With this it will be convenient to discuss the following:
Amendment No. 100, in
clause 21, page 14, line 38, leave out '5' and insert '7'.
Amendment No. 92, in
clause 21, page 14, line 38, after 'members', insert
'who shall have been positively vetted by the Security Service'.
Government amendment No. 77.
Amendments Nos. 91 and 92 relate to the establishment of the special committee of the board, which is part of the arrangements that we have talked about on many other occasions. The clause was added at the last minute in another place. I have listened to the hon. Member for Newry and Armagh talking about the perils of the Report stage and the nasty things that can happen to people during it. I must say that my colleagues in another place would agree with him, because things happened to them on that occasion.
Amendment No. 91 would remove the word ''shall'' and replace it with ''may''. That would create a situation in which the Policing Board was not under a legal obligation to create such a committee and could choose whether to do so. That would give the Policing Board the option. It also enables my colleagues on the Policing Board to let the Committee and the Minister know that they take great exception to that obligation. The Policing Board was not consulted about the changes; I think that the Minister would accept that. The Policing Board would prefer not to be consulted on certain matters on which there are likely to be political differences. However, the Policing Board was not consulted on this issue that deals with its internal workings. Will the Minister tell me who was consulted? My party's representatives on the board were not consulted and, as far as I am aware, no member of my party was consulted. When the Government tabled the amendments in another place, they offered information and briefings on the matter to one of my colleagues who was, at that stage, indisposed and not in a position to take advantage of it. However, that was a briefing, not a consultation.
I wish to place on record the fact that we take grave exception to the Government bringing forward an important series of changes to the operation of the Policing Board without consulting the board. The board, as the Minister knows, has been remarkably successful in its operations and the Government have unilaterally introduced changes without consultation. I will wait to hear what the hon. Member for East Londonderry says, but I suspect that his party's representatives were not consulted either. The Government are very foolish to proceed in such a high-handed, unilateral way with a board that is working successfully.
There is considerable anger about the issue among my party's representatives on the Policing Board. They
will be delighted if the present provision, which places them under a legal obligation to form such a committee, is amended to give them discretion. They are presently not minded to form a committee if the option is available to them. That is a serious matter in itself, but leaving aside the more general issue of the failure to consult, one may doubt whether it is a good idea to create such a committee at all. The establishment of a committee would create different classes of members within board. The committee would handle sensitive information, giving rise to difficulty. I have already argued on other amendments that such problems would not arise if the provisions relating to the disclosure of information were drawn more sensibly and more tightly. The provision is ill advised and consequential on other ill-advised changes that have been made.
The Bill, as presently drafted, provides an avenue whereby matters that relate to national security will be communicated, or might be communicated, to the committee of the board. It would not be inappropriate to have a safeguard with regard to the persons who are on the board to ensure that they are fit and proper to receive the information. That explains amendment No. 100, which would give rise to some interesting situations, were it to be carried into effect and were positive vetting to be required with regard to the occupations of members of the Policing Board.
Although some hon. Members, such as myself, might find it slightly amusing, there is a serious point concerning the failure of communication, the failure to consult and the failure to bother to find out what were our views on the matter. I want the Minister to say who was consulted, whose idea it was, where it came from and what dirty little deal lies behind it.
I wish to pursue my amendment No. 100. I noted the gleam in the eye of the right hon. Member for Upper Bann as I got to my feet. Let me put him out of his pain. When a person is an ''ex'' in various ways, he is no longer a member of the consultable class. I fall into that category and it is from that position that I address my little amendment. I noticed the gleam in the right hon. Gentleman's eye about my amendment, which would make the momentous change to the number of members of the committee from five to seven.
I await the exercise of the right hon. Gentleman's sense of humour about those figures. I could try to be funny about them, too. Let me try to be at the start. Who will the five be? There are four political parties on the board. Will there be one person from each party? That makes four. Then there has to be another one. There are nine independent Members of the Northern Ireland Assembly, so there will have to be an independent member. Will the member be a nationalist independent or a Unionist independent?
There is a second problem with the figure of five. The board is working well, as are the chairman and vice-chairman. I do not want a situation in which their role and approach is disrupted. In many ways, they are complementary roles. Do we include the chairman and the vice-chairman on such a committee? If we do, then there are three members. We then have to divide three into four, plus one, which would cause difficulties.
