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Lembit Öpik: I was a little agnostic on amendment No. 22, but having listened to the hon. Member for Basingstoke (Mr. Hunter), I do not find it unreasonable to include the words that he outlines. If I had just walked in, having travelled the length of the country—from Kirkwall, for example—and had not known the political affiliation or the status of the hon. Member for Basingstoke, I might have mistaken him for a Minister, from listening to his argument. The argument that he put forward was similar to the kinds of argument that one hears from the Government, in terms of language and rationale.

Mr. Swayne: That is not a compliment.

Lembit Öpik: I was making it as a morally neutral statement, in the hope that I would persuade the Minister, in responding, to acknowledge—on a matter of judgment, not of principle—that the argument made by the hon. Member for Basingstoke makes sense.

I shall also be interested to hear what the Minister says on the position of the hon. Member for Newry and Armagh (Mr. Mallon) and amendment No. 17. Having listened to his argument, I am not entirely clear what the amendment would add to the legislation as it already stands.
 
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7.15 pm

Mr. Dodds: As the Bill currently stands, clause 6(3) sets a very low threshold indeed. It says:

"The Director shall refer to the Ombudsman any matter which—

(a) appears to the Director to indicate that a police officer—

(i) may have committed a criminal offence; or

(ii) may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".

What the Government propose is already a low threshold in terms of reference by the DPP to the police ombudsman.

The hon. Member for Newry and Armagh (Mr. Mallon) seeks to lower the threshold completely—almost so that there is no threshold at all. The DPP would exercise no discretion whatever under amendment No. 17, by whose terms, as I understand them, any allegation at all—including that a police officer might have committed a criminal offence—would have to be automatically transferred to the police ombudsman. That is not reasonable on any terms. Surely it is entirely reasonable that the DPP should make some sort of assessment of whether the allegation in question is entirely vexatious, spurious or trivial, rather than having to transfer every single allegation, however vexatious or trivial, to the ombudsman.

Lembit Öpik: That is my understanding, too, of what amendment No. 17 would do. Does the hon. Gentleman agree that if that is the correct understanding—and I may have misunderstood—it provides every opportunity to reduce the credibility of the system and to create a moribund environment in which many unproven cases hold up the genuine cases that we would like to see explored?

Mr. Dodds: I agree with the hon. Gentleman. That is exactly the danger, and exactly why there needs to be discretion for the DPP. The hon. Member for Basingstoke (Mr. Hunter) set out very cogently the arguments in favour of the DPP's having discretion on this, and I shall not rehearse those arguments except to emphasise that we are dealing with an issue on which the Government's proposals clearly fly in the face of the criminal justice review. The Minister has time and again today prayed in aid the criminal justice review to support his proposals, but on this proposal, which clearly runs counter to the criminal justice review, the Government are proceeding nevertheless. Indeed, that criticism can be doubly applied to the hon. Member for Newry and Armagh, because he wants to move even further away from the terms of the criminal justice review.

That brings us back to the fundamental point that we must look at the origins of the Bill: the Hillsborough talks that led to the joint declaration.

As with the amendment that dealt with removing the veto power of the Lord Chief Justice, I should be interested to know from where exactly the pressure has come, what representations have been made and why the Government feel that, on this occasion, it is right to depart from the criminal justice review, given that they have carefully followed its recommendations and claims in respect of other matters.

Mr. Spellar: I begin by welcoming the hon. Member for Orkney and Shetland (Mr. Carmichael), on whose
 
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travels we have had regular bulletins. I am in the interesting position of being pulled in one direction by the Democratic Unionist party and in another by the Social Democratic and Labour party, which might indicate that we have struck the right balance between the two in this clause.

The DUP amendment would give the Director of Public Prosecutions discretion as to whether he should refer a case of suspected police malpractice to the police ombudsman. I should like to make it absolutely clear at the outset—as the hon. Member for Basingstoke (Mr. Hunter) pointed out, I said this in Committee—that the current terms of the clause are no reflection whatsoever on the professionalism of the Director of Public Prosecutions. I am happy to endorse fully the independence and the impartiality of the DPP, in whom the Government have every confidence.

Contrary to what the Opposition say, the Government believe that the current clause accurately meets the criminal justice review's recommendation, as stated in paragraph 4.133, that a duty be placed on the DPP to ensure that any allegations of malpractice by the police are fully investigated. How would that work out in practice? Let us say that the DPP is working on a case file from the Police Service of Northern Ireland and is examining it to determine whether the case should be prosecuted. In the course of this process, he comes across something that suggests that a police officer may have acted improperly. I am talking here not about evidence being presented as part of the case, but about uninvestigated evidence: incidental details, inconsistencies, niggling questions, worrying gaps in the evidence or in procedure, or allegations made by witnesses—a point to which I shall return. In such a situation, he passes these matters to the police ombudsman. After all, he does not have the responsibility or the resources to investigate them and to find out whether there is any substance to them; that is the proper role of the police ombudsman. Nor, of course, is it the responsibility of the police to investigate themselves—that is why we have a police ombudsman. It is her responsibility to investigate police wrongdoing.

The police ombudsman then investigates the matter. It may turn out to be nothing, or a very serious matter indeed. If there is evidence that could lead to prosecution, she will pass the file to the DPP, who will take a decision on prosecution based on the properly collated evidence placed before him. What the provision does not do is to make the police ombudsman investigate suspected police wrongdoing that has already been investigated once, and in respect of which the DPP has been asked to take a decision about prosecution. It is not a circular process and it does not create double jeopardy. The DPP does not need to refer to the ombudsman matters of which she is already aware.

Nor does the provision allow the DPP to take a decision on the prosecution of a police officer based on a few scraps of evidence that he happens to come across in the course of his work. The fundamental premise on which the provision is based is that the DPP's job is to take decisions about prosecutions on an informed basis, and what we are talking about here are uninvestigated suspicions. I should also make it clear, particularly for the benefit of my hon. Friend the Member for Newry and Armagh (Mr. Mallon), that this provision does not
 
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allow the DPP to pick and choose which suspicious matters he passes to the police ombudsman. The DPP does not have discretion over whether he makes a referral; he does, however, have to keep his eyes open and to identify suspicious matters as such.

Some Members are concerned that that means that the DPP has no discretion. As I have explained, he ought not to be given responsibility for sorting out the wheat from the chaff; that is not his job—I doubt whether he would want it—but the police ombudsman's. He exercises his judgment in identifying matters for referral; he is not an automaton. Conversely, my hon. Friend the hon. Member for South Down (Mr. McGrady) complained in Committee, and my hon. Friend the Member for Newry and Armagh complained this evening, that the clause as drafted gives the DPP too great a discretion over referrals. Again, that is not the case. The clause is set at a very low threshold, as the hon. Member for Belfast, North (Mr. Dodds) rightly said. I stress that the DPP must refer to the ombudsman all matters—a clearly comprehensive term—that appear to indicate that a police officer may—

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