I beg to move amendment No. 96, in
clause 18, page 11, line 35, after 'information', insert 'and documents'.
This is a fairly straightforward amendment that would benefit the board. In many ways, it was motivated by board experience. When there was controversy about the report into the investigation of the Omagh murders, the board requested sight of the outcome of the inquiry, which had not been conducted within the Police Service. It will probably be known forever as the McVicker report. It was a commentary on the Police Service.
The notion that the board would have access to such information was resisted for a considerable time. Eventually, quite rightly, the board obtained it. The board subsequently made a request for information. The amendment reflects that request. Information alone is not adequate because it would be constrained by the safeguards that we have already discussed—national security matters, sensitive personnel matters or those likely to prejudice cases.
The board also has a right to documents. The drafting of the clause cannot be regarded as an oversight because the police ombudsman, under section 66 of the 2000 Act, has the right to both information and documents. It is only proper for the board to have the right to information and documents, and I see no reason why it should not, given the nature
of its role. Nor can it be argued that it is dangerous to give the board the right to documents. We have heard many examples of apprehension about making information available, which I understand. However, if this clause 18 and other clauses are going to work, and if the board is going to make decisions and recommendations, it should be in possession of all the facts.
It should be trusted to exercise its powers responsibly, as it has done to date. Indeed, within the Bill there is a proposal for a special committee procedure for dealing with sensitive information. I repeat that there are the Patten recommendations relating to the grounds on which a request for information and, by extension, documents could be refused. I believe that the amendment respects all those concerns; that, from the board's point of view, it makes sense; and that it contains the protections and safeguards that are required.
I thought about the matter overnight and the more that I think about the amendment, much as I want to support the hon. Gentleman, I cannot. There are two ways of looking at it. If the hon. Gentleman is arguing that there is a need to verify information that is provided, so that people can be reassured that the information as provided by the Chief Constable is correct, accurate and complete, I can go some way along with him. If his motive is to get a sight of documents, I do not.
If the hon. Gentleman were arguing that he was worried about information provided that refers to documents that the board does not get a chance to see and whether there can be verification, that points to the ombudsman. If he were to have tabled an amendment or new clause that said that some mechanism should be set up when, if there were some difficulty, a judge or someone from the judiciary should be able to act as an independent verifier of information, I could go along with that. However, we are being asked to agree to the handing over of documents to the board or perhaps a committee of the board, especially set up to deal with the matter. I do not share the hon. Gentleman's view that that is fairly harmless, reasonable action to take.
We must accept that in due course possibly, if some people have their way, membership of the board will include either terrorists or former terrorists who have their own reasons for wanting to get hold of documents. Moreover, a document in itself may not be 100 per cent. relevant to the inquiry. It is possible that one document—an inquiry made by the police—may include a witness statement, which would be the required document, and that witness statement could be 50 per cent. to do with the matter that concerns the board and 50 per cent. to do with something entirely different.
The document is not protected, as the hon. Gentleman asserts, from all abuse. We argued earlier that it was wrong to remove protection for the investigation of crime, so it is possible that, when carrying out an inquiry into one matter, a document might mention an investigation into something entirely different. The investigation is then compromised. It is possible that a document providing factual
information, if it were produced, would reveal the source of the information, identify the informant and thus put that person's life at risk.
As I understand them, the conditions apply to the inquiry. If the person subject to the inquiry will be compromised, there will be protection. I accept that. However, I am saying that such matters that have nothing to do with the inquiry, but are extraneous information about something entirely different, which is attached to a document that is relevant. The 2000 Act does not make it absolutely clear that the protection will extend to a third party. Even if it does, there is no protection with regard to compromising or prejudicial criminal investigations: that has been left out. The hon. Gentleman frowns. He should read the safeguards that are referred to in the clause: they have been debated and we have objected to them because they do not include such protection.
A document demanded that is handed to the board might contain extraneous information. That could create a serious situation: the information might identify an informant and put his or her life at risk, or reveal financial information about third parties. I doubt whether financial information is covered by the term ''personnel information'' that is referred to in the list of exceptions. There might be a great deal of financial information about somebody, and someone who undertakes a background inquiry into a person tends to list all that is known about that individual. I fail to see why documents that might contain information that has nothing to do with the inquiry that is being carried out should be handed to the board, whose members are of diverse political persuasions that represent the entire community.
I am deeply worried about the practicalities of what the hon. Gentleman is proposing. I have some sympathy with the principle of the need for the board to be reassured that the information that it is given is accurate and complete. If he were to suggest on Report that there is a way of achieving such reassurance, I would be willing to consider supporting him, so long as his proposal makes sense and has safeguards. However, I am deeply worried by the suggestion that the board must have the absolute right to demand documents as well as information. Therefore, I do not support the amendment.
It might be useful to draw attention to what we are discussing. We are talking not about the circumstances of the board conducting a report or inquiry that the hon. Member for Spelthorne described, but about more informal arrangements between the board and the Chief Constable. New section 33A(1), which is entitled ''Provision of information to Board'', states:
''The Chief Constable shall supply the Board with such information as the Board may require for the purposes of, or in connection with, the exercise of any of its functions.''
Therefore, the board will be going through a much more normal process than that which has been described.
We are responding to representations from the board. My legal advice is that there is nothing to prevent the Chief Constable from sharing relevant documents with the board. Therefore, in many respects, my hon. Friend's amendment is unnecessary.
I wish to re-emphasise how the clause originated. It was proposed by the board, which stated that it
''would not wish to use the full reports and inquiries provisions in everyday circumstances where the Chief Constable does not provide sufficient information to enable the Board to fulfil its functions''.
We have debated that. That request was clearly cast in terms of information and of everyday circumstances that are qualitatively different than the more formal circumstances that the hon. Member for Spelthorne referred to and which obtain under section 59 of the 2000 Act.
I understand my hon. Friend's point about parity with the provision relating to the ombudsman in section 66 of the 2000 Act, but he is not comparing like with like. Once again, there is a greater formality in the ombudsman's role. Her primary role is to investigate complaints and to take views on issues that are of a criminal or disciplinary nature. As such, she is acting in a quasi-judicial capacity, and for that reason she may, in the course of an investigation, need access to an original document to allow her to weigh the evidence. Again, she has a statutory role in relation to police practices and policies. In carrying out that function, she needs access to force documents relating to the policy.
