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Lord Williams of Mostyn: Plainly, we shall need to have a full substantive debate on this proposal. I shall explain the thinking behind it, which would at least expose that thinking, even though it may not be universally applauded.

Line 43 at the bottom of page 6 of the Bill says:

of the 2000 Act—

    "after "by" insert—


    (a) a majority of members of the Board present and voting on the proposal".

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There is no prospect that a minority present and voting could bring about an inquiry. In fact, on my reading, those words,

    "a majority of members of the Board present and voting on the proposal"

are not in the original Act at all.

This means that we are lowering the threshold to get an inquiry. The reason for that is plain. Those who see themselves to be in a minority on the board at the moment are concerned that the threshold is too high, because those whom they see as the majority representatives—I stress those words "they see as"—can simply stay away or abstain to block the motion.

The answers to the carefully crafted questions of the noble Lord, Lord Rogan, which I shuddered to hear, are nought, nought and nought at the moment. He may well have been in possession of that information before he asked the question. It is a perfectly legitimate question. The Government have made this commitment to deal with complaints that have been expressed that there might be a proper case for an inquiry of this sort which could be stymied by those who have the majority on the board. It is as plain and simple as that. That is the judgment that has been made. It is in no sense a criticism of the board; it is the response to a feeling that exists. There still remains the override that I have described to your Lordships in page 6 of the Bill, to insert,

    "a majority of members of the Board present and voting".

Therefore, it is a lowering of the threshold but it is not in any way an empowerment of a minority to have its will over the majority of those present and voting.

Lord Glentoran: I am afraid that I cannot agree with the noble and learned Lord on this occasion. I hear what he says, but by opening the opportunity to have fewer people in the boardroom allowed to vote, he is opening the doors to what I call a form of gerrymandering. Reducing the numbers allows the situation to encroach. I am sure many of us in less important situations and corners of the world have played this game on little committees, trying to make sure that we have the committee stacked with the people we want there and forgetting to tell the others that it is happening. I know that is frivolous, but it is behind my thinking to some extent.

There are legal methods used within government circles, in the Millennium Commission and others, such as postal voting. If a decision of this nature needs to be taken urgently by the board, there is nothing to stop the chairman or the chief executive ensuring that those members who cannot be present on the day when the decision needs to be taken have an opportunity by fax to put their signature to their vote and thus enforce them either to make a decision or knowingly abstain and live with the result.

5.15 p.m.

Lord Williams of Mostyn: Perhaps I may deal with that, because it is an important point. I do not think it

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is a fair representation of the safeguards in Schedule 1 of the 2000 Act. It is at page 50, if that assists Members of the Committee.

Paragraph 18 of Schedule 1 at page 50 of the 2000 Act says there have to be at least three members of the board making a written request asking for a meeting of the board to be called "to consider the matter"—the matter being the setting up of an inquiry. That is trigger number one.

Secondly—and this is mandatory—the chairman,

    "shall, no later than three working days after the day on which he receives the request, call such a meeting.

    "(3) The meeting shall be held no earlier than six, and no later than twenty-one, working days after that day."


    "(4) The chairman shall notify each member of the Board of the date and purpose of the meeting."

Those are very strict safeguards against the sort of fiddling or gerrymandering to which the noble Lord referred. I accept that the noble Lord's concern is a legitimate one, but it is fully met by those safeguards.

Lord Glentoran: I accept what the Minister has said, in the light of those safeguards. I was aware of that, but I still wanted to make the point.

Lord Maginnis of Drumglass: I have listened carefully to what has been said. I query the mathematics of the noble Lord, Lord Shutt, who suggested that in our Amendments Nos. 20, 21 and 22 we were seeking to achieve two thirds of the board voting. Those amendments would increase by one each of the numbers required in the 2000 Act, for a fairly obvious purpose. That is to underline our concern at the changes that have been made and accentuate our feelings on the matter. However, even nine out of 16, if my mathematics are not at fault, is around 56 per cent—something over a half. Ten out of 18 would be 55 per cent, and 11 out of 19 is about 57 per cent, give or take a percentage point. There is no question of us going to ridiculous lengths and asking for two thirds.

