Grand Committee Report of 9 January 2003

Official Report of the Grand Committee on the

  Police (Northern Ireland) Bill [H.L.]
  (Second Day)
  The Committee met at a quarter before four of the clock.
  [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
  Clause 16 [Chief Constable's functions]:
  Lord Rogan moved Amendment No. 40:
  Page 9, leave out lines 36 and 37.
  The noble Lord said: This clause seeks to prioritise the policing plan over the code of practice. Is it possible to have regard to one before the other, or to give greater weight to one over the other, given that one is having regard to each of them? In any event, when the SDLP in another place sought leave for the Chief Constable to comply with the policing plan, this was properly rejected by the Government.
  One should keep in mind that the code of practice is from the Secretary of State and that the policing plan is from the board. Patten does not appear to recommend this clause. I beg to move.
  The Lord Privy Seal (Lord Williams of Mostyn): This amendment runs counter to a commitment in the discussions which led to the Implementation Plan. One finds it at page 5 of that document in relation to Patten Recommendations 10, 11 and 12. The noble Lord, Lord Rogan, is right; there is a adjustment of the balance of the tripartite relationship in favour of the board. I suggest that what we see in Clause 16 is perfectly workable:
  "(2) The Chief Constable shall have regard to the policing plan in discharging his functions.
  (3) The Chief Constable shall have regard to any code of practice under section 27 in discharging his functions.
  (4) The duty under subsection (3) applies only so far as consistent with the duty under subsection (2)."
  That makes plain that it is the board's policing plan that is to have primacy. I do not think there will be any significant divergence. As the noble Lord, Lord Rogan, mentioned, the Secretary of State will have consulted the board with a view to reaching agreement on the terms of the code of practice before the code of practice is promulgated. We look to the board as the primary vehicle for police accountability. That is the reason for the change in the Bill.
  Lord Maginnis of Drumglass: As always in the Bill it appears that the explanation given by the Minister indicates the lack of necessity for this clause. If it is all pre-determined because of consultation which has
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  taken place, and if the Secretary of State and the board are at one, there should be consistency—a word which came up frequently yesterday. Therefore, I believe that Clause 16 is unnecessary. In that respect, I give notice that, based on the assurances given by the noble and learned Lord, we shall oppose the entire clause.
  Lord Glentoran: I should like an explanation. I simply cannot understand what subsection (4) does here; it does not seem to do anything.
  Lord Williams of Mostyn: It does what I said earlier. Subsection (2) puts certain duties upon the Chief Constable; subsection (3) puts different duties on the Chief Constable; and subsection (4) makes it plain that the duties under subsection (3) apply only so far as is consistent with the duty under subsection (2). It is, curiously—I say this with great respect—remarkably clear.
  Lord Rogan: With the assurance that I have heard from the noble and learned Lord the Lord Privy Seal, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 16 agreed to.
  Clause 17 [Provision of information to Board]:
  Lord Shutt of Greetland moved Amendment No. 41:
  Page 10, line 5, leave out "reasonably"
  The noble Lord said: The issue is whether it is reasonable to include the word "reasonably", and I submit that it is not reasonable to do so. The clause should state:
  "The Chief Constable shall supply the Board with such information as the Board may require",
  for its purpose. If the board believes that it requires information for its purpose, that should be reasonable because one assumes that we are talking about a reasonable board. It seems to me that, if we were to delete the word "reasonably" at this point, there would not be a dilemma as to whether a request was reasonable or unreasonable and there would be no need for a decision as to who should arbitrate. The situation could arise where, if a Chief Constable did not want to supply something, he could say that he did not consider it to be reasonable. I do not believe that that would be a good position between a Chief Constable and a board.
  There is a great deal in the main Act and in this Bill about ensuring that a board is responsible and reflective and so on. Therefore, surely such a board would, in any event, be reasonable. Thus, at this point it seems to be superfluous to include the word "reasonably", and we believe it should be deleted. I beg to move.
  Lord Glentoran: Once again, I shall ask a question as I am not sure whether or not to support the amendment. I would interpret the word "reasonably" according to whether or not "reasonable" is defined by other preconditions elsewhere in the Act. It is clear how the Chief Constable may apply to 'the Secretary of State not to give certain information, and there are

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  other constraints on the Chief Constable's disbursement of information. I assume that that is what is being referred to by the word "reasonably".
  Lord Mayhew of Twysden: There is a slight element of dancing on the head of a pin but that is sometimes a necessary exercise, as was elegantly performed just now. Before the noble and learned Lord replies, I wish to suggest to him that we might overcome the difficulty if the word "require" were substituted by the word "need". As presently drafted, it is correct that "reasonably" is required, because "required" equals "making of a requisition" and, as we all know, one cannot simply use a power to make a requisition or any other power, save in a reasonable manner. It may be worth considering that, if we were to use the words,
  "which the board may need for the purposes",
  the word "reasonably" could be left out. That is a tiny suggestion but I used to have to deal with these things.
  Baroness O'Cathain: Is it not the case that information could be available to the Chief Constable that the board might think it needed in order to come to a decision about something? However, the Chief Constable could convince the board that it should not have information. Although the board is supposed to be reasonable, yesterday we heard much about the doubts and tribal issues which seem to haunt every aspect of the Bill. Being the person on the ground who knows all the information, the Chief Constable might think that an issue is too sensitive for the board and that the board does not need it for what it has to do.
  Lord Williams of Mostyn: I am grateful for that last observation. We hope—I believe this will be the outcome—that the Chief Constable and the board will work increasingly in closer harmony. Indeed, there are good auguries for that. The noble Baroness is also right because if one looks at Section 33A(2), the Chief Constable may decline to supply information if he comes to the conclusion that it should be disclosed on any of the grounds mentioned in Section 76A(1), to which we shall return. In response to the invitation by the noble Lord, Lord Shutt, to the feast of unreason, I make two comments. First, a reasonable board may nevertheless make unreasonable requests, just as do reasonable peers! I understand what the noble Lord says. I am also grateful for the comments of the noble and learned Lord, Lord Mayhew. Certainly, I shall reflect on what has been said, without particular commitment, to see whether any change is needed and whether the re-nuancing could be presented in a different way. I give a commitment to think carefully about this matter. If we reach the conclusion that it can be improved, I shall come back with a government amendment.
  Lord Shutt of Greetland: I am grateful for those comments and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 17 agreed to.
  Clause 18 [Fixed-term appointments]:
  [Amendment No. 42 not moved.]
  Baroness Harris of Richmond moved Amendment No. 43:
  Page 10, line 15, at end insert—
  "(1A) The Board may appoint a person of the rank of senior officer to the Police Service of Northern Ireland for a fixed term not exceeding three years."
  The noble Baroness said: I shall be brief. We suggest that the board may appoint a person of the rank of senior officer to the Police Service of Northern Ireland for a fixed term not exceeding three years. We do so because we believe that it should be not only the Chief Constable who is able to do that but also the board. The Chief Constable cannot appoint a rank of a senior officer; that is, someone of ACPO rank. That is the responsibility of the board. However, here we are speaking of the Chief Constable directly recruiting sergeants, inspectors and above to the rank of chief superintendent, perhaps using the fast-track procedure. I should be grateful for clarification from the Minister.
  There is the also the question of the board being able to undertake the responsibilities of recruiting people of non-uniformed rank, who I would call support staff. There is a range of support staff in middle management who the Chief Constable might want to recruit and, indeed, who the board might want to suggest to the Chief Constable be recruited. We believe that it would not be necessarily suitable to limit such matters to the responsibility of the Chief Constable and would ask that the question of the Board appointing people of the rank of senior officer to the service for a fixed term not exceeding three years be again considered. Amendments Nos. 44 and 46 are consequential. I beg to move.
  Lord Williams of Mostyn: I wonder if I can help directly in response to the noble Baroness's request for clarification. These amendments are not required because under Section 35 of the Police (Northern Ireland) Act 2000 the Policing Board is already responsible for the appointment and removal of senior officers in the police. The power to make the fixed-term appointments for senior officers, to which the noble Baroness refers, already belongs to the board under Section 25(6) of the Police (Northern Ireland) Act 1998. I hope that explanation is useful. There is already statutory provision to bring about the consequences for which the noble Baroness was looking.
  4 p.m.
  Viscount Brookeborough: I understood the noble Baroness to be saying that she wished the board to be able to appoint people of below the level, albeit senior, of the rank to which it already appoints. I beg to disagree with her amendment on the basis that the board is responsible for appointing the very senior officers. Below that level one could consider that the appointments are operational. Speaking as an