There is not a suitable number. It is a little like the debate that we have just had on the penalty in cases that will probably never be brought to court. I do not think that there is a suitable number, but the most unsuitable number would be five, for the reasons that I have given.
I, too, do not want a Policing Board on which there are good and bad members, equal members and those members who are more equal than others. That does not lead to the type of rapport that is necessary within a board, especially one that will be under such pressure. However, that is what is in front of us. We are working on the numbers.
I have tabled an amendment that replaces five with seven. I could immediately point out the difficulties with seven, too, but they are less than they would be with five.
Another question must be asked. In the experience of the Policing Board to date, had this provision been included from the beginning, how many times would the Committee have met? It is my understanding—although it may be faulty—that it would never have met, because there have not been any requests for information of this nature.
There probably will be such requests in the future. There might be cases where people will try not just to use that provision, but to abuse it. Those things may happen, but the element of collective self-preservation as a board will come into play as well: the capacity to sustain a difficult board such as this in difficult circumstances on a very difficult issue would substantially increase if there were more than five people. However, I repeat that I do not believe that any number is ideal because there is not a perfect way of arranging this.
I have made my point about seven, and I can anticipate some of the permutations that will be referred to—probably very shortly. They are as obvious as the permutations with regard to five, but they are less damaging and dangerous. If I had set out to pick the wrong number, I would have arrived at five.
I agree with the hon. Gentleman with regard to arriving at a number that would minimise if not eliminate the difficulties. Looking at the permutations, it is very difficult to arrive at a number that would achieve that, and which would command consensus on the Policing Board and among the communities in Northern Ireland.
In response to the comments of the right hon. Member for Upper Bann, I should say that my party was not consulted on this issue. This is not the first time that it has not been consulted. The Government make a regular habit of not consulting my party. We find it difficult to get meetings with the Prime Minister, and we have some, but a little less, difficulty in meeting the Secretary of State. We do not take less offence at not being consulted than the right hon. Member for
Upper Bann, but as that is a regular occurrence we have become more accustomed to it.
I understand why the right hon. Member for Upper Bann wants to replace ''shall'' with ''may''. I assume that if his amendment is agreed to the board may decide to constitute a committee, and that if it did so that committee would have five members. The right hon. Gentleman is nodding in agreement. If that were the case, notwithstanding the comments of the hon. Member for Newry and Armagh, I find it difficult to arrive at a number that everyone would be content with. If that could be achieved, I would be broadly supportive of amendment No. 91.
The debate has been interesting thus far. I shall start by speaking to amendment No. 91. The right hon. Member for Upper Bann made a sensible, practical point, as well as an important point of principle. As the hon. Member for Newry and Armagh said, there has not yet been need for such a committee. Speaking as one of the liberal politicians who is well to the centre of British politics and who hates waste, we should not force the board to set up a committee—it would cost money to set up and staff the committee—until that committee has a need to meet. As the clause stands, the first thing that must happen after the Bill is enacted is the establishment of the committee. If I understand the hon. Member for Newry and Armagh correctly, it will be set up to do precisely nothing. For practical reasons, using the word ''may'' is much more sensible than using the word ''shall''.
Again, if the hon. Gentleman attributes something to me, may I respectfully ask that he at least does that accurately? We have debated the reasons why the committee will be set up and why there should be a committee for most of the day. I have not suggested that it will do nothing. I said that it has not met before now because it does not exist under legislation, and I said that I do not understand why that was not pursued before—I may be wrong about that. However, the hon. Gentleman should understand that the committee could be a crucial factor for the board because the alternative to it might well be a running veto between the Chief Constable and the board, with the Secretary of State somewhere in between. The everyday working of the board would be in an impossible position because of failure to implement a means whereby board members could rightly ask for sensitive information.
I was coming to much of that. All that I was doing was talking about practicalities. I think that I heard the hon. Gentleman correctly when he said that there has not been an episode thus far that would have required the committee, and that is why using the word ''may'' is much more sensible and practical than using the word ''shall''. I shall argue in a moment whether the approach of having a committee is a good idea.
If the committee is a way to solve a problem, it should be provided for on the statute book and the provision should be ready to use when necessary. All that I am saying in support of the amendment is that we should not go through such a rigmarole and spend money on the paraphernalia of a committee until it is
needed. It is not needed at this moment on a Thursday afternoon.
The hon. Gentleman asked rhetorically why the measure is not on the statute book. That is because the Government refused to include a method in the 2000 Act to deal with the matter. That is one reason why we are back three years later and trying to get the legislation right.
