Are the police still impartial?

The only silver lining of Churchill's encasement is that he didn’t have to suffer the indignity of seeing thugs perform Nazi salutes in front of him. It's a toss up whether this was more grotesque than the hoodies of the week before who threw bikes and bottles at police. Rightly, there was the proper police presence over the weekend to prevent widespread crime and disorder. But why did police surrender to one mob and not the other? 

The job of police is to uphold the law. But is that always still the case? When officers failed to prevent the toppling of Edward Colston’s statue in Bristol they ignored Robert Peel’s fifth principle of policing: 

‘To seek and preserve public favour, not by pandering to public opinion; but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws.’

But it isn’t only those on the beat who appear to have forgotten this rule. Mike Barton, former chief of Durham Constabulary, told me that because of cultural diversity, ‘impartial’ must now be interpreted with reference ‘to all communities’, rather than as ‘slaves to law’. Among senior officers, he is unlikely to be alone in holding such views. This presents a problem. And the upshot is that impartiality becomes its opposite: partiality. In other words, to treat people equally, we must treat them differently. This idea has seeped into police consciousness.

Politicisation is the brother of partiality. In its initial defence of genuflecting police at the protests earlier this month, Scotland Yard said that its officers ‘care deeply about justice and equality’. In Bristol, Superintendent Andy Bennett of Avon and Somerset Police said before the Black Lives Matter event that ‘it’s important to stand up for fairness, equality and inclusion and we fully recognise the reasons why people will want to gather at College Green’. 

Superficially, these sentiments sound wonderful. But what does equality mean? And should the police be the ones enforcing it? Bennett might say it is important for his officers to stand up for fairness, but what type of fairness? If this were to mean paying the same level of tax and equality were to mean dishing out rewards regardless of input, and inclusion were to mean Cressida Dick is Commissioner of the Met regardless of her talents, then it’s easy to see how these might invite significant disagreement.

Sometimes police support for causes is subtler. In a letter to headteachers following school climate protests Superintendent Andy Bennett described the issue as ‘important’ and ‘naturally attract[ing] the interest of young people who want to show they care about their planet and to influence those in power to do more’. He also described the organisers of the Bristol-based youth led protests as having ‘done a good job in mobilising young people to attend’.

Sir Peter Fahy, the former chief of Greater Manchester Police, sees confusion around the role of the police in protests. He says that they ought to facilitate protest but not allow it to disrupt the community. The question to ask, however, is how the police manage to justify giving protesters such licence. A significant part of the answer is the 1998 Human Rights Act.

The issue with the Human Rights Act, which incorporated the European Convention into law, is that it affords the police (and the judiciary) great latitude in deciding how and when to intervene in a protest. It does this by introducing a test of proportionality that was previously an alien concept in English law. The Act itself does not expressly state such a test, but the UK courts have followed European case law, where the proportionality principle is fundamental in interpreting and applying the Act.

If a police commander agrees with the aims of a particular demonstration, the law permits him to simply set the bar for intervention very high. This is arguably what happened at an Extinction Rebellion protest at Cambridge in February. Superintendent James Sutherland admitted protesters were breaking the law by obstructing the highway, but characterised the protest as peaceful and hid behind the Human Rights Act.

But this characterisation was wrong, since the protesters were openly committing criminal damage, literally overseen by the constabulary. The Convention articles themselves and their exceptions are so easy to play off against each other in the ritual dance so beloved of lawyers and judges that a competent police commander will not find it difficult to justify his or her operational decisions to intervene or not. 

Funnily enough when Barton and I discussed the Cambridge disruption, he commented that ‘lots of people will say family life will be adversely affected’ by climate change. I’m not even sure a lawyer would try using abstract future denial of Article 8 – the right to respect for private and family life, home and correspondence – to rationalise police action now.

The Human Rights Act allows police to follow their ideological inclinations under the pretence of impartiality, if they so wish. The Police Reform Act 2002 – another Blairite gift – altered the police oath in England and Wales from serving ‘without fear or affection, malice or ill will’, to ‘with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people’. The old words describe virtues; the new ones mostly refer to ideology. The effect should not be underestimated: words matter. As Barton told me, he often referred to the oath at family events for his officers, impressing upon them the importance of human rights. Indeed, he claims that one cannot be against human rights, but only against their application. This neatly illustrates the point, and would be news to Jeremy Bentham, Roger Scruton, and a proportion of the legal profession, including the current Attorney General.

The practical consequences of this are quite disturbing, particularly if we are entering a period of more frequent protests. For if officers are going to express support for a cause beforehand, then we are entitled to question the motives for operational decisions on the day. After the submersion of Colston’s statue, Supt. Bennett explained that ‘Our policing style from the outset was low key’. Should we read ‘low key’ alongside ‘It’s important to stand up for fairness, equality and inclusion’?

The remarks of the Chief Constable of Avon & Somerset the following day show the rot produced by the intersection of partiality and politicisation. ‘Can you imagine scenes of police in Bristol fighting with protesters who were damaging the statue of a man who is reputed to have gathered much of his fortune through the slave trade?’

But what about the part of the oath to protect property? It’s ludicrous for police to think that by doing their job they would be the provocateurs. Yet this is the inevitable consequence of police moving away from the Peel principles. Police need rescuing from philosophical entanglement before public trust is further eroded.