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  individual, not for the board, I believe we should not be involved in promotions and appointments down the chain of command beyond that which we already have.
  Baroness Harris of Richmond: I shall clarify my point. I understand that and I am sure the board would not want to interfere with the operational requirement of the Chief Constable to make sure that he or she appointed appropriate people. We are suggesting that the board can also appoint a person of senior officer rank, who might—although not necessarily—work in support of a uniformed officer. I am speaking particularly of directors of finance or directors of personnel, for example. I have been very interested to hear the Minister's response and I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 44 to 46 not moved.]
  On Question, Whether Clause 18 shall stand part of the Bill?
  Lord Maginnis of Drumglass: This clause is particularly interesting. The Explanatory Notes we received are of little assistance in determining its purpose and we have to reach our own conclusions. It appears to be designed to avoid the 50:50 criterion for those brought in on secondment. The Government are unwise to want to avoid that sort of discrimination against others eligible for secondment in this area when they see it as perfectly appropriate to discriminate against others in recruiting in Northern Ireland. I use the term "others" because we can recruit 50 per cent from the Roman Catholic tradition and 50 per cent from others, who may represent a multiplicity of ethnic or religious or other groups. The difficulty is that if there was no definition of which group these people belonged to, it would ultimately be stacked up when they came to serve. We all know that that would be unavoidable. In reality, head counts would be carried out and the imbalance in terms of recruiting ordinary members of the Northern Ireland public would, over a longer period, result in discrimination. I am not sure that I have made myself very clear on that point.
  However, if we seconded a number of English, Scottish and Welsh policemen and they were deemed to be "others", as inevitably they would be, then, when it came to trying to level out the recruitment figures for ordinary recruits in Northern Ireland, that would simply mean that the 50:50 criterion would last longer. I hope that I have made myself clear to the noble and learned Lord and that he will be able to give us an explanation as to how that might work, other than as I envisage.
  Lord Williams of Mostyn: I believe I am right in understanding that the noble Lord was speaking to Clause 18 stand part.
  Lord Maginnis of Drumglass: Yes.
  Lord Williams of Mostyn: Clause 18 allows the Chief Constable the power to appoint someone to the Police Service of Northern Ireland for a fixed term of up to
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  three years. The noble Lord is right: we are talking about seconding to that sometimes hard-pressed force of experienced officers from other jurisdictions—not simply from England, Scotland or Wales. We discussed this matter at Second Reading and a number of your Lordships said that it might well be helpful to have expertise from other jurisdictions.
  As will be seen, the Chief Constable cannot use this power to appoint anyone as a constable or as a senior officer. The 50:50 division, which the noble Lord, Lord Maginnis, referred to, relates to the recruitment of constables. Therefore, 50:50 does not apply to this category. I repeat: 50:50 applies only to the recruitment of constables. I hope that that is the explanation which the noble Lord was looking for.
  Lord Maginnis of Drumglass: I am grateful. If it is as the noble and learned Lord explains it, then there is some relief. However, I imagine that, when it comes to assessing the respective strengths of the RUC in terms of Roman Catholics and others, the headcount will apply not only to constables but that it will be a headcount throughout the PSNI. Hence, if I am right—I shall accept correction if I am not—it could extend the requirement for this indiscriminatory 50:50 criterion over a much longer period.
  Lord Williams of Mostyn: I am happy to respond. The 50:50 division applies only to recruitment at constable level. The people who come from other jurisdictions could be Buddhists or members of the Church in Wales, which has a long history of evangelical good.
  Viscount Brookeborough: When people join the Police Service of Northern Ireland, that is one thing, but when they are seconded to it, they are still members of their parent organisation to which they will return. I suspect that, when one talks about total numbers in the Police Service of Northern Ireland being one balance or the other, that would not reflect those from outside the Police Service of Northern Ireland. Therefore, the clause applies to secondments and not to transferees.
  Clause 18 agreed to.
  Lord Maginnis of Drumglass moved Amendment No. 47:
  After Clause 18, insert the following new clause—
  "REMOVAL OF DISCRIMINATION FROM RECRUITMENT
  (1) In Part 6 of the Police (Northern Ireland) Act 2000 (c. 32) for section 46 substitute—
  "46 UNDER-REPRESENTATION
  (1) In making appointments under section 39 the Chief Constable may take such steps as he determines appropriate to encourage applications by persons currently under-represented in the police service.
  (2) In making appointments to the police support staff under section 4(3) the Chief Constable (acting by virtue of subsection (5) of that section) may take such steps as he determines appropriate to encourage applications by persons currently under-represented in the police support staff.

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  (3) For the purposes of this section "persons currently under-represented" means persons forming part of a social group by virtue of their sex, religion, ethnicity or sexual orientation who at the time of consideration by the Chief Constable are under-represented."
  (2) In Part 6 of the Police (Northern Ireland) Act 2000 (c. 32) leave out section 47."
  The noble Lord said: The amendment is intended to remove discrimination from recruitment. Whatever the good intentions of Patten in suggesting a 50:50 resolution to the current imbalance which we all recognise, it is simply not working. At present there are not enough recruits becoming available from within the Roman Catholic tradition. Sadly, that worries us all. We should like to see a much higher level of application from the Roman Catholic tradition. During the Patten inquiry I was one person who suggested that. If there were adequate recruits coming forward from all traditions, particularly Roman Catholic, there would be a natural opportunity over a period to recruit on roughly a 50:50 basis. That would not be hugely out of proportion to the balance of the community overall in Northern Ireland.
  That was my opinion and not one which was generally approved or sanctioned by the Ulster Unionist Party. I would need to admit to getting into some hot water for my liberalism on that point. However, I emphasise that my point was made on the basis of a large number of potential recruits coming forward from both traditions. That has not happened.
  There is still a huge discrimination by Sinn Fein/IRA against members of the Roman Catholic tradition who would like to join the police. They are openly told by the leaders of Sinn Fein that the PSNI is simply the RUC as was. Hence, many of those who would like to join the RUC and who decide to pursue their policing ambitions as a career move across to this side of the water rather than run the risk of endangering their families, or of having younger brothers and sisters subjected to abuse within their own communities.
  There have been a number of occasions on which constables who have joined from the Roman Catholic tradition have been specifically earmarked for attack. I believe that there is now the opportunity to make the Chief Constable more responsible for finding an informal rather than a formal way of encouraging applications from persons or groups who are currently unrepresented. There is no reason why that would not be a more successful way to proceed.
  The current system highlights how many Roman Catholic recruits and how many others there are in an intake, how many are recruited and what the balance is. If one or two of the potential recruits drop out, there has to be a similar reduction on the other side. Gradually RUC numbers—sorry, PSNI; I have lived too long with the old terminology—have fallen below the level that was intended by Patten. Many of us believed that, given the huge pressures in Northern Ireland society and the predisposition for organised crime to fill the void left by terrorism, the figures envisaged by Patten were hugely over-optimistic.
  Now that has failed to be achieved, the police are over-stretched. The most awful decisions are being taken to try to make the number of police do a job that requires many more.
  One of the saddest things for the community in Northern Ireland of late has been the arbitrary decision made by the new Chief Constable to disband the police band, which was made up of 31 full-time musicians. I have not often criticised the Policing Board, but on this occasion it has been far too amenable to an arbitrary decision made by the Chief Constable.
  4.15 p.m.
  Viscount Brookeborough: That is an operational decision of the Chief Constable on redeploying policemen. It was not and could not be taken by the board.
  Lord Maginnis of Drumglass: I am relieved to have that assurance from my noble friend Lord Brookeborough. The information coming to me from the police division was that the board had reluctantly accepted the Chief Constable's decision.
  There was a tradition, particularly in Northern Ireland at a time when it is important to interface with society right across the board, of the police band making itself available to play at charity concerts and church services. It was a wonderful asset. I see the noble and learned Lord, Lord Mayhew, nodding in agreement.
  I am straying from the amendment, but it is an appropriate time to make this point. The disbandment of the band, which may save £1 million in a year, is almost a punishment on the police. The noble Lord, Lord Fitt, indicated yesterday that the Northern Ireland Office is dishing out money to that rogue, Kevin Fulton, in order to keep his mouth closed. There appears to be discrimination at every level. The disbandment of the RUC band will not put one extra policeman on the beat. I may exaggerate, but it will not put 31 nor 21; it may put half a dozen. That is to do with the age and the length of service of these people and so on. They will not now volunteer to go out on the beat and relearn the policing skills that they require. That is an aside but it is an important one. I would have hoped that someone could reassure me that the money will be found to sustain the band and to have it reformed.
  I return to Amendment No. 47. The other point that I want to make is that something must be done to ensure that recruitment can be carried out in a way that puts policemen on the ground. The responsibility should rest with the Chief Constable, and that is the purpose of the amendment. I beg to move.
  Lord Williams of Mostyn: I am grateful to the noble Lord because he has made it plain that he wants to replace the 50:50 recruitment arrangements. It is fair to say that similar amendments were introduced and debated quite frequently during the passage of the Police (Northern Ireland) Act 2000 and we have not shifted our position on that.

