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26 Mar 2003 : Column 324—continued

Mr. John Taylor (Solihull): The Secretary of State has been generous in giving way. Will he comment not on custodial or non-custodial sentences but on suspended sentences?

Mr. Murphy: I believed that I had made detailed reference to suspended sentences earlier. I shall revert to that in my winding-up speech if we need to take other points on it into account. I am sure that the hon. Gentleman and other hon. Members will make speeches during the afternoon.

On a practical level, new clause 13 would create an enormous administrative burden on both the Department and the relevant local council. Under schedule 3(5)(4) of the 2000 Act, the council is not allowed to nominate an individual for membership of a DPP if he is disqualified from membership. To comply with that, the council would be required to refer every case in which an individual had declared an offence to the Secretary of State for review. The amount of time and effort that that would add to the process seems disproportionate, since the majority of minor offences—for which one might expect the Secretary of State to exercise a waiver—attract non-custodial sentences. The outcome of all that extra work could be expected to be much the same as the present situation, yet a vast amount of additional effort would have been expended in achieving it. To my mind, that is a powerful argument against the new clause, but there is another reason why the House should reject it.

Under the terms of new clause 13, the discretion would rest exclusively with me. That is not consistent with other legislation dealing with the rehabilitation of offenders, in which there are set time limits, specified in law, after which time certain offences become "spent". Secretaries of State are often accused of taking too much power unto themselves. In this case, that would be a justifiable criticism of the new clause. I believe that it is better for the rules governing what is, and what is not, a disqualifiable offence to be set out in the statute, so that all those involved in enforcing them—the local council, the Policing Board and, ultimately, the courts—are clear about whether someone is disqualified. Governments should not have a role in that. For this reason, the Government will not support new clause 13.

New clauses 18 and 19 also deal with disqualification. They suggest that anyone with a custodial sentence of 12 months or more—or who the police believe to have links with a paramilitary organisation—should be

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permanently debarred from independent membership of a DPP. For the same reasons that I am suggesting that we might, in due course, change the existing blanket disqualification rules, I do not think it appropriate to replace them with another blanket ban. In the circumstances in which such a provision might come into force—namely, in the context of acts of completion—it would be wrong to refuse to recognise that some individuals might be, and, indeed, are, capable of reform and change. To ban them for life from membership of a DPP, taking no account of the willingness of individuals to eschew violence and to follow an exclusively peaceful path, would be wrong.

That is not to say that all ex-prisoners would be suitable for appointments. During the passage of the 2000 Act through the House, my hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth), then a Minister at the Northern Ireland Office, set out a number of important safeguards that would apply to appointments to DPPs. Appointments will be made in accordance with a code of practice issued by the Secretary of State, on merit, and by the cross-community Policing Board. The code of practice makes it clear that the board will write to the Chief Constable to ask for confirmation of the criminal records declared by applicants.

New clause 1, tabled in my name, is another part of the changes that the Government propose might be appropriate in the context of changed political circumstances. It would bring the arrangements for independent members into line with those that already apply for political members. Under this new provision, prospective independent members would be required, before their application could be considered by the Policing Board, to make a declaration against terrorism. That declaration would be in the same terms as the declaration that prospective local councillors are required to make.

New clauses 9 and 10, tabled in the name of the right hon. Member for Upper Bann, also deal with declarations. However, instead of proposing that prospective candidates make a declaration against terrorism, the new clauses propose that the board should make a declaration that it is satisfied that the individual is

having first consulted the local district commander. New clauses 18 and 19 would have a similar effect. The Government believe that the new clauses are inappropriate for a number of reasons. First, it seems unnecessary for the board to make a declaration in respect of independent members, since it is the board's own responsibility to select and appoint those members in accordance with paragraph 4 of schedule 3 of the 2000 Act, and with the terms of the code of practice issued under paragraph 6 of that schedule. Clear guidelines for the board are already set out in the code, which sets out a "person-specification"—as they call it these days—with both essential and desirable criteria or competences. Those include a demonstrable interest in the local community, community safety or policing issues, and the ability to exercise sound judgment.

