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27 Mar 2003 : Column 499—continued

Lembit Öpik: New clause 7 states:

To a certain extent, I agree that we should not be trailing through misdemeanours that happened decades ago, as there is probably not much benefit in so doing. There are no winners in that, and it could stir things up. On the other hand, there remains a lot of anxiety in Northern Ireland about injustices that occurred at the beginning of the troubles, even though that is more than three decades ago. When the hon. Member for North Down (Lady Hermon) returns to her feet, will she give an example of what would constitute "grave and exceptional circumstances"?

Jane Kennedy: I shall begin by responding to the specific amendments in this group. Amendment No. 45 would prevent the ombudsman from investigating a current practice or policy unless the board and the Secretary of State believed that it would be in the public interest to do so.

Patten was clear that the ombudsman should have the right to exercise her investigative powers. I believe that that implies that she should be able to do so independently of the board and the Secretary of State. The ombudsman is capable of making the judgment of whether there is a public interest justification for an investigation, without having to rely on the board or the Secretary of State. Patten clearly recommended that the ombudsman should have operational independence in these matters.

I recognise that such investigations bring the ombudsman into territory that would otherwise fall exclusively to the board. However, the ombudsman role focuses on issues relating to police conduct; the Board's role goes much wider than that. Nevertheless, it will be important for both organisations to take steps to minimise duplication. I do not consider it appropriate to prescribe this through primary legislation, but I hope that both organisations will draw up a protocol or memorandum of understanding to deal with the matter, and I encourage them to do so. Therefore for the reasons that I have discussed, I am afraid that I cannot accept amendment No. 45.

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Similarly, amendment No. 46 would restrict the ombudsman to investigating only when a police officer has committed a criminal offence or is responsible for conduct that has given rise to disciplinary proceedings. The Bill as it stands provides for an investigation where the ombudsman has reason to believe such an investigation would be in the public interest.

I understand the concern that has prompted the tabling of this amendment, but I hope that I can reassure the hon. Member for North Down (Lady Hermon). There is a difference between something that is in the public interest in the sense that it is for the genuine good of the public at large, and something that is of interest to the public—for example, something that satisfies public curiosity. That is why the wording of the clause was amended in another place: the phrase "of significant public concern" was changed to "in the public interest". The present wording of the Bill therefore prevents artificial public concern from being whipped up by interest groups in order to provoke an investigation.

Amendment No. 46 goes too far in limiting the ombudsman's powers to investigate, however. It is clearly inconsistent with the recommendations of Patten. It would unnecessarily and unhelpfully limit the powers of the ombudsman.

Amendment No. 46 would mean that the ombudsman would not be able to deal with a situation where she was concerned that, if a policy were to be applied, it might result in an offence being committed. The amendment clearly would hamper her powers both to prevent offences and restore public confidence in the PSNI. It is contrary to Patten, and I therefore cannot accept it.

With regard to amendment No. 47, the Government's intention is that the power to investigate police policies and practices should not be retrospective. Our amendment introduced in another place made it clear that the ombudsman's power was restricted to current policies and practices.

In investigating current policies and practices, it would, of course, be natural for the ombudsman to inform herself of the way in which officers have conducted themselves in applying these policies and practices. If we were to agree to amendment No. 47, however, she would not be able to look at officers' conduct, in applying current practices and policies, which had, for example, occurred only the week before Royal Assent.

Lady Hermon: I have listened carefully to what the Minister has said. Given that financial powers have been devolved to district commanders, it is possible, for example, that the North Down district commander could exercise his discretion and give priority to dealing with drug abuse. What is there to prevent the ombudsman from saying that she would like to inquire into that current practice, in the public interest? What grounds for judicial review of her decision would the wording of clause 12 offer, if she said that such an investigation was in the public interest?

Jane Kennedy: If the ombudsman felt it appropriate to launch an investigation such as the one that the hon. lady has described, I am not sure that it would be a particular problem. I am puzzled as to why the decision

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of a district commander to introduce a policy to deal with a specific issue—such as drug abuse in a particular area—would cause the ombudsman such anxiety that she would consider it in the public interest to investigate. However, I cannot prescribe the circumstances in which the ombudsman may investigate: she needs to have the freedom to examine policies and practices, especially if it has been suggested to her that their application is not in the public interest. Who knows what may grow out of the relationships between DPPs and the local district commanders?