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  The important point that might strike Members of the Committee is that Section 47 of the 2000 Act provides for a triennial review by Parliament of the 50:50 recruitment arrangements. That is not an unreasonable time if, for example, one takes a management view to see how things are working. The first review will take place early next year.
  Perhaps I may offer a few facts and figures. The level of response from the Roman Catholic community since the implementation of the recruitment notice has been unprecedented at 36 per cent. That is a remarkable achievement. Prior to Patten, the most achieved was 22 per cent. The proportion of Roman Catholics in the PSNI has already risen from 8 to 11.69 per cent—another remarkable achievement. I compare that with an increase of just over 1 per cent in the 10 years prior to Patten. The 50:50 arrangements apply to police support staff, and the measures are having some effect. The figure of 12 per cent has increased to 13.3 per cent.
  It seems that, when we have a triennial review in the 2000 Act, we should let things work in order to see how they develop. The 2000 Act also provided that Section 75 of the Northern Ireland Act 1998 applies to the police. That places a duty on the police to have regard to the need to promote equality of opportunity. Under-representation of Roman Catholics remains the current priority.
  Perhaps I may give one last figure. In the first year post-Patten, 530 recruits entered training. That is well in excess of the Patten figure of 370. I do not believe that the picture is as gloomy as the noble Lord suggests. If it turns out that I am wrong and he is right, which, other things being equal, is always possible, then we shall have the answer at the triennial review.
  Viscount Brookeborough: Although I do not support the amendment, I ask the noble and learned Lord to give us a precise figure for the police support staff. I believe there is a big problem with that in that we require X number of civilians and the number is way below it. If the Minister has the figure, I should be interested to know it.
  Lord Smith of Clifton: Although we do not support the amendment in its entirety, we believe that proposed subsection (3) has much merit. If it were accepted, it would at least put the issues of gender, sexual orientation and ethnicity on the same footing as religion. Although I should like to be assured that this is not the case, I believe that there has not been the same effort to increase the proportion of women entering the police force and that there is—understandably in some ways—a concentration on religious imbalance, but we should not lose sight of those other under-represented groups.
  Lord Williams of Mostyn: I agree with what the noble Lord said. We must not lose sight of them but I repeat that in our present circumstances, given the historic background, our priority must remain the 50:50.
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  The noble Viscount asked for figures. I have already given the percentage. If the figures that I have before me are correct, combined direct recruit civil servant figures for the PSNI at the end of December 2002 were: Protestant, 2,893, or 82.7 per cent; Roman Catholic, the percentage that I gave of 13.3, which is 466; and other 4 per cent, which is 139. I think that those are the figures for which the noble Viscount asked.
  Viscount Brookeborough: I thank the noble and learned Lord. I intended to highlight the fact that I understand the Chief Constable made a statement to the press fairly recently, before Christmas, in which he said that he was unable to civilianise jobs—that is, to enable police support staff to take up jobs to release policemen for other duty—purely because he could not recruit sufficient Catholics into that side of the service. That situation may obtain at present.
  Lord Maginnis of Drumglass: I am grateful to the noble Viscount, Lord Brookeborough, for highlighting that point about the inability of the Chief Constable to release members of the PSNI because civilian staff cannot, as yet, be recruited. The noble and learned Lord has been helpful and has presented us with some figures that give me heart and will be welcomed in the movement towards balancing the makeup of the PSNI. Therefore, when I use the cliché "lies, damned lies and statistics", I do not in any way reflect on his helpful reply, but I believe that inadvertently he has missed the point that I sought to make.
  Whatever Patten sought to achieve, Patten got a number of things wrong. Whatever the Government were trying to achieve, they got a number of things wrong. One was the exodus of experienced policemen from the force under the scheme that was put in place. Far more senior and experienced officers left the force than was originally envisaged. That resulted in Patten's ceiling for the number of policemen not being achieved. Whatever statistics do, they do not illustrate that.
  Perhaps I may I pick up on the helpful point made by the noble Lord, Lord Smith of Clifton, and mention the recruitment of women to the PSNI. I know of one case—involving someone whose family is fairly close to mine—of a serving full-time reserve officer, who has already passed the level of requirements for entry into the regular police. She is now going through the process for the third time—it is a constant process. You can hit the standard, but on both previous occasions she has not been accepted because insufficient Catholics were entering the depot. The noble Lord mentioned the level of applications, but that does not necessarily reflect the level of recruitment. There is a sifting process—a rather strange one, but a sifting process none the less. There is then a period during which people who are accepted may decide that they would like to join the police, but not yet.
  On the "others" side, there are those who are already—perhaps as in the case of this young lady—in the full-time reserve, who want to continue a career but

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  who are being rejected. The Chief Constable, despite the fact that he has a deficit, is unable to make a considered judgment because that falls outwith the strict guidelines.
  The same applies to civilian staff. I think that I am right in saying that we have about 60 policemen currently sitting and watching closed-circuit television pictures—a job that could adequately be done by civilian staff, but that cannot be because the recruiting criteria are such that they inhibit what the Chief Constable needs. If the noble and learned Lord wants to respond to those specific points, I shall give him the opportunity to do so, but I accept what he said and am content to withdraw the amendment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  4.30 p.m.
  Lord Smith of Clifton moved Amendment No. 48:
  After Clause 18, insert the following new clause—
  "DISCRIMINATION IN APPOINTMENTS: EXPIRY, RENEWAL AND REPEAL OF TEMPORARY PROVISIONS
  In section 47(3) of the Police (Northern Ireland) Act 2000 (c. 32), for "three years" substitute "one year."
  The noble Lord said: The purpose of Amendment No. 48 is to provide for Parliament, once every 12 months, to discuss and debate how successful or otherwise the provisions have been in terms of recruitment and the balance between the two traditions. It would be useful for Parliament to consider that more regularly than once every three years. When speaking to the previous amendment, the Minister said he thought that three years was a sensible period from a management point of view, but we are not just concerned with management in the issue of Northern Ireland. A more regular review would be more appropriate at this stage.
  That said, our second amendment, Amendment No. 49, states that there should be a finite end to this 50:50 thing. Patten suggested that it should come to an end after 10 years; we are simply trying to reinforce that element in Patten by stating that we should now provide for the 50:50 thing—which we support at present—to be brought to an end. Otherwise, knowing Northern Ireland, it will drag on. It is just as well that we now say: "Concentrate your minds. This will run for a decade and that is long enough. If you then have to extend it for some reason, fair enough, that can be considered". However, at present, we think that there is merit in indicating to those responsible that the provisions should have a sunset clause. I beg to move.
  Lord Fitt: I support the amendment moved by the noble Lord, Lord Smith. Indeed, in a limited way I would have supported the previous amendment tabled by the noble Lord, Lord Maginnis.
  Noble Lords will be aware of the reservations I expressed throughout debates we have had on the police in relation to the criterion of one religion being used before they could be recruited to the new force. I still believe there will be great difficulty in ascertaining
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  the exact religious qualification of potential recruits. To recruit a person to the PSNI means that one is asking that person to give his support to the state of Northern Ireland. That is what this is about. The recruitment to a force in Yorkshire or to any other part of the kingdom does not bring in any constitutional question but it does in Northern Ireland. That is why the IRA are bitterly opposed to any person of the Catholic religion joining the PSNI or its predecessor, the RUC. That would be tantamount to saying that those people were giving support to the constitutional position of Northern Ireland, which is in total opposition to the idealistic approach by the IRA who want to do away with the constitution. Therefore, there will be great difficulty.
  As regards recruits, the Lord Privy Seal has given the number of Catholic applications to join the PSNI. I should like to ask him a question to which I know he will not be able to give me an answer. If he were to give me an answer that would possibly put in danger the lives of potential recruits. Knowing Northern Ireland, I am certain that the persons who have applied to join the PSNI do not live in Ballymurphy, Turf Lodge, New Barnsley, New Lodge Road, South Armagh, the Creggan in Derry or the Bogside in Derry. All those areas are in the control and grip of the IRA in Northern Ireland. Any young man, no matter how he may feel he could contribute to society in Northern Ireland by joining the PSNI, cannot put on the PSNI uniform and go home to his mother, father, wife, brothers and sisters in any of the areas I mentioned.
  There was, still is and, so far as I can see, will be for the foreseeable future massive intimidation. I have friends in Northern Ireland who are Catholic who joined the RUC two or three years ago but cannot serve in any of those districts. They are made to serve in a Protestant district. They live in daily fear of their lives that someone from the district where they live will see that they are wearing a police uniform in another part of Northern Ireland.
  Patten's ideas may be totally acceptable. However, he was trying to foresee Northern Ireland not in a state of political unrest or political violence, but where it would become accepted and where there would be a normalisation of society with a normal police force. I wish I could have that vision and be that optimistic. However, we are living with reality. The police of Northern Ireland are not accepted in those republican areas.
  There is another point I make to noble Lords of a unionist tradition. One can remember the great Troubles that took place at the parades at Drumcree on 12th July when the Orange Order insisted on marching on the Garvaghy Road. The police, the RUC as it then was, and even last year the PSNI, prevented what they regarded as an illegal march. One could see and hear on our television screens the rioters pointing at the Protestant policemen, saying, "We know where you live". They were threatening the Protestant policemen; indeed, many Protestant policeman had to shift from their homes, particularly in North Antrim and the Carrickfergus area. That shows the unstable way the police have to live.

