HL Deb 23 January 2003 vol 643 cc846-78

11.32 a.m.

Report received.

Clause 1 [Consultation with Board]:

Lord Maginnis of Drumglass moved Amendment No. 1: Page 1, line 5, leave out subsection (1).

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 4.

I shall begin briefly by outlining my overall objection to this dishonourable Bill, an objection that colours my attitude to each and every element that we will consider today.

The Bill is devised in a form that is intended to hand over undue influence, if not control, to an element in our society that has sought to undermine the democratic wishes of the people of Northern Ireland. That is Sinn Fein/IRA, to which new Labour and the Prime Minister felt obliged to capitulate at Weston Park, at the same time as they pretended to give consideration to the overall interests of society in Northern Ireland.

Ordinary society in Northern Ireland feels that all the comprise that it made to accommodate everyone in the political process is worthless. It feels that promises made publicly again and again by the Prime Minister are worthless. Also, it feels that when we get to the stage of relegating the Chief Constable of the Police Service of Northern Ireland to bit-player, as the clause does, that makes policing and the rule of law a charade.

Lessons have not been learned from the lack of substantive contributions made by Sinn Fein/IRA to the Mitchell principles. Have we by any chance forgotten the Mitchell principles? I have to ask the Minister what has changed or is about to change. Will he tell the House whether, and if so when, we will reach that defining moment when the paramilitary Sinn Fein/IRA disarms and disbands? If I have a satisfactory answer to that question, I and others may be able to view the Bill in a different light from that in which I presently do.

For those who may presume to tell me that Sinn Fein/IRA is not the only paramilitary grouping in Northern Ireland, I simply say that I am hardly unaware of that. However, the Bill is not intended to create inequitable privileges for loyalists, and neither am I. The Bill is intended to create inequitable privileges for Sinn Fein/IRA and it alone.

Did the Minister really mean what he said to me at Second Reading when we mentioned what would happen in comparable circumstances in Surrey? He drew attention to the fact that I had asked why criminals should be allowed on DPPs when they would not in Surrey. He told me: The answer is that Surrey has not had the agonising history of Northern Ireland".—[Official Report, 16/12/02; col. 508.]

In other words, there is not the pressure on policing anywhere else in the United Kingdom that necessitates, as in the clause, the relegation of the professional side of policing to something right at the bottom of the pile. I have been in this Parliament for 20 years. I know the value of the democratic process and I subscribe to it, but I also know that it will suffer if we relegate those responsible—the guardians of law and order, the enforcers of the law—to the bottom of the pile. That is why I suggest that we leave out subsections (1) and (2). I beg to move.

The Chairman of Committees (Lord Brabazon of Tara)

My Lords, I should point out that, if the amendment is agreed to, I cannot call Amendments Nos. 2 or 3.

The Lord Privy Seal (Lord Williams of Mostyn)

My Lords, I do not apologise in the slightest way for giving the obvious reminder to noble Lords that the history of Surrey has not been the same as the history of Northern Ireland.

The noble Lord said that the clause relegated the Chief Constable to the role of bit-player. That is an absurdity, if I may say so. The noble Lord knows that I am not criticising him personally, because we have the best of personal relationships, but it is simply not an accurate reflection of what the clause does. He says that the forces of law and order are being put at the bottom of the pile, which is simply not realistic.

I will repeat briefly what I said at length in Committee about what the clause does. It reflects a small but important change in the balance of the relationship over policing between the Secretary of State and the Policing Board. The clause does not give the board a veto over the Secretary of State's objectives. We may need to return to that point on Amendments Nos. 3 and 6. It requires the Secretary of State to try to ensure that he and the board work collectively and harmoniously to develop policing objectives.

We think it right to make those changes to Sections 24 and 27 of the 2000 Act. The Patten report was particularly critical of the previous arrangements The simple, single effect of Amendments Nos. 1 and 4, in the names of the noble Lords, Lord Maginnis and Lord Rogan, would be to maintain the status quo. For the reasons I have set out, that would be inappropriate. I am not in a position to, nor do I wish to, accept the amendments.

Lord Maginnis of Drumglass

My Lords, there can be no doubt that the noble and learned Lord, Lord Williams of Mostyn, and I are opposed or this issue. None the less, it is not an appropriate time to discuss the matter. I do not promise that we shall not return to it at Third Reading, but, for the moment, I beg leave to withdraw.

Amendment, by leave, withdrawn.

Lord Glentoran moved Amendment No. 2: Page 1, line 12, after "Constable" insert "with a vim to obtaining his agreement to the proposed objectives or revision

The noble Lord said: My Lords, Amendments Nos. 2 and 5, which are grouped, would ensure that the Secretary of State would consult with the Chief Constable, with a view to obtaining his agreement", before making changes to, or determining, long-term policing objectives or issuing or revising a code of practice.

It is appropriate that a working partnership be consolidated between the Chief Constable and the Secretary of State in addition to that between the board and the Secretary of State. These amendments would put consultation with the Chief Constable on an equal footing with consultation with the board. Two different relationships in this triangle must be developed. My amendment tries to balance them in a way that is probably correct.

I was grateful to the noble and learned Lord the Lord Privy Seal for his explanation in Grand Committee. But these amendments are concerned entirely with long-term objectives as a long-term proposal. The noble and learned Lord also stated that the police Bill had a different shade of nuance from the police Act 2000. What has changed since the 2000 Act was passed? What are the practical implications of such a change? What is the difference between consulting and consulting, with a view to obtaining … agreement"?

I am grateful to the noble Lord, Lord Maginnis, for sharing his interpretation of "long-term objectives". He said that they have more to do with political issues than operational ones, and that the Chief Constable then interprets such objectives in an operational manner. Although it is Northern Ireland we are discussing, that seems a little bogus. There is something wrong in that approach. I shall be interested to hear the interpretation of the noble and learned Lord the Lord Privy Seal of "long-term objectives", which I understand to be the justification for the amendments to the police Act 2000, in Clause 1.

My key points are that the balance of relationships should be maintained, bearing in mind that for "Secretary of State" we could, I hope, soon be reading "First Minister and Deputy First Minister". There must be a balance in the relationships between the board, which is quasi-political, the Secretary of State, who is obviously political, and the Chief Constable, the operational person responsible for the security, safety and policing of the Province. A consensus on the long-term objectives should be reached between the three different groups. My amendment would ensure that the Secretary of State would consult the Chief Constable, with a view to obtaining his agreement", on the "long-term objectives", to use the words of the noble and learned Lord in Grand Committee. I beg to move.

11.45 a.m

Lord Maginnis of Drumglass

My Lords, the contribution of the noble Lord, Lord Glentoran, underpins, perhaps in less trenchant terms, exactly what I said earlier. His amendment gives the noble and learned Lord the Lord Privy Seal an opportunity at least to concede a provision that simply intimates that consultation with the Chief Constable will be given the same consideration as consultation with the board. It would alleviate my problem of the Chief Constable's relegation to a position of secondary importance in the consultation process. The qualification proposed by the noble Lord, Lord Glentoran, would help to alleviate our difficulty.

Baroness O'Cathain

My Lords, I support my noble friend Lord Glentoran because the practical workability of the arrangements is important. Unless, agreement is reached between the three parties—the Secretary of State, the board and the Chief Constable—their relationship will be difficult. It is, after all, the Chief Constable who will have to work out the strategy to meet these objectives. I am sure that the last thing the noble and learned Lord wants is difficult relationships in this area of activity.

I see no reason why the words, with a view to obtaining his agreement to the proposed objectives or revision could be disagreed with. Amendment No. 2 does not say that the Secretary of State must obtain the Chief Constable's agreement. He must consult only, with a view to obtaining his agreement". That gives a good deal of leeway for proper dialogue between the Secretary of State and the Chief Constable on the practical workability of the arrangements.

Baroness Park of Monmouth

My Lords, I, too, support the amendments of the noble Lord, Lord Glentoran. I wish to inject a long-term view. So far, the Policing Board is working very well. It seems to be learning and working as an admirable institution. But the political long-term intention is that Sinn Fein should also join the Policing Board. That would change the chemistry of the board, because Sinn Fein's views on policing are totally different from everyone else's. I will raise only one of the obvious problems with that. The Chief Constable will have to operate within the arrangements decided, and it will be more important than ever that his relationship with the Secretary of State should be as strong as possible. Otherwise, the arrangements will not work.

Viscount Brookeborough

My Lords, I, too, support the amendment. I declare an interest as a member of the Policing Board. However, I stress that my remarks, unless I say otherwise, are as an individual on the board.

I support the amendment because "consult" means very different things to different types and groups of people. All too often, when politicians talk about consulting, they mean dictating. In certain debates and dealings with the Government, at least in this Chamber, many believe that when they say they have explored every avenue of consultation and talked to everybody, they mean that they have informed people.

The Secretary of State is a political figure, therefore there is no handicap in including the word "agreement". The Government cannot simply circulate a sheet of paper or inform bodies verbally of a decision and then say that they have consulted. A two-way process is needed. On that basis, I cannot see what danger would be imposed on the Government by stressing that negotiations, the passing of information and consulting are part of a two-way process, not a diktat.

