I beg to move amendment No. 57, in
clause 9, page 6, line 10, at end insert—
'(1A) At the beginning of subsection (2), insert ''Except where subsection (2A) applies''.
(1B) After subsection (2) insert—
''(2A) Subsection (2) shall not apply where a longer period for the purposes of (2)(b) is not agreed by the Chief Constable and the Board and, in such a case, a report shall be made within such longer period as may be determined by Her Majesty's Inspector of Constabulary.''.'.
There is a cluster of amendments, and I plead guilty to amendments Nos. 57, 58, 59, 60—
Order. The hon. Gentleman is right in saying that there is a cluster of amendments, but amendment No. 57 is being taken alone. Most of those other amendments are grouped. It has always been my custom, if there is a large number of amendments, to allow a stand part debate at the start of the clause rather than at the end, but the hon. Gentleman cannot have both. If he finds it convenient to engage now in a wide-ranging debate, I am happy to permit it on the understanding that there will not be a stand part debate later.
I would like to do it that way, Mr. Gale, with your permission, because it would be quite difficult to speak to each of the amendments individually. They are part of a theme, and I would be happy to speak to them all in the context of such a debate.
On a point of order, Mr. Gale. I plead guilty to amendments Nos. 93, 94 and 98. Will those
be considered in terms of the previous cluster? I simply seek advice so that I know at which point to address the amendments.
The amendments have been grouped in the way that they have, partly because they are grouped legally and partly to allow, for example, the hon. Member for Newry and Armagh to move his own amendment. I have the flexibility to group the whole lot together, but if I do that, he may find his debate slightly curtailed.
I shall revert to plan A and suggest that we take amendment No. 57, which is scheduled to be debated now. Again, I am prepared to allow a reasonably wide-ranging debate across the whole clause. We shall then move to the next selection of amendments and the final selection, which will allow the Committee a fair crack of the whip. I repeat that we shall take amendment No. 57 on the understanding that it will be a fairly broad debate and there will be no stand part debate at the end.
Thank you for your wise ruling, Mr. Gale. I think that I shall be able to stay comfortably within your parameters—I am sure that you will tell me if I do not.
Clause 9 amends the way in which the Chief Constable is required to make reports to the Policing Board. Section 59 of the 2000 Act requires him to submit reports when required to do so by the board. However, there are currently four grounds on which such a requirement can be referred to the Secretary of State if the Chief Constable thinks that a report would contain information that should not be disclosed. It might be useful, as they are not long, to outline the four grounds.
The first ground is
''in the interests of national security''.
That is a reserved position, on which he does not disclose or report. The second exemption is because the information
''relates to an individual and is of a sensitive personal nature''.
The third exemption is
''because it would, or would be likely to, prejudice proceedings which have been commenced in a court of law''.
I do not think that anyone would disagree with that.
However, under the existing law, which the Bill changes, there has been a fourth exemption, which was because the information
''would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders''.
The Bill abolishes the fourth exemption. We are very concerned about that and seek to put it right. That is the basis of the second of my amendments. In our view, the change could seriously undermine the operational independence and effectiveness of the Chief Constable, as he will now be under a statutory obligation to provide reports to the Policing Board relating to the conduct of ongoing investigations. We feel very strongly that that is unacceptable.
The Bill makes similar changes to section 60 of the 2000 Act, which deals with the initiation of an inquiry by the Policing Board following a report to it by the Chief Constable. Currently, section 60(3) of that Act allows the Chief Constable to appeal to the Secretary of State if he believes that an inquiry should not be held on any of the same four grounds that are set out in the Act. Clause 10 would replace those with the grounds that are set out in new section 76A(2), which is contained in clause 22. The measures that are being considered in respect of clause 9 would undermine the operational independence of the Chief Constable. We seek to address the qualification of the Chief Constable's obligation to provide reports and we wish him to have the protection that he had before.
Our proposed remedy seeks to provide a role in those matters for Her Majesty's inspector of constabulary and for the Secretary of State. That would facilitate delay if the Chief Constable needed more time and it would reinstate the fourth ground. When the matter was considered in another place, the Lord Privy Seal addressed it and, as I understand it, made a concession. If that is true, the Government should know about it. Currently, the Chief Constable is supposed to respond to any request for information within one month, but that period could be extended if the board agreed.
Lord Williams of Mostyn said that the Government would change the code of practice on the conduct of the board under section 271(a) of the 2000 Act, so that if there were no agreement between the Chief Constable and the board on the matter it could be referred to HMIC if the Chief Constable's concern related to the impact of a particular timescale on the police's ability to prevent or detect crime. In short, if we were to dispute the matter, HMIC would become the umpire. To address the matter by issuing a code of practice ruling would, in our opinion, go halfway—it is half a loaf. I suppose that we may even have to settle for that in the end. However, the amendments are intended to get both the fourth protection and the umpiring facility if time seems too short. We want those provisions to be written into the Bill and, ultimately, into the Act.
I hope that I have not trespassed on your patience, Mr. Gale, nor stepped outside the rules that you establish, but may I put my case one last time in plain man's terms? Where there is a dispute about how long the Chief Constable would require to make a report, we suggest that HMIC should act as umpire. We also wish to restore the fourth protection to the Chief Constable; that fourth case in which he need not disclose something that
''would, or would be likely to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.''
The fourth ground must be restored, otherwise the position of the Chief Constable, his role and his work would be hampered unacceptably.
