Justice (Northern Ireland) Bill [Lords]

Public Bill Committee, 1 April 2004.

Standing Committee D

Clause 5 - Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman

David Trimble (UUP, Upper Bann)

I beg to move amendment No. 34, in

clause 5, page 3, line 32, leave out 'may have' and insert 'has'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 35, in

clause 5, page 3, leave out lines 33 to 35.

No. 36, in

clause 5, page 3, line 38, at end insert

'No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coming into force of this section.'.

No. 68, in

clause 5, page 3, line 38, at end insert—

'(4AA) The Director shall refer to the Ombudsman any allegation coming to his attention that a police officer—

(a) may have committed a criminal offence; or

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

which is not the subject of a complaint, unless it appears to the Director that the Ombudsman is already aware of the allegation.'.

No. 69, in

clause 5, page 3, line 39, after '(4A)', insert 'and (4AA)'.

No. 70, in

clause 5, page 3, line 42, leave out from 'insert', and insert ', (4A), or (4AA).'.

No. 71, in

clause 5, page 4, line 4, leave out from 'substitute' and insert

', (4), (4A), or (4AA).'.

David Trimble (UUP, Upper Bann)

It is a pleasure, Mr. Benton, to get the sitting under way, just as I did last week. On that occasion, you had occasion to point out that I was speaking to the wrong amendment. I am speaking to the right amendment today, but one of the proposals contains a simple but important error. Amendment No. 36 should refer to ''before'', not

''after the coming into force of this section.''

The amendment raises an important issue, however, and it is particularly appropriate to touch on it this morning in view of what is going to happen in this place later today.

The purpose of the amendment is to prevent referrals to or investigations by the police ombudsman in respect of matters from the past—it is as simple as that. There are far too many examples of people are trying to refight old battles, or even to rewrite history. We shall see that more clearly later

today, but constant efforts are being made to encourage the ombudsman to look into past events rather than to focus on the present and the future, as he ought to.

Indeed, only a few weeks ago, the Chief Constable of the Police Service of Northern Ireland said that he simply does not have the resources to carry out all these inquiries into the past that people wish to raise. He is having enough difficulty finding the resources to police society adequately today and he simply cannot cope with looking into a whole host of past events as well.

To those hon. Members who keep expressing the wish to dig up the past and to rewrite history, I say that they are not doing a service to society today; they are contributing to the undermining of the effectiveness of the police service. It is astonishing that those hon. Members who urge the police to conduct lots of inquiries into the past are only a second later complaining about there not being adequate policing resources in their neighbourhoods to deal with existing crime. They need to think about that. Amendment No. 36 would ensure that the clause had effect only with regard to the future, not the past.

Andrew Robathan (Conservative, Blaby)

What the right hon. Gentleman says is important in relation to Government policy. Do not the Government appear always to be leaning in one direction to pacify a particular section of the community? For instance, they have not instigated a long inquiry on Warrenpoint.

David Trimble (UUP, Upper Bann)

The hon. Gentleman makes a good point and we will reflect on it later in our proceedings. People leave out of the calculation the fact that their perspective becomes warped in these matters. It is worth everyone recalling that nine out of 10 of the deaths that occurred during what are called the troubles were caused by terrorist organisations, and that two thirds of those were caused by republican terrorists rather than the so-called loyalist terrorists. Since the ceasefires, not a single death has been caused by soldiers or policemen.

Those who constantly make complaints and call for inquiries devote their attention almost entirely to the 10 per cent. and ignore the 90 per cent. That imbalance sends the wrong signals to society and enables those who are guilty of 90 per cent. of the killings to construct a make-believe world in which they invent spurious justification for their actions and try to divert attention from the nine tenths for which they are responsible. I do not know why hon. Members with an honourable record in opposing violence lend themselves to that, but that is another question that we must pursue elsewhere. Those hon. Members who support the campaign to conceal the nine tenths and focus purely on the one tenth are not benefiting themselves, their party or the society that they claim to represent. That is the wider issue behind amendment No. 36.

Amendment No. 35 would delete proposed new subsection (4A)(a)(ii) and omit the reference to behaviour that would ''justify disciplinary hearings''.

That reference is inappropriate and misconceived; matters that are appropriate for disciplinary proceedings should be dealt with through the normal disciplinary channels and should be in the purview of the Chief Constable rather than the police ombudsman.

I shall briefly comment on other amendments in this group, particularly those standing in the name of the hon. Member for South Down (Mr. McGrady). If the Government accepted amendment No. 68, they would create an utterly impossible situation. The amendment would place a duty on the Director of Public Prosecutions to refer any allegation to the ombudsman. Everybody knows that hosts of allegations are made—it is a deliberate tactic of criminals and those associated with terrorist organisations to make as many allegations and complaints as possible to muddy the waters and waste police resources.

I ask the hon. Gentleman, whom I am sure will speak shortly, why he has tabled an amendment that would render the police ombudsman ineffective by putting on her desk a shower—in every sense of the word—of material and require her to investigate every allegation. She does not have the resources; indeed, the resources do not exist. The amendment would cripple the office of the police ombudsman and put an impossible burden on the police and the Director of Public Prosecutions. If ever there was an amendment that would wreck the administration of justice, this is it.

Eddie McGrady (Social Democratic and Labour Party, South Down)

Following our last sitting, I tabled amendment No. 68 on behalf of my party. Amendments Nos. 69, 70 and 71 are consequential on amendment No. 68. The amendments are designed to ensure the full implementation of the criminal justice review and of commitments made by the Government, especially at Hillsborough. In other words, they are designed to ensure that the Government live up to their word.

The criminal justice review recommended that

''a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated.''

Clearly, the appropriate person to carry out such investigations is the police ombudsman—I do not think anyone disputes that—yet the implementation of that undertaking has been far from straightforward. The Justice (Northern Ireland) Act 2002 failed to impose a duty on the Director of Public Prosecutions to refer allegations of wrongdoing to the police ombudsman. Instead, it gave him only the discretion to refer such matters.

My colleagues and I cannot accept that, because we were told that the criminal justice review would be fully implemented. That is why we have sought new legislation to implement it properly. In particular, we were given a commitment that there would be—I quote from a Government source—a

''requirement on DPP to refer to Police Ombudsman cases of alleged police misconduct discovered in his casework''.

That is quite specific, but the Bill does not implement that commitment. Nor, as a result, does it properly implement the criminal justice review. Instead, clause 5 provides only that the director shall refer any matter that

''appears to the Director to indicate''

that a police officer may have committed a criminal or disciplinary offence. So, if a matter does not appear to him to indicate police wrongdoing, he is under no duty to refer it to the police ombudsman.

In those circumstances, the director would decide whether an allegation lacked credibility and should not be referred to the police ombudsman. That is patently wrong. It is not for the DPP to investigate allegations of police wrongdoing; that is the job of the police ombudsman. Accordingly, the ombudsman should decide whether such allegations are credible. In a sense, that answers the questions raised by the right hon. Member for Upper Bann (Mr. Trimble). The ombudsman has the remit under statute to determine whether an allegation is frivolous or serious; it should be self-evident that that is not a matter for the DPP.

As to the burden that the arrangements would impose on the ombudsman, that is a theoretical matter. There is no evidence that the ombudsman would have to investigate a huge, overwhelming number of the allegations made to the DPP's office. After all, the holder of the ombudsman's office—it is a lady at the moment—must decide whether an allegation is frivolous or serious. An assessment of frivolity—that is a strange word to use in this context; perhaps I should say frivolousness—would wipe out many allegations, but some serious ones would be left.

The police ombudsman should have the right at least to know about every allegation of police wrongdoing, whether the DPP believes it or not. She has the right to know not least so that she can fulfil her statutory obligation to prepare and give statistical evidence on the number of allegations. It should be left to her to decide whether to investigate them.

That is not to say that proposed new section 55(4A), as inserted by clause 5, should be scrapped. It is right that the director should be under an obligation to refer all cases of suspected police malpractice. Indeed, the Government committed themselves to as much in the updated criminal justice implementation plan, which refers to a

''duty on the Director of Public Prosecutions to refer all cases of suspected police malpractice to the Police Ombudsman''.

That duty, in itself, is not sufficient. There should also be a duty on the director to refer to the police ombudsman all allegations of police wrongdoing. Whether he suspects that it took place or not is irrelevant to the case.

Andrew Hunter (Independent Conservative, Basingstoke)

I draw the hon. Gentleman's attention to the criminal justice review, where primacy is clearly given to the head of prosecution. Only when he or she is not satisfied with the article 6(3) response under the Prosecution of Offences (Northern Ireland) Order 1972 should the ombudsman be involved. I am trying

to understand the authority or experience through which the hon. Gentleman wants to reverse the priorities of the criminal justice review.

Eddie McGrady (Social Democratic and Labour Party, South Down)

The hon. Gentleman makes a point that can be quickly dealt with. The criminal justice review, in addition to what he has says, clearly states the recommendation that

''a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated.''

That is not so that he can make a judgment, but so that he can initiate an investigation. That can be done only through reference to the ombudsman's office.

In case the Minister thinks I am making a pedantic point, let me explain why I am not. In 1991, a man called Billy Stobie was charged with possession of weapons. On being charged, he threatened to reveal that he was a police informant, that he had warned the police in advance that the Ulster Defence Association was going to murder somebody and that he had also warned them of the location of the weapon to be used.

The person who was to be murdered was the defence lawyer Pat Finucane. The police did not intervene. They did not seize the weapon and Mr. Finucane was shot dead in front of his family. After Stobie threatened to reveal that information, the charges against him were inexplicably dropped by the DPP despite the fact that, under the law, Stobie, who was caught in possession of weapons and firearms, was technically required to prove his own innocence. That decision remains unexplained today. Since then—unfortunately and perhaps unjustifiably—a cloud of suspicion has hung over the decision and, by extension, over the office of the Director of Public Prosecutions.

Had the law been as we are arguing that it should be, the DPP, on hearing such a threat from Stobie, would have had to refer the matter to the police ombudsman for investigation. The investigation would have been carried out, there would have been exposure—I hope—and public confidence would have been restored. That would have protected the Director of Public Prosecutions from the serious allegation that he had turned a blind eye because of instructions from other quarters. It would have proved an important factor in the credibility of the whole process.

Had such a measure been in place in 1991, it would have ensured that the criminal justice system was not, in many people's eyes, corrupted by itself. That is an example of what we are trying to prevent. Perhaps it is coincidental, and of course I am not supposed to refer to this, but today the Secretary of State will make a statement to the House on the Cory report. I assume that that statement will vindicate much of what I am saying.

In terms of implementing the full, clear, explicit decision of the criminal justice review and the clear commitment given in writing by the Government, I assume that they will accept my amendment as a reflection of their true intention. Therefore, I commend amendments Nos. 68 to 71.

Andrew Hunter (Independent Conservative, Basingstoke)

With all due respect to the hon. Gentleman, I believe that he has fundamentally misunderstood what the criminal justice review states. I put it to him—if he bears with me, I shall substantiate this—that the review did not demand, or even remotely suggest, that the DPP should be obliged to refer to the police ombudsman any matter that appears to the DPP to indicate that a police officer

''may have committed a criminal offence;''

or

''may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings''.

At paragraph 4.132 of the review, it is recommended that article 6(3) of the 1972 order

''be supplemented with a provision enabling''—

enabling is the key word; there is nothing about compelling—

''the prosecutor to refer a case to the Police Ombudsman for investigation where he or she is not satisfied with an Article 6(3) response.''

The review recommend not that the DPP should be required to refer certain matters to the ombudsman, but that he or she should be able to do so in circumstances that it then carefully defined—when he or she is not satisfied with an article 6(3) response. That begs the question, what did the review conclude on article 6(3)? At paragraph 4.131, it states:

''We recommend that the powers contained in Article 6(3) . . . be retained and that the head of the prosecution service''—

not the police ombudsman—

''should make clear publicly the service's ability and determination to prompt an investigation by the police of facts that come into its possession, if these appear to constitute allegations of the commission of a criminal offence, and to request further information from the police to assist it in coming to a decision on whether or not to prosecute.''

In essence, article 6(3) gives the DPP, not the ombudsman, primacy in investigating the matters to which clause 5 refers. The review recommended that the powers of that article should be retained. The only duty that the review recommended should be imposed on the DPP was a duty to ensure that any allegations of malpractice by the police are fully investigated.

