Blacksmith Posted: Tue Mar 13, 2012 12:57 pm
The question of who can get away with what politically in the United Kingdom has caused serious difficulty between the Bureau and our Portuguese friends in the past. Perhaps I can make one last effort to explain the facts before new stresses appear.
This very lengthy post is aimed at Portuguese and other non-British posters to assist them in understanding UK law and politics. I have no intention of debating the matter and I am explicitly not addressing British people.
The UK police are not servants of the state
As the civil liberties group Civitas writes, “When officers join the police force they swear an oath of allegiance to the Queen, not the prime minister. Unlike many other forces, British police have never been servants of the state: officers' powers are personal, used at their own discretion and derived from the Crown.”
British government passes democratic legislation which each local police force is then expected to implement in its own way. Scotland Yard is the alternative name for the Metropolitan Police service, the local police force for London, which in a typically British manner also carries out duties on behalf of the whole nation, such as anti-terrorist work.
The British fear anyone with too much power
Why is this typically British? Because the essence of British politics is to disperse power in order to deny individuals the ability to grab too much for themselves. The intellectual Labour politician Richard Crossman expressed this principle most clearly half a century ago when he described the British constitution as one that deliberately makes it impossible for any one person to know exactly where the “levers of power” are.
Obviously if you can’t locate the levers you can’t take the power, just as if you can’t locate the national radio station you can’t make your coup stick. The fact that Crossman was unprincipled himself, famously being assisted by Carter Ruck to win a libel case by perjury, made no difference, just as the fact that politicians and police as individuals can be crooks makes no difference either. What matters is how much such bastards can get away with and Crossman finished his career by introducing parliamentary committees, the sort watched in action on the net recently, to disperse powers even more. It is this attitude to political and administrative power—one of fear – which still distinguishes the UK from all other European nations.
For this reason the British will not permit the establishment of a national police force whose head might become over-powerful, as Hoover did in the USA last century, despite the efficiency advantages that such a force would provide. It is not permitted purely for political – that is questions of power – reasons. So the functions like anti-terrorism which would be most efficiently dealt with nationally are instead given to a local police force, which reports to a an elected local police authority in an oversight role, just as Scotland Yard does.
There’s nobody there
This means that there is no head of criminal investigation in the UK corresponding, say, to the head of the PJ. The UK government has no right to know the details of what a local police force is investigating. It has no right to nominate, or dismiss, the heads of specialist squads. The prime minister has no right to ask for the details of any investigation and he has no right to see any Scotland Yard investigation report. I need hardly add that by the time the prime minister is briefed on the outcome of an investigation in its broad details the briefing notes will have had to come up through a chain of command and oversight to the Home Secretary. And that means that the information will be safely and widely dispersed.
A prime minister cannot “order an investigation” and the idea of an investigation being tailored to his wishes is simply laughable. He does not have the constitutional or physical/structural power to do it. A prime minister cannot lay down the terms of reference of an investigation. An investigation by the local police force for the capital, Scotland Yard, has to go through the legal system, not the political system – i.e. its conclusions must not go to the government.
The only member of the government who is allowed to involve himself in the details of a case – after it has been prepared, not before – is not the prime minister and not the home secretary but the attorney-general and then only where there is a so-called public-interest question and the government as a whole have authorised him to consider it. The attorney-general is both a lawyer and a politician. Dispersal again.
The prime minister has no right of access to the review’s work
When the Scotland Yard review is completed the prime minister can request a copy of its main recommendations through the Home Secretary and the local police authority. He cannot act on those recommendations for they are not addressed to him or his government and he cannot decide whether they will be published or not. He cannot authorise or refuse criminal proceedings. Not only can he not issue instructions as to what should happen there is no one person to whom he could turn to instruct. The results of an investigation must go to the Crown Prosecution Service, not to the “government”.
The McCanns and politics
The UK accepted that the McCann case was a Portuguese investigation. As was their right the then UK government, believing that public opinion was strongly in favour of helping the McCanns, offered UK police assistance to the Portuguese by requesting, not ordering, assistance from UK forces. Again Tony Blair and Gordon Brown had no right whatever to see the details of that co-operation and the operational files of both the Leicester police and Scotland Yard have never been made available to them – by law.
Of course this became a political question after a time because of the international relations angle and the friction that was being caused to UK/Portugal relations. But it cannot be emphasised too strongly that just as the prime minister had no authority over the British part of the investigations so the British ambassador had not the slightest power to influence the UK end of the investigation whether he might have wished to or not. We don’t let ambassadors get away with that sort of stuff in the UK, again by law. And UK policemen, who are never in a position long enough to develop a political power base, don’t like politicians or ambassadors much.
The failure of the McCanns to return to Portugal also had a political “dimension”, just as the Assange affair has, but the reason they failed to return had nothing whatever to do with political intervention: the requirements of a European Arrest Warrant demand that prima facie evidence of a crime be provided by the extradition seeker and the Portuguese did not provide it.
The McCanns, backed up by a public petition, had every right to ask for some sort of action of the government in a situation where nobody was looking for the infant daughter of two British citizens. Cameron, after consultation with the home secretary, agreed to authorise it. Had he refused to do so then the McCanns, with their deep publicly-provided pockets, would have had the right to seek “Judicial Review” in court; in such proceedings a judge would decide whether the government’s decision to refuse resources was “reasonable” or not from the legal, not the political, perspective and possibly rule that the decision must be reconsidered. Governments often lose such judicial review proceedings.
Cameron, a very able politician and a thoroughly decent man, said yes in a way that the McCanns did not anticipate; everybody except those criminally involved will gain from his decision. What the Portuguese will or will not do, how their legal and political systems will deal with events is something that I, as an overseas outsider with a respect and affection for, but no deep knowledge of, Portugal simply don’t know. Claims of a whitewash in the UK by those similarly placed but in the opposite direction simply diminish the stature, credibility and, ultimately, the relevance of those who make them.