Crossing the Thin Blue Line?

Queen’s Belfast student Lucius Winslow is the winner of the BPP and Lawyer 2B prize for a free BPP Graduate Diploma in Law for his essay on police and the public in an age of distrust. 

Are the police facing a crisis of legitimacy?

That the question has been asked at all suggests that at the very least not everything is going smoothly for the police in the England and Wales.

During a House of Commons debate on the Hillsborough Disaster in 2012, the prime minister did not mince his words when he described police actions as being ‘quite profoundly wrong’, and ‘indefensible’.

The fallout from Hillsborough has just been one of a long list of police controversies in recent years, the more notable others including plebgate, and phone-hacking. These scandals have eroded trust in the police amongst both the public, and the political establishment.

This article can be broadly split into two: is there a legitimacy crisis; and does it matter?

As a word, legitimacy codifies a nebulous concept in the lexicon, much given to caveat and ambiguity. The French intellectual Amin Maalouf described it as being simply that which ‘enables people to accept, without excessive constraint, the authority of an institution, represented by individuals and embodying shared values’.

At a casual glance one might conclude that Maalouf’s definition can easily be applied to the police. For our purposes here it seems advisable to take the concept back to its source, and in this a Weberian understanding of legitimacy can be deployed.

Weber categorised three forms: charismatic; traditional; and legal-rational. Although the police service has a long history, its primary form of legitimacy is the legal-rational one. Not for nothing does it proclaim its commands in the name of the law.

And so given that its authority is derived from such a source, one might reasonably expect that a series of revelations about police malpractice might create an existential threat to legitimacy. But has this occurred?

The legal expert Lord Carlile QC, when interviewed for this article, demurred on this point: ‘They are not facing a crisis of legitimacy, no. Instead they are facing a huge crisis of public and political confidence.’

This acceptance of legitimacy, but also admission of a crisis, was affirmed by former home secretary Alan Johnson, when likewise interviewed. He observed: ‘no-one doubts that it’s entirely legitimate to have a police force operating in broadly the same manner as it does at the moment.’

In other words, although there has been reform of the police, a point also emphasised by Johnson, for example through the greater collaboration with other agencies, and the implementation of most of the Winsor Review, the essential role remains the same. And this basic role is not seriously contested.

There are few, if any, political voices calling for an alternative to the police, and public demand for structural police reform is negligible, as perhaps witnessed by the record-poor turnout in the Police and Crime Commissioner Elections, elections specifically created by the government as a way of ‘democratising’ the police.

In the abstract therefore, the police remain legitimate. Its job is still considered essential for the maintenance of a secure society. ‘We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm.’

This statement is as valuable today as when Orwell uttered it, and it illustrates a basic, vague sense of confidence in policing, if not necessarily the police. And until this perception is changed, the abstract concept of policing in England and Wales will remain legitimate.

But the specifics are somewhat more worrying, because legitimacy and confidence do not exist in abstract, but in the specific. And there is a spatial divergence of confidence in the service.

This can bring us neatly back to Hillsborough by way of example. The subsequent scandal has led to a severe dearth of confidence in West Yorkshire Police, they having been proved to have been deceptive. But it has also undermined confidence in the police generally within a certain geographic area, namely Liverpool. In other words, just because one part of the country has confidence in the police, doesn’t necessarily hold for the rest.

More worrying still, there is evidence of a racial divergence in confidence. There are many hypothesised causes for this such as the ‘institutional racism’ identified in the Macpherson Report, and the continued evidence of the over-stopping and searching of ethnic minority citizens, but the point is that the police do not enjoy the same level of trust throughout the population on a non-geographic stratum. That this problem has been around for a while does not make it any less serious.

There is also the fact that even the contentment level with a particular police force does not necessarily remain constant for all its functions. The public might be perfectly confident with the police’s ability to catch speeding drivers, but extremely diffident about the police’s ability to ensure their own institutional integrity.

That confidence-gap matters, because it allows the public to remain simultaneously convinced that the police are legitimate, but also untrustworthy. As long as Orwell’s criterion holds, and the public feel safe in their beds, they will not challenge the police’s role. But that doesn’t mean they are confident with the institutional practices of policing.

The police themselves are understandably defensive about much of this. Although certain admissions of error have been made in the past, and resignations have occurred, the police have long clung to the ‘rotten apple’ theory; that is to say that when illegitimate actions and corruption are carried out within the service they are carried out by a few rogue and disreputable personnel. Within such a paradigm it becomes illogical to delegitimise the police as a whole.

This point was made by the press office of the Police Federation when asked to comment on this piece. Quoting their vice chair Steve White, they noted that ‘while there will always be isolated cases where the police have not done their job properly, it is reassuring that actual misconduct accounts for less than 1 per cent of the entire service.’

But reassuring to whom exactly?

Mostly, one could argue, it is reassuring to the police themselves. For such statistics are not widely known, and for the public it is often very hard to distinguish between the uniform and the person who wears it. The rotten apple theory may or may not be valid, but when it comes to legitimacy and confidence, reputation is the ontological whole.

One can only conclude that the police have no real legitimacy question to answer, but that the confidence levels in policing remain problematic.

So, having argued that there is not a crisis of legitimacy, but that there is a crisis of confidence in policing, the second part of the article can be broached; does this matter?

Lord Carlile, having denied the assertion of legitimacy loss but accepted a confidence crisis, was quick to emphasise that this ‘matters a great deal. All kinds of practical problems could ensue; for example juries might be less inclined to return guilty verdicts if they had less faith in the police.’

The specificity of his point can be broadened to allow one to state simply that if confidence levels in the police fall to a sufficiently great degree, then the practicability of, if not their profession, then certainly their professional capability may be in jeopardy. In other words, for the police a confidence crisis has the possibility of becoming an existential crisis.

But – Carlile’s point notwithstanding – it must be said that an institution can continue to carry out its functions even if it faces a public which has little confidence in it. A policing example might be the Police Service of Northern Ireland (and its predecessor) which has struggled in the face of public hostility much stronger than that which faces the forces of England and Wales.

The point can be expanded to include the institutions which would invariably have responsibility for reforming the police; parliament and the Government, both of which have seen massive d in public confidence as a result of their own continued scandals. However for all the damage this has provoked, their legitimacy has remained, as have their capabilities – and this case was somewhat tersely made in the Police Federation’s reply to this piece.

Of course a loss of confidence in the police does not need to be a permanent state of affairs; the implementation of reforms can rejuvenate an institution. And indeed some of the suggestions of the Winsor report have already been implemented, suggesting an institutional adaptability. Confidence can be lost and regained before legitimacy is ever threatened.

What then to conclude? The police, like almost every other major institution in the country, have been beset by crises in recent years. This has affected confidence, and indeed performance, and has led and probably will lead, to reform. This matters greatly, and has operational and legal ramifications. 

But to say it amounts to a crisis of legitimacy seems like hyperbole: how many uninvolved members of the public will lie awake at night in their beds because of Hillsborough, phone-hacking, or plebgate? Probably not many.