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  Unfortunately 302 of them had to die in trying to carry out their duties that were so envisaged by the Lord Privy Seal yesterday.
  Once again, I would like to know—perhaps I could not be trusted with the information, but if someone wrote to me it would help me to make up my own mind—how many of the recruits come from those very troubled areas I have mentioned. Has any of them donned the police uniform of the PSNI and gone into Turf Lodge or Ballymurphy or South Armagh? Until people from those communities are able to stand up and be counted and throw off the yoke of oppression and dictatorship that is mounted on them daily by the IRA, we will never have the required number of police and we will never have the police force that we dearly want to see in Northern Ireland.
  Viscount Brookeborough: The noble Lord, Lord Smith, will be delighted to hear that I support his amendment, for two reasons. First, I do not think it is unreasonable that we should be able to monitor year by year how this is going on. If it is a good story, as the Government and the rest of us in Northern Ireland hope, we should let the public know. The second reason I would like it to be monitored every year is that I believe that under the noble and learned Lord's plans I might not be here in three years' time and I would like to be here to see it monitored.
  Lord Glentoran: Once again, the noble Lord, Lord Fitt, has brought reality to the Committee. I support the amendment of the noble Lord, Lord Smith, for several reasons, but most importantly because of the desperate problem, so well outlined by the noble Lord, Lord Fitt, facing the Chief Constable and, to some extent, the Policing Board. The noble and learned Lord the Lord Privy Seal has given us some encouraging numbers, but it is not going to get any easier to recruit Roman Catholic policemen and women; it is going to get more difficult until we have normalisation.
  I believe it is an extremely good idea, now that the Province is so disturbed again and everything is so uncertain, that we should have the opportunity to review the recruitment situation, as suggested in the amendment. There was a time when we had two or three Acts of Parliament that we reviewed annually. Those have gone away now as a result of devolution, so we do not have a fixed monitoring debate perhaps once every six months on what is happening in Northern Ireland. This would be a very good way of focusing in on what I believe is the most serious problem left. The day we can get the police force up to strength and accessing and walking in the streets as part of the communities mentioned by the noble Lord, Lord Fitt, we will not be sitting here worrying about Northern Ireland.
  I also support the second part of the amendment. There is nothing like a straightforward target and this Government, more than any other, have been very fond of setting themselves targets. I am sure they have the same reason for setting targets as I used to have; you set a target to motivate people so that they will do
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  everything they can to achieve that target. You may not achieve it, but at least you have something to aim for. I strongly believe that it is an exceptionally good idea to have a target in this context. I support the amendment.
  Lord Williams of Mostyn: I understand, as best I can, the very serious points that the noble Lord, Lord Fitt, is making and I cannot disagree with his comments on the level of intimidation. The noble Lord will not be surprised that I do not have precise figures to hand, I understand from the advice I have had that there have been some recruits from the areas to which he refers. They must be exceptionally brave human beings to take that step.
  I hope I do not gloss over the difficulties. When one sets up new Northern Ireland institutions in the Westminster context there is a serious danger of constant interference. This then means a lack of trust in the ability of new institutions, organisations, and structures to develop a life, validity and worth of their own.
  I do not discard the general approach of the noble Lord, Lord Fitt. He asked for a sunset clause and spoke of review. In Section 47(2), on page 24 of the 2000 Act, there is a sunset clause. It says:
  "The temporary provisions shall, subject to subsection (3), expire on the third anniversary of the commencement date."
  The review is in March next year and the expiry of the temporary provisions is on the third anniversary.
  In Section 47(3), the Secretary of State may order the continuance of the temporary provisions for a maximum of three years—not for a further three years, but for a period not exceeding three years. There is the target, to use the phrase of the noble Lord, Lord Glentoran, or the sunset clause, to use the phrase of the noble Lord, Lord Smith, but also the necessary flexibility.
  It is important to bear in mind Section 47(4). In deciding how to exercise his powers or whether to exercise them at all, the Secretary of State has to have regard to the progress that is being made, and, importantly I hope from the noble Viscount's point of view,
  "Consult the Board and take into account any recommendations made to him by the Board."
  Therefore, if things go well, as we all hope, 10 years will not be a relevant figure. We have flexibility here and a degree of autonomy which the board and the Chief Constable need. I respectfully suggest to your Lordships that the scheme in Section 47 requires no such amendment, and indeed, any such amendment if ultimately carried on Report would damage the present system.
  4.45 p.m.
  Lord Smith of Clifton: I am grateful for the support that has been shown, particularly on Amendment No. 48. I have heard what the noble and learned Lord said about Amendment No. 49, and am grateful for his explanation.

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  I believe that we will want to return to Amendment No. 48 on Report, particularly bearing in mind the widespread support it has received in Committee. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 49 not moved.]
  Lord Rogan moved Amendment No. 49A:
  After Clause 18, insert the following new clause—
  "DISCRIMINATION IN APPOINTMENTS
  (1) In section 46 of the Police (Northern Ireland) Act 2000 (c. 32) (discrimination in appointments), for subsection (3) substitute—
  "(3) The Secretary of State shall make an order under subsection (2) in relation to the making of appointments under section 39 if he is satisfied that—

  (a) were those appointments to be made in compliance with subsection (1) (as originally enacted) the number of police trainees which the Chief Constable requires to be appointed on that occasion could not be appointed; or

  (b) the number of serving officers is below that intended at the time of consideration."

  (2) In section 46 of the Police (Northern Ireland) Act 2000, for subsection (7) substitute—
  "(7) The Secretary of State shall make an order under subsection (6) in relation to the making of appointments under section 4 if he is satisfied that—

  (a) were those appointments to be made in compliance with subsection (5) (as originally enacted) the number of police support staff which the Chief Constable requires to be appointed on that occasion could not be appointed; or

  (b) the number of police support staff employed is below that intended at the time of consideration.""

  The noble Lord said: We are all familiar with the issue of 50:50 recruitment. I am sorry if yet again I labour the point, but it will not simply go away. In fact, it will get worse over time.
  I was reassured by the figures given to us by the noble and learned Lord the Lord Privy Seal, but I am more pessimistic than he is. Obviously, if I am right in suggesting that the potential recruits from the Roman Catholic community are slowing down—and at an alarming rate—that will have a dramatic effect on the overall recruitment figures to the police service of Northern Ireland.
  The principle of equality of opportunity is central to the Belfast agreement, yet it is constantly being denied to recruits to the police service. This was one of the most contentious issues in the passage through the Lords of the 2000 Act. The result of the vote on the amendment on 15th November 2000 was 175 in favour of scrapping 50:50 and 185 against.
  It has previously been alluded to by several speakers that the people of Northern Ireland are not simply Catholic or Protestant or Catholic and non-Catholic. Although young Protestants will be, and are being, discriminated against if they apply to serve in the police force, the same will happen to young Muslims, Jews, Turks, Hindus and, indeed, even young Welsh Methodists who do not attend Catholic schools.
  It is apparent that discrimination and recruitment is immoral. It is unfortunate that a measure which has been illegal elsewhere in Europe since 1st January 2003 is still legal in Northern Ireland because, I suggest, of the disgracefully expressed exception from the equal treatment directive that the Government appear to have negotiated for Northern Ireland policing recruitment. I beg to move.
  Lord Glentoran: I support the amendment to some extent on the basis that I referred to earlier. There is a crisis in police recruitment. Young policemen are locked into barracks doing clerical jobs that could be done by civilians and there is a serious shortage of policemen to go on the beat.
  By no means do I wish to do away with the 50:50 arrangement, but I believe that the amendment is well drafted. It can cover an emergency in recruitment of either uniformed trainees or civilian support staff. It does not seem to go against anything that is currently in the Bill but appears to be helpful, should the crisis in recruitment not improve or become worse. I support the amendment.
  Lord Mayhew of Twysden: Perhaps I may infringe the general rule that it is a great mistake for people who have held responsibility to take trips down memory lane at the expense of their colleagues' time. I want to say something which is relevant to this matter and to what was said recently about what happens when police are overstretched.
  The noble Lord, Lord Rogan, referred to Drumcree. What is called "second Drumcree" was not the most glorious episode of my five years in Northern Ireland. The reason was simply that, as has been pointed out, the police force was in danger of being overwhelmed by civil disorder at the hands of Protestants, not Catholics, and of loyalists, not republicans. They were attacked throughout the Province and in the middle of the week the time came when, as was made clear to the Chief Constable and subsequently by him, it was impossible for the RUC to hold its extended line. The consequences of that obliged me to come to the House of Commons and say that we had sustained a defeat for the rule of law. That is what happened.
  To pick up the reference to Drumcree, which had not occurred to me before I entered the Committee this afternoon, I mention that simply in order to point out—if it needs to be pointed out—the abominable consequences that ensue to the rule of law if those whom we seek to employ in the police service are insufficient in numbers for the extremely dangerous and arduous duties that we impose upon them.
  Lord Williams of Mostyn: Again, I am not out of sympathy with the purposes that are desired by the amendments in this group. However, I remind the Committee that the 2000 Act and Section 46(3) of the Police (Northern Ireland) Act 2000 gives the Secretary of State the discretion to make an order adjusting the 50:50 quota if the required number of police trainees could not otherwise be appointed. The important point is that before making any such order he is

