HL Deb 16 December 2002 vol 642 cc453-63

3.6 p.m.

Lord Williams of Mostyn

My Lords, I beg to move that this Bill be now read a second time.

As your Lordships know, the Belfast agreement set up an independent commission to make recommendations for future policing arrangements in Northern Ireland. Your Lordships will be familiar with the report of that commission, commonly called the Patten report. Subsequent discussions with Northern Ireland political parties during the summer of 2001 brought about a revised implementation plan, published that August. That plan contained a number of commitments to legislate to amend the provisions of the 2000 Act more fully to reflect the Patten report. In the main, this Bill represents the product of those commitments.

Since the passing of the 2000 Act, some notable advances have been made. I touch upon them briefly. They include a new Policing Board, with cross-community participation; a new badge, unanimously recommended by the Policing Board; the first annual policing plan, produced on 18th March by that board; the production and issuance of a draft code of ethics by the board; and an Oversight Commissioner, Mr Tom Constantine, appointed to oversee the process of change. The commissioner has published six reports so far, the last only last week.

Additionally, the recruitment campaign, critically important, has produced a 35 per cent Catholic response. More than 580 new recruits have joined the service, and the first trainees brought in under the 50:50 provisions graduated on 5th April, taking the new oath.

Special Branch and Crime Branch are together under a single ACC. District policing partnerships have been launched as a process, and they will be set up early next year. The new Police Fund was set up early this year to help police officers and police widows directly affected by terrorism; more than £5 million has already been paid out to widows and families. I shall not be alone in recording the Government's gratitude to the Police Service of Northern Ireland and admiration for the way in which it works.

The key elements of the Bill are as follows. The first is to strengthen the role of the Policing Board and to clarify the relationship with the Chief Constable and the Secretary of State. That is consistent with the Patten vision for a locally accountable police service. It requires the Secretary of State, therefore, to consult the board with a view to reaching agreement when drawing up both long-term policing objectives and codes of practice. That is Clause 1.

Clause 2 indicates that, in turn, the board must take account of the Secretary of State's objectives in framing the policing plan.

There is an obligation on the Chief Constable to take account of those long-term objectives provided only in so far as this is consistent with the board's policing plan, as indicated in Clause 16.

The Bill gives the Policing Board greater flexibility on the frequency and spacing of board public meetings—Clause 3—as well as more flexibility in the publication of its performance summary—Clauses 6 and 7. Those changes were made at the specific request of the board in the light of its experience over the past year. We were more than content to bow to that advice, to accept it and to act upon it.

The Bill contains a rather technical provision to split off funding which relates to the Police Service of Northern Ireland Pension Scheme from other Policing Board funding. This is to provide clarity on how money is spent—Clauses 4 and 5. Clause 8 amends provisions on the Chief Constable's general duty to report to the board. It places a general obligation on the Chief Constable to supply the board with whatever information it may reasonably require in order to carry out its functions, subject to the same safeguards as apply to the formal reports and inquiries procedures—Clause 17; and it drops the fourth ground of referral in relation to reports and inquiries, dealing with information that could adversely affect the detection of crime. The purpose of this is to bring the terms of referral more in line with Patten's recommendations—Clause 8.

The Bill also amends the second ground of referral from "personal" to "personnel" in order, again, to bring the terminology more in line with the Patten report. It also safeguards disclosure which would be likely to put an individual in danger—Clause 19.

The Bill amends the threshold of board members required to vote for an inquiry. This will be reduced from 10 to eight, provided it is the majority of those present and voting—Clause 10. The Bill gives the Police Ombudsman the power to investigate police practices and policies, rather than, as at present, simply to research them. This is in addition to her current powers. That particular clause attracted a certain amount of criticism from parties on both sides of the community. The Government have therefore reflected carefully—as we ought to—and it is my intention to table later this week an amendment that would: remove the barrier to the ombudsman's access to information, but retain existing legislative safeguards relating to inappropriate public disclosure; clarify that the power to investigate relates to current policies and practices; and make clear that the ombudsman is not expected to investigate polices and practices dealing with conduct falling within the remit of the Investigatory Powers Tribunal.

I have discussed those proposals in general terms on two recent occasions with the ombudsman and understand that she is content with them. It is worth emphasising that the focus of her work is on police conduct—Part 7 of the Police (Northern Ireland) Act 1998. The board does not have the same focus on that aspect. Both bodies are proving themselves well able to work alongside the other elements of the policing architecture. We therefore see no need to create a statutory obligation to devise a protocol.

The Bill places an obligation on the Policing Board to secure representativeness in appointing independent members to district policing partnerships—Clause 12—and clarifies the disqualification for membership of a DPP—Clause 13. It also allows district councils to insure and indemnify DPP members—Clause 14.