That may be so, but I thought that we were discussing what should happen when the committee is on the statute book, not whether it should be on the statute book. The amendment addresses what the wording of the Bill should be. I am not arguing at present that we should not be able to set up the committee. All that I am saying—this is the third time that I have tried to get the hon. Gentleman to understand my practical point—is that we should have the committee, if it will help, but the board should not be required to set it up until there is a job for it to do. There might be an episode that requires the committee on the day on which the Bill is passed, but there might be a year before such an episode crops up. The time to spend money on the structure of the committee is the moment when the committee is needed—that is all that I am saying at the moment. No member of the Committee has said that there is a backlog of things to do that cannot be done because the committee does not exist. It would probably save a small amount of taxpayers' money if we supported the amendment tabled by the right hon. Member for Upper Bann, and I am more than happy to do that.
The right hon. Gentleman wanted to register his concern about not being consulted. He is right to be upset. I noted that the hon. Member for Newry and Armagh said modestly that he is now an ex-important person. That is nonsense. He is still a very important person but, in his view, times have moved on and he was not consulted. I imagine, however, that he is probably speaking on behalf of the SDLP and that it was not consulted.
I look forward to being with the hon. Gentleman when he reads the Official Report. I am not of the consultable class because of my status as an ex-everything. One aspect of being an ex is that I do not know what is going on around me because no one is interested in what I think any more. There are certain luxuries to being an ex. We do not have to go through the tedium of consultation. I hope that the hon. Gentleman accepts that there is no free-standing SDLP, as he implied. We are a political party. It may come as a shock to him, but there are political parties in the world that act as one.
I am most grateful to the hon. Gentleman for his lecturette on the unity of political parties. Perhaps he can tell me how that can be achieved within my political party.
I thought that you might say that, Mr. Benton. At least, it has prevented me from having to think up a suitable response to my hon. Friend. That is something for the Strangers' Bar after the end of our sitting.
The right hon. Gentleman said that the Ulster Unionist party was not consulted. I was about to suggest that the entire membership of the SDLP was not consulted, but I am not sure that that was what I heard. The matter may just be a wicked SDLP plot.
Of course, it is. Everything that has happened in the north of Ireland over the past 30 years is a wicked SDLP plot. The hon. Gentleman knows that full well. It was said earlier that political parties do not have the right to negotiate, to lobby, to put a point of view or to try to convince people. I still believe that the political process is about trying to convince people who do not agree with a certain view, that that view is valid.
That is interesting. I was speculating that such matters may be an SDLP plot, because that would undermine the thesis of some people. The hon. Member for East Londonderry said that the Democratic Unionist party had not been consulted. If the UUP, the DUP and the SDLP were not consulted, it would probably follow that the answer to the question of the right hon. Member for Upper Bann was that the wicked plot was dreamt up by Sinn Fein-IRA, and that would make a useful discussion.
Will the hon. Gentleman accept that he has received an unequivocal assurance from the right hon. Member for Upper Bann that the Ulster Unionist party was not consulted? He has received an equally unequivocal assurance from me that the Democratic Unionist party was not consulted, but he has not got anything like an unequivocal assurance from the hon. Member for Newry and Armagh that the SDLP was not consulted.
There is a difficulty, Mr. Benton. My hon. Friend the Member for Solihull has had to go somewhere else, which leaves me speaking not only on my own behalf, but on behalf of my party. As the acting official spokesman of my party I have been given a brief headed ''Conservatives—points to make''. On the point about this change I have to read the following. Under the heading ''Government Concessions''—I like that bit—it states:
I am afraid that, rather than it being the fault of Sinn Fein-IRA, it seems that we might have been responsible for this. That puts me in a rather uncomfortable position.
It may try to take credit for our achievement on this occasion. However, in case either the right hon. Member for Upper Bann or the hon. Member for East Londonderry are concerned, I must point out that when I say that the Conservative and Unionist party has done something I do not seek to claim the credit for it. It is just that we have not got round to changing our name after some events a few years ago. This puts the blame entirely on my shoulders.
If I were not constrained here I would try to explain all this as best I could. I will simply mention that one of my anxieties about this approach to a problem is that setting up a committee of this sort runs the danger of creating two classes of member: those who have all the information and those who do not. Having been around the world of politics, committees, boards, authorities and ultimately Parliament itself, I know what it feels like to be one of those members who are tagged on to be there when it is necessary but excluded when something interesting or important happens. That is not necessarily a recipe for a harmonious, effective, well-integrated board that includes everyone. Nevertheless it is a concession by the Government to try to meet some of the objections. Indeed my colleagues in the other place argued in favour of it, but I have some concerns about it.
