With this it will be convenient to discuss Government amendments Nos. 73 to 76.
The amendments make minor corrections to the provision that deals with the creation of an offence for improper disclosure of sensitive information. Amendment No. 72 clarifies the fact that it does not matter whether the committee or the board received sensitive information from the Chief Constable under section 59, new section 33A or via some other route. The crucial factor is that the Chief Constable has specifically identified it as sensitive, and its further disclosure is therefore restricted.
Amendment No. 73 makes it clear that the offence of improper disclosure of sensitive information applies irrespective of whether the information is passed to the board's special committee by the person appointed to conduct an inquiry into section 60 of the 2000 Act, or by a person engaged to assist the inquirer in his work.
Amendments Nos. 74 and 75 ensure that the terms of the clause are broad enough to encompass all individuals who may have access to sensitive information. At present, the clause is framed on the assumption that staff of the Policing Board will be seconded to support the person appointed to conduct an inquiry under section 60, and that it is therefore only they who need to be bound by the provision of the new offence of improper disclosure of sensitive information. However, there could be others engaged to support an inquiry, and it is important that the same provisions bind them too. Amendments Nos. 74 and 75 therefore clarify the fact that the offence extends to any person who is engaged to assist in the conduct of an inquiry.
Amendment No. 76 makes it clear that the board's power to publish a report under section 59 of the 2000 Act is circumscribed by the offence of improper disclosure of sensitive information created by the clause. I hope that that is succinct enough to comply with your ruling, Mr. Gale, and I look forward to responding to questions.
I have a couple of queries. It is probably because I am not a lawyer that I cannot quite get my mind round certain matters. I can see the point of amendment Nos. 73 and 74 entirely, and have no difficulty. Similarly, I think that I can grasp amendment No. 75. However, I have a query about amendment No. 72. Although I readily accept what the Minister said, which is that the amendment is designed to clarify the situation, I cannot quite grasp why leaving out the words
''under section 33A(6) or 59(4H)''
clarifies the provisions rather than making them more vague. My feeling is that taking out that specific reference makes the requirement much more vague than giving the exact detail. I should be grateful if the Minister could help me on that.
My more substantial worry is about Government amendment No. 76. I have tried to get my head round that. Section 59(5) of the 2000 Act says:
''The Board may arrange, or require the Chief Constable to arrange, for a report under this section to be published in such manner as appears to the Board to be appropriate.''
There will be a complication. The Government appear to be want to qualify those provisions by inserting the words
''Subject to section 74A(6)'',
which refers to the qualifications in the clause about who may receive the information. Am I right in thinking that if we insert those words in the 2000 Act, no report can be published, or is it the case that a report may not or ought not to be published? As the provisions stand, I have a feeling that the Minister is producing something that totally prohibits the publication of a report under those circumstances. The Minister might intend that. If so, it would be helpful to know why she wants to impose a total ban. However, maybe I have misunderstood. If so, I should be pleased to hear an explanation.
If I understand him, the hon. Gentleman's first point relates to amendment 72. He believes that what we are proposing does not clarify the situation. I said earlier that the clause makes it clear that it does not matter whether the committee or the board receives the sensitive information, or under what provision it arrives at the board. For example, when I talked about any other route, I meant that the Secretary of State may direct the Chief Constable to supply information to the committee. The offence would not cover that at present, but the amendment makes it clear that it should. It was our intention that that should be the case, but sometimes we do not achieve our intentions.
As for amendment 76, the idea is not that a report could not be published; it is just that the published version may not include the sensitive information that has been identified by the Chief Constable in those terms.
I am grateful for that explanation because it compounds my concern. There is no reference to an edited version of a report. The clause does not say that if section 74A(6) applies, that information may not be in the report. As I understand it, the clause means that if the provision applies, section 59(5) of the 2000 Act, saying that a report may be published as the board sees appropriate, is no longer relevant. That is how I read it, rather than the Minister's interpretation. If the Minister said that the clause meant that certain things must not be included in the report, I would be content with that. My understanding of the clause is different from the Minister's presentation.
I am confident that the provision as it is written does exactly what the hon. Member is saying. I am not a lawyer either. Section 59(5) of the 2000 Act provides:
''The Board may arrange, or require the Chief Constable to arrange, for a report under this section to be published in such manner as appears to the Board to be appropriate.''
The board would need to take account of the requirement that sensitive information should not be disclosed. That question was sharp and to the point.