Last Thursday, the Minister said:

''Recommendations were made that the prosecutor and the police should operate effectively together, with the prosecutor being involved in a case early.''

But that is not what the review recommended. It recommended retaining the powers of article 6(3), which give primacy to the DPP's investigative and prosecutory role, and recommended only that the police ombudsman could, not should, become involved if the DPP was dissatisfied with the article 6(3) response.

The hon. Member for South Down is trying, as the did Minister last Thursday, to turn the criminal justice review recommendation on its head. Last week, the Minister went on to say that clause 5

''was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct.''

That is not what the review said, and that is not the situation that should prevail. Minor police misconduct should be resolved by internal disciplinary processes. Other police misconduct, like all other misconduct, should be subject to prosecution if the DPP believes that there is a case to be answered that is substantiated by evidence that will stand up in court. The external assistance of a police ombudsman should be sought only if the DPP believes that the police have not fully investigated, or are not fully investigating, allegations. That is for the DPP alone to decide, just as the criminal justice review recommended.

Last Thursday, the Minister also argued that

''the clause allows for the director to exercise some judgment''.

The hon. Member for South Down reflected that in his remarks, but I disagree. If any matter appears to the DPP to indicate that an offence may have been committed, he is obliged to refer it to the ombudsman under the terms of the Bill. He cannot exercise any discretion entirely contrary to the recommendations of the criminal justice review.

The Minister also said that

''the current terms of the clause''—

an interesting choice of words—

''are no reflection whatever on the professionalism of the Director of Public Prosecutions.''—[Official Report, Standing Committee D, 25 March 2004; c. 68–69.]

That all depends on what one means. We can, however, be certain that the clause undermines the role of the DPP in absolute contradiction of the criminal justice review. The reason for that is clear from the explanatory notes, which say that the clause is

''in line with the undertaking of the Government in the Joint Declaration published in May 2003 and referred to at page 33 of the Updated Implementation Plan.''

Neither the hon. Member for South Down, nor the Minister last Thursday, convinced us that the clause should stand part of the Bill. In due course, I shall express that through my vote.

Dominic Grieve (Conservative, Beaconsfield)

I shall be brief. I have found this debate fascinating, because it takes me back to when we were discussing the role that the Northern Ireland police ombudsman is supposed to play. It never crossed my mind that we were creating a police chief to police the police. It always seemed to me that, as the word ''ombudsman'' implies, we were talking about someone who could be a reference point for potential complaints about police conduct. Otherwise, the word ''ombudsman'' is curious, because the ombudsman is not an ombudsman but someone different—he or she is the head of the prosecution authority for the prosecution of police officers in Northern Ireland. We should bear that closely in mind as a general principle when we consider the issues that divide the Committee over the clause.

Of course there must be a dialogue between the DPP and the ombudsman. To that extent, when I first read the clause, it struck me as relatively innocuous

and simply a beefing up of the ombudsman's traditional role. However, the amendment that stands in the name of the hon. Member for South Down would turn it into something different. That begs the question, who carries out prosecuting functions in a country?

I am unhappy about such split prosecution functions. A complaints authority and a public prosecutor are not the same thing, and the Committee should be careful to keep that distinction. That is not to say that the ombudsman does not have an important role, but it does mean that it should be possible for the DPP to conduct public prosecutions. The Minister will correct me if I am wrong, but I do not remember it being suggested that the DPP was unsatisfactory or failed to prosecute police officers. Rather, what was suggested—what seemed to me to have some force—was the fact that the public needed to be reassured that possible misfeasance by police officers was independently investigated. Again, those are not one and the same thing. I shall listen to the Minister with interest, because it is important that we should not start muddling the roles of those two individuals.

John Spellar (Labour, Warley)

That point has some value and I shall allude to it further.

Amendments Nos. 34 and 35 would require the DPP to refer cases to the police ombudsman only where a police officer had committed a crime—or, perhaps more accurately, had been convicted of one. That goes some way from what the criminal justice review envisaged, as the hon. Member for South Down said. Recommendation 21 said that a duty should be placed on the prosecutor to ensure that any allegations of police malpractice be fully investigated. These amendments would constrain what the DPP would or could refer to the police ombudsman. They would undermine the proper effect of the clause, which is to ensure that suspicions about police behaviour are passed to the proper person for investigation.

The right hon. Member for Upper Bann, who tabled the amendment, may be concerned that, if not amended, the clause will cause cases to be passed to the police ombudsman before the DPP has made a judgment on whether a prosecution should commence. That is to misunderstand the purpose and effect of the clause. As drafted, the provision sensibly delineates the respective roles of the DPP and the police ombudsman by ensuring that any decisions taken on the conduct of the police are made by the appropriate authority, which is the police ombudsman. Likewise, nothing in the clause interferes with the responsibility of the DPP to make decisions regarding prosecutions.

The hon. Member for Basingstoke (Mr. Hunter) also misunderstood the position to some extent when he talked about article 6(3) of the 1972 order. That order concerns prosecutions of investigated cases, whereas we are talking about investigating suspected misconduct. That deals with the respective roles of the ombudsman and the DPP.

The clause requires the DPP to pass to the ombudsman any indications that he finds in the files

in front of him that police malpractice may have occurred. It would then be for the ombudsman to take the matter forward. The DPP is not under an obligation to refer matters that he understands the police ombudsman is already aware of. That is likely to include most, if not all, cases of police officers being charged with a criminal offence. It is therefore most unlikely that the DPP would pass matters to the ombudsman that relate to the substance of the cases he is looking at. It is more likely that the provision would bite when, as the DPP considers a file on a completely unrelated matter, the behaviour of a police officer raises questions.

Dominic Grieve (Conservative, Beaconsfield)

I follow what the Minister is saying and I do not disagree with his reasoning, but, on such a basis, I find the amendment completely innocuous, because there would still be the ability to refer where the DPP thought that disciplinary proceedings were justified, which is the ombudsman's role. However, the amendment makes it clear that the fact that someone may have committed a criminal offence is not a justification, unless a disciplinary element should be inserted. To that extent, the right hon. Member for Upper Bann has tabled a good amendment.

John Spellar (Labour, Warley)

If the amendment is innocuous, as the hon. Gentleman says, it may also be unnecessary. It is up to the ombudsman to assess whether a case is valid. The hon. Gentleman wants a stronger burden of proof to be imposed on the DPP than simply believing that an offence may have been committed and that it therefore requires further investigation. ''Has'' would seem to imply that the matter is definitely clear and it would impose a slightly stronger burden than that only ''appearing'' to be the case.

Dominic Grieve (Conservative, Beaconsfield)

Although it may be difficult in an intervention, I shall try to give an example. An allegation is made that a police officer, when out of uniform, has slapped someone's face. The allegation appears to be of a trivial nature and has nothing to do with his work. The director examines the facts and concludes that no criminal offence has been committed. Does he need to refer that, given that no disciplinary elements are involved? My answer is no, and that is my justification for the amendment. However, if a disciplinary element was involved, new subsection (4A)(a)(ii) would come into play and the matter would have to be referred. The distinction made by the right hon. Member for Upper Bann is a good one.

John Spellar (Labour, Warley)

I am not entirely sure about that—we might have to investigate it further. The example of an off-duty police officer gives rise to two points. It would need to be determined, first, whether the officer had committed a criminal offence, and secondly, whether the incident took place in the course of a criminal investigation. In the hon. Gentleman's example, the implication was that that was not the case. The provision, as drafted, has the right balance both in terms of fulfilling the commitment and in addressing such issues.

Amendment No. 36 deals with retrospective investigations by the police ombudsman. In that

context, I would like to start by thanking Lord Laird who, on Second Reading in another place, alerted us to the fact that the clause as originally drafted was out of keeping with the Government's policy on time limits on investigations by the police ombudsman.

The Government therefore tabled amendments in the Lords to insert what is now subsection (6). In the subsection, we seek to ensure that referrals under the new clause are treated consistently with any referrals to which the RUC (Complaints etc) Regulations 2001 currently apply. Subject to the exceptions that they contain, the regulations limit the ombudsman to investigating complaints about matters that are no more than 12 months old. Subsection (6) allows the Secretary of State for Northern Ireland to make similar regulations in respect of new subsection 55(4A) of the Police (Northern Ireland) Act 1998 as inserted by the clause.

Eddie McGrady (Social Democratic and Labour Party, South Down)

The Minister referred to the 12-month limit on retrospective examination and investigation. Will he confirm that an investigation may be carried out if substantial new evidence arises in respect of an event that took place more than 12 months previously?

John Spellar (Labour, Warley)

My hon. Friend is right. Exceptions were included to allow the ombudsman to investigate cases in which new evidence comes to light, or cases that he believes should be investigated because of their gravity, or exceptional circumstances. To ensure that we have consistency across the legislation, those provisions also apply in this context, as they do with regard to the police.

The amendments tabled by my hon. Friend the Member for South Down relate to concerns that have been raised with us on previous occasions. At this stage, we intend to resist them. We believe that the clause, as drafted, should address those concerns, because it includes allegations made within the remit of other matters. However, I reassure him that I will reflect further on his concerns and return to them on Report, and I ask him not to insist on the amendments.

David Trimble (UUP, Upper Bann)

The hon. Member for Basingstoke suggested that some of the references to the criminal justice review might have been mistaken, and the person making the references may have misunderstood what the review actually said. He is absolutely right: it is clear, after listening to the hon. Member for South Down, and some of the Minister's comments, that there is a failure to appreciate what the review actually said. The legislation has drifted away from the criminal justice review, and some of the amendments that have been tabled, in particular by the hon. Member for South Down, would take us even further away from it. I am extremely concerned about that, and especially by the hints dropped by the Minister towards the end of his comments. Yes, he should take the matter away, but he should think about it very carefully, because he is in danger of creating a situation that will have moved radically away from the criminal justice review. As the hon. Member for Basingstoke accurately said, it will have been turned upside down, creating something that is impossible to operate.

I suggest to the hon. Member for South Down that if he reads paragraphs 4.130 to 4.132 together—he quoted from 4.132—it will become clear that he has completely misconstrued them. Paragraph 4.130 starts with a statement in bold, which is also one of the recommendations in the summary:

''We recommend that the investigative functions should remain the responsibility of the police and not be subject to external supervision.''

He said that investigations could be done only by the ombudsman, but that is not what the criminal justice review says. Paragraph 4.131 takes the matter further:

''it was apparent that some saw a role for the prosecutor in ensuring a full and rigorous investigation of all cases no matter what the circumstances . . . As noted . . . Article 6(3) of the Prosecution of Offences (Northern Ireland) Order . . . already places a duty on the Chief Constable to respond to a request to the DPP for information on any matter requiring investigation on the ground that it may involve a criminal offence . . . We recommend that the powers contained in Article 6(3) . . . be retained and that the head of the prosecution service should make clear publicly the service's ability and determination to prompt an investigation by the police of facts that come into its possession, if these appear to constitute allegations of the commission of a criminal offence''.

It says ''criminal offence'' only, not disciplinary matters. The introduction in this legislation of disciplinary matters departs from the criminal justice review.

John Spellar (Labour, Warley)

Looking at paragraph 4.129, which is the lead-in to the paragraphs that the right hon. Gentleman quotes, puts into context the question whether an investigation should follow the Scottish principle where, at an early stage, a prosecuting officer is responsible. It was obviously suggested to the review that it should consider the Scottish system, which is similar to, or a variation of, the French system. The review says that investigations should be the responsibility of the police, which is much more akin to the traditional British system. That is the context within which the recommendations should be read.

David Trimble (UUP, Upper Bann)

I shall not allow the Minister to tempt me down the path of re-examining the recommendations of the McDermott report on the investigation of offences, or to contemplate—as was seriously contemplated in 1969 to 1970—introducing the Scottish system of procurators fiscal in Northern Ireland. It was a good idea, and I was strongly tempted by it, but that was in the days when my consideration of such matters was purely academic, not political. I shall not allow the Minister to divert the Committee in that way. It does not detract from the clear building block in paragraph 4.130, in which the investigative function remains the responsibility of the police—the Minister's comments do not depart from that. We are not turning to the Scottish system; we are retaining a normal common-law system where investigatory function lies with the police.

As I was saying before the Minister intervened, it is clear from the criminal justice review that it is a question of the circumstances of possible criminal offences, not disciplinary matters. I quoted from paragraph 4.131 and asked the hon. Member for South Down to reflect on the words ''to prompt'',

which refer to article 6(3), which gives the DPP the ability

''to prompt an investigation by the police of facts that come into its possession, if these appear to constitute allegations''.