The board's role, however, is quite different. Its purpose is to hold the Chief Constable—and, through him, the wider Police Service—to account. The board has no forensic interest in original documents; rather, it has an interest in full access to all relevant information, and the clause gives it that access. I do not believe that it is necessary or appropriate to go further and adopt the amendment.
I broadly support the Minister in resisting the amendment, but I urge her to reflect on a general rule of evidence. If a document were to be placed before the board, it would be difficult to fillet it and place part, and not the entirety, at the disposal of the board. The general rule of evidence is that if part of a document is an issue, the whole document is. In that respect, I support my hon. Friend the Member for Spelthorne. I think that, indirectly, I am supporting the Minister too. If there is both extraneous and dangerous material in a document, will the Chief Constable be put in the invidious position of having to place before the board part, not all, of the document?
The hon. Gentleman makes a valid point. I know that what he mentions is a concern, and we will debate the issue in greater detail later today.
The objective is to allow the board to receive documents without having to use the more formal
powers that are included elsewhere in the Bill. I believe that the clause, as it stands, is fair and measured.
I wonder whether I understood the Minister correctly, and whether she said that, under the clause, ''information'' is not exclusively non-written information and that documentation can be made available at the decision of the Chief Constable. Further to the point made by the hon. Member for Spelthorne, should not the board expect more than to be given information that may not be complete? I would like the Minister's view on that, because it almost implies that the board is only good enough to get whatever information someone else decides to give it.
I am grateful to my hon. Friend for that intervention, and indeed the hon. Member for Spelthorne raised the question of independent verification of information. However, hon. Members are talking about a much more adversarial context than that in which the clause would work. We are talking not about circumstances where the board requests the information for the purposes of a report or inquiry; but about information provided for the ordinary, day-to-day business of the Policing Board.
If the board believed that the Chief Constable had not provided the information it asked for, whether deliberately or otherwise, it could challenge him on that point, and the matter could go to law. The sort of arguments that the hon. Member for Solihull raised might then be relevant, but I do not think that that would arise. The clause would give the board a statutory relationship with the Chief Constable in the event of the board requesting information from him in order to allow it to conduct its everyday business without having to resort to the stronger measures that would be available when conducting a report or inquiry.
It is worth telling the Committee that the clause originally required the Chief Constable to supply whatever information was ''reasonably'' required by the board. I know that we frequently debate in Committee whether the word ''reasonably'' should be used. In another place, the Government accepted a Liberal Democrat amendment to remove ''reasonably''. The clause, as it stands, is adequate without my hon. Friend's amendment. The information described in the clause is sufficient to meet the board's worries.
Mr. Taylor rose—
I am extremely grateful to the Minister for giving way, especially because she was bringing her well-reasoned response to a conclusion. Will the hon. Lady reflect that the word ''reasonable'' and the concept of reasonableness is well rooted in the law of England and Wales, at least—I have some trepidation about wondering how the word might apply in Northern Ireland? Reasonableness is a long-established concept, as is the character known as the reasonable man, who presumably personifies reasonableness and thinks in a reasonable way.
When the question ''Who is the reasonable man'' was put to the test by the English law, the answer from learned authority was that he is the man on the Clapham omnibus. I do not know who is on the Clapham omnibus today, but people on Clapham omnibuses are reasonable. The concept of reasonableness is known in English law. The Minister should not be shy of, or try to sidestep, reasonableness. It can be well used, even though the Liberal Democrats removed the word in another place.
I agree with much of what the hon. Gentleman said. He is right that reasonableness means taking all relevant considerations into account, and it is a well-established concept in directing statutory powers properly. As I said, the Government believe that the clause strikes the right balance between establishing the board's general right of access to information and ensuring that there is proper protection of sensitive information, which we shall debate shortly. I hope that the amendment will not be pressed.
On a point of order, Mr. Gale. Before the hon. Member for Newry and Armagh (Mr. Mallon) winds up, may I point out that the Minister's response to points made by the hon. Gentleman and myself went beyond the amendment and included comments about the clause? I want to talk about the clause itself, but I deliberately confined my remarks to the amendment. Will you give us guidance on whether there will be a stand part debate or whether I must make more points now?
The hon. Gentleman has served on Committees under my chairmanship for long enough to know that I take a relaxed view on such matters. It is in order and quite proper for hon. Members to debate issues that arise from a clause in the right context. It is up to the Chair to keep the Committee in order, and if I decide that something is out of order, I shall say so. However, the hon. Gentleman knows that I shall assess at the end of the debate whether matters arising from the clause have been fully and satisfactorily debated. If I deem that they have, there will be no stand part debate. If the hon. Gentleman wishes to raise other issues, I am sure that he will find the opportunity to do so.
I have listened with interest, especially to the definition of reasonable persons, although I find it hard to go along with the notion that reasonableness belongs to one type of person. There is a floating feeling in the Committee that reasonable people will be found everywhere but on the Policing Board. That worries me somewhat because we are hearing of obsessions about what the terrible people on the board might do if they were able to wring information out of the Chief Constable or the policing system. I do not believe that. My view is that the Policing Board is working well, that it will work well in future and that it will contain reasonable people, although they will have political views and they will come from political parties.
Does the hon. Gentleman accept that his view of reasonableness in the present context may be one thing, but that the context might be different in the next few weeks and months? What if
There is validity in the point that the hon. Gentleman makes, and it is not the first time that he has made it. I can answer only in the broadest terms. Some of us would consider certain people in the political process as unreasonable. We would not want to go to tea with them, but that does not affect the right of a person or a political party to pursue their objectives by political means. The thesis of the new political dispensation in policing and, indeed, in every other way is that we are moving away from those days, from those points of view and from those activities.
I did not want to do this, and I will try to be as gentle as possible: if I were, perhaps, to apply the Clapham omnibus definition of reasonableness to people in the hon. Gentleman's party, who at times strutted on stages with red berets and were associated with those who had guns hidden throughout the north of Ireland, he might ask me to test the reasonableness of representatives from his party becoming members of the board. I am trying to resist doing that.
