While most of us were focused on the fallout from the tumultuous general election result, on 9th June the High Court issued a judgment with significant implications for the power of police and crime commissioners (PCCs) to dismiss Chief Constables. The court judged that the South Yorkshire Police and Crime Commissioner Alan Billings acted unreasonably and disproportionately in suspending the then Chief Constable David Crompton (and later calling upon him to resign) over his response to the Hillsborough Inquest.

The PCC suspended Crompton after he issued a press release in the aftermath of the Inquest which referred to ‘other contributory factors’ (in addition to actions by the police) as causes of the deaths at Hillsborough. This was perceived by politicians, including both the Home Secretary and the Shadow Home Secretary, and the Hillsborough families as a further attempt by South Yorkshire Police to evade responsibility.

I will not go any further into the background of the case, which is summarised in the judgment itself. What I want to consider here are the reasons for the decision as set out by the court and their implications for police governance in England and Wales.

First, the court found that in exercising their powers under section 38 of the Police Reform and Social Responsibility Act PCCs must have regard to the operational independence of chief constables as set out in the Policing Protocol which accompanies the Act.

The court determined that in suspending a Chief Constable or calling upon him or her to resign it is not enough for a PCC to disagree with an operational decision of the Chief Constable.  If a chief officer were to be dismissed on those grounds the court found that operational independence would be undermined.   Rather the court judged that a PCC should only suspend a Chief Constable on the grounds that they made a decision that was unreasonable given the options before them.

Here the court has found itself wrestling with the inevitable tension between the conflicting principles of operational independence and democratic oversight and accountability.  In my view however it was never parliament’s intention that a PCC should only (or even) be able to dismiss a Chief Constable based on the reasonableness or otherwise of an operational decision.  For example, it may be that an operational decision is reasonable but also damaging to the reputation of the force or goes against local priorities as set down by the PCC in their Police and Crime Plan.  I think it was always the intention of parliament that a PCC could in those cases exercise their powers under section 38.

Note I am not saying that the PCC went about this particular suspension fairly or in an appropriate way. In particular the court noted that the Chief Constable was not given any warning that in making his statement he would be at risk of suspension and that this breached the spirit of the Protocol in terms of how the relationship between the two should work.  Based on what I have read I do not contest this.  Even if one concedes that Alan Billings got it wrong in this instance, my view is that a PCC should be able to suspend a Chief Constable if they judge, in a properly evidenced way, that the Chief Constable has damaged public confidence in the force.

Second, the court found that the PCC gave insufficient weight to the views of Her Majesty’s Chief Inspector of Constabulary (HMCIC) in reaching his (separate and later) decision to uphold the suspension.  The court argued that where, as it felt in this case, reasoned arguments were made by the Chief Inspector as to why the Chief Constable should not be suspended, the PCC should only depart from the Chief Inspector’s recommendation if ‘he had cogent reasons for doing so’.

I do not contest that the guidance requires that the PCC have regard to the views of the Chief Inspector, nor that the PCC should give clear reasons why he or she disagrees with HMCIC. Nor do I contest that in this instance the PCC should have engaged much more fully with the arguments of the Chief Inspector.

However, I do not believe that the Chief Inspector’s advice was ever intended to have the degree of weight it has been given in this judgment.   Rather I think the intention of ministers was that the views of the Chief Inspector should be one factor, alongside others, that should be taken into account by the PCC in reaching their judgment. With all due respect to HMCIC I do not think ministers intended that his views should be decisive.

None of this is to say that David Crompton was treated fairly nor that in this case the PCC came to the right decision.  The whole affair could clearly have been handled differently. Rather my concern is that the court’s reasoning alters the constitutional settlement in policing in a way that does not reflect the intentions of parliament.  My own view is that PCCs should have recourse to wider grounds for dismissal than those laid out by the court. It now falls to ministers to decide whether or not they agree.