I presume that in view of your earlier rulings, Mr. Gale, which I hope that I have interpreted correctly, you intend that this should not just be a debate on amendment No. 57.
Order. Let me clarify that point for the right hon. Gentleman. Sometimes it is convenient for hon. Members to engage in a reasonably wide-ranging debate when amendments to clauses are interrelated, but we are discussing amendment No. 57. We shall move on to the other amendments, including those in the right hon. Gentleman's name, in due course.
On a point of order, Mr. Gale. Do I wait until the discussions on amendment No. 57 and the next group of amendments have finished, or do I make my contribution now? I ask your advice, because I am unashamedly confused.
If the hon. Gentleman is confused, I have sown the confusion. We are debating amendment No. 57. I have said expressly that I am happy to allow the Committee to engage in a reasonably wide-ranging debate because other matters need to be discussed. However, following the debate on amendment No. 57, there will be a debate on amendment No. 58 and related amendments. Following that debate, there will be a further debate on amendment No. 93, which is in the name of the hon. Member for Newry and Armagh. If he has points to raise now, he may do so. Alternatively, he may wait and save his fire until we reach amendment No. 93, which he will be called on to move.
As has been said, clause 9 amends section 59 of the 2000 Act, which deals with the Chief Constable's general duty to report to the board, and it is worth spelling out those changes exactly. Clause 57 removes the grounds of referral, including the fourth ground of referral referred to by the hon. Member for Solihull. They are now addressed in a new stand-alone section 76A in clause 22, which we will debate later. The clause also amends the 2000 Act to allow the Secretary of State to oblige the Chief Constable to share sensitive information only with a small committee, rather than a full board, in the event of a board inquiry. It also allows the Chief Constable of his own volition to share sensitive information with that small committee, rather than the full board. The clause also requires him, if he shares such information with either the board or committee, to identify that information as sensitive and requires that it should not be disclosed further.
Clause 9 was amended substantially during its passage through another place. The version before us includes some detailed provision for the handling of sensitive information in the context of reports. The purpose of those provisions, and the associated provisions of clauses 20 and 21, is to ensure appropriate protection for the most sensitive information while giving the board's representatives access to sufficient information to fulfil its accountability duties properly. The grounds on which the Chief Constable can refer a request for a report to the Secretary of State are to be amended, but, as I have said, the revised grounds are set out in a separate stand-alone provision that is inserted by
clause 22. That change has been made to avoid repeated reference to the same set of criteria throughout the legislation.
I recognise that the provisions are complex, and we will debate provisions of similar complexity on the next two groups of amendments. However, the provisions give important protections that allow the Chief Constable to be as open as possible with the board on delicate matters without compromising the security of the nation or an individual.
I have much sympathy with the thinking behind amendment No. 57, and I recognise the concerns articulated by the hon. Member for Solihull. In many ways, there is not much between the Government and Opposition on the proposal. As the hon. Gentleman pointed out, the Government made it clear in another place that they recognised the need to cater for a situation in which agreement between the board and Chief Constable on the timing of a report under section 59 proved impossible, however unlikely we considered that to be. We said then that the best place to deal with that was in a code of practice on the operation of sections 59 and 60, made under section 27 of the 2000 Act. A draft code of practice is already with the board for consultation, so that is a second code of practice that is being developed. However, amendments to it will be necessary, following the Bill and our deliberations in the House.
The Government would be prepared to include in the code a recommendation that, should agreement under section 59(2)(b) prove impossible, the board should seek independent, expert advice from HMIC. We believe that it is more appropriate to deal with that through the code of practice than in the Bill. However, I undertake to reflect on the hon. Gentleman's comments and consider whether we should return to the matter on Report.
I want to deal with the dropping of the fourth ground. I followed the debate in another place carefully. The Policing Board's primary statutory duty is to maintain an effective police service in Northern Ireland. It would be contrary to that duty if it requested a report in a time scale that could prejudice a major ongoing investigation or operation. Section 59(2)(b) of the 2000 Act contains a provision for the board and the Chief Constable to agree a time scale for the production of such a report. I have every confidence that both organisations will seek to reach a sensible accommodation on the time scale to avoid prejudicing ongoing investigations. In addition, we will provide a role for HMIC in the code of conduct.
I have ranged more widely over the other changes that the clause makes, but I hope that I have answered all the points raised by the hon. Member for Solihull. On the basis that I shall consider his arguments further, I hope that he will not press the amendment to a vote.
I beg to move amendment No. 58, in
clause 9, page 6, line 16, at end insert—
'(3A) The Chief Constable may refer to the Secretary of State a requirement to submit a report under subsection (1) if it appears to the Chief Constable that a report in compliance with the requirement would contain information that ought not to be disclosed because it would, or would be likely, to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.''.'.
With this it will be convenient to discuss the following amendments:
No. 25, in
clause 9, page 6, line 17, leave out subsection (3).
No. 59, in
clause 9, page 6, line 24, at end insert—
'(aa) exempting the Chief Constable from the obligation to report to the Board information the disclosure of which, in the opinion of the Secretary of State, would, or would be likely, to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders;'.
No. 26, in
clause 9, page 6, line 35, leave out 'or (b)' and insert ', (b) or (c)'.
No. 27, in
clause 9, page 6, line 38, leave out 'or'.
No. 28, in
clause 9, page 6, line 40, at end insert
(c) information that would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.'.