Lord Williams of Mostyn

My Lords, I am very grateful to the noble Lord, Lord Glentoran, for so carefully explaining the amendments. I remind your Lordships of the present position.

Under Section 24 of the Police (Northern Ireland) Act 2000—the present statute in other words: The Secretary of State may determine, and from time to time, revise, long term objectives for the policing of Northern Ireland". Section 24(2) states: Before determining or revising any objectives under this section, the Secretary of State shall consult—

  1. (a) the Board;
  2. (b) the Chief Constable; and
  3. (c) such other persons as he thinks appropriate".
That is the present requirement. If the noble Viscount, Lord Brookeborough, is troubled about what consultation means, that is the present legal situation.

The noble Lords, Lord Maginnis and Lord Glentoran, asked about the nature of a long-term objective. Paragraph 6.16 of the Patten report refers to objectives in terms of a three to five-year span.

I sympathise with the thrust of the point made by the noble Lord, Lord Glentoran. I should like to explain, briefly, how I see the distinction. I said on a number of occasions in Grand Committee and again today that the clause is designed to allow for a slight adjustment—the different nuance I mentioned—which the noble Lord, Lord Glentoran, cited to me. It is a slight adjustment of power towards the board. The critical point is this. There is a distinction in this tripartite policing relationship between the role of the Chief Constable on the one hand and the board and the Secretary of State on the other. The latter have the responsibility for setting the strategic direction of policing in Northern Ireland. That is their broad purpose.

The duty of the Chief Constable is importantly, even if only subtly, different. That duty is the operational management of the police. His duty and obligation is to implement the objectives set by the board and the Secretary of State. That is a qualitatively different job. I am happy to say as firmly as I can that it is not the intention of the Government that policing objectives should be foisted on the Chief Constable with no regard to his wishes or views. I was glad to hear the endorsement of the noble Baroness, Lady Park, that the board is settling well and working well with a very new Chief Constable. That is a common view.

The purpose of the consultation is to listen to the views of the Chief Constable, have regard to them and pay careful attention to them. But there are the distinctions to which I pointed. Whether your Lordships agree with that description of difference is a matter for your Lordships. In my mind, it is a different quality of purpose and role and that is why we have this slight readjustment. I do not pretend that it is not intended to be a readjustment. I have said so on many occasions.

Lord Glentoran

My Lords, I thank the noble and learned Lord for that response. There is still some difference between us. I have a certain amount of sympathy with his explanation of the role of the police board and the Secretary of State in setting long-term objectives together, as allowed for in the legislation. I also accept that it is the role of the Chief Constable to devolve the strategy and operational plans for carrying out this long-term strategy. Looking ahead four or five years or even longer, what a difference there may be in personalities such as the First Minister, Deputy First Minister, Secretary of State, certain members of the police board and the Chief Constable. We have had problems in the past. There were disagreements within that quorum of people during the 1980s and 1990s, which caused the government at the time considerable pain. I hope that by not accepting my amendment the Government do not store up trouble for the future in this vitally important area. I shall think further about the matter and take advice before Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Maginnis of Drumglass moved Amendlent No. 3: Page 1, line 14, at end insert— (2B) Nothing in subsection (2) shall prevent the Secretary of State from determining or revising objectives under this section."

The noble Lord said: My Lords, Amendment No. 6 is grouped with Amendment No. 3. I do not intend to press the amendment to a Division. It is more by way of a probing amendment to seek an assurance from the noble and learned Lord. This Bill is designed to accommodate Sinn Fein/IRA on the Policing Board and on district policing partnerships. That is the primary objective of the Bill, based on what happened at Weston Park.

I have experienced the mercurial nature of Sinn Fein. Last year, on my own district council, we had a Sinn Fein chairman. He was an excellent chairman. Everything went absolutely tickety-boo, as he would say, in terms of council business. This year, we have an SDLP chairman. The former chairman now sits down the chamber. I have seen him rise with a fistful of papers to fling them in the face of the SDLP chairman. That is the mercurial nature of Sinn Fein. If this Bill goes through, that could be the behaviour of Sinn Fein on the board and on partnerships.

The Secretary of State has to consult with a view to obtaining agreement to the proposed objectives or revision in terms of codes of practice. If that is not possible, how do we ensure that the business of policing and the respective roles of the Secretary of State and Chief Constable are not hindered to the detriment of society? I believe that by adding our Amendments Nos. 3 and 6 there would be enshrined in legislation a means whereby we could overcome this difficulty. I shall listen with interest to what the noble and learned Lord has to say on this matter. I beg to move.

Lord Williams of Mostyn

My Lords, I shall respond in the same spirit as the noble Lord, Lord Maginnis. I will be able to reassure the noble Lord. The approach encapsulated in the clause is that it is for the Secretary of State to consult the board with a view to obtaining its agreement. I am quite sure that the Secretary of State and his successors will make every effort to do so. However, I think the nub of the noble Lord's question was about what would happen if there was a disagreement. I can give an assurance; the situation is quite plain. In the unlikely event that no agreement is arrived at, the Secretary of State's powers remain intact. In other words, the board has no veto.

The noble Lord's amendments are not needed; they do not affect the position. I hope that I have given him the assurance as plainly as he would have wished.

Lord Maginnis of Drumglass

My Lords, I am grateful to the noble and learned Lord for that unequivocal assurance. Where there is an unequivocal assurance, it is not my intention—or the intention of those associated with me—to frustrate or hold up the Bill. The discussion has been useful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


The Deputy Speaker (Viscount Allenby of Megiddo)

My Lords, before calling Amendment No. 4, I must inform the House that, if it is agreed, I cannot call Amendments Nos. 5 and 6.

[Amendments Nos. 4 to 6 not moved.]

Clause 2 [Board's policing objectives]:

[Amendments Nos. 7 and 8 not moved.]

Clause 3 [Public meetings of the Board]:

Lord Smith of Clifton moved Amendment No. 9: Page 2, line 16, leave out subsection (1).

The noble Lord said: My Lords, the Police (Northern Ireland) Act 2000 stipulated that the board meet 10 times a year. The Bill reduces that to eight times a year. The reduction in the number of public meetings of the board each year is a departure from Patten.

In Committee, the Minister explained that those changes had been made at the specific request of the Policing Board, as it wanted greater flexibility over when it could hold meetings. However, that flexibility can be achieved under subsection (2), which removes the time limit on the holding of public meetings. The 2000 Act already compromised Patten on that point by reducing the minimum number of meetings from 12 to 10. To reduce it further—to eight—would be a retrograde step for transparency and public accountability. Flexibility is not a good enough reason for the change. I beg to move.

Lord Williams of Mostyn

My Lords, I understand the noble Lord's concern, but all that we are doing here is setting a different minimum. It is important to recognise that that is all that is proposed. I return to the point made by the noble Baroness, Lady Park of Monmouth: the board is settling in well and learning through experience. The board specifically asked us to put the minimum at eight.

As it happens, the public meetings are not well attended. I cannot think why. The board needs to have many private meetings, for obvious reasons that we all understand. Occasionally, with the pressure of private meeting business and the squalls that sometimes come up over Christmas or other holiday periods, the board finds it logistically difficult to comply with the statutory minimum.

The board, which is developing its own authority, has made the request. Its judgment should be trusted, and we want to accede to the request. I hope that it will help if I stress that it is not the board's intention—nor the Government's—to do anything to undermine its accountability or, in particular, its transparency, the aspect referred to by the noble Lord, Lord Smith of Clifton. I ask the noble Lord to bear in mind the reassurance that I have sought to give and not to press the amendment.

Lord Smith of Clifton

My Lords, I thank the Minister for that explanation. I do not entirely accept that reasons of logistics and so on should prevent the board holding a minimum of public meetings a year. Thankfully, the apathy of the public, who do not attend, means that things are going well. When things are not going so well, people should have the opportunity to attend public meetings.

I shall not press the amendment at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Reports of Chief Constable]:

Lord Glentoran moved Amendment No. 10: Leave out Clause 8.

The noble Lord said: My Lords, we return to the battle that was fought long and hard in Grand Committee about Clauses 8 and 9. Amendments Nos. 10 and 11 do virtually the same thing. The nub of the argument comes later, with Amendment No. 35 to Clause 19, but there are more ways than one of discussing the matter.

I fail to see why it is necessary to interfere with the operational responsibility and independence of the Chief Constable. That is what the clause does. What has changed since the 2000 Act? Nothing has changed, other than the fact that there have been some off-the-record agreements at a place called Weston Park that have nothing to do with the Belfast agreement and nothing to do with Patten.

The clause will reduce the grounds on which the Chief Constable can refer a request for information to the Secretary of State. That is a particularly important matter in Northern Ireland where the maintenance of the operational independence of the chief officer of police is such a sensitive issue. Under the 2000 Act, the Chief Constable is not allowed a veto over the board on whether a report on a matter specified by the board should be made. The amendments to be made to that Act by the Bill will be damaging.

I fear that the noble and learned Lord the Lord Privy Seal will say that he does not foresee a situation in which our fears would be relevant. I cannot agree. Friendly as we are most of the time, we disagreed about that in Committee, and I am concerned that we may fall out again today. Forcing a Chief Constable to report to a board in a way that was likely to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders must be wrong in any part of the kingdom.

