Legal status of NIM
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Legal Status of NIM
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The difference between these and National Intelligence Model is that the former are Acts of Parliament, whereas NIM is not; it is not a "National Intelligence Act". Acts of Parliament derive their statutory authority from the Queen in Parliament and are identified by coats-of-arms on their covers. NIM has on its cover a picture of an eagle, which signifies nothing.
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What NIM does have is 'officiality', that is, it is the subject of a "code of practice" signed by the home secretary. The legal authority for codes of practice is section 39 of the Police Act 1996 (inserted by the Police Reform Act 2002):
| 39) Codes of practice
(1) The Secretary of State may issue codes of practice relating to the discharge by police authorities established under section 3 of any of their functions. (2) The Secretary of State may from time to time revise the whole or part of any code of practice issued under this section. (3) The Secretary of State shall lay before Parliament a copy of any code of practice, and of any revision of a code of practice, issued by him under this section. Source: Police Act 1996 Chapter 16 |
There are codes of practice for different aspects of policing, such as stop and search, surveillance, and the management of information.
| The purpose of the code of practice relating to National Intelligence Model includes, "...clarify[ing] the responsibilities of chief officers and of police authorities in relation to the application of the National Intelligence Model" (reference 1.1.1.3). For instance, the code requires that within each force an officer of at least the rank of assistant chief constable is assigned to take ownership of NIM-related policy and practice (3.2.1.) |
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The most important part of the Code of Practice, however, is its application, i.e. to whom it is applied and to what extent:
| The code of practice is issued by the Secretary of State in relation to the discharge of the functions of chief officers of police. A chief officer of police shall have regard to this code, as will the members of the police force for whom the chief officer of police is responsible (1.2.4) |
The key phrase is, "…shall have regard to this code". According to Thesaurus, to "have regard" means to "take into consideration", to "bear in mind", to "think about". It does not mean "shall implement", "will implement" or "must implement".
In other words, the Code does not compel; it stipulates only that NIM be recognised as the home secretary's preferred source of authority, i.e. people must "have regard" to it. The absence of compulsion is confirmed by NPIA by way of a disclaimer on website, regarding all such codes of practice:
| Code of Practice
The Home Secretary considers a code is needed in order to promote the efficiency and effectiveness of the police forces in England and Wales. A Code of Practice, relates to the discharge of their functions by chief officers. The Police Reform Act specifies the need for representatives of chief officers and police authorities to be consulted about the preparation of such codes. Chief Officers are therefore required to "have regard" for the code, thus non-compliance would not necessarily be unlawful, but would give rise to question. Source: National Policing Improvement Agency website (cache) |
The consequence of non-compliance is to "give rise to question". By "having regard" for the NIM Code of Practice (for instance, by reading this website) police staff who do not adhere to NIM protect themselves by being able to address questions as to their standpoint.
Awareness of the unenforceable status of NIM is blurred, however, by the propagandist style of the publication itself. For example, page 7 of NIM says that it , "…represent[s] the collected wisdom and best practice in intelligence-led policing and law enforcement". The effect of this statement is to place anyone who disagrees outside the categories of "collected wisdom and best practice".
Even the title intimidates - the National Intelligence Model - one cannot refer to it without appearing to give it national status. The use of the word 'national' is a Stalinist technique, whereby anyone who does not conform is labelled as outside the community. Acts of Parliament do not use intimidating language because they possess authority. NIM is the reverse; it has no authority and so relies on intimidating language. It is merely the opinion of those that wrote it, and opinion, by definition, cannot be national.
| To provide direction on the implementation of NIM, NPIA publishes Guidance on the National Intelligence Model, designed to "... underpin the NIM Code of Practice" and provide "... the primary source of reference for the application of NIM". |
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In contrast to the disclaimer on its website, NPIA's Guidance denies the unenforceable nature of National Intelligence Model. According to its summary of the code of practice on page 8:
Note the highlighted sentence; the Guidance goes from "having regard" to "ensure".
The Guidance goes on:
The extract states, in bold print, that NIM minimum standards had to be implemented nationally by November 2005. This is untrue; police forces only had to "have regard" to the minimum standards by November 2005.
