extent

1.—(1) This Order may be cited as the Policing Protocol Order 2023 and comes into force on 3rd July 2023.

(2) This Order extends to England and Wales.

Replacement of the Policing Protocol

2.  The Policing Protocol 2023 set out in the Schedule to this Order replaces the Policing Protocol issued under the Policing Protocol Order 2011(2).

Revocation

3.  The Policing Protocol Order 2011 is revoked.

Chris Philp

Minister of State

Home Office

12th June 2023

Article 2

SCHEDULE The Policing Protocol 2023

Purpose

1.  This Protocol is issued in accordance with the requirements of the Police Reform and Social Responsibility Act 2011 (“ the 2011 Act”). It replaces the Policing Protocol issued under the Policing Protocol Order 2011. It sets out to all Police and Crime Commissioners (“PCCs”) and the Mayor’s Office for Policing and Crime (“MOPAC”), Chief Constables, Police and Crime Panels and the London Assembly Police and Crime Panel how their functions will be exercised in relation to each other. An effective, constructive working relationship is more likely to be achieved where communication and clarity of understanding are at their highest. Mutual understanding of, and respect for, each party’s statutory functions will serve to enhance policing for local communities.

Scope

2.  This Protocol applies to every PCC in England and Wales and, unless specifically stated, a reference in the Protocol to a PCC includes the MOPAC, Mayors with PCC functions and Police, Fire and Crime Commissioners. The provisions of the Protocol extend exclusively to a Mayor’s PCC functions.

3.  This Protocol applies to every Chief Constable of a police force maintained by a PCC and unless specifically stated, a reference in the Protocol to a Chief Constable includes the Commissioner of Police of the Metropolis.

4.  This Protocol applies to every Police and Crime Panel in England and Wales and, unless specifically stated, a reference to a Police and Crime Panel (or simply the Panel) includes the Panel formed by the London Assembly.

5.  The staff of each PCC and the constables and staff of each police force are expected to have regard to this document.

6.  This Protocol does not legally bind the Commissioner of the City of London Police or the Common Council of the City of London, which continues to form the police authority for the City of London. However, they are encouraged to abide by the working principles of this Protocol.

7.  Where reference is made to both PCCs and the Common Council of the City of London, the Protocol describes them collectively as Local Policing Bodies.

8.  The establishment and maintenance of effective working relationships by these parties is fundamental. It is expected that the principles of goodwill, professionalism, openness and trust will underpin the relationship between them and all parties will do their utmost to make the relationship work.

9.  This Protocol does not supersede or vary the legal duties and requirements of the office of constable. Chief Constables remain operationally independent.

10.  All parties will abide by the seven principles set out in Standards in Public Life: First Report of the Committee on Standards in Public Life(3) (known as “the Nolan Principles”).

Legislative Framework

11.  The 2011 Act establishes PCCs within each force area in England and Wales with the exception of the City of London. The 2011 Act gives these PCCs responsibility for the totality of policing within their force area. It further requires them to hold the force Chief Constable to account for the operational delivery of policing including in relation to the Strategic Policing Requirement published by the Home Secretary.

12.  The 2011 Act does not impinge on the common law legal authority of the office of constable, or the duty of constables to maintain the King’s Peace without fear or favour. It is the will of Parliament and Government that the office of constable shall not be open to improper political interference.

13.  Each PCC and their respective Chief Constable are established in law as corporations sole within the 2011 Act. In doing so both the PCC and the Chief Constable are enabled by law to employ staff and hold funds. Chief Constables are charged with the impartial direction and control of all constables and staff within the police force that they lead. The staff of the PCC are accountable to the directly elected holder of that office to enable the PCC to exercise their functions.

14.  The public accountability for the delivery and performance of the police service is placed into the hands of the PCC on behalf of their electorate. The PCC draws on their mandate to set and shape the strategic objectives of their force area in consultation with the Chief Constable. They are accountable to the electorate; the Chief Constable is accountable to their PCC. The Panel within each force area is empowered to maintain a regular check and balance on the performance of the PCC in that context.

The PCC

15.  The PCC within each force area has a statutory duty and electoral mandate to hold the police to account on behalf of the public.

