Standing Committee B
Tuesday 17 March 1998
(Morning)
[Mr. Barry Jones in the Chair]
Clause 59
Steps to be taken after investigationdisciplinary proceedings
10.30 am
Mr. Seamus Mallon (Newry and Armagh): I beg to move amendment No. 48, in page 30, line 40, leave out from "Ombudsman" to end of line 41 and insert
"shall himself bring disciplinary proceedings.
(5A) Any such cases thus brought shall be presented by the Ombudsman to an independent tribunal established under subsection (8) which is empowered
(i) to adjudicate on the merits of the case, and
(ii) in the case of a finding of guilt, to make recommendations to the Chief Constable as to the penalty.".
The Chairman: With this it will be convenient to take the following amendments: No. 49, in page 30, leave out from beginning of line 42 to end of line 4 on page 31.
No. 50, in page 31, leave out lines 8 and 9.
No. 102, in page 31, leave out lines 10 to 18.
No. 51, in page 31, leave out line 21.
Mr. Mallon: I want to speak to all the amendments tabled in my name as, to a large degree, they are consequential on amendment No. 48. They would amend the Bill to allow the ombudsman to bring himself into the proceedings in cases in which the Chief Constable is unwilling to bring disciplinary proceedings against an accused officer. That problem has been pointed out in the Hayes report and in the triennial review of the Independent Commission For Police Complaints. The matter has been laughed at and scorned by every lawyer in Northern Ireland who has ever been briefed in such cases.
At present, although the Chief Constable might have decided not to bring disciplinary proceedings against an officer, he can be instructed to do so by the independent commissionas it is now. That results in the unedifying spectacle of the Chief Constable, who has established his unwillingness to bring a case, being required to do so, and almost always briefing lawyers on it. That case, which he was reluctant to bring, is then brought before a tribunal that he chairs. That is a wholly undesirable and cumbersome way to deal with the problem.
Amendment No. 48 would bypass such problems by giving the ombudsman the power to bring disciplinary proceedings. He would be able to bring cases before a properly established tribunal, to make representations and, in findings of guilt, to make recommendations about the penalty to the Chief Constable.
There can be no serious argument against a change in the provisions. The amendment does no more than give effect to the recommendations of the Hayes report and to those of the triennial review of the ICPC. It introduces nothing new. It is in tandem with the other provisions in the Bill regarding the role of the ombudsman. It would remove the absurdity of situations in which the Chief Constable had decided not to bring disciplinary procedures, but was directed to do so before a tribunal that he chaired. That is hardly in the interests of due process, natural justice, or public confidence in the police system. In view of the recommendations in the Hayes report and the triennial review, such situations can no longer be supported.
The Bill is silent on this matter. It makes no suggestions. We do not know what the Government are thinking or whether they have other views on the matter. In particular, there is no suggestion that there will be any changes. I suspect that the word "regulations" might be used again. Surely the situation that I have described is such a contradiction and so absurd that the matter should be dealt with in the Bill.
I look forward to the Minister's comments. If he has any doubts about my presentationwhich at this time of the morning can always be questionedI suggest that conversation, however formal, with any of the barristers who have dealt with relevant cases in the north of Ireland, would provide convincing arguments about the absurdity of the matter, and the need for change.
Mr. Malcolm Moss (North-East Cambridgeshire): Welcome back to the Chair, Mr. Jones for what is, no doubt, the final furlong.
Hon. Members: Steady on!
Mr. Moss: I want to speak to amendment No. 102, which is a probing amendment.
The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Tony Worthington): Ah!
Mr. Moss: The Minister is gleeful about that. The amendment concerns clause 59(8), which relates to wording in the Bill that also appears in clause 50(3) of the Police Act 1996. Clause 59(8) of the Bill refers to what will become section 25(3) when the Bill is passed. That provision concerns procedures. It states:
"Without prejudice to the powers conferred by this section, regulations under this section shall
(a) establish, or make provision for the establishment of, procedures for cases in which a member of the Royal Ulster Constabulary may be dealt with by dismissal,".
That wording is identical to that in section 50(3) of the 1996 Act. However, clause 59(8) of the Bill deals not with procedures, but special procedures.
The Police Federation for Northern Ireland argues in its submission that that is completely unacceptable. In the federation's view, the special procedures have yet to be defined. Will the Minister provide clarification? Both the 1996 Act and previous provisions of the Bill refer to procedures established under regulations. The concept of special procedures is introduced suddenly in clause 59(8) and those special procedures have not yet been defined.
Mr. Worthington: I think that I can deal with the points raised by the hon. Members for Newry and Armagh (Mr. Mallon) and for North-East Cambridgeshire (Mr. Moss) to the satisfaction of both of them. I have always been an optimist.