In Committee, I asked the noble and learned Lord why the Government felt it necessary to make such an extraordinary change and what had changed so dramatically in Northern Ireland between 2000 and January 2003. I was not satisfied with his explanations then. He may be able to help me today, but I am not optimistic. I beg to move.

Lord Mayhew of Twysden

My Lords, nowadays, in serious fraud cases, the courts make provision to lighten the load of a jury by laying on electronic recall of complicated documents and projecting the results onto screens all around the court. That makes it easier for the jury to follow what is said to them, however complex. I wish that something of the same could have been made available while we discussed this amendment. It would make it easier for people who have not been initiated—"blooded" might be another word— by a discussion of at least an hour in Grand Committee to follow the way in which the Bill changes an important part of the law. Its importance was conceded by the noble and learned Lord in Grand Committee when he dealt with the grounds for the amendment with his customary care and accuracy. Because I have kept quiet so far this morning, perhaps I might be indulged in explaining what is done at a little length.

The matter can be put simply—it has to be without the kind of aid to the drafting changes that are involved—but nonetheless accurately. The context is the duty of the Chief Constable, as explained by my noble friend Lord Glentoran, to submit to the policing board reports whenever he is required by the board to do so. What kind of reports?—reports on any matter that the board may specify in its requirement. How soon must he comply?—within one month of any such requirement or—the noble and learned Lord placed great emphasis on this in his reply to me—any such longer period as may be agreed by the Chief Constable with the board. We will return to the significance of that provision.

I referred to the present law. How old is it? It is not as much as three years old. It comes from Section 59 of the Police (Northern Ireland) Act 2000. It may even be less than two years old, because Section 59 did not come into force on the passing of the Act but on some later date ordered by the Secretary of State for Northern Ireland that I have not been able to determine.

This being about the policing of Northern Ireland and the history of Northern Ireland—not, as we have been reminded, of Surrey—some safeguards were included against the consequence of tensions between the policing board and the Chief Constable. We all are grateful for the fact that the board seems to be settling down and is working. It is greatly to our advantage that we have among us the noble Viscount, Lord Brookeborough, as a member of that board, which adds enormously to our discussion of these matters.

It was anticipated by Parliament a short time ago that tensions could arise between the Chief Constable and the board. I do not believe that it would be realistic to suppose that anticipation is entirely eliminated by the encouraging but early start that has been made. It was anticipated that those tensions could arise in such a way that the Chief Constable would be asked to report on a matter that he thought would be bound to contain information that ought not to be disclosed for one or more of four reasons. They are interests of national security; because the matter relates to an individual and is of a sensitive and personal character; it would or would be likely to prejudice proceedings which have been commenced in a court of law; or the critical reason for our discussion, in Section 59(3)(d) of the 2000 Act, which is that, it would, or would be likely, to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders". The character of the safeguards are to be found in the same section. The Chief Constable can refer any such requirement to the Secretary of State, then it will be over to him. He can do what he likes. He can amend the requirement or override it. It is over to him and off the responsibility of the Chief Constable.

I believe that it is still necessary that all such grounds should be open to the Secretary of State. Unfortunately, the Bill removes paragraph (d). The prosecution of offenders, and more especially perhaps the apprehension of crime, fall absolutely fair and square within the operational discretion of the Chief Constable. They are for him and him alone. I leave aside the later stages of prosecution, which of course become the responsibility of the Director of Public Prosecutions.

I invite the House to agree that it is terribly important that the Chief Constable's operational discretion—the noble and learned Lord confirmed a moment ago that the operational management of the police is for the Chief Constable—should not be trenched apart. If one takes away the ground contained in Section 59(3)(d), one opens the way—it may not be readily foreseen but could be taken—to covert prevention of crime being apprehended in one particular or other and to not being able to prosecute some individual because the trail has been muddied or for some other reason.

We fasten upon that because of its importance. In Grand Committee, the noble and learned Lord said: This is a topic of great seriousness. It may be the most important aspect of our discussions at this stage".—[Official Report, 9/1/03; col. GC68.] When he first put forward the justification for what is being done, the noble and learned Lord drew attention to the point to which of have already alluded—that there can be postponement of the report if that is agreed between the Chief Constable and the Secretary of State. It has to be delivered in one month or such later time as may agreed. One hopes that there would be agreement, but the necessity for the safeguards that I have mentioned has been the anticipation that there may be such tensions between the Chief Constable and the policing board that a reasonable demand is not made or that reasonable agreement is not available. That in itself is not sufficient.

The noble and learned Lord relies upon the Patten report and the implementation plan. He had to concede, not surprisingly, that the Patten report came before the 2000 Act, which contains the law that I have explained and which is now sought to be changed. The noble and learned Lord reminded us that the implementation report published in July 2001 stated that the Government intended to remove Section 59(3)(d)—claiming that that had effectively been recommended by Patten. What has changed? If, notwithstanding Patten's recommendation, it was thought necessary to include the safeguard in paragraph (d) in the 2000 Act, why by 2001 was it thought necessary to remove it? Who asked for that to be done?

Even if the Government gave notice of their intention in the implementation plan of July 2001, surely there is some ground for reviewing that decision or at least for explaining the rationale. One should not regard the implementation plan in the way that the German general staff regarded the mobilisation plan in 1914—"Because it's in the plan, it can't be changed. The trains are moving and that's that". From time to time, there is just a little room for a slight accretion of wisdom as the years roll by—for example, after a manifesto has been published. We should not be bound hand and foot to the plan's implementation or otherwise.

Therefore I respectfully agree with the noble and learned Lord when he says that this is probably the most important feature of the Bill and a matter of great seriousness. Of course we agree that the necessity for relying on the safeguard is unlikely and we all pray that it will never arise. But it might. What is the justification for removing something which Parliament, in its wisdom, thought it necessary to include as recently as three years ago?

Lord Hylton

My Lords, it might be helpful to the House if the noble and learned Lord could tell us how often Section 59 reports have been called for by the board; and how often the Chief Constable has felt obliged to rely on the safeguards at present built into subsection (3)?

Baroness Park of Monmouth

My Lords, I return to my usual premise. Both the implementation plan and the Patten recommendations rested on the idea that Sinn Fein would support the new police arrangements, would join the board and would work with everyone. Sinn Fein has given clear indications that it wishes to destroy the present police; it has told its own young people not to join. That is not what was planned. In view of that, it is vital that the wise provisions of the 2000 Act are retained and we ensure that it is not possible for anyone who wishes to be a wrecker to wreck.

Lord Maginnis of Drumglass

My Lords, I want to enlarge on a very sensible query posed by the noble Lord, Lord Hylton, in terms of how many times the necessity has arisen for the Chief Constable to invoke Clause 8. In terms of this Bill, that is not relevant. We are looking at a situation where Sinn Fein is going to be given a leg up on to the Policing Board and where an entirely different set of circumstances will rule.

If the safeguard is removed and if at the same time the number of people on the Policing Board who are able either to demand a report from the Chief Constable or to seek an inquiry is reduced, we shall have a greater need for the safeguard that is sought today. I simply make that point. We cannot judge on what is happening now, but we must judge on what is likely to happen when Sinn Fein is brought on to the board, as clearly the Government intend.

Viscount Brookeborough

My Lords, I support Amendment No. 10. At the previous stage of the Bill, we asked the noble and learned Lord, Lord Williams of Mostyn, where the proposal had come from and who had asked for it. He said only that it had appeared in the Patten review and in a few other documents. Clearly, if that had been the sole reason for the proposal, the Government would have followed the Patten review in the first place. They did not do so then and have now introduced it for a different reason.

Who asked for the measure? The noble Baroness, Lady Park of Monmouth, hit the nail on the head in saying that it was the SDLP and Sinn Fein. It is no secret within the Policing Board at present that the SDLP wishes to have the ability to inquire into everything. The SDLP is very much part of the working board, but there are one or two small issues that it likes to address from the point of view of its electorate. The SDLP wants to be able say to its electorate that it is part of a body which can investigate anything, anywhere, at any time, regardless of the consequences. Therefore nobody—for even good judicial and crime detection reasons—can intervene or put anything in the SDLP's way.

It has asked for and questioned the first provision, in the interests of national security". When the late director of the Security Services appeared at the Policing Board, the question was asked: why should we not look at national security? That suggestion clearly came from the SDLP and Sinn Fein wants that too. They have asked for Clause 8 and the Government are prepared to give way.

Those to whom I have spoken, either in regard to policing or legal issues, have said that this can be only to the detriment of crime detection and prevention because the Chief Constable can refuse on the basis that the matter is already in court. The police may have a case which they have spent months investigating. Noble Lords will understand that cases cannot be investigated and reach court in less than a month, so this length of time is short enough. The Chief Constable can refer the matter to the Secretary of State and once it is under the jurisdiction of the court, it cannot be intervened with. However, before reaching court the whole case can be destroyed.

On speaking to someone who wants the measure, I put forward the point—it does not matter whether we are referring to the Stormont spy case or anything else, but that is a particularly long-running case—that if information is required, it should be available. I asked what would happen if obtaining the information prejudiced the case. For all I know, a policeman or a spy at Stormont could be involved in the case. I asked what would happen if ultimately someone should be prosecuted but the case could not go ahead because the information obtained came from areas where the Chief Constable had no protection. I was told, "That that would not happen because we would not ask".