No. 60, in
clause 9, page 6, line 40, at end insert—
'(c) information the disclosure of which would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.''.'.
No. 61, in
clause 10, page 7, line 35, at end insert—
'(3A) The Chief Constable may refer to the Secretary of State the decision of the Board to cause an inquiry held under this section if it appears to the Chief Constable that such an inquiry ought not to be held because it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.''.'.
No. 30, in
clause 10, page 7, line 44, leave out 'or'.
No. 31, in
clause 10, page 8, line 2, at end insert
(c) information that would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.'.
No. 62, in
clause 10, page 8, line 2, at end insert
(c) information the disclosure of which would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.'.
No. 32, in
clause 10, page 8, line 8, leave out 'or (b)' and insert ', (b) or (c)'.
No. 67, in
clause 18, page 12, line 4, at end insert—
(2A) Subsection (1) does not require the Chief Constable to supply any information to the Board if it appears to the Chief Constable that the information ought not to be disclosed on the grounds that it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.'.
No. 42, in
clause 18, page 12, line 8, at end insert
'or information that would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders'.
No. 43, in
clause 18, page 12, line 15, leave out 'or'.
No. 44, in
clause 18, page 12, line 17, at end insert
(c) information that would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders'.
No. 68, in
clause 18, page 12, line 17, at end insert—
(c) information the disclosure of which would, or would likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.'.
No. 45, in
clause 18, page 12, line 23, leave out 'or (b)' and insert ', (b) or (c)'.
No. 69, in
clause 20, page 13, line 15, at end insert—
'(d) the Chief Constable informs the person that, in his opinion, the information would, or would be likely, to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.'.
No. 70, in
clause 20, page 13, line 23, at end insert—
'(c) the Chief Constable informs the Board or the Committee under section 33A(6) or 59 (4H) that, in his opinion, the information is information of a kind that would, or would be likely, to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.'.
No. 48, in
clause 22, page 15, line 12, at end insert—
'(d) the information would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders'.
No. 49, in
clause 22, page 15, line 19, at end insert—
'(d) the inquiry would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders'.
Following the extremely helpful ruling, Mr. Gale, that you would allow me to discuss amendment No. 57 in a rather broad way that might overlap with other groups, I do not wish to delay the Committee further by addressing the other amendments. I believe that I have said what I want to say.
As you expected, Mr. Gale, I want to speak to a number of amendments that stand in my name. The key one is amendment No. 28, which would reinstate the fourth ground that has been referred to, which is in section 59(3) of the 2000 Act and which clause 9, taken with subsequent clauses, would remove. I shall return to the Minister's comments on how section 59(2)(b) can be manipulated to achieve the same objective as section 59(3)(d). We must consider whether that is an appropriate way to proceed.
I want to deal with the substance of the question whether it is appropriate to retain safeguards such as those in section 59(3)(d), which is being removed. When the matter was discussed in another place, the issue of the removal of paragraph (d) was raised. The only justification given by the Government for the amendment was to quote a sentence from paragraph 6.22 of the Patten report:
''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.''
It is important to bear in mind the fact that the Patten report, like many reports, contains matters of discussion as well as matters of recommendation. The formal recommendations do not necessarily involve every jot and tittle of the report, and those in paragraph 6.22 are clear because they are in bold, italic print. The recommendations are the first and third sentences, which I have not quoted, but not the second sentence, which I have.
That point is strengthened by the summary of recommendations. The recommendation relating to paragraph 6.22 states:
''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. The obligation to report should extend to explaining operational decisions. If there is a disagreement between the Board and the Chief Constable over whether it is appropriate for a report to be provided on a particular matter, it should be for the Chief Constable to refer the question to the Secretary of State for a decision as to whether the Board's requirements should stand.''
The recommendation set out by Patten in no way qualifies the capacity of the Chief Constable. If there is a disagreement, it should be for the Chief Constable to refer the question to the Secretary of State. The formal recommendation in the Patten report does not limit the Chief Constable's power to refer matters to the Secretary of State.
The Government relied on a sentence in paragraph 6.22, which states that the grounds should be strictly limited. Although Patten says that the grounds should be strictly limited, that is not part of the report's recommendations. Furthermore, the sentence is bold, there is no discussion and no effort to indicate why those matters should be chosen. One might feel that national security and other matters are important and perhaps self-evident, but Patten did not set out such a justification. That is one reason why I described the Patten report as ''shoddy'' on its publication. In describing it so, I had in mind the fact that it is not a
well-argued paper. Its recommendations are not set out clearly, the reasons are not set out and the language is loose.
The sentence in paragraph 6.22 that has given us the problems boldly states:
''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.''
The term ''such as'' introduces a degree of looseness, as does ''cases before the courts''.
There is nothing exceptionable about section 59(3)(d), which mentions information that might
''prejudice the prevention or detection of crime or the apprehension or prosecution of offenders''.
That is closely related to ''matters . . . before the courts''. In dealing with the detection of crime and prosecution of offenders, some cases may not yet have come before the court, but that is clearly closely related to detection and prosecution. Prosecution, of course, brings one into the courts. The sentence in the Patten report is loose, not clearly defined, and no justification is given for it. However, because some Members treat Patten as holy writ, it was adopted without thought or the application of any intelligence.