However, I can envisage a situation in which there were only 15 people present, with four people unable to attend for some reason. If and when—perhaps I should just say when—we have Sinn Fein and other disreputables on the board, I can foresee a mischievous group of eight members taking advantage of the fact that only 15 members, or even fewer, are present and calling for an inquiry. Eight can cause an inquiry. If there were 17 people there I believe eight could still cause an inquiry. The Minister will clarify that, but I think we are talking about minimum numbers, we are not talking about democratic votes in terms of those who are present. I can foresee—and I hope the Minister will foresee—a situation where things get very tight, where the temperature rises in Northern Ireland and where, on a daily or weekly basis, a mischievous group get together and seek to call a meeting. As I understand it, we do not have to have eight to convene the meeting; eight can cause an inquiry to be held. A mischievous group of less than eight could regularly cause a meeting to be brought about until they find that they have the requisite eight

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and so an inquiry is called. You only have to win once when you are a terrorist. The issue is not the calling of an inquiry; it is the ability, through this ridiculously low number, to disrupt the working lives of other members of the board by calling a meeting on a whim and forcing this to happen again and again. I would be grateful if the Minister would address that issue.

Lord Williams of Mostyn: Perhaps I may amplify what I said earlier, because I may not have been clear. I repeat that there has to be a majority of those present and voting to bring about a positive vote for an inquiry. If there were, for instance, 17 present of whom eight voted for an inquiry, that would not bring about an inquiry.

Lord Maginnis of Drumglass: I admit that I am thinking less than clearly today, for obvious reasons. That was not what I intended to say. I intended to say that with the prospect of eight being able to cause an inquiry to be held, there will be increasing motivation to call meeting after meeting to test the waters and so disrupt the working lives of other members of the board. I doubt that one would be disrupting the working—with the emphasis on working—lives of Sinn Fein/IRA; they are quite flexible in all they do.

Viscount Brookeborough: As opposed to my noble friend Lord Maginnis, I am thinking clearly on this one. I meant a majority simply in the sense that if a decision is taken by eight people, whether it is a split decision or otherwise, it is a decision of the board. That board, as it sat, is capable of being less than 50 per cent of its full number. Therefore, the decision has been taken by a group consisting of under 50 per cent of the total board.

One may wish to split hairs, but when decisions were made on matters such as the police uniform and Omagh, one was not aware of people's personal thoughts in those meetings, how they came to those decisions or how people may have restrained from voting or voted one way or the other. One was presented with was a unanimous decision because 100 per cent of the board was present. One is in danger of being presented with a decision reached with fewer than 50 per cent of the board present. I believe that that undermines our credibility.

Lord Maginnis of Drumglass: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 22 not moved.]

Clause 10 agreed to.

Clause 11 [Investigations by the Ombudsman]:

Lord Williams of Mostyn moved Amendment No. 23:

    Page 7, line 13, after "a" insert "current"

The noble and learned Lord said: In this group, we find Amendments Nos. 23 and 27. Amendment No. 23 is in my name; Amendment No. 27 is in the names of the noble Lords, Lord Maginnis and Lord Rogan. I believe that both amendments seek to establish a common point; namely, to clarify that the

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ombudsman's power to investigate police policies and practices is non-retrospective. I believe that Amendment No. 23 is preferable, and I shall try to explain why.

In answer to specific questions raised by noble Lords during Second Reading, I said that it was not the Government's intention that the power to investigate police policies and practices should be retrospective and that we would try to clarify that. I hope that I am fulfilling that undertaking.

Amendment No. 23 makes clear that the ombudsman's remit in relation to the investigation of policies and practices is restricted to practices that remain current. That is why the additional qualifying word—"current"—is included. In investigating those, it might well be natural to inform herself of the way in which officers have conducted themselves in applying those policies and practices.

If we agreed to Amendment No. 27, the ombudsman would not be able to look at conduct in applying current practices and policies which had, for example, occurred only the week before Royal Assent. Therefore, in bringing forward our amendment, I hope that we have met the concerns expressed at Second Reading and elsewhere. The word "current" would limit the scope for investigation and the ombudsman would have to carry out her investigations on the basis that she was investigating current policies and practices. I take the point that she should not be usefully engaged in looking at policies and practices which had perhaps ceased 20 or 25 years ago. I hope that I have met the spirit of what Members of the Committee expressed. I beg to move.

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