The clause is nothing but a safety net. It is perfectly straightforward. It is obviously being used to buy Sinn Fein and to allow it and the SDLP to go to their electorate and say that they are on the board. I believe that the SDLP is talking purely to its electorate. Sinn Fein is talking to its electorate. We know what may happen at the next election; people may move to the extremes. The SDLP is being reasonable within the board, but it has backed this proposal because it knows that the Government are ready to sell out. That is totally unreasonable and totally impractical. I believe that it simply would not occur in any other jurisdiction one could imagine as being sane, sensible and working for peace.

12.30 p.m.

Lord Williams of Mostyn

My Lords, the noble and learned Lord, Lord Mayhew, is right. First, he said explicitly that this probably is the issue that concerns your Lordships more than any other in the Bill. Secondly, he said implicitly that we are unlikely to agree. The noble Lord, Lord Glentoran, and the noble and learned Lord, Lord Mayhew, helpfully developed the issue—to give it a proper and appropriate hearing—to encompass the whole of the Clause 19 issues. It is probably helpful for me to respond in the same manner because if there is to be a Division it might as well be at this stage rather than when we come to Clause 19. The structure of the Act means that it is impossible to discuss these amendments without the wider issues of Clause 19.

The answer to the question asked by the noble Lord, Lord Hylton, is "none".

The noble and learned Lord, Lord Mayhew, is right in saying that the proposal derives from paragraph 6.22 in the Pattern report, which states: 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 stress the next sentence. The obligation to report should extend to explaining operational decisions. 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 and cases before the courts". That, in fact—

Viscount Brookeborough

My Lords, I thank the noble and learned Lord for giving way. The report refers to the Chief Constable explaining decisions. I accept that that relates to decisions which the Chief Constable has made; decisions that have been taken. But he may be asked for information during an investigation and for the reasons why decisions may be taken in the immediate future. In that respect, we are talking about two different things. Past decisions taken some time ago are different from decisions being taken at a particular moment during the conduct of an investigation.

Lord Williams of Mostyn

My Lords, I see the distinction, but I do not accept its validity. The Patten report is unambiguous on the matter: The obligation to report should extend to explaining operational decisions". That does not state that the decisions have to belong to pre-history. Indeed, the Patten report puts the almost philosophical difference clearly, if not wholly to the satisfaction of everyone in this Chamber.

The report continues: One of the most difficult issues we have considered is the question of 'operational independence"'. I remember that the noble and learned Lord, Lord Mayhew, turned to this matter when we had our most illuminating discussion in Grand Committee. The report goes on: Long consideration has led us to the view that the term 'operational independence' is itself a large part of the problem. In a democratic society, all public officials must be fully accountable to the institutions of that society for the due performance of their functions, and a chief of police cannot be an exception. No public official, including a chief of police, can be said to be 'independent'. Indeed, given the extraordinary powers conferred on the police, it is essential that their exercise is subject to the closest and most effective scrutiny possible". That is, perhaps, an almost philosophical difference of approach.

The noble and learned Lord is right in saying that the implementation plan is dated 2001—post the Act. The report further states that, the Policing Board should have the power, subject only to the same limitation set out in paragraph 6.22, to follow up any report from the Chief Constable by initiating an inquiry into any aspect of the police service or police conduct". That is what is now being done in the Bill. We have altered the four grounds and there are now three. They are set out in Clause 19 as: (a) it is in the interests of national security; (b) the information is sensitive personnel information or information the disclosure of which would be likely to put an individual in danger; (c) the information would, or would be likely to, prejudice proceedings which have been commenced in a court of law". Therefore, if there is information the disclosure of which is likely to put an individual in danger, that is—and I use the term generally—protected.

I do not believe that we are going to reach an agreement of minds here, partly because of the difference of fundamental approach. It is wrong to say that this is a Bill to benefit Sinn Fein; that it is a Sinn Fein benefit. In fact, the SDLP made representations during the passage of the first Bill stressing its discontent.

There are the safeguards here. Section 59(2)(b) of the 2000 Act states that the report shall be made, 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". It is useful to look at recent experience; there has been no requirement—which is the answer to the question posed by the noble Lord, Lord Hylton. I am able to tell your Lordships that the current Chief Constable, when the matter has been discussed with him, finds it hard to see a situation arising in which it would be necessary for him to invoke the ground as it now stands in the Act. He would work with the board to reach an accommodation on issues of that nature.

I have spent a little time on the general theme of Clause 19. These are not amendments that the Government are prepared to accept. Nor will we accept—I must say plainly at this stage—any attack on the Question that Clause 19 shall stand part of the Bill, if that were to be made. I hope that your Lordships do not think that discourteous, but I have to put the matter beyond doubt.

Lord Mayhew of Twysden

My Lords, before the noble and learned Lord sits down, perhaps I may ask him for an explanation. He has carefully explained what he describes as a difference of philosophy on a matter of operational independence between the view I have expressed and the view expressed in the Patten report. If the view expressed in the Patten report is relied upon as justifying the amendment we are discussing, why was that view not taken in 2000 when the Act was passed? What has made it necessary now?

Lord Williams of Mostyn

My Lords, that is a perfectly legitimate question. At that stage, it was thought that ground four ought to be included. Since then, at least two things have happened. First, there has been the experience of the Chief Constable working with the board. Secondly, the implementation report came to the conclusion that ground four was not required. As the noble and learned Lord said, when we made our response to the implementation plan, which was post the 2000 Act, the Government gave the commitment which they are now honouring in this Bill.

Lord Glentoran

My Lords, I thank the noble and learned Lord for his explanations and I thank noble Lords for taking part in the debate. My noble and learned friend Lord Mayhew made a reasoned argument and the noble Viscount, Lord Brookeborough, who has considerable experience working on the Policing Board, has explained his views and fears.

The noble Lord, Lord Maginnis, made some political points which I do not necessarily accept or agree with. I agree with the noble and learned Lord the Lord Privy Seal that this is not a Bill entirely for Sinn Fein. Many parts of it are practical, sensible and good and are well supported by the Policing Board and by the Chief Constable. I met the Chief Constable as recently as Monday, but on the understanding with him that I would not repeat anything we discussed. I shall say no more on the matter, if your Lordships will forgive me.

There is a slightly different philosophical approach. I am surprised that it is coming from Her Majesty's Government, particularly in the light of recent changes in the Kingdom in regard to security, policing and the management of crime and criminals and terrorism and terrorists. The Government's record on that has not so far been good, but they are taking serious steps to attempt more strongly to secure our nation—except in this Bill and in parts of Northern Ireland. The Province is already far less secure and has suffered from crime and terrorism far more than any other part of the United Kingdom.

My main point is that the Patten report was written on the understanding that the members of the commission did not expect it to be implemented immediately or to be implemented all at once. They did not expect parts of the report to be implemented until such time as society in Northern Ireland was living in a normal and peaceful way, as other people do in other parts of the United Kingdom.

Patently that has not yet happened. Perhaps we are near it, but I do not believe that. I think that we have a very long way to go. Even if we were to get Stormont operating again, if Sinn Fein were to take part on the Policing Board, or even if the IRA publicly and obviously stood down, I can say from the meetings that I have had in north and west Belfast over the weekend and which my honourable friend Quentin Davies, who serves in another place, has had with people in east Belfast, that what is happening in Northern Ireland is horrifying. There are vicious terror gangs, turf wars and gun-running, so it is not a normal part of the United Kingdom.

My key complaint about this part of the Bill is that it will do the things that the noble Viscount, Lord Brookeborough, said. It is too soon; it will put the community at risk. Her Majesty's Government do not have a right to put the community in any part of the United Kingdomat risk. I should love to support the Government in a Bill to normalise things. I cannot wait for the day, but as an inhabitant of that country, it not safe to do so yet.

I regret that I cannot withdraw the amendment. I shall seek the views of the House.

12.42 p.m.

On Question, Whether the said amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 106; Not-Contents, 142.

