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Lord Hylton: My Lords, it might be helpful to the House if the noble and learned Lord could tell us how often Section 59 reports have been called for by the board; and how often the Chief Constable has felt obliged to rely on the safeguards at present built into subsection (3)?

Baroness Park of Monmouth: My Lords, I return to my usual premise. Both the implementation plan and the Patten recommendations rested on the idea that Sinn Fein would support the new police arrangements, would join the board and would work with everyone. Sinn Fein has given clear indications that it wishes to destroy the present police; it has told its own young people not to join. That is not what was planned. In view of that, it is vital that the wise provisions of the 2000 Act are retained and we ensure that it is not possible for anyone who wishes to be a wrecker to wreck.

Lord Maginnis of Drumglass: My Lords, I want to enlarge on a very sensible query posed by the noble Lord, Lord Hylton, in terms of how many times the necessity has arisen for the Chief Constable to invoke

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Clause 8. In terms of this Bill, that is not relevant. We are looking at a situation where Sinn Fein is going to be given a leg up on to the Policing Board and where an entirely different set of circumstances will rule.

If the safeguard is removed and if at the same time the number of people on the Policing Board who are able either to demand a report from the Chief Constable or to seek an inquiry is reduced, we shall have a greater need for the safeguard that is sought today. I simply make that point. We cannot judge on what is happening now, but we must judge on what is likely to happen when Sinn Fein is brought on to the board, as clearly the Government intend.

Viscount Brookeborough: My Lords, I support Amendment No. 10. At the previous stage of the Bill, we asked the noble and learned Lord, Lord Williams of Mostyn, where the proposal had come from and who had asked for it. He said only that it had appeared in the Patten review and in a few other documents. Clearly, if that had been the sole reason for the proposal, the Government would have followed the Patten review in the first place. They did not do so then and have now introduced it for a different reason.

Who asked for the measure? The noble Baroness, Lady Park of Monmouth, hit the nail on the head in saying that it was the SDLP and Sinn Fein. It is no secret within the Policing Board at present that the SDLP wishes to have the ability to inquire into everything. The SDLP is very much part of the working board, but there are one or two small issues that it likes to address from the point of view of its electorate. The SDLP wants to be able say to its electorate that it is part of a body which can investigate anything, anywhere, at any time, regardless of the consequences. Therefore nobody—for even good judicial and crime detection reasons—can intervene or put anything in the SDLP's way.

It has asked for and questioned the first provision,

"in the interests of national security".

When the late director of the Security Services appeared at the Policing Board, the question was asked: why should we not look at national security? That suggestion clearly came from the SDLP and Sinn Fein wants that too. They have asked for Clause 8 and the Government are prepared to give way.

Those to whom I have spoken, either in regard to policing or legal issues, have said that this can be only to the detriment of crime detection and prevention because the Chief Constable can refuse on the basis that the matter is already in court. The police may have a case which they have spent months investigating. Noble Lords will understand that cases cannot be investigated and reach court in less than a month, so this length of time is short enough. The Chief Constable can refer the matter to the Secretary of State and once it is under the jurisdiction of the court, it cannot be intervened with. However, before reaching court the whole case can be destroyed.

On speaking to someone who wants the measure, I put forward the point—it does not matter whether we are referring to the Stormont spy case or anything else, but that is a particularly long-running case—that if

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information is required, it should be available. I asked what would happen if obtaining the information prejudiced the case. For all I know, a policeman or a spy at Stormont could be involved in the case. I asked what would happen if ultimately someone should be prosecuted but the case could not go ahead because the information obtained came from areas where the Chief Constable had no protection. I was told, "That that would not happen because we would not ask".

The clause is nothing but a safety net. It is perfectly straightforward. It is obviously being used to buy Sinn Fein and to allow it and the SDLP to go to their electorate and say that they are on the board. I believe that the SDLP is talking purely to its electorate. Sinn Fein is talking to its electorate. We know what may happen at the next election; people may move to the extremes. The SDLP is being reasonable within the board, but it has backed this proposal because it knows that the Government are ready to sell out. That is totally unreasonable and totally impractical. I believe that it simply would not occur in any other jurisdiction one could imagine as being sane, sensible and working for peace.

12.30 p.m.

