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.