16.  The PCC is the recipient of all funding, including the government grant and precept and other sources of income, related to policing and crime reduction and all funding for a force must come via the PCC. How this money is allocated is a matter for the PCC in consultation with the Chief Constable, or in accordance with any grant terms. The Chief Constable will provide professional advice and recommendations.

17.  The PCC has the legal power and duty to—

(a) set the strategic direction and objectives of the force through the Police and Crime Plan (“the Plan”), which must have regard to the Strategic Policing Requirement set by the Home Secretary;

(b) scrutinise, support and challenge the overall performance of the force including against the priorities agreed within the Plan;

(c) hold the Chief Constable to account for the performance of the force’s officers and staff;

(d) decide the budget, allocating assets and funds to the Chief Constable; and set the precept for the force area using local schemes of governance which do not fetter the effective financial management of forces and enable the Chief Constable to deliver their role efficiently and effectively;

(e) appoint the Chief Constable (except in London where the appointment is made by the King on the recommendation of the Home Secretary);

(f) remove the Chief Constable subject to following the process set out in Part 2 of Schedule 8 to the 2011 Act and regulations made under section 50 of the Police Act 1996(4);

(g) maintain an efficient and effective police force for the police area;

(h) enter into collaboration agreements with other PCCs, other policing bodies and partners that improve the efficiency or effectiveness of policing for one or more policing bodies or police forces in consultation with the Chief Constable (where this relates to the functions of the police force, then it must be with the agreement of the Chief Constable);

(i) provide the local link between the police and communities, working to translate the legitimate desires and aspirations of the public into action;

(j) hold the Chief Constable to account for the exercise of the functions of the office of Chief Constable and the functions of the persons under the direction and control of the Chief Constable;

(k) publish information specified by the Secretary of State and information that the PCC considers necessary to enable the people who live in the force area to assess the performance of the PCC and Chief Constable;

(l) comply with all reasonable formal requests from the Panel to attend their meetings;

(m) prepare and issue an annual report to the Panel on the PCC’s delivery against the objectives set within the Plan;

(n) monitor all complaints made against officers and staff, whilst having responsibility for complaints against the Chief Constable.

18.  In addition, the PCC must not fetter the operational independence of the police force and the Chief Constable who leads it.

19.  In order to enable the PCC to exercise the functions of their office effectively, they will need access to information and officers and staff within their force area. Such access to any information must not be unreasonably withheld or obstructed by the Chief Constable and/or fetter the Chief Constable’s direction and control of the force.

20.  A PCC has wider responsibilities than those relating solely to the police force, namely—

(a) a specific responsibility for the delivery of community safety and crime reduction;

(b) the ability to bring together Community Safety Partnerships at the force level, except in Wales;

(c) the ability to make crime and disorder reduction grants within their force area;

(d) a duty to ensure that all collaboration agreements with other Local Policing Bodies and forces deliver better value for money or enhance the effectiveness of policing capabilities and resilience;

(e) a wider responsibility for the enhancement of the delivery of criminal justice in their area.

The Chief Constable

21.  The Chief Constable is responsible for maintaining the King’s peace, and has direction and control over the force’s officers and staff. The Chief Constable holds office under the Crown, but is appointed by the PCC except in London where the Commissioner and Deputy Commissioner of Police of the Metropolis are appointed by the King on the recommendation of the Home Secretary.

22.  The Chief Constable is accountable to the law for the exercise of police powers, and to the PCC for the delivery of efficient and effective policing, management of resources and expenditure by the police force. At all times the Chief Constable, their constables and staff, remain operationally independent in the service of the communities that they serve.

