Police (Northern Ireland) Bill [Lords]

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Jane Kennedy: The hon. Member for Spelthorne will be horrified when I tell the Committee that I found myself in broad agreement with much of what he said. I hope that he will not take that as an encouragement to speak at length on other matters, but on this occasion many of the concerns that he raised were very well expressed.

We should not dismiss the fourth page of the hon. Gentleman's briefing because the Ulster Unionist party and Opposition peers in another place raised concerns about the handling of sensitive information; in particular, that which could endanger life. The special committee approach is an attempt to address those concerns; it offers a practical solution to the issue by ensuring that sensitive information that is made available to the board has a small circulation.

It would be wrong of me to fail to respond to the criticism of the right hon. Member for Upper Bann and the hon. Member for East Londonderry. Both of them represent parties that were not consulted on this issue, and I apologise for that. I failed to follow through vigorously enough with regard to the necessity of keeping in touch with those parties that have played a constructive role on the board, alongside the party of my hon. Friend the Member for Newry and Armagh, by largely working together in a consensual way. The right hon. Gentleman has reported and reflected the anger and offence that is felt by members of his party, and I am sure that members of the Democratic Unionist party feel similarly; I am disappointed that this has happened.

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Briefings and discussions were conducted in another place. There are no excuses for what happened, but the reasons for the failure to consult fully include the time pressure under which we were operating and the unavailability of the representatives of the party of the right hon. Gentleman at that time, to which he referred. It is also fair to say that the board took a collective view that, on matters such as this, consultation should be with political parties rather than the board, although that does not get me off the hook of failing in the way that the right hon. Gentleman describes.

I am grateful for this opportunity to listen again to the concerns about this matter. The debate has been very useful and constructive. It has revolved around the issue of how we enable the board to carry out its function in a proper and appropriate manner while safeguarding the detailed information that the Chief Constable may have to share with the board from time to time.

The amendments deal with the arrangements for establishing a small committee, as we all know from the previous debate. The thinking behind the clause was to ensure that the most sensitive information could be kept in tight circulation within the board in order to protect it. Members of the Committee will appreciate that restricting circulation to small numbers is an important principle in safeguarding sensitive information, and it seemed prudent to put in place an arrangement that does that. We have already discussed under clauses 9 and 18 the occasions on which the Chief Constable might do that. Essentially, those occasions are in the context of the report requested under section 59 of the 2000 Act or in response to a request for information under new section 33A to that Act, which is introduced under clause 18.

The Government think that there is value in establishing a small group within the board, possibly following a request from the Chief Constable. I do not intend to create a two-tier board, and I was interested to hear the comments about that. It would be an unhealthy development, and would disturb what has so far been a very constructive working board. The creation of such a small group has value and means that sensitive information can be shared without being exposed to wider circulation. That should enable the Chief Constable and the Secretary of State to be more open in the sharing of such information.

Amendment No. 91 is interesting and proposes that the board have discretion over whether to set up such a committee. Of course, if the amendment were made and the board chose not to set up a small committee, the Chief Constable and the Secretary of State could take that into account in deciding the extent to which sensitive information should be shared with the board; it would have been the board's choice, in such circumstances, not to set up the committee. It would then be at the discretion of the Chief Constable and, ultimately the Secretary of State, as to whether that made it inappropriate for sensitive information to be shared.

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If we were just dealing with information covered under the grounds of referral in clause 22, as recommended by the Patten report, I would be less concerned about the amendment. However, the Bill provides that other sensitive information that, if disclosed, could put someone in danger—that issue in particular caused concern in the other place—should not form a ground for referral to the Secretary of State, but rather should be shared only with the small committee of the board, thus restricting its circulation. Without a small committee and a further change to re-include that information in the grounds of referral in clause 22, the Chief Constable would have no choice but to share that information with the full board. For the sake of the person whose life could be in danger, I believe that that would be going a step too far.

