The Operational Independence of the Police: A Fundamental Principle in Foreign Legal Systems and Should Apply in Israel as Well

The bill to amend the Police Ordinance has been compared to practices in other countries - however it ignores the fact that other countries have in place procedures that guarantee the operational independence of the police when it implements the policies laid down to guide its actions

Flash 90

When submitting the bill to amend the Police Ordinance, Knesset Member Itamar Ben-Gvir declared that, “subordination of the police to the policies set by the minister can be found in the laws of various countries in the world, such as Australia, where the Minister of Police can instruct the police commander with regard to general policy related to police operations; New Zealand, where the police commander is subordinate to the minister, except in cases of concrete investigations or actions; and in England, where in addition to the fact that every district police commander is subordinate to the elected authority in the district, the National Crime Agency is subject to the strategic priorities set by the Home Secretary, and from now on, in Israel as well”.

A brief and partial survey of current legislation on this matter in the countries referred to by MK Ben-Gvir, with the emphasis on the independence of the police, reveals that the issue is much more complex than he and others portray it when they use comparative law to dissipate the unease of the public, the opposition, and legal professionals with regard to the bill. Our research, as presented below, finds that in addition to subordination of the police to the policy set by the political echelon, the fundamental principle of the legal systems to which Ben-Gvir referred, also guarantees the operational independence of the police when it implements the policies laid down to guide its actions. This is true both with regard to law enforcement and to other aspects of its activity, with emphasis on maintaining public order and defending human rights. In this research, we do not aim to provide an exhaustive survey of the how the principle of police operational independence is implemented in different legal systems, even in those like our own; the survey focuses on the countries mentioned in the discussion thus far.

Background

There is an inherent institutional tension between the desire to preserve the operational independence of the police from political actors on the one hand, and the democratic interest of police accountability to the political echelon, the other branches of government, and the public, on the other. For this reason, even if police policies are formulated by the political echelon, democracies have adopted various ways to guarantee an adequate measure of independence in its operations. For example, the Committee of Ministers of the Council of Europe has stated that “the police organization shall enjoy sufficient operational independence from other state bodies in carrying out its given police tasks, for which it should be fully accountable.” The Committee explained as follows:

The police belong to the executive power; they cannot be fully independent of the executive, from which they receive instructions. However, in carrying out their given tasks the police must follow the law and are, in addition, entrusted with discretion. In exercising their powers, the police should not receive any instructions of a political nature. Operational independence should apply throughout the organization. Such independence is an important feature of the rule of law, as it is aimed at guaranteeing that police operations are being conducted in accordance with the law, and when interpretation of the law is needed, this is done in an impartial and professional way.

A similar conclusion was adopted by the Organization for Security and Co-operation in Europe; that is, even though police policy is subject to the direction of civil authorities and must be held accountable for its actions, the police leadership should exercise control over operational management.

England and Wales

Even though policing policy in England is set by elected officials, the police's operational independence is considered to be a fundamental constitutional principle regarding policing, despite the criticism voiced about the vagueness of this concept. The Home Secretary sets national policing policy with regard to strategy and is required by the law to publish the Strategic Policing Requirement (SPR) from time to time – a document that enumerates national security and appropriate national policing capabilities to counter them. It is further stipulated that the chief officers of the police must refer to this document when exercising their functions; that before issuing the SPR, the secretary must consult with persons who reflect the position of the senior police officers and those who represent the position of local policing bodies. Since the police reform, that was launched about a decade ago, it has been stipulated that as a general rule, the Home Secretary will refrain from intervening in the regional policing model, whereby the police operate in 43 separate units, except when there is a danger to national security. Each of these police units is headed by a chief constable, who operates under the elected local officials—Police and Crime Commissioners who chart the policy for the unit. The elected commissioner is empowered to set specific policies for the regional police, including setting objectives, keeping in mind the emphases set by the Home Secretary in the SPR.

