Clause 12 — Investigations into Current Police Practices and Policies

Police (Northern Ireland) Bill [Lords] – in the House of Commons at 2:57 pm on 27th March 2003.

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Amendment No. 46, in page 9, line 8, [Clause 12], leave out from 'he' to end of line 9 and insert

'is of the view that the policy or practice should be considered given that a member of the police service acting in accordance with that policy or practice has committed a criminal offence, or is responsible for conduct that gave rise to disciplinary proceedings.'.

Amendment No. 47, in page 9, line 14, [Clause 12], at end insert—

'(2A) No investigation under this section shall extend to events or incidences that occurred before the coming into force of this section.'.

New clause 7—Exceptions to limits on complaints and references to Ombudsman—

'In section 64 of the Police (Northern Ireland) Act 1998 (c. 32) (regulations) after subsection (2A) there shall be inserted—

"(2B) The Secretary of State may only prescribe exceptions pursuant to subsection (2A) above if the circumstances are both grave and exceptional.".'.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am entirely encouraged by the closeness of the vote on the Ulster Unionist amendment, so much so that we shall keep going with our arguments to ensure that the Bill leaves the House in a different state from that in which it arrived. I appreciate the support that we received for our earlier amendment.

The amendments and the new clause deal with an important issue: the investigations that can be conducted by the ombudsman. I have always been supportive of the creation and setting up of the office of an independent police ombudsman. That comes from personal experience. Indeed, I declare an interest in that while my husband was Chief Constable of the Royal Ulster Constabulary—as it was properly called—there were several controversial investigations, especially the Stalker and Sampson inquiries. Although both inquiries found that there was no shoot-to-kill policy, suspicion and disbelief continued in a certain quarter of the community in Northern Ireland. Having come through that experience, I welcomed the report of Dr. Maurice Hayes in 1997, which recommended the creation of the office of police ombudsman. The office was set up by the Police (Northern Ireland) Act 1998.

However, there is concern about the growing number of inquiries, which relates to a point that was sincerely made by Mr. Campbell. There is a perception that we have a one-sided truth commission, in various guises, in Northern Ireland. We must ensure that the office of the police ombudsman is held in high esteem and has the confidence of all sections and people in Northern Ireland.

Hon. Members know that the police ombudsman has a substantial budget. On Monday, the Irish News reported:

"The Police Ombudsman's Office investigates an average of 3,500 complaints against the police every year and has been allocated a budget of £7.4 million for the coming financial year."

That is a substantial remit and a substantial budget.

The effect of amendments Nos. 45, 46 and 47 can be summed up neatly. Clause 12 states:

"The Ombudsman may investigate a current practice or policy of the police if . . . the practice or policy comes to his attention under this Part, and . . . he has reason to believe that it would be in the public interest to investigate the practice or policy."

That is far too subjective. It leaves deciding what is in the public interest to the police ombudsman. The commander of a district command unit in North Down could decide that he should target drugs smuggling and abuse in North Down as a policing priority and allocate resources to that. Why should the ombudsman exercise his discretion and decide that it might be in the public interest to examine that? The remit is too wide and too subjective.

Our amendment would provide for the Policing Board and the Secretary of State to determine whether there should be an investigation of current practice or policy. Amendment No. 46 would provide for an investigation by the ombudsman if the board and the Secretary of State are

"of the view that the policy or practice should be considered given that a member of the police service acting in accordance with that policy or practice has committed a criminal offence, or is responsible for conduct that gave rise to disciplinary proceedings."

That is a modest change to clause 12. However, it makes it obvious that the practice or policy stems from police impropriety or improper behaviour. That is better than allowing the ombudsman to determine what is "in the public interest"—a broad, sweeping term—without any checks or balances.

New clause 7 is important. The Irish News included an article that stated that the Minister had met the police ombudsman. It was entitled "Funds to investigate killings are refused". The ombudsman had made a request to investigate three incidents. One happened 12 years ago, another six years ago and the third was not given a date but took place in the past. The Minister did not approve funding for those inquiries. The families who have lost loved ones are entitled to closure and will feel a sense of grievance. However, it appears to have gone unnoticed that when the police ombudsman's office was set up under the Police (Northern Ireland) Act 1998, regulations—the RUC (Complaints etc) Regulations 2001—were also published. That shows that the name has changed for only operational, not legal purposes. [Interruption.] That is quite right. [Interruption.] Perhaps DUP Members would like to intervene rather than snipe from the sidelines.