As Members will have gathered, I think that the way in which certain parties approach the report is quite offensive in its anti-intellectualism. The Government, in accepting the argument and so deleting paragraph (d), are taking a foolish line. There are considerable dangers in what they are doing. Premature inquiries by the board could prejudice the detection and prosecution of crime in a number of ways simply by interrupting police inquiries and, whatever happens, that will be a diversion of energy, which is not advisable. Of course, as the Minister says, the preceding paragraph about agreeing the time limit can be manipulated so as to prevent an inquiry from being disrupted in that way. I suppose that that course is open to the Chief Constable and the Secretary of State, but only up to a point, as it would, nevertheless, be a manipulation of the provision. That is not an effective way to achieve such things.
There is another way in which removing paragraph (d) will prejudice matters, and that is through the possible leakage of information. To try to cope with that danger, the Government have introduced elaborate procedures with regard to committees, offences and so on, none of which is in the Patten report. The Government began with a slavish adherence to an ill thought out sentence and ended up introducing an elaborate process that is not in Patten. It will introduce invidious distinctions in the Policing Board and cause enormous difficulty. All that has been done simply to avoid the common-sense provision of section 59(3)(d).
Unfortunately, the issue comes back to some parties' rigid adherence to a rather shoddy report. If that report had been properly thought out and argued, I would have been surprised if paragraph (d) were not set out in it. I suspect that Members would have contemplated the matter at the time if they had thought about the report and if it had not been
produced in an awful rush so as to enable its chairman to go on to a more lucrative appointment.
I know that many Members have concerns about the removal of the fourth ground of referral from sections 59 and 60 of the 2000 Act, and that issue is covered by this group of amendments. I shall try to tackle those concerns.
First, the move reflects more fully the Patten recommendations. The right hon. Member for Upper Bann debates the clarity of those. Three parts of the report are referred to, and I am not sure that he quoted the central one, which says:
''The grounds on which the Chief Constable might question this requirement should be strictly limited''.
Yes, the right hon. Gentleman did.
Secondly, the move takes it into account that the Policing Board, whose statutory function is to ensure an effective police service in Northern Ireland, is not likely to do anything that would adversely affect the work of the police in the detection of crime or the prosecution of offenders. Indeed, were it to do so, it would be open to the Chief Constable to seek judicial review of the reasonableness of the board's request for the information.
Thirdly, it is worth noting that the board has not, in the 15 months since it was established, requested a report or an inquiry under sections 59 or 60. We are therefore talking about exceptional circumstances.
In seeking to explain the further rationale for the change, I invite the Committee to consider the issue from another perspective. As Members know, the grounds of referral, currently four in number in the 2000 Act, are a basis on which the Chief Constable, with the Secretary of State's agreement, could block a report or prevent an inquiry. Nothing in the Act requires the Secretary of State to give his reasons for turning down a request for an inquiry.
There is a concern among constitutional nationalists that such wide-ranging powers could be abused, if not by a Secretary of State, then by a devolved Minister of justice. The view is that the board could be thwarted in exercising its proper role of holding the Chief Constable to account. Against that background, we considered, in consultation with the previous Chief Constable, where the balance should properly be struck. I believe that the grounds as set out in the Bill, when taken with the other safeguards provided for both in the Bill and in the existing legislation, get that balance right.
The majority of amendments in this group would, in some shape or form, reintroduce the fourth ground. For the reasons I have outlined, I do not consider that appropriate. Amendments Nos. 26 to 28, 42 to 45, 60, 62 and 68 propose that such information that would have been covered by fourth ground—information whose disclosure could prejudice the prevention or detection of crime—might be shared with the committee, rather than with the full board.
My initial reaction is that there is no need for those amendments, as the board, with its statutory remit to ensure the effective policing of Northern Ireland, is not likely to do anything that would adversely affect the work of the police in relation to the prevention or detection of crime or the prosecution of offenders. However, I would like to reflect further on the comments made on this group in so far as they relate to the small committee variant. If appropriate, and having reflected further, I may consider raising the issue again on Report.
Amendments Nos. 69 and 70 deal with the offence that would be involved if disclosure of information took place. Of course, many other offences in the criminal law could, in certain circumstances, apply to improper disclosure of sensitive information. Depending on the use to which any information gained in the context of the board's work was put, the person disclosing it could be charged with conspiracy, or with a specific offence under the Terrorism Act 2000—for example, disclosing information likely to prejudice a terrorist investigation, or collecting or communicating information likely to be of use to terrorists. The criminal law already provides for that, and I see no need to replicate all those provisions in the Bill.
The amendments would make it an offence to disclose information identified by the Chief Constable as being likely to prejudice the prevention or detection of crime. That relates to the fourth ground of referral in the 2000 Act. The issue was debated at length in another place, and we said that there is scope for Her Majesty's inspectorate of constabulary to play a valuable role. We have signalled our intention to include that in the revised code of practice, and we believe that that is the more appropriate approach.
Amendment No. 25 would delete clause 9(3). It is in the best interest of the board and the public's confidence in its ability to hold the police to account that both the Chief Constable and the Secretary of State should have maximum flexibility in exercising discretion when considering whether information covered by the grounds in clause 22 should be disclosed to the board.
Clause 9(3) gives the Secretary of State the option of modifying the board's request to require the Chief Constable to share sensitive information with only a small group of the board, and that is an important option. If the Secretary of State makes the judgment that such information should be kept within a tight circulation, but that it could be shared appropriately with representatives of the board given that safeguard, it is surely right that the Secretary of State could empower the Chief Constable to share the information. However, the clause does not require the Secretary of State to ensure that information goes to a committee of the board irrespective of its sensitivity.