Many of your Lordships will have seen the "text for consideration" which the Government published a few weeks ago alongside some of the draft clauses that make up the Bill before us today. That is an important step. So far as I am aware, it is a "first", although it is not the only "first" that we have had in the context of Northern Ireland legislation. Many noble Lords were grateful for, and assisted by, the very full and helpful discussion that we had with the Secretary of State, my right honourable friend Paul Murphy, a few days ago.

The Government made a commitment in the revised Implementation Plan to review whether the existing powers of the Belfast sub-groups were sufficient and whether the bar on ex-prisoners being considered for membership of district policing partnerships remained necessary. In October 2000 my noble and learned friend Lord Falconer of Thoroton made clear that the Government hope to see the day dawn when sensitivities such as this—which I fully understand—recede.

The Government have concluded that the time is not yet right to make these changes. As the Prime Minister and others have made clear in another place and outside Parliament, they could be considered only in the context of acts of completion on the part of all paramilitaries. However, we thought it right—I hope that your Lordships will consider this a decent step to have taken—to set out how in such circumstances we would be prepared to legislate so that everyone in Northern Ireland and those in your Lordships' House in particular with an interest in the affairs of Northern Ireland could be clear about our position. This allows an opportunity for full debate on checks and balances and I hope demonstrates that we are serious in our long-term objectives. But I do not— and I hope that I never have done—underestimate the sensitivities which I recognise and to which I have paid full regard.

Through the Bill we are also making clear that policing with the community is to be one of the core policing principles, along with the human rights based approach to policing enshrined in the new code of ethics—Clause 15. The Bill will enable the Chief Constable to make fixed-term appointments at ranks from sergeant to superintendent in order to facilitate secondments with policing powers from non-UK police forces—Clause 18. That is a particularly important tool to be given to the new Chief Constable who I believe has settled to his work admirably well.

At the request of the Chief Constable and with the support of the board, the Bill gives the Chief Constable greater flexibility in the deployment of civilian staff under his control—Clauses 20 to 23. These measures will allow him to use civilian staff on some of the more routine policing duties, such as escorting detainees and operating custody suites, thus freeing up officers for front-line duties. I say not for the first time that Northern Ireland is leading the way. I hope that in the rest of the United Kingdom we can learn useful lessons from the experience of the Chief Constable and the board. Those powers are in line with changes under the Police Reform Act 2002, which the House recently approved.

The Bill makes it an offence to impersonate a civilian support officer—Clause 23. It authorises a registered healthcare professional, instead of a doctor, to take an intimate sample from a person in police custody—Clause 24. That is just common sense.

I hope that your Lordships will accept the following remarks. If there is any amendment or suggestion that is consistent with the underlying spirit of the Bill, I undertake to give it every consideration. I have said that on previous occasions in the context of Northern Ireland. I hope that I have been faithful to that undertaking. We did extremely good work on the Electoral Fraud (Northern Ireland) Act 2002 to take just one example. I must not use the word "mulish" but there had been some resistance in another place over which we triumphed with our superior grasp of these matters.

I hope that the measure will constitute a co-operative effort. Some noble Lords may consider that this is not a world shattering Bill. It is not. We should seek modest Bills that are suitable to the increasingly stable community for which we all hope. I genuinely look forward with interest to hearing your Lordships' contributions. At the end of today's debate I shall suggest that this is an appropriate Bill for Grand Committee.

I hope that I may trespass on your Lordships' patience for a further moment. Six Northern Ireland orders are to be considered this afternoon. Some noble Lords have said that we may not appear to have a full opportunity to deal with these matters as we are—as I believe the noble Baroness, Lady O'Cathain, said—in a sense the trustee for an Assembly that is no longer sitting. I shall do my best to ensure that alternative means of dealing with them are made available. That may even constitute a Grand Committee dealing only with Northern Ireland orders, which would be a "first" in this House. In the meantime, I beg to move.

Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)

3.19 p.m.

Lord Glentoran

My Lords, I thank the noble and learned Lord the Lord Privy Seal for setting out the main provisions of the Bill and the Government's reasons for introducing it. I pledge my support to work with the Government and the noble and learned Lord the Lord Privy Seal to improve the Bill and to get the best Bill we can for Northern Ireland. It is certainly due to this House, and to the efforts of the noble and learned Lord the Lord Privy Seal behind the scenes, that we achieved the notable victories in the Electoral Fraud (Northern Ireland) Bill to which he referred. I hope that it is a fact that that legislation deprived one of the political parties, at least, of 20,000 or more votes, as I read in local newspapers.

