Chief Constable Dismissal Procedures

Liam Fox Excerpts

Thursday 29th October 2015 Commons Chamber

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

I am grateful for this opportunity to raise in an Adjournment debate the issue of the role of the Independent Police Complaints Commission and the police and crime commissioner in chief constable dismissal procedures. Inevitably, this relates to the recent experience of the Avon and Somerset constabulary and of its former chief constable, Nick Gargan.

The Avon and Somerset constabulary has a wonderful history and reputation. It is a fine police force, if not one of the finest in the country, and it deserves the best possible leadership. It has now been without a chief constable since May 2014, and there are concerns that more than £500,000 has been spent, and that the inquiry has been mishandled, in the ultimate removal of Mr Gargan.

The story started with a slew of lurid, even criminal, allegations. Although my hon. Friend the Member for Bristol North West (Charlotte Leslie) will cover in detail the failings of the IPCC, it is worth noting that it did nothing to stop rumours abounding. It continued to pretend that criminal charges were being considered when they were not, and used the Regulation of Investigatory Powers Act 2000 to investigate. One of the team examining the issues was the support commissioner, a Mrs Williams, who was not necessarily impartial as she herself was the subject of an earlier unrelated complaint from Mr Gargan.

Although in some ways the police and crime commissioner may have been a victim of the process, Mrs Sue Mountstevens is not herself without blame. She has an elected mandate to oversee the police force in Avon and Somerset. She used this, shortly after her initial election, to remove the previous chief constable and was then instrumental in appointing Mr Gargan. When the report on Mr Gargan was ultimately produced, recommending eight written warnings for misconduct, her initial reaction was to accept it, but she later changed her mind and applied under section 38 of the Police Reform and Social Responsibility Act 2011 to force the chief constable to resign.

This change of mind came about because of letters from superintendents and from the Police Federation indicating their lack of confidence in the chief constable. However, that correspondence must have been predicated on the IPCC report, and on leaked information pertaining to it, that we now know to be fundamentally flawed. So the lack of confidence in the chief constable was based on rumour and error, not on facts. This led to the removal of a second chief constable during this police and crime commissioner’s term of office, but it was done essentially because of the PCC’s willingness to bow to pressure, and not because of a mature considered judgment.

This leads me to the issue of the section 38 powers and how they were used. I have corresponded with Sir Thomas Winsor about this, and he has sent me a thoughtful letter and a copy of a valuable lecture that he gave in relation to these powers. In his letter, he says that the use of the powers in this instance does not involve double jeopardy and that

“the chief constable was therefore not dismissed for the misconduct of which he was found guilty; as said, he could not have been, because there was no finding of gross misconduct”.

That is to say that Mr Gargan was not fired for misconduct because it had not been gross misconduct. That is intelligent sophistry, but it is none the less sophistical. I disagree with it because the loss of confidence was instrumentally caused by the misconduct allegations and the punishment for misconduct. Additionally, a number of leaks relating to criminal activity and to some of the material found on Mr Gargan’s telephone led people to think that much more serious things had happened than were in fact proved.

[Dr Liam Fox (North Somerset) (Con)]

In short, is not what we have seen trial by media and smear, resulting in an irresistible pressure on a public servant to resign before the facts of the case were ultimately known or due weight and consideration were given to those offences?

[Mr Rees-Mogg]

My right hon. Friend, as so often, hits the nail on the head. The one block that there should have been to this, the police and crime commissioner, turned out to be weak in the face of this trial by media and this public pressure. That is deeply unsatisfactory, because it means that the loss of confidence in somebody who has been found not guilty may be sufficient to remove them from the job, so if someone throws enough mud and a little bit of it sticks then that could justify a lack of confidence, and thus leak, rumour and gossip replace hard fact, which risks the independence of the constabulary. In his own lecture, Sir Thomas Winsor said that

“sufficient security of tenure is essential to safeguard those aspects of a Chief Constable’s role that relate to operational independence. Operational independence would be seriously compromised by a power for a Police and Crime Commissioner to dismiss the Chief Constable at will.”

At the heart of our concern is the fact that a flawed process, a weak police and crime commissioner and the power of gossip allowed a chief constable to be dismissed. That must undermine the ability in future of chief constables to take difficult decisions if they know that unfounded or minor misdemeanours may be used to force them out.

[Mr Rees-Mogg]

I am grateful to my hon. Friend for his intervention. I know that my hon. Friend the Member for Bristol North West will make some remarks in relation to the vested interests that emerged through the course of this process, which we should be concerned about. We should note that the no confidence in the chief constable arose before the final publication of the report, so it had to be based on rumour and not on fact.

[Dr Fox]

Smear!