There are 135 NIM minimum standards, and each one relates to a different aspect of NIM: for instance, the recruitment of analysts is NIM minimum standard 51, and the recruitment of Principal Analysts is minimum standard 52. There is no NIM minimum standard that compels a distinction between investigation and production of statistics.
The propagating of a mythFalse claims about NIM's legal status are reiterated in police forces up and down the country; for example, Gwent Police says, "There is an ongoing requirement to maintain compliance with the NIM Minimum Standards" (source).
The Metropolitan Police says that the policy of NIM "... applies with immediate effect. All police officers and police staff, including the extended police family and those working voluntarily or under contract to the MPA must be aware of, and are required to comply with, all relevant MPS policy and associated procedures ... this policy applies in particular to ... intelligence staff" (source).
And Cambridgeshire Constabulary's NIM policy statement says that it will "... support the wider principles of the NIM as espoused by NCIS and ACPO, and that "... any failure to comply ... [may be considered] misconduct or gross misconduct and result in disciplinary action" (source).It is a scandal that government agencies and most UK police forces mislead staff as to NIM's legal status. Casual misleading of staff occurs routinely and its scale can only be guessed at. A typical example, reported to this writer, is a supervisor telling an intelligence analyst to do "hotspots". When the intelligence analyst replied that this was not their purpose, the supervisor replied, "You have to do it; it's in the National Intelligence Model".
The International Dimension
There is an international dimension to all of this, in that law enforcement managers overseas have exactly the same propensity to misuse intelligence analysts as those in Britain. Britain's National Intelligence Model is the first attempt to institutionalise on a national basis the misuse of analysts, and overseas managers have not been slow to adopt a similar arrangement.
For instance, National Intelligence Model forms the basis of the Australian Intelligence Model, developed by the Australian Crime Commission. At the state level, Victoria Police operates an intelligence model which, it says, "…draws much of its inspiration from the National Intelligence Model", and is "… as much a management decision-making model as it is a description of intelligence processes and products".
In the United States, an Intelligence Sharing Summit set up in the wake of 9/11 examined National Intelligence Model as a potential blueprint for the United States. The outcome was the National Criminal Intelligence Sharing Plan (link) which declared, "The role of analysis in a law enforcement agency is to support the investigative, planning and intelligence activities of the agency". Note the inclusion of the word 'planning'. The words investigative and intelligence are relevant to criminal intelligence; planning is not.
A recommendation was made by the summit that that IALEIA, the U.S. based International Association of Law Enforcement Intelligence Analysts, "… should develop … minimum standards for intelligence analysis to ensure intelligence products are accurate, timely, factual, and relevant." IALEIA subsequently produced a training programme called Foundations of Intelligence Analysis Training (http://www.ialeia.org/fiat). This writer has not been on the course, but indications as to its content are shown by the 2004 publication "Law Enforcement Analytic Standards", produced by IALEIA in collaboration with the U.S. Department of Justice:
"Analysis can also be integrated into a department's planning efforts. Strategic analysis identifies significant crime problems and recommends actions to reduce or prevent crime that should become part of the agency's strategic plan". (p17)
Sound familiar? The publication also refers to strategic assessments, problem profiles, crime patterns, demographic and social trends, and geographic analysis, indicating that American law enforcement managers have usurped the National Criminal Intelligence Sharing Plan in much the same way as National Intelligence Model has been hijacked by ACPO.
Summary
Malpractice in regular law enforcement is bad enough, but it raises particularly uncomfortable thoughts in relation to counter-terrorism. Potential exists for a nuclear bomb to be fitted into a suitcase, meaning that a terrorist could walk into any city and detonate it. One would hope that intelligence analysts in MI5, the CIA and elsewhere are working to identify terrorists who seek this capability. But unless intelligence analysts are encouraged to think like detectives, ask questions, scour databases, link person to person, and person to materials, then how, precisely, is actionable intelligence against these terrorists going to be developed? It isn't, and more 9/11s - and worse - will happen.