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Viscount Brookeborough: Will the noble and learned Lord give way?

Lord Williams of Mostyn: Without being discourteous, it may be wiser if I finish what I have to say because I want to give as full an explanation as the importance of this issue requires.

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That is the genesis of this matter. The question of operational scrutiny is specifically dealt with in the Patten report:


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

We have followed Patten but, in particular, post the 2000 Act and following the plan of August 2001, we have delivered in the Bill what we have accepted specifically as the Government's reply to recommendations 25 and 26. That is all I intended to say.

Lord Mayhew of Twysden: We are all grateful for the care that the noble and learned Lord has taken. But he rests the justification upon Patten and upon the Implementation Plan, of which he has reminded us. Patten said at paragraph 6.22 on page 33:


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

However, what is now being sought goes wider than that. The board is not limited to seeking a report that explains an operational decision; it is to be empowered to require a report, without the ability to refer to the Secretary of State, in circumstances where the Chief Constable believes that the report should not be made—we then turn to the language of paragraph (d) of Section 59(3) of the Act—


    "because it . . . would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders".

At present, the law gives power to the Chief Constable to refer this issue or dispute to the Secretary of State in circumstances where he believes that the report should not be made or the inquiry should not be held, if we are going to take the second application of this, or, if it comes to it, when the ombudsman requires information. I believe I am correct in saying that the same principle applies on all three heads. At present, the law states that he can do that and refer the matter, but not impose a veto or refusal, because in his view it ought not to be made,


    "because it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders".

That is far wider than the ambit of the wording referred to by the Secretary of State regarding the giving of an explanation of an operational decision. That was not only at the head and forefront of the issue, it was the whole guts of the justification put forward by the noble and learned Lord. I venture to say that, for once, it is intellectually flawed.

Lord Williams of Mostyn: No one wants to be guilty of selective quotations. Therefore, I read on in paragraph 6.22:


    "The grounds on which the Chief Constable might question this requirement"—

in other words, the requirement to report on any issue pertaining to the performance of his functions—


    "should be strictly limited to issues such as those involving national security, sensitive personnel matters and cases before the courts".

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That is exactly the limitation in the Bill—cases before the courts, national security and sensitive personnel matters.

That was in Patten before the 2000 Act. I do not want to be unduly repetitive to such a patient audience, but the Government said, after the updated Implementation Plan, that we were going to remove the ground of appeal and substitute "sensitive personnel" for "sensitive personal" and then cover the vulnerable individuals. There has been no secrecy here. It has been said that these are incremental changes—of course they are—and I would suggest that incremental changes are the wisest in the context of Northern Ireland because it is step by painful step and sometimes step by slow step. That is the justification.

In the end, it comes to whether the board will be trusted to come to an agreement with the Chief Constable of the kind I described earlier. They could put it off for a period, by agreement, perhaps even up to a year, if they thought that was appropriate. Or, will the Chief Constable have this preliminary veto? The judgment has been made, but it certainly has not been made in a hole-in-the-corner way, because it has been published since August 2001. I recognise, as I implied earlier, that the noble and learned Lord's concerns may not be mollified and they may not be met. However, that is the stance that the Government have adopted and that is what we have delivered in this Bill.

Viscount Brookeborough: Perhaps I may put on record my feelings about this. First, we are all agreed—and even once or twice the Government in the Chamber have admitted—that Patten is not always right. I am not suggesting that what the noble and learned Lord has said is not correct. However, if you look at that in practical terms, as opposed to intellectual terms, the way that it goes is that a crime is committed. We are talking about an inquiry into an operation that is going on. A crime is committed and it is being investigated.

The clauses restrict the board or allow the Chief Constable to refer it to the Secretary of State if the board wishes to inquire into that, while it is in the courts. That is subsection (2)(c) of the present Bill—in the courts. However, there is a period between the crime being committed and it being in the courts and that period is not excluded. All I would like to point out is that I do not believe that Patten wanted us, in the board, to be able to make inquiries that could prejudice the inquiry into a crime. Quite rightly, he says that we should not be allowed to make inquiries that might prejudice a case that is already in the courts. It is that simple fact. It is that hole and that gap in the practical process that would possibly, conceivably, permit a board to inquire at the wrong time. This could be prejudicial to the prevention or deterrence of crime.