Nobody who has even a passing interest in the affairs of Northern Ireland can fail to recognise the huge changes in policing that have taken place in recent years. Nor is there any doubt that policing is probably—I think certainly—the most contentious and divisive issue affecting the political process.

We are all familiar with the changes brought about over the past few years by the Belfast agreement and, subsequently, the Patten report. However, this is not the occasion to reopen the debates that took place over Patten and the Police (Northern Ireland) Act 2000 during its passage through Parliament in 2000. The position of the Official Opposition was made quite clear at the time. While we accepted much of Patten and the Bill—the Mandelson Bill, as it was dubbed at the time—there were areas on which we strongly disagreed with the Government and on which we tabled a number of amendments.

Those areas were not confined to matters of symbolic importance, such as the cap badge and the name of the police service. They also covered areas such as maintaining the operational independence of the Chief Constable and ensuring that convicted terrorists did not serve as members of district policing partnerships. All that is a matter of record. What was never in doubt, however, was our total backing for the new Police Service of Northern Ireland and our determination that the PSNI should be every bit as effective in the fight against terrorism as its distinguished predecessor, the Royal Ulster Constabulary. Once again I pay the fullest tribute to the men and women of the RUC and the PSNI who selflessly, professionally and impartially have sought to uphold the law and protect the people of Northern Ireland.

I also welcome a number of positive developments that have taken place over the past three years. Probably the most important development is that, for the first time, both the SDLP and the Roman Catholic hierarchy have endorsed the PSNI, with the SDLP taking up its seats on the new Policing Board. Given Sinn Fein's continuing opposition to the police, that was never going to be an easy thing for them to do. I commend them for their actions.

Overall, the Policing Board, on which the noble Viscount, Lord Brookeborough, and the noble Lord, Lord Kilclooney, serve with such distinction, has functioned well. The way in which it handled the highly sensitive issue of devising a new cap badge for the PSNI, while surprising many, ensured that the new board got off to the right start.

Yet there is no doubt that, set against this, enormous difficulties still exist.

Morale among police officers is at an all time low, with around one in 10 officers currently absent through sickness at any one time. Police numbers are already below the levels envisaged by Patten in a much more benign security scenario than the one we have at present. During the summer we saw the police stretched to the limit as they tried to deal with sectarian violence in north and east Belfast. Both the then acting Chief Constable, Colin Cramphorn, and the new Chief Constable, Hugh Orde, made it clear that without the full-time reserve they simply could not cope. In that context, I welcome the Government's decision to agree with the Opposition and, on this occasion, to see sense by renewing the contracts of the full-time reserve.

As an aside, yesterday I talked to Hugh Orde, who told me of his personal experiences on foot patrol with officers from the full-time reserve in various parts of the country. He commented on how professional they are and how well they know their districts, which he gave as an excellent example of community policing.

In addition to the difficulties to which I referred, there is the continuing refusal by Sinn Fein, despite its support for the Belfast agreement, to back the PSNI. Last year, Gerry Adams said that Sinn Fein's attitude to the new PSNI was exactly the same as it was to the old RUC—surprise, surprise. We had evidence of that earlier this year when the chairman of Sinn Fein disgracefully refused to condemn the attempted murder of a young Catholic police recruit in Ballymena. That is unacceptable behaviour for any political party, but even more so for one that has had two of its members serving as Ministers in the Northern Ireland Government and, no doubt, aspires to serve in the Executive again.

Regrettably, intimidation, which was the principal obstacle to Catholic recruitment to the old RUC, remains a fact of life in Northern Ireland. As the Chief Constable stated only last week, the lack of Catholic applicants to the PSNI, combined with the 50:50 recruitment policy, is seriously hindering his efforts to increase the civilian staff in police stations and to get uniformed officers out from behind desks and on to the streets where they are so desperately needed. That was also mentioned in my conversation with Hugh Orde yesterday.

Sadly, as a result of those problems, the laudable aspiration contained in the Patten report to take the politics out of policing has not been realised. In fact, the reverse has happened. Policing is a more highly charged political issue than at any point during the past 30 years. Unionists, with a great deal of justification, feel deep hurt at many of the changes that have taken place. At the same time nationalists and republicans demand ever more reforms in order to satisfy their political agendas.

