Sunday Business Post – 11.6.2000

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What a travesty

Police Bill is just a parody of Patten

By Brendan O'Leary

There are two ways in which the Police (Northern Ireland) Bill before Parliament should be read. The first is to check whether ­ as promised by the Prime Minister, the Secretary of State, and the accompanying Explanatory Notes issued by the Northern Ireland Office ­ it effectively implements the report of the Independent Commission on Policing for Northern Ireland, and thereby is consistent with the terms of the Belfast Agreement. The second is to assess whether the Bill will provide policing arrangements that are appropriate to a democratic state, and that will stabilise Northern Ireland.

My assessment is negative on both counts. The Bill therefore requires radical amendment by the friends of the Belfast Agreement in Parliament, and if these radical amendments are not made I believe it is essential that genuine supporters of the Agreement should vote against this Bill becoming law. It does not implement the Patten Report: what it implements is a slightly re-worked version of the Police (Northern Ireland) Act of 1998, with half-hearted nods in the direction of Patten. It is not just not good enough; in some respects it is worse than the status quo.

The Patten Report, by contrast, met its terms of reference under the Belfast Agreement. Eight criteria were either explicitly or implicitly mandated for the Commissioners. I shall compare these directly with what is offered in the Bill before Parliament.

Impartiality

The first term of reference for Patten and his commissioners was to recommend how to create a widely acceptable `impartial' service. The Commission chose to avoid proposing an explicitly bi-national or bi-cultural police. Instead it plumped for neutral impartiality between unionism/loyalism and nationalism/republicanism. Its preference, the Northern Ireland Police Service (NIPS), was a neutral title, not least because nationalists in the 1998 referendum, North and South, overwhelmingly accepted the current status of Northern Ireland as part of the UK, as long as a majority so determine. The RUC was not a neutral title ­ so it was recommended to go, period. The codes of police officers and their future training were to reflect a commitment to impartiality and respect for democratic unionism/loyalism and democratic nationalism/republicanism. The display of the Union flag and the portrait of the Queen at police stations were recommended to go ­ to dissociate the police from identification with the Union, the Crown and the British nation. In Patten's words symbols should be `free from association with the British or Irish states'.

Patten's recommendations for a territory that is primarily divided into two communities that are of almost equal size but that have rival national allegiances were entirely sensible. They flowed straightforwardly from the Belfast Agreement's commitment to establishing `parity of esteem' between the national traditions, and the British government's commitment to `rigorous impartiality' in its administration.

The Bill proposes that the Secretary of State be given the power to decide on the issues of name and emblems at some point in the future ­ not a stay of execution, but a stay of decision. The Bill does not deal with these matters as Patten recommended, and this must be corrected as the Bill makes its way through Parliament. It would be a recipe for re-igniting conflict, and a gift to republican dissidents, if the Secretary of State were to opt, when he makes his decision, to retain the name of the RUC as part of the reformed police's working title.

A title such as the `Police Service of Northern Ireland incorporating the RUC ­ whose long-serving members are not required to take the new oath of service', would be a mockery, replacing ­ the virtues of political compromise with surrender to blackmail.

'Representative'police service

Patten's second term of reference was to establish a `representative' police service. The commissioners proposed recruiting Catholics and non-Catholics in a 50:50 ratio from the pool of qualified candidates for the next ten years. This matches the population ratios in the younger age-cohorts. On their model - given early and scheduled retirements of serving officers ­ this policy would ensure that 30 per cent of the service would be of Catholic origin by year 10, and between 17 per cent and 19 per cent within four years (above the critical mass of 15 per cent that they claimed is necessary to change the police's character). This is a significantly slower pace of change than some of us advocated, but the commissioners justified it because they wished to avoid a service that would have non-Catholic Chiefs and Catholic Indians. By intending to make each successive cohort religiously representative now, and by ensuring that the new service would be seen as impartial, the commissioners had an arguable case. Steps would, of course, still need to be taken to ensure that the new Catholics are broadly representative of the Catholic community - i.e. mostly nationalist or republican in political opinion. There would also need to be sufficient secondments from the Garda Siochana and elsewhere to ensure a representative array of senior police of Catholic origin.