May I draw out the hon. Gentleman on what I think is a possible, but unsaid, element of his argument? Under the proposal that is contained in his amendment, does he think that the reasonable majority on the board might prevent an unreasonable minority, to which the hon. Member for East Londonderry (Mr. Campbell) referred, from asking for any documents that might be inappropriate? He has not said that and I would be interested to know what are his views.
Order. Before we proceed, I think that any reasonable man might construe that the hon. Member for Spelthorne is correct in saying that the debate has now ranged rather more widely than the amendment. I am happy with that, but I have to advise the Committee that is unlikely that there will be a stand part debate.
Thank you for that advice, Mr. Gale. There is no mathematical or definitive answer to the hon. Gentleman's question. I tried to make a point, and I made it reluctantly. I think that it is unreasonable for people who claim to be a part of the political process to stand on stages in Belfast wearing red berets as part of a rally organised by something known as Ulster Resistance. However, such people are part of the Policing Board. I refer, of course, to members of the party of the hon. Member for East Londonderry's, who are Members of Parliament, and I regard that as unreasonable. I also regard it as unreasonable to be a member of an organisation that is using guns. That applies to other political parties. I believe that it is unreasonable for people to have associations with unreasonable groupings in our society for their own political reasons.
I shall leave that topic. Suffice it to say—to help out the hon. Member for Spelthorne—that I may be referring to those people whom he often visits in Belfast.
The amendment is not what it has been blown up to be, thus ending up in red berets. It would be reasonable action to take. There will be many circumstances when information could not be properly given, without documentation. I can imagine circumstances when people on the board could not assess a situation unless they had documentation. The McVicker experience proved to be a substantial point in policing. It came from within the Police Service and added value to the board, which had to fight to get it. That could have been prevented under legislation, as a result of which the inquiry into the Omagh murders could have been further retarded.
I am not advancing my argument in a judgmental sense. I have noted the apprehensions outlined in the debate and what my what my hon. Friend the Minister said. Until proved otherwise, I shall work on the assumption that information will include documentation.
I am a victim of my own quadratics. It is impossible to intervene on an intervention. That is a mathematical improbability. Is there is a Northern Ireland equivalent of the man on the Clapham omnibus? Could it be the man on the Newtownards omnibus? Would that work figuratively; would it work idiomatically in Northern Ireland or even quadratically?
I take the hon. Gentleman's point. I am part of the trilby brigade. However, I recognise the validity of his argument. It is a fundamental point. Do I think that the man on the street, the man on the Clapham omnibus or the man driving his lorry around Crossmaglen are different from one another? I do not think so. Such men work in different circumstances and are subject to different pressures. They have different attitudes to many matters, including political life. What they have in common, however, is a sense of justice and, perhaps without rationalising it in the way
that we do to our own boredom, the ability to make a proper judgment on the foot of good horse sense. I regard people on the Clapham omnibus in the way.
I have the same high regard for those on the Policing Board. I have heard it said that powers cannot be given to such boards, because they are not au fait with legal points and are not fully educated in the niceties of this, that or the other. That is the fatal mistake because we are talking about integrity. If we do not assume that integrity for the people of the board, the Bill will not work. I recognise that the integrity of some people from different organisations may be questioned. Such apprehensions are reasonable, but surely we must overcome them, if the community that we represent must do so. The Bill must work for reasons that the Minister gave. Although I believe that it will be impossible to give information properly without documentation, I will not push the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 89, in
clause 18, page 12, line 10, after first 'Board', insert
', if he is satisfied that it is in the public interest,'.
Although I had not anticipated it at the outset, the amendment follows on neatly from the comments of the hon. Member for Newry and Armagh when he was positing the question whether the persons on the board can be regarded as reasonable men. He suggested that, despite the circumstances that exist in Northern Ireland—you will appreciate, Mr. Gale, that the references to berets of different hue are references to adherence to different paramilitary organisations—it is safe to assume that everyone is a reasonable person. The hon. Gentleman was suggesting that we have to make that assumption. It is a working assumption that regularly has to be made in Northern Ireland but, because of the existence of those organisations, tendencies and histories, there is a strong need for ensuring that safeguards are in place in case the assumption turns out to be inaccurate. We have only to consider the past year in Northern Ireland to see that there is plentiful evidence that the assumption that the hon. Member for Newry and Armagh would wish us to make is not always a safe or reliable assumption and that there is a need for safeguards.
It will be necessary for me to touch on provisions other than the proposed new section 33A(4). One of the difficulties of dealing with the Bill is that clauses 9, 18, 20 and 21 all hang together and are difficult to disentangle in parts. I shall resist the temptation to comment on the draftsmanship that has caused that tangled web. The amendment would apply to new section 33A(4). It would qualify the discretion given to the Chief Constable to supply information to the board. The reason why it is necessary to have some safeguard is that what may seem to be the safeguards in the Bill are not as robust as they would seem at first sight.
We shall come shortly to clause 22, which has a provision on disclosure of information that cites a number of grounds on which information ought not to be disclosed. When we were debating clause 9, we had a discussion about how the Bill is limiting the grounds on which information ought not to be disclosed, from the four that were set out in section 59 of the 2000 Act to the three that now appear in clause 22. If we look at new section 33A(2), it seems that
''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 any of the grounds mentioned in section 76A(1)'',
which then refers to the three grounds. At first sight, the proposed new section 76A(1)(a) seems to be clear, but it is not that clear. The reference to
''grounds on which information ought not to be disclosed''
does not, I am advised, mean that the information ought not to be disclosed. The reference to the Chief Constable not being required to disclose that information does not mean that he can, if he wishes, disclose the information. New section 76A(1)(a) merely sets out grounds on which information ought not to be disclosed; it does not say that the information must not be disclosed.
The possibility exists that the Chief Constable could at his discretion disclose information of the sort mentioned in what is to be new section 76A(1)(a). He could disclose information that would affect national security, which is sensitive, personal information or information that would be likely to prejudice proceedings that have been commenced in a court of law. The only safeguard is that we have what seems to be an untrammelled discretion in the Chief Constable to disclose information that is within those three categories. The only safeguard is that if the Chief Constable exercises his discretion to disclose, the matter goes to a special committee of the board.
