Category: UK

Comparing Police Discipline in the US and the UK: Lessons for American Law Enforcement – Part 2

Labour rights, Police and Policing, Scotland, UK, US Politics, USA

This is Part 2 of a two-part blog post by Prof. Paul Clark comparing police discipline in the US and the UK. It identifies aspects of the UK approach to police discipline that could have a positive impact on the discipline process in the US.

Paul F. Clark is Professor and former Director, School of Labor and Employment Relations at Penn State University in the United States.  His research has focused on employment relations, labor unions, and the globalization of labor markets.  His current focus is on police unions and police disciplinary processes in the UK and the US.  He has authored or edited six books and his research has appeared in the leading scholarly journals in industrial and labor relations, applied psychology, and international labor issues.  He has served as a visiting professor at universities in Scotland, Australia, and New Zealand and is currently President-elect of the U.S.-based Labor and Employment Relations Association.

 

A preliminary examination of the UK police complaint and discipline processes indicates that these processes differ significantly from, and work more effectively than, those in the US.  This suggests that there may be elements of the British system of police discipline that could be adapted and adopted by American law enforcement.

One of the key differences between police discipline processes in the UK and the US that could have a positive impact on the US process is the UK’s emphasis on learning versus punishment.  In 2020, an in-depth analysis of the police discipline and complaint process in England and Wales led to major reforms.  One of the significant changes made was to establish “a culture of learning” as a key part of the discipline process. Toward this end, police supervisors are directed to divert incidents that do not constitute misconduct into either “an unsatisfactory performance procedure” or “a reflective practice review,” both of which help police officers learn from their mistakes and remain on the force.

The emphasis on learning and correcting behavior that UK law enforcement has adopted in recent years is an approach that American police unions and police departments, should consider.  In the long run, working to create a culture of learning in US police forces would have many benefits.

Photo bt King’s Church International on Unsplash

Another mechanism that US law enforcement should consider to build public confidence is independent oversight boards.  These agencies play a much bigger role in policing in the UK than in the US.  In England and Wales, the Independent Office for Police Conduct (IOPC) oversees complaints about police misconduct.  The Police Investigations and Review Commissioner plays this role in Scotland and the Office of Ombudsmen does so in Northern Ireland.  These processes are clearly works in progress and they receive mixed reviews from police federations, and sometimes from the public, but to ensure that police do not investigate police behind closed doors, these agencies are necessary.

There has been a movement in recent years in the US to establish such bodies.  However, only about ten percent of police forces have done so and they are mostly in urban areas with large police forces.  And their performance has been mixed.  Still, independent oversight of police forces appears to be a necessity if public confidence in police is to be increased.

US law enforcement also needs to adopt a national database to identify police officers who have been fired for misconduct or incompetence, like the ones that exists in the UK.  Currently, in the US only a handful of states keep such a list.  Unfortunately, in many states officers fired by one police department are regularly hired by police forces within that state or in other states. A national list would identify officers fired for cause across the country.  Any officer appearing on this list would be banned from being hired by any other police force.

Finally, the extremely decentralized nature of the American law enforcement system means that police disciplinary systems are established by each separate police force.  In the UK, the police disciplinary processes are national in scope.  This means that there is one disciplinary process that covers all police in England and Wales, one that covers all police in Scotland, and one that covers police in Northern Ireland.  These national processes bring consistency to police discipline in each country.

With 18,000 police forces in the US (compared to only 43 in England and Wales, and one each in Scotland and Northern Ireland), there are essentially 18,000 different discipline processes.  This is highly problematic.  It means that reforms to the police discipline system in the US cannot be implemented on a national basis.  However, individual states do have the authority to order changes for the police forces in their state.  The widespread reform of police discipline processes in the US would most effectively be accomplished on a state-by-state basis.  Establishing a consistent police discipline process across all fifty states is unrealistic. Yet, it might be possible to get a significant number of states to adopt such a process.  This would be an important step towards improving the effectiveness of American police discipline processes.

