COMMONS AMENDMENTS (Hansard, 3 April 2003)

§ Lord Williams of Mostyn

My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 12 en bloc.

The amendments relate to the clauses that deal with the requirement on the Chief Constable to report and provide information to the board and the police ombudsman. At Third Reading in this House, we tabled a series of amendments designed to respond to various concerns raised by your Lordships. Those included provision for a small committee within the board with whom the Chief Constable might share any sensitive information that he decided ought to be kept on a restricted circulation.

I said at the time, and my colleagues in the Commons also made it plain, that we would open-mindedly consider any further proposals. Our conclusion was that some of our proposals were too complex. The amendments introduced on Report in the Commons sought to address those concerns and to streamline the interlocking provisions. I have written to all of your Lordships who show an interest in 1490 Northern Ireland affairs describing the effect and purpose of the changes, so I shall try to be reasonably concise.

Essentially, the Government view new Section 33A as very much an everyday power of the board to request and receive information from the Chief Constable. It is not envisaged that sensitive information would be routinely supplied through that route unless deemed appropriate by the Chief Constable. The board is guaranteed access to non-sensitive information that it seeks through that route and, in certain circumstances, might gain access to sensitive information, subject to the professional judgement of the Chief Constable.

The arrangements surrounding access to information—particularly sensitive information—are of necessity complex. There is a great need for transparency and accountability, but we also need to have a sensible balance, taking into account the need for appropriate safeguards on sensitive information.

Perhaps I may briefly set out how we see the balance being reflected by the Chief Constable in relation to his duty to protect life under Section 32(1)(a) of the 2000 Act. In addition, as a member of the PSNI, he is bound by the code of ethics provided for in Section 52 and, by the terms of the attestation in Section 38(1), to uphold fundamental human rights. There are already some safeguards in Section 59 to allow the Chief Constable to refer certain requests to the Secretary of State. There are further safeguards in the amendments that we introduced as part of the Bill that would allow the Chief Constable to limit the distribution of certain information within the board. There is also an important protection in Section 3(1) of the Human Rights Act 1998, which provides that so far as it is possible to do so. primary legislation … must be read and given effect in a way which is compatible with the Convention rights". If there is a direct tension between the Chief Constable's duty under Section 59 to produce a report for the board and his duty to protect life under Section 32(1), he is obliged as a matter of law to weigh those duties and to fulfil his Section 59 duty in such a way as to be consistent with his Section 32(1) duty. He would judge each case on its merits. I know that the Chief Constable wishes to provide as much information as possible to the board—and that is plainly right.

There is also a duty on the Chief Constable under Section 6(1) of the Human Rights Act 1998, which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right". That applies to the Chief Constable's duty under Section 59 just as it does to the duty of a beat constable on the street. Both would act unlawfully if they acted incompatibly with the ECHR.

The issue is not whether the Chief Constable provides a complete report or piece of information—or nothing at all. Rather, he would be obliged to provide the information in such a way as to avoid the risk to an individual's life. For example, he could ensure that the way in which he provides the information to the board avoids mentioning a vulnerable individual by name or 1491 identifying him. That would protect the individual's right to life, while still ensuring that the board had access to the information.

Moving on, the criteria on which the Chief Constable may withhold information in response to a request made under Section 33A are set out in Amendment No. 17. They are, that the disclosure of the information would be likely to endanger an individual—there are special provisions for dealing with this type of information in the context of a Section 59 report, under the amendments to Clauses 9 and 21; that the information requested relates to one of the three grounds of referral set out in Section 76A—laid out in Clause 22—on which, were the request made under Section 59, he would be able to refer to the Secretary of State; or that the grounds of referral set out in the Bill and approved by your Lordships on 30th January are unaffected by the amendments made in another place.

Before I turn to the amendments tabled by noble Lords, it may be helpful if I explain that the phrase "sensitive personnel information" in the revised second ground of referral refers to sensitive information relating to an individual's holding of office or employment specifically where that office or employment comes under the control or direction of the Chief Constable. Elsewhere it means police officers—including reservists, trainees and secondees; police support staff; traffic wardens; police cadets; and designated contractors staff under the Bill.

In light of the change to Clause 18 brought about by Amendment No. 17, we no longer see the need for the small committee provided for under Clause 21 to have a role in relation to Section 33A or to restrict the board's access to documents. Amendment No. 18 therefore removes the provisions in Clause 18 relating to the committee. Amendments Nos. 19 to 21, 25, 26, 29, 30 and 37 are consequential. Amendment No. 16 gives the board access to documents as well as to information. Based on our legal advice that subsequent references to "information" in the clause would encompass "documents" as well as other information, we seek to amend the wording of Clause 12, through Amendment No. 12, to make the Bill consistent.

The fourth ground of referral, now dropped, dealt with information likely to prejudice the detection of crime or prosecution of offenders. The Government's position was set out in the updated implementation plan published in August 2001. It reflects more fully the Patten recommendations. Amendments Nos. 17A and 26A would reintroduce that fourth ground of referral to requests for information under Section 33A of the 2000 Act and would make any unauthorised disclosure of such information an offence. The effect would be to apply the fourth ground only in the context of everyday requests for information and not in relation to Section 59 requests for reports.