Each case will be considered on its merits and there will be a matter of judgment for the Secretary of State. The removal of clause 9(3) would not change that; it would merely remove one of the Secretary of State's options. That would be a mistake, and I hope that the
hon. Member for Solihull withdraws his amendment to allow us further to consider amendments on Report.
Yes, I want to speak before my hon. Friend the Member for Solihull winds up the debate, and I am sorry for the confusion.
I did not join in the debate at the start because I found the matter so disturbing that I thought that it would be sensible to allow the Minister to have her say. It is extraordinary that anybody would object to providing a Chief Constable with protection against those who might seek to undermine routine policing work in the investigation of crime or the apprehension of criminals. I start with the premise that it should be self-evident that any Chief Constable should have that safeguard, and I cannot understand why it should be withdrawn.
It could be argued that the provision should not have been included in the first place because the board would be unlikely to do such a thing. However, the provision had been thought necessary, and now the Minister wants to remove it. The onus is therefore on the Minister to justify providing the board with the power to undermine, compromise and prejudice an inquiry. Simply saying that the board is unlikely to do anything to prejudice an inquiry is not adequate justification for handing it the power to do that. It may be unlikely—it may be likely; it may be predictable—but it could happen. The board will be given the authority to prejudice although it did not have such authority before, and there must be a reasonable, sensible and acceptable justification for that change.
Is my hon. Friend also mindful that membership of the board may change? I am sure that he is. Although I am certain that the present members of the board are all of excellent standing, that may not always be the case, especially if people associated with paramilitary groups join the board.
That is absolutely so. I have made it clear in previous debates that it is inappropriate to use legislation to model arrangements on the existing members of a board, because members will undoubtedly change. The same applies here. The Minister may be content with such a board, but I am unsure what would happen when people with a terrorist background who had blood on their hands were allowed in, and they saw that some of their own were being further pursued—as they should be—rather than given amnesties and that they could find out what was going on and tip people off. This is an invitation for that to happen.
I was hoping that the Minister would say that there has been pressure to remove the provision. The right hon. Member for Upper Bann has suggested that a slavish following—even a misunderstanding—of Patten has led to this action. If the Minister had said
that, it would have provided a reason for it, but all we have got from her so far is, ''It won't happen, so it doesn't matter.'' As long as she cannot provide a better reason or agree with the right hon. Member for Upper Bann that the Government want slavishly to follow Patten, I, being of a suspicious nature, will be left to conclude that there has to be another reason.
In my earlier remarks I invited members of the Committee to consider that constitutional nationalists, as I described them, are concerned that the wide-ranging powers in the four grounds for referral could be abused, if not by a Secretary of State then by a devolved Minister of Justice, and that the board could be thwarted in performing its proper role. I apologise for repeating my earlier point, but that was one of our considerations when we contemplated the changes to be proposed in the Bill.
The Minister is praying in aid the SDLP—the constitutional nationalists—and the hon. Member for Newry and Armagh, who is a constitutional nationalist, could have come to the Minister's assistance by agreeing with her justification for opposing the amendments, but he did not do that, so my suspicious mind is still at work.
I heard what the hon. Gentleman said on that subject. I interjected earlier to ask him what he meant by ''one side.'' I will reply fully to him when we come to debate the amendment in my name. However, I know the hon. Gentleman well enough to be sure that he is aware that words must be chosen very carefully in these matters.
That is right. I understand what the hon. Gentleman has said. I always do my best to live up to what he requires of me, but more than occasionally he hears me say things with which he fundamentally disagrees. That is what debate is about.
On this occasion, I was not trying to suggest anything other than that a constitutional nationalist is entitled to have doubts, and I respect them. I was half hoping that the hon. Gentleman would be able and willing to provide me with a justification for the Government's action by saying that the SDLP has brought pressure to bear on them. He is entitled to do that. He has made it clear that matters such as these should be worked out in the democratic process, and I respect the fact that he may want to put pressure on the Government.
If the hon. Gentleman could provide that justification, he could stop me worrying that the real reason for this action is that the people for whom the hon. Gentleman probably has as little regard as I do—the unconstitutional republicans, who do not work by democratic processes—will be allowed into the process. Sinn Fein-IRA have made it clear that they do not like this way of blocking what they would be able to discover.
The hon. Gentleman knows that I intend to speak on this clause at a certain point that was indicated by the Chairman. It is therefore difficult to take being castigated by the hon. Gentleman for not having spoken before that point. I would prefer to deal with the issues on their merits. I assure the hon.
Gentleman that I will try to dispel any doubts in his mind, but I can do nothing about his prejudices.
I am sorry if it sounded as if I were castigating the hon. Gentleman. I was trying to get him to bail the Government out of the problem that they have got themselves into by not giving me a justification. I was trying to prod him into being helpful; I was not criticising him. Although he has intervened several times, he has not said the one thing that will remove my suspicion—he needs to say that the SDLP, not Sinn Fein-IRA, is responsible for the change.
Sinn Fein-IRA seem to be trying to extract a price from the Government for their co-operation with democratic policing. They would be on the inside track where they could require events to happen that would prejudice an attempt to bring terrorists to justice. That is my worry. I am waiting for the Government to say that that is not the case. They have not done so and I remain worried and suspicious.