In amendment No. 100 the hon. Member for Newry and Armagh argues for having a committee of seven members rather than five. I would argue the other way round. The more people who are included in a process like this, the greater the risk of a leak. The more people who know something, the more there are to spread it around a bit. I would even question whether five was an adequate number. I certainly would not argue that seven was because that is almost half the board and so one might as well let all of them become involved.
If it is felt that only a few should be involved, it shows that there are genuine concerns in someone's mind—presumably, the Minister's—that a number of members of the board could not be trusted on these occasions. If we have got to that situation, that in itself will cause offence to those who are excluded and would be an argument for including more. However many more are included—seven, eight or nine—someone will still be excluded. Those people will be offended, because of the reasons why they cannot be involved.
I am also concerned—I will not, on this occasion, attribute any of these thoughts or comments to the hon. Member for Newry and Armagh, but will make them as my own—that politicians have something of a reputation for being less reliable than others when it comes to information. Their stock in trade is to try to obtain an advantage. People who seek to use
information in a way that perhaps the Act would not tolerate, are, I believe, called spin doctors.
If we were to go down the committee route, it would therefore seem sensible to me to exclude all of the political appointees to the board. I can only begin to imagine what effect that would have. It would presumably undermine the hon. Gentleman's confidence in the process, so there would be an argument about that.
However, the Act will probably say that the chairman or the vice-chairman of the board should be involved. I would argue that, if we were to go down that route, a sub-committee consisting of the chairman and two non-party political members of the board would be the best approach. I realise that I am an Englishman talking about the best way of doing something from my experience, and I can understand the arguments as to why it would not work in Northern Ireland. However, I worry about that matter, and if the hon. Gentleman wishes to comment on my suggestion, I should be interested to hear what he has to say.
Mr. Mallon rose—
I can never resist temptation. The hon. Gentleman speaks about Northern Ireland in a rather condescending tone, but I can forgive him that—probably. However, he should bear in mind that, in Northern Ireland, the people who represent political parties on the board approach that from a political position. An additional complication is that the chairman and vice-chairman of the Policing Board, for whom I have enormous respect and of whom I would make no criticism, are actually appointees not of the board, but of the Secretary of State, so that reduces the options further.
I ask the hon. Gentleman, since he invited me to comment and I was foolish enough to accept his invitation, to remember something that we all should remember about Northern Ireland, that there is no such thing as absolute independence, because that is not the type of world that we live in. It may, however, be the type of world that the hon. Gentleman lives in, in which case I envy him.
I think that I was trying to make those points. I apologise to the hon. Gentleman if they came across in a condescending way. He should know me well enough to understand that I have always tried my level best to indicate that Northern Ireland is not England.
The only point that I will make in response to the hon. Gentleman's remarks, because you will rise from your Chair quickly if I go too far, Mr. Benton, is that Northern Ireland and England are both part of the United Kingdom, and I believe that we should be taking steps to see to what extent we can develop the same situation in all parts of the UK.
Although I accept and understand that Northern Ireland is different, and that is why I said what I did, I make no apology for trying to determine to what extent Northern Ireland can be brought further into
the mainstream of the UK. That is the future that I would want for the Province, as would the majority of the people who live there. I meant what I said to be a political statement of what I believe, but I did not mean it to be condescending. I know that the hon. Gentleman does not agree with me, but that is what democracy is about.
I shall now comment on amendment No. 92, tabled by the right hon. Member for Upper Bann. He was too modest and too gentle a gentleman to expand on why that amendment would be interesting under certain circumstances. I support the principle behind the amendment, and that is why I was exploring how far down the chain of command information could pass. I believe that, for all the reasons that we have given about sensitivity in the public interest, and the risk to individuals, that sort of information, passed to somebody else, can have catastrophic consequences.
There ought to be some mechanism for determining who is entitled to receive it. It might be by done by grade or category of staff. The right hon. Gentleman has hit on something important: it is not unreasonable to ask to have people positively vetted before they receive information that could have a significant security element. I, too, would be delighted to see members of terrorist organisations having to submit themselves to positive vetting. If they want to be part of the inclusive process—they say that they want all of that so that they can take part—it is not unreasonable to ask them to prove that they are no longer terrorists. One of the best ways to prove that is to be positively vetted. I do not see why anybody should take exception to it.