I have reflected on that and, again, I do not believe that that explanation is sufficient. If the Minister is relying on
''such manner as appears to the Board to be appropriate''
and notwithstanding all the other requirements, if the board deems it to be appropriate, it can still go ahead and publish because the Board would be deeming what is appropriate on those occasions, notwithstanding what has been written. The more I think about this provision, the more I become convinced that what the Government are trying to do will not be achieved with this clause.
I hear what the hon. Gentleman says. My view is that the new clause, as written, does, with the strengthening of these amendments, provide for the safeguards that the hon. Gentleman is concerned about. I accept that he has concerns about the drafting of the clause. Like other members of this Committee, I have high regard for parliamentary draftsmen. Drafting is a particular skill. One reason why we have legislative processes is because we do not always get things right.
I do not want to prolong what is a narrow point. After having read the exchange that we have just had, will the Minister write to the Committee giving the legal justification for why I am wrong? I am happy to be proved wrong on this occasion. As I am not a lawyer, I cannot get my mind around the matter. However, as a layman, I remain convinced that the clause will not do what the Minister seeks. It would be helpful for the Committee to have a considered written explanation as to why I need not worry.
I am more than happy to undertake to do that, and will seek to write to members of the Committee before the conclusion of our deliberations next week.
Amendment agreed to.
Amendments made: No. 73, in
clause 20, page 13, line 26, after 'section 60', insert
'or by a person who is assisting or has assisted in the conduct of such an inquiry'.
No. 74, in
clause 20, page 13, line 32, leave out from 'is' to 'except' in line 33 and insert
'assisting or has assisted in the conduct of the inquiry'.
No. 75, in
clause 20, page 13, line 34, leave out
'member of the staff of the Board'
and insert 'person'.—[Jane Kennedy.]
I note the good advice that you have given us, Mr. Gale. The two amendments cover an anomaly within the legislation concerning the ombudsman. The ombudsman or an officer of the ombudsman would gain access to sensitive information from an inquirer when carrying out his or her functions in connection with not only investigations, but police policies and practices.
Earlier, the Minister pointed out the functions of the ombudsman in specified criminal and disciplinary matters. As it stands, the assumption is that there would not be circumstances in which the disclosure of sensitive matters would not impinge on either disciplinary or criminal matters. I disagree with that because I can envisage such circumstances. I fully accept that sensitive information must be handled sensitively. It is also important to ensure that those who need to know such information receive it. That is why subsection (5) is so essential. It provides that sensitive information can be passed to several people, such as the Secretary of State and relevant members of the board.
It is obviously important that a person who should have such information is the police ombudsman. The Bill allows the ombudsman to have access to such information, but only in connection with an investigation by that person into police policies and practices. It does not provide that he or she can have such information in relation to their other functions in connection with criminal and disciplinary matters as specified by the Minister.
The ombudsman does not merely have functions in connection with police policies and practices. These functions are important and cover various aspects, not least criminal and disciplinary matters as well as police policies and practices. I cannot understand why the ombudsman should not have access to such matters. Section 51(8)(a) of the 2000 Act provides that the ombudsman can gain access to certain pieces of sensitive personnel information about police officers, a number of which are specified under the Act. Why then can she not gain access to other pieces of sensitive information for the purpose of any of her functions? I fail to understand why, although there may be good for reasons for that approach. If there are, I should like to hear about them. It is difficult to understand such an anomalous situation. Why cannot the ombudsman gain access to such information for the purposes of her investigations into police policies and practices and the entire range of their functions? The two amendments are an attempt to deal with that anomaly.
There is a further dimension, given the apprehension that exists about what could happen within the board. There could be circumstances in which people on the board might have access to sensitive information and matters could be excluded
from the ombudsman's remit. There might well be a simple reason for that.
I have no strong views about the amendments but I want to ascertain whether I understand the hon. Gentleman correctly. Would the amendments widen provisions for the access to information from information accessed only
''in connection with an investigation''
to information accessed for the ''exercise of any function''? The phrase
''in connection with an investigation''
limits the provision, and accessing information for the exercise of any function of the ombudsman must be a wider provision.
In the same way, using the phrase
''or an officer of the Ombudsman''
must mean that more persons than the ombudsman would be included. Does the hon. Gentleman want such widening of the clause?
No. It is not in terms of that. The point about the officer of the ombudsman applies to the work of any officer under someone with the functions and nature of the ombudsman. Why will information be available when the ombudsman considers police policies and practices but not when she considers such other functions as criminal and disciplinary matters, as the Minister mentioned? Disciplinary and criminal matters often involve sensitive information, but that will be restricted from the ombudsman although she would have the right to access the same information if she were examining police policies and practices. There is an anomaly in the Bill.