There must be a reason for withdrawing one of the Chief Constable's protections; he should not be asked to prejudice operational activities by providing the board with advance details of what will happen. There must be a reason for that withdrawal, because the process is not one of tidying up. Somebody, somewhere must have decided that it would be helpful to strike a deal with terrorists who have yet to give up their arms.
The Minister continued to fail to provide us with a reason by saying, ''We don't need to worry because there are already penalties for premature disclosure.'' That is not the point. Once a disclosure has happened, it does not matter how many penalties there are. It does not matter if we bring back hanging, drawing and quartering for people who disclose information; it has already been disclosed and the compromising has taken place. We must deal with how we prevent it from happening rather than with what we would do to someone afterwards.
The Minister said that people may be reassured by our good compromise—a small group within the Policing Board could be privy to such information. However, one of the biggest problems with policing in Northern Ireland is that parts of the community feel that it is not inclusive and that the odds are stacked against them. The board is a way of including all parts of the community.
Surely the Government have argued for giving greater responsibility to an all-inclusive Policing Board that represents all sections of the community. On this sensitive issue, however, the argument seems to be, ''Notwithstanding our attempt to set up an inclusive board, we are now going to establish a sub-set of it because we do not trust the rest of them. They might want to compromise.'' That undermines all the good that was achieved by having an overarching, comprehensive, all-embracing board that reflects all sections of the community.
Instead of being reassuring by the Minister, I find that the more she says, the more my doubts grow. I am
sorry that she has not intervened to tell me that I am wrong. The longer she sits there without intervening, the more I become convinced that I am right. There is a reason for this decision which the Government do not want to admit. They have had every opportunity to do so and as long as they are not prepared to tell us what it is really about, my suspicions will continue and the people in Northern Ireland from whom I hear a great deal will continue to get more and more worried that all this is part of another sell out.
Clearly, there is a lot of arguing to be done and perhaps some movement to be made by the Minister. I say that not in a partial way, but because the Minister has shown willingness to deal with the issue. I want to return to the matter on Report. I have been reminded of the rule that if my amendment is defeated in Committee I cannot table it again on Report. Although we must return to the problem, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
With this it will be convenient to discuss the following:
Amendment No. 94, in
clause 9, page 7, line 2, leave out from 'the' to end of line 5 and insert
'the committee shall take into account the views of the Chief Constable'.
Amendment No. 98, in
clause 20, page 14, line 2, leave out 'Chief Constable' and insert
'committee constituted by the Board under paragraph 24(1A) of Schedule 1 following consultation by it with the Chief Constable'.
By its very nature, the debate has almost ceased to be about the substantive elements of the Bill and become stranded somewhere between what I regard as an unfair bash at Patten—both professionally and personally—and an unfair set of implications about the many people in the north of Ireland who are absolutely opposed to violence but want to see constitutional change. I am one of those people; I do not think that that comes as any surprise to right hon. and hon. Members.
Running through the strands of the debate is the failure of Opposition Members to understand the fundamental changes that have taken place, and continue to take place, in Northern Ireland. The changes have been going on for a long time. The type of political changes that have led to changes in policing are such that they cannot be judged by what happens in Sidcup, or measured against what happens in Finchley. People there are lucky enough not to have the problems that we have.
There seems to be a singular lack of understanding about the nature of what is happening. It is almost as if people such as myself are being castigated for refusing to be on policing boards unless we have the responsibility that goes with it. We are not going to sit there to be overruled by a Secretary of State, however decent, nice and good he or she may be, and we are not going to sit on a board to be dealt with by a Chief Constable as he or she sees fit. Those days are over in Northern Ireland.
Elsewhere, the fault line lies in some of the misunderstandings about the nature of the legislation. If I were lucky enough to live in a nice peaceful place in England, I might be making exactly the same points, but it is with that degree of tolerance that I ask people to recognise that we are talking about something entirely different. We are talking not just about policing, but about changing the face of an entire set of communities in a place that has been riven by violence for 30 years, and divided politically, and in terms of an awful sectarianism, for as long as it has existed. I felt it necessary to make that point—and I thank you for your indulgence while I made it, Mr. Gale.
I sometimes become impatient when anything that might help to ease the position within Northern Ireland of people such as myself and the people whom I represent—people who are called, for want of a better term, constitutional nationalists—is viewed through a set of glasses that sees nothing but the IRA, Sinn Fein or violent republicanism. One gets to resent that very much. I apologise to the hon. Member for Spelthorne for becoming a little tetchy. I know that he tries to understand the feelings of people over there and I know that it is difficult to understand some of the nuances, so I apologise if I was tetchy about his failure to understand those nuances. I try to make allowances for that, but not for the sort of attitude which many, including myself, find insulting.
We are squeezed into a difficult position in this Committee because our proceedings are taking place, perhaps deliberately, between the beginning of a war and a series of trips to the United States. The Bill will be out of Committee in one week. Had a mess not been made of the 2000 Act it would have been home, hosed and dusted, and we would not have wasted two years in dealing with policing. So be it, but that is why we are squeezed, and that has had an effect on the Bill.
Conservative Members have said that they will bring matters up on Report. It is not for me to give advice to the Conservative party, and I am sure that they will not listen, but I shall give it anyway. With the present Government, and the guillotine at hand, deferring matters until Report is dangerous. I know that from long experience, and I would never do it again.
