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Lord Williams of Mostyn: This is a topic of great seriousness. It may be the most important aspect of our discussions at this stage. The debate has addressed all the issues relating to Clause 19. I do not say that in a chiding way, because the debate has been helpful. I hope the Committee will find it helpful—if not ultimately persuasive—if I address all the issues contained in these amendments .

We need to see what the present state of the law is, what it would be if the amendment was passed, and what is the genesis of these changes. The noble Lord, Lord Glentoran, not being a lawyer, had the benefit of great economy because he simply asked the question why, which is always the cruellest question. I will try and deal with that. The noble and learned Lord, Lord Mayhew, developed the constitutional approach. The noble Lord, Lord Maginnis, then stressed the importance of reflecting on the possible dangers to individuals, whether in the Police Service of Northern Ireland or as he said at the end, law-abiding or non-law-abiding members of the community.

If we begin at the beginning, the present power of the board and the present duty of the Chief Constable is to be found in Section 59, page 31, of the 2000 Act. What we see at the moment is that,


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Subsection (2)(a) is not to the point; subsection (2)(b) is, and has been overlooked.


    "A report under this section shall be made—


    (b) within the period of one month from the date on which that requirement is made or within such longer period as may be agreed between the Chief Constable and the Board."

There is that margin of flexibility for the board to require the report to be made but for agreement then to follow between the Chief Constable and the board that perhaps three or six months might be a more appropriate period, rather than one month. It is very important to bear in mind that margin of flexibility which is allowed in Section 59.

Viscount Brookeborough: I thank the noble and learned Lord for giving way. Section 59 says "agreed" between the Chief Constable and the board. As an individual I am quite happy that if the board and the Chief Constable agree, then the Act does not have to be used to produce the information that may have been asked for. This is quite clear because the board has had instances of the police service not refusing to give information, but being slightly slow about doing so. We have discussed, for the future, how we would force them to do so if they ever refused. The answer is that we would cite the Act and that is when it would be cited. If we ask how many car accidents there have been in the last week, we do not say, "Under Clause 59 of the Police (Northern Ireland) Act 2000 you will do this or we will take you to court". We ask for the information and it is given.

We are talking about more sensitive information but let us say that the board is, in the Chief Constable's terms, not as reasonable as it is at the moment and asks him for information that he says it should not have. The board can go to the law and say, "You have to give it" and, under the terms of this, there must be agreement. However, there is no agreement and the statute is on the side of the board to interfere with an operational matter within the one-month period, regardless of whether it is deemed that that information would be detrimental in terms of solving a crime or carrying out the law. Therefore, this is important because the Police (Northern Ireland) Act 2000 will only be brought in behind it if there is not an agreement. I accept completely and we really do agree with the Chief Constable over virtually everything, but this is brought out in case we do not. That is the point.

Lord Williams of Mostyn: What the noble Viscount has said reinforces the theme that I was about to develop. There is that flexibility in subsection (2)(b). He has already said, from his individual experience, that he was not speaking for the board, but there are accommodations between the Chief Constable and the board at the moment. That is the flexibility to which I am drawing attention. I will go on, if I may, immediately to the point made by the noble Lord, Lord Maginnis. The current exclusions in Section 59(3) are, "national security", because it "relates to an individual" and is of a "sensitive personal nature",

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because it "would prejudice proceedings", or because it would prejudice the "prevention or detection of crime", among other words.

I agree with the noble Lord, Lord Maginnis, that there is nothing there for the protection of the individual. However, he will find precisely that in our new formulation on page 11 of the new Bill. We have met his concerns, I hope. We all know that "national security" is a consideration. Another ground is,


    "the information is sensitive personnel information".

That is a citation from Patten, in effect. Then there is the Maginnis point, which I put respectfully because it is a very good one:


    "or information the disclosure of which would be likely to put an individual in danger".