I might be missing something covered elsewhere in either the Bill or the 2000 Act. Perhaps I have this all wrong, and if I do I shall willingly take advice. I shall wait to hear what the Minister says.
This is not a sticking point for my party, and we want to hurry along to reach other issues to which we shall devote more attention. Notwithstanding the able presentation of the amendments by the hon. Member for Newry and Armagh, I cannot help but reach the interpretation that the amendments would widen the concept of supplying information
''in connection with an investigation''
and lead to the concept of supplying information in connection with
''the exercise of any function of the Ombudsman''.
An investigation is limited and defined, but ''any function'' can be considered to be only a wider definition.
I am not clear about why we need the words
''or an officer of the Ombudsman''
because any such officer would act under the umbrella authority of the ombudsman. Therefore, in a sense, the ombudsman's staff have the same authority as the ombudsman unless, as the law says, they are on a frolic of their own. If they are acting in an authorised way under the aegis of the ombudsman, surely they peddle the ombudsman's authority as their own. At the risk of
repeating myself, that is not a sticking point for my party, but it is certainly a matter of interest.
By way of explanation, I am seeking not a carte blanche but a widening of the functions. The alternative was to specify disciplinary and criminal matters, but then I would have had to specify all the matters for, and functions of, the ombudsman. Perhaps ''any function'' is too broad, but specifying the functions would have kept us here for a long time.
I am most grateful to the hon. Gentleman for clarifying his position. He made his point well. The amendments are important to our deliberations, and were well worth tabling and arguing for. I do not mean that in a patronising sense; who am I to be patronising to a gentleman of his experience? I shall be as interested as he is in the Minister's reply, and I am glad that we had the opportunity to debate the amendment.
I remember a debate in the previous sitting about when a stand part debate begins and discussion on an amendment ends, and I have the same problem now. The amendment tabled by the hon. Member for Newry and Armagh raises two points. The first is the extension of the protection of and/or restrictions on the ombudsman to the ombudsman's staff. That is part of what the hon. Gentleman is saying, and raises issues about the staff of other people, which I would like to speak about at some stage. I shall be happy to keep my comments about the ombudsman's staff for a stand part debate, because other people are involved under other parts of the clause.
The other issue that the amendment raises is the definition of ''any function''. I understand why the hon. Gentleman says that to list the relevant functions would be a long and onerous job, but I do not think that we can leave the matter there. The clause is specific about the circumstances in which the ombudsman is covered. I could argue—although I will not, because I doubt that you would let me, Mr. Gale, and even if you did, it would take a long time—that if we are to extend the provision to list more than that narrow specified part of the ombudsman's work—perhaps all of it—we really should consider all the functions. To my mind, there are some cases which it would be inappropriate for the ombudsman to be brought in to, as some of her work has nothing to do with the issuing of formal reports. The formal stage—and that is what we are talking about—is, rightly, covered.
I do not accept what the hon. Gentleman says about any function being adequate for our purpose. A case needs to be advanced as to why the provisions should be extended beyond the narrow definition in the clause. He has not said why or to which areas it should be extended—and I argued that it should not be extended to everything. I wonder whether he can help me.
I cannot resist the temptation, although I should. I thought that I was fairly specific about why I tabled the amendment, and specified at
least two of the matters that the Minister had previously confirmed in relation to the functions. I should have thought that the Committee would have regarded it as unreasonable had I trotted out a definitive, and perhaps very substantial, list. I hope that that helps to clarify the hon. Gentleman's thinking.
Yes. It helps me to the extent that the hon. Gentleman has said that there are two more areas that ought to be included. However, he goes on yet again to say that there are many more, but that he would not want to trot them out. Either he believes that the provision should cover any function of the ombudsman, which is what is stated in the amendment, or he does not. If he believes that the subsection should refer to any function, that is fine—but I do not. One could have a debate on that basis. If he is saying that he does not really refer mean any function, and refers instead to a long list, I think that we should have the list, so that we know what he means.
I simply point out that the functions of the ombudsman are specific and defined in law. I could transpose all of them into an amendment, but I prefer to concentrate on the few that the Minister mentioned. They are, however, specifically defined in the legislation, and both the hon. Gentleman and I may read them.
That is exactly the point that I am trying to get the hon. Gentleman to see. The functions are already defined. Either he means all of them, in which case he does not need to mention two, or he means the two from the list that he mentioned. However, he then says that he means more than two, but not the whole list. I am trying to establish which of the functions from the list he means, because I want to vote with him.