Order. Before the hon. Member for Spelthorne intervenes, I understand that the hon. Member for Newry and Armagh feels passionately about these matters, and it is the duty of the Chair to help Back Benchers to have their say. However, I must
remind him of two things. First, we are debating a group of amendments, to which he has yet to speak. Secondly, the guillotine will fall at 5 o'clock and the debate will be curtailed. If he wishes to speak to his amendments, he should quickly return to them.
Thank you, Mr. Gale, I was saying that on many occasions when I have listened to the hon. Gentleman, I have heard his advice and taken it. I am always prepared to reflect on any suggestion about what my party can do to improve its fortunes. He has been helpful in that respect.
I shall not comment on that, but I hear what the hon. Gentleman says, and he knows how important that is at the moment.
The hon. Gentleman said that the Government made a mess of the original Act, but the right hon. Member for Hartlepool (Mr. Mandelson), who was Secretary of State for Northern Ireland, says that it was adequate and sensible and does not need to be amended by the Bill before us. Perhaps the hon. Gentleman would tell us why he disagrees with the Government.
Order. With respect, the hon. Member for Spelthorne is tempting the hon. Member for Newry and Armagh down a road that he should not travel if he wants to speak to his amendments.
If such a mess had not been made of the original Act, we would not be here now discussing legislation to put it right.
Turning to the amendments, of course I have doubts about reports being brought to the Policing Board. If any hon. Member wants me to provide the litany of reasons, I can do so from memory. However, things have changed, and I do not want to go back into the past. Do I have the same type of paranoia about the changes in the board? I have apprehensions about such changes, but I shall not give in to other people's paranoia about that at this stage.
I turn to my amendments, of which there are three: two to this clause and one to clause 20, which is in many ways consequential. They relate to the new aspects of the Bill, which show a new type of approach. That derives from previous failures to deal with the situation. I was asked whether I have tried to get changes made. Yes, I tried for years, but the changes did not happen so I have to deal with the situation as it is now. Patten envisaged strictly limited grounds on which the board could request a report or inquiry, which could be resisted by the Chief Constable. Those grounds were national security or a sensitive personnel matter. However, the previous Bill, in a smart alec way, changed that personnel matter into a personal matter, which of course gave carte blanche in terms of data protection law. That is now gone.
The way round that problem has been the creation of a small committee of the board. The alternative to that, or to the sort of approach that
could have been introduced in 2000, was a continuing veto on the policing board by either the Chief Constable or the Secretary of State. That would not have allowed the changes in attitude necessary for changes in policing to develop. I am quite sure of that. It is important that we get the special committee procedure right.
A key element is how the special committee relates to the rest of the board. Let me point out some of the problems. They will be discussed under a later clause, but are pertinent to this debate. What will be the number of members on the committee? The Government are currently saying five. The Northern Ireland mind will immediately say, ''One Ulster Unionist, one DUP, one Sinn Fein, one SDLP—who is the fifth?'' It will be an independent, but the question is whether that will be a nationalist or a Unionist independent. I believe that five is the wrong number for that reason, and for other reasons. However, that is not the point that I am trying to address. My point is that if a situation develops in which those on the board can be given information, a caucus will be created on that board, which will not allow for the board to work in the way that we all want.
It is right for sensitive information to be dealt with sensitively. I fully support that view. However, when this law is passed and the special committee is decided on, what will take place in reality between the special committee and the board? Who will write the summary that the board will get? Will that summary be decided on by the Chief Constable, who will give the information to the board by proxy through a committee? Will he write it, or will the committee of the board write it?
Under my amendments, the committee, with whatever number of members, will write the summary in agreement with the Chief Constable. Otherwise, there will be an ongoing problem in the board in relation to that committee. The committee should take into account the views of the Chief Constable in doing that. I do not have any doubt that if the amendments were carried, the same type of summary would be presented by the Chief Constable. However, we need a board with the status that it will require to deal with the problems, and if the committee of that board is set up to deal with the matters and is to be trusted with that information, it should also be trusted with writing the summary that goes to the rest of the board.
With regard to sensitivity, the rest of the board will more readily accept a summary, guided by the Chief Constable, from members of the board that they have appointed than they will from a Chief Constable who has already filtered it through part of the board and has excluded them. That may not be the largest philosophical or political point in relation to the issue, but I am concerned with how we can best preserve and continue to create the type of approach that is needed.
I would like to finish with one or two other points before I return to the earlier questions. I find absolutely objectionable the suggestion that constitutional nationalists on the board would artificially contrive requests for reports so that they could filter information out. I can see an understandable apprehension underlying some of the contributions, but if that apprehension becomes obsessive, it will not get us anywhere.
The hon. Member for Spelthorne asked me at one stage if I could bail the Government out. It is not part of my role to bail Governments out. I would have liked to bail them out in 2000. If changes had been made then, we might not have arrived at this point. That is a matter of record because amendments were tabled at that time that might have got round some of the current difficulties. However, we have to deal with life now. The hon. Gentleman is correct. We are going to the heart of the way forward for policing, and the fears and apprehensions that surround that. I was asked whether I had fears, and whether the people whom I represented had fears. Yes, we have.
I thank the hon. Gentleman for giving way, and I appreciate that time is short. I want to give him the opportunity to address one point that he has not addressed so far. He has talked at length about the committee arrangement that would enable sensitive material to be considered, which includes the matters set out under section 59(3)(a), (b) and (c) of the 2000 Act. That procedure could apply equally to paragraph (d). Will he say why, by implication, he supports the deletion of paragraph (d), as I am not aware of any reason for doing so, other than a mechanical and unthinking application of a particular interpretation of Patten?