The word ''allegations'' is used in slightly differently from how the hon. Gentleman used it. He made it refer to any allegations that are made; people make allegations, but that is not what the paragraph is referring to. It refers to a situation in which facts that appear to constitute allegations, or make it appear that an offence has occurred, come into the possession of the DPP. That should be borne in mind when considering the meaning of the next paragraph, 4.132, which states that article 6(3)

''would underline the central point that, while it is no part of the prosecutor's function to supervise investigations, it is the prosecutor's concern to prosecute crime and when allegations of criminal offences come into his or her domain, the prosecutor has a duty to see that such allegations are investigated.''

The ''allegations'' need to be read in the light of the preceding paragraph. The hon. Gentleman did not quote the next sentence, which states:

''The question arises of what happens in the event that the prosecutor is dissatisfied with the response to a request for matters to be investigated''.

It is clear that the criminal justice review is contemplating that in the first instance article 6(3) is invoked when the DPP asks the police to investigate the matter. The paragraph goes on to say that if the DPP is dissatisfied with the response, and believes that it has not been pursued with sufficient vigour by the police,

''We note that under the Police (Northern Ireland) Act 1998 the Secretary of State and the Police Authority . . . may refer a case to the Police Ombudsman after consultation with the Chief Constable where it is desirable to do so in the public interest.''

That is an interesting set of qualifications; they are not in the proposal, which has drifted a long way from the criminal justice review.

The final recommendation in paragraph 4.132 states:

''We recommend that Article 6(3) . . . be supplemented with a provision enabling the prosecutor to refer''.

That is the provision that I quoted at the end of our debate in the Committee's second sitting, and to which the hon. Member for Basingstoke referred.

I am sorry that my reply has been rather lengthy, but I wanted to point out that if one reads the paragraphs of the criminal justice review together, it is clear that the clauses depart from the review, and broaden the limited supplementary power that it contemplated. The hon. Member for South Down has completely misconstrued the situation. His amendments would not only broaden the clause and take it even further from the criminal justice review but make a complete nonsense of the operation of the DPP and of the police ombudsman's office. I am most concerned at the Minister's suggestion that he will consider the matter.

I do not intend to withdraw the amendment, as my hon. Friends and I want to underline the issue by dividing the Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 11.

Eddie McGrady (Social Democratic and Labour Party, South Down)

In view of the Minister's remarks and his undertaking to review the clause on Report, I will not press my amendments.

Question proposed, That the clause stand part of the Bill.

Andrew Hunter (Independent Conservative, Basingstoke)

I said earlier that I had it in mind to divide the Committee on the clause. As we have just had a Division, it would overtax the Committee's patience if I did that. May I merely put on record my continuing objection to the clause on the grounds that it is not what the criminal justice review recommended? It has turned the recommendations on their head. It is what was agreed at Hillsborough. It was part of an attempted political deal, and as such is not a sound basis for legislation. The clause is also wrong in itself, because despite all the arguments we have heard to the contrary, the DPP should be able to use his discretion in considering whether to refer to the ombudsman.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6 - Influencing a prosecutor

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 57, in

clause 6, page 4, line 15, after 'whether', insert 'or not'.

Subsection (2) states:

''A person commits an offence if, with the intention of perverting the course of justice, he seeks to influence a barrister or solicitor to whom the Director has under section 36(2) assigned the institution or conduct of any criminal proceedings in any decision as to whether to institute or continue those proceedings.''

I hope that it is not merely a piece of semantics to say that the use of the word ''whether'' without the phrase ''or not'' is bad drafting. I am quite sure that the Minister's intention is that the decision is whether or not to institute or continue those proceedings. I dare say that the Minister will tell me that the word ''whether'' implies ''or not'' within it. However, I think that it should be spelled out in the Bill. It does no harm and it makes it clear that it applies to both the positive and negative acts.

John Spellar (Labour, Warley)

We welcome the hon. Member for Beaconsfield (Mr. Grieve), although we wait eagerly to hear his silent partner, the hon. Member for New

Forest, West (Mr. Swayne) at some stage during our proceedings. We believe that implicit in the word ''decision'' is a decision to institute or continue proceedings or not to do so. The decision can be either positive or negative. Therefore, as the hon. Gentleman rightly identified, it is semantics. The additional phrase would be superfluous. Alternatives could be sprayed throughout legislation, not for the benefit of clarity and certainly not for the benefit of brevity.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry but not surprised to hear the Minister's response. Having spent many hours on Bills in the past three years, I find that modern drafting is constantly a matter of implication and inference. I happen to think that that is very poor drafting practice. A very unfortunate impression is created when the clarity of previous legislation is compared with what has been produced by the modern practice that is creeping in—although I must accept that the present case is by no means the worst example.

There is a constant requirement for second-guessing about what is implied. The words ''whether or not'' are a very well established grammatical form, but they have been abandoned in the clause for no good reason. However, as I suppose we shall be able to consult Hansard to find out what the Minister meant, even though it will not be clear in the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 4, in

clause 6, page 4, line 21, leave out

'a term not exceeding five years'

and insert 'life'.

I can join the hon. Member for Beaconsfield in harking back to a golden age of Bill drafting. The clause as a whole is indicative of another problem—partly in drafting and partly to do with the approach of the civil service—which is our tendency to legislate on things that are already criminal. The tendency began in the early 1980s with the creation of the statutory offence of vandalism when, in Scotland, we already had the offence of malicious mischief, which served the same purpose. The only difference at the time was that occasionally vandalism charges became time-barred after six months, whereas there was no statutory time bar on the common-law equivalent.

We spend too little time in this place doing what is necessary and, sadly, too long doing things that are not necessary. The Minister suggested that if what was proposed was innocuous, it was unnecessary. I rather choked at that, considering that we are about to move on to clause 6, which is wholly unnecessary.

The Minister said on Second Reading that the Government wanted to introduce the provision in statutory form, because it was right to make the point—or words to that effect. I accept that the matter is also part of the criminal justice review. I think that it is mentioned at paragraph 4.163.

In making a point, one should be careful about the point one chooses to make. The amendment is intended to make the offence in the Bill the same as

the common-law offence that it is to duplicate. At present, someone who is tried on indictment for the common-law offence is liable to life imprisonment. The Bill limits the sentence to five years. To my mind—as we are talking about making a point, or sending a signal—the signal that the Minister would be sending by creating the statutory equivalent would be that trying to influence a prosecutor is a lesser species of offence, less serious than trying to influence a witness, a judge or a police officer.

If I were being investigated and I chose to run away from the police—something perhaps considered to be at the lower end of attempting to pervert the course of justice, but a form of the offence that is quite often found—I should be liable to the full penalty. I hope that I should not find myself in that predicament. As a one-time prosecutor, I am concerned about what we are saying about the relative seriousness of that offence and the offence of seeking to influence the prosecutor.

John Spellar (Labour, Warley)

Probably the nearest analogy is the offence of intimidating a juror. Under the Criminal Justice (Northern Ireland) Order 1996, that carries a penalty of five years.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

That is another unnecessary offence, because it, too, deals with an attempt to pervert the cause of justice. Criminal law is now littered with unnecessary offences. Simply to say that we will do something again because we have done it before is a pretty weak argument, and I expect more of the Minister. Why do the Government consider that there is a problem? How many cases have been reported? How many prosecutions have they raised and what problems have they encountered in raising prosecutions?

The hon. Member for Beaconsfield did us a service in tabling his earlier amendment, because he highlighted the spurious point that someone might make as a plea to the relevancy of a charge in a court, which, on a wet Friday afternoon, might be held up by a judge somewhere. I well recall one prosecution in which I lost the case on a submission of no case to answer, because the sheriff wanted to get off to see something at the Edinburgh festival on a Friday. These things happen. That would not be a problem if the case were brought under the common-law offence. There is scope to make such points under the statutory equivalent. If there is a need or a problem, we should deal with it, but surely we have better things to do with our time than legislating simply for the sake of it.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a powerful case extremely well, and he is right. The problem is not peculiar to Northern Ireland: it is a problem of the entire legislation throughout the United Kingdom, and it occurs all the time, yet it appears to be remarkably unnecessary. I therefore hope that the Minister will provide cogent reasons why the discrete statutory offence should be allowed to remain in the Bill, and that he will tell us its purpose—or is it simply window dressing?

John Spellar (Labour, Warley)

No, it is not window dressing. The purpose is partly to emphasise the offence to the courts. The question of the comparison between five years and life was legitimate for the hon. Member for Orkney and Shetland (Mr. Carmichael) to raise, so I asked for a little research to be done on the usual penalties imposed in such cases. I understand that they run between four and 24 months, even though the potential sentence is life. A tariff of five years is analogous to that for intimidating a juror, which is also a serious offence. There is the argument, which the hon. Gentleman advances, that a number of these matters are already the subject of common law. Should we therefore enshrine them in statute? Should we impose specific penalties? Should we highlight the seriousness with which society views these specific offences, rather than consider them in the round under common law?

The hon. Member for Orkney and Shetland is right about vandalism. The reason why legislation is relevant for vandalism in particular is the concern expressed by the public, and their frustration at the inability of the system to deal with such problems. That is precisely why we have introduced legislation and why I hope shortly to introduce legislation on antisocial behaviour to bring the law in Northern Ireland in line with that in England and Wales. The reason is to provide penalties and to indicate clearly that Parliament and the justice system are responding to public concern.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has almost answered his own question, but not, I think, in the way that he intended. Is not the reality that passing legislation is designed to con the public into believing that something will be done that previously has not been done, even though the law exists under which it could be done? By constantly introducing new legislation, he gives the impression that a new dawn is nigh, but it is not, because if the old legislation is not being used, the problem must be enforcement, not the legislation itself.

John Spellar (Labour, Warley)

The problem is not necessarily just enforcement, but the action taken by the courts to apply the available penalties. One reason for taking such measures is to specify penalties.

David Trimble (UUP, Upper Bann)

The Minister is shifting himself into saying that the clause is designed to persuade the courts to apply the penalties, so why is he reducing the penalties? That is what the clause does. He said earlier that most of the sentences were a matter of months, but that is chosen from a range that starts with nothing and goes to life. If we compress the range to a maximum of five years, the sentences will be reduced accordingly when the court decides that the offence is not very serious. The consequence of the clause is perverse, and he would achieve his objective better by withdrawing it altogether.

John Spellar (Labour, Warley)

I do not accept that. As I have said, the courts seem to be using a range of four to 24 months, although, as the right hon. Gentleman rightly said, it runs from nought to infinity. We are indicating clearly that we take the offences seriously and that the maximum penalty is five years. Including that in the

Bill reinforces the message, and we will look to the courts to enforce the penalties. Accordingly, I reject the amendment and commend the clause.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I notice that, despite my invitation to tell the Committee how many prosecutions have been brought, what problems have been encountered and how many cases have been reported, the Minister neglected to say why there is a pressing need to legislate. I am happy for him to intervene to answer those questions, but as I am not being interrupted, I presume that there is no pressing need.

The point made by the right hon. Member for Upper Bann about the range of sentence affecting the sentences imposed is spot on. The Minister has confused the range of sentences available to a court with the sentences that are imposed. I had the same difficulty yesterday with the Constitutional Affairs Minister, the hon. Member for Shipley (Mr. Leslie) in a Committee on the Lay Magistrates (Eligibility) (Northern Ireland) Order 2004. It may be true that the range used is from four to 24 months—that sounds about right from my experience—but that is no argument for fettering the court's discretion as the clause will.

One can imagine a situation in which an indictment is drafted in haste, the statutory offence is included with no common-law alternative and a sentence of five years is completely inappropriate. It is not unusual for prosecutors to include a statutory offence in an indictment without considering the extent of the sentence available to the court, so there is the potential for that to happen. If we do anything in this Committee, it must be to consider the possible pitfalls and the potential worst case scenarios and say, ''We can do that better.''

At this stage, I am not minded to pursue the amendment to a Division, as I would prefer to vote on the clause as a whole, for the reasons outlined in this debate. None of my questions has been answered, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Andrew Hunter (Independent Conservative, Basingstoke)

I tabled amendment No. 26 on behalf of the Democratic Unionist party calling for the clause to be omitted from the Bill. That amendment was unnecessary because the clause stand part debate gives me the opportunity to make the point.