Photo of Gregory Campbell Gregory Campbell DUP, East Londonderry

If the hon. Lady believes that the name has been changed only for operational purposes, perhaps she could elaborate on the rationale behind new clause 15, which David Burnside tabled.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs) 3:15 pm, 27th March 2003

I thank the hon. Gentleman for intervening rather than commenting from a sedentary position. The question is properly directed at my hon. Friend David Burnside. I am sure that he will be delighted to answer it.

In the meantime, perhaps hon. Members would care to examine section 1 of the Police (Northern Ireland) Act 2000. It states clearly, in black and white—it is therefore not an invention of the Ulster Unionist party—that the title was changed to the Police Service of Northern Ireland for operational purposes. The legal title remains the "Police Service of Northern Ireland (incorporating the Royal Ulster Constabulary)". If the hon. Member for East Londonderry wants or needs any proof of that, he should refer to the High Court case in July last year of Mark Parsons v. Chief Constable PSNI (RUC). That is the proper title. However, now that I have adequately dealt with all DUP Members' queries, let us move swiftly along.

Photo of Iris Robinson Iris Robinson DUP, Strangford

Does PSNI (RUC) appear on police headed paper?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. Lady Hermon is being led astray. It is not her doing. We will consider the matters raised later in our proceedings.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. We have had enough comments from a sedentary position. Today is not the time to deal with the matter.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Thank you, Mr. Deputy Speaker.

The RUC (Complaints etc) Regulations 2001 set out the powers whereby the police ombudsman can conduct an investigation. It includes a general rule that

"actions, behaviour or conduct to which the matter relates took place not more than 12 months before the date on which the reference was made".

The police ombudsman is not therefore allowed to trawl back through cases from many years ago.

However, regulation 9 provides for an exception. It states that the general rule does

"not apply where the matter is not the same or substantially the same as a previous complaint or matter and the Ombudsman believes that a member may have committed a criminal offence or behaved in a manner which would justify disciplinary proceedings, and the Ombudsman believes that the matter should be investigated because of the gravity of the matter or the exceptional circumstances."

Again, matters are left to the ombudsman's discretion. We do not believe that that is right. Our modest amendment in new clause 7 would ensure that the Secretary of State would determine whether the circumstances were grave and exceptional.

The amendments are intended to encourage confidence in the police ombudsman's office. They are not intended to encroach on its independence. That would be most regrettable. The police ombudsman's independence is of the utmost importance to everyone in Northern Ireland.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

New clause 7 states:

"The Secretary of State may only prescribe exceptions pursuant to subsection (2A) above if the circumstances are both grave and exceptional."

To a certain extent, I agree that we should not be trailing through misdemeanours that happened decades ago, as there is probably not much benefit in so doing. There are no winners in that, and it could stir things up. On the other hand, there remains a lot of anxiety in Northern Ireland about injustices that occurred at the beginning of the troubles, even though that is more than three decades ago. When Lady Hermon returns to her feet, will she give an example of what would constitute "grave and exceptional circumstances"?

Photo of Jane Kennedy Jane Kennedy Minister of State, Northern Ireland Office

I shall begin by responding to the specific amendments in this group. Amendment No. 45 would prevent the ombudsman from investigating a current practice or policy unless the board and the Secretary of State believed that it would be in the public interest to do so.

Patten was clear that the ombudsman should have the right to exercise her investigative powers. I believe that that implies that she should be able to do so independently of the board and the Secretary of State. The ombudsman is capable of making the judgment of whether there is a public interest justification for an investigation, without having to rely on the board or the Secretary of State. Patten clearly recommended that the ombudsman should have operational independence in these matters.

I recognise that such investigations bring the ombudsman into territory that would otherwise fall exclusively to the board. However, the ombudsman role focuses on issues relating to police conduct; the Board's role goes much wider than that. Nevertheless, it will be important for both organisations to take steps to minimise duplication. I do not consider it appropriate to prescribe this through primary legislation, but I hope that both organisations will draw up a protocol or memorandum of understanding to deal with the matter, and I encourage them to do so. Therefore for the reasons that I have discussed, I am afraid that I cannot accept amendment No. 45.

Similarly, amendment No. 46 would restrict the ombudsman to investigating only when a police officer has committed a criminal offence or is responsible for conduct that has given rise to disciplinary proceedings. The Bill as it stands provides for an investigation where the ombudsman has reason to believe such an investigation would be in the public interest.

