Police Reform Bill [Lords]

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Lady Hermon: In Northern Ireland, it was good enough for the chief constable or a senior officer to be given an opportunity to make representations under the Police (Northern Ireland) Act 2000. Section 35(4) contains the words:

    ''the Secretary of State shall . . . give the officer concerned an opportunity to make, either personally or otherwise, representations to him''.

If that is good enough to have appeared in legislation in Northern Ireland, why is it unduly burdensome in the rest of the UK?

Mr. Denham: I am not an expert on all aspects of the legislation, and would not pretend to be, especially to the hon. Lady who represents the constituency that she does. We all understand that things are done differently in Northern Ireland from the way in which they are done here. The Committee should remember that we are considering building new rights on top of procedures that have been laid down since 1964. Opposition Members did not seek to amend the 1994 or the 1996 legislation when they had the opportunity to do so and when the same issues came up for discussion. It is a matter of getting the balance of procedures right. The right way to deal with the more detailed handling of such matters by the police authority is to take advantage of guidance to police authorities and, if necessary, the provision for regulations. That is important as although these issues are rare, when they arise they attract immense attention and publicity, and they affect other officers and the morale of the force. The procedure should be seen to be fair to the officer involved and sufficiently rapid and flexible to deal with the important issue of efficiency or effectiveness in the force. In updating the legislation, we are trying to offer some comfort about the safeguards, none of which exist at present, without proposing a system that renders itself unusable by being overly dominated by procedures, with some of the consequences that have resulted in the past.

Mr. Paice: I am slightly unclear what the Minister proposes. He clearly objects to the amendment but he used the term ''regulation'' a couple of times in his response. If he thinks that the matter could be covered in regulation it becomes part of legislation and in that respect is no different from it being in the Bill. If he is planning to include it in a code of guidance it is not legislation, but neither is it regulation. I am slightly unclear exactly what the Minister is saying. Of course, he is right to say that we do not want a matter to be

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delayed because procedures are used in a legalistic way, but at the same time the rights of the individual must be protected, as he said. I am not sure that a code of guidance would be adequate. I am not clear about the Minister's use of the word ''regulation''.

Mr. Denham: I talked about regulation on each occasion in the context of ''if appropriate''. In many cases, guidance will be better than formal, legal regulations but the Bill is not the place to address procedural matters as it would make the measure unnecessarily restrictive or inflexible. It is a matter that we need to consider either for guidance or for regulations in future discussions.

Huw Irranca-Davies (Ogmore): Government Members will want reassurance that there will be an opportunity for representation. However, we are equally concerned that there should be nothing in the Bill that could lead to delay, because that would destroy public confidence in the process. The proposal is a step forward, therefore we do not want to put obstacles in its way, but we seek the Minister's assurance that some representation will be available.

Mr. Denham: There certainly will be; there is an explicit right to make representation in person, which did not previously exist until addressing the police authority initiated the procedure. My hon. Friend is also right about the procedures striking the right balance. There is a value in having better guidance than is available at present. From my background work as a Minister on one or two cases, it is clear that police authorities that confront the situation often feel that they are starting from scratch in terms of having any idea about how they should proceed.

Amendment No. 92 relates to the procedure in which the Secretary of State initiates action rather than the police authority.

Mr. Hawkins: Before the Minister moves on, I want to raise a matter in the light of his response to interventions on the first amendment. He is aware that since the incorporation into our law of the Human Rights Act 1998 and with the existing powers with which Secretaries of State must comply in respect of judicial review, there are extra concerns. The Secretary of State has to certify, as he has done, that all the Bill's provisions comply with the Human Rights Act. Does the Minister not recognise that there might well be a concern about this measure bringing in new procedures if he does not allow a very informal new right to have professional advisers if the person involved should so wish. What we are proposing is hardly rigid or mechanistic; it might be easier for the Secretary of State to be defended against judicial review and make it much clearer if it was on the face of the Bill that it complies with the Human Rights Act.