[Mr Rees-Mogg]

Yes, and smear. It has been a damaging process for confidence in the police service. It has been damaging to the Avon and Somerset constabulary. It has obviously been particularly damaging for Mr Gargan. It is against a long-standing tradition of English justice—this is the most important point—that somebody should be tried for the same offence twice. I know that Mr Gargan would like to meet the Police Minister to discuss these matters, so that Her Majesty’s Government are fully informed about all that has gone wrong in this process. That would be helpful. Furthermore, a more general review of section 38 powers is needed, and the role of the IPCC needs to be examined and the backbone of police and crime commissioners X-rayed to see what, if anything, they are made of. That may help to ensure that such a serious problem does not arise again.

[Charlotte Leslie (Bristol North West) (Con)]

I thank my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) for allowing me to speak. I will be brief as we have limited time.

Nick Gargan’s appointment to Avon and Somerset police was not without drama. The new PCC had controversially requested that the chief constable of eight years, Colin Port, re-apply for the post in a competitive process. Mr Port acrimoniously resigned and the police and crime commissioner appointed Mr Gargan as chief constable. Mr Port then attempted to block the appointment in court, but failed, and the force endured a period of stressful turbulence, which doubtless tested loyalties.

It is not my place to comment on whether Mr Gargan should have remained as chief constable, but I will illustrate serious procedural deficiencies, particularly within the IPCC. The support IPCC commissioner chosen was Mrs Jan Williams, formerly chief executive of Cardiff and Vale NHS board. Mrs Williams was herself the subject of a complaint to the IPCC by Mr Gargan over the IPCC investigation of the brutal killing of Bijan Ebrahimi, a diabolical incident for which Mr Gargan publicly apologised on behalf of Avon and Somerset police. She was certainly not an intuitive person to be a support commissioner of an “independent” investigation into the man who had been challenging her authority.

Unfortunately, Mrs Williams as support commissioner and Mr Tapp as lead investigator did little to allay concerns about bias in how they conducted the investigation. The independent misconduct panel report described their approach to the investigation as “blinkered”, and noted that no less than four key submissions by the IPCC “seem a little unreal” and that action taken by Mr Tapp

“reflects an overenthusiastic mindset”.

In July 2014, the IPCC publicly announced that the Gargan investigation was a criminal investigation, but it had earlier been established that there was not sufficient evidence to pursue criminal charges. However, the IPCC and the media continued to refer to “female victims” and the IPCC never corrected those reports, leading to loss of confidence in Mr Gargan on the basis of false allegations. The independent misconduct panel notes that the main alleged victim

“has no complaint about NG. She does not consider herself a victim. Her principal concerns have not been with him but with the reaction in the workplace. At all times, she describes NG’s behaviour and manner towards her as kind, courteous and polite.”

It goes on:

“She is not alone. In the un-used and until recently, undisclosed material, interviews with other women resonate with similar comment. It is a striking feature of this entire investigation that not a single female member of staff has made a complaint about NG”.

The IPCC did not notify the police and crime commissioner, or Mr Smith, the PCC chief executive officer, when it became clear that there was no criminal charge to answer. The report states:

“Despite the IPCC failing to secure admissible evidence from female witnesses in support of the original hearsay allegations, Mrs Williams and Mr Tapp did not fully reveal this to Mr Smith. The IPCC would speak of the quantity of witnesses who had been seen, rather than the quality of their evidence.”

The misconduct report goes on to say that the IPCC misled the PCC

“as to the likelihood of a criminal prosecution being brought”.

[Dr Fox]

Does my hon. Friend accept that the use of the phrase “insufficient evidence” in relation to possible criminal proceedings when what is meant is no evidence in relation to possible criminal proceedings is unforgivable and deeply unjust?

[Charlotte Leslie]

I have deliberately been very conservative in my description of what happened, but I absolutely agree with my right hon. Friend. This is one of the biggest disgraces I have seen in relation to policing.

Unbelievably, even when it was apparent that the original allegations had no admissible evidence, Williams promised a “hard-hitting report” regardless. Having found no evidence for such, Mr Tapp applied for powers under the Regulation of Investigatory Powers Act 2000 to seize Mr Gargan’s phone and communications, in clear breach of RIPA guidelines. It was only then that Mr Tapp and Mrs Williams were able to find additional complaints on data use.

Finally, let me go back to the whistleblowers who originally made the allegations. The misconduct panel report reads:

“It is surprising that on the inchoate and tenuous grounds available, whistleblowers with potential animus, giving belated, hearsay, non-particularised accounts, Mr Tapp should consider it appropriate to include Misconduct in Public Office...he had no rational basis for so alleging”.

What was this “potential animus”? We know, because the PCC leaked it in a breach of protocol that far outweighs what was alleged against Mr Gargan. We know that the whistleblower was a former work colleague of Mr Port, Mr Gargan’s predecessor, who had tried to block Mr Gargan’s appointment through the court.

It is hard not to see all the evidence as a serious indictment against the IPCC with implications not only for future chief constables, but for our constituents. We cannot repeat the scandalous circle of cover up that happened with the NHS in Mid Staffs and the Care Quality Commission. I ask the Minister to take any actions necessary to ensure that such a necessity to question the IPCC’s competence and independence never arises again.

