Justice (Northern Ireland) Bill

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Mr. Browne: As my hon. Friend fairly says, the amendment is designed to impose a duty on the director to refer matters to the police ombudsman for investigation if circumstances seem to indicate that a police officer has committed a criminal offence or has behaved in a manner that would justify disciplinary proceedings and that police officer is not the subject of a complaint.

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As the hon. Member for North Down pointed out, the clause amends the Police (Northern Ireland) Act 1998 to allow the director to refer such matters to the police ombudsman. As she said in an intervention on my hon. Friend the Member for Newry and Armagh, the clause puts the director on an equal footing with the Policing Board and the Secretary of State in such matters. Committee members should also understand that the power that the clause gives to the director, and the powers capable of being exercised by the Secretary of State and the Policing Board, are additional to the ombudsman's own power to intervene and investigate such instances as come to her attention.

It is not clear to me, other than by reference to the bold words of the review's recommendation, why my hon. Friend the Member for Newry and Armagh should wish to put the DPP in a more rigid position in relation to a set of circumstances than those responsible for the delivery of policing in Northern Ireland. The hon. Member for North Down made that point, and it is important. Perhaps, in responding to the debate, my hon. Friend can articulate why he thinks the DPP should be put in a more rigid position than the Secretary of State and the Policing Board.

The argument for the absence of rigidity in relation to the Policing Board and the Secretary of State cannot simply be that if the board does not run the system properly, things will, in any event, go badly for Northern Ireland. I am not seeking to disparage my hon. Friend's argument by paraphrasing it wrongly, but I have yet to hear a convincing argument that the DPP should be put in a more rigid position and should not be allowed the discretion that both the Policing Board and the Secretary of State would be able to exercise, should the same circumstances come to their attention.

Mr. Mallon: Is it conceivable that there have been instances over the past 30 years in which the Secretary of State and the police authority did not proceed where there was a criminal offence, or where members of the police force behaved in a manner that would justify disciplinary procedures? There is a difference between rigidity and the type of fluidity that will not add to the authority or the stature of the DPP. The ordinary person will accept the type of decision that we have made and will make about the DPP. The ordinary person will also want to see what will be done about potential offences by members of the police service. If the situation does not change, the nuances of the Minister's argument will not be conclusive where attitudes to the new system are concerned. The Minister should reconsider what will be required of ordinary people like myself in relation to the final outcome of the Bill.

Mr. Browne: I am grateful to my hon. Friend who, with due respect to all other members of the Committee, recognises better than any of us the nuances of arguments. In the short time in which I have been in the House, I have tried to learn from people like him how to deploy the nuances of arguments. It is important that the subtleties of this

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argument are understood. I shall try to explain the thinking behind our attempt faithfully to implement the review's recommendation.

The recommendation is not that subtle; it expresses a duty to ensure investigation. When it comes to me, as the Minister responsible, to be translated into a statutory provision, that has to be done in a context in which the people of Northern Ireland live and other public officials in Northern Ireland operate. One of those officials is the ombudsman. A bald interpretation of the recommendation would cut right across the ombudsman's responsibilities, because she is charged with a duty to investigate in many such circumstances. Skill and nuances had to be adopted in order to turn the interpretation of those recommendations into a statutory provision. That is why the statutory provision that we are dealing with could not be seen to be usurping the position that the ombudsman already enjoys in relation to the investigation of complaints against police officers. There must be a balance. What does one do? How does the DPP ensure full investigation in those circumstances?

One can ensure full investigation by referring the matter to the ombudsman, but that is not the only way in which matters can be investigated. My hon. Friend suggested that there were no circumstances in which it would be palatable for the DPP to do anything other than refer the matter to the ombudsman, but there are trivial infractions of disciplinary codes. My hon. Friend's amendment would require the DPP to send a trivial infraction of a disciplinary code to the ombudsman for investigation, although it could easily be investigated and dealt with by the Chief Constable. The DPP would be prevented from applying his discretion and common sense to a set of trivial circumstances.