The short answer to the question why clause 6 should be omitted is that there is no discernible reason for its inclusion—it is a mystery clause. The explanatory notes say:

''This clause creates an offence of seeking to influence a prosecutor . . . as recommended by the Criminal Justice Review at recommendation 46.''

The problem is that the explanatory notes are confused and confusing, because the Bill does not create an offence of influencing a prosecutor—that offence already exists in common law, as the Committee has been told. Perverting the course of public justice is a long-standing offence that has been well defined and interpreted in case law. Clause 6 adds nothing to the

body of case law concerning the common-law offence of perverting the course of justice.

I suspect that the clause has been included because of a promise made at Hillsborough. That prompts the question: is the quality of law a secondary consideration to the determining factor of who asks the question?

On Second Reading in another place, Baroness Amos offered an intriguing two-part explanation for the inclusion of the clause. She said:

''We have linked the offence with the idea of perverting the course of justice so as to be clear about what would constitute criminal behaviour''.—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1118.]

It is impossible to accept that reasoning, because there is no need to clarify the existing law. No court could remotely fail to conclude that seeking to influence the director, deputy director or a public prosecutor, with the intention of perverting the course of justice, is an offence under common law. It is absurd to argue that greater clarity is needed; clarity already exists.

The second point that Baroness Amos argued was that the Government are linking the offence of influencing the prosecutor with common law to avoid ''criminalising apparently innocent behaviour.'' That defies comprehension, and I invite the Minister to inform the Committee precisely what ''apparently innocent behaviour'' might be regarded as criminal activity without the clause.

The common-law offence of attempting to pervert the course of justice is well defined in case law and fully embraces the offence of influencing or trying to influence a prosecutor, so the clause is wholly unnecessary.

David Trimble (UUP, Upper Bann)

I support the hon. Gentleman on this issue, and I urge the Minister to think again. It is clear from the comments made by the hon. Member for Orkney and Shetland that the clause is misconceived and will have a harmful effect. As I tried to point out in an earlier intervention, it will result in lesser sentences being given for the existing offence.

The Minister referred to a similar offence that had been notionally re-enacted with regard to trying to influence jurors. It is clear that the authors of the review of the criminal justice system were unaware that the offence already existed—and they are persons with some knowledge. One of the consequences of creating new offences where they are not necessary is that sight of the original common-law offence is lost.

Introducing this apparently new offence, as with the earlier one, will reinforce the tendency of practitioners to think that the statutory offences are the only ones that exist. Consequently the common law will not used. As has been pointed out, the common-law offences are more comprehensive and carry a heavier penalty. Rather than reinforcing the issue and drawing it to the attention of the public and practitioners, the Minister is creating a situation where the more serious offence is overlooked and not used. Consequently the behaviour that he wishes to stigmatise receives a lesser penalty. That cannot be what he really wants. That is why I ask him to think about it again.

The hon. Member for Basingstoke suggested that the Bill originated out of some sort of deal. Unfortunately, the explanation is much more mundane. It is part of the competition that exists between the SDLP and Sinn Fein. One of the characteristics of this competition is that rather than competing with each other directly, they do so indirectly by trying to show that their party is more efficient at beating up the Government than the other. The competition at that stage was over which party could insist more vigorously on the Government fully implementing a report, whether it be Patten or the criminal justice review.

Some persons on behalf of the SDLP ploughed through the criminal justice review trying to accumulate examples of failure to implement recommendations with which to beat up the Government and then compel them to introduce legislation. Some researcher working for the SDLP found this paragraph and saw that it urged that an offence be created. The researcher evidently did not know that the offence already existed and so included it in the list of failures that the SDLP presented to the Government for inclusion in legislation.

The Government, for their part, did not bother to research the matter properly. They were anxious to placate the SDLP, because in the more general political sense, they were letting the SDLP down badly by offering substantial concessions to Sinn Fein, but not to the SDLP. As the SDLP had presented this little list of recommendations from the criminal justice review that should have been implemented, the Government decided to give them it to keep them happy. That is how the Bill originates.

It is clear that neither in the SDLP's original research or the Government's reception to it at Hillsborough, nor even in the preparation of the Bill, did anyone sit down to consider the consequences for the criminal justice system. Somehow, perhaps before the Bill completes its parliamentary passage, the Minister might like to vindicate and uphold the principles of that criminal justice system about which he is supposed to be concerned and think seriously about this Bill and start removing some of its flaws. One of those flaws is clause 6.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I endorse the right hon. Gentleman's comments about desuetude in common law, which is the real consequence of offences of this sort. When speaking of the penalties to be imposed in relation to this offence, I may have indicated to the Committee that that was the only difference. On reflection, I do not think that that is correct. Subsection (4) states:

''Proceedings for an offence under this section shall not be instituted without the consent of the Director.''

Presumably that is a difference between the proposed statutory offence and the common-law offence. It is another hurdle that a prosecutor may find himself falling on if, per incuriam, he forgot to obtain the consent of the DPP or, as I think is usually the case, if it were not to be shown on the face of the indictment that the consent had been obtained. That is another

instance of how we are replacing a sensible, straightforward, available, common-law offence with one that puts extra hurdles in the way of the prosecutor, and attracts a lesser sentence.

John Spellar (Labour, Warley)

I shall be brief, because a number of the issues were dealt with when we discussed the amendment. I point out to the Committee that it is not unprecedented to put matters previously covered by common law into statute. I mentioned intimidating a juror, which was the subject of the Criminal Justice (Northern Ireland) Order 1996—not, therefore, a decision taken by this Government. The hon. Gentleman may deplore such general practice, but he should not argue that it is unprecedented, or that there is no good reason for Governments to take such action.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Has the Minister had the opportunity to consider the record of the proceedings of the 1996 legislation? Did the Labour party agree to it or oppose it?

John Spellar (Labour, Warley)

It may well have supported it, which might indicate a broad body of opinion, from which the hon. Gentleman may wish to exempt himself. We are highlighting the seriousness of such an offence, and prescribing penalties that are well over twice the normal tariff applied by the courts, so I commend the clause to the Committee.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 11, Noes 6.

Clause 7 - Guidance for criminal justice organisations on human rights standards

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 58, in

clause 7, page 4, line 30, leave out 'international'.

The clause provides for guidance for criminal justice organisations on human rights standards. I want to make it clear that I have nothing against providing such advice to such organisations. It is clear, from reading the clause, that the Human Rights Act 1998 has a particular role to play. However, it is bizarre that subsection (1) provides that when the Attorney-General for Northern Ireland issues the guidelines, the organisations' functions should be

''in a manner consistent with international human rights standards relevant to the criminal justice system.''

I have simply no idea what such standards may be. They are infinitely flexible, they may change, and they are not subject to any legislation passed by this Parliament: they are meaningless. The human rights standards that this Parliament has chosen to apply, before the incorporation of the Human Rights Act, could be referred to by reference to the human rights convention, to which we are a signatory, and must now be derived from the Act. I would hope that the Human Rights Act is seen to be compatible with nebulous international human rights standards. However, the insertion of the word ''international'' is meaningless. It is gobbledegook. That gobbledegook is emphasised in subsection (2), which states:

''In the exercise of its functions, such an organisation shall have regard to any guidance for the time being in operation under this section; but this does not affect the operation, in relation to any such organisation, of section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act in a way incompatible with a Convention right).''

So there we have it. Under the subsection, an international human rights standard would have to be disregarded if it was not compatible with section 6 of the Human Rights Act 1998, which is part of our law.

I do not know why the word ''international'' has been used, but I hope never to see it in a document of this sort again, because it is appalling drafting. I have no idea where it came from. I suspect that the right hon. Member for Upper Bann will say that this is the incorporation of yet another nebulous concept into a piece of legislation as a result of some sideline agreement between the Government and the SDLP or some other party to previous political discussions. I do not know, but whatever its origin, it should not be included in the clause.

The Minister will have to provide me with persuasive justification for the use of the word ''international''. I do not believe that he can, and I certainly intend to press for its deletion.

John Spellar (Labour, Warley)

There is always a danger that any mention of the word ''international'', possibly slightly less so than the word ''European'', is likely to excite the Opposition's interest. The hon. Gentleman will know that Governments of all parties have signed up to several international conventions that are mandatory and binding. We were bound by the European convention on human rights long before we introduced the Human Rights Act. We were, in fact, bound by 16 such standards listed by the criminal justice review research report, of which the European convention on human rights was but one. We signed up to several binding treaties, and to non-binding, declaratory and even advisory treaties. Signing up to such treaties has been ongoing practice to which Governments of all parties have subscribed.

The balance that the hon. Gentleman said was necessary is provided by the guidance issued by the Attorney-General described in other parts of the clause, which we will no doubt deal with in our debates on other amendments or on clause stand part. It does so precisely to avoid doubt and provide clarity for the courts.

We could have talked about human rights standards in general, but that could have created far

more ambiguity and led to organisations and individuals claiming a wide body of opinion to support their position. The word ''international'' is used to make it clear that the document should consider non-domestic human rights standards and provide the mechanism by which they are provided to the courts. In many ways, despite the possible knee-jerk reaction to certain words, that answers the hon. Gentleman's argument.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I hope that the Minister will accept that I have, as a Liberal, stronger internationalist credentials than some hon. Members with whom I must share the Opposition Benches. However, I have some sympathy for the arguments advanced by the hon. Member for Beaconsfield, whether or not they are knee-jerk reactions. If the intention is to issue guidance on various international treaties, conventions and whatever else to which we are party, surely we should declare it. The elegant way of doing so would be to insert a schedule that listed them. That schedule could, perhaps, be updated from time to time by statutory instrument, which is the Government's chosen way of amending primary legislation these days. That would be better than endlessly using the phrase ''international human rights standards'', as the hon. Gentleman said. If the Government's intentions are what the Minister says they are, why does he not seek for them to be reflected in the Bill?

David Trimble (UUP, Upper Bann)

I support the hon. Gentleman's comments, which were apposite. The phrase

''international human rights standards relevant to the criminal justice system''

is far too vague. The problem is not only with the word ''international'' but with the whole phrase.

The Minister referred to the existence of a number of treaties, some of which may be binding on the United Kingdom. However, other things are hawked around as though they were international human rights standards. The phrase ''international human rights standards'' is too broad and does not necessarily relate only to those treaties to which the United Kingdom is party and which are binding on us. Other agreements exist, some of which do not involve the United Kingdom and may not even be treaties in the proper sense, but are referred to by human rights ''activists'' as though they were international human rights standards. We cannot expect all those involved in the administration of the legal system to have a detailed knowledge of everything to which reference is made, some of which may be spurious and some of which may be, as the hon. Member for Beaconsfield said, nebulous.

John Spellar (Labour, Warley)

Does the right hon. Gentleman accept that, given how the clause is drafted, the mechanism by which guidance comes to the courts is via the Attorney-General? That deals precisely with the point that he rightly raises. Although one would not expect the courts at all levels to be fully conversant with the validity or standing of various treaties, the filter mechanism helps to provide for consistent guidance.

David Trimble (UUP, Upper Bann)

I was about to develop some thoughts along not dissimilar lines. I understand the distaste for writing in such provisions—the clause is a page and a half, but one's instinctive reaction is to regard it

largely as a waste of paper. However, if it were applied sensibly, it could perhaps be used to avert confusion in the system. One way to use the provisions sensibly would be take up the excellent suggestion that the hon. Member for Orkney and Shetland made, to include reference to the specific instruments concerned, because of the uncertainty about the phrase ''international human rights standards''.

As I said, a lot of things are hawked around as though they represent human rights standards, when in fact they do not. It is easy for people to make mistakes in that context. If I may dare say so, it might even be possible for Attorneys-General to make mistakes, too. We do not want to open the door to allowing an Attorney-General inadvertently to recommend people through guidance to abide by a standard, convention or agreement to which the United Kingdom is not party and by which we do not wish to be bound. Providing for a simple schedule listing the documents to which the clause is intended to refer would therefore be a sensible safeguard. That is a good suggestion on which the Minister will, I hope, reflect, bearing it in mind that some people go around trying to foist on the system things that are not international human rights standards as though they were.

Andrew Hunter (Independent Conservative, Basingstoke)

I do not quarrel with the lines of argument suggested by the right hon. Gentleman or the hon. Member for Orkney and Shetland, but surely the essential point was made by my hon. Friend the Member for Beaconsfield. Since subsection (2) subordinates the relevant human rights conventions—or whatever they may be—to the Human Rights Act by means of section 6 of that Act, why on earth do we need to refer to them at all?