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  required to consult both the board and the Chief Constable. Section 46(7) gives the same discretionary power in respect of support staff appointments.
  The power under the Act to set aside the quota has never been used. The response to all four police recruitment drives has been very good. It has produced enough qualified candidates from each community background to fill the police training college to capacity from the first year of the policy's operation. Grafton Recruitment, which deals with civiliarts—in other words, police support staff—has only recently been appointed since—I hope I recollect correctly—the Chief Constable's comment made earlier. It has produced sufficient Roman Catholic and non-Roman Catholic applicants to fully meet requirements.
  I do not pretend —it would be foolish to do so—that police numbers have not reduced. There are shortages, to which noble Lords have referred, in some areas of skill and experience. Those are not difficulties which would be alleviated if the amendment were passed, because this deals with new recruits. The PSNI and the board have a strategy to consider current manpower difficulties. They are carefully considering civilianisation of parts of the police service.
  In our discussion on Clause 18 I referred to the possibility of seconding experienced officers. I give the undertaking that if the Policing Board, in the context of the current skills shortage, want to agree on some limited change to the 50:50 provisions in respect of experienced officers at constable level, which is what we are discussing, the Government are prepared to give that serious consideration. It seems to me that that is the way forward. I hope that Members of the Committee will think that a decent response to the point of the amendment.
  Lord Maginnis of Drumglass: I am grateful to the Minister. I believe that the community from which I come would appreciate learning what the noble and learned Lord suggests may be possible. However, perhaps I may take up one or two points in his reply. I suggest that things are not always as they seem. The noble and learned Lord said that up until now training facilities for the PSNI have been fully subscribed by the number of recruits. That may be the case but will he admit that both the HMI (Her Majesty's Inspectorate) and Tom Constantine, the overseer of Patten, have criticised the fact that the Government have been tardy in providing the appropriate training accommodation required? What is available is currently considered to be totally and utterly inadequate. I raise that point simply for clarification and not to diminish in any way what has been said by the noble and learned Lord. I suggest that things are not always what they seem.
  Lord Williams of Mostyn: I am bound to accept that as a proposition. However, given the undoubted difficulties, not least those referred to by my noble friend Lord Fitt, progress is being made. It is extraordinary that one has people of the fortitude and courage, as my noble friend Lord Fitt describes, to go into public service of a very difficult kind. I want personally to endorse, with great respect, what the
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  noble and learned Lord, Lord Mayhew, said. We are asking quite young people to take on extraordinary responsibilities, as we did with quite young private soldiers serving in the Army.
  Lord Rogan: I very much welcome the encouraging words of the Lord Privy Seal. I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Clause 19 [Disclosure of information and holding of inquiries]:
  The Chairman of Committees (Lord Brabazon of Tara): Before calling Amendment No. 50, I should point out that if it is agreed to, I cannot call Amendments Nos. 51 to 56.
  Lord Glentoran moved Amendment No. 50:
  Page 10, line 36, leave out from beginning to end of line 14 on page 11.
  The noble Lord said: We now take a little leap back into the past, because this amendment and Clause 19 encompass the short debates that we had yesterday on Clauses 8 and 9. The amendment concerns the rules governing the Chief Constable's ability to withhold information or an inquiry. It concerns disclosure of information on holding inquiries.
  By and large, there is not a great deal to say, except to point out one massive omission. I ask the Government: why? What was the motivation for removing Section 60(3)(d) of the 2000 Act, under which the Chief Constable could ask for an inquiry not to take place,
  "because it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders"?
  If that is not a jolly good reason for withholding an inquiry, whether temporarily or permanently. I cannot think what is. For goodness sake, what is the Government's motivation for wanting to leave that out? I beg to move.
  5 p.m.
  Lord Mayhew of Twysden: I am afraid that this is an example of the technique of doing everything by stealth. If this change to the relevant provision of the 2000 Act were to find its way into law, it would do ill, for the reasons touched on in shorthand by my noble friend Lord Glentoran.
  The reason why I say that it is sought to be achieved by stealth is that by some tortuous drafting, it is tucked away into a new Section 76A to the borrowed and much abused 2000 Act, so that it will fall under the heading "Supplementary", after,
  "Expenses of Secretary of State",
  and before "Orders and regulations". It has a remarkable effect. It is unnecessary to go at length through the scheme of the Bill, but it is worth reminding ourselves what Sections 58 and 59 of the 2000 Act achieve. We find those on page 31.

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  The general heading for Part VII of that Act is "Reports and inquiries". Section 58 requires the Chief Constable to submit an annual report to the board, but it is followed by Section 59. That imposes a general duty on the Chief Constable to report but, in subsection (3) includes what has always seemed to me a sensible balancing provision. It states:
  "If it appears to the Chief Constable that a report in compliance with a requirement",
  from the board,
  "would contain information which ought not to be disclosed".
  Then follow four headings. The first states:
  "in the interests of national security"
  which is very sensible. The second states:
  "because it relates to an individual and is of a sensitive personal character"—
  which is also very sensible—there is a government amendment tabled to that with which we will deal later. The third heading states:
  "because it would, or would be likely to, prejudice proceedings which have been commenced in a court of law, or".
  Lastly, paragraph (d) states:
  "because it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders".
  In those circumstances, Section 59 states, the Chief Constable may refer the requirement to submit the report to the Secretary of State. That seems sensible. The section goes on to state that the Secretary of State can, if so minded:
  "modify or set aside the requirement, as necessary, in order to exempt the Chief Constable from the obligation"—
  and so forth.
  The scheme of the clause is to operate on two of those four headings. It is only the last with which I want to deal: that which relates to an opinion that the report would be likely to,
  "prejudice the prevention or detection of crime or the apprehension or prosecution of offenders".
  Perhaps from a slightly different viewpoint from that advanced by my noble friend Lord Glentoran, I wholly endorse his question and share his inability to understand why the Government should want to withdraw paragraph (d). What can be the reason? What has happened in the short period since the enactment of the 2000 Act? What is the motivation? What end is sought to be served? That is the critical question.
  However, I want to go a wee bit further, because I hold that those matters—the question of who is to be prosecuted, in the first instance, although of course not ultimately, "the apprehension or prosecution of offenders" and not less "the prevention or detection of crime"—are essentially operational matters. I should be grateful if the Lord Privy Seal would address that. Under our constitutional arrangements, as much in Northern Ireland as in the rest of the United Kingdom, they are for the Chief Constable's operational independence.
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  We have set our faces sternly against executive interference in those matters. It is most important for the maintenance of our democracy and for the rule of law that that should be maintained. Reference has already been made to Drumcree. I must say that principle was absolutely, explicitly and meticulously upheld by me in that circumstance—melancholy though the whole week proved to be—because it was an operational matter for the Chief Constable whether or not that march proceeded, in my view.
  How will that principle suffer if the clause is enacted? It will suffers in this way, I suggest. Let us consider the question of the apprehension of an offender—I shall come to the prosecution of an offender in a moment. I repeat that that is entirely a matter for the operational discretion of the Chief Constable. If the Chief Constable's objection, on the grounds that to provide the required report would prejudice the apprehension of an offender, can be overridden without recourse to the Secretary of State, that provides a covert way to secure that a particular offender is not prosecuted because the whole trail will have been obfuscated. Similarly, in relation to the question of prosecution of an offender, the point is the same and does not need to be repeated.
  The prevention and detection of crime are perhaps more straightforward issues. In my view, they should not be interfered with in this way without the ability of the Chief Constable to refer the matter to the Secretary of State. He would say, "This is what the board is doing. This, in my professional opinion, is what the consequence will be. Over to you, Secretary of State".
  The matter that I have tried to describe is a rather serious constitutional as well as practical one. I believe I know enough about the noble and learned Lord to say that he would not wish knowingly to undermine or in any way make more difficult the maintenance of the operational independence of the Chief Constable. I know that he recognises how important it is for the rule of law, for the reasons that I have given.
  It is rather disappointing to find on page 9 of the Explanatory Notes that:
  "The current fourth ground of referral (where disclosure would affect the prevention or detection of crime, or apprehension or prosecution of offenders) has been dropped".
  There is not much of an explanation in the Explanatory Notes.
  Viscount Brookeborough: I support the amendment. I shall not talk at length about it but I should like to know who applied the pressure for this provision to be dropped. It is as simple as that. I ask that from a personal and not from a board's point of view. I do not know who within or outside the political system in Northern Ireland would have done it. However, especially from what the noble and learned Lord said, it does not appear that it would have been from a judicial point of view or from the point of view of preserving law and order.
  Therefore, my question is: who asked for it to be done? The noble and learned Lord may say that the provision is partly covered elsewhere in the Police (Northern Ireland) Act 2000, but I do not accept that