The Police Bill makes a mockery of these recommendations. The period in which the police are to be recruited on a 50:50 basis has been reduced to three years, with any extension requiring a decision by the Secretary of State.

The Bill is completely silent on aggregation, the policy proposed by Patten for dealing with years in which there might be a shortfall in the recruitment of suitably qualified cultural Catholics, and it is also dangerously silent on targeting. The Bill does not even make clear whether the Government will explicitly do what is necessary to meet the `critical mass' identified by Patten.

As drafted it is a recipe for minute change, that on current demographic trends will ensure that a shrinking minority of men of unionist disposition will police a growing minority of nationalist disposition.

Free from partisan political control

A third term of reference required Patten to propose policing arrangements `free from partisan political control'.

The Commission's task was to ensure democratic accountability of policing `at all levels' while preventing any dominant political party from being able to direct the police to their advantage. The proposed Policing Board was to meet this objective. On Patten's model it would represent members from political parties present in the Executive, according to the d'Hondt rule of proportional allocation. The District Policing Partnership Boards (DPPBs) should also have met this objective ­ twenty out of twenty six local government districts now have office-rotation or power-sharing agreements.

Those seeking to amend the Bill should consider formally extending the d'Hondt principle to party representatives on the DPPBs ­ a step entirely consistent with the Agreement.

The Bill thwarts Patten on the criterion of avoiding partisan control. By introducing a requirement that the Policing Board operate according to a weighted majority when recommending an inquiry it effectively re-establishes partisan unionist control. On Patten's model, ten members of the Policing Board would come from the parties in the current Executive ­ currently five nationalists and five unionists, and the other nine would have been nominated by the First Minister and Deputy First Ministers, which would likely and reasonably imply a slight majority broadly of unionist disposition ­ a reflection of Northern Ireland society. Under the model proposed in the Bill, the nine appointed members will, in the first instance, be appointed by the Secretary of State, not foreseen by Patten. But even if this produces the same outcome as joint nominations from the First and Deputy First Ministers the Bill's proposed weighted majority rule will give unionists and unionist approved members a blocking minority on matters as fundamental as pursuing reasonable inquiries into allegations about police misconduct or incompetence.

This is a direct violation of the terms of reference of the Agreement.

Efficient and effective policing

A fourth criterion set for Patten was to promote `efficient and effective' policing arrangements. Here the commissioners scored highly. They deliberately avoided false economies. Generous severance and early retirement packages were to ease quite fast changes in the composition and ethos of the current personnel. They reasoned that an over-sized police service could fulfil the following tasks:

·    begin a novel and far-reaching experiment in community policing;

·    deter hard-line paramilitaries opposed to the Agreement, and those tempted to return to active combat;

·    manage large-scale public order functions (mostly occasioned by the Loyal Orders); and

·    facilitate faster changes in the services' religious and gender composition than might otherwise be possible.

The provisions enabling local governments to experiment and out-source policing services were also designed to `market-test' effectiveness, while the steps recommended to produce greater `civilianisation' were to free personnel for mainstream policing tasks and deliver long-run savings.

The Bill is multiply at odds with Patten on efficiency and effectiveness. It fails to provide a clearly effective system of accountability, which means that existing inefficiencies will continue to flourish, and ineffectiveness will be overlooked. The Secretary of State is, bizarrely, empowered to prevent an inquiry by the Policing Board if it is deemed not to be in the interests of efficiency and the effectiveness of the police ­ as if the prime activity of a Board which requires a weighted majority to start an enquiry will be to embark on wasteful investigations! The Secretary of State, and not the Policing Board, is charged with setting targets and performance indicators for the police ­ a recipe for producing an ineffective Board, not the `strong, independent and powerful Board' that Patten recommended. The full-time reserve, which Patten recommended should be disbanded, in the interests of efficiency and promoting fast changes in composition, is, so far as I can tell, left on a statutory basis in the Bill. And the District Policing Partnership Boards have been eviscerated because of propaganda about paramilitaries on the rates. It is simply amazing that grown-up people could accuse Christopher Patten, an intelligent Tory, of signing a report to subsidise paramilitarism; but it is perhaps more amazing that the Government can present this Bill as a text to implement the Patten Report.

