Royal Arms Explanatory Notes to Police (Northern Ireland) Act 2003

2003 Chapter 6

© Crown Copyright 2003

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     These notes refer to the Police (Northern Ireland) Act 2003 (c.6) which received Royal Assent on 8 April 2003     

POLICE (NORTHERN IRELAND) ACT 2003

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Police (Northern Ireland) Act which received Royal Assent on 8 April 2003. They have been prepared by the Northern Ireland Office in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

3.     A glossary of abbreviations and terms used in these explanatory notes is contained in the annex to the notes.

SUMMARY

4.     The purpose of the Act is to implement more fully the recommendations of the Independent Commission on Policing for Northern Ireland, set out in its report "A New Beginning: Policing in Northern Ireland" (also known as the Patten report) which was published in September 1999. The Act's contents cover commitments made in the updated Implementation Plan for the Patten report, published in August 2001, and matters arising from the 2002 review of policing reform in Northern Ireland. Many of the provisions in the Act amend the Police (Northern Ireland) Act 2000 (c.32) ("the 2000 Act") which was the main implementing legislation for the recommendations of the Patten report. The Act also makes provision for giving limited police powers to police support staff and contracted-out staff, in line with legislation in England and Wales (the Police Reform Act 2002 (c.30)), in order to make more effective use of these staff.

5.     The main provisions of the Act are:

  • to amend the law governing the way in which policing objectives for Northern Ireland are set and taken into account;

  • to amend the law relating to procedural provisions such as the timing of performance assessments issued by the Board, and the frequency and spacing of meetings of the Board;

  • to separate the Board's funding and accounts for pension purposes from its funding and accounts for other police purposes;

  • to amend the law relating to the way in which the Chief Constable makes reports to the Board, and the Board holds inquiries;

  • to give the Ombudsman power to investigate current police practices and procedures;

  • to amend the law on the membership and role of district policing partnerships ("DPPs") and of the Belfast DPP sub-groups;

  • to emphasise the importance of the core principle of policing with the community;

  • to extend employment protection provisions to police officers who report wrong-doing by their colleagues;

  • to provide for a limited exception to the "50:50" recruitment provisions of the 2000 Act to allow for the recruitment of constables with specialist policing skills;

  • to amend the law to allow the Chief Constable to make fixed-term secondments to the Police Service of Northern Ireland ("the PSNI");

  • to make provision relating to disciplinary arrangements for police officers serving outside the United Kingdom; and

  • to allow the Chief Constable to nominate police support staff and the staff of certain contractors to exercise certain police powers.

OVERVIEW

6.     The Act has three Parts and four Schedules:

  • Part 1 (Policing) and Schedule 1 deal with revised arrangements for consultation by the Secretary of State; the Northern Ireland Policing Board; reports and inquiries; the Police Ombudsman; district policing partnerships; police functions and service; and information and inquiries.

  • Part 2 (Police powers) and Schedules 2 and 3 deal with new arrangements for designation of civilians; persons authorised to carry out intimate searches and to take intimate samples; and codes of practice.

  • Part 3 (General) and Schedule 4 deal with orders and regulations under the Act; consequential repeals and revocations; the extent of the Act; and the short title of the Act.

COMMENTARY

PART 1: POLICING

CONSULTATION BY SECRETARY OF STATE

Section 1: Long-term policing objectives

7.     This section deals with consultation on the Secretary of State's long term policing objectives. It amends section 24 of the 2000 Act. Prior to the amendment, section 24 required the Secretary of State to consult the Board, the Chief Constable and such other persons as he considered appropriate before determining or revising long term policing objectives for Northern Ireland. The effect of the amendment is that section 24 now obliges the Secretary of State to consult the Board with a view to obtaining its agreement to any proposed new or revised policing objectives. In addition, he is required to consult the Ombudsman, the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, and (as previously) the Chief Constable and such other persons as he considers appropriate.

Section 2: Codes of practice

8.     This section deals with consultation by the Secretary of State on codes of practice relating to the exercise of functions by the Board or the Chief Constable. It amends section 27 of the 2000 Act. Prior to the amendment, section 27 required the Secretary of State to consult the Board, the Chief Constable and such other persons or bodies as he considered appropriate before publishing or revising a code of practice relating to the exercise of functions by the Board or the Chief Constable. The effect of the amendment is that the Secretary of State must consult the Board with a view to reaching agreement on any proposed new or revised code of practice. In addition, he is required to consult the Ombudsman, the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, and (as previously) the Chief Constable and such other persons as he considers appropriate.