Order. If the hon. Gentleman means that he is skating on thin ice, he may be right.
You have knocked the wind out of me, Mr. Gale; I have almost lost my thread.
Where I agree with the hon. Member for Newry and Armagh, and where I may be disagreeing with my hon. Friend the Member for Spelthorne, is as follows: there is a great danger that had the hon. Gentleman, who in his wisdom crafted the amendment, embarked on a schedule, a litany or a list, the item that he left out would have turned out to be crucial. I think that he is wise to avoid making a list and to express himself in general terms.
I hear what my hon. Friend says. Given my age and my shape, I am neither Torvill nor Dean. I am, however, flattered that he might think that I am. One of the reasons why the great and the good of my party shoved me into the Whips Office, rather than on to the Front Bench proper, was in the hope that I might not say so much. I regularly find that the proper
Front-Bench Members do not necessarily agree with everything that I say—for which I keep apologising.
I shall return to what I have said and what my hon. Friend has underlined. If we are to vote sensibly on the amendment, we must know what the hon. Gentleman means. Which are the functions concerned? If he means all the functions, as he says in his amendment, I disagree with him; if only some of them, I ask him to let me know what they are and I will willingly support him. I will do what I can to help.
I feel that we in danger of making this into rough ground. I hope that we can get over it relatively lightly.
I am grateful to my hon. Friend the Member for Newry and Armagh for tabling the amendments and for drawing attention to a clause that may be too narrowly drawn. We will soon debate, although not for too long, the new responsibilities that we will add to the police ombudsman's office. My hon. Friend has made a useful point about her wider role. I do not think that hon. Members ought to be too concerned at this stage about exactly what we are talking about. The responsibilities of the ombudsman's office are clearly laid down in the 2000 Act and underpinned by the 1998 Act. The amendments are as clear as can be on that point. Section 66 of the 2000 Act requires the board and others to provide the ombudsman with the information that she needs to carry out her functions, and it is right that they should do so. I agree with my hon. Friend that the provisions in clause 20 should not cut across that.
The ombudsman's office already has access to sensitive information. It has a proven record of managing such information properly and of protecting its sensitive aspects. On reflection, I think that the provision may have been drawn too narrowly, but I will not encourage the Committee to accept my hon. Friend's amendment. I wish to reflect further and take advice from parliamentary counsel before examining how the Bill should be amended in this respect, but I undertake to examine the matter and consider addressing it on Report.
They are not badly drafted.
I agree with the hon. Gentleman. I think that they are very well drafted, but the implication seems to be that they are inadequate.
The ombudsman must not be put in a position where she is investigating something that is excluded from her remit because the provision is not wide enough to allow her to pursue the functions that she has been given under this legislation and other legislation.
The hon. Gentleman is being too self-deprecating. I disagree with my hon. Friend the Member for Spelthorne about the amendments: I think that they are excellent and I want to support
them. The hon. Gentleman may be satisfied by the Minister's reply, and by her willingness to revisit the matter and perhaps to tell us something new on Report. However, if he is in any doubt about whether the Minister will do so, let him stand by the amendments now and I will vote with him in favour of them.
I thank the hon. Gentleman for his remarks. I have every respect for the Minister; she has been doing a very good job in one of the most difficult Northern Ireland offices. I cast no aspersion on her when I say that bitter experience has taught me that in relation to policing, one does not rely on what may happen on Report.
I would love to be confident enough to say in a gentlemanly manner to the Minister, ''Yes, I will leave it for you to consider, and I hope that on Report you will see things as well as I see them.'' However, the world we live in is not like that. There are things like guillotines, which are applied on Report, and which might prevent us from reaching this point in the legislation.
There are factors at work outside the parliamentary process that may prevent the type of deliberation on Report that one would always like to hope for in a parliamentary process. I will not put my trust in the idea of the matter being addressed on Report on the Floor of the House of Commons ever again—although I wish to make it clear that that is not because I lack confidence in the Minister, or am casting any aspersions on her. I beg to ask leave to press the amendments to a Division.
In that case, I ask my hon. Friends in the Committee to resist the amendments, although I do so with regret.
I beg to move amendment No. 47, in
clause 20, page 14, line 24, leave out from 'on' to end to line 25 and insert—
'(a) conviction on indictment to a term of imprisonment not exceeding two years or a fine, or both; or
(b) summary conviction to a term of imprisonment not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.'.