David Trimble (UUP, Upper Bann)

The Human Rights Act gave effect to the European convention on human rights, which has limited content. Subsection (2) ensures that the guidance will not override anything contained in the European convention on human rights. However, what happens if other provisions, documents, conventions, agreements or alleged agreements relate to matters not covered by the European convention on human rights? Subsection (2) will not cover those situations. There may still be some merit in the approach that we have suggested.

Dominic Grieve (Conservative, Beaconsfield)

I did not seek to delete subsection (1) in its entirety, because I accept that Parliament could pass further human rights standards other than the Human Rights Act 1998. In those circumstances, it would be the Attorney-General's job to apply them so long as they were not incompatible with the Human Rights Act. The Minister accuses me of knee-jerk reactions to the words ''European'' or ''international'', but it is fairly well known within my party, although I sometimes wonder and begin to regret it, that I was one of the few people who expressed broad support for the idea of incorporation during the passage of the Human Rights Bill.

Desmond Swayne (Conservative, New Forest West)

Shocking.

Dominic Grieve (Conservative, Beaconsfield)

Yes, and I sometimes regret it, because it has been used as an excuse for diminishing aspects of human rights in this country on the basis that, having done so, we are still Human Rights Act compliant. That was something I had not anticipated at the time when I suggested that I though it might be worth while. However, leaving that to one side, the Human Rights Act has force of law, and that is why it has to be applied.

Picking up on a point made by the hon. Member for Basingstoke, I have to say that it is dangerous to have nebulous concepts in legislation in the first place. Whatever a human rights standard may or may not be, if it does not have force of law it is only a guideline. No organisation is required under the law to follow that guideline, because it does not have force of law. There is an argument there.

I understand the intention of the clause, which is that the Attorney-General should remind the various statutory organisations about human rights standards that he considers relevant to the criminal justice system. I also appreciate that those standards could go further than the Human Rights Act 1998, particularly if we have enacted any other legislation of our own that could be said to have a human rights dimension. However, they are not international human rights standards, which by their very nature are likely to be in part other documents to which we are a signatory, but can also involve sources well beyond that. That could include discursive textbooks on what international human rights standards should or should not be.

I say to the Minister that it is bad practice to draft legislation, which will have to be subject to judicial interpretation, in such woolly and nebulous fashion. Subsection (1) is still a little woolly with the word ''international'' removed, but I am prepared to live with that, as we now seem to legislate intentions and not law. I will not accept the word ''international'', because it adds nothing to the rest and it creates a misleading picture. The nub of the issue is in subsection (2), and in the circumstances I wish to press the amendment to a vote.

Joe Benton (Labour, Bootle)

Before I put the question, I point out to the Committee that there is a clear instruction for conduct in Committees about the reading of magazines, newspapers and so forth. I will not mention individual Members by name, but I ask them to observe that rule.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 11.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 59, in

clause 7, page 5, line 17, at end insert 'or'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 60, in

clause 7, page 5, line 18, leave out from 'organisation;' to end of line 19.

Dominic Grieve (Conservative, Beaconsfield)

Amendment No. 59 is return to semantics. I do not understand why the word ''or'' has been omitted at the end of subsection (5)(a) when it has been included at the end of subsection (5)(b). Either we have a new practice under which ''or'' is removed entirely or we have a practice under which it is reinstated. It is as simple as that. I accept that this is a drafting point, but unless the Committee picks up on drafting practice, there is no point in our trying to our job. The clause should read, ''adding any organisation . . . or omitting an organisation, or altering the description of an organisation''.

Amendment No. 60 has somewhat more substance and relates to altering the description of an organisation. I seek clarification. Subsection (4) defines a number of organisations that will be provided with guidance. If those organisations change their name, that will require primary legislation or a statutory instrument, which could provide for altering their description in guidelines and other statutes. I do not understand why the Attorney-General has been given the power to alter the description of an organisation.

I hope that the Minister gets my point. I would be concerned if the Attorney-General could alter the description of an organisation, thereby adding an organisation that does not appear on the list in the first place. I do not understand why paragraph (c) has been included, but if the Minister can explain why, I will not press amendment No. 60.

John Spellar (Labour, Warley)

I am advised that all recent legislation includes ''or'' only at the end of a list. I accept that that is a semantic point, but it is common practice.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful for that, but will the Minister deal with amendment No. 60, which concerns altering the description of an organisation?

John Spellar (Labour, Warley)

Subsection (5)(c) exists to ensure that the list of organisations to be covered by the guidance can be kept up to date without recourse to primary legislation. It allows the Attorney-General for Northern Ireland to change the description of an organisation, which he may need to do if one of the organisations changes its name. Let me give an example. The Juvenile Justice Board in Northern Ireland recently changed its name to the Youth Justice Agency. Paragraph (c) allows the Attorney-General to update the descriptions in clause 7 as such changes take place. I am advised that the formulation has been used in previous legislation, such as clause 46(6)(c) of the Justice (Northern Ireland) Act 2002.

David Trimble (UUP, Upper Bann)

What is the point of subsection (5), when subsection (1) says:

''The Attorney General for Northern Ireland shall issue, and as he thinks appropriate from time to time revise, guidance''?

It would be quite appropriate to revise the list of organisations in guidance. Why on earth include a separate subsection? It seems quite unnecessary.

John Spellar (Labour, Warley)

Subsection (5) applies to the organisations in subsection (4). The ability to add or omit an organisation may reflect organisational changes. There are two issues here: the organisations to which guidance would be sent and the guidance that would be issued by the Attorney-General. Therefore, subsection (5) merely reflects standard drafting practice. Accordingly, I commend it to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

On the second amendment, which is about altering the description of an organisation, I accept what the Minister says, although the right hon. Member for Upper Bann makes a good point. On the first, I can say only that it is a jolly good thing that I never wanted to be a parliamentary draftsman, because I would have gone mad. I am grateful to have ascertained that only the last ''or'' is left in, but if that is indeed the practice I do not understand why it should be left in—it is as simple as that.

John Spellar (Labour, Warley)

Ask the Oxford team.

Dominic Grieve (Conservative, Beaconsfield)

I hope that somebody in the parliamentary draftsman's department drops me a line to explain how that practice has crept in. It is most peculiar, and, as I said, sloppy. I very much regret the form in which the legislation has come before the Committee.

John Spellar (Labour, Warley)

In a way, the hon. Gentleman raises a much broader issue. He is probably aware that the Commonwealth of Australia has an extensive guide to using normal or plain English in legislation as a matter of common practice. That may be desirable, although I fear that it is a matter for much wider debate and probably not for the Committee to explore in detail. I merely say that the drafting of subsection (5) follows current practice. Accordingly, I ask the hon. Gentleman to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am a great believer in plain English. I do not like ''aforesaids'' and all the other rigmarole of ancient drafting. I like plain English, which requires link words. It is an interesting feature of current legislation that one must constantly do a double-think and interpret what clauses mean because the link words have been removed. Such drafting goes much further than plain English; indeed, it is the enemy of plain English. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 61, in

clause 7, page 5, line 33, leave out subsection (8).

Will the Minister tell me what is meant by subsection (8), which states:

''Nothing in this section requires the Public Prosecution Service for Northern Ireland to have regard to so much of any guidance for the time being in operation under this section as is inconsistent with a provision of a code of practice issued under section 37 of the 2002 Act.''?

I have a copy of section 37, which is a code for prosecutors. None the less, I find it difficult to understand subsection (8). Perhaps he can enlighten me.

John Spellar (Labour, Warley)

I shall certainly give an explanation; whether it enlightens the hon. Gentleman of course remains to be seen.

Effectively, this is a B and B clause—a belt and braces clause. I fully accept that it is unlikely, although not unthinkable, that the section that the hon. Gentleman wishes to leave out would be needed. Subsection (7) provides that the Director of Public Prosecutions will take the guidance into account when preparing his code of practice for prosecutors. It is therefore hard to see how a clash between the two documents could occur. However, the clause is drafted to take account of all eventualities. I understand the problems that the drafters have in dealing with that, but I think they have achieved it in this case.

For prosecutors to function effectively, we must ensure that they are not subject to contradictory guidance. We must therefore ensure that there is clear guidance if any contradiction between the two documents unwittingly occurs. If any contradiction became obvious, however unlikely that is, steps would have to be taken to rectify it. This is a belt-and-braces measure, and I hope that what I have said explains the matter for the hon. Gentleman.

Dominic Grieve (Conservative, Beaconsfield)

I fear that it does, and I am grateful to the Minister for providing that explanation. My regrets over the content of the legislation continue.

David Trimble (UUP, Upper Bann)

I may have misunderstood what the Minister said, but it seems to have a delightful consequence. It appears that the clause is saying to the prosecutors that they have to stick to the code of practice under section 37 of the 2002 Act, and that they do not have to worry about anything in the code of practice on the international human rights standard, because the code of practice for prosecutors takes precedence. They can therefore relegate the code of practice on human rights to the lowest drawer in their desk and not bother about it. He is being helpful to prosecutors by telling them that they can ignore it.

John Spellar (Labour, Warley)

May I clarify that matter? The key point is that that would be the case only in the event of a contradiction. The guidance might be complementary.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister and to the right hon. Member for Upper Bann for making that point—I could not have put it better myself. In the Committee, one sometimes wonders what we have been debating for the last half hour. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clauses 8 to 10 ordered to stand part of the Bill.

Schedule 2 - Bail under Terrorism Act 2000

John Spellar (Labour, Warley)

I beg to move amendment No. 8, in

schedule 2, page 14, line 14, at end insert—

'(5) In Part 1 of Schedule 9 to the Terrorism Act 2000 (c.11) (scheduled offences) after paragraph 22 insert—

''Justice (Northern Ireland) Act 2004

22A Offences under paragraph 1(1) or (2) of Schedule 2 to the Justice (Northern Ireland) Act 2004 (absconding by persons admitted to bail in respect of a scheduled offence), subject to note 1 below.'' '.

The amendment would make the offences under paragraph 1(1) and (2) of schedule 2 scheduled offences. Schedule 2 creates two new offences of absconding while on bail in a scheduled case. Those offences replace the offence of absconding while on bail under section 67 of the Terrorism Act 2000 and under section 26(d) of the Prison Act (Northern Ireland) 1953. The offence under section 26(d) is repealed by the Bill. It is a scheduled offence under schedule 9 to the Terrorism Act 2000, and it therefore makes sense for the replacement offences also to be scheduled.

Amendment agreed to.

John Spellar (Labour, Warley)

I beg to move amendment No. 9, in

schedule 2, page 14, line 39, at end insert—

'(5) If, on an application made by a constable, a justice of the peace is satisfied that—

(a) there are reasonable grounds for believing that a person who is liable to arrest under sub-paragraph (4) is to be found on premises specified in the application; and

(b) any of the conditions specified in sub-paragraph (6) is satisfied,

he may issue a warrant authorising a constable to enter those premises (if need be by force) and search them for the purpose of arresting that person.

(6) The conditions mentioned in sub-paragraph (5) are—

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b) that entry to the premises will not be granted unless a warrant is produced;

(c) that the purpose of a search of the premises may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment No. 18, in

clause 11, page 8, line 20, after 'court', insert

'and at the end insert—

''in order to carry out an arrest under this paragraph, a constable may enter any premises where he has reasonable grounds for suspecting that person to be.''.'.

Government amendment No. 6.

John Spellar (Labour, Warley)

Government amendments Nos. 6 and 9 are intended to provide the Police Service of Northern Ireland with powers of entry, which can be used to make an arrest using the powers of arrest without warrant under article 6(3) of the Criminal Justice (Northern Ireland) Order 2003 and paragraph 2(4) of schedule 2 to the Bill. The power in amendment No. 6 applies to non-scheduled cases, and the power in amendment No. 9 applies to scheduled cases. I stress that those powers of entry can be exercised only if a justice of the peace has granted the warrant.

Amendment No. 6 relates to clause 11, which will amend parts of the 2003 order dealing with bail in non-scheduled cases. The amendment will add new paragraph (3A) to article 6 of the 2003 order. Under article 6(3) of that order, a person who is on bail in a

non-scheduled case is liable to be arrested by a constable without warrant

''(a) if the constable has reasonable grounds for believing that that person is not likely to surrender to custody;

(b) if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; or

(c) in a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety.''