I do not think that that is satisfactory, if my interpretation of the clause is correct. There should be safeguards. If the Chief Constable will be given discretion to disclose information that falls within the three grounds, there should be criteria on how discretion should be exercised. That is why I tabled the amendment, which would provide that the Chief Constable would be satisfied that supplying the information was in the public interest. That is not much of a limit on discretion, but I tabled the amendment in order to raise the issue and to ask for an explanation of the situation so that we may discover from the Minister what the provisions mean. If my interpretation is correct, I want her to tell us why the Government are introducing a system that would enable the disclosure of sensitive information relating to national security and matters that could prejudice legal proceedings.
The Government are creating an extremely dangerous situation, given the situation in Northern Ireland and the pressures on individuals that can exist—individuals might not be as trustworthy as the hon. Member for Newry and Armagh would like. We should hear a clear explanation of why the Government are doing that and the safeguards that they propose.
The right hon. Gentleman's earlier comments related to whether individuals on the board were reasonable or not. Does he recognise that giving the power of discretion to the Chief Constable to respond to worries about a particular individual would put him in a politically invidious position when making decisions? I want clarification from the Minister that the committee will have sufficient cast-iron safeguards to make the right decisions. Putting the onus on the Chief Constable would be the wrong way to do things.
I am largely in agreement with the hon. Gentleman, and we shall discuss later whether the committee will have adequate safeguards. The Chief Constable appears to be given untrammelled discretion to disclose information of such a sensitive nature. If safeguards and grounds on how to exercise discretion are not in the Bill, the hon. Gentleman is right that the Chief Constable could come under intolerable pressure and be put in an extremely invidious position. We know about the political pressures that can be brought to bear and the way in which parties have campaigned relentlessly to influence the way in which the police operate. The hon. Member for Newry and Armagh should focus on that rather than having such a Panglossian approach to the proposals.
The clause has opened the door to a dangerous situation in which serious pressure could be brought to bear on the Chief Constable. We are expecting the Chief Constable to have remarkable strength of character and remarkable fortitude. That might be an unwise assumption if there are no provisions that would make it easier for him to resist pressure. If the Government leave the discretion with the Chief Constable, it is important for criteria to be spelt out about how to exercise discretion. That would give the Chief Constable a basis on which to resist improper pressure.
I shall try to tempt the right hon. Gentleman down a path that I doubt he would be willing to follow. He was in some agreement with my previous intervention, but I would go further. We should try to create more confidence in the Policing Board and the committee that services it, as opposed, as opposed to putting the whole power and weight on the Chief Constable, as that would be an invidious position. If we can ensure that the board and the committee work well, and that the safeguards are in place, it would remove that responsibility, and that is how it should be.
I remarked in our sitting on Tuesday that the Policing Board, as presently constituted, was one of the unexpected successes of last year. Of course we would like to encourage and develop confidence in the operation of the board. It would help to build up that confidence if there were a clear framework for the board's powers and procedures, and if it were clearly set out in legislation how the powers can be exercised. It is undesirable to have a situation where the board is able, or may be tempted, to press a Chief Constable into areas into which it would be dangerous for the board to go. That is why the Government need to
think more carefully and clearly about how the board's discretions and powers will operate.
It would have been reasonable for the Government to maintain that matters relating to national security, sensitive personal matters—or personnel, depending on which way the word is spelt—or matters that could prejudice proceedings in court should be clearly identified and put to one side. That would have been a clear position, and the board would then have known precisely what could be done, and would not be tempted into dangerous waters. Instead, the Government have made it possible for the board to proceed into those dangerous waters. Where opportunities and powers exist, there might be a strong temptation to use them.
As things stand, the only safeguard is the character of the Chief Constable. We hope that that character will be robust enough to cope with the pressures that may be brought to bear, but it would have been better if it were reinforced by having some clear criteria set out in the legislation with regard to how that discretion should be exercised.
I think that I have said enough to suggest what the problem is. There is a tentativeness to my comments, because this subject needs to be teased out in greater detail. I look forward to hearing what the Minister has to say about it.
I did not intend to contribute to debate on this amendment, because I thought that I had said all that I wanted to say under the previous one. However, the right hon. Gentleman made a point directed at me, and I think that it merits an answer. He—''accused'' is the wrong word—suggested that I might be considering the powers of the board in an imbalanced way that might be against the protection of the Chief Constable. I want it to be clearly understood that I would not want a board or Chief Constable to come under the type of pressure that the right hon. Gentleman mentions. I would, board-wise and in every other way, give every assistance in ensuring that that did not happen.
Like the right hon. Gentleman, I know how such matters can work, and I, too, am concerned that the political, parliamentary and ministerial process be protected from that pressure. Experience has shown that such pressure applies not only to the Chief Constable and other members of the board, but throughout the system. I believe that many right hon. and hon. Members would share my apprehension about that. There is a line somewhere between leaving a Chief Constable stranded without proper protection and adopting the sort of approach to board memberships and operations that we had in the past, which actually contributed to getting us into some of the present problems.
Over many years, the composition of any board was based almost on a mathematical formula: a couple of castle Catholics and three garden centre Unionists, then a few lapsed members of the Alliance party were stuck on a board and called representatives of the people. Those members would sit there for years—
perhaps for decades—and they were not a functional part of the arrangements that they had to deal with.
Now we are at a different level and in a different situation. Snotty-nosed fellows like me from political parties are now on board—how dare anyone have thought of that in the past? There are also people from the grass roots of the community in Northern Ireland, warts and all. Those people have an enormous task to do. We must somehow get a line—a median—between leaving a Chief Constable without protection and falling into the position of appointing people to a board yet having others decide what they may or may not know, or do. For that reason, it is important that the amendments be discussed. Enormous strength will be needed in the political process in future to keep the board, the relationship with the Chief Constable and the policing process all on the right track.
There is, of course, another dimension. Powers will at some point be devolved to the same political parties as exist now, give or take the loss of a few seats in whatever direction, and Ministers—I do not know their names—will be in charge of policing and the criminal justice system. The Assembly in the north of Ireland will control and operate policing and justice in the same way as responsibility for that now resides in Parliament. Given the experience of my lifetime, if I were asked which I preferred, and which I thought had more chance of being successful in future, I would opt for the devolution process.