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Comparing Police Discipline in the US and the UK: Lessons for American Law Enforcement – Part 1

American law enforcement, Conflict, Labour rights, Police and Policing, Punishment, Security, UK, US Politics, USA

This post is the first of a two-part blog by Prof. Paul Clark comparing police discipline in the US and the UK. Part I focuses on the relevant similitudes and differences between police discipline in the two countries and highlights the connections between police trade unions and police discipline.

Paul F. Clark is Professor and former Director, School of Labor and Employment Relations at Penn State University in the United States.  His research has focused on employment relations, labor unions, and the globalization of labor markets.  His current focus is on police unions and police disciplinary processes in the UK and the US.  He has authored or edited six books and his research has appeared in the leading scholarly journals in industrial and labor relations, applied psychology, and international labor issues.  He has served as a visiting professor at universities in Scotland, Australia, and New Zealand and is currently President-elect of the U.S.-based Labor and Employment Relations Association.

 

Recent high-profile cases of police misconduct in the U.S. have heightened racial tensions and increased public awareness of systematic problems in American law enforcement.  The deaths of George Floyd and Breonna Taylor at the hands of Minneapolis and Louisville police in 2020 were met by widespread protest around the world and for calls for police reform.

Photo by Gayatari Malhotra on Unsplash

The fact that Derek Chauvin, the officer who knelt on Floyd’s neck causing his death, had 18 complaints regarding serious misconduct filed against him since 2001 and was still working as a police officer, has contributed to the impression that American police are not being held accountable for their actions.

In the wake of these concerns, the movement to reform American policing has gained momentum.  This reform movement is looking at all aspects of American law enforcement including oversight, funding, training, use of force, hiring, pay, and recruitment.  However, one important element that has received minimal consideration in discussions about reform are the processes for disciplining police officers accused of misconduct.

While the British public has concerns about police misconduct, police are viewed more favorably in the UK than in the US.  In surveys conducted in 2020, 74 percent of people aged 16 and over in England and Wales reported having confidence in their local police, while only 48 percent of Americans held that view.

A preliminary examination of the UK police complaint and discipline processes indicates that these processes differ significantly from, and work more effectively than, those in the US.  This suggests that there may be elements of the British system of police discipline that could be adapted and adopted by American law enforcement.

To learn more about the UK police complaint and discipline processes, I spent the spring of 2022 in residence at the University of Edinburgh’s Global Justice Academy and the University of Oxford Law School.  Because England and Wales, Scotland, and Northern Ireland each have their own systems of law enforcement, they each have their own police complaint and discipline processes.  In the course of my work, I gathered information about the three processes and conducted 37 interviews with parties involved in these processes—police forces, police federations representing officers, independent public oversight agencies, and neutral hearing officers.  An analysis of the data collected identified a few elements that differ significantly from the discipline processes in the US and that, in my view, have potential to improve what is now, in many cases, a problematic process in the US.

Police disciplinary processes in the UK and the US have some elements in common.  Disciplinary processes are utilized to deal with both public complaints about officer conduct and internal charges made by police colleagues or supervisors.  Public or internal charges can result in an investigation into an officer’s conduct.  The results of the investigation are considered by police administrators and the charged officer (and the officer’s representatives) are given opportunities to respond.  If the charges are not resolved, the case can go before a neutral third party who renders a decision.

Photo by King’s Church International on Unsplash

One significant difference between the US and UK systems of law enforcement is that the majority of police officers in the US belong to trade unions (57.5 percent in 2019) that have the right to collective bargaining. Some of these police unions, mostly in large cities, have used their bargaining power to negotiate contract clauses that make it harder to discipline their members. These unions also generally take a more adversarial approach when advocating for their members in the discipline process than their counterparts in the UK.  For these unions, “defending the member at all costs” is the priority, even when the officer or officers involved have engaged in problematic behavior.

