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.
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
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
CLAUSE 43(1): CONTRACTING OUT OF CERTAIN RECRUITMENT
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
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"
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
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
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
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
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
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
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