The political process in Northern Ireland and the arrangements surrounding it will come of age; it has the capacity, the integrity and the courage to take on the responsibility. There will be risks. I do not have to spell those out; we all know what they are. There will be difficulties and dangers, too. We have agreed that we are going down the road of devolution, but the question is: when can that be done? I have always been in favour of it, all through the years when no one would agree with me, not even the opposition—although I never expected them to get an agreement in their own party. I have always taken that view. A crucial element of this—and, indeed, of all relevant legislation—is that it should be rightly geared so that devolution can work.
It is depressing that in 2003 we are rewriting the legislation of 2000 in terms of what could and should have been done then. Where are those who knew better? I served on a Committee that considered a criminal justice review, and it was a long, tedious, hard process. If anybody likes a little bet, I will bet with them that the legislation that came out of that review will be subject to further legislation, just as the Police (Northern Ireland) Act 2000 is.
All of us face this problem: if we are going to legislate properly here, we must consider the future. That is why I listened with great interest to what was said about the amendment tabled by the right hon. Member for Upper Bann (Mr. Trimble). I have a lot of sympathy with his comments on it. I make it clear that I will use my political influence to protect not only the Chief Constable but the board and the entire process of making policing right.
I was about to say that I needed to begin my comments where the hon. Member for Newry and Armagh left off, and that I was racking my brains about how I could get back to the amendment from there, Mr. Gale. However, the hon. Gentleman made some points that I wish to respond to—albeit briefly—so I will take up your invitation to do so.
The starting point for this and any general debate needs to be—to quote the hon. Member for Newry and Armagh—the ''snotty-nosed politicians''. I am concerned because so much of the debate is focused on the activists and protagonists of the various groupings, factions and communities in Northern Ireland; the hon. Gentleman mentioned that. As an Englishman, my experience of Northern Ireland is considerable but limited, and I accept that it is nothing like as great as that of people who have lived there all their lives. However, it has always been my view that the overwhelming majority of whichever faction or community one chooses to talk about are ordinary law-abiding people who go about their daily lives and want none of the activism. When we have a debate of this sort in which it is said that there is this and that faction who must be reassured, so we must do this or that, what worries me is the risk of overlooking the need to reassure the law-abiding majority in all the communities.
Those people require a reassurance different from that which the hon. Gentleman rightly highlights in connection with the activists of the various communities. They want to be reassured that the snotty-nosed politicians are not going to interfere in the rule of law—that the politics of policing will not so much dominate the ordinary quiet policing and the rule of law, and that the rest of the UK will not happily take for granted the idea that those will be subservient to the infighting of the politicians.
All Committee members are politicians, so we know what can happen when politicians get their fingers on something. We cannot say that we are all utterly reasonable, because we are not all utterly reasonable. There would not be a Labour party if all of us were, because all the reasonable politicians belong to my party, because that is where reasonableness lies. [Laughter.] That response is exactly what I wanted, because I was making that point in order to demonstrate something: there can be no objective definition of reasonableness when politicians are let loose on an issue. To let us loose, with two different definitions of reasonableness, on the policing of Northern Ireland so that we can all interfere in it for our own political ends is very dangerous. It makes me nervous when I see the number of councillors on English police authorities, but at least here there is also a serious dose of magistrates. I have always taken that to be an attempt to balance the wishes of the articulate
few activists in a community with those of the silent majority who do not want interference, or for the police authorities to be rigged.
My answer to the hon. Member for Newry and Armagh is that we should not be going so far down that route. The Policing Board should not be composed of politicians able to interfere in any way that they choose. My view has nothing to do with the politics of Northern Ireland; it is merely an observation of what happens when politicians have too much power over the rule of law.
Hon. Members need only to examine the history books. Sooner or later, if politicians are left to their own devices, the rule of law will be busily undermined. It is happening at the moment, and if they think that this country will not be affected, hon. Members have only to consider the suggestion that Parliament should write guidance for judges on how the law should be interpreted. I will say no more on the subject, but if the hon. Gentleman thinks that this country's politicians are immune from wanting to interfere with the rule of law, he should consider what is happening in Parliament.
I really did not want to intervene in this debate, but my hon. Friend has unwittingly provoked me. He mentioned the role of magistrates in English police authorities, and I happen to be a profound believer in the value of the lay magistracy, which is the jewel in the crown of the English judicial system. Would he care to tell us whether he agrees that the general affairs of Northern Ireland would be improved if it had a comparable lay magistracy?
Order. No, the hon. Gentleman would not. I am beginning to feel that I have inadvertently handed the Committee the key to Pandora's box. I said earlier that I was prepared to allow reasonably wide-ranging debate on the clause, but I will not permit a debate on all human life—and we appear to be moving into that arena. I should be grateful if you would confine yourself to the clause, Mr. Wilshire, even if not the amendment.
I won't, but saying that I would not care to comment on what my hon. Friend said would be factually incorrect, because I would. However, I am happy to accept your ruling, Mr. Gale. Perhaps we will continue that discussion at lunchtime.
The Minister raised an issue in the first debate that prompted my point of order. She said that I was making too much of what she described as an ''informal procedure''. She referred to the process as ordinary and day-to-day. Somebody asks a question, the Chief Constable gives an answer and the process continues in that way. I was going to make this point in our stand part debate, but I will make it now: my experience of the ordinary day-to-day procedure of trying to obtain information is that there is no statute to back up that informal activity. A clause that makes something a legal requirement is not informal; it is
deeply formal. Therefore, I do not accept that the clause represents day-to-day business.
If the Minister is saying that such informal activity in Northern Ireland requires the force of law, I am worried. The right hon. Member for Upper Bann, when introducing the amendment, returned to the assumptions of reasonableness. If we are talking about informal day-to-day activity, the entire Bill makes an assumption of unreasonableness. We cannot even, so it would appear, have informal discussion about something without the force of law behind it. That is totally unreasonable. The hon. Member for Newry and Armagh and the right hon. Member for Upper Bann are right to try to rework the clause. There will not be a clause stand part debate, so I would be grateful if the Minister would go slightly beyond the amendment and explain why, if we are discussing only day-to-day activities, it is deemed necessary to have a statute governing such issues.
As for amendment No. 89, I am in the same position as I was with the argument of the hon. Member for Newry and Armagh. I am wholly with the right hon. Member for Upper Bann in general terms, but I am a little concerned about the wording of the amendment. Surely his argument was about the rights of the individual rather than the public interest. I am worried about the need to protect the affected individual rather than the public.