The clause concerns cases in which any criminal aspects have already been dealt with. At that point the ombudsman would consider disciplinary action. If he decides that there is evidence of a breach of police discipline, he will make the appropriate recommendation to the Chief Constable, giving the reasons and background. The Chief Constable would consider the matter, and if he agreed with the recommendation would bring disciplinary action. The case would be heard under the established disciplinary procedures. That is important. It would, as pointed out by Maurice Hayes, enable the Chief Constable to be responsible for the discipline of his own force. That is the central principle of the Hayes report. If the Chief Constable disagrees with a recommendation, he should give reasons for that to the ombudsman. The Bill provides for the ombudsman to consult the Chief Constable. There would be an exchange on the subject, and the Chief Constable would give the ombudsman his reasons for disagreeing with the recommendation. For example, the Chief Constable may notice a flaw in the evidence, and the Bill gives him an opportunity to come back to the ombudsman on the subject.
If agreement was reached between the Chief Constable and the ombudsman, the Chief Constable would bring disciplinary charges. If the ombudsman was convinced by the Chief Constable's case, there would be no charges. If agreement cannot be reached
Mr. Moss: The Under-Secretary referred to subsection (5), which states:
"the Ombudsman may, after consultation with the Chief Constable, direct him to bring disciplinary proceedings."
Therefore, if the ombudsman stands his ground, he can direct the Chief Constable to bring disciplinary proceedings.
Mr. Worthington: The hon. Gentleman is pinching my next line.
When agreement cannot be reached, and the ombudsman continues to believe that a charge is appropriate, he can direct the Chief Constable to bring a charge.
There is some confusion, and a misunderstanding that if the Chief Constable brings a charge, he also brings the case. That is not so. The Chief Constable would bring the charge, but the ombudsman would bring the case. The Chief Constable must bring the charge because he is responsible for discipline in the force, but the case would be handed to the ombudsman for preparation and presentation. A hearing would take place before a tribunal, as recommended by Maurice Hayes. The tribunal would be independent. I shall consider that subject later.
Mr. Mallon: Perhaps my timing is wrong, and the Minister is about to say that established disciplinary procedures will be changed. The hon. Member for North-East Cambridgeshire asked a probing question. What will happen if the Chief Constable, who is unwilling to bring disciplinary charges, chairs the tribunal that adjudicates the case brought by the ombudsman? Is the Under-Secretary about to say that there will be a substantial change in the composition of the tribunal to ensure that such nonsense does not occur?
Mr. Worthington: Yes, I am. When the Chief Constable and the ombudsman disagree, the ombudsman can direct the Chief Constable to bring the charge. The ombudsman controls the case, which will be heard before an independent tribunal.
I was relieved when the hon. Member for North-East Cambridgeshire said that amendment No. 102 was a probing amendment, because it would destroy the clause. Subsection (8) provides for regulations to establish a new procedure. The independent tribunal would make a finding of innocence or guilt, and make a recommendation to the Chief Constable on punishment. It would be up to the Chief Constable to determine the punishment, but subsection (9) states that the Chief Constable should notify the ombudsman of the outcome.
I know that the wording of the clause is complex. A good deal of time has gone into the clause and we are still working on it. I appreciate that the hon. Member for Newry and Armagh wants to see the disciplinary tribunal in the Bill. We shall give further thought to whether there is a way of doing that, but I give him the assurance that the term "special procedure" means that it will be an independent tribunal and not a police body in cases where there is disagreement between the Chief Constable and the ombudsman.
10.45 am
The first amendment in the name of the hon. Member for Newry and Armagh, amendment No. 48, refers to the ombudsman bringing disciplinary proceedings in certain cases. At present, the legislation requires the Chief Constable to do that, but it is a purely technical device. It is for the Chief Constable as the appropriate disciplinary authority to prefer charges. However, regulations will provide that the ombudsman presents the case where the Chief Constable has brought the charges on direction. The hon. Gentleman's amendment No. 49, provides for the ombudsman to present the case in those instances. Again, regulations will provide for that. Amendment No. 50 seeks to remove the ombudsman's power to allow the Chief Constable to discontinue disciplinary proceedings. We resist that, because circumstances can change as more becomes known about a case. If the evidence was flawed, it would be necessary to give the ombudsman power to allow the Chief Constable to discontinue disciplinary proceedings. We resist that, because circumstances can change as more becomes known about a case. If the evidence was flawed, it would be necessary to give the ombudsman power to allow the Chief Constable to discontinue disciplinary proceedings, but again the power is with the ombudsman and not with the Chief Constable.
I think that I have answered the points raised by amendment No. 102. The hon. Member for North-East Cambridgeshire said that it was a probing amendment, but if it were accepted, the clause would disintegrate.
I hope that, following my assurances about the ombudsman's powers, the direction of the case and it being an independent tribunal, the hon. Gentleman will seek to withdraw his amendment. If we can find a form of wording that makes the issue clearer, I assure hon. Members that we shall present it on Report.
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