Clause 17 - Chief Constable's functions

Police (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 2:30 pm on 25th February 2003.

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Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

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

On a point of order, Mr. Gale. I wish to let members of the Committee know that I have placed on the Table near the entrance to the Room the information about the Policing Board that was requested this morning.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

That is not a point of order for the Chair. However, the Committee will note the hon. Lady's comment.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

On a point of order, Mr. Gale. If my memory serves me correctly, you prefer a request to remove jackets before we actually do it. Is it in order to do so?

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

While I am in the Chair, members may take it as read that they have permission to remove their jackets. I would not interfere with their creature comforts.

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

I had not made much headway before this morning's sitting ended. I thank the Minister for kindly and so promptly providing the list of the board members. It is useful, and it helps us realise, when we are talking about the board, that real people discharge its difficult function. We wish them well in their work.

As the morning sitting ended, I was speaking to clause 17 stand part, there being no tabled amendments. I wanted to draw the Committee's attention to the wording of the 2000 Act. I am sorry that it does not have a more felicitous title. I suppose that I could call it the Police (Northern Ireland) Act 2000, but it is more convenient to call it the 2000 Act.

Section 33 of the 2000 Act is very clear. In fact, it is an admirable piece of draftsmanship. It states:

''The police shall be under the direction and control of the Chief Constable.''

That is a fairly straightforward statement. The section then states:

''In discharging his functions, the Chief Constable shall have regard to—

(a) the policing plan; and

(b) any code of practice under section 27.''

That seems clear, as well.

However, along comes the Bill, and section 33 is subtly—or perhaps not—rewritten. It is restated that the two priorities of the Chief Constable are the

policing plan and any section 27 code of practice, but instead of just saying that he shall have regard to both, it goes on to state:

''The duty under subsection (3) applies only so far as consistent with the duty under subsection (2).''

In effect, that means that the policing plan is to have priority if there is any variation between the policing plan and the code of practice. The 2000 Act gave the Chief Constable two considerations to bear in mind, and the Bill prioritises them.

It may be thought that that is not a point of great significance, but perhaps we should consider who brings into being, on the one hand, the policing plan and, on the other, the code of practice. The code of practice is brought into being by the Secretary of State; the policing plan is brought into existence by the board. The code of practice—author, the Secretary of State—is now subordinated to the policing plan—author, the board. That is another shift in the tripartite balance between the Secretary of State, the Policing Board and the Chief Constable. Opposition Members do not like that shift. We were happy with the previous equilibrium.

I dare say the hon. Member for Newry and Armagh (Mr. Mallon) will say that I am speaking to the purposes that he wishes to see fulfilled. He is an honest man in that regard, and I dare say that he will follow me and say exactly that. I believe that he would subscribe to the view—he can speak for himself; I do not speak for him—that he wants a more elevated role for the board and that members of the nationalist persuasion in Northern Ireland want a diminished role for the Secretary of State. I understand that and I disagree with it.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I, too, welcome you to the Chair, Mr. Gale, and thank you for the leniency with regard to jackets. It was just a pity that it did not apply to ties.

I spent some time prior to the lunch break trying to establish the difference in legal terms between ''take account of'' and ''have regard to''. I was working on the assumption that, with the legal expertise that surrounded me, there would be a clear answer that I, as a lay person, should have seen long ago. I still await that. I have no doubt that the Minister will try to put the matter right when she replies.

I believe that that is important because, in relation to the clause, the revised implementation plan—in other words, that which stemmed from Weston Park—states on page 9:

''The Government intends, after the planned review, to amend the Act to provide that the Chief Constable shall take account of the policing plan.''

The phrase ''take account'' has been used in other parts of the Bill, but the clause contains the term ''have regard to''.

I listened with interest to what the right hon. Member for Solihull (Mr. Taylor) said about the juxtaposition—

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

With your permission, Mr. Gale, I should clarify that I do not enjoy the title ''right

honourable''. I am content to be the hon. Member for Solihull.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

Like me, the hon. Gentleman seems to be promotion-proof.

Part of the problem in relation to the words is the actual functions. The hon. Gentleman rightly looked at the juxtaposition of words in clause 17 and section 33 of the 2000 Act. It is quite clever; it may be a little clever by half. However, again I await clarification. Clause 17(2) states:

''The Chief Constable shall have regard to the policing plan in discharging his functions.''

