Governance and accountability of counter terrorist policing - update

Report: 10
Date: 31 May 2007
By: Chief Executive

Summary

A report to the February Authority meeting outlined governance implications for the MPA and police authorities across England and Wales arising from the revised national structures for counter terrorist policing. This report provides an update of work conducted post February by the four, ‘host’ Counter Terrorist Unit police authorities; MPA, Greater Manchester Police Authority, West Yorkshire Police Authority and West Midlands Police Authority alongside APA and developments at Capabilities Board.

A. Recommendation

That

1. it be agreed that the MPA’s position continues to be supported at the Association of Police Authorities; and
2. that the Chief Executive provide an update to Members in September.

B. Supporting information

1. The APA Plenary on the 3 April 2007 agreed the proposals set out by the four authorities stating the need to establish co-ordination mechanisms to deal with the day-to-day management requirements for the newly formed Counter Terrorist Units (CTUs) and national protocols for dual accountability during large-scale national counter terrorist operations between all police authorities and the MPA. A copy of the paper is attached to this report in Appendix 1, however, in particular it agreed the following:

‘The resource, whilst national, places specific responsibilities on host authorities, alongside the statutory oversight functions of the Metropolitan Police Authority (MPA) in relation to the work of the MPS. These additional specific responsibilities for hub authorities can most sensibly be carried out in concert to secure compliance with statutory obligations consistently and effectively. To do otherwise would risk failing to discharge our specific responsibilities in respect of the hubs properly and is therefore non-negotiable. This co-ordination activity will be conducted in a way that supports and complements the governance roles of all police authorities for CT policing.

The framework within which we operate must firmly establish national accountability, taking into account operational command and control structures, whilst also recognising the need for each host police authority with specific legal responsibilities to fulfil its legal duties and obligations. It is for this reason that a sensible co-ordinated approach is required and it is for this reason that the four CTU Authorities will meet collectively to discharge these functions. The first meeting will take place on 18 April.

Co-ordination at this level is intended to be light touch and aimed at consistency. It is not intended to promote these authorities to an elevated position outside of APA structures. On the contrary, effective practical collaboration by host authorities will complement and enhance governance at the APA national strategic policy forum’.

2. It was therefore proposed that those authorities with statutory responsibility for oversight of the day to day asset under Section 6 of the Police Act 1996, meet on a regular basis to ensure that management of the asset is consistent, effective and compliant with all relevant PA obligations. This group will report back to all authorities through the APA forum on a regular basis, allowing for integrated governance.

3. The group of four authorities held it’s inaugural meeting on 18 April 2007, at which Len Duvall was elected Chair, a work plan approved and a terms of reference adopted. A further meeting on the 9 May 2007 concentrated on the development of performance management systems, national working protocols and current business development plans in ACPO TAM.

CTU Oversight Group

4. As agreed at APA Plenary, the potential for overlap and duplication of effort by police authorities is clear, unless scrutiny arrangements are carried out in a co-ordinated and cohesive manner. Accountability arrangements, at large, should pass through normal police authority channels. However, the proportion of allocated funds to CTU authorities alongside increased operational responsibilities of the CTU chief officer placed significant responsibilities on CTU authorities and thus placed a requirement for these authorities to establish co-ordinated national oversight arrangements, as explained in the paper to APA plenary.

5. There may be merit in due course in this group constituting itself as a formal joint committee of the four Authorities, but at this stage it is proposed that the group functions as a body, working in concert to ensure that as ‘host’ authorities they are compliant with statutory obligations and that scrutiny is exercised within a co-ordinated and common framework. Police forces will remain accountable to the ‘host’ police authority.

Capabilities Board – national position

6. The MPA remain committed to ensuring the lines of accountability for counter terrorist are clear, consistent and mirror governance arrangements for all policing matters. Strategic oversight should be carried out through existing accountability arrangements via police authorities. At the May meeting the Capabilities Board accepted this principle, however, in practice current accountability arrangements remain unclear. Police Authority Members at the Board have pressed for a speedy resolution, particularly in regard to financial management, resource allocation and community engagement. At the May meeting the MPA Members argued that CT specific grants set by the Home Office after ACPO TAM advice required in-depth scrutiny by police authorities prior to final Home Office decision. It was proposed that a small group of police authority representatives provide professional, tri-partite support, to assist in the effective and fair oversight of ACPO TAM strategic priority setting and annual budget allocation. The Board rejected the idea of a small group proffering an APA led approach. The CTU authorities are concerned such an approach will result a impractical, cumbersome processes and will therefore set out plans in more detail to the Board emphasising the need for effective governance.