I take that point, but this would not have happened had there not been two or three bail-outs, which went on in 2002. What did Weston Park say? It said that the Government intended to substitute the phrase ''sensitive personnel'' for the phrase ''sensitive personal''. They were trying to put the matter right by adding a new definition to cover vulnerable individuals, whether police personnel or members of the public. Lo and behold, it was not in the first version of the Bill, so we had to go back to the drawing board, back to the inclusion of a free-standing ground that would have made it even more impossible to seek and receive a report. One wonders why that happened. Is it any wonder that at this stage—as a result of negotiations, I assume—we are now down to a committee of the board?
I always take the right hon. Gentleman's word, but if it was not negotiation, it was inspiration—a remarkable piece of inspiration. I would love to think that the Minister would reply to that point and say definitively what the position is in relation to the clause—and I am sure that she, too, would love to be able to say that definitively. The problem is that none of us can say definitively what the end result will be, because these issues are sometimes
not resolved through the parliamentary legislative process.
I thank you, Mr. Gale, for the advice that you gave me. I believe that the amendments that I have tabled are worthy and I put them to the Committee.
We shall have an opportunity to return to some of the detailed and deep issues on Thursday, so I can deal with the amendments now with perhaps only one reference to the comments that the hon. Member for Spelthorne made about the changes that we are making. He makes a serious error when he says that they are part of a concession to Sinn Fein. My hon. Friend the Member for Newry and Armagh explained the strong feelings of himself and his colleagues. I shall deal with that matter further today, but I sure that we shall have an opportunity to return to it later in our proceedings, as well.
The Bill gives the Chief Constable the responsibility for preparing the non-sensitive summary that will be presented to the full board and, potentially, published. His professional expertise puts him in the best position to make a judgment about what information could put an individual or the wider community at risk if it were disclosed. That requires specialist skills and a detailed understanding of the information that could be of use to criminals. Sometimes even a seemingly innocuous comment can, inadvertently, put an individual at risk. The Chief Constable has the necessary expertise and, as the individual who has operational responsibility for policing in Northern Ireland, he has a personal duty to protect life and preserve the peace.
The board, however committed, does not have such expertise. Its primary duty is not to protect life—although I accept that as a public authority, it has article 2 responsibilities under the Human Rights Act 1998—but to hold the police to account. The emphases are different—rightly so—but that means that the expertise that each possesses, and therefore their ability to carry out the task in question, are different. It would not be appropriate for the committee to have responsibility for compiling the summary, which is what amendments Nos. 93 and 94 seek to achieve.
However, it is appropriate for the Chief Constable to take account of the committee's views in preparing the summary, as required by the Bill. As my hon. Friend the Member for Newry and Armagh said, an alternative might be found in which agreement is sought between the committee and the Chief Constable. I shall reflect carefully on what he said.
I readily accept that the situation would be absolutely impossible, from either point of view, unless there was agreement. Agreement is absolutely necessary if the arrangements are to work and be effective.
I am grateful for that intervention. I shall read the report of this debate when considering what further measures, if any, we should introduce.
information can be disclosed to the public without putting at risk either the individual or the nation, as I have just explained. If the committee were to have unfettered discretion in determining the modifications to the report, it would mean that the board would decide the parameters of the information that would form the basis for an offence. To put it another way, the effect of the amendment would be to let the board itself set the terms of the offence that would apply to it. That would be nonsense.
We have had a wide-ranging debate about a variety of amendments. I wish to reflect further on these particular amendments, so I ask the hon. Gentleman not to press them to a division. I hope that the Committee agrees that we have started the debate on reports and inquiries in a sensible and constructive manner, and I look forward to continuing it on Thursday.
I listened carefully to what the Minister said. I did not seek to intervene before she had an opportunity to reply to the hon. Member for Newry and Armagh, because he tabled the amendments and they are important to him. However, he made some comments earlier that I must address, particularly as the Minister said in her response to him that I would be making a serious error if I felt that it was only Sinn Fein-IRA that had brought pressure to bear on her, or that Sinn Fein-IRA had not brought pressure to bear on her—I am not sure which of those two separate ideas she was implying. However, she also suggested that I would be making a big mistake if I did not appreciate that the SDLP was concerned as well. Be that as it may, we still have not cleared up the issue of what pressure Sinn Fein-IRA did bring to bear.
I believe that the hon. Gentleman said that someone in the Committee had suggested that the constitutional nationalists, the SDLP, had been accused of being the sort of people who would leak information. I wish to make it crystal clear—the hon. Gentleman has heard me say it many times—that I know perfectly well, as does everyone involved with Northern Ireland, that there is a world of difference between the SDLP and the terrorists in Sinn Fein-IRA. I have always paid respect to the hon. Gentleman, who says he wants a united Ireland by democratic means. He is absolutely entitled to want that constitutional change. That is what democracy is about. He knows that I am fundamentally opposed to what he wants, but that is my right. No one as far as I know, and I think that Hansard will bear this out—
It being Five o'clock, The Chairman proceeded, pursuant to Sessional Order D [29 October 2002] and the Order of the Committee [this day], to put forthwith the Question already proposed from the Chair.
Question, That the amendment be made, put and negatived.
The Chairman then proceeded to put forthwith the Question necessary to dispose of the business to be concluded at that time.
Question put, That clauses 9 and 10 stand part of the Bill:—
The Committee divided:
Ayes 10, Noes 5.