WHY DO NON HOME DEPARTMENT POLICE FORCES GET MISSED WHEN
LEGISLATION IS BEING DRAFTED?
Note: The Home Department is the traditional name for the
Home Office and the Home Secretary is technically the Secretary of State for
the Home Department. In this and other pieces I tend to use the
titles interchangeably. I hope that by confusing my readers I can
distract them from the boring nature of the blog itself.
This blog is an updated version of a note prepared in August
2024
In research understanding context is vital .
The need for context came to mind recently when I was asked
to answer a question about the position of Non Home Department Police forces
(NHDPF) and their extant constitutional position. I have to be
careful in tackling such enquiries as I am not a lawyer and can claim no
qualification in academic research. All I can offer is a lay opinion
heavily influenced by my studies as an amateur historian and as an observer of
some of the more arcane aspects of policing.
The question I was asked included ‘why do the government
forget NHDPFs when drafting legislation’?
The answer has, I think, two parts.
Firstly there are plenty of examples where the process of
drafting has, in error, missed out NHDPFs. A good example can be
found in the process of railway privatisation in the 1990s when those charged
with pulling together the hugely complex legislation to divest the state of
ownership of its railway undertakings overlooked the legislation that gave
British Transport Police (BTP) some of its powers. A Bill was rushed
through Parliament in 24 hours to preserve the (rather unsatisfactory) status
quo. (1) Other examples touching BTP include provisions around
football banning orders, road traffic enforcement at level crossings,
possession of firearms and counter terrorism stop and search powers – all of
which were subject to later inclusionary amendments in primary
legislation.
The Police Act 1996 has been amended several times to extend
parts of the Act to some NHDPFs, in certain
circumstances. All this creates a complicated backcloth to the work
of these forces.
The reasons why NHDPFs are ‘forgotten’ are many but the most
common causative issue is the use of language in drafting. NHDPFs
are not ‘police forces’, except in so far as their parent Acts allow them to
be. The term ‘police force’ is strictly defined, (for convenience
reference here is only to England and Wales), both by the Police Act 1996 and
by the Interpretation Act 1978. (2) Consequently NHDPFs are not included in
legislation that relates to police forces, police areas, chief officers of police
etc, unless they are specifically included. Civil Servants drafting
legislation need to take great care that they are creating the ‘desired’ effect
in new Bills and Regulations. Things are made ever so slightly more
complicated in that some legislation uses the phrase
‘constable’. NHDP officers are, of course, constables – but only
when operating in their constablewick. In most cases this concept is
not solely rooted in geography. For example a BTP officer is a
constable on the railway and elsewhere throughout Great Britain when dealing
with a matter connected to the railway, but for other purpose BTP officers are
only constables in constrained circumstances (emergencies etc) or when working
on mutual aid etc to Home Department forces.
Similar provisions apply to the Ministry of Defence Police (MDP) and the
Civil Nuclear Constabulary (CNC). Port constables may, with the agreement of
the local chief constable have their jurisdiction increased within that Police
Area.
It is possible perhaps to anticipate how some current
oversights may be corrected in the near future. The awful scandals
that have hammered the Metropolitan Police in recent years provide a reminder
that NHDPF officers who are dismissed for gross misconduct are not included on
the ‘banned list’ maintained by the College of Policing and are, in theory at
least, appointable as constables in Home Department forces. After the
passage of several years the government has moved to close this gap in the
Crime and Policing Bill. One might have
thought that the easiest way of sorting this would be to include all holders of
the office of constable (and members of the National Crime Agency) in the
barred and advisory lists when the appropriate circumstances apply. For reasons unknown this was not thought
appropriate. Instead new barred and
advisory lists are to be created for each of the major NHDPFs meaning that all
involved in recruitment and transfers will have to consult each list separately. Officers in the smaller forces will still not
be included.
As an aside it is worth mentioning that there are some
examples of NHDPFs being included in legislation that leads to a bit of head
scratching. Quite why BTP is included in the provisions for maritime
enforcement (including boarding and seizing vessels) in the Policing
and Crime Act 2017 is a mystery.