When the right hon. Gentleman penned the amendment, he was right, and I support him. However, it does not say that the result of the positive vetting has to be positive rather than negative. It is possible for somebody submitted to positive vetting to fail. As the amendment stands, to submit oneself to positive vetting but to fail would meet its requirements. I know that that is not what the hon. Gentleman means, but we should be clear that it should not just happen, it should be satisfactory.
I look forward to hearing what the Minister has to say on Government amendment No. 77 and to catching your eye again, Mr. Benton, if necessary.
May I make some inquiries of the Minister in the context of amendment No. 91, tabled by the right hon. Member for Upper Bann? So far, the debate has taken place entirely with reference, so far as I can see under clause 21(3), to new sub-paragraph (1A)(a), that is to say, in the context of information being supplied to the Committee by the Chief Constable. However, my eye has fallen on new sub-paragraph (1A)(b), which refers to the sub-committee's being able to perform
''such other functions of the Board as may be delegated to it by the Board''—
so the committee of the board, once established, might consider functions other than the handling of sensitive information. I am curious to know from the Minister what those functions might be. I had presumed that the board would have the freedom to set up
committees on an ad hoc basis to consider suitable matters. For example, if a committee wished to consider the ''Code of Ethics'' it would be free to do so.
I wonder whether, by setting up the committee to perform other functions, new sub-paragraph (1A)(b) presents a potential difficulty in that the committee will now have to consider all the other functions and the board will not be able to set up other committees to consider matters other than the handling of sensitive information. If that is so, the board might have a problem in that it might wish to have the flexibility to set up, ad hoc, other committees to handle other matters. However, it will not be able to do that because of the drafting of the Bill; those other matters will now have to be considered by the committee of five people, which will have a set membership that cannot be moved around. When the committee is established, it must have the same five members as the Minister proposes. I am curious to know her response to that point because the drafting is such that the Bill might accidentally contain an element of inflexibility that the Government do not intend.
The final words of the clause state that the committee
''shall as far as practicable be representative of the Board.''
I assume—I should think that the Minister also assumes—that when the board sets up the committee, it will seek to make it representative. Therefore, why did this consideration have to be spelled out in the Bill?
The hon. Member for Spelthorne will be horrified when I tell the Committee that I found myself in broad agreement with much of what he said. I hope that he will not take that as an encouragement to speak at length on other matters, but on this occasion many of the concerns that he raised were very well expressed.
We should not dismiss the fourth page of the hon. Gentleman's briefing because the Ulster Unionist party and Opposition peers in another place raised concerns about the handling of sensitive information; in particular, that which could endanger life. The special committee approach is an attempt to address those concerns; it offers a practical solution to the issue by ensuring that sensitive information that is made available to the board has a small circulation.
It would be wrong of me to fail to respond to the criticism of the right hon. Member for Upper Bann and the hon. Member for East Londonderry. Both of them represent parties that were not consulted on this issue, and I apologise for that. I failed to follow through vigorously enough with regard to the necessity of keeping in touch with those parties that have played a constructive role on the board, alongside the party of my hon. Friend the Member for Newry and Armagh, by largely working together in a consensual way. The right hon. Gentleman has reported and reflected the anger and offence that is felt by members of his party, and I am sure that members of the Democratic Unionist party feel similarly; I am disappointed that this has happened.
Briefings and discussions were conducted in another place. There are no excuses for what happened, but the reasons for the failure to consult fully include the time pressure under which we were operating and the unavailability of the representatives of the party of the right hon. Gentleman at that time, to which he referred. It is also fair to say that the board took a collective view that, on matters such as this, consultation should be with political parties rather than the board, although that does not get me off the hook of failing in the way that the right hon. Gentleman describes.
I am grateful for this opportunity to listen again to the concerns about this matter. The debate has been very useful and constructive. It has revolved around the issue of how we enable the board to carry out its function in a proper and appropriate manner while safeguarding the detailed information that the Chief Constable may have to share with the board from time to time.
The amendments deal with the arrangements for establishing a small committee, as we all know from the previous debate. The thinking behind the clause was to ensure that the most sensitive information could be kept in tight circulation within the board in order to protect it. Members of the Committee will appreciate that restricting circulation to small numbers is an important principle in safeguarding sensitive information, and it seemed prudent to put in place an arrangement that does that. We have already discussed under clauses 9 and 18 the occasions on which the Chief Constable might do that. Essentially, those occasions are in the context of the report requested under section 59 of the 2000 Act or in response to a request for information under new section 33A to that Act, which is introduced under clause 18.