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I believe that those guidelines are sufficient to allow the board to exercise its own discretion—which, as Members on both sides of the House have noted, has been sound in all the decisions that the board has been faced with to date—as to which are the most suitable candidates for appointment. This acts both as a safeguard against some of the fears that have been expressed in relation to the changes proposed by my own amendment—new clause 2—and as a reason why the proposals in new clauses 9, 18 and 19 are unnecessary. In the case of political members, which new clause 10 deals with, I believe that the same arguments apply. However, there is an additional dimension when we are dealing with elected representatives. These individuals have been elected through a democratic process. As part of that process, they have been required to make a declaration against terrorism, and, if they breach it, they can be removed from office. As elected representatives, they are members of a council, and it should be for that council—not the board—to appoint them to sit on the DPP, as its representatives. I believe that that continues to be right, in the interests of local democracy.

However, that does not mean that political members—or, indeed, independent members—are immune from subsequent sanctions. My own amendment, new clause 1, entails an important sanction. If an independent member appears to have acted in breach of his or her declaration against terrorism, it will be within the board's power—or the power of the council with the approval of the board—to remove that person from membership of the DPP. In that respect, there is a slight difference from the rules applying to local councillors. In the case of a councillor, the case must go to the courts before he or she can be removed for dishonouring their declaration. We are proposing in new clause 1 that the board—or the council with the approval of the board—should be able to take the decision whether an independent member should be removed from the DPP, without recourse to the courts.

It is true, of course, that it would be possible for an aggrieved individual to seek a judicial review of the board's—or the council's—decision to remove someone, on that or any other ground. It would then be for the court to take a view on the reasonableness of the decision—that is, to ask whether a reasonable organisation, faced with the same circumstances, could have come to the same conclusion. There is still scope, however, for the board to take action in respect of political members. Paragraph 7(1)(e) of schedule 3 of the 2000 Act allows the board to remove someone because

There is sufficient scope in this provision, without us needing to pursue the proposal in new clause 11, tabled in the name of the right hon. Member for Upper Bann. Because of the serious nature of a proposal to remove an elected member from office, I believe that it is only right that such a decision should ultimately lie with the courts, rather than with the Policing Board and the police themselves.

Mr. Michael Connarty (Falkirk, East): Watching this from the outside, I believe that there is a contradiction in the logic. If the boards can decide to remove an independent member, and that member can then go to

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judicial review, does the Secretary of State see some merit—as I do—in the proposal in new clause 9 that the board should make a base statement at the outset that the person that it is appointing is guaranteed—or at least agreed by the board—not to be involved in paramilitary activities? If such issues can be challenged at the end of the process, they should be able to be challenged at the beginning.

Mr. Murphy: We think that the safeguards in the Bill are sufficient, and I hope that my hon. Friend will be persuaded by the points that I have made. I certainly believe that it is important to ensure that there are safeguards, and we have built in extra safeguards during consideration of this legislation.

I appreciate that new clause 11 deals with removal from a DPP, and not with removal from a council, but there is read-across. If the board genuinely has reason to suspect that a councillor has dishonoured the declaration against terrorism that he or she made when standing for appointment, it is open to the board—one might argue that it is incumbent on it, as a public body with primary responsibility for ensuring that the police are able to maintain law and order in Northern Ireland—to draw this to the attention of the local council, which may then take the case to the High Court to seek a determination that the person has acted in breach of the terms of his or her declaration against terrorism. When the court makes a declaration in those terms, the person will be disqualified from being a member of the local council and would commit an offence if he or she remained a member. Once the person has ceased to be a member of the local council, under the terms of paragraph 3(5)(c) of schedule 3 to the 2000 Act, he or she would automatically cease to be a member of the DPP.

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