Section 33 provides:

''In discharging his functions, the Chief Constable shall have regard to . . . the policing plan''.

That is fairly clear. The difference arises in relation to the code of practice. However, I disagree with the hon. Member for Solihull, because clause 1 recognises that the code of practice would be agreed between the Chief Constable, the Secretary of State and the Policing Board. Therein lies a difference. I have no great axe to grind on the clause, but in the interests of clarity I would like to seek advice from the Minister as to what the substantive difference is between ''taking account of'' and ''having regard to'' especially as it is already a matter of some contention, and we are only on the third clause. I wait for that clarification. I am very interested to hear it, and I look forward to hearing its implications, especially in relation to clauses 2, 3 and 4.

Photo of Paul Goodman Paul Goodman Conservative, Wycombe

I, too, would like some elucidation from the Minister, though she will perhaps be relieved to know that the clarification that I seek does not apply to the phrases ''taking account of'' or ''having regard to''. The hon. Member for Newry and Armagh has already received an explanation from my hon. Friend the Member for Solihull, and the right hon. Member for Upper Bann (Mr. Trimble). I wish the Minister success where they so far have apparently failed. The elucidation that I seek applies to subsection (4) of clause 17, which reads:

''The duty under subsection (3) applies only so far as consistent with the duty under subsection (2).''

My hon. Friend the Member for Solihull has already explained cogently the difference between the policing plan and the code or practice, and their origins. Perhaps the Minister could describe ways in which the code and the policing plan might be inconsistent. In subsection (4), a greater weight is placed on subsections (2) and (3). It may be that the Minister is anticipating some inconsistency, and it would be helpful if the Committee could learn what that is.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

When the hon. Member for Newry and Armagh referred to taking off ties, I looked at his tie, and I thought that it was rather nice. I did not see why he should be worried about it. Then I realised what he really meant, and I can only say that he should count himself lucky that he did not sit on the Committee that considered the Proceeds of Crime Bill.

That took 36 sittings, and so he would have had to suffer another 34. I can only say that my current tie is the most modest, and that they get worse.

Section 33 is, as my hon. Friend the Member for Solihull says, quite sensible. My hon. Friend uses language in his usual modest way that is meant to chide the Government gently. I prefer somewhat more robust language. I think that the change is dreadful. We are now saying that the Secretary of State shall no longer be the person who determines such matters. If there is a disagreement between the Secretary of State and the board, it is the board's view that prevails. We discussed something along those lines this morning, so I shall not repeat all that I said.

During an earlier debate, the Minister said that it was important that the board should not be hamstrung by the Secretary of State. I think that I have got that right. My view is, ''Oh yes, it should.'' Most certainly it should. In a sovereign state, in terms of policing, if there is a disagreement between a local committee—which is what the board is, in effect—and the Government, the Government's view should prevail. The clause that they want us to support would fundamentally undermine that. In future, in England, the Home Secretary will prevail in matters of dispute between himself and a police authority whereas in Northern Ireland, it will be the exact opposite.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North 2:45 pm, 25th February 2003

I shall gently chide the hon. Gentleman. He is proceeding on a faulty premise. Section 33 does not say that a code or the policing plan will prevail. It does not say which will prevail. That is the purpose of the clause—to make it clear that one, rather than the other, will prevail.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I hear what the hon. and learned Gentleman says. Perhaps I have misunderstood section 33. Let me try to explain how I construe it. Section 33(2) of the 2000 Act states:

''In discharging his functions the Chief Constable shall have regard to the policing plan and any code of practice under Section 27.''

Section 33 says that the Chief Constable shall have regard to both but the Bill says that where there is a dispute, the policing plan shall prevail. The distinction is that the policing plan is drawn up by the board and the section 27 code of practice is issued by the Secretary of State.

