Joint Committee On Human Rights Fifteenth Report

Part 3: Removal, Suspension and Disciplining of Police Officers

20. The Secretary of State already has power, under section 42 of the Police Act 1996, to require a police authority to exercise its power to call on a chief officer to retire. Part 3 of the Bill would amend the Police Act 1996 so as to allow police authorities, with the approval of the Secretary of State, to require chief officers to resign instead of to retire.[19] It would also allow police authorities, with the approval of the Secretary of State, to suspend a chief officer from duty if that step is required in order to maintain public confidence in the police force in question.[20] It would also be possible for the Secretary of State to require police authorities to require a chief officer to retire or resign in the interests of efficiency or effectiveness, and to require police authorities to suspend the chief officer if he considers it necessary to do so for the maintenance of public confidence in the force in question.[21]

21. This potentially raises human rights issues relating to—

—  the procedures used when deciding whether to suspend chief officers or to require them to retire or to resign, which may engage the right to a fair and public hearing by an independent and impartial tribunal in the determination of civil rights and obligations, under ECHR Article 6(1);

—  the loss of pension rights which may result from requiring chief officers to resign rather than to retire, potentially engaging the right to the enjoyment of property under ECHR Protocol 1, Article 1.

Neither of these issues is considered in the Explanatory Notes to the Bill.


22. We have considered whether it is likely that rights under Article 6(1) would be engaged by the Bill. Article 6 confers rights in relation to procedures where a decision is being taken which determines a person's civil rights or obligations, or a criminal charge. We take the view, which is shared by the Government,[22] that a police officer has no civil right (as that term is used in Convention law) to continue to carry out his or her duties. A decision to terminate or suspend an officer's service does not involve the determination of a criminal charge, and is, in our view, unlikely to be regarded as determining a civil right. Generally, only private rights, arising under private rather than public law (such as contractual or property rights) are treated as civil rights for the purpose of Article 6(1). In cases about dismissal of public servants, the European Court of Human Rights now employs a functional analysis, considering 'whether the applicant's post entails—in the light of the nature of the duties and responsibilities appertaining to it—direct or indirect participation in the exercise of the powers conferred by public law and duties designed to safeguard the general interests of the state or of other public authorities'.[23] The Court said, obiter, that people such as police officers fall within that description, so their dismissal in disciplinary proceedings does not engage a civil right engaging Article 6(1), and that is consistent with earlier decisions.[24] As one commentator has written, 'police officers are specially selected and trained by the state to perform tasks on its behalf related to law and order. In the exercise of their functions, the police are exclusively subordinated to governmental authorities[25] and do not enter into contractual relationships of a private nature. As a result, whatever the proper legal categorisation of their employment, police officers have no "civil right" within the meaning of article 6(1) to continue to perform their functions.'[26]

23. On the other hand, the European Court of Human Rights has sometimes regarded decisions which principally and directly affect an officer's pension entitlement, rather than merely his or her right to hold the office, as giving rise to a dispute about a civil right. Where the nature of the issue is essentially economic, or a career-related disciplinary decision (for example, to require an officer to resign or to take unpaid leave) is bound to have a decisive effect on economic rights, it may to that extent import a right to a fair hearing under Article 6(1).[27] A decision that the officer must resign rather than retire could be seen as being directly concerned with economic rights. It may be that the only practical difference between forced retirement and forced resignation would, in most cases, relate to pension entitlement, if resignation leads to the loss of a pension (or part of a pension) to which the officer would otherwise have been entitled on the basis of his or her previous period of service. By contrast, following the decision in Pellegrin v. France[28] to employ a functional analysis to deciding whether Article 6(1) is applicable, the Court held in R. v. Belgium[29] that the determination of military pensions does not determine civil rights or obligations. In any case, as the Government has stated, 'Neither resignation nor retirement will affect an officer's accrued pension rights on the basis of his previous period of service.'[30]

24. In the light of this, we consider it to be unlikely that the provisions of Part 3 of the Bill would be held to engage rights under ECHR Article 6(1). The Government accepts that procedures must in any case be fair and transparent, and we accept their view that the provisions of Part 3, taken together with relevant provisions of the Police Act 1996, provide for such procedures.[31] That being so, we do not consider it necessary to draw the matter to the attention of either House on human rights grounds.