A recent analysis found that in 624 police discharge cases heard by arbitrators (neutral third parties) nationwide between 2006 and 2020, police officers were reinstated to their jobs 52 percent of the time. During the same period, in Minneapolis, in six of eight cases involving the discharge of police officers, the charges were overturned, and the officers returned to their jobs.

In the UK, police are not permitted to be represented by a trade union.  Instead, officers at all ranks are represented by professional associations that advocate for the good and welfare of their members (for example, constables, sergeants, and inspectors in England and Wales are represented by the Police Federation of England and Wales), but do not engage in collective bargaining.  While these federations and associations fight for their members when they feel they have been treated unfairly, they also tend to look more broadly at what is good for the policing profession and for the community.  In some instances, they may put the interests of the profession and the community ahead of those of an individual member.  For example, they might try to counsel a problematic officer into resigning from the force, rather than fight to get their job back.  One long-serving police federation representative told me he thought “he might be responsible for getting rid of more bad cops than the police force had.”

Certainly, some police unions in the US do what they can to make sure that officers not suited to policing do not continue to serve.  But in some notable cases where unions have won reinstatement for officers accused of excess force, racism, or corruption, these officers have continued to engage in misconduct. If they want to increase the public’s confidence in their members, the more aggressive police unions need to moderate their approach to representing their members and emphasize what is good for the profession and the community.

In addition to moderating their defense of “bad cops,” some US police unions need to consider rethinking existing contract language that makes it difficult for police departments to discipline officers (while still ensuring that they receive appropriate due process).  Both changes would have a positive impact on how the public views the police.

Finally, it should be noted that an additional reason that police officers fired for misconduct in the US (and sometimes in the UK) are put back on the job is that police management sometimes does a poor job of investigating and building discipline cases against officers.  Bringing a weak case before a neutral third party greatly increases the chances that a union will win the case and enable an undeserving officer to retain their job.  Where this happens, police managers need to improve their performance.

Continue reading part 2 of this two-part blog.

 

 

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Reflections on Your Human Rights: Know them. Engage them. Defend them.

Constitutional Change, Democracy, ECHR, Engagement, Freedom of Expression, Global Justice Academy, Human rights, Human Rights Act, UK

On 23 and 24 February 2022, the Global Justice Academy, together with the Strathclyde Centre for the Study of Human Rights Law and Newcastle Forum for Human Rights and Social Justice, and other partners in the Northern UK Human Rights Network, held two webinars that gathered human rights experts to provide insights to the questions set out in the Ministry of Justice Human Rights Act Reform Consultation. The idea behind the webinars was to help the public — especially those who are not experts but are interested in protecting human rights — to respond to the Consultation, which puts forward ideas contrary to the Human Rights Act and may have devastating effects on human rights.

This GJA blog post presents the common themes and shared concerns that get to the heart of why experts find the Consultation proposals problematic and regressive. The post contains four parts, each focused on a central issue raised by the expert panellists.

The mismatches between the IHRAR and the Consultation

In 2019, the Conservative Party claimed the necessity to update the Human Rights Act (HRA) to modern times. The Secretary of Justice then set the terms for the Independent Human Rights Act Review (IHRAR), which commenced in December 2020. The IHRAR examined independent expert opinions and many submissions from civil society, ultimately completing its work in October 2021. The IHRAR recommended some changes but overall concluded that the HRA led to positive outcomes to human rights protection in the UK. However, the Ministry of Justice only published the IHRAR report in December 2021 together with the Consultation document, which no longer proposed to update the HRA but rather substitute it for a ‘Modern Bill of Rights’. Human rights experts are sceptical of the government’s claims to legitimacy of the Consultation as a follow on to the expert panel. Experts understand that the Consultation does not follow the IHRAR as it ignored several IHRAR recommendations and introduced a series of new issues that will significantly diminish human rights protection.