The Government think that there is value in establishing a small group within the board, possibly following a request from the Chief Constable. I do not intend to create a two-tier board, and I was interested to hear the comments about that. It would be an unhealthy development, and would disturb what has so far been a very constructive working board. The creation of such a small group has value and means that sensitive information can be shared without being exposed to wider circulation. That should enable the Chief Constable and the Secretary of State to be more open in the sharing of such information.
Amendment No. 91 is interesting and proposes that the board have discretion over whether to set up such a committee. Of course, if the amendment were made and the board chose not to set up a small committee, the Chief Constable and the Secretary of State could take that into account in deciding the extent to which sensitive information should be shared with the board; it would have been the board's choice, in such circumstances, not to set up the committee. It would then be at the discretion of the Chief Constable and, ultimately the Secretary of State, as to whether that made it inappropriate for sensitive information to be shared.
If we were just dealing with information covered under the grounds of referral in clause 22, as recommended by the Patten report, I would be less concerned about the amendment. However, the Bill provides that other sensitive information that, if disclosed, could put someone in danger—that issue in particular caused concern in the other place—should not form a ground for referral to the Secretary of State, but rather should be shared only with the small committee of the board, thus restricting its circulation. Without a small committee and a further change to re-include that information in the grounds of referral in clause 22, the Chief Constable would have no choice but to share that information with the full board. For the sake of the person whose life could be in danger, I believe that that would be going a step too far.
One possibility might be for the board to have discretion over whether to set up such a committee—that, broadly, is what the right hon. Gentleman suggests—unless specifically asked to do so by the Chief Constable. The hon. Member for Spelthorne made a valid point about requiring the committee to be set up only when it is needed. I understand the sense and value of that, but what should be the trigger for the establishment of such a committee? The right hon. Gentleman for Upper Bann might like to reflect on that in his reply. It may be that the principle of a committee is anathema to his party; that would present a different set of issues. However, if the committee is potentially workable, he might like to consider the matter. I am genuinely interested to hear what Committee members have to say about it.
If the board asks for sensitive information requiring limited distribution, the Chief Constable should not be torn between his statutory duty to account to the board and his other duty to protect information that, if disclosed, could endanger someone's life. Similarly, should the Secretary of State have the power to require the board to set up such a committee? At present, the Bill allows him the discretion to require the Chief Constable to share certain information with the committee rather than with the rest of the board. If no such committee existed, that discretion would be fettered. Is it preferable in such circumstances for the Secretary of State to be forced to choose between withholding the information from the board and sharing it with the full board? Would it not be better for him to have the option of knowing that there would be a small committee with which the information could be shared? It is the consideration of those issues that led us to introduce an amendment in another place.
I have listened to the Committee's views on the proposals, and there may be more to say on it. I am reluctant to support amendment No. 91 as currently framed, but I will reflect further on what has been said and, if appropriate, reconsider for Report.
Amendment No. 92 proposes that all members of the committee should be vetted by the security service. I do not agree with that. It is important that the members of the committee are selected not by a Government agency but by their cross-community
peers on the board. Such selection gives them credibility.
I do not think that amendment No. 92 proposes that the board members should be selected by a Government agency. It says only that steps should be taken to ensure that the people who are elected by their community conform to the reasonable norms of a civilised society, which terrorists do not.
I take the hon. Gentleman's point, but the effect of the amendment would be the same. As members of the board, the duties placed on them would require them to behave responsibly in dealing with such information.
I do not share that view. It is worth remembering that board members also have a duty under the Human Rights Act 1998 not to act in any way that would infringe an individual's article 2 rights under the European convention on human rights. When the Chief Constable has shared with them information, the disclosure of which could put an individual in danger, board members have a duty to protect that individual. That duty is supplemented by the offence that we just discussed in debating clause 20.
I accept the point that a limited amount of information relating to national security may be shared with the small committee and that that is a different category of information. However, it would only be shared at the discretion of the Chief Constable and/or the Secretary of State, both of whom would want to exercise their judgement on how to strike the balance between safeguarding the national interest and ensuring openness and transparency.