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  that is a reason for taking it out of this clause. This clause specifically gives reasons why such inquiries for information might not take place. We all agree that a Policing Board of the future may be amenable to a Chief Constable, but the provision gives protection against the Policing Board over-reaching its powers and entering operational areas.
  5.15 p.m.
  Lord Maginnis of Drumglass: I, too, support the amendment in the names of the noble Lord, Lord Glentoran, and the noble Viscount, Lord Bridgman. I shall accept guidance from the Chairman on this point but it has been intimated that it may not be possible to take Amendments Nos. 51 to 56 if this amendment is accepted. However, as it will not be accepted in this Committee, and my intention is to assist the Committee, in supporting Amendment No. 50 I want to refer to the other amendments because that will help to speed up the proceedings. I hope that that is acceptable.
  I cannot pose the question any more cogently or positively than the noble and learned Lord, Lord Mayhew, has done. Why on earth are we faced here with a series of changes which appear to be of no benefit to society or to individual policemen and women or policemen and women in general? The idea that somehow the Chief Constable could not take into consideration an ongoing inquiry and its significance and knock-on effect in terms of serious crime is, bluntly, ludicrous.
  It is no secret that, for example, burglary—a topic current throughout the United Kingdom—certainly in my district of Northern Ireland, is up by 32 per cent. If there is that amount of burglary, there must be a degree of organisation which, to investigate, would involve a huge amount of resources. Can one imagine a question being asked and the Chief Constable not having the ability to withhold that information, the publishing or publicising of which would be likely to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders?
  I turn to Amendments Nos. 51 to 56. It is not just here that it appears that the interests of the individual are being sacrificed in the Bill. For example, we see the word "personal" substituted by the word "personnel". To many that would seem an academic point, but it is more than that. Where one has responsibility for the welfare of individual policemen, any good leader will look to the interests of the individual within the group which he leads as well as to the interests of the group overall. To decide whether something is in the interests or against the interests of personnel is so generic as to risk the interests of one individual who may be endangered. That is why we tabled Amendments Nos. 51, 54 and 57 to 59. All those amendments are concerned with whether it is the general or specific interest in the safety of police, and indeed others in society, that should be taken into account.
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  Again, we see this as removing incrementally the specific interests of people. One sees on page 11, line 2, that the qualification is,
  "the information is sensitive personnel information or information the disclosure of which would be likely to put an individual in danger;"
  For something to be deemed likely there has to be specific information as to the threat. One cannot say that something is likely if it is a general threat. Here again, instead of "would be likely", we propose "may". If there is any danger whatsoever, in other words, then the information should be properly guarded. That is relevant in Amendment No. 55. There again, if an onus of proof is required and that proof is not there specifically, can the Chief Constable willy-nilly ignore the possible or probable danger to an individual or group of individuals?
  The noble and learned Lord, Lord Mayhew, has intimated that this is incremental. Nothing in itself could be deemed to be of the utmost importance, but cumulatively there is an undermining of the interests and the safety of members of the police in carrying out their duties.
  The points we have raised in Amendments Nos. 53 and 56 are covered by the amendment of the noble Lord, Lord Glentoran. I beseech—if that is not too strong a word—the noble and learned Lord the Lord Privy Seal to look to the interests of individual policemen and individual members of the law-abiding community so that none is endangered by the interest being swept away in generic terms or by omission.
  Lord Williams of Mostyn: This is a topic of great seriousness. It may be the most important aspect of our discussions at this stage. The debate has addressed all the issues relating to Clause 19. I do not say that in a chiding way, because the debate has been helpful. I hope the Committee will find it helpful—if not ultimately persuasive—if I address all the issues contained in these amendments.
  We need to see what the present state of the law is, what it would be if the amendment was passed, and what is the genesis of these changes. The noble Lord, Lord Glentoran, not being a lawyer, had the benefit of great economy because he simply asked the question why, which is always the cruellest question. I will try and deal with that. The noble and learned Lord, Lord Mayhew, developed the constitutional approach. The noble Lord, Lord Maginnis, then stressed the importance of reflecting on the possible dangers to individuals, whether in the Police Service of Northern Ireland or as he said at the end, law-abiding or non-law-abiding members of the community.
  If we begin at the beginning, the present power of the board and the present duty of the Chief Constable is to be found in Section 59, page 31, of the 2000 Act. What we see at the moment is that,
  "(1) The Chief Constable shall, whenever so required by the Board, submit to the Board a report on any such matter connected with the policing of Northern Ireland as may be specified in the requirement."

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  Subsection (2)(a) is not to the point; subsection (2)(b) is, and has been overlooked.
  "A report under this section shall be made—
  (b) within the period of one month from the date on which that requirement is made or within such longer period as may be agreed between the Chief Constable and the Board."
  There is that margin of flexibility for the board to require the report to be made but for agreement then to follow between the Chief Constable and the board that perhaps three or six months might be a more appropriate period, rather than one month. It is very important to bear in mind that margin of flexibility which is allowed in Section 59.
  Viscount Brookeborough: I thank the noble and learned Lord for giving way. Section 59 says "agreed" between the Chief Constable and the board. As an individual I am quite happy that if the board and the Chief Constable agree, then the Act does not have to be used to produce the information that may have been asked for. This is quite clear because the board has had instances of the police service not refusing to give information, but being slightly slow about doing so. We have discussed, for the future, how we would force them to do so if they ever refused. The answer is that we would cite the Act and that is when it would be cited. If we ask how many car accidents there have been in the last week, we do not say, "Under Clause 59 of the Police (Northern Ireland) Act 2000 you will do this or we will take you to court". We ask for the information and it is given.
  We are talking about more sensitive information but let us say that the board is, in the Chief Constable's terms, not as reasonable as it is at the moment and asks him for information that he says it should not have. The board can go to the law and say, "You have to give it" and, under the terms of this, there must be agreement. However, there is no agreement and the statute is on the side of the board to interfere with an operational matter within the one-month period, regardless of whether it is deemed that that information would be detrimental in terms of solving a crime or carrying out the law. Therefore, this is important because the Police (Northern Ireland) Act 2000 will only be brought in behind it if there is not an agreement. I accept completely and we really do agree with the Chief Constable over virtually everything, but this is brought out in case we do not. That is the point.
  Lord Williams of Mostyn: What the noble Viscount has said reinforces the theme that I was about to develop. There is that flexibility in subsection (2)(b). He has already said, from his individual experience, that he was not speaking for the board, but there are accommodations between the Chief Constable and the board at the moment. That is the flexibility to which I am drawing attention. I will go on, if I may, immediately to the point made by the noble Lord, Lord Maginnis. The current exclusions in Section 59(3) are, "national security", because it "relates to an individual" and is of a "sensitive personal nature",
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  because it "would prejudice proceedings", or because it would prejudice the "prevention or detection of crime", among other words.
  I agree with the noble Lord, Lord Maginnis, that there is nothing there for the protection of the individual. However, he will find precisely that in our new formulation on page 11 of the new Bill. We have met his concerns, I hope. We all know that "national security" is a consideration. Another ground is,
  "the information is sensitive personnel information".
  That is a citation from Patten, in effect. Then there is the Maginnis point, which I put respectfully because it is a very good one:
  "or information the disclosure of which would be likely to put an individual in danger".
  We have improved the 2000 Act protection, which did not exist for an individual—the noble Lord, Lord Maginnis is quite right—and have specified the disclosure of information,
  "which would be likely to put an individual in danger".
  Thus, we have met the noble Lord's point for policemen or Army officers, for the law-abiding or not.
  Lord Maginnis of Drumglass: I am grateful to the noble and learned Lord. Will he just develop my point a little further and indicate whether "may" would not in fact give the level of individual safety that "would be likely" does not give? "Would be likely" requires a level of proof, at present undefined, as distinct from an instinct, a professional training or a professional opinion, which should be what governs that issue.
  5.30 p.m.
  Lord Williams of Mostyn: I shall address that point and am grateful for the noble Lord's courtesy. This is a judgment to be made by the Chief Constable, which does not require admissible evidence. It is the sort of judgment that every experienced police officer has to make day in and day out. It may be on unattributable intelligence or second-hand hearsay. It may be that the individual is in a category of those who might be liable to be attacked. It does not have to be specific to an individual; it may be general information. The Chief Constable has to decide on a professional basis, "I think that the disclosure of this is likely to put an individual in danger". I agree with the noble Lord that those are slightly different thresholds but it seems to me that this is about right, particularly as the Chief Constable then goes to the Secretary of State who has the final view.
  The question posed by the noble Lord, Lord Glentoran, is not dissimilar to the constitutionalist approach adopted by the noble and learned Lord. The answer to the question "Why?" is twofold: first, Patten; secondly, implementation. The answer to Patten is "Patten preceded the 2000 Act", which it did. However, my answer to that is that it was always the policy and, indeed, has been put into effect, that we would have a review and an updated Implementation Plan. That Implementation Plan, as I reminded noble