I hope that I shall be able to deal with the amendments briefly, but I have an important point to make. It follows on from the comments that I made earlier about disclosure of information to the Policing Board or the committee. I expressed worry about the lack of safeguards. One safeguard that I did not mention was that, if information were disclosed to the Policing Board and the committee, and it was subsequently improperly disclosed, criminal penalties are set out in clause 20(7) as
''liable on summary conviction to a fine not exceeding level 5 on the standard scale.''
That penalty is woefully inadequate and it should be strengthened. I am happy to see that other members of the Committee are of the same view and have, indeed, outflanked me on the right by proposing an amendment with an even stiffer penalty than the one that I propose.
It is always easy to outflank me on the right as I try to be reasonable and moderate in my approach. People take such action by being more extreme and immoderate than I am. They consistently fail to beat me at the polls, but that is by the way. I shall not stray any further in that direction.
Will the hon. Gentleman give way?
No. I can glimpse you, Mr. Gale, out of the corner of my eye, and I think that we are entering into territory to which I should not return. I come back to the point that merely a fine is not adequate, especially for situations that might obtain in the not too distant future. In the past few weeks, the authorities have become aware that the tobacco smuggling activities of the republican movement have netted £5 million in the past three years.
Merely tinkering with fines is not adequate for the sort of situation with which we may have to deal. The Bill will be in force if those eventualities occur. I will say nothing about the probability of the Policing Board being constituted on a different basis, but wish to point out that the possibility is there. This Bill may have to cope with that, and the Government consider that it is appropriate to create an offence and to set a penalty. I agree. The Government should be commended for bringing forward such provisions. I have been criticising the general legislation itself and I shall return to that criticism. If they are bringing forward legislation in this form, they are right to provide for an offence, but if they are providing for an offence, it has to be a realistic penalty, and a fine is not.
The penalty should open to the court the possibility of imprisonment. I can have a nice argument with those to my right, both literally and figuratively, about the length of the sentence, but there has to be the possibility of imprisonment if it is to be a deterrent.
I apologise to the Committee for such a lily-livered amendment. I wanted something much stronger. Unfortunately, however, my hon. Friend the Member for Spelthorne, who is known to be on the rather dangerous left of the Conservative party, restrained me and enveloped me in moderation until I was confused. Eventually, I settled for a milk-and-water version of the penalty that really should be required. However, there it is: we have to live in a political party with differences of view. I cannot speak to the amendment with any personal enthusiasm, so I shall just move it formally.
After such an introduction, I do not recognise the thumbnail sketch. As the Liberal Democrats have not been mentioned this morning, it may be relevant to say that, many years when I was a councillor, I decided that the time had come to be a reasonable person. I was offering a view to someone whom I knew to be a keen supporter of the Liberal Democrat party and said that I should become reasonable about matters. She replied, ''I didn't abandon my own party to vote for you at the last council elections to be reasonable.'' So perhaps I have got it wrong again.
I agree with the right hon. Member for Upper Bann, although I do not think that there should be an auction concerning the number of years. We could debate whether prison does deter people committing such offences, but I imagine that you would be out of your seat, Mr. Gale, rapidly if I went down that route. In the absence of any other effective deterrent, that is the only one that we have. It is absolutely right to go for some form of deterrent in such cases. As the previous debate showed, such circumstances could be matters of life and death for individuals who are named in reports. Information about certain people could fall into the hands of the wrong people.
I do not want to reopen the debate about reasonableness, but with all the good will in the world, things can go wrong. It is sensible to flag up the importance that we attach to safeguards for both the interest of the public and the individual, by saying that there should be a stiff deterrent. At present, there must be a fairly stiff prison sentence. Whether a sentence of two or three years is right is not relevant. I want the Government to accept some form of increase in the penalty. The provisions are important and they need to be underpinned by such a punishment.
I am pleased to support the amendment tabled by the right hon. Member for Upper Bann. I do not want to be part of the bidding process about whether two years, three years or hanging is the appropriate penalty. It is important, however, that imprisonment should be an option that is available to the courts when disposing of the offence. I made that point on Second Reading and I am grateful to the right hon. Gentleman for having given the Committee the opportunity to discuss it again.
I am worried that the restriction to a financial penalty will send a confusing message to the courts when they impose the sentence. It suggests that the offence is of an administrative nature. It is put on a par with some of the lesser road traffic offences, which is how it will be treated when penalties are imposed. It is not difficult to imagine circumstances in which the offences could be serious. The full range of disposals should be available to the courts when dealing with them.
I feel great trepidation in saying anything at all on the subject of the auction that has been described.
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.