25. We take the view that a right to a pension would be likely to be regarded as a possession protected by ECHR Protocol 1, Article 1, so far as the applicant has already acquired the right on the basis of payments made or service provided, although (at least in the case of state pensions) there may not be a right under Article 1 to a particular level of pension payment.[32] As already noted, the Government informed us that a requirement to retire or resign would not adversely affect vested pension entitlements, although it might affect the accrual of future pension entitlements.[33] That being so, we do not consider that there is a significant risk of rights under Article 1 being engaged, and we do not find it necessary to draw the possibility to the attention of either House.


26. Clause 32 of the Bill would (inter alia) empower the Secretary of State to make regulations conferring the right to participate in or to be present at disciplinary proceedings on people to be specified in the regulations. This could be used to enable victims of allegedly improper police conduct to take part in the disciplinary process where this was demanded by the need to vindicate their rights under the ECHR, helping to satisfy the procedural requirements arising out of (for example) Articles 2 and 3, already mentioned. We consider that it would be possible for disciplinary panels to give effect to such regulations while securing a fair hearing for all participants. We welcome this as a way of enhancing protection for the human rights of victims of abuse of power.

27. Clause 32 would empower the Secretary of State to make regulations allowing adverse inferences to be drawn in certain circumstances from the failure of the person against whom proceedings are taken to mention, when questioned or charged with the disciplinary offence, a fact on which he or she later seeks to rely. Like section 24 of the Criminal Justice and Public Order Act 1994, on which such regulations would be based, the regulations would engage the right to have the case against them proved by the State, and to be free of coerced self-incrimination, which, the European Court of Human Rights has held, forms part of the guarantee of a fair hearing under ECHR Article 6(1), if Article 6(1) is applicable to disciplinary proceedings. As noted above, the nature of a police officer's functions makes it unlikely that disciplinary proceedings would be regarded as determining an officer's civil rights or obligations. Furthermore, the nature of the proceedings would be essentially disciplinary rather than penal, and the type and level of possible penalties would distinguish them from criminal charges which might engage the rights under Article 6(1), (2) and (3). Accordingly, we take the view that rights under Article 6 would be unlikely to be engaged by police disciplinary proceedings. In any case, it would be possible for a tribunal to exercise its power to draw adverse inferences from silence in a way that would safeguard the right to a fair hearing. We also consider that regulations should require the chair of any disciplinary tribunal to be independent of the police, in accordance with best existing practice. We therefore find it unnecessary to draw these matters to the attention of either House on human rights grounds.

19   Clause 28 of the Bill Back

20   Clause 29 Back

21   Clause 30, which would substitute new provisions for section 42(1) and (2) of the 1996 Act; and clause 29, which would make consequential amendments to sections 9E, 9F, 9FA, 9G and 11 of the 1996 Act. Back

22   p Ev 2, para. 4A Back

23   Pellegrin v. France, Eur. Ct. HR, Grand Chamber, Judgment of 8 December 1999, at para. 66 Back

24   ibid.; and see X v. United Kingdom (1980) 21 DR 168, Eur. Commn. HR (police disciplinary proceedings did not determine civil rights or obligations) Back

25   Which is not to say that maintaining functional independence of government in respect of operational decision-making should not be regarded as an important constitutional principle: see para. 5, above (footnote added) Back

26   Keir Starmer, European Human Rights Law: The Human Rights Act 1998 and the European Convention on Human Rights (London: Legal Action Group, 1999), pp. 338-339. This was written before the decision of the Court in Pellegrin v. France, above, note 10 Back

27   See, e.g., Lombardo v. Italy(1996) 21 EHRR 188, Eur. Ct. HR; Couez v. France, Eur. Ct. HR, Judgment of 24 August 1998. In a rather different context, see also Matthews v. Ministry of Defence [2002] EWHC 13 (QB), 22 Jan. 2002, Keith J Back

28   Above, note 10 Back

29   Eur. Ct. HR, Third Section, App. No. 33919/96, Judgment of 27 February 2001 Back

30   p Ev 2, para. 4A Back

31   p Ev 3, paras. 5A-5C Back

32   See Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford: Oxford University Press, 2000), para. 18.39, pp. 1306-7; Kuna v. Germany, Eur. Ct. HR, Judgment of 10 April 2001; Rajkovic v. Croatia, Eur. Ct. HR, Judgment of 3 May 2001 Back

33   p Ev 3, para. 6A Back

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