Your Lordships debated the fourth ground of referral at length, as did our colleagues in another place. The primary statutory duty of the Policing Board under Section 3 of the 2000 Act is to maintain 1492 an effective police service in Northern Ireland. It would be contrary to that duty for the board to request information or a report within a timescale that could prejudice a major continuing investigation. Under Section 59(2)(b) of the 2000 Act there is already a provision for the board and the Chief Constable to agree a timescale for the production of a report. We are confident that both organisations would seek to reach a sensible accommodation on a timescale. When we last discussed that issue, I assured your Lordships that the Government would provide in the code of practice issued by the Secretary of State on reports and inquiries for the board to seek the guidance of Her Majesty's Inspector of Constabulary on timing. Given the inspector's operational expertise, his views will plainly carry significant weight with board members.

The grounds set out in the Bill, when taken with the other safeguards provided for in the Bill and in existing legislation, get the balance right between ensuring that the board has proper access to information and that sensitive information—and issues—are adequately protected. My honourable friend the Minister of State in another place stated on Report that she had consulted with the Chief Constable and that he was satisfied with the Bill's safeguards. He felt that he would still be able to protect information that he regarded as sensitive and work within the openness that he sought to establish with the board. We ought to draw significant comfort from that statement. I do not believe that Amendments Nos. 17A and 26A are necessary or appropriate and ask that they be withdrawn.

A good deal of criticism and concern has been expressed but, at the end of the day, I hope that your Lordships will feel that we have been open-minded and have achieved a workable outcome.

The issue of the small committee attracted a certain amount of attention in another place. I have already indicated that we do not see that committee as having a role relative to new Section 33A. The effect of Amendments Nos. 42 and 43 is that the board shall have discretion over whether or not to set up a committee to deal with sensitive information—with the exception of three specific circumstances, where it would be essential that such a committee be established to safeguard information that the Chief Constable or the Secretary of State has determined should be shared with a limited number of persons. It includes information that may come from a person conducting a Section 60 inquiry, where the Chief Constable has previously advised that it is too sensitive to be shared widely. That would give the hoard freedom to decide whether or not to establish a committee from the outset. The board can also decide whether it should be a standing or an ad hoc committee.

Amendment No. 43 increases the committee's membership to seven. which will allow the board greater flexibility in its selection processes. We expect that the board would normally wish to include both the chairman and the vice-chairman. Membership could also include representatives from the political 1493 parties on the board as well as an independent voice. All other terms of the constitution of the committee remain as previously set out in the Bill.

Amendment No. 44 gives the small committee a specific title—"special purposes committee"—to clarify its special function and to make references to it in the legislation less cumbersome. Amendments Nos. 4 to 6, 8, 28, 32, 36 and 38 have been made in consequence of this and the other substantive amendments to Clause 21 that I have outlined.

Clause 9 deals with Section 59 reports under the 2000 Act. Amendment No. 7 obliges the Chief Constable to try to obtain the agreement of the special purposes committee to the terms of a non-sensitive summary of the information that he has supplied to it. The Chief Constable must make real and demonstrable efforts to reach agreement with the special purposes committee. If and when agreement is reached, the summary will be provided to the board as part of the Chief Constable's report under Section 59. That puts a greater onus on the Chief Constable in relation to the board than the previous formulation, which merely required him to take account of the committee's views. It is yet another step that we are taking in recognising the role of the board, while being careful not to compromise that of the Chief Constable.

I turn to the threshold for initiating inquiries. Many of your Lordships had concerns about Clause 11. I outlined the safeguards that existed within the 2000 Act. Your Lordships were afraid that a small minority on the board could force through, against the will of their colleagues, a decision to initiate an inquiry.

The safeguards are set out in Section 60 and paragraph 18 of Schedule 1 to the 2000 Act. First, a proposal to initiate an inquiry cannot come out of the blue because the board must initially commission a report from the Chief Constable under Section 59. Only once that report has been received can an inquiry be contemplated. If the chairman receives a request to set up an inquiry, he must call a meeting no later than three working days after receipt of the request. That meeting is to be held no earlier than six days and no later than 21 days after that date. As I reminded your Lordships on a number of occasions, the chairman is obliged to notify each member of the board of the date and purpose of the meeting.

That brings me to Amendment No. 10. This amendment would amend paragraph 18(3) of Schedule 1 to the 2000 Act, to put, beyond doubt, that a minimum of six working days must elapse between the board chairman calling a meeting to discuss a proposal to set up an inquiry and the meeting itself taking place. A number of your Lordships were concerned that there might be dishonourable behaviour. That is intended to put that beyond doubt.

Amendments Nos. 9 and 11 are consequential. It could be read either in the way that I indicated—which I think is appropriate—or that the effect of "that day" in paragraph 18(3) is that the six day period starts from the day on which the chairman receives the request to call a meeting. This is an important safeguard. We do 1494 not want ambiguity on timescales and that is why this amendment has been brought forward to clarify matters.

As regards improper disclosure, there are a number of "tidying up" amendments relating to Clause 20. This deals with the new offence of improper disclosure of sensitive information—an issue to which a number of your Lordships drew attention at various earlier stages. Amendment No. 41 provides that the provisions of Section 59(5) of the 2000 Act do not cut across the offence provisions—that is, the board would need to take account, before deciding to publish a report, of whether the Chief Constable had flagged up any of its contents as sensitive. If he had, the board would need to decide whether to redact that part of the report and publish the rest, or not to publish the report at all.

Amendments Nos. 31, 33 and 34 make it clear that any person assisting a person conducting an inquiry under Section 60 is covered by the offence, irrespective of whether they are secondees from the board's own staff or direct recruits. Amendments Nos. 35, 39 and 40 clarify that it should not be an offence for the board or any special purposes committee of it to share sensitive information with the ombudsman's staff in connection with any of the ombudsman's functions.

Before I beg to move, I realise that this explanation is a little lengthy, but it is, I hope, in respect and recognition of the concerns that your Lordships raised.