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  Lords yesterday, was 2001. What do we find in Patten and what do we see in the Implementation Plan? We see in Patten at paragraph 6.22 on page 33:
  "We recommend that the Policing Board should have the power to require the Chief Constable to report on any issue pertaining to the performance of his functions or those of the police service".
  I shall read the next sentence reasonably slowly because it goes to the constitutional question,
  "The obligation to report should extend to explaining operational decisions".
  Those are not my words, they are not even the words of the Apocrypha; they are the words in paragraph 6.22 of Patten. I continue,
  "The grounds on which the Chief Constable might question this requirement should be strictly limited to issues such as those involving national security, sensitive personnel matters",
  I explained that earlier,
  "and cases before the courts".
  I pause to interrupt myself. When we deal with "personnel" rather than "personal", which I agree is somewhat arcane, we have also introduced the Maginnis protection for the individual. I shall not return to that as I hope that that satisfies the noble Lord. Paragraph 6.22 continues,
  "We recommend that, if there is a disagreement between the Board and the Chief Constable over whether it is appropriate for a report to be provided … it should be for the Chief Constable to refer the question to the Secretary of State for a decision".
  That is paragraph 6.22 of Patten. I readily concede that it is not what was in the 2000 Act. However, the Implementation Plan is August 2001. We find there in the second paragraph on page 10, Recommendations 25 and 26. I do not omit anything wilfully or wrongly; noble Lords have it before them. It states:
  "The Policing Board should have the power, subject only to the same limitation set out in paragraph 6.22,
  the one I have just read,
  "to follow up any report from the Chief Constable by initiating an inquiry",
  and so forth. The two questions, "Why?" or, "Is this a constitutional aberration?" bring the answer from me that it is to be found in the Implementation Plan, half-way down page 10 in the bold type,
  "The Government intends, after the planned review, to remove the ground of appeal in Sections 59(3)(d) and 60(3)(d) and to substitute 'sensitive personnel' for 'sensitive personal' in Sections 59(3)(b) and 60(3)(b)".
  Then, turning to the point raised by the noble Lord, Lord Maginnis, the Implementation Plan states specifically,
  "while adding a new definition which covers potentially vulnerable individuals whether police personnel or members of the public".
  I do not think that it could be plainer than that.
  Viscount Brookeborough: Will the noble and learned Lord give way?
  Lord Williams of Mostyn: Without being discourteous, it may be wiser if I finish what I have to say because I want to give as full an explanation as the importance of this issue requires.
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  That is the genesis of this matter. The question of operational scrutiny is specifically dealt with in the Patten report:
  "The obligation to report should extend to explaining operational decisions".
  We have followed Patten but, in particular, post the 2000 Act and following the plan of August 2001, we have delivered in the Bill what we have accepted specifically as the Government's reply to recommendations 25 and 26. That is all I intended to say.
  Lord Mayhew of Twysden: We are all grateful for the care that the noble and learned Lord has taken. But he rests the justification upon Patten and upon the Implementation Plan, of which he has reminded us. Patten said at paragraph 6.22 on page 33:
  "The obligation to report should extend to explaining operational decisions".
  However, what is now being sought goes wider than that. The board is not limited to seeking a report that explains an operational decision; it is to be empowered to require a report, without the ability to refer to the Secretary of State, in circumstances where the Chief Constable believes that the report should not be made—we then turn to the language of paragraph (d) of Section 59(3) of the Act—
  "because it … would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders".
  At present, the law gives power to the Chief Constable to refer this issue or dispute to the Secretary of State in circumstances where he believes that the report should not be made or the inquiry should not be held, if we are going to take the second application of this, or, if it comes to it, when the ombudsman requires information. I believe I am correct in saying that the same principle applies on all three heads. At present, the law states that he can do that and refer the matter, but not impose a veto or refusal, because in his view it ought not to be made,
  "because it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders".
  That is far wider than the ambit of the wording referred to by the Secretary of State regarding the giving of an explanation of an operational decision. That was not only at the head and forefront of the issue, it was the whole guts of the justification put forward by the noble and learned Lord. I venture to say that, for once, it is intellectually flawed.
  Lord Williams of Mostyn: No one wants to be guilty of selective quotations. Therefore, I read on in paragraph 6.22:
  "The grounds on which the Chief Constable might question this requirement"—
  in other words, the requirement to report on any issue pertaining to the performance of his functions—
  "should be strictly limited to issues such as those involving national security, sensitive personnel matters and cases before the courts".