Lord Williams of Mostyn: My Lords, the noble and learned Lord, Lord Mayhew, is right. First, he said explicitly that this probably is the issue that concerns your Lordships more than any other in the Bill. Secondly, he said implicitly that we are unlikely to agree. The noble Lord, Lord Glentoran, and the noble and learned Lord, Lord Mayhew, helpfully developed the issue—to give it a proper and appropriate hearing—to encompass the whole of the Clause 19 issues. It is probably helpful for me to respond in the same manner because if there is to be a Division it might as well be at this stage rather than when we come to Clause 19. The structure of the Act means that it is impossible to discuss these amendments without the wider issues of Clause 19.

The answer to the question asked by the noble Lord, Lord Hylton, is "none".

The noble and learned Lord, Lord Mayhew, is right in saying that the proposal derives from paragraph 6.22 in the Pattern report, which states:

"We recommend that the Policing Board should have the power to require the Chief Constable to report on any issue pertaining to the performance of his functions or those of the police service".

I stress the next sentence.

"The obligation to report should extend to explaining operational decisions. The grounds on which the Chief Constable might question this requirement should be strictly limited to issues such as those involving national security, sensitive personnel matters and cases before the courts".

That, in fact—

Viscount Brookeborough: My Lords, I thank the noble and learned Lord for giving way. The report refers to the Chief Constable explaining decisions. I accept that that relates to decisions which the Chief Constable has made; decisions that have been taken. But he may be asked for information during an investigation and for the reasons why decisions may be

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taken in the immediate future. In that respect, we are talking about two different things. Past decisions taken some time ago are different from decisions being taken at a particular moment during the conduct of an investigation.

Lord Williams of Mostyn: My Lords, I see the distinction, but I do not accept its validity. The Patten report is unambiguous on the matter:

"The obligation to report should extend to explaining operational decisions".

That does not state that the decisions have to belong to pre-history. Indeed, the Patten report puts the almost philosophical difference clearly, if not wholly to the satisfaction of everyone in this Chamber.

The report continues:

"One of the most difficult issues we have considered is the question of 'operational independence'".

I remember that the noble and learned Lord, Lord Mayhew, turned to this matter when we had our most illuminating discussion in Grand Committee. The report goes on:

"Long consideration has led us to the view that the term 'operational independence' is itself a large part of the problem. In a democratic society, all public officials must be fully accountable to the institutions of that society for the due performance of their functions, and a chief of police cannot be an exception. No public official, including a chief of police, can be said to be 'independent'. Indeed, given the extraordinary powers conferred on the police, it is essential that their exercise is subject to the closest and most effective scrutiny possible".

That is, perhaps, an almost philosophical difference of approach.

The noble and learned Lord is right in saying that the implementation plan is dated 2001—post the Act. The report further states that,

"the Policing Board should have the power, subject only to the same limitation set out in paragraph 6.22, to follow up any report from the Chief Constable by initiating an inquiry into any aspect of the police service or police conduct".

That is what is now being done in the Bill. We have altered the four grounds and there are now three. They are set out in Clause 19 as:

"(a) it is in the interests of national security;

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

(c) the information would, or would be likely to, prejudice proceedings which have been commenced in a court of law".

Therefore, if there is information the disclosure of which is likely to put an individual in danger, that is—and I use the term generally—protected.

I do not believe that we are going to reach an agreement of minds here, partly because of the difference of fundamental approach. It is wrong to say that this is a Bill to benefit Sinn Fein; that it is a Sinn Fein benefit. In fact, the SDLP made representations during the passage of the first Bill stressing its discontent.

There are the safeguards here. Section 59(2)(b) of the 2000 Act states that the report shall be made,

"within the period of one month from the date on which that requirement is made or within such longer period as may be agreed between the Chief Constable and the Board".

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It is useful to look at recent experience; there has been no requirement—which is the answer to the question posed by the noble Lord, Lord Hylton. I am able to tell your Lordships that the current Chief Constable, when the matter has been discussed with him, finds it hard to see a situation arising in which it would be necessary for him to invoke the ground as it now stands in the Act. He would work with the board to reach an accommodation on issues of that nature.

I have spent a little time on the general theme of Clause 19. These are not amendments that the Government are prepared to accept. Nor will we accept—I must say plainly at this stage—any attack on the Question that Clause 19 shall stand part of the Bill, if that were to be made. I hope that your Lordships do not think that discourteous, but I have to put the matter beyond doubt.

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