Is the police vetting code of practice legally binding?

The College of Policing is currently updating the statutory code of practice for police officer vetting that all forces legally have to follow.

The Policing Minister has led a lot of work with the College of Policing to strengthen its statutory code of practice for police vetting, making the obligations that all forces must legally follow stricter and clearer.

Last month the Prime Minister and home secretary both claimed that all police forces are legally required to follow the College of Policing’s statutory code of practice on the vetting of police officers.

During an exchange at Prime Minister’s Questions on 22 March about the recent report by Baroness Casey which criticised the quality of vetting in the Metropolitan Police Service, Labour leader Sir Keir Starmer said introducing mandatory standards would “end the farce that sees different police recruitment standards in different forces”.

Mr Sunak replied that there was no need to back Labour’s plan for mandatory national vetting standards as the Government was already taking action to tackle the issues raised by the report, adding: “For instance the College of Policing is currently updating the statutory code of practice for police officer vetting that all forces legally have to follow.” He also said that police forces were in the process of checking their officers against the police national database.Mr Starmer appeared to reject Mr Sunak’s response, saying: “The problem with the Prime Minister’s answer is that what he refers to is not mandatory.”

The home secretary Suella Braverman made a similar claim to Mr Sunak the day before, when she described the code of practice as “obligations that all forces must legally follow”.

The College of Policing’s code of practice, which is currently being updated, sets out the vetting standards which are to be applied by police forces in England and Wales during their recruitment process.

But while it’s true that police chiefs of all forces in England and Wales are legally required to “have regard” to the code of practice, that doesn’t mean they are legally bound to follow everything in it. 

Ministers should always strive to be as clear and precise as possible, and provide all necessary context to avoid potentially misleading people, even inadvertently.

What does the law say?

A spokesperson for the College of Policing told Full Fact that the new code of practice will be issued under section 39A of the Police Act 1996, and added: “It is a legislative requirement in the Police Act 1996 that chief officers shall have regard to any code issued under this section.”Section 39A(7) of the Police Act 1996 specifically states “in discharging any function to which a code of practice under this section relates, a chief officer of police shall have regard to the code”.

However the College of Policing also confirmed that it is not a legal requirement for police chiefs to follow the code in full. This view appears to be echoed in a House of Commons Library briefing which says: “The College of Policing (CoP) provides a Code of Practice and a guidance on vetting produces [sic] and decision-making to encourage consistency and a minimum standard across forces. Forces’ vetting departments are expected to follow this, but it isn’t a legal requirement.”

A November 2022 report by His Majesty’s Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) into police vetting across the country found that “vetting standards are not high enough and it is too easy for the wrong people to both join and stay in the police”.

Referring to the current version of the code of practice, which was issued in October 2017, the report noted: “The Vetting CoP [Code of Practice] sets out standards expected of police forces in England and Wales in relation to vetting. Chief officers of police forces must have regard to what the code says but they are not bound by its terms; the code is not the law. 

However, it added: “That said, established principles of law require that they should follow it unless there are strong reasons for not doing so. They must be able to justify any departure from it."

The Home Office also says police chiefs are required to have regard to the statutory code of practice, and that in practice this means they are expected to follow the code unless there is good reason not to.

What about the College of Policing’s more detailed vetting guidance?

HMICFRS told Full Fact that it believes in practice the code of practice is applied fairly consistently across forces, but that this is not the case with the Vetting Authorised Professional Practice (APP) which sets out more detailed guidance and is 240 pages long compared to the 18 pages of the code of practice. 

The code of practice is closely linked with the guidance, with its fourth principle stating: “Police vetting should comply with the standards laid out in APP on Vetting.” However, as the APP is not issued under any statutory power, there is no requirement in legislation that chief officers have regard to it or follow the guidance it sets out.

HMICFRS’ report last year drew a distinction between adherence to the code and the guidance, saying: “In practice, it is unlikely that a chief officer would wish or need to depart from the terms of the Vetting CoP. The principles it sets out won’t usually be controversial and don’t generally prescribe any particular outcome or process. It is much more likely that a police force may not always wish to follow the precise terms of the Vetting APP, which is much more prescriptive.”The report found some forces were failing to take the APP into account. 

For example, though the Vetting APP states that candidates should be automatically rejected if they have previously committed offences against vulnerable people or those of domestic abuse, the report said: “We found applicants who had received vetting clearance after committing offences such as robbery, indecent exposure, possession of controlled drugs, drink-driving and domestic abuse-related assaults.” It added: “We found no evidence that decision-makers in these cases had considered relevant factors, such as: the seriousness of offences; offences that were domestic abuse-related; repeat offences; and offences against vulnerable people.”

A spokesperson for HMICFRS told Full Fact that while police chiefs are not legally required to follow everything in the code of practice and must only “have regard” to it, the inspectorate had not felt it necessary to recommend a change to this, following its inspection: 

The spokesperson said: “If the police are to rebuild public trust and protect their own officers and staff, vetting must be much more rigorous. In November, we made 43 recommendations for all police forces to strengthen vetting, raise standards and tackle misconduct.

“We would have recommended that the police vetting system be put on an even firmer statutory footing if we felt it necessary to do so – for example, if we anticipated strong resistance to change. But we haven’t encountered that.”

We have contacted Downing Street about the Prime Minister’s claim and will update this story if we receive a response. 

Image courtesy of Maggie Yap