Human rights culture

A fifth term of reference which Patten had to meet was policing arrangements infused with a human rights culture. Patten's commissioners did their job. It was proposed that new and serving officers would have knowledge of human rights built into their training and re-training (provided by non-police personnel) and their codes of practice. The astonishing absence of legal personnel within the RUC with expertise in human rights was singled out for remedy. The incorporation of the European Convention into UK public law, and Northern Ireland's own forthcoming special provisions to strengthen the rights of national, religious and cultural minorities, were welcomed as likely to ensure that policing and legal arrangements have to perform to higher standards than in the past, but other international norms were also held out as benchmarks: `compliance . . . with international human rights standards and norms are . . . an important safeguard both to the public and to police officers carrying out their duties' (Patten, para: 5.17). Patten's proposed steps for normalising the police ­ dissolving the special branch into criminal investigations, and demilitarising the police in step with hoped-for decommissioning, also met the human rights objectives of the Agreement.

The Police Bill on this criterion, as in others, is almost a parody of the Patten Report. The Bill restricts the new oath, which includes a commitment to human rights, to new officers. It incorporates no standards of rights protection higher than that in the European Convention. It places responsibility for a Code of Ethics not with the Policing Board, but with the Chief Constable, who is not obligated to consult the new Human Rights Commission on its content. The Bill explicitly excludes Patten's proposed requirement that an oath of service 'respect the traditions and beliefs' of people. The Policing Board cannot inquire into past police misconduct, and the Secretary of State is empowered to prevent the Ombudsman from so doing.

Decentralisation

This was a sixth criterion that Patten had to meet; the Commission's terms of reference included `at all levels'. Accountable decentralisation was proposed through giving directly elected local governments opportunities to influence the policy formulation of the Policing Board though their own District Policing Partnership Boards. The latter would not merely have had the power to question police district commanders but would have the ability to use their own resources to `purchase additional services from the police or statutory agencies, or from the private sector'.

The Patten Report sensibly also commended significant internal decentralisation within the police, stripping away redundant layers of management to free up district commanders to deliver sensitive policing according to local needs. Better still, Patten recommended matching police internal management units to local government districts.

The Bill maintains centralisation in three ways. First, it gives power to the Secretary of State that Patten intended should be immediately devolved to the First and Deputy First Ministers. Secondly, the Bill weakens Patten's recommendations regarding decentralisation to district councils and gives the Secretary of State the right to issue instructions to the DPPBs.

Patten recommended that these be able to contribute up to the `equivalent of a rate of 3p in the pound' to pay for extra policing services to meet their distinctive needs. This provision is not in the Bill. Thirdly, Patten was committed to the establishment of neighbourhood policing: that every neighbourhood should have a dedicated policing team, that its officers have their names and the names of their neighbourhood displayed on their uniforms, and that they should serve 3-5 years in the same neighbourhood. The Bill contains no such provisions.

Democratic accountability

The seventh and perhaps the most important criterion that Patten and his commissioners had to meet was `democratic accountability'.

Patten's subject was `policing Northern Ireland' not `the police in Northern Ireland'. Policing should not be the monopoly of a police force, as it is called throughout this Bill, or indeed of a service, as Patten commended. Policing should be organised in a self-governing democratic society by a plurality of agents and organisations, indeed by a network of such organisations. It should not be exclusively the responsibility of a monolithic, centralised, line-hierarchy, detached and apart from the rest of society. Ultimate responsibility for the security of persons and property in society should remain with citizens and their representatives. This logic was apparent in the title and proposed organisation of the proposed `Policing Board' that was recommended to replace the present entirely unelected Police Authority ­ which, despite its name, has no authority and even less legitimacy. The Board, as emphasised, was to bring together ten elected politicians ­ drawn in proportion to their representative strength in seats, from the parties that comprise the new Executive ­ with nine appointed members, representative of a range of sectors of civil society, `business, trade unions, voluntary organisations, community groups and the legal profession'.

The elected members cannot be ministerial office-holders. The unelected members (under a devolved government) were to be appointed by the First and Deputy First Ministers.

The Board was therefore envisaged as broadly representative, in both its elected and unelected members, and at one remove from direct executive power ­ so that it was less likely to become the mere instrument of ministers.