I understand the concern that has prompted the tabling of this amendment, but I hope that I can reassure Lady Hermon. There is a difference between something that is in the public interest in the sense that it is for the genuine good of the public at large, and something that is of interest to the public—for example, something that satisfies public curiosity. That is why the wording of the clause was amended in another place: the phrase "of significant public concern" was changed to "in the public interest". The present wording of the Bill therefore prevents artificial public concern from being whipped up by interest groups in order to provoke an investigation.

Amendment No. 46 goes too far in limiting the ombudsman's powers to investigate, however. It is clearly inconsistent with the recommendations of Patten. It would unnecessarily and unhelpfully limit the powers of the ombudsman.

Amendment No. 46 would mean that the ombudsman would not be able to deal with a situation where she was concerned that, if a policy were to be applied, it might result in an offence being committed. The amendment clearly would hamper her powers both to prevent offences and restore public confidence in the PSNI. It is contrary to Patten, and I therefore cannot accept it.

With regard to amendment No. 47, the Government's intention is that the power to investigate police policies and practices should not be retrospective. Our amendment introduced in another place made it clear that the ombudsman's power was restricted to current policies and practices.

In investigating current policies and practices, it would, of course, be natural for the ombudsman to inform herself of the way in which officers have conducted themselves in applying these policies and practices. If we were to agree to amendment No. 47, however, she would not be able to look at officers' conduct, in applying current practices and policies, which had, for example, occurred only the week before Royal Assent.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I have listened carefully to what the Minister has said. Given that financial powers have been devolved to district commanders, it is possible, for example, that the North Down district commander could exercise his discretion and give priority to dealing with drug abuse. What is there to prevent the ombudsman from saying that she would like to inquire into that current practice, in the public interest? What grounds for judicial review of her decision would the wording of clause 12 offer, if she said that such an investigation was in the public interest?

Photo of Jane Kennedy Jane Kennedy Minister of State, Northern Ireland Office

If the ombudsman felt it appropriate to launch an investigation such as the one that the hon. lady has described, I am not sure that it would be a particular problem. I am puzzled as to why the decision of a district commander to introduce a policy to deal with a specific issue—such as drug abuse in a particular area—would cause the ombudsman such anxiety that she would consider it in the public interest to investigate. However, I cannot prescribe the circumstances in which the ombudsman may investigate: she needs to have the freedom to examine policies and practices, especially if it has been suggested to her that their application is not in the public interest. Who knows what may grow out of the relationships between DPPs and the local district commanders?

I cannot see the circumstances in which the example given by the hon. Member for North Down would arise. I do not believe that it would be the problem that she suggests. It is important that we be pragmatic, and I confess that I am struggling to follow the logic of the example that the hon. Lady has given.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am genuinely grateful to the Minister for allowing me to intervene again, but the difficulty is that the wording of the clause is so subjective. Anyone who wishes to complain and take judicial review proceedings will find it very difficult to succeed in those proceedings because of the width and subjective nature of clause 12.

Photo of Jane Kennedy Jane Kennedy Minister of State, Northern Ireland Office

We are talking about "the public interest", a phrase that is widely used in legislation. It is pretty well understood, and I do not believe that there will be the degree of difficulty that the hon. Lady has described. I feel that, on this occasion, her fears are ill founded.

The hon. Lady gave the example of a drugs policy being implemented in a particular district command. It is likely that such a policy would be agreed under the local policing plan and subject to scrutiny by the local DPP. That would be in line with targets set by the board. A district commander is highly unlikely to follow a policy that would be so far out of kilter with what was happening elsewhere in the PSNI that it would cause so much concern.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am grateful to the Minister for giving way again, but this is a very important point. Yesterday in this House we discussed thoroughly the powers of district policing partnerships. DPPs, in North Down and elsewhere—although, after yesterday, I cannot speak for Belfast—do not have executive decision powers; they have only advisory and consultative powers. They will not bind the district commander, so the district commander could make a decision to direct resources in North Down to a particular policy without an executive agreement from the DPP.

Photo of Jane Kennedy Jane Kennedy Minister of State, Northern Ireland Office

Indeed, there is nothing in the Bill that would limit the operational independence of district commanders, but they always work under the direction of the Chief Constable, who always works within the remit of the policing plan developed by the Policing Board and, indeed, of the policies established by the Secretary of State. The hon. Lady's example gives rise to undue concern. We want the ombudsman to focus on the present, not on the past. We do not want to tie her hands in such a way as to make it impossible for her to operate. That would be the effect of the amendment, so I cannot accept it.