We have improved the 2000 Act protection, which did not exist for an individual—the noble Lord, Lord Maginnis is quite right—and have specified the disclosure of information,


    "which would be likely to put an individual in danger".

Thus, we have met the noble Lord's point for policemen or Army officers, for the law-abiding or not.

Lord Maginnis of Drumglass: I am grateful to the noble and learned Lord. Will he just develop my point a little further and indicate whether "may" would not in fact give the level of individual safety that "would be likely" does not give? "Would be likely" requires a level of proof, at present undefined, as distinct from an instinct, a professional training or a professional opinion, which should be what governs that issue.

5.30 p.m.

Lord Williams of Mostyn: I shall address that point and am grateful for the noble Lord's courtesy. This is a judgment to be made by the Chief Constable, which does not require admissible evidence. It is the sort of judgment that every experienced police officer has to make day in and day out. It may be on unattributable intelligence or second-hand hearsay. It may be that the individual is in a category of those who might be liable to be attacked. It does not have to be specific to an individual; it may be general information. The Chief Constable has to decide on a professional basis, "I think that the disclosure of this is likely to put an individual in danger". I agree with the noble Lord that those are slightly different thresholds but it seems to me that this is about right, particularly as the Chief Constable then goes to the Secretary of State who has the final view.

The question posed by the noble Lord, Lord Glentoran, is not dissimilar to the constitutionalist approach adopted by the noble and learned Lord. The answer to the question "Why?" is twofold: first, Patten; secondly, implementation. The answer to Patten is "Patten preceded the 2000 Act", which it did. However, my answer to that is that it was always the policy and, indeed, has been put into effect, that we would have a review and an updated Implementation Plan. That Implementation Plan, as I reminded noble

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Lords yesterday, was 2001. What do we find in Patten and what do we see in the Implementation Plan? We see in Patten at paragraph 6.22 on page 33:


    "We recommend that the Policing Board should have the power to require the Chief Constable to report on any issue pertaining to the performance of his functions or those of the police service".

I shall read the next sentence reasonably slowly because it goes to the constitutional question,


    "The obligation to report should extend to explaining operational decisions".

Those are not my words, they are not even the words of the Apocrypha; they are the words in paragraph 6.22 of Patten. I continue,


    "The grounds on which the Chief Constable might question this requirement should be strictly limited to issues such as those involving national security, sensitive personnel matters",

I explained that earlier,


    "and cases before the courts".

I pause to interrupt myself. When we deal with "personnel" rather than "personal", which I agree is somewhat arcane, we have also introduced the Maginnis protection for the individual. I shall not return to that as I hope that that satisfies the noble Lord. Paragraph 6.22 continues,


    "We recommend that, if there is a disagreement between the Board and the Chief Constable over whether it is appropriate for a report to be provided . . . it should be for the Chief Constable to refer the question to the Secretary of State for a decision".

That is paragraph 6.22 of Patten. I readily concede that it is not what was in the 2000 Act. However, the Implementation Plan is August 2001. We find there in the second paragraph on page 10, Recommendations 25 and 26. I do not omit anything wilfully or wrongly; noble Lords have it before them. It states:


    "The Policing Board should have the power, subject only to the same limitation set out in paragraph 6.22,

the one I have just read,


    "to follow up any report from the Chief Constable by initiating an inquiry",

and so forth. The two questions, "Why?" or, "Is this a constitutional aberration?" bring the answer from me that it is to be found in the Implementation Plan, half-way down page 10 in the bold type,


    "The Government intends, after the planned review, to remove the ground of appeal in Sections 59(3)(d) and 60(3)(d) and to substitute 'sensitive personnel' for 'sensitive personal' in Sections 59(3)(b) and 60(3)(b)".

Then, turning to the point raised by the noble Lord, Lord Maginnis, the Implementation Plan states specifically,


    "while adding a new definition which covers potentially vulnerable individuals whether police personnel or members of the public".

I do not think that it could be plainer than that.


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