My understanding of the section and of the Bill is therefore diametrically opposed to that of the hon. and learned Gentleman. The status quo is that the Chief Constable shall have regard to what the Secretary of State says. If we approve the clause, in future the Chief Constable shall have regard to the board.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

Maybe I can help. Perhaps I did not explain myself fully. The clause says that the Chief Constable shall have regard to both. It does not explain what will happen where there is a difference between the two. One points to the Chief Constable and the other points another way. The Bill resolves that particular issue. I suspect that the possibility of a clash—rightly raised by the hon. Gentleman—will be very slight, given the way in which both are formulated in the 2000 Act.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I hear what the hon. and learned Gentleman says. If, on Report, he came up with an amendment to clear up this confusion, which stated that if there were a dispute the view of the Secretary of State should prevail, I would be inclined to vote with him. However, I suspect that I shall have to wait an extremely long time before he tables something to that effect.

Photo of Paul Goodman Paul Goodman Conservative, Wycombe

Is not the key point that the 2000 Act ultimately leaves discretion in the hands of the Chief Constable and that this proposal aims, once again—for the third time in Committee—to tip power in the direction of the board?

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Yes. I could not have put it better. The moderation and thoughtfulness of my hon. Friends is enormously helpful. As far as I can see, unless we are in the business of saying that we want to do more by making concessions to one side in this dispute, what is wrong with the existing arrangement?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I should be grateful if the hon. Gentleman clarified what he means by ''one side''. It is rather ambiguous in the context in which he uses it. I should like to hear his view on that.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I suspect that if I were to expand on my views on Sinn Fein-IRA, they would be fascinating. Perhaps the hon. Gentleman knows them only too well. By responding in that way, he knows precisely what I mean. The Bill is an attempt to make further concessions to Sinn Fein-IRA.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I suggest that the hon. Member might have missed the real advice. It is a question of what would be contained in a code of practice. A code of practice is unlikely to contain policy matters, but is likely to relate to how a function should be discharged in terms of ethical standards, not in terms of best practice or policing. Is not the real concern here that the policing plan will contain matters of policy and that those policies, by virtue of the clause, will override the ethical considerations that may be in the code of practice?

Photo of David Wilshire David Wilshire Conservative, Spelthorne

The right hon. Gentleman makes his point very well and I agree with him. We have here another variation on the debate that we had this morning on who should set objectives and who should settle priorities. During our debate this morning, it was suggested that the Government of the sovereign state should settle the overarching objectives and that local committees should decide their priorities and tactics within those objectives. If the clause did that, I suppose that I would be prepared to go along with it, but it seems to me that when there is a dispute between the overarching policing plan and the overall priorities and the points that the hon. Gentleman makes, it is the wrong way round.

I have said enough and have made my views clear. I have tried to explain what I object to. The clause goes to the heart of my disagreement with the Bill.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I have never worked with the Police Service of Northern Ireland, but I spent seven and a half years working with the Royal Ulster Constabulary at every level from constable to Chief Constable. I was involved in the Sheehy inquiry and a

number of other investigations into the way in which the RUC used to work. Things have moved on and changed, but it was clear that the tripartite agreement between the Secretary of State, the Chief Constable and the predecessor of the Policing Board worked well and was sensitively balanced in extremely difficult times.

My worry is not limited to the clause. The situation is not as calm and placid as some might think, and society in Northern Ireland is not yet ready for the balance to be shifted. I reiterate the point made by my hon. Friend the Member for Spelthorne (Mr. Wilshire) that the relationship has been seen to be working well. My right hon. Friend the Member for Upper Bann and the hon. Member for Newry and Armagh, in whose constituency I have spent many tense months, said that the relationship is working well. If it is working well and the lid is being kept on a difficult situation, why alter it? Do not the words

''the Chief Constable's duty to have regard to the code of practice applies only so far as consistent with his duty to have regard to the policing plan''

give priority to the Policing Board and degrade the position of both the Secretary of State and the Chief Constable? I oppose that because I believe that it is wrong. It works directly against any form of further cohesive action in Northern Ireland and the spread of peace which we have seen, with the institution of the Police Service of Northern Ireland, improving day by day. I do not believe that that is correct and I do not believe that we are yet ready for it.

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

May I add my words of welcome, Mr. Gale, to those that have already been expressed by hon. Members?

I shall try to lay to rest the issue of ''take account of'' versus ''have regard to''. I am advised unequivocally that in law there is no difference between the two phrases. However, hon. Members have asked why we did not use the words ''take account of'' at this point in the Bill when the 1989 Act uses the words ''have regard to''.