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  That is exactly the limitation in the Bill—cases before the courts, national security and sensitive personnel matters.
  That was in Patten before the 2000 Act. I do not want to be unduly repetitive to such a patient audience, but the Government said, after the updated Implementation Plan, that we were going to remove the ground of appeal and substitute "sensitive personnel" for "sensitive personal" and then cover the vulnerable individuals. There has been no secrecy here. It has been said that these are incremental changes—of course they are—and I would suggest that incremental changes are the wisest in the context of Northern Ireland because it is step by painful step and sometimes step by slow step. That is the justification.
  In the end, it comes to whether the board will be trusted to come to an agreement with the Chief Constable of the kind I described earlier. They could put it off for a period, by agreement, perhaps even up to a year, if they thought that was appropriate. Or, will the Chief Constable have this preliminary veto? The judgment has been made, but it certainly has not been made in a hole-in-the-corner way, because it has been published since August 2001. I recognise, as I implied earlier, that the noble and learned Lord's concerns may not be mollified and they may not be met. However, that is the stance that the Government have adopted and that is what we have delivered in this Bill.
  Viscount Brookeborough: Perhaps I may put on record my feelings about this. First, we are all agreed—and even once or twice the Government in the Chamber have admitted—that Patten is not always right. I am not suggesting that what the noble and learned Lord has said is not correct. However, if you look at that in practical terms, as opposed to intellectual terms, the way that it goes is that a crime is committed. We are talking about an inquiry into an operation that is going on. A crime is committed and it is being investigated.
  The clauses restrict the board or allow the Chief Constable to refer it to the Secretary of State if the board wishes to inquire into that, while it is in the courts. That is subsection (2)(c) of the present Bill—in the courts. However, there is a period between the crime being committed and it being in the courts and that period is not excluded. All I would like to point out is that I do not believe that Patten wanted us, in the board, to be able to make inquiries that could prejudice the inquiry into a crime. Quite rightly, he says that we should not be allowed to make inquiries that might prejudice a case that is already in the courts. It is that simple fact. It is that hole and that gap in the practical process that would possibly, conceivably, permit a board to inquire at the wrong time. This could be prejudicial to the prevention or deterrence of crime.
  Lord Williams of Mostyn: I accept that description but, if one has a board with the powers and authority, which is intended to work with the Chief Constable, there is the opportunity for the Chief Constable to say,
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  "Do not press me on the month—give me three or six months." He can then give the reasons privately. There is a gap here, which we are unlikely to bridge.
  Lord Glentoran: I must agree with the last words of the noble and learned Lord. I would like to make a few points here. First, the implementation paper, which I read some time ago, and Patten are not directly a part of the Belfast agreement. Although Patten was accepted in principle, it was not accepted verbatim—largely probably because, as I said yesterday, the context in which it was written does not pertain in Northern Ireland today and is not foreseeable today. So although I hear what the noble and learned Lord said about Patten and, some time back, read what is in the Implementation Plan—which was clearly a political document produced by the Government in an attempt to follow the demands of Sinn Fein/IRA to implement Patten more literally—I do not accept either of those as especially good reasons for accepting Patten word for word today.
  The Lord Privy Seal dwelt on relations between the Chief Constable and the board. If relations are good and free-flowing—as we hope that they always will be—it will almost always be unnecessary for either party to refer to the 2000 Act. The Bill should be written in the light of situations arising where harmony may not exist.
  Those are some philosophical points that I wanted to make. My noble and learned friend Lord Mayhew has in his advocacy dealt far better than I could ever start to with constitutional issues and interference with operational capabilities of the Chief Constable. The Lord Privy Seal suggested that the amendment would give the Chief Constable a veto on producing a certain report or certain information. Indeed it would not.
  5.45 p.m.
  Lord Williams of Mostyn: I think that I said a veto at that stage.
  Lord Glentoran: I accept that. However, the point stands, that, albeit at that stage, it is still the Secretary of State whom we want to be able to make decisions on the issue.
  Finally, of course, it is incongruous in the United Kingdom that we should want to include in an Act of Parliament—or rather, leave out of an Act of Parliament in Westminster—a clause that would prevent operational interference on matters concerning the detection of crime, apprehension of criminals and the prosecution of offenders. That simply does not make sense, especially in Northern Ireland, but also elsewhere.
  I am not sure where we are in this debate technically. I know that I cannot divide the Committee. All that I can do at this stage is to thank the noble and learned Lord for the care that he has taken to argue the Government's case, but I cannot accept those arguments at this stage.
  Lord Williams of Mostyn: Perhaps I may respond in only a sentence. I tried to cover all the amendments to which Members of the Committee have spoken, including giving my response to clause stand part. I entirely anticipate that we shall return to the issue with some vim and vigour at our next meeting.
  Lord Mayhew of Twysden: I had taken it that there might be an opportunity to say something on clause stand part, notwithstanding that we have very properly had a thorough go round the debate. I have read closely page 10 of the Implementation Plan. In parenthesis, we need to be careful not to elevate it into some holy script, any more than Patten. It is rather like govern ments—every government do it—saying, "Oh, well, it was in our manifesto". Time moves on and just occasionally there is some accretion of wisdom as the years roll by.
  Since I have referred to it, I want to read what I see at the top of page 10:
  "The Policing Board should have the power to require the Chief Constable to report on any issue pertaining to the performance of his functions or those of the police service. The obligation to report should extend to explaining operational decisions. If there is a disagreement between the Board and the Chief Constable over whether it is appropriate for a report to be provided on a particular matter, it should be for the Chief Constable to refer the question,"
  and so forth.
  I was stung by the implication that I had quoted selectively. I was referred to the Patten report, which, not surprisingly, precedes the implementation of Patten. The 2000 Act came after Patten. It is interesting that it should say,
  "The obligation to report should extend to explaining operational decisions",
  not to "inviting" an explanation for why a line of inquiry is being made against a particular suspect, not for going into the reasons for things which are happening at the present. That is the burden to which we shall return on Report.
  I notice that the noble and learned Lord has not alluded to the constitutional approach to this issue, save to mention the fact that I gave it that categorisation. Because the noble and learned Lord is considerate for our time and our patience, he has not alluded to the illustration that I gave that it provides a covert means of overturning the operational independence of the Chief Constable in those two particular respects.
  I hope the noble and learned Lord will take an early opportunity to reflect on that. I know as well as he does how important it is that that constitutional position should not be infringed.
  Lord Glentoran: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 51 to 59 not moved.]
  Clause 19 agreed to.
  Clause 20 [Disclosure of information and holding of inquiries]:
  Baroness Harris of Richmond moved Amendment No. 60:
  Page 12, line 2, leave out "adequate" and insert "full"
  The noble Baroness said: We have moved to Part 2 of the Bill, which is about police powers and specifically police support staff.
  The roles of the police support staff are important, particularly in such a sensitive area as policing in Northern Ireland. It is crucial that support staff continue to get the best support and training. This is one of the areas where policing suffered in the past.
  Training has always been the first area to be cut when budgets are under pressure. I would be most grateful for a full assurance that training will take on a much enhanced and central role in policing activities.
  The amendment is designed to get out of the Government what is meant by "adequate training" and how it compares to the training received by someone who will become a full constable. We need to know how long the training will be, how these people will be trained and what they will be trained in, and so forth. I beg to move.
  Lord Williams of Mostyn: I am grateful for the question behind the amendment of the noble Baroness, Lady Harris.
  We want to provide an assurance that a Chief Constable, on designating any person, has to ensure that that person has received the appropriate training fit for that purpose. The training will vary, of course, according to the particular function being carried out.
  In practice the Chief Constable will have to determine the level of training that is adequate to enable the person to undertake the duties and powers conferred on him. I believe that the Chief Constable is the best person to come to that conclusion. As the noble and learned Lord, Lord Mayhew, said, circumstances change and retraining may be necessary. It may be of comfort to the noble Baroness and to the Committee to be assured that the term "adequate training" is that which is found in Section 39(4)(c) of the Police Reform Act 2002.
  Baroness Harris of Richmond: I am grateful for that reassurance. However, as I stated, it is and has been the first thing to go when budgets are stretched. It is crucial that support staff are viewed in the same way as police officers and that their training is considered in the same way. I understand what the Minister said. I shall reflect on that and may come back later on Report. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 61 not moved.]
  Clause 20 agreed to.
  Schedule 1 [Powers exercisable by designated police support staff]:
  Baroness Harris of Richmond moved Amendment No. 61A:
  Page 21, line 33, leave out paragraph 13.
  The noble Baroness said: Given the police shortages on the streets and the public disorder problems that Northern Ireland has faced over the past months, we agree with the Government's plans to increase civilian staff where possible. Indeed, it is one of the criticisms in the latest report of the Oversight Commissioner that that has not yet been sufficiently implemented. We have heard of the severe difficulties surrounding this matter.
  The concerns we have relate to the powers that these officers will have. Article 56(6) of the Police and Criminal Evidence (Northern Ireland) Order 1989 states that unless someone of the rank of superintendent considers that it is not practicable, an intimate search shall be carried out by "a suitably qualified person". I assume that that relates to someone with some sort of medical qualification. If that is not practicable, the search shall be carried out by a constable.
  I am grateful to the noble and learned Lord for his letter of clarification on that point. However, Schedule 1(13) confers that power to a detention officer. That is different from what is proposed in Clause 24 of the Bill, which relates to people with suitable medical qualifications taking intimate samples. It is suggested that detention officers would have medical qualifications, and that the Bill simply gives them the powers of a constable. We can assume only that this is a presumption, as it is not on the face of the Bill nor in the 1989 order that under those circumstances a detention officer or constable would have medical qualifications. I need to be clear on whether or not detention officers will have medical qualifications. I would be grateful for the Minister's assurance on that point. I beg to move.
  Lord Williams of Mostyn: In reply to the noble Baroness, perhaps I may go through the statutory scheme and give her an undertaking just before I conclude. Article 56(5) of the Police and Criminal Evidence (Northern Ireland) Order 1989 sets out that an intimate search (other than one which is only a drug offence search) must be carried out either by a medical practitioner or a nurse registered as such under the Nurses, Midwives and Health Visitors Act 1997 unless an officer of at least the rank of superintendent concludes that that is not practicable.
  Article 56(6) states that if it is not practicable it shall be carried out by a constable. In either case the search has to be carried out by a person of the same sex as the person being searched. It is not the intention of the Bill to change those roles but to increase the powers of the nurses and doctors concerned. Nurses and doctors at the moment cannot call on constabulary powers where the use of reasonable force would be appropriate. Therefore, they are vulnerable to accusations of assault if carrying out an intimate search.
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  The effect of allowing designated civilian detention officers to carry out such searches would be to allow a designated nurse or doctor to draw on constabulary powers when carrying out such a search. I give the undertaking that the noble Baroness was looking for: it is not the intention of the Bill that civilians other than doctors or nurses should be involved in this work. However, I concede that there is a proper case for re-examining the issue.
  I can tell the Committee that my officials are urgently considering with legal advisors whether there is a better way of expressing the matter. I know that the noble Baroness does not dissent from the conclusion that only nurses and doctors should be involved, and I am actively engaged in having the matter researched. I hope to be able to report further when we come to the next stage of the Bill in the Chamber.
  Baroness Harris of Richmond: I am most grateful to the Minister for that reassurance and I look forward to seeing his report. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Harris of Richmond moved Amendment No. 62:
  Page 23, line 39, at end insert "whom he reasonably suspects to be in possession of an object that is likely to cause harm or injury"
  The noble Baroness said: The amendments in this group are similar to ones that we tabled in the Police Reform Act last year. Again, in principle, we have no objections to escort officers, but we are concerned that they should have a power of search. Amendments Nos. 62 and 63 would limit the power to the circumstances that we describe in the amendments. I beg to move.
  Lord Williams of Mostyn: I recognise that concern. Schedule 1 relates to provisions in Clause 20. As I said, the powers are similar to those made available in England and Wales through the Police Reform Act 2002. The schedule allows escort officers to have the same powers as a constable under paragraphs 7 and 8 of Article 55 of the 1989 order. They allow a non-intimate search to be undertaken where the person has with him anything that he could use to interfere with evidence or to assist him to escape.
  The carrying out of such a search under the provisions of the 1989 order is not subject to any requirement for reasonable suspicion that such an object is in the detained person's possession. The restriction is not appropriate because it may be necessary to search detainees in order to ensure the protection of the individual and to prevent any of the items listed in Article 55 from being retained. It is the case that reasonable specific suspicion will not necessarily exist in individual cases.
  I hope that that satisfies the noble Baroness. If it does not, I am perfectly content, should it be helpful, to arrange a meeting between officials and the noble

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  Baroness and any Member of the Committee who might be interested. I believe that the explanations are clear and they are justified. But I realise that they are rather technical and I am perfectly happy to offer that meeting.
  Baroness Harris of Richmond: Again, I am deeply grateful to the Minister for his offer of a meeting, which I readily accept. In the meantime, because of that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 63 not moved.]
  Schedule 1 agreed to.
  Clause 21 agreed to.
  Schedule 2 agreed to.
  Clauses 22 to 26 agreed to.
  Schedule 3 [Repeals]:
  Lord Williams of Mostyn moved Amendment No. 64:
  Page 27, leave out lines 15 and 16.
  The noble and learned Lord said: I promise not to tease officials, who are extraordinarily patient. This amendment is in my name and the instruction that I have is to resist my own amendment. I did give them warning. The amendment would simply make a minor change to correct an error in the original drafting. The same point arose in relation to Amendment No. 15. I beg to move.
  On Question, amendment agreed to.
  Schedule 3, as amended, agreed to.
  Clauses 27 and 28 agreed to.
  Bill reported with amendments.
  The Committee adjourned at four minutes past six o'clock.