Part two of my answer is more straightforward than the
first. NHDPFs are not often left out of legislation because they
have been overlooked. They are excluded because legislators are wary
of including organisations that are not seen as equal to Home Department forces. Policing legislation is overseen by the Home
Office. The Home Office position has remained consistent since the
formation of the Metropolitan Police and was much influenced by the Royal
Commission of 1839 (3) (which was highly suspicious of ‘private’ attempts to
enforce the law).
Put simply the primary responsibility for policing rests
with local chief constables and all else is auxiliary and, hopefully, complementary. Local Chief Constables have full jurisdiction over
areas covered by NHDPFs while the Chief Constables of NHDPFs have no
responsibility for places outside their limited demesne (4).
The Home Office, and to a varying extent, local forces, have
a near obsessive fear that NHDPFs will trespass on matters which properly fall
to local constabularies. This fear is greater than any felt about
the growth of the private security sector or other non police law enforcement
agencies. To unpick why this is the case is beyond the space allowed
for this blog but it is a resilient cultural component in policing and in the
Home Department. In the 1970s during the debate about the rise in
serious disorder on the London bus network the Metropolitan Police and the Home
Office position was that it was better that the problem was left unaddressed
than that they support an extension of jurisdiction of BTP to
buses. In the lead up to the creation of the Police Covenant (5) a
consultation supported the idea of the inclusion of NHDPFs but the Home Office
rejected the idea and prepared a Bill that referred only to the Police Act
forces. Inclusion was brought about only at the last moment and
after considerable lobbying. Even now the NHDPFs are lumped together for the
purposes of Covenant reporting even though they have little operational
commonalty.
The Home Office is happy to see NHDPFs included in
legislation and regulations when it suits the needs of ‘their
forces’. In the right wing disorder of 2024 BTP provided welcome
mutual aid on the streets of several cities as part of the national effort,
this being possible because of the inclusionary sections of the 1996
Act. But in the Public Order Act 2023 BTP’s powers to protect
transport and national infrastructure were constrained within the strict
geographical limits of railway owned property (6), rather than throughout Great
Britain for purposes connected with the railway. This constraint
mirrors the current wording of s60 Public Order Act 1994. (7). All this
is notable because it is a move away from a lengthy period where BTP enjoyed
powers ‘within the vicinity’ of the railway – powers that were removed when BTP
was ‘reformed’ in 2003. (8) The removal of ‘vicinity’ was not
brought about because of any problem – fears that the streets would
be invaded by BTP officers enforcing traffic legislation were not made out
. There is no case law that touches the issue and no significant
problems were ever reported.
The Home Office and the forces they oversee are cakeists of
the first order.
In August 2024 a Home Office Circular was produced.
(9) It advises all forces of the updated Regulations (10) for the
appointment of Chief Constables (etc). Such regulations do not apply
to appointments in NHDPFs. The amendments were necessary to include
the demise of the old Senior Command Course and to describe its replacement,
but they also provided an opportunity to remove provisions that prevent
suitably qualified NHDPF officers from being appointed as Chief Constables of
HD forces unless they have first served as Assistant Chief Constables in a HD
force. The Home Department decided not to remove this
impediment. An argument could be made that to police a city or a
county requires experience of local policing. To have credibility
the argument would work both ways. Should an officer who has no
experience of policing railways or defence assets or nuclear sites be seen as
qualified to act as a Chief Constable in those sectors? In reality
the two tier nature of policing depicts those specialist posts as
being of lesser importance and therefore as ones that can be safely occupied
without experience. If this, tit for tat, argument sounds like weak
evidence for discrimination against NHDPFs then a closer look at the
Regulations that prevent NHDPF officers becoming Chief Constables in local
forces without moving in at a lower rank reveals that in certain circumstances
candidates can be appointed as Chief Constables (or Commissioners of the City
of London or of the Metropolis) without any UK policing experience at all. In
certain circumstances the Regulations allow Chief Fire Officers to be appointed
as Chief Constables. Indeed while the prospect of a qualified BTP or
CNC Assistant or Deputy Chief Constable moving to be the Chief of a
local force is anathema, it is permitted for, say, a colonel in the
California Highway Patrol, or an Under Sheriff from Wayne County
Police Department to be so appointed. (11) That such appointments are unlikely
(the idea that US police chiefs could reinvigorate UK policing was one of the
early fantasies of the coalition government) is not the point.
