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Standing Committee E
Tuesday 25 February 2003
(Afternoon)
[Mr. Roger Gale in the Chair]
Clause 17
Chief Constable's functions
Question proposed [this day], That the clause stand part of the Bill.
2.30 pm
Question again proposed.
The Minister of State, Northern Ireland Office (Jane Kennedy): On a point of order, Mr. Gale. I wish to let members of the Committee know that I have placed on the Table near the entrance to the Room the information about the Policing Board that was requested this morning.
The Chairman: That is not a point of order for the Chair. However, the Committee will note the hon. Lady's comment.
Mr. David Wilshire (Spelthorne): On a point of order, Mr. Gale. If my memory serves me correctly, you prefer a request to remove jackets before we actually do it. Is it in order to do so?
The Chairman: While I am in the Chair, members may take it as read that they have permission to remove their jackets. I would not interfere with their creature comforts.
Mr. John Taylor (Solihull): I had not made much headway before this morning's sitting ended. I thank the Minister for kindly and so promptly providing the list of the board members. It is useful, and it helps us realise, when we are talking about the board, that real people discharge its difficult function. We wish them well in their work.
As the morning sitting ended, I was speaking to clause 17 stand part, there being no tabled amendments. I wanted to draw the Committee's attention to the wording of the 2000 Act. I am sorry that it does not have a more felicitous title. I suppose that I could call it the Police (Northern Ireland) Act 2000, but it is more convenient to call it the 2000 Act.
Section 33 of the 2000 Act is very clear. In fact, it is an admirable piece of draftsmanship. It states:
''The police shall be under the direction and control of the Chief Constable.''
That is a fairly straightforward statement. The section then states:
(b) any code of practice under section 27.''
That seems clear, as well.
However, along comes the Bill, and section 33 is subtly—or perhaps not—rewritten. It is restated that the two priorities of the Chief Constable are the
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policing plan and any section 27 code of practice, but instead of just saying that he shall have regard to both, it goes on to state:
''The duty under subsection (3) applies only so far as consistent with the duty under subsection (2).''
In effect, that means that the policing plan is to have priority if there is any variation between the policing plan and the code of practice. The 2000 Act gave the Chief Constable two considerations to bear in mind, and the Bill prioritises them.
It may be thought that that is not a point of great significance, but perhaps we should consider who brings into being, on the one hand, the policing plan and, on the other, the code of practice. The code of practice is brought into being by the Secretary of State; the policing plan is brought into existence by the board. The code of practice—author, the Secretary of State—is now subordinated to the policing plan—author, the board. That is another shift in the tripartite balance between the Secretary of State, the Policing Board and the Chief Constable. Opposition Members do not like that shift. We were happy with the previous equilibrium.
I dare say the hon. Member for Newry and Armagh (Mr. Mallon) will say that I am speaking to the purposes that he wishes to see fulfilled. He is an honest man in that regard, and I dare say that he will follow me and say exactly that. I believe that he would subscribe to the view—he can speak for himself; I do not speak for him—that he wants a more elevated role for the board and that members of the nationalist persuasion in Northern Ireland want a diminished role for the Secretary of State. I understand that and I disagree with it.
Mr. Seamus Mallon (Newry and Armagh): I, too, welcome you to the Chair, Mr. Gale, and thank you for the leniency with regard to jackets. It was just a pity that it did not apply to ties.
I spent some time prior to the lunch break trying to establish the difference in legal terms between ''take account of'' and ''have regard to''. I was working on the assumption that, with the legal expertise that surrounded me, there would be a clear answer that I, as a lay person, should have seen long ago. I still await that. I have no doubt that the Minister will try to put the matter right when she replies.
I believe that that is important because, in relation to the clause, the revised implementation plan—in other words, that which stemmed from Weston Park—states on page 9:
''The Government intends, after the planned review, to amend the Act to provide that the Chief Constable shall take account of the policing plan.''
The phrase ''take account'' has been used in other parts of the Bill, but the clause contains the term ''have regard to''.