One possibility might be for the board to have discretion over whether to set up such a committee—that, broadly, is what the right hon. Gentleman suggests—unless specifically asked to do so by the Chief Constable. The hon. Member for Spelthorne made a valid point about requiring the committee to be set up only when it is needed. I understand the sense and value of that, but what should be the trigger for the establishment of such a committee? The right hon. Gentleman for Upper Bann might like to reflect on that in his reply. It may be that the principle of a committee is anathema to his party; that would present a different set of issues. However, if the committee is potentially workable, he might like to consider the matter. I am genuinely interested to hear what Committee members have to say about it.

If the board asks for sensitive information requiring limited distribution, the Chief Constable should not be torn between his statutory duty to account to the board and his other duty to protect information that, if disclosed, could endanger someone's life. Similarly, should the Secretary of State have the power to require the board to set up such a committee? At present, the Bill allows him the discretion to require the Chief Constable to share certain information with the committee rather than with the rest of the board. If no such committee existed, that discretion would be fettered. Is it preferable in such circumstances for the Secretary of State to be forced to choose between withholding the information from the board and sharing it with the full board? Would it not be better for him to have the option of knowing that there would be a small committee with which the information could be shared? It is the consideration of those issues that led us to introduce an amendment in another place.

I have listened to the Committee's views on the proposals, and there may be more to say on it. I am reluctant to support amendment No. 91 as currently framed, but I will reflect further on what has been said and, if appropriate, reconsider for Report.

Amendment No. 92 proposes that all members of the committee should be vetted by the security service. I do not agree with that. It is important that the members of the committee are selected not by a Government agency but by their cross-community

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peers on the board. Such selection gives them credibility.

Mr. Wilshire: I do not think that amendment No. 92 proposes that the board members should be selected by a Government agency. It says only that steps should be taken to ensure that the people who are elected by their community conform to the reasonable norms of a civilised society, which terrorists do not.

Jane Kennedy: I take the hon. Gentleman's point, but the effect of the amendment would be the same. As members of the board, the duties placed on them would require them to behave responsibly in dealing with such information.

Mr. Wilshire: I am sorry to hear the Minister say that, because we were getting on rather well. If the effect of amendment No. 92 would be to exclude terrorists from the process, that is a good reason for supporting it.

Jane Kennedy: I do not share that view. It is worth remembering that board members also have a duty under the Human Rights Act 1998 not to act in any way that would infringe an individual's article 2 rights under the European convention on human rights. When the Chief Constable has shared with them information, the disclosure of which could put an individual in danger, board members have a duty to protect that individual. That duty is supplemented by the offence that we just discussed in debating clause 20.

I accept the point that a limited amount of information relating to national security may be shared with the small committee and that that is a different category of information. However, it would only be shared at the discretion of the Chief Constable and/or the Secretary of State, both of whom would want to exercise their judgement on how to strike the balance between safeguarding the national interest and ensuring openness and transparency.

As such, there is no fundamental difference from the present position. It is already the Chief Constable's discretion, under the terms of section 59, to decide whether to share such information with the board or to refer the request to the Secretary of State, and it is already the Secretary of State's discretion to decide whether to uphold the board's original request. The creation of the small committee does not change that principle. However, it provides a third option for the Chief Constable and Secretary of State that would keep the sensitive information on a smaller circulation, a situation to which my hon. Friends will be unused. It is an occasion on which size really does matter; it is the size of the committee, not its individual members, that is important.

Amendment No. 100, tabled by my hon. Friend the Member for Newry and Armagh, would increase the committee's size from five to seven members. The value of the small committee is that its membership is significantly smaller than the board, and I agree with the hon. Member for Spelthorne on this point. At five, its membership is significantly smaller than the board, which keeps the circulation of sensitive information to fewer people. The Bill proposes that the committee should have five members, selected by and broadly representative of the board. It also proposes that at

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least one of the chairman and vice-chairman should sit on the committee, although given the cross-community nature of their roles, the board might decide that both should sit on the committee. However, that would be a matter for further debate.

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Prepared 27 February 2003