What is the position of NHDPFs on this subject? It
is not clear and clarity is not helped by the fact that the senior ranks of
those forces now contain very few ‘home grown’ officers. Many of the
occupants are of a very high calibre and we see fewer instances of these forces
being used as a pension supplementing elephants’
graveyard. (12) But officers who have never worked in the
junior ranks of BTP, CNC or MDP have little experience of the professional
problems caused by the difference in status between HD and NHD
forces.
There have been attempts by some of forces to clear up some
of the anomalies. At best these efforts have resulted in a few
tweaks to legislation but no real progress has been made and as each year
passes the morass of legislation touching these forces gets deeper and more
complex. In 2013 the Home Secretary set up a group to look at
the issue but within weeks it faded away in the face of hostility from within
the Home Office and other Government Departments.
Of course NHDPFs are not always blameless. They
too wish to both possess and consume baked goods. BTP in particular
follows Home Office rules when it suits the force and at other times retreats
behind their status as the unloved step child of the Department of Transport. BTP
pays the same rates of pay as other forces (although it is not required to do
so) but does not have the same allowances or pension
arrangements. For generations BTP followed the requirements of the
Home Office in relation to probationer training but has in recent times
abandoned this position. Most other forces no longer recognise BTP
initial training. The force has frequently ignored the rules that
bind other forces around the appointment of senior officers, even, in the last
few years, appointing a Chief Constable who was not qualified to College of
Policing Standards.(13). On a practical level members of the
force have tended to ignore their status as employees of an organisation with
constrained powers and (14) have convinced themselves that they are the same as
their local constabulary colleagues. This self delusion has been
largely unchallenged but it is an existential timebomb that ticks away in the
background. (15).
All this represents a meandering answer to a simple
question. A more straightforward answer would be to say that until
the constitutional and legal status of NHDPFs are aligned with forces
established by the Police Act 1996 there will always be differences in the way
legislation applies to the 7,000 or so officers of these ‘other’
forces. It is about time that this was sorted out.
Philip Trendall
August 2024 Updated
Noember 2025
Notes
(1) Transport Police (Jurisdiction) Act
1994, 1994 c.8
(2) The Interpretation Act 1978, 1978 c.30
Sch One refers to s101 of the Police Act 1996, 1996 c.16 for definitions
relating to policing. S101 makes it clear that a police force is a
force maintained by a local policing body.
(3) See A Web of English History: https://www.historyhome.co.uk/peel/laworder/constab.htm for
the general background. The authors (who included one of the
Commissioners of the Metropolis) were keen to promote a single model of
policing. Their views have remained in the ascendancy ever
since. Note their comment: “…. and that the practice
of investing private hands with public powers for their own use, is fraught
with much inconvenience, and some danger of mischief to the public by large
associations … [Accessed 22 August 2024]
(4) This is sometimes described as having
‘shared’ jurisdiction – but it is in reality a one way street. There
are a few minor differences in powers, for example BTP’s right of access to
otherwise ‘private’ parts of the railway – but even this is
limited. See s31(2) Railways and Transport Safety Act 2003, 2003
c.20
(5) The covenant, or rather the requirement
to report on it, was eventually contained in the Police, Crime, Courts and
Sentencing Act 2022, 2022 c.32
(6) Public Order Act 2023, 2023, c.15
(7) Public Order Act 1994,
1994. Both the 1994 and 2023 Acts only allow BTP to authorise stop
and search etc on railway premises – the alternative would be to allow the
power to be used elsewhere in a matter connected to the railway. Searching
someone already on railway premises is rather late if the aim is to protect
railway infrastructure. It also gives rise to the so called ‘St
Pancras paradox’. This arises from an incident involving disorder
between rival football fans arriving at St Pancras and King’s Cross
Stations. A BTP authorised s60 allowed fans to be searched as they
hunted for their opponents at the adjacent stations – but the authorisation was
only valid while the potential foes were in the stations or if they crossed the
Pancras Road by the railway owned subway. Those that chose to use
the road crossing could not be searched until they re-entered railway
property.