 

Priority of freedom of expression when in conflict with the right to respect for private and family life

One of the Consultation proposals is to create a legal provision to direct courts to prioritise the right to freedom of expression when in conflict with the right to respect for private and family life. The Consultation outlines that the European Court of Human Rights (or Strasbourg Court) has shown priority to privacy over freedom of expression, which has had a negative repercussion on the protection of rights related to the press. However, human rights experts disagree with this observation. Experts concluded that both the UK Supreme Court and the Strasbourg Court treat freedom of expression and the right to privacy equally when in conflict, without generally prioritising one over the other. The current provision of article 10 of the European Convention on Human Rights (ECHR), which contains the right to freedom of expression, has been effective in protecting journalists and their sources. Although it is important to widen the protection of rights related to the press, the way to do so is to enhance the HRA provisions instead of substituting them.

 

The permission stage and access to justice

One central issue in the Consultation is the belief that ‘frivolous or spurious’ human rights claims, which do not ‘merit court time and public resources’, has undermined public confidence in human rights.[1] The Consultation aims to create a permission stage for human rights claims that requires demonstration of ‘significant disadvantage’, or, exceptionally, a matter of ‘overriding public importance’, for human rights claims to be brought before UK courts.[2] Human rights experts strongly disagree with adding a permission stage. Article 34 of the Convention, incorporated into the UK by the HRA, together with extensive legal texts, have already established who is a victim and who can be a human rights claimant. Further requirements for initiating human rights actions would restrict judicial protection of rights. The permission stage proposal closely relates to the (deeply) problematic question 10 of the Consultation, which states that courts should only focus on ‘genuine human rights abuses’, perpetuating the false perception that many human rights claims are not genuine.[3] Human rights experts fear that the vague and potentially discriminatory ‘genuine’ standard for human rights abuse and the unnecessary permission stage will diminish human rights protections, especially for those in vulnerable situations.

 

The mischaracterised relationship between the UK Supreme Court and the European Court of Human Rights

A major theme throughout the Consultation — which some experts believe is the central political motivation leading to the Consultation— is the relationship between the UK Supreme Court and the Strasbourg Court. The Consultation presumes that the Strasbourg Court has been improperly intervening in the UK jurisdiction. On the basis of this unsupported presumption, the Consultation proposals point to the government’s desire to distance UK law from the Strasbourg Court. Nevertheless, the experts highlighted that the government’s desired distance between jurisdictions, together with the regressive protection of rights, will backfire. The Consultation was clear that the UK will not withdraw from the Convention or the Strasbourg Court. Thus, if human rights claimants are unsuccessful in bringing their cases to UK courts because their claims are not considered ‘genuine’, they can still go to the Strasbourg Court for their claims to be heard. This possible scenario would weaken UK human rights protections as domestic courts would not have the first say in interpreting ECHR cases in the UK though the UK would remain bound to give effect to eventual Strasbourg’s judgments that find the UK in breach of the Convention rights.

Ultimately, the webinar offered insight and assistance to people developing their responses to the Ministry of Justice Consultation. Although embedded in a language of protection of rights, the Consultation’s proposals will produce harmful effects for human rights in reality. Therefore, the webinar highlighted that it is important that as many people as possible engage and respond to the Consultation until its deadline on 8 March 2022 in order to oppose Consultation’s proposals and fight against the undermining of human rights.

 

The Global Justice Academy’s response to the consultation can be found here:  March 2022 – GJA – Consultation Response – HRA Reform

This post is authored by Helena de Oliveira Augusto. Helena is currently undertaking the Human Rights LLM at the University of Edinburgh. Helena is from Brazil, where she completed a Bachelor of Laws degree at the Pontifical Catholic University of São Paulo.