If the Chief Constable were to say, ''Hang on a minute; subsection (5) refers to 'information the disclosure of which would be likely to put an individual in danger','' the qualification that it would be useful to add to subsection (4) is that:
''The Chief Constable may, instead of supplying the information to the Board, supply it to the committee''
if he were satisfied that it was in the interests of an affected individual not to supply it to the board. I hope that that I understood the thrust of what the right hon. Gentleman was saying correctly. If so, I support him wholeheartedly. I can imagine a situation in which the public interest could be deemed to be greater than the interests of the affected individual—and that could lead to the exact opposite of the right hon. Gentleman's argument.
We had a long debate about reasonableness on the previous amendment—
My hon. Friend is taking us on to difficult ground. He said that a conflict might arise between the public interest and the interests of an individual. I am worried about that. Will he say which interest should prevail? Should it be the public interest or the interests of the individual? What is ''the public interest''? Is that a term of art? Is it defined anywhere?
If I were the mover of the amendment, I would be better placed to answer my hon. Friend. I too am a little concerned about the phrase. The right hon. Member for Upper Bann may be a better person to answer such a question. I have flagged up the fact that to my mind, there can be a conflict of interest between the public good and the individual's good. The debate is about an individual's
interest, not the public interest. We must always be mindful of the reasonable silent majority of people who want to get on with their lives. We also must bear in mind that whatever we think about individuals, they have rights and need to be protected.
The right hon. Gentleman said that the amendment might tilt the balance too far in favour of the board and against the Chief Constable—and against the individual. I remain deeply worried that even with the safeguard of the amendment, if it were accepted, we would not have gone as far as we should. Perhaps the Minister will comment on that.
Even if the amendment were agreed, we would end up with a section of an Act that said that there would be no prohibition on releasing sensitive information if, for example, the Chief Constable were worried that the release of that information would do harm, whether to the public or the individual, and if he released stuff that the Act said that he ought not release. Subsection (6) of new section 33A does not say whether the public or the individual interest is covered by new section 76A(1), and it does not say that the Chief Constable may withhold the information; all it says is that the Chief Constable must tell someone that he has done it. However, by then the harm would have been done.
Even if the right hon. Gentleman's amendment were agreed, I do not believe that there would be sufficient safeguards for either the public or the individual interest. The situation is a mystery to me. These are day-to-day matters. As the Minister said in a previous debate, this is not about the formality of preparing a report or conducting an investigation. However, there may be some requirement to pass on information that might hurt somebody. The Minister has admitted that we are talking about an informal day-to-day activity, yet the Chief Constable will be forced to produce information that could harm somebody, and all he has to do is tell someone about that.
I would be interested to know why the Chief Constable is required to tell somebody. I can only assume that that is because the Secretary of State may need to make arrangements through the security services to ensure that the named person could have some physical protection so that they were not assassinated. Is that the purpose of passing on the information? I cannot see why it would matter otherwise, because the harm would already be done by releasing the information. In fact, it is admitted in the clause, as follows:
''information the disclosure of which would be likely to put an individual in danger''.
It is admitted in the Bill that that activity would put someone in danger, but no safeguard, other than telling the Secretary of State, is provided. That seems quite extraordinary.
Subsection (1) says:
''The Chief Constable shall supply the board with such information as the Board may require for the purposes of, or in connection with, the exercise of any of its functions.''
I know why that is included. I support the phrases ''in connection with'' and ''the exercise of . . . its functions'', which will stop the board going on a
fishing expedition to find juicy information that may or may not be relevant. Perhaps the Minister could tell us who would be the arbiter of a difference of opinion between the board, which may say that the requirement arose from the exercise of its functions, and the Chief Constable, who may say, ''Oh no it's not, it's going far beyond your remit; this is a fishing expedition.'' Nowhere do I see a reference to that—unless I have not read the rest of the Bill correctly or fully.
My hon. Friend the Member for Solihull (Mr. Taylor) asked about a conflict between interpretations, and here is a conflict between what is reasonable and unreasonable in the job that is being done. Nowhere do I see who would act as the referee. I am not a lawyer; I am simply trying to get my mind round whether judicial review applies to the issue, or whether this is an objective matter of having to disclose the information before deciding whether it is necessary to disclose it. If the board admits that it should not have asked for the information after it is disclosed, it cannot undisclose it.
You will be relieved to hear that I was about to interrupt my own flow, Mr. Gale. I had explained the last point that I wanted to make, and I look forward to hearing the answers. I shall take your guidance—but if the answers are not satisfactory I may return to them later.
You have kindly allowed us to range widely over the clause, Mr. Gale—you say that that is your usual custom, and I have no reason whatever to doubt you. I would like the Minister to answer a question founded on the observation made by my hon. Friend the Member for Spelthorne. What are the implications of bringing into law words that require the Chief Constable to do something that a reasonable person would think he would have to do anyway? We all know that there are implications and legal consequences of bringing requirements into law, which those who frame legislation did not necessarily intend.
My attention is concentrated on the words ''the Board may require'', which are the key words on which the other actions in the clause are founded. How may the board require something to happen? Boards and committees usually require something to happen in one of two ways: they either reach a consensus about a decision, or they vote on a decision. If a committee cannot reach a decision about a matter, that results in a stalemate or deadlock. If the board could not reach a decision on a contentious matter—I am sure that that could happen—what would happen if a significant minority of board members decided that they wanted the Chief Constable to supply information?
I ask that question not for a frivolous purpose but because we have already discovered that the Bill will introduce legal possibilities that did not exist under the 2000 Act. I do not want to cover old ground, because
you would rule me out of order, Mr. Gale, but the Minister's response to points made about clause 1 suggested that the Bill would introduce grounds for judicial review that were not present under the 2000 Act. I do not have anything in principle against introducing new grounds for judicial review, and the Committee should not either. However, questions are vexed by legal procedures in the context of political life in Northern Ireland, and we should think carefully about the possible introduction of new procedures. I understand that the moment a judicial review or a new legal action is introduced, any action that the Chief Constable may want to take would be impossible because of that judicial review or legal action. That has political implications.
