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Page 34, line 3, leave out ("shall") and insert ("may").

The noble Lord said: My Lords, it is suggested that with this amendment we should also discuss Amendment No. 3. The rather interesting Clause 64 under which the Secretary of State may make certain regulations, and particularly subsection (2), under which the Secretary of State is required to make certain other regulations, brings into the debate the dreaded figure of Henry VIII to loom over us.

Amendment No. 2 suggests that the Secretary of State, instead of being obliged to make the regulations set out in subsection (2), should have the power to do so. It is a modest amendment; nevertheless, it seems worth bringing to your Lordships' attention. There are 14 parts to the regulations the Secretary of State is obliged to introduce under subsection (2). I am not sure that that amounts to 14 sets of regulations; certainly, however, there are 14 elements. I am not quite sure by when he would be obliged to bring them in; he is merely obliged to bring them in. Presumably that does not mean by the time of Royal Assent; perhaps the commencement Act will state when. That is odd when applied, for example, to paragraph (e) which states that the Secretary of State shall, by regulation, provide,

of the Bill--not every requirement, but "any requirement". That seems to me to be an extraordinarily wide power.

Lord Mishcon: My Lords, excuse me for interrupting, but the words are,

    "any requirement of this Part",

of the Bill.

Lord Cope of Berkeley: My Lords, I beg your pardon. Yes, it is "any Part" of the Bill. If that is not what I said, it is what I should have said, and I accept the correction.

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If all these sets of regulations are to be required from the Secretary of State, it would have been a good idea if some of them had been put in the primary legislation.

Amendment No. 3 goes particularly to paragraph (l) in subsection (2), which requires the Secretary of State to make regulations so that,

    "the Chief Constable shall have power to delegate any functions conferred on him by or by virtue of this Part"

of the Bill--that is, the part dealing with the ombudsman. It seems to me odd that the Secretary of State must make regulations giving the chief constable the power to delegate. There are earlier clauses in the Bill which allow the chief constable to appoint someone to act in his place in various other circumstances. I am interested to know why it is regarded as essential that the Secretary of State should make regulations of this kind at this point and why these powers have not been put into the primary legislation instead of being left to regulations, thus obliging your Lordships' House, apart from anybody else, to consider all these matters again when the various sets of regulations come before us. An enormous number of sets of regulations regarding Northern Ireland flow from the overall structure of legislation in the Province and this Bill provides for an enormous increase in the number of such regulations.

Lord Molyneaux of Killead: My Lords, I am happy to support the amendments of the noble Lord, Lord Cope. His final point referred to the chief constable having power to delegate any functions. With great respect to the chief constable and his immediate subordinates, I believe that that is a provision that we ought to look at very closely. There are circumstances in which such a power could be undesirable. I am not thinking in this regard of any given chief constable or any given subordinate, but my experience in dealing with chief constables over decades, more latterly as a Privy Counsellor, has given me an insight into functions which are not apparent to the general public. There is, for example, the relationship with the Secretary of State and the minister responsible for security in the Northern Ireland Office. I imagine that that would not be the kind of situation that one would expect in the case of the Metropolitan Police.

To some extent, when faced with a crisis--and I have been at least on the fringes of many of them--the chief constable, the Secretary of State and the minister for security work as a kind of trio. Given their overlapping powers, I do not see how it could be otherwise. The Chief Constable of the Royal Ulster Constabulary is in a real sense the chief security adviser to the Secretary of State. He has to a great extent--and the House may be a little alarmed by this news, although it should have been apparent--a degree of jurisdiction over the Army, which does not come under the Northern Ireland Office. Again, I am not thinking of personalities, but I take the view that it would be unwise to regard this situation as

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comparable to that of a fairly minor constabulary anywhere else in Great Britain. We are dealing with a key appointment. The chief constable rightly has access to state secrets and is in close co-operation with the elected Secretary of State and the elected minister for security. We should consider carefully whether we want those onerous duties to be shared with a subordinate of the chief constable.

Lord Holme of Cheltenham: My Lords, I have a great deal of sympathy for Amendment No. 2 moved by the noble Lord, Lord Cope of Berkeley, to substitute "shall" in line 3 on page 34 with "may". I shall listen closely to the Minister's response as to why the mandatory verb is essential here.

I think that the noble Lord, Lord Cope, and I part company as regards Amendment No. 3 to delete lines 46 and 47. I think I may agree with the noble Lord, Lord Molyneaux of Killead, on this point, although I am not sure that I am clear about the final line of his argument. These are onerous responsibilities, whether they are mandatory or conditional. I think that, as a matter of practical administrative procedure, it is unlikely that, should the Secretary of State need to make these regulations, he would not want the chief constable to have power to delegate some of the functions conferred on him.

