Select Committee on Delegated Powers and Deregulation Twenty-Seventh Report



ANNEX 1

Police (Northern Ireland) Bill

1. This memorandum identifies the provisions of the Police (Northern Ireland) Bill which confer power to make delegated legislation. It explains the purpose of the powers and the reason why the matter is left to delegated legislation.

2. All powers to make subordinate legislation in the Bill are exercisable by statutory rule of Northern Ireland and are subject to annulment in pursuance of a resolution of either House of Parliament (clause 72(4)). This is consistent with the manner in which existing subordinate legislation on policing is made under the Police (Northern Ireland) Act 1998 and preceding legislation. Codes of practice and guidance are also covered but not Secretary of State powers to direct, set terms and conditions, terms of reference or objectives. Although delegated powers are subject to the negative resolution procedure there are a great many specific requirements for consultation associated with each of the delegated powers. We have considered each power to make delegated legislation and believe that the negative resolution procedure is the appropriate form of Parliamentary scrutiny.

Purpose of the Police (Northern Ireland) Bill

3. The purpose of the Bill is to implement the recommendations of the Independent Commission on Policing for Northern Ireland (the "Patten" Commission) in its report "A New Beginning: Policing in Northern Ireland" (9 September 1999) which have been accepted by the Government.

Powers

CLAUSE 5(1): POWER TO TRANSFER POLICE SUPPORT STAFF TO EMPLOYMENT OF POLICING BOARD

4. The power replaces, with only consequential changes, the Secretary of State's existing power to make regulations to transfer police support staff under section 4(1) of the Police (Northern Ireland) Act 1998. The power continues to be necessary to enable transfers of civil servants engaged in providing administrative, secretarial or other assistance to the police, but the detailed arrangements and precise timing of any transfer remain subject to consultation with the staff affected.

CLAUSE 15(2): ORDER TO EMPOWER THE POLICING BOARD TO CARRY OUT FUNCTIONS OF A DISTRICT COUNCIL IN RELATION TO THE ESTABLISHMENT OF A DISTRICT POLICING PARTNERSHIP

5. Clause 14(1) requires district councils in Northern Ireland to establish district-policing partnerships (DPPs) for their areas. If the Secretary of State is satisfied that a council has failed to establish a DPP or has failed in some particular aspect in establishing the DPP he can direct the council to take remedial action (clause 15(1)). If the council fails to comply with a direction the Secretary of State may make an order empowering the Policing Board to carry out the district council's functions. This is a proportionate and flexible default power. It is a necessary safeguard to ensure that the Bill's provisions for establishing new arrangements for local policing accountability will be implemented.

CLAUSE 19(1): BOARD'S CODE OF PRACTICE FOR DPP

6. This provides for the Policing Board, with the consent of the Secretary of State, to issue a code of practice to DPPs on the exercise of their functions. Clause 16(2) requires DPPs to have regard to the code of practice. The code is necessary to facilitate consistency and standards in matters of detail across Northern Ireland's 26 district councils. There is no parliamentary procedure but consultation with the district councils and the Chief Constable is required.

CLAUSE 26(2): POWER TO MAKE REGULATIONS AS TO THE CONTENTS OF THE POLICING BOARD'S POLICE PLAN.

7. The Policing Board's plan sets out the objectives and priorities for policing (clause 26(1)). The regulation-making power under clause 26(2) enables the Secretary of State to prescribe what matters should be covered by the plan - effectively its minimum contents. A draft of the regulations was placed by the Government before the Commons Committee during consideration of the Bill.

8. The Patten report recommended simplification of existing police planning legislation (Part II of the Police (Northern Ireland) Act 1998) and that the Secretary of State's involvement should be at a higher level so that the new Policing Board would have primary responsibility for planning. The specification of matters which the Board must cover in its plan by means of the regulations facilitates the implementation of both these recommendations. It also confers a degree of flexibility in that some matters - civilianisation or police appraisal systems, for example - may be matters which should be addressed as priorities but do not need to be permanently enshrined in legislation.