Legal Clarity –command and control

7. The MPA and CTU authorities remain concerned over a lack of legal clarity with regard to governance and accountability for the new CT resource the issue of dual accountability; for example, particularly in relation to the MPA and MPS remain unresolved. The CTU oversight group have agreed to examine the current legal position in detail and are committed to establishing a contingency plan to provide dual accountability during exceptional circumstances (the MPA to provide national accountability under Section 96B Police Act 1996). There may also be occasions whereby an authority outside the CTU area; the CTU Authority and the MPA have accountability responsibilities working in parallel with operational command and control.

C. Race and equality impact

The Equality and Diversity impact of CT policing have been set out in previous papers. It remains the highest priority for police authorities to ensure that approaches to community engagement are recognised by police forces and conducted in an appropriate and positive manner.

D. Financial implications

The oversight of CT resource and budget allocation remains a critical aspect of police authority scrutiny. The report above sets out work lead by the MPA to ensure that the tripartite exercises professional oversight of the increased CT resource and provide the public with value for money oversight in relation to its duties to secure effective and efficient provision of policing services.

E. Background papers

None

F. Contact details

Report author: Sally Benton, MPA

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

Governance and accountability for the Counter Terrorism Units (hubs)

From April this year the funding level for national CT capability will rise to £143 million and in turn ACPO TAM have produced proposals to deliver increased national counter terrorist capacity and capability in a revised counter terrorist structure. In March ACPO Cabinet adopted the proposals along with nine key principles, set out in the accompanying APA paper, upon which a national framework for counter terrorist policing will develop. These include the enhancement of the nine existing regional intelligence cells (RICs) and the introduction of four Counter Terrorist Units (CTUs), which are an integrated national resource located in four host forces: West Yorkshire, Greater Manchester, West Midlands and Metropolitan. In essence this means that the units will be co-ordinated nationally, but allocated wherever required across England and Wales. However the host authority and force will act as ‘home’ to officers and staff in the CTU, and that brings specific and additional statutory responsibilities in those four areas.

Introduction

The APA discussion paper sets out fundamental principles to build a clear, consistent and effective approach to governance and accountability for counter terrorist policing.

Central to this approach is the recognition that oversight and engagement priorities at local levels are a responsibility for all police authorities. This includes oversight of counter terrorist policing within the force area, for example, by way of oversight of the force CT strategy under the Community Safety Plan, CDRP engagement, performance monitoring, and community engagement.

Some principles, for example in relation to the requirement that additional counter-terrorist monies should be accounted for by police authorities, can be best or only discharged by ‘host’ authorities and the MPA. This creates a need to establish co-ordination mechanisms to cover dealing with day-to-day management requirements and national protocols for dual accountability during large-scale national counter terrorist operations between all police authorities and the MPA.

Statutory responsibilities of ‘host’ forces and the Metropolitan Police Authority

The increased CT capacity provided by the Home Office is intended by government to be a national resource. CTUs in particular are national assets, not geographically specific and will be subject to national co-ordination, operating across the country, as investigations require. They are to be utilised for the national counter terrorist policing effort by reinforcing co-ordinated operations, currently led by the Metropolitan Police Service (MPS) through mutual aid and reflecting the MPS statutory duties regarding national and international policing. However the police service in each of the four CTU hub areas and nine RIC areas will act as a ‘host’ or ‘home’ for that portion of the national resource and police officers and staff within the CTU and RIC are to be on the payroll of the ‘host’ police authority.

The resource, whilst national, places specific responsibilities on host authorities, alongside the statutory oversight functions of the Metropolitan Police Authority (MPA) in relation to the work of the MPS. These additional specific responsibilities for hub authorities can most sensibly be carried out in concert to secure compliance with statutory obligations consistently and effectively. To do otherwise would risk failing to discharge our specific responsibilities in respect of the hubs properly and is therefore non-negotiable. This co-ordination activity will be conducted in a way that supports and complements the governance roles of all police authorities for CT policing.

The framework within which we operate must firmly establish national accountability, taking into account operational command and control structures, whilst also recognising the need for each host police authority with specific legal responsibilities to fulfil its legal duties and obligations. It is for this reason that a sensible co-ordinated approach is required and it is for this reason that the four CTU Authorities will meet collectively to discharge these functions. The first meeting will take place on 18 April.

Co-ordination at this level is intended to be light touch and aimed at consistency. It is not intended to promote these authorities to an elevated position outside of APA structures. On the contrary, effective practical collaboration by host authorities will complement and enhance governance at the APA national strategic policy forum.