I listened with interest to what the right hon. Member for Solihull (Mr. Taylor) said about the juxtaposition—
Mr. Taylor: With your permission, Mr. Gale, I should clarify that I do not enjoy the title ''right
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honourable''. I am content to be the hon. Member for Solihull.
Mr. Mallon: I apologise to the hon. Gentleman.
Mr. Taylor: I am flattered.
Mr. Mallon: Like me, the hon. Gentleman seems to be promotion-proof.
Part of the problem in relation to the words is the actual functions. The hon. Gentleman rightly looked at the juxtaposition of words in clause 17 and section 33 of the 2000 Act. It is quite clever; it may be a little clever by half. However, again I await clarification. Clause 17(2) states:
''The Chief Constable shall have regard to the policing plan in discharging his functions.''
Section 33 provides:
''In discharging his functions, the Chief Constable shall have regard to . . . the policing plan''.
That is fairly clear. The difference arises in relation to the code of practice. However, I disagree with the hon. Member for Solihull, because clause 1 recognises that the code of practice would be agreed between the Chief Constable, the Secretary of State and the Policing Board. Therein lies a difference. I have no great axe to grind on the clause, but in the interests of clarity I would like to seek advice from the Minister as to what the substantive difference is between ''taking account of'' and ''having regard to'' especially as it is already a matter of some contention, and we are only on the third clause. I wait for that clarification. I am very interested to hear it, and I look forward to hearing its implications, especially in relation to clauses 2, 3 and 4.
Mr. Paul Goodman (Wycombe): I, too, would like some elucidation from the Minister, though she will perhaps be relieved to know that the clarification that I seek does not apply to the phrases ''taking account of'' or ''having regard to''. The hon. Member for Newry and Armagh has already received an explanation from my hon. Friend the Member for Solihull, and the right hon. Member for Upper Bann (Mr. Trimble). I wish the Minister success where they so far have apparently failed. The elucidation that I seek applies to subsection (4) of clause 17, which reads:
''The duty under subsection (3) applies only so far as consistent with the duty under subsection (2).''
My hon. Friend the Member for Solihull has already explained cogently the difference between the policing plan and the code or practice, and their origins. Perhaps the Minister could describe ways in which the code and the policing plan might be inconsistent. In subsection (4), a greater weight is placed on subsections (2) and (3). It may be that the Minister is anticipating some inconsistency, and it would be helpful if the Committee could learn what that is.
Mr. Wilshire: When the hon. Member for Newry and Armagh referred to taking off ties, I looked at his tie, and I thought that it was rather nice. I did not see why he should be worried about it. Then I realised what he really meant, and I can only say that he should count himself lucky that he did not sit on the Committee that considered the Proceeds of Crime Bill.
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That took 36 sittings, and so he would have had to suffer another 34. I can only say that my current tie is the most modest, and that they get worse.
Section 33 is, as my hon. Friend the Member for Solihull says, quite sensible. My hon. Friend uses language in his usual modest way that is meant to chide the Government gently. I prefer somewhat more robust language. I think that the change is dreadful. We are now saying that the Secretary of State shall no longer be the person who determines such matters. If there is a disagreement between the Secretary of State and the board, it is the board's view that prevails. We discussed something along those lines this morning, so I shall not repeat all that I said.
2.45 pm
During an earlier debate, the Minister said that it was important that the board should not be hamstrung by the Secretary of State. I think that I have got that right. My view is, ''Oh yes, it should.'' Most certainly it should. In a sovereign state, in terms of policing, if there is a disagreement between a local committee—which is what the board is, in effect—and the Government, the Government's view should prevail. The clause that they want us to support would fundamentally undermine that. In future, in England, the Home Secretary will prevail in matters of dispute between himself and a police authority whereas in Northern Ireland, it will be the exact opposite.
Ross Cranston (Dudley, North): I shall gently chide the hon. Gentleman. He is proceeding on a faulty premise. Section 33 does not say that a code or the policing plan will prevail. It does not say which will prevail. That is the purpose of the clause—to make it clear that one, rather than the other, will prevail.
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