The discussions that informed the Government's commitment in the implementation plan following Weston Park focused on a desire to ensure that in complying with his duty, the Chief Constable should take greater account of the board's policing plan than the Secretary of State's code of practice. The hon. Gentlemen are right in discerning that that is the intention behind the clause.

I should like to correct the hon. Member for Newry and Armagh, who suggested that the code of practice would be agreed between the board and the Secretary of State. Codes of practice remain the Secretary of State's responsibility, and it is his responsibility to produce any such code having consulted the required parties. As we consider that ''take account of'' and ''have regard to'' have the same meaning, we took the view that it would not be appropriate to waste parliamentary time amending the 2000 Act to no good effect, which is why we are stuck with the original wording.

The hon. Gentlemen are right that the clause is consequential on the changes that we have just been

discussing. In contributing to the debate, they have made their distaste clear for the slight adjustment to the tripartite relationship between the Chief Constable, the board and the Secretary of State or, where policing is devolved, a Minister of Justice—or whatever they will be called. That is one of the Bill's fundamental purposes.

The Government and the board have a role in setting the strategic direction for policing.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I apologise if others are aware of this, but I am not. Will the Minister indicate the sorts of thing contained within the code of practice? Presumably the character of the code of practice will be different from that of the board's policing plan or the Secretary of State's statement of long-term objectives. In which areas is there likely to be conflict between the code of practice and the policing plan?

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

The remit for the determination of the policing plan is defined in section 27 of the 2000 Act. It relates to the discharging by the board of any of its functions and the discharging by the Chief Constable of any function that he exercises. I wanted to come to the question of whether I can think of examples of divergence. The honest answer is no because I do not expect there to be significant divergence. The important reason for the change is to give guidance to the Chief Constable, but in an extremely rare eventuality there may be a divergence.

When one considers the underpinning of the provisions, which require agreement, consultation and consistency between the different elements of the responsibilities that the three partners have to carry out, divergence is extremely unlikely. There is continually confusion between the code of ethics, which was recently published by the board, and the codes of practice, which the Secretary of State will bring forward. The recently published code of ethics is not subject to section 27 of the 2000 Act; it is entirely the responsibility of the Policing Board and has been developed under its auspices.

The Government took the view that where there is divergence, the board's policing plan would have primacy to strengthen the role of the board and to give the board slightly greater primacy than that which it had previously had in the tripartite relationship. I appreciate that the relationship is sensitive and has involved the board for a relatively short period, during which the relationship has worked well. One has to consider the context in which we are debating these matters and the implementation plan, which we brought forward after the Weston Park talks.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 3:00 pm, 25th February 2003

I thank the Minister for elucidating that the recently published code of ethics is not a code of practice under section 27. Has the Secretary of State made a code of practice under section 27, and if so what does it contain? Does he intend to make a code of practice under the section? If so, can the hon. Lady say when that is likely to be?

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

It is always galling when a Minister is asked a question and does not have the answer to hand. I may be inspired with the details that the hon. Gentleman seeks. Failing that, I hope to reply to him in greater detail later.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I note with interest the point that the Minister makes. Will she agree that the way in which the membership of the board is being substantially increased is a reflection of the devolution that has taken place to date and the devolution envisaged in the 2000 Act and the Bill in relation to policing and justice? Does she agree that that is the right thing to do in the present circumstances?

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

I agree with my hon. Friend. It was not a question of publishing the list of board members: it was already in the public domain. All the agreements made at Weston Park were not with all the parties. The devolution that has taken place has allowed policing in Northern Ireland to win the support of the Catholic and nationalist communities to a far greater extent than previously, so the changes that we are considering today reflect that devolution.

I said that I might be inspired to answer the point on codes of practice. So far, only one code of practice has been issued. That deals with the financial management of the board's affairs.

I appreciate that this issue is distasteful to some members of the Committee, but in the overall context in which we are making the changes and in view of our debates on clauses 1 and 2, I hope that they will give the clause a fair wind.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 11, Noes 5.

Division number 2 Adults Abused in Childhood — Clause 17 - Chief Constable's functions

Aye: 11 MPs

No: 5 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 17 ordered to stand part of the Bill.