(8) Railways and Transport Safety Act 2003,
2003 c.20
(9) Home Office Circular 007/2024:
Appointment of senior officers. Circular amending Annex B made under
Police Regulations 2003 to implement changes to the appointment of chief
officers.
(10) “Annex
B (Amendments) – Appointment of Senior Officers” is made by the Secretary of
State under regulation 11 of the Police Regulations 2003 (S.I. 2003/527),
following approval by the College of Policing in accordance with regulation 46
of those Regulations. This determination was made on 26 June 2024 and amends
the determination “Annex B – Appointment of Senior Officers” (“Annex B”). The
amendments come into force on 1 July 2024.
(11) See
Schedule 8 to the Police and Social Reform Act 2011, 2011 c.13 and The
Appointment of Chief Officers of Police (Overseas Police Forces) Regulations
2014, 2014 No 2376
(12) The
phrase ‘an elephants’ graveyard’ was used in the late 1980s by the Sunday Times
in a description of BTP Headquarters.
(13) To
be clear this is not a reference to the current (2025) Chief Constable who is fully
qualified to serve in any force.
(14) One
of the key differences between NHDPFs and their Police Act colleagues is that
most (if not all) NHDP officers are the holder of the office of constable AND
are employees. There is a clear understanding that the former takes
precedence over the latter. The Police Federation of England and
Wales (which does not represent NHDP officers) makes much of the fact that
police officers are generally not employees. However in practical
terms it is hard to see what difference this employment status makes.
(15) This
characterisation is of course mine. A serious incident involving BTP
that does not go well could easily lead to a debate about whether the force can
be trusted with the full range of public duties. The failures (some
of which were unfairly attributed to BTP) surrounding the Manchester
Arena terrorist attack in 2017 sparked such a discussion. During
discussions about the re-introduction of firearms to BTP in 2011 one of the
strategic issues was whether the force could survive if a police shooting ‘went
wrong’, especially if this occurred outside the core jurisdiction of the force.
Scott Trendall Ltd delivers consultancy, training and
advice on subjects relating to the management of major incidents, civil
protection, railway policing, counter terrorism and the role of Non Home
Department Police Forces. The company also provides research
services on related topics, family and police history. For further
information please contact philip@scott-trendall.co.uk
It’s a question I’m often asked by ex-colleagues, friends or public outside policing and quite often by those in Home Office policing roles, so I thought I’d try to answer it by sharing one snapshot from each day on duty over the past week or so as a British Transport Police Constable:
23rd Dec
While on foot patrol, my colleague and I were flagged down by door staff following an assault. The female involved spat at my colleague and attempted to spit at me but was unable to due to the application of a spit and bite guard. She was arrested for assaulting four people including 2 constables.
Boxing Day
Vehicle patrols across West Yorkshire led to us locating a cyclist who had been struck by a car, ensuring the appropriate emergency response and safeguarding.
28th Dec
Deployed on football operations, monitoring and managing fans transiting through York to keep travel safe and disruption to a minimum.
29th Dec
From clocking on at 7am, I dealt with a violent incident involving multiple assaults resulting in me being spat in the face twice and kicked countless times. One suspect was arrested for assaulting two police officers, assaulting a security guard, and resisting arrest. A second individual was also arrested for assaulting a shopkeeper and a PCSO during the same incident.
30th Dec
Working with colleagues to locate a wanted male, we found him working in rural North Yorkshire. He was arrested and produced at court the following morning.
31st Dec
Single-crewed to an ongoing fight, resulting in a foot chase. My uniform jacket and trousers were torn, my baton didn’t fully survive the encounter, and I picked up a fair few scrapes after a fall but the suspect was detained and arrested for affray.
1st Jan
A chance to catch up on paperwork and problem-solving. I located a shoplifter and gathered the necessary details to implement community protection measures aimed at preventing further offending on the railway.
2nd Jan
Arrested a male for a domestic-related assault after identifying him despite him changing his appearance. Originally described wearing an arctic-style jacket, he was later spotted in a T-shirt in 1°C temperatures, acting furtively after boarding a different train service to the one initially reported.
Different days. Different challenges. Same aim.
Whilst exhausting, this is what I joined to do and I have since treated myself to a well deserved brew and doughnut 🍩👮♂️