Lord Williams of Mostyn: I accept that description but, if one has a board with the powers and authority, which is intended to work with the Chief Constable, there is the opportunity for the Chief Constable to say,

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"Do not press me on the month—give me three or six months." He can then give the reasons privately. There is a gap here, which we are unlikely to bridge.

Lord Glentoran: I must agree with the last words of the noble and learned Lord. I would like to make a few points here. First, the implementation paper, which I read some time ago, and Patten are not directly a part of the Belfast agreement. Although Patten was accepted in principle, it was not accepted verbatim—largely probably because, as I said yesterday, the context in which it was written does not pertain in Northern Ireland today and is not foreseeable today. So although I hear what the noble and learned Lord said about Patten and, some time back, read what is in the Implementation Plan—which was clearly a political document produced by the Government in an attempt to follow the demands of Sinn Fein/IRA to implement Patten more literally—I do not accept either of those as especially good reasons for accepting Patten word for word today.

The Lord Privy Seal dwelt on relations between the Chief Constable and the board. If relations are good and free-flowing—as we hope that they always will be—it will almost always be unnecessary for either party to refer to the 2000 Act. The Bill should be written in the light of situations arising where harmony may not exist.

Those are some philosophical points that I wanted to make. My noble and learned friend Lord Mayhew has in his advocacy dealt far better than I could ever start to with constitutional issues and interference with operational capabilities of the Chief Constable. The Lord Privy Seal suggested that the amendment would give the Chief Constable a veto on producing a certain report or certain information. Indeed it would not.

5.45 p.m.

Lord Williams of Mostyn: I think that I said a veto at that stage.

Lord Glentoran: I accept that. However, the point stands, that, albeit at that stage, it is still the Secretary of State whom we want to be able to make decisions on the issue.

Finally, of course, it is incongruous in the United Kingdom that we should want to include in an Act of Parliament—or rather, leave out of an Act of Parliament in Westminster—a clause that would prevent operational interference on matters concerning the detection of crime, apprehension of criminals and the prosecution of offenders. That simply does not make sense, especially in Northern Ireland, but also elsewhere.

I am not sure where we are in this debate technically. I know that I cannot divide the Committee. All that I can do at this stage is to thank the noble and learned Lord for the care that he has taken to argue the Government's case, but I cannot accept those arguments at this stage.

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Lord Williams of Mostyn: Perhaps I may respond in only a sentence. I tried to cover all the amendments to which Members of the Committee have spoken, including giving my response to clause stand part. I entirely anticipate that we shall return to the issue with some vim and vigour at our next meeting.

Lord Mayhew of Twysden: I had taken it that there might be an opportunity to say something on clause stand part, notwithstanding that we have very properly had a thorough go round the debate. I have read closely page 10 of the Implementation Plan. In parenthesis, we need to be careful not to elevate it into some holy script, any more than Patten. It is rather like governments—every government do it—saying, "Oh, well, it was in our manifesto". Time moves on and just occasionally there is some accretion of wisdom as the years roll by.

Since I have referred to it, I want to read what I see at the top of page 10:


    "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. The obligation to report should extend to explaining operational decisions. If there is a disagreement between the Board and the Chief Constable over whether it is appropriate for a report to be provided on a particular matter, it should be for the Chief Constable to refer the question,"

and so forth.

I was stung by the implication that I had quoted selectively. I was referred to the Patten report, which, not surprisingly, precedes the implementation of Patten. The 2000 Act came after Patten. It is interesting that it should say,


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

not to "inviting" an explanation for why a line of inquiry is being made against a particular suspect, not for going into the reasons for things which are happening at the present. That is the burden to which we shall return on Report.

I notice that the noble and learned Lord has not alluded to the constitutional approach to this issue, save to mention the fact that I gave it that categorisation. Because the noble and learned Lord is considerate for our time and our patience, he has not alluded to the illustration that I gave that it provides a covert means of overturning the operational independence of the Chief Constable in those two particular respects.

I hope the noble and learned Lord will take an early opportunity to reflect on that. I know as well as he does how important it is that that constitutional position should not be infringed.


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