Powers Of The Home Secretary

The home secretary is one of the most senior and influential ministers in the UK Government, and the holder of a Great Office of State. The home secretary's remit includes law enforcement in England and Wales, matters of national security, issues concerning immigration, and oversight of the Security Service ( MI5).

Overview

The Policing Protocol Order 2011 sets out the roles and responsibilities of different bodies. For the home secretary, it states:

The Home Secretary is ultimately accountable to Parliament and charged with ensuring the maintenance of the Queen's Peace within all force areas, safeguarding the public and protecting our national borders and security. The Home Secretary has reserved powers and legislative tools that enable intervention and direction to all parties, if it is determined by the Home Secretary that such action is necessary in order to prevent or mitigate risk to the public or national security. Such powers and tools will be used only as a last resort, and will not be used to interfere with the democratic will of the electorate within a force area, nor seek to interfere with the office of constable, unless the Home Secretary is satisfied on the advice of Her Majesty's Inspectorate of Constabulary that not to do so would result in a police force failing or national security being compromised.

The Home Secretary retains the legal accountability for national security and the role that the police service plays within the delivery of any national response. The Home Secretary has a duty to issue a Strategic Policing Requirement that sets out what are, in her view, the national threats at the time and the appropriate national policing capabilities that are required to counter them.

Law enforcement

Oversight

The home secretary has oversight of law enforcement in England and Wales, and UK-wide elements of law enforcement. Law enforcement within Scotland and Northern Ireland is largely devolved.

The Police Act 1996 provides any secretary of state, in practice the home secretary, with powers including:
*The power to direct a police force they are satisfied is failing, or will fail, to discharge any of its functions in an effective manner, to take specified measures.
*The power to require a chief officer of police of any police force to provide them with information on such matters as they specify, and require a chief officer to publish this information.
*The power to approve (or not) codes of practice issued by the College of Policing.

The Police Reform and Social Responsibility Act 2011 amended the Police Act 1996, so it requires any secretary of state, in practice the home secretary, to issue a document called the Strategic Policing Requirement, and update it from time to time, that sets out the current national threats and the national policing capabilities needed to counter them. Police and crime commissioners and chief constables must have regard to this when carrying out their functions. For example, Tom Winsor, when Chief Inspector of Constabulary in 2021, wrote that, 'In 2015, the then Home Secretary, Theresa May, added child sexual abuse to the Strategic Policing Requirement as a new national threat. This meant that the National Crime Agency (NCA) and the police have to give special emphasis to tackling child sexual abuse.'

The home secretary also influences the way policing is conducted by, for example, meeting with police leaders to establish priorities and hold them to account, publicly calling on the police to enforce particular laws, and setting standards and expectations by writing letters and making speeches to police leaders or police officers.

The home secretary is the sole shareholder and owner of the College of Policing Limited, a company limited by guarantee. Therefore the home secretary has corporate powers in respect of the College derived from the Companies Act 2006. The home secretary appoints its chair and its chief executive officer. The Anti-Social Behaviour, Crime and Policing Act 2014 provides the home secretary with a power of veto regarding any regulations the College requests to make, and a power to direct the College to exercise any of its functions.

The home secretary has no power to direct individual police operations, as police forces have operational independence from the government. However, what constitutes legitimate oversight and what constitutes interference in operational decision-making can be disputed.

Legislation

The home secretary guides legislation through Parliament that creates and abolishes offences, or that changes policing structures. For example, the Police Reform and Social Responsibility Act 2011 transferred the control of police forces from police authorities to elected Police and Crime Commissioners.

Appointments

Under the Police Reform and Social Responsibility Act 2011, the Metropolitan Police Commissioner, regarded as the highest rank in British policing, and Deputy Commissioner are formally appointed by the king on the recommendation of any secretary of state, in practice the home secretary. The Commissioner and Deputy Commissioner then hold office at His Majesty's pleasure. The home secretary may require the Mayor's Office for Policing and Crime to call upon the Commissioner or Deputy Commissioner to retire or resign, or to suspend the Commissioner or Deputy Commissioner.

The Crime and Courts Act 2013 requires any secretary of state, in practice the home secretary, to select and appoint the Director-General of the National Crime Agency, and determine the terms and conditions of their appointment. The home secretary determines the strategic priorities for the National Crime Agency, but the Director-General has the power to decide which operations to mount, and how they will be conducted. The home secretary may call upon the Director General to resign or retire, who must then do so.

Under the Police Act 1996, inspectors in His Majesty's Inspectorate of Constabulary, and the Chief Inspector of Constabulary, are appointed by the king on the advice of any secretary of state, in practice the home secretary. The annual inspection programme is subject to the approval of the home secretary, who may also require further inspections of police forces, beyond the terms of the annual inspection programme, to be conducted.

The Anti-social Behaviour, Crime and Policing Act 2014, which established the Police Remuneration Review Body, provides for any secretary of state, in practice the home secretary, to appoint five or more members of this Body, including the deputy chair.