Amendment No. 6 provides that if a person is liable to be arrested under article 6(3), a JP may issue a warrant authorising a constable to enter a specified premises for the purpose of effecting the arrest.

Amendment No. 9 will amend schedule 2, which, with clause 10, deals with the enforcement of bail granted in scheduled cases under section 67 of the Terrorism Act 2000. Under paragraph 2(4) of schedule 2, a constable will have the power to arrest without warrant a person who is on bail in a scheduled case in similar circumstances to those in article 6(3). Amendment No. 9 also provides that if a person is liable to be arrested under paragraph 2(4), a JP may issue a warrant authorising a constable to enter specified premises for the purpose of effecting the arrest.

That details the technical side of the Government amendments, and I apologise to the Committee for the length of that explanation. The aim of those amendments is to enhance the PSNI's powers to arrest a person who breaches, or is likely to breach, a condition of his bail.

Amendment No. 18 would also provide a power of entry to arrest, but only for those liable to be arrested under article 6(3) and without the safeguard of having to obtain a warrant from a JP. When the Bill was debated in another place, Lord Glentoran tabled an amendment similar to amendment No. 18, which would have given the police an unfettered power to enter premises to effect an arrest under article 6(3). In response to that amendment, the Government expressed concerns about the compatibility of such an unfettered power with article 8 of the European convention on human rights, but undertook to consider, with the police, whether a compatible power of entry could be devised. Accordingly, our officials had numerous discussions with the police, as a result of which Government amendments Nos. 6 and 9 were drafted. They have the support and approval of the police.

The police are concerned that it would be easy for a person with bail to frustrate police powers to arrest them for a breach or likely breach of their bail conditions by entering private premises. Without powers to enter such premises and search for the person to be arrested, the power of arrest is effectively nullified until that person re-emerges. That is a problem of particular concern in Northern Ireland, where, due to security considerations, it is often not possible for police personnel to wait outside premises until a person re-emerges. The potential for public

disorder in certain areas would be high if numbers of police officers were required to remain in the street outside a particular residence.

The exercise of a power of entry will almost certainly engage with article 8 of the European convention on human rights. Such interference must comply with article 8(2)—namely, it must be in accordance with the law, pursue a legitimate aim and be necessary in a democratic society.

The final requirement is that the power be proportionate. The need to ensure that the power is exercised proportionately means that the power of entry could not be a summary power. Therefore, before a constable can enter premises to effect an arrest he must obtain a warrant from a JP. That ensures that there will be a judicial decision on whether it is appropriate and proportionate for a power of entry to be granted in a particular case.

A JP must exercise his discretion to decide whether a warrant should be issued in view of all the circumstances of a case and be satisfied, first, that there are reasonable grounds for believing that a person who is liable to be arrested under those measures is to be found on the premises specified in the application. Secondly, he must be satisfied that it is not practicable to communicate with any person entitled to grant entry to the premises, that entry to the premises will not be granted unless a warrant is produced or that the purpose of a search of the premises may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them. We can envisage the circumstances in which that would happen.

Accordingly, all the safeguards under articles 17 and 18 of the Police and Criminal Evidence (Northern Ireland) Order 1989 will apply to the application for and execution of the warrant. I hope that I have outlined the genesis of the power, the reason for it in the circumstances of Northern Ireland and the benefit to be obtained from it.

Amendment agreed to.

Schedule 2, as amended, agreed to.

Clause 11 - Bail to which Part II of the Criminal Justice (Northern Ireland) Order 2003 applies

Clause 12 - Transfer of prisoners

Desmond Swayne (Conservative, New Forest West)

I beg to move amendment No. 27, in

clause 12, page 8, line 42, leave out 'should' and insert 'may'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments:

No. 5, in

clause 12, page 8, line 42, leave out

'in the interests of maintaining security or good order'

and insert

'because of his serious misconduct or with his consent, for his own protection, or, in the interests of maintaining security'.

No. 19, in

clause 12, page 9, line 4, at end insert

'where a prisoner is transferred under subsection 2A, the jurisdiction which imposed a custodial sentence will be responsible for determining the date of release of the prisoner except where this is delayed by reason of his misconduct.'.

No. 20, in

clause 12, page 9, line 4, at end insert

'because of his serious misconduct or, with his consent, for his own protection.'.

No. 21, in

clause 12, page 9, line 22, at end insert—

'The Secretary of State shall lay before Parliament a report each year giving the number of orders made under section 2A of Schedule 1 to the Crime (sentences) Act 1997 (c.43) (transfer of prisoners within the British Islands).The report shall set out the reasons for which the orders were made.'.

Desmond Swayne (Conservative, New Forest West)

The Minister will be glad that I am now breaking my silence. The probing amendment No. 27 is the most interesting in the group, as it would require a report. It arises from the recent history of Her Majesty's prison Maghaberry, which was described in the 2002 report of the chief inspector of prisons as the most complex and diverse prison establishment in the United Kingdom, and from the legacy of the Maze, with its history of segregating paramilitary prisoners.

After the closure of the Maze, Maghaberry made significant progress with an integrationist regime, but it was not universally welcomed, especially by the paramilitaries. Protests and assaults began in 2001 and escalated until last summer, with a campaign against enforced integration across the sectarian divide on the ground that it put individuals' safety at risk.

On 7 August 2003, the Secretary of State initiated the Steele review, which reported on 8 September and recommended a new regime of separation, not segregation, for paramilitaries.

I shall not go into the enormous ramifications of that regrettable decision—regrettable in the widest sense. I understand entirely the pressures on Ministers and the prison service. It is a matter of regret that such a decision had to be taken. I shall not go into the ramifications because we have only one concern in the amendments: that the discipline of the new separated regime and the primacy of staff control that cannot and must not be compromised. The line must be held at separation and there must be no return to the sort of regime that prevailed in the Maze.

Paramilitaries are already trying to chip away at the regime. They main issue concerning disciplinary sanctions is what the staff can apply to hold that line. Governor McAleer put his finger on the problem when he gave evidence to the Select Committee on 12 November 2003. He said:

''If you have people who will commit themselves to hunger strike and are prepared to die, if you have people who are prepared to go on a dirty protest and you took one of them out and you said to him, 'I am going to stop your remission now' I do not think that plays any part in their thinking really. Certainly we would welcome any sort of punishment for people not obeying the rules and we will look at that.''

A new sort of punishment is now set out in the Bill—the power to transfer. There is no question of transferring in Northern Ireland because there are only three prisons, only one of which—Maghaberry—is capable of holding such prisoners. The possibility exists of transferring to England or Wales, but transferring to Scotland would require a Sewel motion or action by the Scottish Parliament and that is not an option in the Bill.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I understand that the Sewel motion has been through the Scottish Parliament.

Desmond Swayne (Conservative, New Forest West)

One might then have expected a Government amendment.

John Spellar (Labour, Warley)

We have tabled one.

Desmond Swayne (Conservative, New Forest West)

I am pleased to hear that. That possibility of transferring will be extended to the whole of the United Kingdom if we accept the Government amendment.

John Spellar (Labour, Warley)

May I clarify another point? The hon. Gentleman referred to punishment, but the clause was designed not to provide punishment but to maintain security and good order, which is a different issue.

Desmond Swayne (Conservative, New Forest West)

I am not sure that that distinction is wholly valid. I accept that there is a measure of discretion, and obviously the safety of individuals is involved, but I suggest that that was not the opinion of the Select Committee. In paragraph 80 of its second report, it said:

''We believe that the proposal to transfer prisoners to other jurisdictions as a sanction of last resort is very dangerous, and could easily be manipulated by the paramilitaries in their campaign to undermine the Northern Ireland Prison Service and, ultimately, the British Government. We caution against its use in the strongest possible terms.''

That language and the discussion that led to that conclusion makes it clear that the Select Committee feared that the scheme would be used as a sanction of last resort. It is precisely because of that conclusion

and its huge reservation about the matter that I tabled the amendment asking for the Government to provide a report of the number of and the reasons for which those transfers have been made. If the situation is as the Minister says—this is a question of good order—I cannot see why he would want to resist the amendment. It is a probing amendment and I am interested to hear the Minister's logic and an exposition of precisely how the power will be used and how the Government would react to the manipulation by paramilitaries in their campaign to undermine the Prison Service of Northern Ireland, which the Select Committee draws attention to.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I rise to support amendment No. 5. It is not sufficient to say that the reason for using this clause is the maintenance of good order. If a decision is taken to move a prisoner, it should be clear that that is done either to protect him or because of his misconduct, and that it relates to the conduct of the individual, rather than the overall governance of the establishment.

There is also a wider point to be made. As a general principle, it is preferable for people to be imprisoned close to their home so they continue to have access to visitors and family and maintain those links. It would be virtually impossible for a prisoner who was transferred from Northern Ireland to England to see their family to the same extent. For that reason, it is important to maintain the link between the transfer and the conduct of the individual, rather than the transfer and the conduct of general governance.

John Spellar (Labour, Warley)

The hon. Member for New Forest, West identified amendment No. 27 as being the crucial one in its group. It would provide that the Secretary of State should exercise discretion in considering whether a prisoner should be transferred to another jurisdiction. I hope to be able to persuade the Committee that that discretion already exists and the amendment is unnecessary. Clause 12(2) says that if it appears to the Secretary of State that a prisoner should be transferred, he

''may make an order for his transfer''.

That is where the element of discretion comes in. I hope that the hon. Gentleman understands that. The

Secretary of State has to satisfy himself that such an action is both necessary and proportionate to the risks that are posed by that individual. Once he is satisfied that the case is made, he may make an order for transfer to another jurisdiction.

The hon. Member for Orkney and Shetland asked about the wishes of the individual. The power can be used only if it appears to the Secretary of State that the prisoner should be transferred in the interests of maintaining either security or good order, with the case being decided on its individual merits. I am sure that we all accept that the maintenance of good order is a vital measure in providing an environment that is safe for both prisoners and staff. The transfer power is required for the protection and safety of prison staff and other prisoners. There may be cases where an individual has not been charged with serious misconduct but is responsible for planning, directing and orchestrating such actions by others and poses a threat in that way. It is important that when the Secretary of State has credible information that a prisoner is engaging in and planning such action, which will pose a threat to security or good order, he can act to ensure the safety of prison staff and other prisoners. Making a transfer order might be appropriate in such circumstances.

Under the amendment, such pre-emptive action could not be taken. We are making arrangements to ensure contact with family and the facilitating of family visits to such prisoners. Accordingly, I hope that the hon. Gentleman will withdraw the amendment. The clause arises from the Steele committee and is necessary. The amendments will either not achieve the purpose that is intended or frustrate the main purpose of the clause.

Desmond Swayne (Conservative, New Forest West)

The Minister has put his finger on it with his example of the person who is not guilty of an offence but is clearly the ringleader who is masterminding, organising others and planning—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned accordingly till this day at Two o'clock.

Standing Committee D

Justice (Northern Ireland) Bill [Lords]

Joe Benton (Labour, Bootle)

I remind the Committee that with this we are discussing the following amendments: No. 5, in

clause 12, page 8, line 42, leave out

'in the interests of maintaining security or good order'

and insert

'because of his serious misconduct or with his consent, for his own protection, or, in the interests of maintaining security'.

No. 19, in

clause 12, page 9, line 4, at end insert

'where a prisoner is transferred under subsection 2A, the jurisdiction which imposed a custodial sentence will be responsible for determining the date of release of the prisoner except where this is delayed by reason of his misconduct.'.

No. 20, in

clause 12, page 9, line 4, at end insert

'because of his serious misconduct or, with his consent, for his own protection.'.

No. 21, in

clause 12, page 9, line 22, at end insert—

'The Secretary of State shall lay before Parliament a report each year giving the number of orders made under section 2A of Schedule 1 to the Crime (sentences) Act 1997 (c.43) (transfer of prisoners within the British Islands).The report shall set out the reasons for which the orders were made.'.

Desmond Swayne (Conservative, New Forest West)

Before the Committee adjourned this morning, I was drawing my remarks to a close. The Minister gave us the benefit of a description of a situation in which the power under clause 12 to transfer prisoners would be most useful. He described a prisoner who had not been convicted of a misdemeanour but who was clearly the ringleader and was involved in planning and directing others. He said that, for the good order of the prison, that person would best be removed.