5.15 pm

Mr. Denham: I obviously discussed similar issues with my advisers in the early drafting of the Bill. I am assured that the Bill is perfectly compatible with the Human Rights Act. I cannot remember whether the Home Secretary or I signed the necessary declaration. It is worth noting that the Joint Committee on Human Rights of both Houses also concluded that it was unlikely that the provisions of part 3 of the Bill would

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be held to engage rights under article 6.1 of the European convention on human rights. Although I acknowledge the hon. Gentleman's point and, indeed, I have raised it myself in the past, we seem to be on safe ground here.

Amendment No. 92 addresses the situation where the Secretary of State initiates the process. Let us remember that clause 31 introduces a new requirement that the Secretary of State must give notice of his intentions with his reasons. Under existing legislation the chief officer must be given an opportunity to make representations, so that remains. If the Secretary of State proceeds he must, as at present, appoint an inquiry. When there is an inquiry the officer has a new right to make representations in person to that inquiry.

The central issue that is raised by the hon. Gentleman's amendment is whether, when the Secretary of State is deciding whether to proceed to an inquiry, he should hold an oral hearing with the chief officer rather than receive representations either in person or in writing. I can understand the point that the hon. Gentleman is making, but we are in danger of duplicating oral hearings, one of which would have to happen in front of the Secretary of State. If the Secretary of State decides to proceed to an inquiry—having got as far as saying that issues need to be looked at, that is likely although not certain—the inquiry would have to go through the whole procedure too. If there is sufficient to dissuade the Secretary of State from proceeding and going to inquiries, it should be possible to set that out in the written representations to him, rather than having to have two oral inquiries. Therefore again, in the interests of not overcomplicating matters, I must reject the amendment as inappropriate.

Mr. Paice: I follow the Minister's reasoning, but I am now slightly puzzled. The terminology used in the legislation, as it will be, is identical for the Secretary of State and the inquiry. Under the futuristic and amended version of the 1996 Act, before requiring the exercise of these powers the Secretary of State shall:

    ''give the officer concerned an opportunity to make representations to the Secretary of State''.

It later states:

    ''The Secretary of State shall consider any representations made to him under subsection (2)''.

Then—this is unchanged from the original legislation and I recognise the correctness of the Minister's argument that we are on to fresh ground anyway—it states that at an inquiry held under subsection (3) the officer in question

    ''shall be entitled to make representations to the inquiry''.

We still have the phrase ''make representations''. The Minister clearly referred to the inquiry being an oral hearing. I am not sure why the phrase ''make representations'' in one context is an oral hearing, yet not in another.

Vera Baird: I think that it is explained in new subsection (3B) of the updated section 42, which states:

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    ''The entitlement . . . to make representations shall include the entitlement to make them in person''.

That must presuppose an oral hearing. That is the part that was missing.

Mr. Paice: I am more than happy to have things explained to me, and if the hon. and learned Lady is right, I am happy to accept her interpretation. The Minister will probably endorse what she has just said, but I still question the need to go down the road of a full-blown inquiry. I hope that any such inquiry will be a comprehensive investigation, not a few minutes of an oral hearing. The opportunity for the chief officer, in the rare event of this happening, to have half an hour with the Secretary of State would be perfectly reasonable.

I do not know whether the Minister wants to intervene, but otherwise I shall have to do something.

Mr. Denham: I am grateful to the hon. Gentleman for taking this spontaneous intervention and to my hon. and learned Friend the Member for Redcar (Vera Baird), who is entirely forgiven for being a lawyer because she is correct. The entitlement for the chief officer to make representations in person to the Secretary of State is included. That is new, which is the difference.

The sequence of events that could emerge from amendment No. 92 is that the Secretary of State has an oral hearing and then goes to inquiry, which itself then has an oral hearing. The Secretary of State would then receive the report of both oral hearings, which would not be best for decision making. Such a process would include duplication, and it should be possible for the Secretary of State to make the judgment about whether there is sufficient reason to go ahead with an inquiry on the basis of written representations.

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