23.  The Chief Constable is responsible to the public and accountable to the PCC for—

(a) leading the force in a way that is consistent with the Code of Ethics and Oath of Attestation made by all constables on appointment and ensuring that it acts with impartiality (including political impartiality);

(b) appointing the force’s officers and staff (after consultation with the PCC, in the case of officers above the rank of Chief Superintendent and police staff equivalents);

(c) supporting the PCC in the delivery of the strategy and objectives set out in the Plan;

(d) assisting the PCC in planning the force’s budget;

(e) providing the PCC with access to information, officers and staff as required;

(f) having regard to the Strategic Policing Requirement when exercising and planning their policing functions in respect of their force’s national and international policing responsibilities;

(g) notifying and briefing the PCC of any matter or investigation on which the PCC may need to provide public assurance either alone or in company with the Chief Constable (all PCCs will be designated as Crown Servants under the Official Secrets Act 1989(5)), making them subject to the same duties in relation to sensitive material as Government Ministers);

(h) being the operational voice of policing in the force area and regularly explaining to the public the operational actions of officers and staff under their command;

(i) entering into collaboration agreements with other Chief Constables, other policing bodies and partners that improve the efficiency or effectiveness of policing, and with the agreement of their respective Policing Bodies;

(j) remaining politically independent of their PCC;

(k) managing all complaints against the force, its officers and staff, except in relation to the Chief Constable, and ensuring that the PCC is kept informed in such a way as to enable the PCC to discharge their statutory obligations in relation to complaints in a regular, meaningful and timely fashion. Serious complaints and conduct matters must be passed to the Independent Office for Police Conduct (IOPC) in line with legislation;

(l) exercising the power of direction and control in such a way as is reasonable to enable their PCC to have access to all necessary information and staff within the force;

(m) having day to day responsibility for financial management of the force within the framework of the agreed budget allocation and levels of authorisation issued by the PCC within the local schemes of governance. Such schemes should facilitate the PCC’s strategic direction of the force but should not fetter the operational independence of Chief Constables and should enable Chief Constables to deliver their role efficiently and effectively.

The Panel

24.  The Panel provides checks and balances in relation to the performance of the PCC. The Panel does not scrutinise the Chief Constable – it scrutinises the PCC’s exercise of their statutory functions. While the Panel is there to challenge the PCC, it must also exercise its functions with a view to supporting the effective exercise of the PCC’s functions. This includes—

(a) the power of veto (outside the Metropolitan Police District), by a two-thirds majority of the total Panel membership, over the level of the PCC’s proposed precept;

(b) the power of veto (outside the Metropolitan Police District), by a two-thirds majority of the total Panel membership, over the PCC’s proposed candidate for Chief Constable;

(c) the power to ask His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (“HMICFRS”) for a professional view when the PCC intends to dismiss a Chief Constable;

(d) the power to review the draft Plan and make recommendations to the PCC who must have regard to them;

(e) the power to review the PCC’s Annual Report and make reports and recommendations at a public meeting, which the PCC must attend;

(f) the power to require relevant reports and information in the PCC’s possession (except those which are operationally sensitive) to enable them to fulfil their statutory obligations;

(g) the power to require the PCC to attend the Panel to answer questions;

(h) the power (outside the Metropolitan Police District) to appoint an acting Police and Crime Commissioner where the incumbent PCC is incapacitated, resigns or is disqualified, and

(i) responsibility for complaints about a PCC, although serious complaints and conduct matters must be passed to the IOPC in line with legislation.

25.  In order to reflect London’s unique governance arrangements, the powers of the London Assembly Police and Crime Panel are different to those outside London in the following ways—

(a) the London Assembly has the power to amend the Mayor’s proposed budget for the Mayor’s Office for Policing and Crime by a two-thirds majority vote as part of the budget-setting process of the Greater London Authority (“GLA”);

(b) in London, if the Mayor is incapacitated, resigns or is disqualified, the Deputy Mayor of London would occupy the office of Mayor, and thus the Mayor’s Office for Policing and Crime, under the provisions of the Greater London Authority Act 1999(6) (“the 1999 Act”);

(c) the London Assembly Police and Crime Panel does not have a formal role in the appointment or dismissal of the Commissioner of Police of the Metropolis or other senior police officers;

(d) the London Assembly Police and Crime Panel has the power to veto the appointment of a Deputy Mayor for Policing and Crime if the individual is not an Assembly Member, and has other statutory powers under the 1999 Act in relation to the Mayor‘s Office for Policing and Crime as a functional body of the GLA;

(e) complaints against the holder of the Mayor’s Office for Policing and Crime, and the Deputy Mayor for Policing and Crime if he is an Assembly Member, will be dealt with in accordance with the GLA’s existing standards regime, which operates under local government legislation.