However, the Select Committee on Northern Ireland Affairs, some of whose members are present and may cast further light on their deliberations, had fears about precisely such a course of action, which prompted its recommendation. The person described is precisely the sort of person for whom there might be a great deal of support were the proposed action taken, and agitation might result. That is the key issue. My understanding of the Select Committee report is that, if a ringleader was identified in that way and transferred out of the prison, it would lead to agitation that could set the whole prison alight, as it were, whether through a dirty protest, a hunger strike or

whatever. It was for that reason that the Select Committee advised such caution.

I understand the problems associated with the issue, but I hope that the Minister will take the opportunity to place on record the Government's commitment to the sanction and indicate with what caution or robustness they would use it in such circumstances. I hope that we will at least get on the record some indication of their appreciation of the Select Committee's concern.

Harry Barnes (Labour, North East Derbyshire)

I was a member of the Select Committee that produced the report to which the hon. Gentleman refers. As he suggests, a difficult situation has arisen. Many of us felt that the step that we are discussing should not have been taken, but now that it has been, we are in the awkward circumstance of having to get it right. He was right to table probing amendments to ensure that the Minister responds to these rather awkward conditions. The dangers to which the Select Committee pointed exist, and what should we do in such conditions?

Desmond Swayne (Conservative, New Forest West)

That was a helpful intervention. I, too, hope that the Minister will be prompted to cast further light on the measure. He has been helpful so far, but he might share the deliberations of the Government further, particularly in respect of the Select Committee's recommendation.

John Spellar (Labour, Warley)

I thank colleagues for the thoughtful way in which they have addressed this difficult issue. Everyone has recognised the difficulties associated with any course of action, as well as with inaction. I assure hon. Members that the decision to transfer prisoners will be made by Ministers who are conscious of the background to individual cases and alert to any ulterior motives that may lie behind a prisoner's disruptive behaviour. I stress that it is envisaged that the power will be used sparingly and will be subject to regular review. Prisoners will be returned to Northern Ireland at the earliest opportunity unless there are compelling reasons why that should not happen.

Andrew Hunter (Independent Conservative, Basingstoke)

I apologise for interrupting the Minister. Before he concludes his comments, will he turn from politician to historian and contemplate the fact that a significant dimension of problems was added to the so-called troubles by previous Governments taking precisely this type of decision? Will he include in his comments an awareness of that fact and assure us that the mistakes of the past are not being repeated?

John Spellar (Labour, Warley)

I have outlined that there are consequences of inaction as well as of action. Northern Ireland Ministers realise more than most that the hand of history lies on them, and they consider precedents, as those in the Select Committee that made the recommendations would have done; indeed, all of them were extremely experienced in such matters, not least the Chairman. We recognise the difficulties of any course of action, but we think that the provision strikes the right balance and is prudent.

Desmond Swayne (Conservative, New Forest West)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Spellar (Labour, Warley)

I beg to move amendment No. 62, in

clause 12, page 8, line 42, leave out 'England and Wales' and insert

'another part of the United Kingdom'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss Government amendments Nos. 63 to 65.

John Spellar (Labour, Warley)

The amendments provide that prisoners may be transferred to either Scotland, England or Wales. Prison matters are devolved in Scotland, and to legislate in the UK Parliament for prisoners transferring from Northern Ireland to Scotland, a Sewel motion was required in the Scottish Parliament. Such a motion was approved on 18 March, which allowed us to table the amendment.

Amendment agreed to.

Amendments made: No. 63, in

clause 12, page 9, line 1, leave out 'England and Wales' and insert 'that other part'.

No. 64, in

clause 12, page 9, line 22, at end insert—

'(7) In paragraph 13—

(a) in sub-paragraph (1) after ''1(1)(a)'' insert ''or (2A)(a)'';

(b) in sub-paragraph (2) after ''1(1)(b)'' insert ''or (2A)(b)''.'.—[Mr. Spellar.]

Question proposed, That the clause, as amended, stand part of the Bill.

Harry Barnes (Labour, North East Derbyshire)

The issue of the transfer of prisoners arises in relation to the problem at Maghaberry and the matters considered by the Select Committee. Clause 12 contains a paradox on the transfer of prisoners. If provision for such transfer had existed prior to the Steele inquiry, the case for separating prisoners would have been weaker because it may have been possible to transfer paramilitary prisoner ringleaders despite the potential problems. That would have removed the need for separations, which cause problems and which the Select Committee correctly accepted as having taken place. The Committee was concerned that they had happened but wanted a firm line, and prison officers and others indicated that, given the word, they would hold the line. It is odd that the same proposals could have been used earlier in different circumstances.

My second point is that the clause contains no distinction between the two sets of prisoners in Maghaberry prison, despite the fact that the case for transferring prisoners out of Northern Ireland seems to relate to paramilitaries in that prison. Why is the clause a general provision applying to all prisoners? I realise that dividing the two sets of prisoners might alter the whole climate in the prison, which may affect ordinary, decent criminals, as they are usually called, as distinct from the paramilitary criminals. In certain circumstances, some ordinary, decent criminals may seek to claim paramilitary status, not least because the provisions for paramilitary criminals may be better.

Desmond Swayne (Conservative, New Forest West)

Does the hon. Gentleman agree that as critical mass is important to paramilitaries, some

prisoners may be pressurised or even intimidated into declaring themselves to be of that persuasion?

Harry Barnes (Labour, North East Derbyshire)

There is that difficulty, which is part of my concern. Is it fair for ordinary decent criminals to get caught up in these arrangements? They may do so because of pressure from paramilitary prisoners and outside communities with links to paramilitary prisoners, and because the provisions for paramilitary groups appear to be better. That may be why we are introducing provisions that will be applied across the board, but it is unfortunate that we are introducing a general solution for all prisoners in Northern Ireland because of paramilitary problems.

Desmond Swayne (Conservative, New Forest West)

I want to expand briefly on my intervention. After this morning's proceedings, I handed my copy of the Select Committee's report to the Hansard reporter, but I recall that the Select Committee expressed the strong opinion that there had to be an absolute ban on self-selection in which ordinary prisoners simply declare themselves to be a member of one paramilitary group or another. It said that such a process would lead to precisely the sort of intimidation to increase paramilitary numbers that I described in my intervention, and suggested that paramilitary status be designated only on the clear evidence of police officers and the proper authorities.

John Spellar (Labour, Warley)

I understand the points that are being made, but I wish to pose another hypothetical scenario. A prisoner with the separated status of a paramilitary member who believed that we had become aware of their activities to disrupt the prison, despite not being guilty of any misdemeanour that would have rendered them liable to disciplinary action, might seek to revert to integrated status in order to avoid the provisions that hon. Members are suggesting would apply only to those subject to separated status. We recognise many of the difficulties that have been outlined, which is why we envisage that the power will be used sparingly. At the same time, however, we need to keep a range of options for people who will try to exploit every possible loophole and difficulty.

The relocation of a prisoner outside Northern Ireland may be the most appropriate action to take in circumstances in which an individual cannot be accommodated in integrated or separated accommodation. The basic aim is to recognise the difficulties of having separated groups, although there are reasons for having them. We need new powers, including this proposed compulsory transfer power, if we are to prevent slippage towards full Maze-style segregation.

Question put and agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clauses 13 to 15 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clauses 16 and 17 ordered to stand part of the Bill.

Schedule 4 - Repeals

Andrew Hunter (Independent Conservative, Basingstoke)

I beg to move amendment No. 67, in

schedule 4, page 19, line 22, at end insert—

'Police (Northern Ireland Act 2000 (c.32) Section 47.'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

New clause 4—Lateral entry to Police Service of Northern Ireland for serving full-time reserve officers—

'After section 45 of the Police (Northern Ireland) Act 2000 insert—

''45A Lateral Entry to Police Service for Northern Ireland for Serving Full-Time Reserve Officers

(1) Those serving in the full-time reserve of the Police Service of Northern Ireland having completed one year's service may apply for a transfer to be police trainees.

(2) Such transfers will be automatically accepted by the Chief Constable unless:

(a) the applicant is subject to disciplinary action; or

(b) the applicant is subject to an investigation by the Police Ombudsman.

(3) A person making an application under this section will not be subject to the provisions of section 46.''.'.

New clause 5—Discrimination in appointments—

'For section 46 of the Police (Northern Ireland) Act 2000 substitute—

''46 Discrimination in appointments

In making appointments under section 39 the Chief Constable shall appoint candidates on merit alone.''.'.

Amendment No. 66, in

title, line 12, after 'services', insert

'to amend Part VI of the Police (Northern Ireland) Act 2000;'.

Andrew Hunter (Independent Conservative, Basingstoke)

I tabled these amendments on behalf of the Democratic Unionist party, as I did the previous group, but I am conscious that they have wider support.

The amendments and new clauses have a common theme: they would extend the remit of the Bill to the Police (Northern Ireland) Act 2000, and amend that Act. New clause 4 addresses the issue of a natural entry to the police service for full-time reserves, and new clause 5 deals with one of the more contentious areas of Northern Ireland legislation—the so-called 50:50 requirement for the admission of police recruits. Amendments No. 66 and 67 are technical amendments that facilitate the inclusion of the new clauses in the Bill. New clause 4 is self-explanatory: it proposes a new section 45A to be inserted after section 45 of the Police (Northern Ireland) Act 2000, and proposed section 45A(3) in particular also relates to the 50:50 requirement.

Since the inception of the Patten reforms, the position of reserve members of the police in Northern Ireland has been ambiguous, and that has been acutely felt by those officers who serve as full-time reserve members of the police service. Full-time reserve officers have vast experience and many of them have long and distinguished records. Their service has been invaluable in combating loyalist and republican

terrorism and defending all citizens of Northern Ireland from attack.

Since 1971, some 49 members of the full-time reserve have been murdered and several thousand have been injured, several hundred of them permanently so. The full-time reserve has served with distinction, sharing the risks and the demanding challenges of protecting the public. Their expertise also extends to dealing with non-terrorist criminal activities: they have extensive experience of interfacing with the public and dealing with everyday policing matters. That wealth of experience was threatened by the Patten reforms.

If the full-time reserve is abolished, some 1,600 experienced, fully trained officers who are already working on the ground will be forced out of the service. Despite their exemplary record, they have been treated with contempt and indifference. Patten recommended that they should be phased out—airbrushed from history. Despite a temporary reprieve, their future is uncertain.

That state of affairs is particularly scandalous given the crisis in the number of serving officers because of the Patten reforms, the loss of morale in the Police Service of Northern Ireland and the level of early retirements from the force. It is an irrefutable fact that the Police Service of Northern Ireland suffers from the highest levels of sick leave of any force in the United Kingdom. Those rates have increased since the implementation of the Patten reforms began. Numbers plunged last year to 6,900 serving officers, which is below the peacetime operational level recommended by Patten. If the full-time reserve is disbanded there will be 1,600 fewer officers in Northern Ireland.

My new section 45A has a simple objective. It is to secure the position of those officers. People who have sacrificed so much over the years deserve no less. They continue to police Northern Ireland with distinction, but they have no security in respect of their future. The new clause would secure the future for dedicated officers who continue to serve with distinction. As policing numbers decline and the discriminatory recruitment practices of section 46 of the 2000 Act prevent recruitment of adequate numbers of officers, it is paramount that those officers are not lost. Quite simply, we cannot afford to lose them.

Currently, if a full-time reservist wants to transfer to the officer ranks, he is treated like any other member of the community. He simply applies as anyone would. His experience and dedication over the years are not taken into account. New clause 4 would allow full-time reserve officers to apply for a lateral transfer. It would give the full-time reserves security of tenure, retain desperately needed expertise and increase the number of officers.

New clause 5 rests on the simple proposition that the overriding principle governing appointments, whether to the Judicial Appointments Commission, the judiciary or the police service, should be based on merit alone. One is encouraged to put forward that point of view because the Government accept and assert it in the Bill with regard to the judiciary and

members of the Commission. Such appointments must be made

''solely on the basis of merit''.

The concept of being ''reflective of the community'', according the to the Bill and the Government's justification for it, is highly desirable, but it is nevertheless a secondary consideration. It applies only

''so far as is practicable''.

Merit is the sole determining factor.

