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Lord Glentoran moved Amendment No. 50:

The noble Lord said: We now take a little leap back into the past, because this amendment and Clause 19 encompass the short debates that we had yesterday on Clauses 8 and 9. The amendment concerns the rules governing the Chief Constable's ability to withhold information or an inquiry. It concerns disclosure of information on holding inquiries.

By and large, there is not a great deal to say, except to point out one massive omission. I ask the Government: why? What was the motivation for removing Section 60(3)(d) of the 2000 Act, under which the Chief Constable could ask for an inquiry not to take place,

    "because it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders"?

If that is not a jolly good reason for withholding an inquiry, whether temporarily or permanently, I cannot think what is. For goodness sake, what is the Government's motivation for wanting to leave that out? I beg to move.

5 p.m.

Lord Mayhew of Twysden: I am afraid that this is an example of the technique of doing everything by stealth. If this change to the relevant provision of the 2000 Act were to find its way into law, it would do ill, for the reasons touched on in shorthand by my noble friend Lord Glentoran.

The reason why I say that it is sought to be achieved by stealth is that by some tortuous drafting, it is tucked away into a new Section 76A to the borrowed and much abused 2000 Act, so that it will fall under the heading "Supplementary", after,

    "Expenses of Secretary of State",

and before "Orders and regulations". It has a remarkable effect. It is unnecessary to go at length through the scheme of the Bill, but it is worth reminding ourselves what Sections 58 and 59 of the 2000 Act achieve. We find those on page 31.

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The general heading for Part VII of that Act is "Reports and inquiries". Section 58 requires the Chief Constable to submit an annual report to the board, but it is followed by Section 59. That imposes a general duty on the Chief Constable to report but, in subsection (3) includes what has always seemed to me a sensible balancing provision. It states:

    "If it appears to the Chief Constable that a report in compliance with a requirement",

from the board,

    "would contain information which ought not to be disclosed".

Then follow four headings. The first states:

    "in the interests of national security"—

which is very sensible. The second states:

    "because it relates to an individual and is of a sensitive personal character"—

which is also very sensible—there is a government amendment tabled to that with which we will deal later. The third heading states:

    "because it would, or would be likely to, prejudice proceedings which have been commenced in a court of law, or".

Lastly, paragraph (d) states:

    "because it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders".

In those circumstances, Section 59 states, the Chief Constable may refer the requirement to submit the report to the Secretary of State. That seems sensible. The section goes on to state that the Secretary of State can, if so minded:

    "modify or set aside the requirement, as necessary, in order to exempt the Chief Constable from the obligation"—

and so forth.

The scheme of the clause is to operate on two of those four headings. It is only the last with which I want to deal: that which relates to an opinion that the report would be likely to,

    "prejudice the prevention or detection of crime or the apprehension or prosecution of offenders".

Perhaps from a slightly different viewpoint from that advanced by my noble friend Lord Glentoran, I wholly endorse his question and share his inability to understand why the Government should want to withdraw paragraph (d). What can be the reason? What has happened in the short period since the enactment of the 2000 Act? What is the motivation? What end is sought to be served? That is the critical question.

However, I want to go a wee bit further, because I hold that those matters—the question of who is to be prosecuted, in the first instance, although of course not ultimately, "the apprehension or prosecution of offenders" and not less "the prevention or detection of crime"—are essentially operational matters. I should be grateful if the Lord Privy Seal would address that. Under our constitutional arrangements, as much in Northern Ireland as in the rest of the United Kingdom, they are for the Chief Constable's operational independence.

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We have set our faces sternly against executive interference in those matters. It is most important for the maintenance of our democracy and for the rule of law that that should be maintained. Reference has already been made to Drumcree. I must say that principle was absolutely, explicitly and meticulously upheld by me in that circumstance—melancholy though the whole week proved to be—because it was an operational matter for the Chief Constable whether or not that march proceeded, in my view.

How will that principle suffer if the clause is enacted? It will suffers in this way, I suggest. Let us consider the question of the apprehension of an offender—I shall come to the prosecution of an offender in a moment. I repeat that that is entirely a matter for the operational discretion of the Chief Constable. If the Chief Constable's objection, on the grounds that to provide the required report would prejudice the apprehension of an offender, can be overridden without recourse to the Secretary of State, that provides a covert way to secure that a particular offender is not prosecuted because the whole trail will have been obfuscated. Similarly, in relation to the question of prosecution of an offender, the point is the same and does not need to be repeated.