Division No. 1
Aberdare, L. Bowness, L.
Allenby of Megiddo, V. Bridgeman, V.[Teller]
Ampthill, L. Brooke of Sutton Mandeville, L.
Anelay of St Johns, B. Brookeborough, V.
Astor, V. Brougham and Vaux, L.
Astor of Hever, L. Burnham, L.
Beaumont of Whitley, L. Buscombe, B.
Blaker, L. Byford, B.
Blatch, B. Caithness, E.
Campbell of Alloway, L. Marsh, L.
Campbell of Croy, L. Masham of Ilton, B.
Carlisle of Bucklow, L. Mayhew of Twysden, L.
Carnegy of Lour, B. Miller of Hendon, B.
Cooke of Islandreagh, L. Molyneaux of Killead, L.
Cope of Berkeley, L. Montrose, D.
Cox, B. Moore of Wolvercote, L
Crathorne, L. Mowbray and Stourton, L.
Crickhowell, L. Murton of Lindisfarne, L.
Dean of Harptree, L. Noakes, B.
Denham, L. Norton of Louth, L.
Dixon-Smith, L. O'Cathain, B.
Elliott of Morpeth, L. Palmer, L.
Elton, L. Park of Monmouth, B.
Freeman, L. Perry of Walton, L.
Gardner of Parkes, B. Peyton of Yeovil, L.
Geddes, L. Pilkington of Oxenford, L.
Glentoran, L. Plumb, L.
Gray of Contin, L. Plummer of St. Marylebone, L.
Greenway, L. Rawlings, B.
Hanham, B. Reay, L.
Henley, L Renton, L.
Higgins, L Roberts of Conwy, L.
Hodgson of Astley Abbotts, L. Rogan, L.
Howe, E. Rotherwick, L.
Ryder of Wensum, L.
Howe of Aberavon, L. Saatchi, L
Howell of Guildford, L. Saltoun of Abernethy, Ly.
Hussey of North Bradley, L. Seccombe, B.
James of Holland Park, B. Selsdon, L.
Jenkin of Roding, L. Shaw of Northstead, L.
Jopling, L. Skelmersdale, L.
Kimball, L. Slim, V.
King of Bridgwater, L. Stewartby, L.
Knight of Collingtree, B. Strathclyde, L.
Laird, L. Swinfen, L.
Lane of Horsell, L. Tenby, V.
Lang of Monkton, L. Trefgarne, L.
Lawson of Blaby, L. Trumpington, B.
Luke, L. Tugendhat, L.
Lyell, L. Vivian, L.
McColl of Dulwich, L. Wade of Chorlton, L.
Maginnis of Drumglass, L. Weatherill, L.
[Teller] Wilcox, B.
Marlesford, L. Wolfson, L.
Acton, L. Corbett of Castle Vale, L.
Addington, L. Craig of Radley, L.
Ahmed, L. David, B.
Amos, B. Davies of Coity, L.
Andrews, B. Davies of Oldham, L.
Archer of Sandwell, L. Desai, L.
Avebury, L. Dholakia, L.
Bach, L. Dormand of Easington, L.
Barker, B. Dubs, L.
Bassam of Brighton, L. Elder, L.
Berkeley, L. Elis-Thomas, L.
Bernstein of Craigweil, L. Evans of Temple Guiting, L.
Bhatia, L. Falconer of Thoroton, L.
Billingham, B. Farrington of Ribbleton, B.
Blackstone, B. Faulkner of Worcester, L.
Bradshaw, L. Fyfe of Fairfield, L.
Bragg, L. Gale, B.
Brookman, L. Gavron, L.
Burlison, L. Geraint, L.
Carter, L. Gibson of Market Rasen, B.
Chandos, V. Gladwin of Clee, L.
Chester, Bp. Goldsmith, L.
Chorley, L. Goodhart, L.
Christopher, L. Gordon of Strathblane, L.
Clarke of Hampstead, L. Goudie, B.
Clement-Jones, L. Gould of Potternewton, B.
Clinton-Davis, L. Grabiner, L.
Cohen of Pimlico, B. Graham of Edmonton, L.
Greaves, L. Orme, L.
Grenfell, L. Ouseley, L.
Grocott, L.[Teller] Parekh, L.
Hardy of Wath, L. Patel of Blackburn, L.
Harrison, L. Pendry, L.
Hayman, B. Pitkeathley, B.
Hilton of Eggardon, B. Plant of Highfield, L.
Hogg of Cumbernauld, L. Ponsonby of Shulbrede, L.
Hollis of Heigham, B. Prys-Davies, L.
Howells of St. Davids, B. Radice, L.
Howie of Troon, L. Ramsay of Cartvale, B.
Hoyle, L. Redesdale, L.
Hughes of Woodside, L. Rendell of Babergh, B.
Hunt of Kings Heath, L. Rennard, L.
Hylton, L. Richard, L.
Irvine of Lairg, L.(Lord Rodgers of Quarry Bank, L.
Chancellor) Roper, L.
Jay of Paddington, B. Russell-Johnston, L.
Jones, L. Sandberg, L.
Jordan, L. Scotland of Asthal, B.
King of West Bromwich, L. Scott of Needham Market, B.
Kirkhill, L. Sewel, L.
Lea of Crondall, L. Sharp of Guildford, B.
Lester of Herne Hill, L. Sheldon, L.
Lipsey, L. Shutt of Greetland, L.
Livsey of Talgarth, L. Simon, V.
Lofthouse of Pontefract, L. Smith of Clifton, L.
McIntosh of Haringey, L. Smith of Gilmorehill, B.
Smith of Leigh, L.
[Teller] Strabolgi, L.
MacKenzie of Culkein, L. Temple-Morris, L.
Mackenzie of Framwellgate, L. Thomas of Walliswood, B.
Mackie of Benshie, L. Tomlinson, L.
Maclennan of Rogart, L. Tordoff, L.
McNally, L. Uddin, B.
Maddock, B. Watson of Richmond, L.
Mar and Kellie, E. Wedderburn of Charlton, L.
Massey of Darwen, B. Whitaker, B.
Merlyn-Rees, L. Whitty, L.
Methuen, L. Wilkins, B.
Mitchell, L. Williams of Crosby, B.
Morris of Aberavon, L. Williams of Elvel, L
Morris of Manchester, L. Williams of Mostyn, L. (Lord
Murray of Epping Forest, L. Privy Seal)
Nicol, B. Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.

12.53 p.m.

Clause 9 [Inquiries by Board]:

[Amendment No. 11 not moved.]

Clause 10 [Approval of proposals relating to inquiries by Board]:

Lord Maginnis of Drumglass moved Amendment No. 12: Page 7, line 4, leave out "subsections (2) and" and insert "subsection

The noble Lord said: My Lords, the amendment relates again to the numbers game. It is difficult to understand why, with 19 board members, the cut-off is to be only eight. That is 40 per cent with regard to those who can demand an inquiry. During debate on the previous amendment, the noble Lord, Lord Hylton, asked the relevant question of how often the provision had been invoked to the extent that numbers mattered. At either Second Reading or in Committee, my noble friend Lord Rogan asked the same question. On both occasions, the Minister intimated that it had not been invoked. One has to ask, therefore, as did the noble and learned Lord, Lord Mayhew, why, in the short period of three years, we have to have this change.

On another matter, the Minister indicated that evidence relating to how the board had worked justified Government making the change. However, having told us on this issue that there is no evidence whatever, that argument does not stand up. One has to query, therefore, whether the provision relates to the Government's intention to bring Sinn Fein on to the board. I shall not fall out with my noble friend Lord Glentoran when he discovers some good in some parts of the Bill. Nonetheless, we are on dangerous ground when inferring the Chief Constable's support by virtue of a conversation with him which cannot be reported to this House.

In talking about democracy, I should have thought that we would apply some of those democratic rules to the Policing Board and would not be making special arrangements for only 40 per cent of the board to be able to invoke an inquiry. The mischievousness of Sinn Fein at the table when it is not in substantially powerful positions is a lesson which could be learned. I beg to move.

Viscount Brookeborough

My Lords, I support the amendment. During debate on removal of the clause, the Minister made a remark—I hope that he will not repeat it—on the Chief Constable's experience of the board. There is a brand new Chief Constable: I do not know how that remark came about. In terms of life in the Province, strategic points of view, and so on, six months does not warrant comments about experience of the board. I hope that eventually, under proper conditions, Sinn Fein comes on. The board will change; we have to wait far longer to see how it will work. However, I am grateful for the remarks about how well he thinks we are doing.

At the moment, the board consists of 19 members. We have got 10, which is fractionally over half. It is quite simple. The strength of the Policing Board is that it is community-based and has a collective responsibility in making its decisions; it is a cross-community body. Even though Sinn Fein is not represented, the composition of the board takes into account various community backgrounds. It correctly reflects the community of Northern Ireland and the basic religious divide. So let us not say that because Sinn Fein is not represented at the moment the board does not reflect those proportions—it does.

If and when Sinn Fein is represented on the independent members' side, I understand that, unless there is a change in the law to provide for a different number of people on the board, there will be a slight change in the number of independents. Because there would be two more speaking from the nationalist or the Roman Catholic point of view, a change will be made to the independent side so that the board continues to reflect a balance. So we are not talking about a lack of balance on the board.

At the moment, a decision needs to be taken by more than 50 per cent of the board. In public, a board decision will be a collective responsibility to run an inquiry, report, or whatever. The public see that the decision is made under collective responsibility by more than 50 per cent of the board. It is extremely important that no decision is made without 50 per cent of the board being present.

The noble and learned Lord, Lord Williams of Mostyn, slightly side-stepped the question of who had brought forward this issue, but when I spoke to someone in the SDLP about it, he accepted that his party was very much behind it. Whether or not it was put to him in words is neither here nor there, his party was very much behind it. I asked him why and he said it would enable a smaller number of people to cause an inquiry to take place.

I asked how it would work. He said, "If we want an inquiry, we need to get only eight people together for that to happen". I said, "But some on the other side might be against it"—although, for all I know, I could be in favour of an inquiry—and he said, "Well, under the circumstances, it could happen when no one else was available. We could call a meeting and, with eight of us, we could get it through".

