The Act Commentary on Sections Part 1: Police Reform New section 40 of the Police Act 1996: Power to give directions in relation to police force
101.Subsections (1) and (2) of new section 40 (inserted by paragraph 27) provide that the where the Secretary of State is satisfied that a police force is failing to discharge any of its functions effectively, whether generally or in particular respects, or where he is of the view that a force will fail unless remedial measures are taken, he may direct the police authority to take specified measures to remedy that failure, or prevent that failure, as the case may be.
102.These subsections widen the sources of information which the Secretary of State can draw upon in deciding whether to exercise these powers. These wider sources of information could include the findings of a public inquiry into a force or the national performance assessments of police forces which are now produced. Previously, the only source of information which could be considered was a report from Her Majesty's Inspectorate of Constabulary.
103.Subsection (3) of new section 40 provides that the Secretary of State may, when directing specified measures under subsection (1) or (2), specify the submission to him of an action plan setting out the measures to be taken to remedy the failure or to prevent the failure (as the case may be). This short subsection replaces the longer and more protracted existing sections 41A and 41B of the 1996 Act which are repealed by paragraph 29. Experience since the 2002 Act has shown that in most cases where serious under-performance has arisen, there have been opportunities for improvements, and non-statutory plans intended to address under-performance have already been drawn up. However, this measure could be specified as part of the direction if no action plan existed.
104.Subsection (4) of new section 40 is intended to ensure that the power to give directions is only used as a last resort. A duty is placed on the Secretary of State to provide the police authority with the evidence that the force or part of the force is failing, and afford them the opportunity to make representations and any such proposals for the taking of remedial measures that would make the giving of the direction unnecessary. The Secretary of State will be under a duty to consider any such representations and any such proposals.
105.Subsection (5) of new section 40 provides that if the Secretary of State is satisfied that the police authority has already been made aware of the matters which give rise to the need for a direction to be given, had sufficient information to identify the remedial measures to address this without the need for a direction, and had a reasonable opportunity to take such measures, then the obligation on the Secretary of State to give the police authority further opportunities to deal with the issues at hand and to make representations on them (in subsection (4)) shall not apply.
106.Subsection (6) of new section 40 provides that the Secretary of State must, before directing specified measures under subsection (1) or (2), make Her Majesty’s Chief Inspector of Constabulary aware of the matters which give rise to the need for the direction and provide Her Majesty’s Chief Inspector of Constabulary with an opportunity to make written observations which will be published in such a manner that the Secretary of State feels appropriate.
107.Subsection (7) of new section 40 requires a police authority given a direction under section 40 to comply with it.