It is in order to accommodate nationalist and, to some extent, republican criticisms of the Police (Northern Ireland) Act 2000—the so-called Mandelson Act—that this Bill is before your Lordships' House today. The process has its origins in the Weston Park talks of July 2001, when the then Secretary of State, John Reid, gave assurances to the SDLP and Sinn Fein that their grievances would be considered again in the context of the revised Patten implementation plan published the following month. There is no secret or dispute about that. As the SDLP boasted in a press release on 25th November: The SDLP won detailed commitments at Weston Park to new policing legislation to ensure that the legislative framework for policing in Northern Ireland fully reflects the requirements of the Patten Report". That tells us a great deal about how the Government have approached the political process and conducted their relations with the parties since the agreement was made in 1998. Following the initial consultation on Patten, the then Secretary of State, Peter Mandelson, went out of his way to reassure unionists. In his Statement in another place on 19th January 2000, he specifically downgraded the role of the district policing partnerships and deferred any decision on giving them powers to raise money to buy in additional policing services. Then, in the Police (Northern Ireland) Bill, he introduced a number of safeguards in the relationship between the Secretary of State, the Policing Board and the Chief Constable, particularly in relation to reports and inquiries. He also introduced the disqualification of those with serious criminal convictions from serving as independent members of DPPs.

Now Her Majesty's Government are going in the other direction. They plan to reduce the grounds on which the Chief Constable can appeal to the Secretary of State to block reports and inquiries and to make it easier for the Policing Board to initiate them. They have indicated their willingness, in certain circumstances, to end existing disqualification with regard to the DPPs. After the Police (Northern Ireland) Act 2000 was passed, nationalists accused Mandelson of "gutting" Patten. Now, in order to satisfy nationalists, are the Government -gutting" Mandelson?

Having said that, I believe that the vast majority of the Bill is non-contentious and has the support of the Opposition, although that would certainly not have been the case had the Government included the draft provisions relating to the DPPs, as I understand was once their intention. We have some areas of concern, however.

First, as I indicated, we do not support the amendments to Sections 59 and 60 of the Police (Northern Ireland) Act 2000 made by Clauses 8 and 9 of the Bill. The effect would be to remove entirely the right of the Chief Constable to refer to the Secretary of State a request by the Policing Board for a report, or the setting up of an inquiry, on the grounds that it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders". In our view, that could seriously undermine the effectiveness and operational independence of the Chief Constable. He would be under a statutory obligation to provide reports to the board relating to the conduct of ongoing investigations, while the board would have the power to initiate inquiries into them. That cannot be right and I would be interested to hear the noble and learned Lord's justification for that change.

Secondly, as if that were not bad enough, Clause 10 of the Bill reduces the number of members of the board required to launch an inquiry under Section 60 of the 2000 Act from 10 to eight. We believe that out of a board of 19 members, it is perfectly reasonable and proper for the "required number" of those present and voting to be at least 10. The reality is that that it; an unwarranted concession designed to make it easier for nationalists to launch inquiries which, taken with the reduction of the grounds on which the Chief Constable can refer such inquiries to the Secretary of State, should be opposed.

Those are our main areas of concern. There are others, such as the changes in Clause 2, which we believe give the board too much discretion to depart from the long-term policing objectives set out by the Secretary of State. We will want to explore that further in Committee.

Finally, there are the clauses that are not in the Bill but which were published by the Government as "text for consideration". They relate to two issues raised by Sinn Fein at Weston Park: the disqualification of former terrorist prisoners serving as independent members of DPPs and the powers of the four Belfast DPP sub-groups. We welcome the fact that the Government have at long last followed our advice and, on this occasion, not made yet another unilateral concession to Sinn Fein. Like the Government, we do not rule out those changes for all time but we are emphatically opposed to them before we have had evidence of what the Government call "acts of completion". In our view, "acts of completion" has to include both decommissioning and disbandment by a paramilitary organisation. Until such time as that happens it would, in our view, be wholly wrong for former terrorist prisoners to be put into positions whereby they can sit in judgment on the police.

The inclusion of those clauses would almost certainly have caused my party to advise against giving the Bill a Second Reading; we would not have supported it. However, as it stands, we support the Bill as a whole and, as I said earlier, we look forward to working to improve it.

3.32 p.m.

Lord Smith of Clifton

My Lords, I, too, thank the noble and learned Lord the Lord Privy Seal for his customary clear exposition of the Bill.

The Bill as it stands is a rather odd one. It simply consists of a number of relatively minor tidying-up proposals, although I particularly welcome the provision that more precisely defines the powers of the ombudsman. Such housekeeping is commendable so far as it goes but it hardly provides a raison d'être for the legislative priority being accorded to it. As it is laid out, it lacks any unifying theme and there seems little ostensible reason for any urgency. It is, to use the well-worn cliché, very much "Hamlet without the Prince of Denmark".