26.  The Chief Constable retains responsibility for operational matters. If the Panel seek to scrutinise the PCC on the PCC’s strategic oversight of an operational matter, the Chief Constable may, where necessary and at reasonable notice, be invited to attend alongside the PCC to offer factual accounts and clarity (if needed) of the Chief Constable’s actions and decisions. The accountability of the Chief Constable remains firmly to the PCC and not to the Panel.

The Home Secretary

27.  The establishment of PCCs has given the police greater freedom to meet local priorities and enabled the public to hold the police to account. The Home Secretary, as the person responsible to Parliament for cutting crime, protecting the public and protecting our national borders and security, has an important role in working with PCCs and Chief Constables to ensure the policing system works effectively.

28.  The Home Secretary is ultimately accountable to Parliament and charged with ensuring the maintenance of the King’s Peace within all force areas, safeguarding the public and protecting our national borders and security. The Home Secretary has reserved powers and legislative tools that enable intervention and direction to all parties. These powers may be used, in line with statutory tests and public law principles, in exceptional circumstances when it is determined by the Home Secretary that such action is necessary in order to prevent or mitigate risk to the public or national security. Such powers and tools will not be used to interfere with the democratic mandate of the PCC within a force area, nor seek to interfere with the office of constable or operational independence more generally, unless the Home Secretary is satisfied on the advice of HMICFRS that not to do so would result in a police force failing or national security being compromised.

29.  The Home Secretary is responsible for setting the national, strategic direction of policing and holding the policing sector to account for these commitments. This includes ensuring all parts of the policing system work together effectively. To do so, the Home Secretary may invite PCCs and Chief Constables and their representative bodies to attend national policing governance and oversight boards.

30.  The Home Secretary retains the legal accountability for national security and the role that the police service plays within the delivery of any national response. The Home Secretary has a duty to issue a Strategic Policing Requirement that sets out what are, in their view, the national threats at the time and the appropriate national policing capabilities that are required to counter them. PCCs and Chief Constables must have regard to the Strategic Policing Requirement and PCCs should take into account national policy when delivering their police and crime plans.

31.  In order to ensure that the Home Secretary is equipped with the information required to respond to the public and Parliament, PCCs and Chief Constables should expect the Home Secretary to ask for information about matters pertinent to policing, without compromising the principles of operational independence or local accountability and in accordance with the Home Secretary’s statutory powers.

Operational Matters

32.  The operational independence of the police is a fundamental principle of British policing. It is expected by the Home Secretary that the professional discretion of the police service and oath of office give surety to the public that this shall not be compromised.

33.  The current arrangements are defined in part by the 2011 Act.

34.  Section 2 of the 2011 Act provides that a police force, and the civilian staff of a police force, are under the direction and control of the Chief Constable of the force. Section 4 makes identical provision for the Commissioner of the Metropolitan Police.

35.  The direction and control of a Chief Constable will include—

(a) the ability to issue a warrant to an attested officer with which that officer may exercise their police powers;

(b) decisions in relation to the appointment and dismissal of officers and staff;

(c) decisions concerning the configuration and organisation of policing resources (or) the decision whether, or whether not, to deploy police officers and staff;

(d) total discretion to investigate or require an investigation into crimes and individuals as he or she sees fit;

(e) decisions taken with the purpose of balancing competing operational needs within the framework of priorities and objectives set by the PCC;

(f) operational decisions to reallocate resource to meet immediate demand, and

(g) the allocation of officers’ specific duties and responsibilities within the force area to meet the strategic objectives set by the PCC.

36.  This list is not exhaustive and is by way of illustration only. The Chief Constable is expected to ensure that their PCC is regularly informed of their decisions and operational activity in a timely manner so that the PCC can hold the Chief Constable to account for the totality of policing within their force area, including the operational delivery of the police service. The direction and control of the Chief Constable does not just remain under the scrutiny of the PCC but is open to investigation and scrutiny by the IOPC within the parameters of their terms of reference.