The prevention and detection of crime are perhaps more straightforward issues. In my view, they should not be interfered with in this way without the ability of the Chief Constable to refer the matter to the Secretary of State. He would say, "This is what the board is doing. This, in my professional opinion, is what the consequence will be. Over to you, Secretary of State".

The matter that I have tried to describe is a rather serious constitutional as well as practical one. I believe I know enough about the noble and learned Lord to say that he would not wish knowingly to undermine or in any way make more difficult the maintenance of the operational independence of the Chief Constable. I know that he recognises how important it is for the rule of law, for the reasons that I have given.

It is rather disappointing to find on page 9 of the Explanatory Notes that:

    "The current fourth ground of referral (where disclosure would affect the prevention or detection of crime, or apprehension or prosecution of offenders) has been dropped".

There is not much of an explanation in the Explanatory Notes.

Viscount Brookeborough: I support the amendment. I shall not talk at length about it but I should like to know who applied the pressure for this provision to be dropped. It is as simple as that. I ask that from a personal and not from a board's point of view. I do not know who within or outside the political system in Northern Ireland would have done it. However, especially from what the noble and learned Lord said, it does not appear that it would have been from a judicial point of view or from the point of view of preserving law and order.

Therefore, my question is: who asked for it to be done? The noble and learned Lord may say that the provision is partly covered elsewhere in the Police (Northern Ireland) Act 2000, but I do not accept that

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that is a reason for taking it out of this clause. This clause specifically gives reasons why such inquiries for information might not take place. We all agree that a Policing Board of the future may be amenable to a Chief Constable, but the provision gives protection against the Policing Board over-reaching its powers and entering operational areas.

5.15 p.m.

Lord Maginnis of Drumglass: I, too, support the amendment in the names of the noble Lord, Lord Glentoran, and the noble Viscount, Lord Bridgeman. I shall accept guidance from the Chairman on this point but it has been intimated that it may not be possible to take Amendments Nos. 51 to 56 if this amendment is accepted. However, as it will not be accepted in this Committee, and my intention is to assist the Committee, in supporting Amendment No. 50 I want to refer to the other amendments because that will help to speed up the proceedings . I hope that that is acceptable.

I cannot pose the question any more cogently or positively than the noble and learned Lord, Lord Mayhew, has done. Why on earth are we faced here with a series of changes which appear to be of no benefit to society or to individual policemen and women or policemen and women in general? The idea that somehow the Chief Constable could not take into consideration an ongoing inquiry and its significance and knock-on effect in terms of serious crime is, bluntly, ludicrous.

It is no secret that, for example, burglary—a topic current throughout the United Kingdom—certainly in my district of Northern Ireland, is up by 32 per cent. If there is that amount of burglary, there must be a degree of organisation which, to investigate, would involve a huge amount of resources. Can one imagine a question being asked and the Chief Constable not having the ability to withhold that information, the publishing or publicising of which would be likely to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders?

I turn to Amendments Nos. 51 to 56. It is not just here that it appears that the interests of the individual are being sacrificed in the Bill. For example, we see the word "personal" substituted by the word "personnel". To many that would seem an academic point, but it is more than that. Where one has responsibility for the welfare of individual policemen, any good leader will look to the interests of the individual within the group which he leads as well as to the interests of the group overall. To decide whether something is in the interests or against the interests of personnel is so generic as to risk the interests of one individual who may be endangered. That is why we tabled Amendments Nos. 51, 54 and 57 to 59. All those amendments are concerned with whether it is the general or specific interest in the safety of police, and indeed others in society, that should be taken into account.

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Again, we see this as removing incrementally the specific interests of people. One sees on page 11, line 2, that the qualification is,

    "the information is sensitive personnel information or information the disclosure of which would be likely to put an individual in danger;"

For something to be deemed likely there has to be specific information as to the threat. One cannot say that something is likely if it is a general threat. Here again, instead of "would be likely", we propose "may". If there is any danger whatsoever, in other words, then the information should be properly guarded. That is relevant in Amendment No. 55. There again, if an onus of proof is required and that proof is not there specifically, can the Chief Constable willy-nilly ignore the possible or probable danger to an individual or group of individuals?

The noble and learned Lord, Lord Mayhew, has intimated that this is incremental. Nothing in itself could be deemed to be of the utmost importance, but cumulatively there is an undermining of the interests and the safety of members of the police in carrying out their duties.

The points we have raised in Amendments Nos. 53 and 56 are covered by the amendment of the noble Lord, Lord Glentoran. I beseech—if that is not too strong a word—the noble and learned Lord the Lord Privy Seal to look to the interests of individual policemen and individual members of the law-abiding community so that none is endangered by the interest being swept away in generic terms or by omission.

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