 

 

[1] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights – A consultation to reform the Human Rights Act 1998, available at <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040409/human-rights-reform-consultation.pdf> accessed at 27 February 2022, p. 65

[2] Ibid p. 65

[3] Ibid p. 66

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Incarceration in Scotland: a system with positive evolutions in need of a generalisation of its good practices

Crime and Criminal Law, incarceration, Inequalities, Innovative Initiative Fund, Law and Legal, Punishment, Scotland, UK, United Kingdom

In this guest post, Coline Constantin reflects on the recent seminar that tackled issues around incarceration in Scotland. Coline is reading for an LLM in Human Rights at Edinburgh Law School, and applied for funding for this event from the Global Justice and Global Development Academies’ Innovative Initiative Fund.

Scotland has the second highest imprisonment rate in Europe. Although English headlines for issues of overcrowding, under staffing, rising rates of self-harming cases do not find an echo north of the border, the statistic still makes it worth taking a closer look at its system. On Thursday 26 April, an engaged audience gathered at the University of Edinburgh to hear more about the positive developments and challenges of the Scottish system of detention.

Three panellists from different fields of expertise and different view angles on the Scottish situation were invited to cover topics from policy-making, to the implementation and analysis of these policies. Professor Richard Sparks, Convenor of Howard League Scotland and criminologist specialised on the different systems of detention in the UK, took us through his analysis of the particularities of the Scottish case within the UK and European context. Tom Halpin, Chief Executive of Sacro and prominent figure in the reduction of inequalities in the Scottish criminal justice system, gave us a sense of the work that is being done with communities and specific groups of people with convictions to go towards better mentoring and guidance throughout the process. Pete White, Chief Executive of Positive Prisons? Positive Future and fascinating storyteller, treated the audience with a story of his personal experience from his time inside and the aftermath of this life-changing event.

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Report from an IIF Event – Academic Freedom: “national security” threats in Turkey, India and the UK

Citizenship and Belonging, Conflict, Freedom of Expression, Human rights, India, Innovative Initiative Fund, Turkey, UK, United Kingdom, Victimisation

Can the university be a space where academic freedom reigns while restrictions are increasingly threatening voices and lives outside its gates? Or must spaces for politics be opened up on and off campus in order to address the invasion of national security (and capitalist) logics into the realms of open enquiry? On 27 October 2016, scholars and activists engaged these questions with a focus on the variable effects of the securitisation of university space in Turkey, India and the UK.

A panel on Turkey included academics and students who have lost their jobs as a result of the broader crackdown on dissent following the failed coup in July. They highlighted the connections between increasing violence in the Kurdish regions of Turkey—which precipitated the “Academics for peace” petition that has been used as a pretext for dismissing many signatories from their posts—and the attempts of the state to impose controls on its critics. They asked if the focus on the plight of academics may mean that this violence recedes from the view of international publics. Efforts to maintain solidarity among those now outside the academy and those still within it, as well as initiatives to take the university outside spaces the government controls, provide hope for continued resistance in fearful times and carve out a more universal idea of the University as institution and spirit that always has had to be fought for and salvaged from strategies of subjection from various quarters, not only outside the University. In this way, this panel was inspiring for all university struggles, not just those related to Turkey.

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Brexit, Northern Ireland and UK-Irish Relations

Citizenship and Belonging, Constitutional Change, Devolution, EU, Europe, Immigration, Law and Legal, Political Settlements, UK

CB profileThis post by GJA Director, Professor Christine Bell, was first published on the Centre on Constitutional Change blog on 26 March 2016, co-published with European Futures.

Amid pronouncements about the UK as an island nation, scant media or political attention has been paid to its only land border with the EU – between Northern Ireland and the Republic. However, says Professor Christine Bell in this extended analysis, the impact of Brexit on the institutions built up as part of the Peace Process would be considerable.

The EU referendum and the possibility of ‘Brexit’ raise distinct questions for Northern Ireland as a devolved region within the UK as part of the peace process. In the referendum debate, more attention needs to be given in the rest of the UK to Northern Ireland, the one part of the UK which has a land border with another EU country.

Political Divisions and the EU Referendum Campaign

The first key question as regards the EU referendum’s impact in Northern Ireland relates to the distinctiveness of its political settlement: how will the Brexit campaign affect political relationships – ever fragile – within Northern Ireland?