For every elected echelon, chief constable, or official in charge of the police, the law guarantees that the individual who heads the police unit will have complete independence in operational matters. Thus it stipulates that Parliament and the Government must avoid "improper political interference" in police operations; with regard to the Home Secretary, it states that police independence is a fundamental principle of British policing, and that the Secretary is expected to guarantee that the police's professional discretion will not be compromised. With regard to the Police and Crime Commissioner, the law specifically states they “must not fetter the operational independence of the police force and the Chief Constable who leads it”.

New Zealand

In New Zealand as well, where the Police Commissioner is responsible to the Minister of Police with regard to the department's objectives, the commissioner is guaranteed independence by the law. The Policing Act, 2008 states that the Commissioner is responsible to the Minister in administrative matters , and that the commissioner must provide the minister with a report on the agency’s conduct in these matters, including on its budget and meeting its objectives, and the effectiveness with which it does so. At the same time, the law (section 16(2)) states that the commissioner “must act independently” in operational matters. This applies to law-enforcement policy, including “the investigations and prosecution of offences”, and the maintenance of order in relation to any individual or group of individuals, as well as to specific decisions related to the police employees under his command.

Australia

In Australia, although the police enjoy less independence than in the other countries surveyed above, it retains independence regarding law enforcement and quasi-judicial decisions, such as the decision to prosecute; these decisions are generally considered to be immune to instructions by the minister. The law empowers the commissioner of the Australian Federal Police to run its organization, but also states that the minister, following consultations with the Commissioner, may give written directions with respect to the general policy to be pursued in relation to the performance of the functions of the police. There are also specific arrangements regarding police independence in each of the Australian states. In Victoria, for instance, there is a similar arrangement regarding ministerial directions, but with one essential difference: there is a list of matters that the minister may not give directions on, including investigations, and prosecutions; and no less important, the allocation or deployment of police officers to or at particular locations.

The minister can arrogate the authority to intervene only in a case where, to the best of his understanding, the Commissioner is not complying properly with the recommendations of the supervisory body with regard to police behavior. This legislation, enacted in 2013, resolved the tension between the fact that the police is an integral part of the executive branch, subject to the authority of and subordinate to the minister, and the need to ensure its independence in exercising its operational powers. Alongside this arrangement, one can learn from other Australian states about other statutory means to preserve the delicate balance. For example, in South Australia, the minister is authorized to issue written policy directions, but by law must publish them in the Gazette and submit them for review by Parliament. In Queensland there are similar provisions, intended to improve transparency and oversight of the minister's directions.

Conclusion

MK Ben-Gvir’s comparison with the legal situation in other countries is inaccurate. Even though the political echelon in the countries he mentioned does have the power to determine strategic policy for the police, the operational independence of the police is guaranteed in all of them, to various degrees. In fact, this comparative survey actually underlines the need to amend the Police Ordinance by adding a long series of arrangements to guarantee the operational independence of the police and protect it from political interference. Examples include the formulation of a general principle regarding police independence, similar to that in the General Security Service Law, which would guarantee that the police operate in a nonpartisan and apolitical fashion, along with a precise definition of the powers of the minister and the Inspector General of the police, including stipulation of matters that are immune from political intervention. Another point emerging from the comparison is that the limits on political control in setting policy apply both to investigations and to the decision to prosecute. In addition, we see that at least in some of the countries surveyed, there is importance to transparency and public and parliamentary oversight by the publication of directions and their submission to parliament, as well as the value of consultations by the minister with professionals, including the Inspector General, when setting policy. In our view, the fact that Israel has a centralized national police force magnifies the need to protect its independence, as compared to other countries.

In any case, we have only scratched the surface here. The current hasty legislative process, among its other problems, makes it impossible to conduct a broader and deeper comparative survey than presented here, which would provide the legislature with the perspective and knowledge to draft a statutory arrangement that would better serve the public interest.