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Baroness Farrington of Ribbleton moved Amendment No. 145:

The noble Baroness said: Amendment No. 145 strengthens the requirement on officers to adhere to the code of ethics. It changes "have regard to" to "be guided by".

A number of commentators on the Bill expressed concerns that the code of ethics will not have teeth. That is far from the case, as the Secretary of State is already obliged under Clause 50 to reflect the code in discipline regulations. However, the Government and the chief constable were prepared to go the extra mile to reassure those who had concerns and tabled Amendment No. 145 accordingly. In our view, that is as far as we can reasonably go with what is, after all, a code and not legislation.

In the light of previous experience I shall reply to Amendments Nos. 146 and 147 after they have been moved. I beg to move.

Lord Archer of Sandwell: My noble friend resisted the temptation on this occasion to eat the egg before it was laid. Perhaps I can say a word on Amendment No. 147, though I believe I know what her reaction will be.

First, I am a little puzzled by what she said in relation to Amendment No. 145. My noble friend seems to think that "be guided by" is in some way stronger than "have regard to". One could debate that at length. Some Members of the Committee are

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grammarians by profession. But I am not sure it is self-evident. I would have preferred something a little stronger.

At the moment the Bill simply requires the Chief Constable to "have regard to" the policing plan. Amendment No. 147 seeks to impose a stronger restraint. It requires him to "comply" with it. That is hardly a draconian restraint on his discretion. After all, if we look at Clause 26, we see that the chief constable himself is to draft the policing plan and the board may amend it, but only after consulting him. To say that after that he need do no more than be "guided" by it, seems to reduce the exercise almost to a charade.

It seems from Clause 27 that the code of practice is envisaged primarily as a matter of financial and managerial controls. And even that is not to be issued before consultation. Both processes represent a carefully considered balance before either document sees the light of day. Is the Chief Constable then required to be no more than "guided" by them? Presumably, if he shows that he had regard to them or was guided by them and then took the view that the best course was to ignore them, no Secretary of State, no court, no authority may second-guess him.

If the fear is that the restraints and safeguards may prove to be too rigid; that there may be unforeseen situations where the Chief Constable's writ should run unfettered, Amendment No. 147 at least suggests a solution. He would then be free to shed the bridle. However, it would require him at least to persuade the board of the necessity to depart from it. Surely, that is hardly likely to reduce him to inactivity and I hope that my noble friend will at least consider that.

10.45 p.m.

Lord Cope of Berkeley: As regards the difference between the two phrases in Amendment No. 145, I believe that to have regard to something is to look at it. The Chief Constable could say that he looked at the code of ethics of policing plans but then did something else. It therefore seems to me that to "be guided by" strengthens the provision.

The Minister is proposing to strengthen the Bill with respect to police officers and the code of ethics but not with regard to the chief constable either in respect of the policing plan or any code of practice. Therefore, the noble and learned Lord, Lord Archer, suggests that he should "comply with" it, unless he has agreed with the board that he need not. That proposal goes a little further and slightly reduces the Chief Constable's freedom of manoeuvre. From time to time, he may need to act quickly and I am not sure that he will always have time to obtain the board's approval to vary the policing power.

That point is more important to policing in Northern Ireland than perhaps in other parts of the United Kingdom because the situation can change quickly and become extremely fraught. The chief constable might need to bend the policing plan or code

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of practice. He would be responsible for that and be answerable to the board under the general provisions but he needs flexibility of movement, particularly in tight situations.

Baroness Farrington of Ribbleton: I thank the noble Lord, Lord Smith of Clifton, for acknowledging that government Amendment No. 145 meets his objective in Amendment No. 146 and he will therefore not move it.

It is true that lawyers could debate at great length the difference in meaning between the phrases "guided by" and "have regard to". The Government's legal advice is that, as noble Lord, Lord Cope said, "guided by" is a stronger formulation. Furthermore, it could cost a great deal of money to have the noble Lord's lawyers debate the issue.

Amendment No. 147, tabled by my noble and learned friend requires the chief constable to comply with the policing plan and any codes of practice issued by the Secretary of State unless he has the approval of the policing board to do otherwise. The provision as it currently stands requires the chief constable to have regard to both the plan and the codes of practice. Of course we want the chief constable to do his best to implement both the policing plan and the codes of practice and I agree that there will be full consultation and involvement of the chief constable in that process. However, rigid compliance could undermine the chief constable's operational independence. The Patten report stated that that must be maintained in Recommendation 24 and that neither the policing board nor the Secretary of State should have power to direct the chief constable.

In any event, it is not realistic to suppose that the planning process will foresee every possible eventuality, which is why the Chief Constable must be permitted room for manoeuvre. There is a point at which that professional judgment may well have to be exercised in circumstances which cannot be foreseen in detail. Similar arguments apply in respect of codes of practice which, by their nature, are not legally binding in the same way as subordinate legislation. I hope that that satisfies my noble and learned friend and that he will feel able not to press his amendment.

Lord Archer of Sandwell: I am not sure that my noble friend's response wholly satisfies me, but I do feel able not to press the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 146 not moved.]

Clause 32, as amended, agreed to.

Clause 33 [General functions of Chief Constable]:

[Amendment No. 147 not moved.]

Clause 33 agreed to.

Clauses 34 to 36 agreed to.

Clause 37 [Appointments to the Police Service of Northern Ireland Reserve]:

Lord Archer of Sandwell moved Amendment No. 148:

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    Page 18, line 30, at end insert--

("(4) Any person appointed to the Police Service of Northern Ireland Reserve shall serve only on a part-time basis.").

The noble and learned Lord said: Of all the provisions of the Bill, recruitment is probably the area which gives rise to the most serious problems, as we have seen in earlier debates. The Government tread a minefield. It is here that people are most jealous, suspicious, unwilling to make concessions and ready to explode into anger. I believe that the Government have done their best to address the problems fairly, and I do not wish to upset that balance. However, it would be a pity if avoidable problems arose. In paragraph 14.12 of its report the Patten commission sought to address the problem of the part-time reserve. In many cases this is a useful bridge by which the force and the professional constabulary on the one hand maintain their links with the local communities on the other. They in turn develop an insight into the problems of policing.

At present there is a full-time reserve and part-time reserve. The first question which will be asked in any conversation is how the two traditions are represented in each. It is with some hesitation that I quote statistics because I appreciate that I may be challenged on the source. Such challenges could be exchanged all evening. (I once saw a document entitled The House of Lords broken down by age and sex, and since then I have rather suspected statistics.) As I understand it, 8 per cent of regular officers are Catholics, and for the full-time reserve and part-time reserve the figures are 7 per cent and less than 5 per cent respectively. The Patten commission observed that in whole areas which are predominantly nationalist Catholics are totally unrepresented in the part-time reserve.

The commission pointed out that a great opportunity was being missed to establish effective community policing, particularly bearing in mind the high proportion of women in the part-time reserve. The commission recommended the phasing out of the full-time reserve over three years, after a reasonable period of notice as contracts expired. The purpose of this amendment is simply to give effect to that recommendation. I am not sure whether such a provision was left out of the Bill by oversight, but if it was deliberate I hope that my noble friend can explain why the Bill does not appear to envisage acceptance of that recommendation. I beg to move.

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