As such, there is no fundamental difference from the present position. It is already the Chief Constable's discretion, under the terms of section 59, to decide whether to share such information with the board or to refer the request to the Secretary of State, and it is already the Secretary of State's discretion to decide whether to uphold the board's original request. The creation of the small committee does not change that principle. However, it provides a third option for the Chief Constable and Secretary of State that would keep the sensitive information on a smaller circulation, a situation to which my hon. Friends will be unused. It is an occasion on which size really does matter; it is the size of the committee, not its individual members, that is important.
Amendment No. 100, tabled by my hon. Friend the Member for Newry and Armagh, would increase the committee's size from five to seven members. The value of the small committee is that its membership is significantly smaller than the board, and I agree with the hon. Member for Spelthorne on this point. At five, its membership is significantly smaller than the board, which keeps the circulation of sensitive information to fewer people. The Bill proposes that the committee should have five members, selected by and broadly representative of the board. It also proposes that at
least one of the chairman and vice-chairman should sit on the committee, although given the cross-community nature of their roles, the board might decide that both should sit on the committee. However, that would be a matter for further debate.
On the Minister's point about the cross-community nature of the chair and vice-chair, will she accept that both the chair and vice-chair have been quite explicit about where they are coming from—their community identification? The vice-chair is unequivocally and unapologetically a trenchant and specific nationalist, but the chairman has specifically said that he is not to be described as a Unionist.
I acknowledge that, but the chair and vice-chair have often been involved on occasions when the board has developed a small committee to address an issue. An effort has been made to ensure that each political party is represented and that a reasonable spread of politically independent members is included. However, a committee of seven board members would go too far, and I cannot support my hon. Friend's amendment. However, as with amendment No. 91, I shall reflect further on points made in the debate.
The hon. Member for Wycombe asked which functions would be affected. We had nothing specific in mind other than giving the board flexibility to task the committee with other work if it so chose. The provision will not override the board's existing powers to set up committees under paragraph 24 of schedule 1 of the 2000 Act.
I wonder about the possible effect that the process of choosing, selection or election—whatever it may be—of five members of the board could have on the board's operation, given its composition. Will the Minister tell us the means by which the decision will be made? She said that vetting is out, and I agree with that totally. However, that could lead to another form of lobbying, which in turn could lead to horse-trading, which might be very dangerous. I am worried about that—has the Minister given it any thought?
Indeed I have. I know that the board has drawn together small numbers of its larger membership to deal with difficult issues. The board has established the balance to which I referred by consensus among its members. My views on the shape of the committee and the mechanism that would trigger it are not set in stone and I have found the debate valuable. We have not worked through the way in which the process would operate—the board would largely determine that. It would bring together a small committee chosen by its peers—the board members.
The debate has been far wider than I expected when I prepared my response but I am grateful for the views expressed. I hope to return to the matter on Report.
Before my right hon. Friend the Member for Upper Bann winds up the debate, may I
say that I would be willing to go for the jugular of some Government Ministers, but not others? On this occasion, I ask the Minister to reflect carefully. Did I understand her correctly? When I talked about positive vetting, I pointed out that the changes that were being resisted would exclude terrorists. I did not say ''ex-terrorists'' or ''reformed terrorists''; I said that it would exclude terrorists. The Minister, if I heard her correctly, said that it would. I asked whether the intention was to allow in terrorists—not ex-terrorists or former terrorists. Even in a good-humoured Committee in which there is a good exchange of friendly views, there comes the odd moment when something like this is said. Whether I have misunderstood what was said or whether it was a slip of the tongue, I would like to get the matter clarified. Hansard will say tomorrow that a Government Minister said that it is their intention to allow terrorists into the process. That is what I think I heard. Rather than wrongly accuse the Minister, I would like to her reflect and to put the record straight.
I was referring to the hon. Gentleman's analysis of my opposition to the vetting arrangements. It is important to bear in mind that paragraph 4(5) of part 11 of schedule 1 to the 2000 Act states:
''The Secretary of State may remove a person from office as a member or as chairman or vice-chairman of the Board if satisfied that—
(d) he is not committed to non-violence and exclusively peaceful and democratic means.''
If it became clear that there was such a person on the board, it would be perfectly within the power of the Secretary of State to remove him from it. I hope that that allays the hon. Gentleman's anxieties. It certainly was not my intention to put anything on the record that was not strictly accurate.