It is therefore proposed that those authorities with statutory responsibility for oversight of the day to day asset under Section 6 of the Police Act 1996, meet on a regular basis to ensure that management of the asset is consistent, effective and compliant with all relevant PA obligations. This group will report back to all authorities through the APA forum on a regular basis, allowing for integrated governance.

Dual accountability

The host police authorities for CTUs and RICs have a duty under Section 6 of the Police Act 1996, to secure an efficient and effective police service. This includes within its scope duties in relation to the functions of the CTUs and RICs.

The Police Act 1996 also confers substantial responsibility for the discharge of national functions, including counter terrorism on the MPS, and places on the MPA the duty to hold the Commissioner to account for the discharge of those functions.

A counter terrorism investigation involves both the local force and the MPS. The chief officer of the force remains responsible for the investigation of crime falling within that area, however, when an operation is considered beyond the capability of any one force and the national asset is required, conduct of operations passes to the National Co-ordinator for Terrorism Investigation (NCTI) under command and control of ACSO. It follows that both the local police authority and the MPA should have a locus to scrutinise those operations.

For example, where a protocol is agreed, the local police authority may lead oversight in a particular case falling within its local area, alongside the MPA ,because it would also continue to exercise some scrutiny over that investigation, in light of its specific duty to hold the MPS to account for its national co-ordination role. This approach to accountability for police authorities would mirror operational command and control and would apply protocols for the oversight and de-briefing process developed through the APA strategic policy group.

An example often cited is a Forest Gate type event, conducted outside a CTU/RIC area by officers from a CTU force under the direction of the MPS National Co-ordinator. In such a case accountability would fall at a primary level to the local chief officer, responsible for an investigation and crime within his/her area, accountable to the local police authority. However, the National Co-ordinator would also be accountable for the conduct of his/her officers to both the local Chief Officer/Authority, the Commissioner and Metropolitan Police Authority. It would be entirely reasonable, and ought to be explicitly provided for in the relevant protocol, for the home authority to convene a meeting to learn lessons from such an operation, as it affected their local communities, and have a legitimate expectation that a representative of NCTI and of the MPA attend to cover their roles.

Host Police Authorities – Other statutory responsibilities

Funding

It is a core element of the Police Act 1996 framework that each police authority shall meet the costs of the police officers and police staff of that force. This means that expenditure to be incurred in relation to the CT hubs will be expenditure of the relevant police authorities.

Section 14 of the Act provides that the police authority shall keep a police fund and that all receipts shall be paid into the fund and all expenditure shall be paid out of the fund. The police authority must keep accounts of payments made into or out of the police fund. Whilst the national resource is ring fenced the host authority remains liable for expenditure from its policing fund in the usual way.

Health and Safety

Section 51A of the Health and Safety at Work Act 1974 makes provision for the application of Part 1 of that Act to the police. It provides that the chief officer of a police force is liable in relation to a member of his/her police service (section 51A(2)(a)). Forces and authorities designated as ‘hosts’ to the national asset remain liable under the Act in respect of officers and police staff within that force, in line with Health and Safety functions. With regard to police staff, it will be the police authority, which employs that member of police staff that is liable under section 3 of the 1974 Act. Areas of mutuality lie once again with dual responsibility of the Commissioner of Police of the Metropolis during certain national operations.

Civil Liabilities

Section 88 of the Police Act 1996 provides that the chief officer of a police service shall be liable in respect of any unlawful conduct of constables under his/her direction and control in the (purported) performance of their functions and shall be treated for all purposes as a joint tortfeasor. Claims against the chief officer are paid out of the police fund. In-addition a police authority has discretion to pay out of that fund damages awarded against a constable required to serve with the police service for its area by virtue of section 24 (section 88(4) and (5)(b)). Once again dual responsibility between the CT/RIC and MPA may pass.

Conclusion

The governance framework for national counter terrorist policing is inevitably complex. However, the success of the expansion of CT policing is dependent upon a co-ordinated approach.

Tackling terrorism is one of the most urgent and important priorities facing policing today. It is an issue that affects all areas of policing from neighbourhoods to specialist units. It affects all police services, all police authorities and all communities. It is critical that a new national resource is able to work across borders with the assistance, consent and support of all areas, including those without a CTU or RIC. Clear oversight and accountability frameworks enabling all police services and authorities to feed into counter terrorist governance are required. These must not, however, confuse legal accountability lines and result in burdensome bureaucracy; rather governance and accountability should work to provide the public with a robust, visible transparency and oversight through established legal frameworks.

We believe that some network management is required at the CTU if we are to respond properly to the issues outlined above. We hope you will support this principle and work with us in future to ensure that the new landscape for counter terrorist policing is integrated successfully across the UK.

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