THE NORTHERN IRELAND POLICING BOARD

Section 3: Board's policing objectives

9.     This section amends section 25 of the 2000 Act. The previous requirement under section 25 was that the Board frame its policing objectives so as to be consistent with the Secretary of State's long term policing objectives for Northern Ireland set under section 24 of the 2000 Act. The effect of the amendment is that, in determining its objectives for the policing of Northern Ireland, the Board must take account of, rather than be consistent with, the Secretary of State's long term objectives under section 24 of the 2000 Act.

Section 4: Public meetings of the Board

10.     This section amends Schedule 1 to the 2000 Act. Its effect is that the Board must hold eight public meetings a year, rather than 10 as previously required by paragraph 19(2) of Schedule 1 to the 2000 Act. The section also removes the previous requirement (paragraph 19(3) of Schedule 1 to the 2000 Act) that the meetings of the Board should be held at least 28 days apart.

Section 5: Contracts relating to detention and escort services

11.     Section 5 amends the 2000 Act. It enables the Board to enter into a contract for the provision of services relating to the detention or escort of persons who have been arrested or are otherwise in custody. The Chief Constable will then be in a position to designate a suitable person who is an employee of the contractor, as either a detention officer or an escort officer (see notes on section 31 below).

Section 6: Funding for pension purposes

12.     This section amends sections 9, 10, 27 and 77 of the 2000 Act. The object of the amendment is to split off funding which relates to the Police Service of Northern Ireland Pension Scheme from other Board funding. This is a necessary first step if the Board is to be required to draw up separate accounts for pension funding and for other police funding (see notes on section 7 below). If separate pension funding accounts are prepared, the requirements of the new accounting standard FRS 17 Retirement Benefits (which obliges pension scheme accounts to set out in full the scheme's assets and liabilities) will apply only to the pension funding accounts, and not to the accounts relating to general police funding. The objective is to prevent the detail required by FRS 17 from overshadowing and drawing attention away from the record of the police's core financial performance.

13.     Subsection (2) amends section 9 of the 2000 Act to provide that separate grants will be made to the Board by the Secretary of State for pension purposes and for all other purposes. Subsections (8) and (9) oblige the Board to place the amounts of each grant, plus any other relevant amounts received by it, at the disposal of the Chief Constable.

14.     Subsections (3), (5) to (7) and (10) make consequential amendments to the 2000 Act. Subsection (11) inserts a definition of "pension purposes".

15.     Subsection (12) provides that the new arrangements will have effect from the financial year 2003/04.

Section 7: Accounts and audit

16.     This section amends section 12 of the 2000 Act, relating to accounts and audit.

17.     The amendments require the Board to draw up separate accounts for each of the amounts placed at the Chief Constable's disposal for pension and non-pension purposes, and for any amount the Board pays into the Police Service of Northern Ireland Fund (provided for in section 28 of the 1998 Act) and into the Police Property Fund (established by the Police (Disposal of Property) Regulations (Northern Ireland) 1974, made under section 2 of the Police (Property) Act 1897).

18.     Subsection (8) provides that the new arrangements will have effect from the financial year 2003/04.

Section 8: Performance summaries

19.     This section amends section 28 of the 2000 Act, to provide the Board with two options for publishing its assessment of the police performance against efficiency targets. Previously, the 2000 Act provided that the Board must publish three documents:

  • a policing plan (s.26(1));

  • a performance plan (s.28(4)), containing efficiency targets for the year ahead and a retrospective summary of performance against the previous year's targets; and

  • an annual report (s.57(1)).

20.     Subsection (2) amends section 28(5)(c) of the 2000 Act so as to remove the previous requirement that the retrospective summary of performance against targets (to be known as the "performance summary") form part of the performance plan. Instead, subsection (3) gives the Board discretion to publish the performance summary with the annual report, or with the performance plan.

21.     Subsections (4) and (5) make consequential amendments. Subsection (6) provides that the new arrangements will have effect from the financial year 2003/04.

Section 9: Performance summaries: supplementary

22.     This section makes consequential amendments to sections 29 and 31 of the 2000 Act, relating to audit and reporting arrangements, and arising from the amendments set out in section 8. The effect of the amendments is that the arrangements that currently apply to the audit of a performance summary comprised in a performance plan, and to any report on a performance summary, will continue to apply to a performance summary even though it will not necessarily be published with a performance plan. Subsection (9) provides that the new arrangements will have effect from the financial year 2003/04.

REPORTS AND INQUIRIES

Section 10: Reports of Chief Constable

23.     This section amends section 59 of the 2000 Act, which deals with the Chief Constable's general duty to report to the Board. Prior to the amendment, section 59 required the Chief Constable to submit a report whenever required to do so by the Board. However, where the Chief Constable considered that his report would contain information which ought not to be disclosed on any of the four grounds previously listed in section 59(3)(a) to (d) of the 2000 Act, he could refer the requirement to submit a report to the Secretary of State.