Lord Dubs: My Lords, before I deal with Amendments Nos. 2 and 3, I should like to correct an error I made in dealing with Clause 64(2)(e) in Committee. Hansard was accurate and I was not.

Clause 64(2)(e) states that the Secretary of State shall by regulations provide,

    "for enabling the Ombudsman to dispense with any requirement of this Part".

It replicates Article 19(2)(e) of the Police (Northern Ireland) Order 1987.

In Committee I said that it would enable the ombudsman to ask the Secretary of State to remove a provision if it was not working well or was particularly onerous. That is not, I am afraid, entirely accurate. The subsection is targeted at the Secretary of State regulating to enable dispensation by the ombudsman from the full rigours of the part of the Bill. It would not be used to remove a whole provision.

It may be helpful if I give your Lordships an example under the existing legislation. The example will undoubtedly be repeated in regulations under the Bill. Under Regulation 17 of the Royal Ulster Constabulary (Complaints etc) Regulations 1988 the commission may, if requested to do so by the appropriate authority (which means the chief constable or police authority),

    "dispense with the requirements mentioned in paragraph (1)".

In other words, where a complaint is anonymous, repetitious or vexatious, or it is not reasonably practicable to complete the investigation of a complaint, then the commission, on application by the appropriate authority, can decide that the requirements of the order should be dispensed with. The

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investigation would be curtailed. Obviously this makes sense. The provision would apply, for example, if a complainant made the same allegation several times or failed to provide any evidence to back up the complaint. The ombudsman may conclude in these circumstances that there is no purpose in a full investigation. The regulation-making power is, therefore, necessary, and has been used in the past. I apologise to noble Lords for not describing its purpose accurately in Committee.

The noble Lord, Lord Cope, has tabled two amendments to Clause 64. First, he seeks to substitute "may" for "shall" in Clause 64(2). The effect of this would be to make it purely discretionary for the Secretary of State to make regulations for the procedures to be followed by the ombudsman when dealing with a complaint. However, the whole ombudsman system would not work unless regulations of the type listed in Clause 64(2) are made. It must be a duty on the Secretary of State to provide regulations for the handling of complaints, informal resolution, and so on. Indeed, the current formulation is the same as that in the Police (Northern Ireland) Order 1987 for the Independent Commission for Police Complaints and that in the Police Act 1996 for the Police Complaints Authority. I therefore ask the noble Lord to withdraw his amendment.

I now turn to the second amendment, which seeks to delete the provision in Clause 64(2)(1) allowing the chief constable to delegate his functions under this Part of the Bill to another senior officer. I mentioned this point in Committee. This provision is necessary, as otherwise the Chief Constable would have to do everything personally. It is not a new provision. It is seen in Article 19 of the Police (Northern Ireland) Order 1987 and Section 81 of the Police Act 1996.

The power has been used in regulations deriving from the 1987 Police (Northern Ireland) Order. The RUC (Complaints, etc) Regulations 1988 provide that the Chief Constable may delegate the provisions in Articles 4 to 14 of that order, which relate to the handling and investigation of complaints and disciplinary proceedings to the deputy chief constable or an assistant chief constable. The regulations also provide that the chief constable may delegate all or any of his functions or duties in relation to the informal resolution of complaints to a member of at least the rank of chief inspector.

Perhaps I may turn briefly to the specific points made by the noble Lord, Lord Cope. He asked whether we need 14 sets of regulations. We do not believe that we do. But it is envisaged that there will be a number of regulations covering the framework for dealing with complaints. That is a similar arrangement to the existing one found under the Police (Northern Ireland) Order 1987 for the Independent Commission for Police Complaints. The regulations will commence when that part of the Bill commences.

The noble Lord, Lord Molyneaux, suggested that it may be undesirable for a chief constable to delegate. But the power is for the Secretary of State to

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make regulations on complaints issues. The examples I mentioned show the limited extent of the delegation that we intend. I am sure your Lordships will agree that the regulation-making power serves an important purpose and I therefore ask the noble Lord to withdraw his amendment.

4 p.m.

Lord Mishcon: My Lord, before my noble friend sits down, I apologise for not even whispering notice that I would make this point. However, the House did not know that he would give that explanation of the meaning of one of these provisions when he gave his explanation in Committee.

Am I not right in thinking that some consideration ought to be given to the wording of paragraph (e) of Clause 64, which states that the Secretary of State shall provide regulations,

    "for enabling the Ombudsmen to dispense with any requirement of this Part"?

The argument that my noble friend worthily put forward relates to paragraph (l), which says that,

    "the Chief Constable shall have power to delegate any functions conferred on him by or by virtue of this Part".

Would it not be perfectly proper for the ombudsman to say that he can dispense with that requirement because it is a "requirement of this Part" of the Bill? Perhaps the Minister will look at that point between now and Third Reading.

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