I said, "Okay, let us put it the other way. I want an inquiry into something, how do I run it?" He said, "You find eight people, get agreement and you do it". I said, "But then it is a decision made by less than 50 per cent of the board". He said, "That's right". So I said, "If I wanted to do it and you didn't, what would be your response?" He said, "My response would be that, as soon as I could, I would find nine or 10 members. We would then get together and change the decision".

It is farcical to pose problems that will have to be solved in a totally irrational way. It is amazing that we are setting up a body that, under extreme conditions—we are not talking about something that will happen every day—would allow me to find eight people who will agree with me, get them into a huddle, and make a decision knowing very well that, because I had to struggle, the other 10 members will not agree. I know that, otherwise I would not bother; I would bring up the matter as normal before the board. So, again, there is a safety net.

Let us now assume that I get the decision I want and it is minuted that we will have an inquiry into such and such. One, two or three weeks later, the others, realising that I did this while they were at the opera or the theatre or whatever, get together and decide to revoke the decision because they are the board. It should be remembered that, out of eight members, it would need only five to force the issue. But it is a collective decision, and I believe that the board should, and does, work under the principle of collective decision. I know that certain people do not keep confidences but, on the whole, the board does work as a body.

This is the most amazing enabling clause. It is a farce, and it will be seen as a farce by everyone. The Minister's reply may be that this small group should be allowed to make such decisions because it is so reasonable, but the independents are weighted slightly more towards one side at the moment. However, I remind the House that the divisions reflect the community. The Government tried to create a Policing Board that is fair, reflects the community and is accepted by the public. They have done so, but this undermines it.

Lord Glentoran

My Lords, although my Amendment No. 17 is not in this group, perhaps I may speak to it now. It effectively deals with the same issues. I give notice that I do not intend to divide the House on Amendment No. 17 today.

I find it difficult to add to the persuasiveness of the noble Viscount, Lord Brookeborough. We have rehearsed the arguments. I understand from the noble and learned Lord the Lord Privy Seal that Clause 10 represents a lowering of the threshold—which it does—and that the important words are "present and voting". But, not for the first time in our discussions on the Bill, I fail to see any logic in the justification for this change.

Certain noble Lords to whom I have spoken have told me that in public bodies of this nature in England, more than 50 per cent of the representatives never turn up; that the figure is usually about 30 per cent or 20 per cent. That is not my experience, but it may be the experience in England. Even if it is, that is all the more reason for maintaining the higher number required to take decisions.

In something as sensitive as policing in Northern Ireland, why are the Government taking risks by reducing the level to below 50 per cent of those required on the Policing Board for the Police Service of Northern Ireland? After the debates in the Grand Commit tee and recent visits to the Police Service and other parts of Belfast, I cannot see any logic or reason for this. I cannot see the positive side. I cannot see what is so good about this that it is important to change the legislation which, as we have said, is only two years old. It is taking a risk with the security, policing and lives of the people of Northern Ireland. It is time that the Government stopped doing it.

Lord Williams of Mostyn

My Lords, the genesis of this change is in the implementation plan of 2001. The Government intend, after the review, to provide that the number of members present and voting for a proposal for an inquiry should be eight so long as—let me stress these words—that is the majority of those present and voting.

It is fanciful to suggest that a gang of eight can bring this about while others are at the opera. First, an inquiry follows receipt of a report under Section 59 of the Police (Northern Ireland) Act 2000. Paragraph 18 of Schedule 1 to the Act provides that at least three members have to have made a written request to the chairman asking him to call a meeting. Paragraph 18(2) states: The chairman shall, no later than three working days after the day on which he receives the request, call such a meeting". Paragraph 18(3) states: The meeting shall be held no earlier than six, and no later than twenty-one, working days after that day". Critically for the opera lovers, paragraph 18(4) states: The chairman shall notify each member of the Board of the date and purpose of the meeting". Those are mandatory requirements.

The noble Viscount will know as well as I do that in 2002 an overall attendance of 90 per cent was achieved; three-quarters of all board members attended at least 12 of the 13 board meetings. I agree with the noble Lord, Lord Glentoran. The threshold will be lowered to eight although the board consists of 19 members, but there has to be a majority of those present and voting. With deep deference, I believe that the fears are overblown.

Lord Maginnis of Drumglass

My Lords, I beg to disagree with the noble and learned Lord on the latter point. Our fears are not overblown. The reality is that at the moment we live in a non-stable society. That lack of stability is brought about by the role of paramilitaries. I know that some have suggested that I am politicising what is a police matter. I am not politicising it; it is politicised by the nature of the Bill. It is politicised by this change that suggests that eight out of 19 is somehow a magical figure that can be attractive to the SDLP and to Sinn Fein.

For the past 20 years in public life I have worked with the SDLP. At times I find that it assumes certain attitudes because it is fighting in the community for the same votes as Sinn Fein. Matters are not always as they appear. If noble Lords had had experiences, as I have, in local government in Northern Ireland, they would find that in that context that is true.

In this unstable society of ours, Sinn Fein, for electoral reasons or for much more dubious and dangerous reasons, has the ability to intimidate. Anything that brings us down to that marginal area where intimidation, not just of politicians who are associated with the board but also of independent members who are on the board, may occur is dangerous in the extreme. For the reasons I have already enunciated and because there has never been any difficulty in regard to the previous figure of 10, I cannot understand why, without proven justification, the figure is now to be reduced to eight. I had intended to divide the House on this issue.

Viscount Brookeborough

My Lords, before the noble Lord sits down, perhaps he would say whether he agrees with the reason given: that the Government feel there is simply no chance of such low numbers occurring. Just in case such a situation happened, does he agree that the reason for changing the figure is absolutely wrong and unfounded?

Lord Maginnis of Drumglass

My Lords, I hope that that is the point I made. I am grateful to the noble Viscount for endorsing the matter. I had intended to seek the opinion of the House at this stage, but I shall see whether the Government can bring forward a reasonable compromise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 to 17 not moved.]

1.15 p.m.

Clause 11 (Investigations into current police practices and policies):

Lord Maginnis of Drumglass moved Amendment No. 18: Page 7, line 30, at end insert— (2A) No investigation under this section shall extend to events or incidents that occurred before the coming into force of this section.

The noble Lord said: My Lords, this is a probing amendment. I hope that I can have an unequivocal reassurance from the Government. Previously, we dealt with the issue of whether an investigation could be retrospective; whether it could relate to matters that had occurred before the Bill became law. On that previous occasion the noble and learned Lord, Lord Williams, gave what I assumed was an unequivocal assurance. At a later stage he said something that suggested that that may not be the case. I apologise for not having the reference. My reason for moving this amendment is to try to understand the position on retrospection. I beg to move.

Lord Williams of Mostyn

My Lords, I hope that I can give a satisfactory assurance. At Second Reading I hoped I had made plain that it is not the Government's intention that the power to investigate police policies and practices will be retrospective. The amendment that I brought forward in Grand Committee made it clear that the ombudsman's power is limited to current policies and practices.

In investigating current police practices, it would be natural for the ombudsman to inform herself of the way in which officers conducted themselves in applying those policies and practices that are current. In other words, if we accepted this amendment—I understand that it is intended to be probing—the ombudsman, in applying current practices, would not be able to look at conduct if that conduct had occurred perhaps two weeks before Royal Assent. I hope that I have made the distinction clear. This power is not to be retrospective in respect of past policies and practices. If the policy is current, the ombudsman will have to use her discretion as to what practices she considers. I hope that that is satisfactory.

Lord Maginnis of Drumglass

My Lords, I am grateful to the noble and learned Lord. That is clear. He has endeavoured to be helpful. Before Third Reading perhaps I can ask him to consider this matter to discover whether it could be interpreted in a way that differs from his present intention. I believe that if there were enough pressure to consider a matter that was retrospective, it might be possible to say that something that applied to that retrospective issue is applicable today and so by using that as a starting point there would be justification for being retrospective.

I hope I have made myself clear and that the noble and learned Lord understands the point I have made. I shall be grateful if, at a later stage, he can make a statement that would secure matters in the terms I have enunciated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran had given notice of his intention to move Amendment No. 19: Page 7, line 36, at end insert", and () the reasons for his decision to conduct the investigation.

The noble Lord said: My Lords—

Lord Williams of Mostyn

My Lords, before the noble Lord, Lord Glentoran, moves Amendment No. 19, I want to indicate support for the principle. The advice that I have received is that the amendment should be better drafted. I undertake to reflect further to see whether we can assist in drafting something that is acceptable.

Lord Glentoran

My Lords, I thank the noble and learned Lord. I look forward to helping with the drafting, if that is required:

[Amendment No. 19 not moved.]

Clause 13 [Disqualification]:

[Amendments Nos. 20 to 22 not moved.]

Clause 15 [Core policing principles]:

[Amendment No. 23 not moved.]

Clause 16 [Chief Constable's functions]:

[Amendments Nos. 24 and 25 not moved.]

Clause 17 [Provisions of information to Board]:

Lord Williams of Mostyn moved Amendment No. 26: Page 10, line 14, leave out "reasonably

The noble and learned Lord said: My Lords, this is to leave out the word "reasonably". It is the Shutt amendment. I beg to move.