5.45 pm

The second possibility is that if the DPP intended to prosecute a police officer on the strength of evidence in a certain set of papers, he would not be able to do so because the provision would oblige him to refer the matter to the ombudsman for investigation. In fact, the prosecution of a police officer for a criminal offence, if there were sufficient evidence and a clear public interest in prosecution, would be delayed by referral to, and investigation by, the ombudsman.

The Government share my hon. Friend's objective of implementing the review recommendations, but when we take into account trivial and very serious cases and the existing role of the ombudsman, the matter is not as simple as it first appears and contains some nuances.

For those reasons, we believe that the provision is sufficient to allow the director to fulfil the duty that the review recommended should be placed on him to ensure that those matters that find their way to his desk are investigated properly, but not exclusively by the ombudsman.

Mr. Mallon: It should be noted that the amendment says ''refer'' to the ombudsman—nothing further. I completely agree with the Minister about a lesser type

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of matter, which would, under present legislation, be dealt with by the Chief Constable. I do not envisage that such a disciplinary matter should be dealt with by anyone other than the Chief Constable, but we need to ensure that the stringency that we place on the DPP in relation to the entire community also applies in this instance.

The Minister makes a strong case, and part of its strength lies in the fact that the ombudsman can choose to become involved, but surely the process will be more transparent if someone of the stature of the DPP is involved in referring a case to the ombudsman—I am not talking about trivial disciplinary matters. I do not think that that would have the implications that the Minister envisages.

The Chairman: I call Mr. Browne.

Mr. Browne: I am not sure that that was an intervention, Mr. Pike, but I will treat it as such. I thought that I had finished, which is probably why I was so relaxed, and now I must wind myself up again.

My hon. Friend argues persuasively, but the strength of the argument is in my favour. For the reasons that I have given, including that relating to the most trivial and the most serious cases, the DPP should continue to enjoy some discretion, but we are giving him no more discretion than the Secretary of State or, more importantly, the Policing Board already enjoys in this context. That is a powerful argument.

Lady Hermon: May I try to give the hon. Member for Newry and Armagh some peace of mind? I listened carefully to his earlier remarks, particularly his mention of the Hamill and Finucane cases. We are discussing section 55(1) of the Police (Northern Ireland) Act 1998, but I would like to quote subsection (2). It states:

    ''A Chief Constable shall''—

it is clearly a duty—

    ''refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person.''

When a death has occurred, the Chief Constable already has a clear duty to refer such serious cases to the ombudsman.

Mr. Browne: I suspect that cases do not come any more serious than that, but it may be of some comfort. I am sure that my hon. Friend knows the genesis of that provision. It was thought necessary in Northern Ireland to give the ombudsman a compulsory power to investigate in certain circumstances. It is not the only matter that is required to be referred to the ombudsman by the Chief Constable in which the former has an investigatory or supervisory power. I merely encourage my hon. Friend the Member for Newry and Armagh to consider this provision as part of a complex web of provisions that are designed to meet the objective that both he and the Government seek. However, they can come into conflict with each other if they are not drafted so as to fit into the existing legal structure.

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Mr. McWalter: I congratulate my hon. Friend the Minister on the power and energy of his argument. Would he agree that in addition to escalating trivial cases, the amendment could have the serious effect of escalating cases of malicious accusation, which is another important consideration?

Mr. Browne: We are all conscious, from our experience as Members of Parliament, of the dangers of malicious complaints. Society is becoming more skilful in dealing with them, but we have to trust the people to be appointed to such positions, particularly the person who will occupy the position of the DPP, of being capable, from their substantial experience in that area of the law, of identifying malicious complaints. I can see the merit in my hon. Friend's argument that we must be alert to malicious complaints, but I would rather trust in the abilities of the people who are appointed to such positions than in legislation to give that protection.

I cannot usefully add to my argument. I hope that I have convinced my hon. Friend to withdraw the amendment. That is not to say that we cannot revisit the subject. Should he find a formulation that has the necessary nuances, I would be happy to debate it with him, but I hope that I have convinced him that he can safely withdraw the amendment.

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