Monday, 22 October 2012

Why I will not be voting on Nov 15th

On November 15th, we will be asked to vote for the first elected Police and Crime Commissioners. This new post was created with the stated aim of "giving the public a say in cutting crime", and the government describes it as "being at the vanguard of its reforms". The theory is that an elected police chief will make the police better at serving in a way the public want.

This all sounds great, but there are two very serious problems with this idea.

  1. There is little that a voter can do to make a meaningful choice as to which candidate to vote for.
  2. The concept of electing the police, or voting on which crimes to enforce, is inherently dodgy. 

 I have just received my polling card for the election, and it urges me to go to to find out more on the candidates. Unfortunately, when you go to the site, it says that the information will not be available until October 26th. However there is a list of prospective candidates (for my area) here.

The problem is, all of them pretty much promise the same thing: tackling "anti-social" behaviour, whatever that means, some general commitment to fighting crime or protecting victims, and opposing police cuts. Needless to say, these pledges are virtually meaningless and are completely subjective and pretty much tautologies. Two candidates make slightly more specific pledges: The Justice and Anti-Corruption candidate says he will tackle "abuse of power", and the UKIP candidate says he will support getting rid of speed cameras (although I don't necessarily disagree, it is not completely clear this kind of specific pledge would even be lawful if it involves a blanket policy.) The UKIP candidate also states that there will be "zero tolerance" of anti-social behaviour and that anyone "intimidating" others will be arrested. This is mere populist waffle, as any given person's definition of anti-social or intimidating behaviour might not even involve any crime being committed. Conditions for arrest when a crime is suspected are also prescribed by law and Mr West would not appear to be free to vary them without an Act of Parliament.

Looking through this list, I have absolutely no way to choose one candidate over another except perhaps either along party lines: as a popularity vote for the party leader, or by reference to a divisive and populist issue such as speed cameras. Both methods are about the worst way to decide on the commissioner. The former tendency is notoriously responsible for making council elections a farce and leaving individual councillors unaccountable.

In short, all the candidates are pushing very similar populist agendas that have little real meaning.

My second point is that directly electing a police chief is inherently a bad idea. This is mainly because, if it achieves anything, it subverts the rule of law. In a democracy, we elect representatives who are accountable for the overall state of things. And in a democracy, not every issue is a legitimate question for simple majority decision. The concept of representative democracy recognises that some issues that concern everyone - that everyone has a stake in - should be democratically decided, but that certain other things are both a personal choice and protected by a right to privacy, even if a majority of people would disapprove. This was put best by Justice Robert H. Jackson in the American case West Virginia v Barnette, where it had been suggested that if Jehovah's Witnesses objected to a law that they be required to salute the national flag every day, they should try to change it at the ballot box. In striking down the law, Jackson said:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
I would not be at all surprised if a hypothetical PCC candidate, who had stood on a pledge to enforce this (no doubt popular) law, would have been overwhelmingly re-elected. By electing the person responsible for setting law enforcement priorities, we create the risk that unpopular minorities (perhaps Muslims, benefit claimants, atheists in some places, bankers, protesters, cyclists etc.) might be targeted disproportionately, possibly even for conduct that is quite legal but perceived as unpopular and thus "anti-social". The commissioner may not even have any desire personally to do this, but if he or she needs to get re-elected, it may be seen as a routine but necessary evil. Or, it's equally possible that some majority group which is committing crimes against others may be able to force the police to not enforce the law by a similar process.

It has been stressed by the Home Office that the new commissioners will not be able to exert any influence over day-to-day policing (such as decisions to arrest). This potentially somewhat mitigates (but does not remove) the concerns, but it also rather raises the question of: what exactly is the point of the job at all?

The Home Office describes the commissioner's duties as:-
  • "Being accountable to the electorate"
  • "Setting strategic policing priorities"
  • "Holding the force to account through [appointing] the chief constable, and consulting and involving the public"
  • "Ensuring the police respond effectively to public concerns and threats to public safety"
  • "Increasing public confidence in how crime is cut and policing delivered" 
and some other similarly waffling and rather circular points, which amount to the same thing. It is unclear by what means these duties can be enforced, to the extent they mean anything. Is it by the well established system of public law, and the courts, or only be this new election process? If the latter, it would actually be the case in practice that the duties would be whatever would get the commissioner re-elected, and this could potentially mean ignoring these constraints. One obvious way of doing this would be to use the power to appoint a new chief constable at any time to hold the present chief constable to ransom over every day-to-day operational decision, effectively making him or her into a puppet figure. Would the courts restrain a directly elected figure who tried to do this? There is no obvious answer in the legislation.

A possibly more interesting one is:
  • "Responsible for setting the budget, including the police precept component of council tax, and deciding how it should be spent. "
Needless to say, all the candidates in Hampshire who make any reference to funding in their manifesto are pledging both to oppose cuts to policing and to stop tax increases, which seems to be a bit of a dubious position to take. And the people ultimately responsible for those decisions now are already elected - and by a more meaningful system, becuase it requires them to be accountable for overall matters and not just these narrow points.

So why am I not voting? Because by voting, you are increasing the perceived legitimacy of this idea, regardless of who wins. If any candidate wins with a substantial turnout, it may superficially seem to give them legitimacy to impose a tyranny of the majority. Simply picking someone I agree with a bit more than other candidates is not going to change these serious concerns. But my hope is that if the turnout is very low, as is currently predicted, then the system will have to be abolished, as the winner will have no legitimacy. And it is unlikely it will make a lot of difference who wins anyway.

Councillor Ric Pallister is scathing of anyone making this decision. He claims "if you don't vote you shouldn't complain." He is wrong, for the reasons I have set out. I would go so far as to say (for this particular election only) "if you do vote, you shouldn't complain."

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