I took the opportunity during the debate to refresh my mind on what exactly went on in the other place. What the Minister said about the origin of the clause does not give the whole truth of the matter. In another place, representatives of my party and of the Conservative party expressed considerable concern about the changes to allow disclosure of additional material to the court. We have argued against the changes proposed in the legislation that tilt the disclosure balance more in favour of the board and diminish the ability of the Secretary of State to resist disclosure. Such changes could put the Chief Constable under considerable pressure to disclose highly sensitive material.
Noble Lords in the other place argued the same point, and the Government said that it was partly in response to those concerns that they were introducing this clause. That is not to say that this clause and its contents were introduced at the request of my hon. Friends or by representatives of the Conservative party in another place. A subtle shift is seen in that. There was no consultation on how to deal with those concerns, and my noble Friend Lord Maginnis of Drumglass took exception to that when the matter was raised in the other place. There is a subtle distinction
between what the Minister presented and what actually happened.
The Minister acknowledged that the Policing Board was not consulted, nor were persons on the board. Friends on the Policing Board representing my party took grave exception to the proposal, just as they do not agree with the disclosure provisions in the Bill. My friends on the Policing Board are not pressing for those disclosure provisions. I suspect that the same is true of the representatives of the Democratic Unionist party. The disclosure provisions are a result from pressure from another quarter. Consequently, the committee, which results from those pressures, can be traced back to that quarter too.
I do not know the precise genesis of the idea of a committee. I asked the Minister to tell us a bit more about that, but she did not do so. Perhaps she will reflect on that at some point. She has offered an olive branch, and I do not wish to spurn it, so we shall see what can be done to consider the matter more closely. However, I think that the concept of the committee is bad.
I am indebted to the hon. Member for Newry and Armagh for jogging my memory about the provisions in subsection (3), on which the hon. Member for Wycombe, too, dwelt at some length. I am glad that the hon. Gentlemen did that, because the provisions are dangerous. There is provision in legislation for the Policing Board to form committees, and it has formed a large number of committees that are functioning well. However, there is no provision under existing legislation for functions of the Policing Board to be delegated to a committee. The committees that the Policing Board has so far formed are considering matters that will then be brought back to the board as a whole. There is a considerable danger that functions will be vested in a committee, and that the committee will then discharge part or all of the functions of the Policing Board. That is not a good idea.
One of the things that I might welcome were it not for a certain distaste for the source of the idea is the fact that the report was rightly critical of the Police Authority in that respect. As far as I can recall, Patten does not touch on that aspect of the old Police Authority. The old Police Authority tended to operate in a way that the clause would permit. The chairman and a few senior members of the board of the authority did the real work. The membership of the authority generally had little input into what happened, and they were frequently excluded by decisions being taken elsewhere. The provisions in question open the door to exactly replicating some of the vices of the old Police Authority within the Policing Board.
I am glad that other hon. Members have jogged my memory and I urge the Minister, in reflecting on the matter again, to think very hard about proposed new subsection (1A)(b) of the 2000 Act detailed in subsection (3), about which I am fairly certain my friends on the Policing Board would be upset. They would not want a situation to arise whereby functions of the Policing Board were transferred to, and discharged by, a five-man committee, which would be able to exercise those functions without reference to
the board as a whole. That would go some way towards recreating some of the vices of the old Police Authority, which would be a bad thing.
I emphasise that aspect of the provisions, which is not necessary for the function that the Minister advanced as a reason for having the committee. She touched on that only to say that there would be greater flexibility. However, flexibility might be used as an excuse for introducing something that in the long run would entirely change the character of the Policing Board, and that would be bad. The Minister should return to that.
I think that the concept of the committee is wrong in principle because of the creation of two separate classes of member. However, it is also wrong because it has been created simply to handle material that should not be before the board in the first place. If there is a need to ensure the confidentiality of that material, that underlines our concerns about the disclosure provisions and the lack of safeguards elsewhere. Rather than introduce the committee, it would be much better if the Minister were to reconsider the information disclosure provisions generally, and perhaps follow through on the suggestions that she made on how the provision would be modified.
Because the Minister indicated a willingness to think further on the matter and because I have presented the arguments on the provisions of subsection (3) to her for the first time, I do not think that it would be appropriate to press the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 77, in
clause 21, page 14, line 41, at end insert—
'( ) handling information supplied to it by a person conducting an inquiry under section 60 or by a person who is assisting or has assisted in the conduct of such an inquiry;'.—[Jane Kennedy]
Clause 21, as amended, ordered to stand part of the Bill.