The Bill is an example of portmanteau primary legislation that provides for any amount of secondary legislation as and when Her Majesty's Government deem it prudent to introduce that. In the ordinary course of events we on these Benches would vigorously oppose that approach on principle. This Government, perhaps more than most, have sought recourse to such devices. Secondary legislation, I was taught, was meant to be reserved so that relatively minor and non-contentious changes could be made fairly quickly.

More than 40 years ago, when I sat at his feet, Professor William A. Robson—that great exponent and protagonist of administrative law—perhaps too easily persuaded me that secondary legislation was a vital component of modern government and particularly so for the efficient administration of the welfare state. However, the extent to which all governments have abused the device has revised my opinion. Secondary legislation is increasingly used to get through quite major policies with the minimum of public scrutiny. The extensive employment of orders and statutory instruments has increasingly lent credence to the views advanced by Robson's arch opponent. Lord Chief Justice Hewart's prescient forebodings were that the inevitable bacterial growth in secondary legislation would lead to the steady attrition of Parliament's powers relative to those of the Executive. That, unfortunately, has been amply proved.

Parliament, therefore, and especially your Lordships' House, must be ever vigilant in trying to prevent inappropriate reliance on secondary legislation. That said, I have to admit that in the exceptional circumstances of Northern Ireland, a case can be made out for the way in which this Bill is presented. It could facilitate a number of desirable provisions coming into law, subject to what, I trust, would be rigorous safeguards. Those provisions are clearly laid out by the Secretary of State in the "text for consideration" that accompanies this Bill. I say at once that that precedent, as the Lord Privy Seal rightly called it, is highly commendable. I congratulate the Secretary of State on being so open and honest in his aims. He could so easily have sought the passage of an apparently innocuous Bill and then later introduced additional and major amendments to it by means of orders. Instead, he has been totally open and at the same time—and perhaps paradoxically—highly politically skilful. He has advertised what could happen if and when the circumstances arise in order for the Patten report to be more fully implemented. That is, if Sinn Fein and the Provisional IRA unequivocally opt wholeheartedly for democracy and renounce all forms of militarism and violence, substantial amendments could then be made to the Act that will follow the completed passage of this Bill. They would enable Sinn Fein to join the Policing Board and the district policing partnerships, which is what those of goodwill ardently seek.

The essence of the Bill—its real significance—lies in the "text for consideration". My noble friends Lady Harris of Richmond and Lord Shutt of Greetland will deal in Committee with some of the specific provisions in the Bill. At this stage, I want to focus on the "text for consideration" because the Bill can be read only in that context.

As I have said, almost everyone would welcome Sinn Fein's full participation in the Policing Board and the district policing partnerships once it has fully rejected all forms of violence. That is the quid pro quo. Among other benefits, that would, I hope, lead to many more Catholic recruits to the Police Service of Northern Ireland. Sinn Fein's endorsement of the PSNI and its related structures is vital and many of us have been encouraging it to take the final crucial step. That said, however, it is equally vital that the conditions contained in the "text for consideration" concerning the five-year period since the discharge of any sentence for a criminal act and the declaration against terrorism are properly enforced. It is relatively easy to see that the five-year provision is implemented but the declaration is more problematic, especially with regard to subsequent monitoring for any breaches. I should be obliged if the noble and learned Lord could offer some indication how, in practice, the Government see breaches being dealt with. As I read it, the Policing Board has the ultimate responsibility, but I can see the discharge of that responsibility being a protracted and often contentious process. Any alleged breach will be a very "hot potato" issue, which will invite the fiercest engagement from all sides and which has all the potential of spilling over beyond the ambit of the board. I think that that aspect will need much more attention if it formally comes before your Lordships' House.

Finally, I appeal to the Ulster Unionists and their close allies on other Benches not to adopt a negative approach to this Bill and the "text for consideration". They have continually challenged Sinn Fein and the IRA to renounce violence and intimidation for ever. The Bill invites Sinn Fein to do precisely that, with the inducement of the undertakings given in the "text for consideration". The prospects of those undertakings reveal an adroit political appreciation which one has come to associate with the new Secretary of State.

Whatever their reservations, the unionists should see this as a very important opportunity for them to put Sinn Fein and the IRA to the final test: if Mr Gerry Adams and his followers balk at it, the unionists' suspicions will have been proved correct; if, however, the challenge held out to Sinn Fein by the Government is grasped, then the acceptance of a wholly democratic approach to resolving political differences, which is what the unionists have always demanded, will have been achieved and Northern Ireland will be back on a peaceful course.

The Liberal Democrats support the Bill and, because of the exceptional circumstances of Northern Ireland, congratulate the Government on the imaginative and wholly open way that they have approached its parliamentary introduction.