37.  The PCC and Chief Constable must work together to safeguard the principle of operational independence, while ensuring that the PCC is not fettered in fulfilling their statutory role. The concept of operational independence is not defined in statute, and as HMICFRS has stated, by its nature, is fluid and context-driven.

38.  The relationship between the PCC and Chief Constable is defined by the PCC’s democratic mandate to hold the Chief Constable to account, and by the law itself: primary legislation and common law already provide clarity on the legal principles that underpin operational independence and the Office of Constable.

39.  In order to respond to the strategic objectives set by the PCC and the wide variety of challenges faced by the police every day, the Chief Constable is charged with the direction and control of the Force and day-to-day management of such force assets as agreed by the PCC.

40.  This Protocol does not fetter the ability of the IOPC to issue separate guidance on the distinct meaning of ‘direction and control’ as it is used in Part 2 of the Police Reform Act 2002(7)in the context of police complaints.

Financial Responsibilities

41.  The PCC is ultimately accountable to the public for the management of the police fund. The PCC and Chief Constable share a responsibility to provide effective management of the policing budget and to secure value for money on behalf of the public that they both serve.

42.  The Chief Constable has day to day responsibility for managing their allocated budgets after they have been approved by the PCC. The Chief Constable must ensure that the financial management of their allocated budget remains consistent with the objectives and conditions set by the PCC.

43.  The working financial relationship between the PCC and their Chief Constable is set out in the Financial Management Code of Practice issued from time to time by the Home Secretary under statute.

Resolving differences

44.  The PCC is a publicly accountable individual who together with their Chief Constable will need to establish effective working relationships in order to deliver policing within England and Wales. Where differences occur, they should be resolved where possible locally between the PCC and Chief Constable. Professional advice may be offered by HMICFRS.

Review

45.  The Home Secretary has a duty to issue the Policing Protocol, to which all parties must have regard when discharging their functions. This Protocol will be subject to periodic review.

46.  When there is a need to vary or replace this Protocol, the Home Secretary is under a duty to consult with those parties bound by this Protocol, and any other person that the Home Secretary sees fit before any changes are made.

EXPLANATORY NOTE

(This note is not part of the Order)

Section 79 of the Police Reform and Social Responsibility Act 2011 (c. 13) requires the Secretary of State to issue a Policing Protocol. This Order replaces the Policing Protocol, issued under the Policing Protocol Order 2011 (S.I. 2011/2744), which it revokes, with the Policing Protocol 2023.

The Policing Protocol makes provision about the ways in which relevant persons should exercise or refrain from exercising functions so as to encourage, maintain or improve working relationships or limit or prevent the overlapping or conflicting exercise of functions. “Relevant persons” for these purposes are the Secretary of State (in the exercise of policing functions), elected local policing bodies (namely police and crime commissioners, including Combined Authority Mayors exercising police and crime commissioner functions, and the Mayor’s Office for Policing and Crime), chief officers of police forces maintained by elected local policing bodies, and police and crime panels. These persons must have regard to the Policing Protocol in exercising their functions.

The Policing Protocol 2023 updates and revises the Policing Protocol.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private or voluntary sector or community bodies is foreseen.

(1)

2011 c. 13.

(2)

S.I. 2011/2744.

(3)

Cm. 2850.

(4)

1996 c. 16. Section 50 was amended by paragraph 3 of Schedule 22 and Part 8 of Schedule 28 to the Criminal Justice and Immigration Act 2008 (c. 4), section 3 of the Policing and Crime Act 2009 (c. 26), section 82(12) of, and paragraphs 1 and 32 of Schedule 16 to, the Police Reform and Social Responsibility Act 2011, paragraphs 22 and 23 of Schedule 8 to the Public Service Pensions Act 2013 (c. 25), section 123(1) of the Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), and sections 29(1) and (2) and 48(3) to (6) of, and paragraph 65(1) and (2)(a) of Schedule 9 to, the Policing and Crime Act 2017 (c. 3).

(5)

1989 c. 6.

(6)

1999 c. 29.

(7)

2002 c. 30.