CLAUSE 27(1): CODE OF PRACTICE ON POLICING BOARD'S FUNCTIONS.

9. This provision enables the Secretary of State to issue a code of practice to the Policing Board on any of its functions and to the Chief Constable on finance, resource, planning and efficiency matters.

10. The Board and the Chief Constable are required to have regard to the code (clause 3(4)(c) and 33(2)(b)). Clause 27 replaces section 38 of the Police (Northern Ireland) Act 1998 which had the same effect. The new provision makes it clear that the code applies to the Chief Constable as well in those areas listed. One code - on detailed financial delegations and procedures - has been issued under section 38 of the Police (Northern Ireland) Act 1998. Similar arrangements will continue to be needed in respect of the new Policing Board. There is no Parliamentary scrutiny of the codes.

CLAUSE 28(1): ORDER SPECIFYING ARRANGEMENTS TO BE MADE BY THE BOARD AND THE CHIEF CONSTABLE TO SECURE CONTINUOUS IMPROVEMENT OF FUNCTIONS.

11. This provision enables the Secretary of State to make an order specifying the arrangements for the Policing Board and the Chief Constable to review the effectiveness of their functions, measure their performance and issue a performance plan. These are detailed matters of strategic management where the emphasis will be subject to change. The order-making power combines the flexibility required with the necessary control.

CLAUSE 41(3): TERMS AND CONDITIONS OF POLICE TRAINEES AND POLICE RESERVE TRAINEES

12. This provides for the Secretary of State to make regulations adapting existing regulations which set out the terms and conditions of police officers to the new category of police and police reserve trainees created by clauses 39 and 40 of the Bill. Police and police reserve trainees will have similar terms and conditions to police officers but will not have the powers of a constable (Patten recommendation 136). Hence the need for detailed regulations to adopt and modify police officers' terms and conditions.

CLAUSE 43(1): CONTRACTING OUT OF CERTAIN RECRUITMENT FUNCTIONS

13. This enables the Secretary of State to make regulations concerning the appointment of a person to carry out recruitment functions for the Chief Constable (Patten recommendation 117). The regulations allow for matters of detail concerning the terms of appointment and detailed functions of the recruitment agent to be set out.

CLAUSE 44(1): RECRUITMENT ARRANGEMENTS

14. This enables the Secretary of State to set out the detailed procedural arrangements for the recruitment process. The recruitment process is currently conducted on an administrative basis with some regulatory guidance (Regulation 9 of the RUC Regulations 1996 - SR 1996 No 473). Existing RUC regulations are not sufficient to cover new recruitment procedures because the new procedures also apply to police support staff. The regulations are necessary to implement the detail of a number of recommendations made in sections 14 and 15 of the Patten report, and require extensive consultation with the Policing Board, Chief Constable, Equality Commission for Northern Ireland and the Police Association.

CLAUSE 45(2) AND (5): ORDERS TO VARY "50:50 RECRUITMENT"

15. These powers enable the Secretary of State to amend clause 45(1) and (4) of the Bill which requires that one half of those appointed to be police trainees (45(1)) and members of the police support staff (45(4)) must be treated as Roman Catholic and one half as other than Roman Catholic (commonly known as "50:50 recruitment"). The orders allow the Secretary of State to vary the 50:50 ratios in any given recruitment campaign if the Chief Constable is unable to recruit the number of people he needs in accordance with the 50:50 ratio. Sub-sections (3) and (6) of clause 45 prevent the Secretary of State making an order varying the 50:50 ratio if the 50:50 split can be achieved. Sub-section (3)(b) of clause 45 provides an exception to this in respect of police trainees. It allows the Secretary of State to vary the 50:50 ratio even where that ratio could be met in a given recruitment campaign where one or more orders varying the ratio have been made in the previous three years and he considers that the overall balance of Roman Catholic as against other than Roman Catholic recruitment could be redressed by making a further order. The measures implement Patten's recommendations in Sections 14 and 15 of his report and take account of the possibility that Roman Catholic applications to join the police service may continue to be low in the early years of the new recruitment scheme.