I am slightly disturbed by what my hon. Friend is saying, although he speaks extremely fairly. Is he aware that judicial review, along with human rights litigation, is the largest area of litigation growth in the United Kingdom legal and judicial system? Is he comfortable about welcoming more judicial review? Should that not be a matter of considerable concern? Should we not live in an era of negotiation and conflict resolution rather than litigation?
I believe that you, Mr. Gale, would rightly rule me out of order if I went a long way down the avenue on which my hon. Friend is tempting me to travel. I was discussing these matters only the previous evening with my learned wife. You would certainly rule me out of order if I were to repeat that conversation. However, that discussion with my wife, who is a lawyer, made me think carefully about some of the measures in the Bill, and I was just thinking about it in light of the clause. Judicial review has not only legal but political implications in Northern Ireland. If a member of the board were to go outside the board in some way, and were to suggest to a member of the press that a judicial review action was about to be launched, that might be written up as a story, and would become part of the political play in Northern Ireland. Important matters are at stake in the clause.
When I referred to those members of the board who might be entitled to argue that, although the board cannot reach a majority decision, they are a minority and may require information from the Chief Constable, I was not being frivolous. I will not attempt to discuss clause 11, because you would rightly rule me out of order, Mr. Gale, but other clauses relate to what a number—in some cases a minority—on the board may or may not decide to do. It is therefore pertinent to ask what would happen if there were a deadlock on the board and a large minority of members asked the Chief Constable for a decision. Would they be entitled to take legal action if they believed that the Chief Constable was being obstructive?
A number of points have been made about the complexity of the provisions. Hon. Members from all parties have supported one another's
arguments in many ways. I have found the debate helpful in my thinking about the provisions. Many of the points relate to matters that we discussed earlier and to issues that we will debate when we come to clause 20 and other clauses, as you rightly pointed out, Mr. Gale. I said in earlier debates that I would reflect on some of those issues. The Committee will understand that I want to reflect on the related clauses as a package. I shall take into account and note carefully the comments made in these discussions.
I shall quickly deal with the point made by the hon. Member for Wycombe. In relation to a minority, if the board could not agree, the majority view would prevail. The minority does not have a locus in that respect. The Chief Constable would not have to respond to even a sizable minority. As my hon. Friend the Member for Newry and Armagh said, so far, the board has, with some of its most difficult decisions, operated on the basis of consensus and with unanimity. However, it has on occasion also reached conclusions after a vote, but as I have said, the majority view would prevail in those circumstances.
On the points that the right hon. Member for Upper Bann made when speaking to the amendment, I have profound sympathy with his argument, and the way in which he described the pressures that might be brought to bear on a Chief Constable. I understand why he tabled the amendment, and I am grateful to him for doing so because it has allowed us to have a useful debate. The Chief Constable has a singular role to play in policing in the United Kingdom. It is a lonely role, and a job that carries enormous responsibilities. I am sure that the right hon. Gentleman would agree that the Chief Constable has a high degree of operational responsibility, as Patten would have put it. Of the three grounds of referral that we have discussed, he is well able to exercise his discretion about sensitive personnel matters and in matters before the courts, as it is his officers who bring the charges against persons appearing before the courts.
As hon. Members will recall, the Government adopted the Patten recommendation that the Secretary of State should no longer have the power to give guidance to the Chief Constable on any policing matter. We have repealed section 39 of the 1998 Act. However, it is still possible for the Chief Constable to seek the views of the Secretary of State on any matter relating to national security. After all, as Patten said, and the right hon. Gentleman will know, the Chief Constable is accountable to the Secretary of State, not to the board, on national security matters. That is an important constitutional relationship to keep in mind.
Section 76A, which we will be debating later, sets out the grounds on which information may be withheld. Under the section that we are discussing, the Chief Constable is asked to make a judgment about whether information should not be disclosed on any of those grounds. If he judges that information should not be disclosed, he is not obliged—there is no requirement upon him—to disclose it. However, because the matter touches on one of those grounds, that does not make it compulsory for him to withhold
it. The right hon. Gentleman is right in that respect. The discretion lies with the Chief Constable.
The effect of the clause is to give the Chief Constable the option of sharing the information with the small committee that we shall be talking about shortly, if that seems to him to be appropriate. I know that the right hon. Gentleman understands that perfectly well, and that his concern is that undue pressure might be brought to bear upon the Chief Constable to go beyond what he might deem reasonable to disclose. My hon. Friend the Member for Newry and Armagh deplored the idea that any such situation may arise, and I share his views.
The amendment proposes that the Chief Constable should be required to make a judgment that disclosure is in the public interest before he shares information with the board. That is what he is already required to do under, for example, new section 33A(2), under which he is required to make a judgment about whether
''information ought not be disclosed on any of the grounds mentioned in section 76A(1).''
The grounds all deal with elements of public interest, such as national security and matters before the courts.
Would the hon. Lady accept that the status quo provided for circumstances in which the Chief Constable could decline to provide a report? When we debated that on Tuesday, she was gracious enough to say that, although in the Bill the four grounds will be reduced, she would reconsider that matter between now and when we discuss the Bill on Report. I welcomed her saying as much, but I should be reassured if she would say that that is still her position.
As I said earlier, I want to consider what has been said from both sides of the Room on the matter. Some serious and probing questions have been put and I want to consider the points that have been made. I say to the right hon. Member for Upper Bann that the amendment would not add significantly to the standard against which the Chief Constable is currently required to exercise his judgment. I appreciate that the amendment may well have been tabled in a probing way, in which case it has proved to be valuable.
I turn to the more general debate about the clause. I have outlined the Government's thinking behind their introduction of it. It was prepared at the board's request, it was proposed in the review of policing arrangements that I took forward last summer, and it takes into account the board's first year of experience. It gives the board a general right of access to information from the police, subject to the same safeguards that apply elsewhere in the legislation.
I apologise to you, Mr. Gale, because it was I who introduced the concept of reasonableness. It is not in the clause because we amended it out. That produced a lively discussion, not all of which pleased you, Mr. Gale. I will seek to avoid provoking you.
I was going to say that the concept of reasonableness of the hon. Member for Spelthorne—he suggested that there would not be a Labour party if everyone was reasonable—should be balanced with his judgment in the choice of his ties. I welcome the tie that he is sporting today, but I know that considerations of a sartorial kind are not a matter for the Committee.