Reduced to simplicity, new clause 5 applies precisely the same principle to the selection of police recruits. What the Government legislate for judges, they should also legislate for police officers. The essence of the argument is that the 50:50 provision in the 2000 Act is unparalleled in legislation in the United Kingdom or in the Commonwealth, and that it is iniquitous. In passing it, the Government required derogation from European anti-discrimination law, which is an unwelcome and uneasy position to adopt.

The consequences of the 50:50 requirement have been disturbing to put it mildly. To date, 777 young men and women with all the necessary qualifications and personal qualities to become police officers have been denied the career of their choice for the simple reason that they happen to be Protestants. They are the victims of state-orchestrated, state-legislated discrimination. This is an ugly and intolerable state of affairs that cannot be justified.

Another consequence is that police numbers are plunging. Given that the police must recruit 50 per cent. Catholics and 50 per cent. non-Catholics, the numbers of police recruits are not determined by the applicants' merits, but by the number of suitably qualified Catholics who apply. In the extreme, if no Catholic were to apply, no policeman could be recruited in Northern Ireland. It is clear that such legalised sectarian discrimination has not worked and is not working. It is not attracting young Catholic men and women into the police force, and it has succeeded in leaving Northern Ireland with an undermanned police force with falling morale.

It is not surprising that Catholic recruits are not forthcoming. To illustrate, I can say that someone with his ear close to the ground tells me that in south Armagh about this time last year, nine young Catholic men from respectable, hard-working families were thinking of applying to become recruits, but the provisional republican movement got to know about that, called on each of the families late at night and gave parents some ''friendly'' advice about what could happen if their sons joined the police. Not surprisingly, not one of those young men went forward. I do not blame them, but the fact is that they were intimidated, and the men of violence won again.

A fully functional, fully operational police force recruited solely on merit is urgently needed in the Province. A policeman's religion is irrelevant to his ability to perform his duties. The creation and maintenance of a stable society demands that that is acknowledged. Legalised and institutionalised

sectarianism is not the way forward. A police force recruited solely on the basis of merit is urgently needed, given several factors: the increased incidence of violence and terrorism since the Belfast agreement; the IRA's refusal to renounce violence irrevocably, decommission totally and disband completely; the increase in crime; the decline in police numbers; and the fact that the SDLP at grass-roots level is, rightly, not the only party demanding more visible policemen.

Discrimination is wrong in any facet of life in Northern Ireland or anywhere in the United Kingdom, whether on grounds of sex, race or religion. It cannot be defended, but section 46 of the Police (Northern Ireland) Act 2000 legalises it. To argue against the amendment is to argue for the indefensible and a practice that is morally wrong. A few weeks ago, the Government carried forward their intention to retain 50:50 recruitment for a further three years, despite overwhelming evidence that the policy is flawed and incapable of delivering the desired results. It is nothing short of scandalous that we allow it to continue.

New clause 4 would place a duty on the Chief Constable to recruit the best people for the job, on the basis of merit. That is only right and proper. It would return policing in Northern Ireland to the position enjoyed by all police forces in the democratic world. I urge the Committee to accept the two new clauses and the facilitating amendments that accompany them.

David Trimble (UUP, Upper Bann)

I congratulate the hon. Member for Basingstoke (Mr. Hunter) on tabling these proposals, which he says he has introduced on behalf of the Democratic Unionist party. I must say that sometimes I am not entirely sure of the exact nature of the relationship between the hon. Gentleman, who was elected as a Conservative, and the Democratic Unionist party.

Andrew Hunter (Independent Conservative, Basingstoke)

Neither am I.

David Trimble (UUP, Upper Bann)

Clearly, the hon. Gentleman cannot clarify this further. However, it is interesting that we have the first amendments connected with policing in Northern Ireland tabled by—or on behalf of—the DUP since the Patten report.

As the hon. Gentleman knows, the Patten report was published in 1999 and followed by legislation. My party tabled some 200 amendments to that Bill in Committee and we have been active in Parliament in opposing 50:50 and associated matters ever since. Unfortunately, until now, the DUP has not been active in any way in Committee.

I am probably right in saying that the DUP could have had one of its own Members on the Committee. I see the hon. Member for Gedling (Vernon Coaker) nodding. At least the DUP has sent along the hon. Member for Basingstoke. That is a good thing, because he understands the procedures of the House well enough to have tabled these proposals, although I am not sure that the party on whose behalf he tabled them would have displayed the same skill. I welcome the fact that the DUP is beginning to do something on this issue, albeit indirectly through the hon. Gentleman. Would that it had done so beforehand.

I shall not talk about the merits of the matter. However, I endorse what the hon. Gentleman said and refer him and other members of the Committee to what I said a few weeks ago during consideration in the House of the extension of the 50:50 practice. I shall not reflect on the details or comment on that practice, because if I do so I will only make myself angry again—I have enough to be upset about this afternoon without reflecting on that matter.

I welcome the hon. Gentleman and, through him, the DUP to the fray. I wish that the DUP had got involved earlier and that it would not, from a purely partisan point of view, try to discourage people from pursuing other ways of challenging 50:50, as some of my friends are doing.

Desmond Swayne (Conservative, New Forest West)

I have great sympathy with the new clauses tabled by my hon. Friend the Member for Basingstoke, for which he made a powerful case. In relation to new clause 4, the Minister is duty bound to give us an insight on how he proposes to deal with the question of numbers, to which my hon. Friend drew attention, if we are to dispense with the services of the full-time reserve, as is planned. I pressed Ministers on that at the last Northern Ireland Question Time.

I have before me a parliamentary answer to a question tabled by my hon. Friend the Member for Aylesbury (Mr. Lidington), which was answered on 9 February at column 162 by the Minister of State, Northern Ireland Office, the right hon. Member for Liverpool, Wavertree (Jane Kennedy). It gives, in tabular form, a list of the numbers for the regular police and the full-term reserve—sorted by district command unit—and presents a stark picture. The number of regular officers is 4,504 and the number of officers in the full-time reserve is 1,446. By my reckoning, that means that a quarter of the police force is made up of full-time reservists. However, one can see that in certain district command units that proportion is even higher. In Belfast, East, for example, there are 216 regular and 114 reserve officers. By my reckoning, reservists make up a third of the force.

Yesterday, I had the privilege of meeting three representatives of the Police Federation for Northern Ireland. They made the point that those officers are involved in front-line policing duties; they are not a reserve in the sense that we might ordinarily conceive of one. The Minister is therefore duty bound to give us an insight on how we will do without the services of those officers if the plan proceeds, although I would much prefer him to accept new clause 4.

On new clause 5, I agree that quotas are objectionable in principle, and it would be vastly better if we had selection purely on merit. The Government's objective is admirable and desirable, but the means by which they have chosen to pursue it are unjust and a blunt instrument. Having said that, I welcome unreservedly the increase in the number of Catholic police officers in Northern Ireland. As the Minister can probably confirm, the proportion has increased from 14 per cent.—

John Spellar (Labour, Warley)

Eight to 14 per cent.

Desmond Swayne (Conservative, New Forest West)

I stand corrected. That increase is very welcome, and it deserves a tribute from us all to the courage and professionalism of those Catholic officers and the members of that community who serve on the police boards in the face of threats and intimidation. My hon. Friend the Member for Basingstoke has already given us a flavour of what they are up against, and they deserve huge appreciation from us.

There has been a considerable increase in the recruitment of Catholic officers, but did it happen because of the quota? I am sure Ministers will say that it did and that we are seeing the policy bear fruit. I doubt that, however, and I would say that the changed situation and the support and endorsement of the SDLP were much more important. That is the breakthrough.

If the Minister believes that the increase in recruitment is purely the effect of the quota, surely it follows that to increase the proportion of Catholic officers more quickly to 50 per cent. we should reduce the size of the non-Catholic quota. Why do we not move to a 60, 70 or 100 per cent. quota for Catholic officers to accelerate the process? No one believes that that is feasible because, as the hon. Gentleman said, there is a shortage and the policy will not work in reality. The quota is temporary and designed to achieve a particular objective, but my reasoning is that the objective is being achieved by other means.

The real brake on the recruitment of more Catholic officers is the intimidation of recruits and potential recruits, to which my hon. Friend the Member for Basingstoke drew attention, and Sinn Fein's refusal to endorse the force and give public support. In that context, Sinn Fein's recent spending of £25,000 to take out newspaper advertisements in the United States to decry the Police Service of Northern Ireland is a disgrace. We look to the Government to bring enormous pressure to bear on that organisation to secure a change in that policy.

There are other ways to pursue the objective. In this country, we place a duty on public authorities in respect of race relations and being reflective of the community. An enormous injustice rankles with those who pass the recruitment test on merit but find themselves excluded purely on quota grounds. If they want to reapply, they are back to square one, as if they had never applied in the first place. That creates a huge sense of grievance, so I support the proposals tabled by my hon. Friend the Member for Basingstoke.

John Spellar (Labour, Warley)

I am glad that the hon. Member for New Forest, West (Mr. Swayne) has raised the question of intimidation of local policing partnership bodies, the police and potential police recruits. Let us be under no illusion that that is driven primarily by some obscure political theory—it is often driven by a desire and a need to protect criminal enterprise. We all recognise that, and I am sure that the House is united in condemning such behaviour.

We are getting recruits, however, and more than 530 entered training in the first year, which is well in excess of Patten's figure of 370. More than 1,100 have joined the service. That is well above the number joining pre-Patten. There has been a reduction in

numbers because a considerable quantity of police have taken advantage of severance arrangements. Quite a number have gone to work in other countries, using their considerable skills there, but the recruitment is providing redress.

Andrew Hunter (Independent Conservative, Basingstoke)

We are all familiar with the statistics. Will the Minister clarify whether the interpretation that he is putting on them is that there is no problem with recruitment to the Police Service of Northern Ireland?

John Spellar (Labour, Warley)

I am saying that the number of recruits is above that anticipated and that the deficit is being addressed. I shall come to how the policy is working in other ways. The obverse side of an argument that says, ''We wish to discourage severance,'' is to provide less generous severance terms to those who have served over a number of years. I am sure that the hon. Gentleman does not want to advance that argument.

I acknowledge the firmly held views, as expressed again today, on 50:50 recruitment. However, this is not the proper context for debating that policy as it was debated fully during the passage of the 2000 Act and, much more recently, during last month's discussions on the order providing for the temporary provisions to continue in force for three years. I know that certain hon. Members do not agree with the temporary provisions, but they should recognise that, under the 50:50 recruitment policy, the percentage of Roman Catholics in the PSNI has increased from 8 per cent. in 2000 to more than 14 per cent. in March 2004, and continues to increase.

The hon. Gentleman also referred to the full-time reserve. Patten recommended a police strength of 7,500 regulars and a part-time reserve of 2,500, with the full-time reserve to be phased out. The Chief Constable and the Policing Board have agreed that the phasing out will begin in April 2005, subject to a review of the prevailing security situation to be carried out later this year by the Chief Constable. Obviously, we await that.

New clause 4 would allow members of the full-time reserve to transfer automatically to become police trainees after a year's service, subject to certain exceptions. At the moment, they can apply to join the police service. As the hon. Gentleman said, they have to go through the same process, but 158 members of the full-time reserve have already succeeded in that. A limited number of places are available each year, and allowing members of the full-time reserve to transfer automatically would disadvantage others who wish to become police officers. These proposals, although introduced honestly, represent an attempt to try to go over old ground, so I ask the hon. Gentleman not to press them.

Andrew Hunter (Independent Conservative, Basingstoke)

I do not remotely apologise for going over old ground—these debates are fundamental. The Minister's comments horrify me. He says that this is not the ''proper context'' in which to debate these proposals. Well, they are totally in order and you, Mr. Benton, selected them. It is most appropriate,

therefore, that we debate them. It is not for a Minister to decree that this is not the proper context. This is the proper context, but he dealt with the proposals in a cavalier, over-hasty fashion.

We know the Government's position, but the issues are so important that the arguments must be presented at every available opportunity. Those who share my view believe that the Government's position is fundamentally wrong. ''Cavalier'' is the appropriate word, because the Minister's galloped response did not address the seriousness of the issues. His comments will be read outside the Committee and judged accordingly. He should at least have devoted more time and detail to the serious points that I tried, to the best of my ability, to raise, but he chose not to. Therefore, I will not withdraw the amendment. The Committee's composition makes the result predictable, but we must make a stand on principle.

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 8.

Clause 22 - Short title

New clause 4 - Lateral entry to Police Service of Northern Ireland for serving full-time reserve officers

New Clause 5 - Discrimination in appointments