CLAUSE 46(3): REMOVAL OF THE "50:50 RECRUITMENT" MEASURES

16. Clause 46(2) provides for the expiry of the exceptional "50:50 recruitment" measures after three years. Clause 46(3) enables them to be renewed. The provision is included so that the exceptional measures to redress the compositional imbalance in the police in terms of religious background will be retained no longer than necessary. It is anticipated that it will take at least ten years to redress the compositional imbalance, and before making an order the Secretary of State must have regard to the progress that has been made towards this objective, and consult the Policing Board.

CLAUSE 47: SEVERANCE

17. This clause extends the ability of the Secretary of State to make regulations under sections 25(2)(k) and 26(2)(g) of the Police (NI) Act 1998 governing the pensions of police officers. The provisions allow for special payments and other alterations to existing pensions regulations to provide for severance arrangements in respect of police officers leaving the police service. These arrangements are made to implement to Patten report recommendation that the size of the police force be reduced from 11,500 officers to 7,500 full time officers (section 13 of the Patten report). The regulations are made by statutory rule of Northern Ireland and are subject to the negative resolution procedure in accordance with section 72 of the 1998 Act.

CLAUSE 49(2): ORDER VARYING LIST OF REGISTRABLE ASSOCIATIONS

18. This allows the Secretary of State to make an order adding, subtracting or amending the references to the list of "registrable associations" set out in clause 49(1). A registrable association is defined as membership of those bodies listed in clause 49(1) and a police officer holding such membership must disclose it to the Chief Constable. The flexibility conferred by the order making power is necessary to add organisations of which it may be considered desirable to register membership in the future or to deal with any change of name or status of the existing bodies.

CLAUSE 50: CODE OF ETHICS

19. This enables the Policing Board to issue a code of ethics for police officers. The Secretary of State is obliged by clause 50(8) to reflect the code in discipline and conduct regulations under sections 25 or 26 of the Police (NI) Act 1998. The regulations under the 1998 Act are made by statutory rule of Northern Ireland and subject to annulment in accordance with section 72 of that Act. There is no parliamentary procedure for the code of ethics.

CLAUSE 51(1): GUIDANCE ON PUBLIC ORDER EQUIPMENT

20. This allows the Secretary of State to issue guidance to police officers on the use of public order equipments after consultation with the Board, Chief Constable and Police Association. This is included in the Bill to take account of the Patten recommendation which says, "Guidance governing the deployment and use of PBRs (plastic baton rounds) should be soundly based in law …" Existing Guidance which covers England and Wales and Northern Ireland was issued last year by the Home Secretary on a non-statutory basis.

CLAUSE 52(1): REGULATIONS ON FLAGS AND EMBLEMS

21. This allows the Secretary of State to make regulations about the design and use of emblems and flags by the police. The provision takes account of Patten's recommendations 151 (there should be a new badge), 152 (the union flag should no longer fly from police buildings), and 153 (new design for police flag). The RUC badge and the flying of flags from police buildings is currently regulated in the non-statutory RUC code issued by the Chief Constable. The regulations allow the Secretary of State to determine matters of detail on an issue of political contention and sensitivity and before making them he must consult the Policing Board, Chief Constable and Police Association.

CLAUSE 62: TIME LIMITS FOR COMPLAINTS AND REFERENCES TO OMBUDSMAN

22. Clause 62 amends section 64 of the Police (NI) Act 1998 (regulations on police complaints) to add a new sub-section (2A). This enables the Secretary of State to make regulations about retrospective investigation of cases by the Police Ombudsman. The new office of Police Ombudsman will be brought into force later this year. Draft regulations were made available in Commons Committee. The regulations under section 64 of the 1998 Act are required to be in the form of statutory rules of Northern Ireland and subject to of the negative resolution procedure under section 72 of the 1998 Act.

CLAUSE 64(6): CONTINUANCE OF OFFICE OF OVERSIGHT COMMISSIONER.