[The Minister for Security (Mr John Hayes)]

That my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) is an ornament to all we do is well established. That he is a guardian of our liberties and freedoms is well known. But what is not so well known outside his locale is that he is a doughty champion of his constituents and their interests—as doughty as any in this House, matched by few, but matched by my hon. Friend the Member for Bristol North West (Charlotte Leslie) who, like him, leaves no stone unturned when it comes to highlighting the interests of her constituents and dealing with what they perceive to be unfairness and unreasonableness, and that is precisely what my hon. Friend the Member for North East Somerset in his view and mind has drawn to the attention of the House tonight. I make no comment on that and he would not expect me to comment on the particular details of the case, although I have much to say in the short time available to us.

As I am acting as a proxy for the Police Minister, it is a particular delight to see him sitting beside me. I know that he will watch over me with the gaze that he uses in dealing with all such important matters.

The leadership of our police forces is of central importance to the effective maintenance of law and order, and it is important that the people of England and Wales understand how decisions affecting the leadership are made and are scrutinised. We have heard from both my hon. Friends who have spoken and from those who have intervened. I note my right hon. Friend the Member for North Somerset (Dr Fox) in his place, as well as my hon. Friend the Member for Bridgwater and West Somerset (Mr Liddell-Grainger). The relationship between public and police depends on that absolute certainty—that trust—that things are done properly.

As I said, it would not be appropriate for me, and I do not intend, to address the specific case. Instead, I will respond to my hon. Friends’ remarks by setting out the principles underpinning the complaints and disciplinary system, and how that system works. It is well known that policing in England and Wales is built on the principles set down by Sir Robert Peel. For the convenience of the House, I wondered whether I might put those principles in the Library of the House following this short debate. Central to these principles is that

“the ability of the police to perform their duties is dependent upon public approval of police . . . actions”.

Although I may disagree with Peel on many things, particularly the corn laws, he had sagacious advice about the importance of trust and confidence in the force he established. He stated that

“the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence”.

Such is the community of trust between the public and the police. The moment that trust is lost, the public approval of police actions is in jeopardy, and policing as we know it is threatened. I say this not to be melodramatic, but to reinforce the fact that the police hold a very significant range of powers, and if they are to use those powers effectively, and maintain the Queen’s peace, the public must have the utmost trust in the police, and how they are led.

The election of police and crime commissioners marked the biggest change in police governance in living memory. PCCs give the public a direct say in how their forces are run, reinforcing the link between the public and police, and providing the public with a democratically elected voice in their local police force. This link between the public and the police is of central importance to the matters being considered here today, drawn to our attention by my hon. Friend the Member for North East Somerset. The chief constable of any force leads their force on behalf of the communities they serve. The PCC holds them to account on behalf of the public, and it is right that decisions relating to who leads that force are made by PCCs. It is vital that this central point is not lost in the debate we have here today.

Let me turn specifically to allegations of misconduct, and the regulations that govern how these are handled. The Government have been clear that the role of the Independent Police Complaints Commission is crucial in a system of police scrutiny and complaints that functions well and commands public confidence. The majority of misconduct allegations about chief constables are usually referred by PCCs as the “appropriate authority” to the IPCC for independent investigation. As an independent body, it is for the IPCC to decide whether to investigate an allegation about a chief constable following referral from the PCC. Ministers are, as I said, unable to comment on individual cases.

Last year, an independent review of the police disciplinary system led by Major-General Chip Chapman recommended that the IPCC should investigate all chief officer cases. The Government will shortly introduce legislation to implement that recommendation.

[Dr Fox]

Will my right hon. Friend give us an assurance that when the Government look at this legislation they will take on board this point: why should a good and decent public servant want to take on the role of chief constable when they can be dragged into the mud by smear and innuendo that turn out to have no basis in fact?

[Mr Hayes]

Smear and innuendo are never acceptable in any aspect of public service, and my right hon. Friend is right that the system must be robust in guarding against vexatious and unhappy claims. As I have said, I will not comment on the specifics of the case, but as a matter of principle he is, of course, right that the system needs to be sufficiently well designed to ensure that complaints that have merit are dealt with properly.

We have heard today, particularly from my right hon. Friend, about what might be described as “double jeopardy”—the time-honoured principle that people are not tried twice for the same thing—and it has been suggested that it should not be open to a PCC to call upon their chief constable to resign or retire when they have been subject to misconduct proceedings.

I think that it is important to note that the process of misconduct hearings, and the sanctions that may result, are rightly different and separate from the process set down in section 38 of the Police Reform and Social Responsibility Act 2011, which enables the PCC to call upon a chief constable to retire or resign. The PCC holds the chief constable to account on behalf of the public. They are best placed to make decisions on both the appointment and dismissal of a chief constable. We have set out a clear process that must be followed, and I shall come to it momentarily.