I turn to new clause 7, which deals not with the new power to investigate policies and practices, but with the ombudsman's core role of investigating complaints. Under section 64(2A) of the Police (Northern Ireland) Act 1998, the Secretary of State may by regulations prescribe a time limit within which a complaint must be made or a matter referred if it is to be investigated by her office. The regulations may prescribe exceptions to the time limit; we discussed that at some length in Standing Committee. The regulations that have been made under that provision set a time limit of 12 months and provide for certain exceptions. In particular, the ombudsman must believe that a member may have committed a criminal offence or have behaved in a manner that would justify disciplinary proceedings, and in most cases there is also a condition that the matter must have grave or exceptional circumstances.

The effect of the new clause would be that regulations could provide only for exceptions to the time limit where the circumstances were both grave and exceptional. Although I have some sympathy with what the hon. Lady is trying to achieve, if it is intended to facilitate society in looking forward—a point that has been made in another context by the Chief Constable in the very recent past—paragraph 5(19) of the Patten report states:

"we are in no doubt that the RUC"— as it was then—

"has had several officers within its ranks over the years who have abused their position . . . It is not satisfactory to suggest, as some people have, that one should somehow accept that every organisation has such 'bad apples'. They should be dealt with."

I agree with that. However, there is a balance to be struck. It is not the role of the ombudsman to conduct a series of witch hunts, nor does the present post-holder have any such intention. But our judgment is that the current wording of the regulations made under section 64 of the 1998 Act, as amended by section 65 of the Police (Northern Ireland) Act 2000, reflects the appropriate balance. As part of the confidence-building process in policing, it would not be right to dilute the powers currently vested in the ombudsman by placing a further restriction or an additional condition on the use of those powers.

I want to touch briefly on the issue of resources that the hon. Lady raised. Although I turned down the request for further resources that the ombudsman's offices made, I did not say that she may not conduct any of the inquiries that she suggested that she would like to carry out. Her office has received an increase in funding of more than 40 per cent. and has received all the funding that it bid for in the Budget round this year. The ombudsman's office is therefore very well resourced. It is for her office to determine how those resources are managed, and I made that point when I discussed the matter with her last week.

I hope that I have been able to allay some of the hon. Lady's concerns; given the exchanges that we have had, I guess that I may not have allayed them all. However, I shall certainly ask my hon. Friends to resist the amendment if it is pressed.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs) 3:30 pm, 27th March 2003

I appreciate the lengths to which the Minister has gone to try to allay my fears, but she can tell from the look on my face and from my interventions that I have not had my fears allayed at all. The Minister quoted a section of the Patten report about particular RUC officers. It is better to remember that the subtitle of the Patten report is "A New Beginning: Policing in Northern Ireland". I am fed up, to put it mildly, with sections of the Patten report being quoted by the Government when it suits them, and other parts not being quoted. If it is to be a new beginning to policing, it is grossly unfair that the ombudsman has a subjective power or ability to decide what is grave and what is exceptional. New clause 7 would make the process more objective; it would not undermine the independence of the ombudsman at all.

Lembit Öpik asked me to give an example of grave and exceptional circumstances. What come to mind are the serious allegations, which were not upheld, about police officers' handling of warnings in relation to the Omagh inquiry. Had that been 16, 12 or however many years ago, clearly, that is a grave and exceptional circumstance.

If we truly mean that there should be a new beginning, we do not want to give rise to the perception that there is a one-sided truth commission. I will press the amendments to the vote, as the Bill must be improved. I return to what the Minister said in the debate in this place on the Northern Ireland Assembly Elections Bill on Monday last week, in relation to the catastrophic breakdown of confidence in the community. We must focus on rebuilding confidence in the police ombudsman's office, in the Policing Board and in all policing structures.

Question put, That the amendment be made:—

The House divided: Ayes 7, Noes 266.

Division number 145 Police (Northern Ireland) Bill [Lords] — Clause 12 — Investigations into Current Police Practices and Policies

Aye: 7 MPs

No: 266 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Amendment made: No. 8, in clause 12, page 9, line 36, leave out—

', or information contained in a document,'.—[Jane Kennedy.]