A similar logic lay behind Patten's proposal to give the Board responsibility for negotiating 'the annual policing budget with the Northern Ireland Office, or with the appropriate successor body after devolution'.

The Report, contrary to what scaremongers and the right-wing press suggested, was not intended to destroy the operational responsibility of the police, or indeed to party-politicise its management. It was intended to let police managers manage, but to hold them, post-factum, to account for their implementation of the Policing Board's general policing policy, and to enhance the audit and investigative capacities of the Board in holding the police to account for their implementation, financial and otherwise, of the Board's policy.

In the Patten Report's vision the police should become fully part of a self-governing democratic society, transparently accountable to its representatives, rather than a potentially self-serving, unaccountable group of budget maximisers, mission-committed to their own conceptions of good policing. The new service would have `operational responsibility' but would have to justify its uses of its managerial discretion.

What, by comparison with the Patten Report, is in the Bill? Proposals to strengthen the Secretary of State, to strengthen the powers of the Chief Constable, to weaken the new Policing Board from its inception, and to return policing to the police ­ rather than have policing pressurised by and organised by a network of mutually supportive agencies.

The Chief Constable has powers of refusal to respond to reasonable requests by the Board. The Secretary of State, not the Board, sets targets and performance indicators. The Board cannot inquire into the past, and is more or less prevented from making into inquiries into police misconduct or incompetence in the future. The Board's role in budgetary planning is, so far as I can tell, downgraded into that of being a lobbying group for the Chief Constable.

The Board is in fact so weakened that the old Policing Authority has quite correctly condemned the Bill ­- a response no one would have predicted when the Prime Minister and the Secretary of State welcomed the Patten Report.

The Ombudsman, the Equality Commission and the Human Rights Commission have no appropriate free-ranging rights of access to policing documentation. The Chief Constable is not even required as a measure of transparency to declare his staff's individual participation in secret societies.

Meeting the agreement?

Lastly, the Patten Report and the Bill were supposed to be consistent with the letter and the spirit of the Belfast Agreement. Patten's Report definitely met its terms of reference. The Bill does not. It is incompatible with `parity of esteem', 'rigorous impartiality' by the UK government, and the objectives set for policing in the Agreement. The Bill does not in its umamended form represent the promised `new beginning'. It does not 'recognise the full and equal legitimacy and worth of the identities, senses of allegiance and ethos of all sections of the community'. It will not produce a 'service [that] is effective and efficient, fair and impartial, free from partisan political control; accountable . . . representative of the society it polices . . . which conforms with human rights norms'. It will not encourage 'widespread community support' (all quotations from the text of the Agreement). It has been seen through and condemned by the SDLP, the Womens' Coalition, the Catholic Church in Ireland, the Committee on the Administration of Justice, the Ombudsman, the existing Police Authority, the Irish Government, and President Clinton, as well as by Sinn Fein. The Bill is a provocation, a fundamental breach of faith, perfidious Britannia in caricature.

So what does the Bill represent? It represents Old Britain. It has been drafted by the forces of conservatism, for the forces of conservatism. It is a slightly smudged and fudged facsimile of the 1998 Act. Unamended it will ensure that neither the SDLP or Sinn Fein will sit on the Policing Board, or recommend their constituents and supporters to join the police. Unamended the Bill will ensure that the RUC will remain unreformed ­ except in its postponed name change.

Those who worked to make the Commission a success, including its Commissioners, feel betrayed by this Bill. More importantly the stability of the Agreement is endangered by this Bill, which does not implement Patten but rather betrays his substantive intentions in most of its thinly disguised legislative window-dressing.

Let us hope Parliament will address this disgrace by amending the Bill to implement in full what Patten recommended. In doing so, Parliament will simply be obliging the Government to deliver on promises. Every one of Patten's 175 recommendations were advocated to the Commission by serving officers in the RUC.

The Bill must be fundamentally amended to help the genuine reformers within the RUC, and to draw a clear legislative line between the old Northern Ireland and the new one that still remains within sight.

Brendan O'Leary is Professor of Political Science at the LSE, and the co-author with Professor John McGarry of Policing Northern Ireland: Proposals for a New Start.