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Counter-Terrorism, Radicalisation, and the University: Debating the Prevent Strategy

Edinburgh, Global Justice Academy, Human rights, Law and Legal, Student Ambassadors, Terrorism, UK, Victimisation

On Friday 15 January 2016, the Global Justice Academy and the Centre for Security Research at The University of Edinburgh hosted a panel discussion on the Prevent Strategy obligations that have been placed on higher education institutions. GJA Student Ambassador, Rebecca Smyth, went along to the debate and outlines the debated arguments as well as her thoughts on this contentious issue in this guest post.

A thing of nothing or something more sinister?  Under section 26 of the 2015 Counter-Terrorism and Security Act universities must “have due regard to the need to prevent people being drawn into terrorism.”  The origins of this ‘Prevent’ duty, and its potential implications for staff and students, were considered at a panel discussion organised by the Global Justice Academy and Centre for Security Research last Friday.  Chaired by Akwugo Emejulu, the panel comprised Gavin Douglas, Deputy Secretary of Student Experience here at the University of Edinburgh; Richard Jones of the School of Law; Genevieve Lennon of the University of Strathclyde Law School; Urte Macikene, EUSA Vice President of Services; and Andrew Neal of the Politics and International Relations department.

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Human Rights and Making Change: Looking Backwards and Moving Forwards from the Northern Ireland High Court Decision on Abortion

Abortion, Devolution, Gender, Health, Human rights, Human Rights Act, Law and Legal, UK, Women

This post first appeared on the Centre for Criminal Justice and Human Rights blog from the Faculty of Law at University College Cork.

Dr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute. She is currently also co-coordinator of the Gender Stream of the DFID-funded Political Settlements Research Programme, where she is investigating how international law norms for gender equality influence domestic power-brokering.

In the aftermath of last week’s High Court judgment declaring Northern Ireland’s prohibition of abortion to be incompatible with UK human rights legislation in specific instances, there has been much valuable consideration of the judgment’s legal and political implications, for this jurisdiction and others.  In this contribution, I reflect on what the litigation and judgment say about human rights advocacy in Northern Ireland.

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Northern Irish Abortion Law Incompatible with the European Convention on Human Rights

Abortion, Devolution, Gender, Health, Human rights, Human Rights Act, Law and Legal, UK, Women

This post first appeared on the European Futures Blog.

In this extended article, Jane Rooney analyses the recent Northern Ireland High Court decision that current abortion law is not compatible with the European Convention on Human Rights. She suggests that the judgement could have gone further in testing the compatibility of the legislation with the ECHR, and that possible appeals are unlikely to take the politics of Northern Ireland as closely into account.

On 30 November 2015 in the case of The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96, the High Court of Northern Ireland found that Northern Irish law regulating abortion was incompatible with Article 8 (right to private life) of the European Convention on Human Rights (ECHR). This was an historical judgement made possible through the conjoined efforts of many, including women directly affected by the legislation, the Northern Ireland Human Rights Commission and Amnesty International.

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Human Rights Act Repeal and Devolution: Quick Points and Further Resources on Scotland and Northern Ireland

Constitutional Change, Devolution, Human rights, Human Rights Act, UK

Can the UK’s Human Rights Act be repealed? What would the process need? Is it even possible? What are the legal implications?

Christine Bell, Professor of Constitutional Law at Edinburgh Law School, Assistant Principal Global Justice and Director of the Global Justice Academy, offers this review of the current debate on repealing the Human Rights Act, and points readers to other available resources.

In the past few days repeal of the Human Rights Act, and in particular its devolution implications have attracted a lot of attention.  Today, a new report is launched from a legal expert seminar in April 2015, on the legal implications of repeal of the human rights act (see below).  The report provides the full chapter and verse, but here are a few quick points on the devolution implications, with further more detailed and reasoned resources below.

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