Lord Shutt of Greetland

My Lords, I thank the noble and learned Lord. We are delighted with the amendment.

On Question, amendment agreed to.

Lord Maginnis of Drumglass had given notice of his intention to move Amendment No. 27: Leave out Clause 17.

The noble Lord said: My Lords, the amendment seeks to leave out Clause 17. It is another matter that has already been fully debated. The issue is the provision of information to the board, which I understand we shall be discussing in relation to Clause 19.

Baroness Farrington of Ribbleton

My Lords, for the benefit of the noble Lord, I think that he has misunderstood. The noble Lord, Lord Glentoran, indicated, I believe, that he accepted that the debate on Clause 19 should be taken with the earlier amendment on which we divided.

Lord Glentoran

My Lords, that is correct. I did not intend to move that Clause 19 should not stand part today.

Lord Maginnis of Drumglass

My Lords, I apologise. My point was that Amendment No. 27 is relevant to the debate on Clause 19. I hope that we shall return to the issue on Third Reading.

[Amendment No. 27 not moved.]

Lord Rogan moved Amendment No. 28: After Clause 17, 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. (3) For the purposes of this section "persons currently underrepresented" 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: My Lords, this amendment seeks to insert a new clause, on the removal of discrimination from recruitment, in Part 6 of the Police (Northern Ireland) Act 2000. This is not a new issue. Many noble Lords will no doubt remember the highly contentious debate in this House on 15th November 2000 on the 50:50 recruitment arrangement. Noble Lords may also remember the result of the vote held on that day when 50:50 was narrowly carried by 185 to 175 votes.

The principle of equality of opportunity is central to the Belfast agreement. Policing, however, is apparently regarded as an exception. The fact is that 50:50 denies equality of opportunity. It is nothing short of discrimination. We have always been opposed to 50:50 on that basis. The new clause proposed by the noble Lord, Lord Maginnis of Drumglass, and myself clearly states our position.

The 50:50 principle requires that 50 per cent of those appointed from a pool of qualified applicants to the PSNI must be "persons who are treated as Roman Catholic" and 50 per cent must be "persons who are not so treated"—the "other" category. That clearly discriminates against the Protestant community, not to mention the substantial population in Northern Ireland who practise "other" or, indeed, no religion.

During passage of the Bill which became the Police (Northern Ireland) Act 2000, many in this place agreed with this position. The noble Lord, Lord Glentoran, said: I am sorry to see a Bill being passed which flies in the face of human rights legislation and which inevitably at some stage must cause problems".—[Official Report, 15/10/00; col. 286.] In another place, Mr Lembit öpik, on behalf of the Liberal Democrats, vigorously opposed the measure on the same grounds. He said that we should not "monkey around" with human rights.

Given that human rights are so central to liberal philosophy, we were rather surprised when the Liberal Democrats in this place acquiesced in relation to such discriminatory provisions. They may even have warranted the accusation made by the noble Lord, Lord Fitt, that they were "in bed with Blair". As the noble Lord, Lord Molyneaux of Killead, put it in 2000, the Liberal Democrats, will be aware of the consequences of permitting the discrimination genie to escape from the bottle".—[Official Report, 15/11/00; col. 282.]

I hope that, today, they and others will join us in putting the cap back on the bottle.

I do not intend to retread old ground and repeat old arguments. However, the situation in Northern Ireland has evidently changed since 2000. Two years down the line, we are in a position to reflect on the decisions of that year, to learn from experience and indeed to correct any mistakes. I do not wish to adopt the churlish attitude of, "We told you so", but it is clear that the predictions made in 2000 by many opponents of 50:50 have been realised.

Since passage of the Police (Northern Ireland) Act 2000, and as a response to the Patten recommendations, the number of police officers has been dramatically reduced. The service has been virtually cut in half, to less than 6,902 officers—well below the figure recommended by Patten as the minimum level needed to police Northern Ireland. While 1,874 full-time reservists currently complement the police service, they, too, will be phased out after 2005.

Many in this House and in another place voiced concerns in 2000 about the effects that such a reduction in numbers would have on expertise, experience and effectiveness in the police service. Reports in the Observer newspaper, in March 2002, pointed to a severe shortage in the top echelons of the service—a shortage of chief superintendents, superintendents, chief inspectors and sergeants, not to mention a serious shortage of constables. It was also revealed that many policemen and women who lost their jobs in the RUC's fingerprint bureau under Patten's reforms were re-employed in the PSNI as civilian technicians due to critical shortages of manpower and expertise in this area.

Rather than increasing the applications and helping to build a first-rate police service, the 50:50 arrangements are clearly impeding recruitment and have resulted in a severe shortage of manpower. Last month, the chairman of the Police Federation, Mr Irwin Montgomery, said that the rigid enforcement of a policy requiring Catholics and Protestants to be recruited in equal numbers was starving Northern Ireland's already overstretched police service of officer and civilian staff.

One recent training class had just 34 students—17 Roman Catholics and 17 others—when it should have had 48. The Chief Constable, Mr Hugh Orde, also reported recently that one of his priorities, to civilianise as many administrative posts as possible in order to get more officers out on patrol and doing front-line police work, was being frustrated by the policy of 50:50 recruitment.

A recent trawl for 200 administrative assistants produced 250 suitable applicants from the "other" category, but only 28 from the Roman Catholic category, meaning that only 48 people could be taken on. This is the central issue. It is a catch-22 situation: 50:50 has led to a reduction in the number of police officers. The most obvious solution is to free officers from administrative posts, yet administrative posts are also subject to 50:50 and these places, too, cannot be filled.

I do not wish to appear to exaggerate, but the situation is extremely grave. Your Lordships need only consider street violence, so prevalent in Belfast throughout the summer months, or the continuing loyalist feuds in the city. The reality is, as recent events have shown, that terrorism is still a force to be reckoned with in Northern Ireland. Whatever the rhetoric on both sides of the community in Northern Ireland, there is terrorism. Crime levels are rising at an unprecedented rate. It seems absurd that at such a time the police service should be under-staffed and overstretched. This is clearly a good time to be a criminal in Northern Ireland.

In Committee a few weeks ago the Lord Privy Seal, the noble and learned Lord, Lord Williams of Mostyn, gave some encouraging figures about PSNI recruitment. We very much welcome the fact that the percentage of applicants from the catholic community has risen to 36 per cent. However, that does not address the crux of the matter. Such figures do not reflect the level of recruitment. In the year 2000 we said that solving the problem of Catholic under-representation in the police service lay not in their appointment, but indeed in their willingness to apply. If we can tackle the application process, quotas for recruitment would be entirely unnecessary.

The rise in the number of applications from Roman Catholics reflects the welcome endorsement of the PSNI by the SDLP, the Catholic Church and the decision by the SDLP to join the Police Board. Sinn Fein/IRA, however, still refuse to accept the new police service. Indeed, they continue actively to discourage young Catholics from joining the PSNI. Intimidation and attacks on Catholic recruits by the republican movement still continue. One recent recruit in Ballymena narrowly escaped injury last year from a booby trap placed underneath his car. Another recruit in Newry was forced to flee his home after threats.

The reality is that many of those who would like to join the Police Service of Northern Ireland are either forced to forego their policing ambition for fear of intimidation or choose to move across the water rather than run the risk of endangering themselves or their families and being subjected to abuse within their own communities.

Nor do the Sinn Fein/IRA representatives encourage their constituents to co-operate with the Police Service of Northern Ireland or report criminal activity to the police. Recently, when a young girl was savagely raped in west Belfast last November, the Sinn Fein Assembly Member for the area was unwilling to advise her concerned constituents to speak to the police service. Rather she preferred that they spoke to those whom they could trust in the constituency and who have been looking after things in the constituency".

I repeat that 50:50 recruitment arrangements do nothing to tackle the problem of intimidation, the root of the problem of Catholic under-representation. As the noble Lord, Lord Molyneaux of Killead, said in November, 2000, Surely, encouraging applicants from under-represented sections of society—all under-represented sections of society—is the only effective means of addressing the problems and to achieve the prize of a police service that reflects the society that it polices".

Discrimination in any form is unacceptable; discrimination in the Police Service of Northern Ireland is especially unacceptable. Introduced for whatever good reasons, 50:50 recruitment arrangements do not solve the problem of Catholic under-representation. The new Police Service of Northern Ireland is entirely frustrated in its attempts to police the community, suffering as it does from a lack of recruits. With the Police (Northern Ireland) Bill before the House today, we have an opportunity to review the decisions of the year 2000. We have an opportunity to make the necessary changes that would allow the PSNI to develop into the effective, first-rate police service Northern Ireland deserves. We have the opportunity to remove discrimination. I beg to move.

1.30 p.m.

Lord Brooke of Sutton Mandeville

My Lords, I have not played any part at all in the procedures and conduct of this Bill to date for extraneous reasons. Because it is always extremely hazardous to board a moving train, I have not tried to join in the amendments today, but I have one stand-alone question.