National security

The prime minister is the minister responsible for national security, and matters affecting SIS, MI5 and GCHQ collectively. However, the home secretary also retains legal accountability for national security.

MI5 operates under the authority of the home secretary, who is accountable to Parliament for its work. Under the Security Service Act 1989, any secretary of state, in practice the home secretary, appoints the Director General of MI5. The home secretary personally signs warrants, issued under the Investigatory Powers Act 2016, that authorise MI5's most intrusive intelligence-gathering activities.

Under the Terrorism Act 2000, any secretary of state, in practice the home secretary, may, by order, proscribe an organisation if they believe it is concerned in terrorism, and it is proportionate to do so.

The home secretary is a member of the National Security Council.

Extradition

In accordance with the Extradition Act 2003, an extradition request from another country is sent to any secretary of state, in practice the home secretary, once a judge decides it can proceed after considering various aspects of the case. This act outlines the grounds on which the secretary of state must decide whether they are prohibited from ordering the person's extradition. These are:
*if the person is at risk of the death penalty;
*if specialty arrangements are in place (these need to be in place to ensure that an extradited person only faces proceedings in respect of the conduct for which extradition was ordered). If the requesting state wishes to proceed on the basis of another offence, they must request the UK's consent before doing so;
*if the person concerned has previously been extradited from another country to the UK and the consent of that country to their onward extradition is required; and
*if the person has previously been transferred to the UK by the International Criminal Court.

If none of these four tests provide grounds to refuse the request, the home secretary must order extradition. The home secretary cannot, by law, consider any other grounds.

British citizenship

British passports

British passports are issued at the discretion of the home secretary under the authority of the Royal Prerogative. The home secretary can withdraw or withhold them from individuals using the same discretionary power. Note this is not the same as withdrawing British citizenship. On 25 April 2013, home secretary Theresa May laid a Written Ministerial Statement in the House of Commons that redefined the public interest criteria that would be used to refuse or withdraw a passport.

Misuse of drugs

The Misuse of Drugs Act 1971 creates three classes of controlled drugs: A, B, and C. The list of drugs in each class can be amended by an Order in Council that has been laid before Parliament by any secretary of state and approved by each House of Parliament. In practice, this gives the home secretary the power to list new drugs, and upgrade, downgrade or delist previously controlled drugs, though they are first required to consult with the Advisory Council on the Misuse of Drugs.

This act requires any secretary of state, in practice the home secretary, to appoint the members of the Advisory Council on the Misuse of Drugs. The home secretary appoints one of them to be chairman, and can ask them to resign.

The Police Reform and Social Responsibility Act 2011 inserted an additional power into the Misuse of Drugs Act, providing for any secretary of state, in practice the home secretary, to make temporary class drug orders by statutory instrument. These come into immediate effect and last for up to 12 months, subject to both Houses of Parliament agreeing to them within 40 sitting days of being made. This enables the home secretary to quickly bring new drugs under the control of the Misuse of Drugs Act.

Legislation on misuse of drugs is not devolved, so these powers have effect across the whole of the UK.

Migration

Acting on behalf of other secretaries of state

Legislation sometimes refers to particular secretaries of state. Often, however, legislation refers simply to "the Secretary of State" (with uppercase S's) without further elaboration. There is only one office of Secretary of State. However, in practice, more than one person will be appointed to the office, to carry out its functions. Therefore, by virtue of the Interpretation Act 1978, the phrase 'Secretary of State', when used in legislation, means "one of His Majesty’s Principal Secretaries of State". Each individual secretary of state is allocated responsibility by the Prime Minister for a particular department, and therefore, in practice, will exercise only the Secretary of State's functions that are within that portfolio. As there is only one office of Secretary of State, any secretary of state can act on another's behalf, and could exercise the other Secretary of State powers (except for powers given by the legislation to one particular secretary of state). Home secretary John Simon said in a debate in the House of Commons in 1936:

Of course, originally, there was only one Secretary of State, and, indeed, in one sense it may be said that even today there is only one office of Secretary of State, because anyone who is a Secretary of State may lawfully and constitutionally perform any act that can be done by any other Secretary of State. If I may for a moment call on my own personal experience, I happened to be Secretary of State for Home Affairs at the time when Lord Kitchener made his last fatal journey from this country, and just before he sailed from these shores I had a message from the War Office asking me whether I would sign his papers until he came back. I continued to give the formal signature which it is legitimate for any Secretary of State to put upon the papers of any other Secretary of State, and I did so until the news came of his death. Constitutionally, the office of Secretary of State is held by a number of persons who may be regarded as all one.

See also

*Home secretary
* Powers of the prime minister of the United Kingdom

References

{{Reflist

Lists of government ministers of the United Kingdom
Secretaries of State for the Home Department
Ministerial offices in the United Kingdom