23. The provision enables the Secretary of State, by order, to extend by up to three years the appointment of the commissioner to oversee the implementation of changes in the policing of Northern Ireland. The appointment of the commissioner will terminate in May 2003 (clause 64(5)) unless the Secretary of State makes an order. The provision gives effect to Patten's recommendations 172 to 175. Patten recommends a five-year appointment (recommendation 175) but the order-making power allows flexibility in light of progress in taking forward the reforms introduced by the Bill.

CLAUSE 67: RUC CHIEF CONSTABLE FOUNDATION

24. This clause provides for the Secretary of State to make regulations covering the detailed establishment of the proposed foundation.

CLAUSE 69: VIDEO RECORDING OF INTERVIEWS

25. This clause adds article 60A to the Police and Criminal Evidence (NI) Order 1989 (PACE). It requires the Secretary of State to make a code of practice setting out detailed arrangements for the video recording of police interviews with those suspected of criminal offences. The code will be similar in format to the existing five PACE codes and similar in content to code E on tape recording of interviews.

26. The code will be subject to Article 66 of the 1989 Order which requires that the Secretary of State lay a draft of the code before both Houses of Parliament. The code may be brought into operation by an order (Article 66(4) of the 1989 Order) which is subject to the negative resolution procedure (Article 89 of the 1989 Order).

27. Under new article 60A(b) inserted by clause 69(2) the Secretary of State is required to make an order stipulating the categories of offence which must be subject to video recording. The Order - by virtue of Article 89 of 1989 Order - will be subject to the negative resolution procedure. The procedure is consistent with that already in existence in respect of the tape recording of interviews (Article 60(b) of the 1989 Order).

CLAUSE 75: COMMENCEMENT

28. Clause 75 provides for the Secretary of State to bring the provisions of the Bill into force by order on such days as the Secretary of State appoints in the Order. The Order may contain transitional provisions and savings there is no parliamentary procedure.

SCHEDULE 1, PARAGRAPH 3(2): POWER TO AMEND NUMBERS OF POLICING BOARD MEMBERS.

29. This allows the Secretary of State to make an order varying the minimum or maximum number of people to be appointed to the Policing Board under paragraph 3(1) of Schedule 1. The provision replaces without change the Secretary of State's order-making power at paragraph 2(2) of Schedule 1 to the Police (NI) Act 1998. The order allows the Secretary of State to deal with unanticipated needs for an increase or decrease in the number of Board members.

SCHEDULE 1, PARAGRAPH 14(1): REGULATIONS TO TRANSFER STAFF TO THE EMPLOYMENT OF THE BOARD.

30. The power is analogous to that explained under clause 5(1). The power replaces, with only consequential changes, the Secretary of State's existing power to make regulations to transfer staff under section 4(1) of the Police (Northern Ireland) Act 1998. The power continues to be necessary to enable such transfers but the detailed arrangements and precise timing of any transfer remain subject to consultation with the staff affected.

SCHEDULE 3, PARAGRAPH 6(2): CODE OF PRACTICE ON APPOINTMENT OF MEMBERS OF DISTRICT POLICING PARTNERSHIPS (DPPS).

31. This allows the Secretary of State to issue a code of practice containing guidance to district councils and the Policing Board on the exercise of their functions relating to the appointment of "independent members" of DPPs. (DPPs will be comprised of a majority of "political members" who are councillors and a minority of "independent members" who are nominated by the council and appointed by the Board (paragraphs 4 and 5 of Schedule 3). DPPs can have 15, 17 or 19 members - paragraph 2 of Schedule 5). The code is necessary to facilitate consistency in matters of detail across the 26 district councils. There is no parliamentary procedure.

SCHEDULE 3, PARAGRAPH 16: JOINT PARTNERSHIPS

32. This allows the Secretary of State, by order, to amalgamate two DPPs with the agreement of the district councils concerned. Each district council is obliged to establish a DPP by clause 14(1) of the Bill. However, some of Northern Ireland's 26 district councils are quite small and they may prefer to jointly establish a single DPP. The order making power provides for the Secretary of State to facilitate such arrangements.

18 July 2000


 
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