My noble kinsman the noble Viscount, Lord Brookeborough, asked a question at col. GC55 of the Official Report on 9th January about the numbers recruited into civil servant jobs, which would enable police to be released for active duty on the streets. At col. GC56, the noble and learned Lord the Lord Privy Seal gave the answer, which showed Catholic recruitment of 13.3 per cent as against 36 per cent which he had referred to at col. GC55 for Catholics joining the police itself. Given the consequences of this particular imbalance, which is of itself interesting, has any research been done by the PSNI as to why recruitment on the civil servant side has been so much lower than into the police?

Viscount Brookeborough

My Lords, the 50:50 issue is a problem which affects the number of police on the ground. We must do everything we can to increase those numbers. Except for one particular training course, we are just managing to fill the quotas. I believe that we are marginally ahead in total on what was estimated at the beginning. There is still a problem.

The noble Lord, Lord Maginnis, referred to a recent "trawl". I would not like that to be taken the wrong way. The noble Lord was referring to civilian support staff. It is not a trawl such as someone going out to find people, it is a straightforward public competition, as they are now called. It is a recruiting competition in exactly the same way as it is for policemen. It is not a trawl.

As regards the competition and the figures of 26 or 28 Roman Catholics being available, there 'were 238 Protestants available. The effect is that every job which could be civilianised and thereby release a policemen is extremely important under the present circumstances. I ask the noble and learned Lord one question. Whereas one cannot have a short contract policeman who joins policing for a few months, in administrative work with secretaries and administrative jobs in offices, surely it might be possible in the interim, while continuing to recruit, to have people on short-term contracts, medium-term temps, which would immediately release the police officers holding such posts. Because they would be on temporary contracts, when and if the 50:50 quota from those recruited into the police support staff as whole comes about, those people could be released from the contracts. That would at least release policemen to go out on the streets today.

Lord Molyneaux of Killead

My Lords, I am grateful to the noble Lord, Lord Rogan, for reminding me of prophecies I uttered in your Lordships' House some three years ago. I remember on that occasion a vast number of noble Lords, mainly on my left, saying that I was sending out the wrong signals. I ask them to think about the validity of that allegation.

I do not want to rehearse what has been put forward effectively by colleagues. However, I should like some reassurance from the Government. It is clear that the situation in Northern Ireland is getting out of hand, whether through terrorism, so-called Real IRA activities or the activities of various other types of IRA. There can be no distinction. They must all be contained and, if possible, obliterated. That must be our objective.

On behalf of those who will be butchered in the months and years ahead, I seek assurance that, without any undue publicity, Her Majesty's Government are turning their mind to what will be done in practical terms to remedy a horrific situation. I know enough, having served in the forces in times of war and on other occasions, to be aware that no government ever contemplate the future without a contingency plan. I hope it is not too much to ask the noble and learned Lord the Lord Privy Seal, not necessarily to reveal to us what that plan is, but to assure us that a plan does indeed exist, not only to contain terrorism, but also to arrest its development in Northern Ireland. We shall all sleep easier in our beds—some have good personal reasons for including that qualification—if we know that Her Majesty's Government have a contingency plan and intend to implement it as soon as possible.

Lord Maginnis of Drumglass

My Lords, I intervene briefly on Amendment No. 28 to remind the House that, initially, I would have been deemed to be out of step with my party colleagues on the issue of 50:50 recruiting. But some noble Lords will have seen the recent census of Northern Ireland. There is not a huge imbalance between the two major traditions.

In conversations with Patten, I suggested that we could be in a situation where, if there was an avalanche of applicants and ultimately of recruits from both traditions, a short window of opportunity might be created when there could be an endeavour to recruit on a 50:50 basis. In that situation, confidence would be created which would draw both traditions into active and practical support of the police.

Unfortunately, a number of mistakes were made. One was that the window of opportunity was left open far too wide. There became no urgency for young men and women within the Roman Catholic tradition to make a decision. With the ongoing pressure that comes from paramilitaries like the Real and Continuity IRA, and still comes from the Provisional IRA, it is only natural that young Catholic men and women should hold back. The window of opportunity will still be open further down the road, but in the interim the process fails to work.

My noble friend Lord Brookebrough said that we were marginally holding on. "Marginally holding on" means that standards requirements in terms of recruitment are falling. For instance, at the initial stage recruits are not asked to demonstrate their academic attainment. That has gone almost unnoticed. But something noble Lords will find unbelievable is that physical fitness standards are no longer set or required for recruits to the PSNI. They have been wiped out. When before, in the western world, did there ever exist a police service when physical fitness standards were totally ignored? What sort of policemen and police women is that likely to put on our streets over the next months and years? It is a nonsense.

That shows the extent to which the bottom of the pot has been scraped in order to enable a process to survive which simply is not working. While no one wishes more than Ito see a large element of Roman Catholic members within the police—that is my party's policy—I do not believe that to achieve it we should denigrate every applicant by scraping the bottom of the barrel. I shall be grateful if the noble and learned Lord addresses that specific point when he responds.

1.45 p.m.

Lord Glentoran

My Lords, I shall not detain the House; it is long past lunch time. I cannot support Amendment No. 28.

Since Patten, and since my right honourable friend Andrew Mackay was shadow Secretary of State, until today, the Conservative Party has consistently supported the 50:50 principle. We now know, as a result of the census, that we are talking about a population in the ratio of 45:55. On that principle I cannot support the amendment.

However, I accept that there is a problem to which the Government must attend. I attempted, rather hurriedly and not very satisfactorily, to table some thoughts in the form of a probing amendment, Amendment No. 29A, which I hope we shall have a chance to debate later today. I may well wish to test the opinion of the House at Third Reading on that point, having had a chance to refine and tune the amendment. However, I am not, in principle, able to support the amendment of my friends in the Ulster Unionist Party.

Lord Williams of Mostyn

My Lords, we are debating Amendments Nos. 28 and 29. The two main criticisms appear to be, first, that there are not enough recruits, and, secondly, that civilianisation is being impeded. In fact 530 recruits were appointed in the first year of the policy. That is substantially in excess of the Patten model figure of 370. In any event, as your Lordships know, the Act of 2000 allows for the quota to be adjusted on any occasion if there is a shortage of recruits. But that has not been necessary.

I accept the point made that there was an exodus of experienced officers from the police service. But a variation of 50:50 for new recruits would not have affected that. I understand that the board agreed a revised timetable with the Chief Constable for the severance programme.

On civilianisation, the noble Lord, Lord Brooke, asked a specific question about the disparity in figures. The short answer is that because the arrangements for the recruitment of civilians on a 50:50 basis were set up around 12 months after those for police officers, there has been a lag. And the contractor appointed to oversee civilian recruitment—Grafton—was only appointed last September. The Chief Constable's observations about the difficulties with respect to civilianisation preceded the appointment of Grafton. I understand that the police plan to launch a further campaign for administrative staff shortly.

Viscount Brookeborough

My Lords, the Chief Constable's comments were made shortly before Christmas in the newspaper. That seems well after the appointment of Grafton.

Lord Williams of Mostyn

My Lords, the advice that I have is different, and I will check that. I would not want to have misled the House inadvertently on wrong advice.

On civilianisation, the competitions run so far by Grafton have been successful. Sufficient numbers of candidates from both community backgrounds have come forward to allow vacancies to be filled on a 50:50 basis where appropriate.

The noble Viscount asked a number of questions about short-term contracts. In some posts, there is scope for such contracts. Where the police service thinks it appropriate, it can follow that option. However, as he would accept, in many posts there is a need for expertise and training, and long-term recruitment is the way forward for that.

Grafton is already running eight different competitions for the Police Service of Northern Ireland.

Amendment No. 29, of which not a lot was said, would place a requirement on the Secretary of State to make an order adjusting the ratio. As I pointed out a moment or two ago, the Secretary of State's power under the 2000 Act has never been used. It may be helpful to say that if the Policing Board wanted to agree to a limited change to get round a lack of experienced officers, obviously we would look at it very carefully. Noble Lords may agree, however, that that is essentially an issue for the board to consider in the first instance with the Chief Constable.

The Chief Constable's comments around and about Christmas referred to a competition that took place before Grafton's appointment, so I think that I was right to say that he was referring to the pre-Grafton situation.

The noble Lord, Lord Molyneaux, asked about the Government's plans and proposals. As I have told noble Lords more than once, the Government's hope is that the Assembly elections will be held in May. That is what the Secretary of State has said on a number of occasions. Plainly, any prudent government will have alternatives in mind depending on what develops.

The noble Lord, Lord Maginnis, referred to physical competence. The test for that will not be applied to applicants in the current recruitment programme, but all trainees will be required to pass the test before they are attested.

Lord Rogan

My Lords, I wish to thank all noble Lords who contributed to the debate. As I have said repeatedly, 50:50 is not a new issue. The removal of the discrimination in our police service is one of tremendous importance to the people of Northern Ireland and the future of policing. We in the Ulster Unionist Party have been consistent on the issue.

I listened carefully to the words of the noble and learned Lord the Lord Privy Seal, and on this occasion I do not wish to test the opinion of the House. However, I hope to return to the matter on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Baroness Farrington of Ribbleton

My Lords, I beg to move that consideration on Report be now adjourned until after Starred Questions.

Moved accordingly, and, on Question, Motion agreed to.

Baroness Farrington of Ribbleton

My Lords, I beg to move that the House do now adjourn during pleasure.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 1.54 to 3 p.m.]

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