I cannot see the circumstances in which the example given by the hon. Member for North Down would arise. I do not believe that it would be the problem that she suggests. It is important that we be pragmatic, and I confess that I am struggling to follow the logic of the example that the hon. Lady has given.

Lady Hermon: I am genuinely grateful to the Minister for allowing me to intervene again, but the difficulty is that the wording of the clause is so subjective. Anyone who wishes to complain and take judicial review proceedings will find it very difficult to succeed in those proceedings because of the width and subjective nature of clause 12.

Jane Kennedy: We are talking about "the public interest", a phrase that is widely used in legislation. It is pretty well understood, and I do not believe that there will be the degree of difficulty that the hon. Lady has described. I feel that, on this occasion, her fears are ill founded.

The hon. Lady gave the example of a drugs policy being implemented in a particular district command. It is likely that such a policy would be agreed under the local policing plan and subject to scrutiny by the local DPP. That would be in line with targets set by the board. A district commander is highly unlikely to follow a policy that would be so far out of kilter with what was happening elsewhere in the PSNI that it would cause so much concern.

Lady Hermon: I am grateful to the Minister for giving way again, but this is a very important point. Yesterday in this House we discussed thoroughly the powers of district policing partnerships. DPPs, in North Down and elsewhere—although, after yesterday, I cannot speak for Belfast—do not have executive decision powers; they have only advisory and consultative powers. They will not bind the district commander, so the district commander could make a decision to direct resources in North Down to a particular policy without an executive agreement from the DPP.

Jane Kennedy: Indeed, there is nothing in the Bill that would limit the operational independence of district commanders, but they always work under the direction of the Chief Constable, who always works within the remit of the policing plan developed by the Policing Board and, indeed, of the policies established by the Secretary of State. The hon. Lady's example gives rise to undue concern. We want the ombudsman to focus on the present, not on the past. We do not want to tie her

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hands in such a way as to make it impossible for her to operate. That would be the effect of the amendment, so I cannot accept it.

3.30 pm

I turn to new clause 7, which deals not with the new power to investigate policies and practices, but with the ombudsman's core role of investigating complaints. Under section 64(2A) of the Police (Northern Ireland) Act 1998, the Secretary of State may by regulations prescribe a time limit within which a complaint must be made or a matter referred if it is to be investigated by her office. The regulations may prescribe exceptions to the time limit; we discussed that at some length in Standing Committee. The regulations that have been made under that provision set a time limit of 12 months and provide for certain exceptions. In particular, the ombudsman must believe that a member may have committed a criminal offence or have behaved in a manner that would justify disciplinary proceedings, and in most cases there is also a condition that the matter must have grave or exceptional circumstances.

The effect of the new clause would be that regulations could provide only for exceptions to the time limit where the circumstances were both grave and exceptional. Although I have some sympathy with what the hon. Lady is trying to achieve, if it is intended to facilitate society in looking forward—a point that has been made in another context by the Chief Constable in the very recent past—paragraph 5(19) of the Patten report states:

as it was then—

I agree with that. However, there is a balance to be struck. It is not the role of the ombudsman to conduct a series of witch hunts, nor does the present post-holder have any such intention. But our judgment is that the current wording of the regulations made under section 64 of the 1998 Act, as amended by section 65 of the Police (Northern Ireland) Act 2000, reflects the appropriate balance. As part of the confidence-building process in policing, it would not be right to dilute the powers currently vested in the ombudsman by placing a further restriction or an additional condition on the use of those powers.

I want to touch briefly on the issue of resources that the hon. Lady raised. Although I turned down the request for further resources that the ombudsman's offices made, I did not say that she may not conduct any of the inquiries that she suggested that she would like to carry out. Her office has received an increase in funding of more than 40 per cent. and has received all the funding that it bid for in the Budget round this year. The ombudsman's office is therefore very well resourced. It is for her office to determine how those resources are managed, and I made that point when I discussed the matter with her last week.

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I hope that I have been able to allay some of the hon. Lady's concerns; given the exchanges that we have had, I guess that I may not have allayed them all. However, I shall certainly ask my hon. Friends to resist the amendment if it is pressed.

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