The hon. Gentleman made a cogent argument about my suggestion that we are talking about informal arrangements and everyday matters. I want to draw his attention to the responsibilities of the board. In the 2000 Act, the board is specifically required to secure the maintenance of the police in Northern Ireland. The relevant section makes it clear that the board is required to monitor the performance of the police: it is required to keep itself informed about, for example, trends and patterns in crime or in recruitment to the police and the police support staff. There will be frequent discussions between the board and senior police officers, and they will work with the board to provide that sort of information. Situations may arise in which the board asks for a piece of information that gives the police cause to pause about whether it should be disclosed.
As I said earlier, the request for the clause from the board was cast clearly in terms of information and everyday circumstances. I hope that I have reassured Committee members who have had concerns about the clause and its relation to other clauses and powers and to the delicate relationships between the Chief Constable, the board and the Secretary of State. I therefore hope that the right hon. Member for Upper Bann will not press the amendment to a Division, and that the Committee will give the clause a fair wind.
The Minister is right to classify the amendment as one that tries to tease out the situation that it addresses. I understand the criticisms of the form of the amendment that were made by the hon. Member for Spelthorne.
The amendment was tabled to give an opportunity to focus attention on a serious problem. Like the Minister, I found the discussion helpful in terms of clarifying matters, and I am now in a better position to describe the problem than when I first presented the amendment. What will be section 76A(1), if the Bill reaches the statute book, mentions three areas where information ought not to be disclosed. The first of them is national security.
By virtue of the way that the legislation operates, if something falls within any of those three territories of information, the Chief Constable has three options. He can refuse to disclose the information, seek the Secretary of State's advice—as set out in clause 9—or go ahead and make a disclosure. For the reasons that I gave at the outset, that concerns me. The Chief Constable may weave his way through the Act and disclose information that ought not to be disclosed. That would create a novel situation, which would have to be handled with care. Of course, we hope that the Chief Constable would handle it with care, but the
only safeguard in the Bill is that he must report to the Secretary of State that he has disclosed information that ought not to be disclosed because it would prejudice national security or the conduct of court proceedings, or because it is of a sensitive personal nature.
The right hon. Gentleman has rehearsed with total fidelity the three circumstances in which the Bill would allow the Chief Constable to seek refuge from the need to provide a report. What is his view of the restoration of the fourth circumstance—that the disclosure of information would
''prejudice the prevention or detection of crime or the apprehension or prosecution of offenders''?
I would be delighted to give my view on that at considerable length; indeed, I did so at our previous sitting, when I said that the Government were wrong to remove that paragraph. In my view, they did so as a result of a faulty reading of the Patten report, which they should have considered more closely and carefully. We may return to the issue, and I would be happy to do so. If the hon. Gentleman will permit me, however, I will focus on my current point.
There are three grounds forbidding disclosure, although my point would apply if there were one, two, three, four, five or six. The Chief Constable can weave his way through them and disclose information. The only safeguard is that he must tell the Secretary of State that he has done so, and that concerns me, given the situation in Northern Ireland. Indeed, I would be concerned about such provisions in any jurisdiction. I am particularly concerned about the position in Northern Ireland, however, because pressures might be brought to bear on the Chief Constable. Indeed, I expect that various persons will bring pressure to bear on him in a particularly persistent and threatening manner, for reasons other than the public interest. That might even be the case with the board as presently constituted, let alone any future board, whatever our concerns in that regard.
That is my concern, and we should reinforce the Chief Constable's ability to exercise his discretion. There should be grounds to which he can refer. Of course, there is a general consideration, and the Bill gives him discretion, which he can say he has exercised on this, that or the other ground. However, it will be easier for him to exercise his discretion properly if the Bill contains provisions to which he can point.
The Minister said that the Chief Constable could refer to the three grounds in what will become section 76A(1) of the Police (Northern Ireland) Act 2000, but he is clearly allowed to disclose information covered by those three conditions. If he says that he will not disclose information because it affects national security, he will be met with the answer, ''But you are entitled to disclose it, so why won't you? That's not a good enough reason.'' It is necessary that we give him other good reasons that he can use to resist such pressure.
I do not want to pursue questions of reasonableness or to discuss what it means. However, there is a fundamental difference in our outlook on this issue, and that was encapsulated in the comments of the hon. Member for Newry and Armagh. I accept that he was entirely sincere when he said that any influence that he might have would always be exercised to protect the operation of the system. However, when he said that the board would have the capacity and integrity to handle the task, he clearly believes that every board—present or future—will have that. Not everyone will share his confidence in human nature. Some people may have that basic outlook. I will not go into the point in any detail, or present it in the manner of the hon. Member for Spelthorne, because there are also people in the Labour party who accept the existence of original sin. Such acceptance is not confined solely to Members on the Opposition Benches.
I will not trespass into discussing original sin, but before the right hon. Gentleman concludes his remarks, will he tell us why he used the words ''in the public interest''? I defer to the right hon. Gentleman not only as a Privy Councillor but as a superior lawyer to me. Is ''in the public interest'' a term of art or did he include it merely to enjoy its general linguistic meaning?
That is a challenge. I cannot recall exactly what was in my mind in the hasty few seconds in which the amendment was drafted, but the phrase probably occurred to me as a term of art. I do not wish to pursue the matter too far. I noticed a frisson in the Committee when I used the phrase ''original sin'', but there are many others that would have encapsulated my point.
There are fundamentally different approaches to such matters, and they are highly relevant to the framing of legislation. Most legislation is framed on the basis that we deal with people who are not perfect and we try to make provision for situations in which problems arise. We try to protect the public interest in the broad sense, and we are trying to protect the institutions framed in the Bill from the pressures and abuses to which they may be subjected. That is a particular problem with these provisions.
I hope that the Minister will reflect further. I realise that the provisions are complex, and I hope that we will discuss the matter again. However, to facilitate future discussion, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. Clause 18 ordered to stand part of the Bill.
Before we come to clause 20 I must point out that although, as the right hon. Member for Upper Bann said earlier, some clauses are interrelated—that is why I allowed a fairly wide-ranging debate this morning—the Committee is acutely aware of the pressure of time, and there are a significant number of clauses still to be debated. Although clause 20 is lengthy and has attracted several amendments, it is specific. Hereinafter, the Committee should stick rigidly to the matters directly under discussion.