24.     Subsection (2) amends section 59(3) by deleting the existing list of grounds at section 59(3)(a) to (d). Instead, the amendment provides that the Chief Constable may refer to the Secretary of State a requirement that he submit a report if it seems to him that the required report would contain information which should not be disclosed on any of the grounds listed in the new section 76A(1). The grounds listed at the new section 76A(1) differ from the grounds set out in the previous section 59(3)(a) to (d), and are explained in the notes on section 29 below.

25.     Subsections (3) and (4) provide that where a requirement to submit a report is referred to the Secretary of State, he may either exempt the Chief Constable from disclosing particular information to the Board, or require him to disclose it to a special purposes committee of the Board. (Section 28 deals with the establishment of such a committee.) Subsection (4) also amends section 59 of the 2000 Act so as to allow the Chief Constable, if he believes that a report would contain sensitive information but has not referred the requirement to the Secretary of State, to supply that information to a special purposes committee of the Board, rather than to the full Board. Where he does so, the Chief Constable must identify the information in question as sensitive, and advise the Secretary of State that he has passed it to the committee. He must also produce a summary of the information that, subject to its being agreed by the special purposes committee, may be supplied to the full Board. Alternatively, if the Chief Constable chooses to supply sensitive information to the full Board rather than to a special purposes committee, he must inform the Secretary of State of this, and identify the information in question as sensitive. (Sensitive information means information of a kind set out in the new section 59(4C), as inserted by subsection (4).)

26.     Subsection (5) makes transitional arrangements. These provide that the new provisions apply to any requirement to submit a report that the Chief Constable refers to the Secretary of State after Royal Assent to the Act. The new provisions also apply to any requirement that the Chief Constable had referred to the Secretary of State before Royal Assent, but in relation to which the Secretary of State had not made a decision by that date.

Section 11: Inquiries by Board

27.     This section amends section 60 of the 2000 Act, which deals with the initiation of an inquiry by the Board following a report to it by the Chief Constable. Prior to this amendment, section 60(3) of the 2000 Act provided that, where the Chief Constable considered that an inquiry should not be held on any of the four grounds listed in section 60(3), he could refer the Board's decision to hold an inquiry to the Secretary of State.

28.     Subsection (2) deletes the list of grounds set out in section 60(3). It provides that instead the Chief Constable may refer the Board's decision to hold an inquiry to the Secretary of State if he considers that an inquiry should not be held on any of the grounds listed in the new section 76A(2).

29.     Subsection (4) provides that, where the Chief Constable supplies sensitive information to a person conducting an inquiry under section 60, he must identify it as sensitive and must notify the Board and Secretary of State that it has been passed to the person conducting the inquiry. (Sensitive information is defined in the new section 60(10A) of the 2000 Act as inserted by subsection (4)).

30.     Subsection (5) makes transitional arrangements. These provide that the new provisions apply to any decision of the Board to set up an inquiry that the Chief Constable refers to the Secretary of State after Royal Assent to the Act. They also apply to any decision to hold an inquiry that the Chief Constable had referred to the Secretary of State before Royal Assent, but in relation to which the Secretary of State had not made a decision by that date.

Section 12: Approval of proposals relating to inquiries by the Board

31.     This section amends paragraph 18 of Schedule 1 to the 2000 Act, which applies to inquiries held under section 60 following a report to the Board by the Chief Constable. Paragraph 18(5) provides that the Board shall not set in motion an inquiry under section 60, or request or appoint a person to conduct such an inquiry, unless a proposal to take this step has been approved by the "required number" of members. The required number of members is detailed in paragraph 18(6), and varies according to the number of members composing the Board. Paragraph 18(1)-(4) sets out the procedure to be followed in calling a meeting at which a proposal to hold an inquiry, or to request or appoint a person to conduct it, is to be discussed and voted on.

32.     Subsection (2) amends the provision of paragraph 18(3) to provide that at least six days must elapse between the chairman calling a meeting under paragraph 18(2) and that meeting taking place. Subsection (3) imposes an additional requirement for Board approval of a proposal to hold an inquiry or to request or appoint a person to conduct an inquiry, namely that the proposal must be approved by a majority of the members present and voting as well as by the "required number" of members. Subsection (4) reduces the "required number" of members as set out in paragraph 18(6) so that, for example, whereas the previous required number of members was 10 if the Board had 18 or 19 members, the new required number is 8.

33.     Subsection (5) provides that the new provisions have effect in relation to any Board meeting called under paragraph 18 of Schedule 1 to the 2000 Act on or after the day on which the Act receives the Royal Assent.

THE POLICE OMBUDSMAN

Section 13: Investigations into current police practices and policies

34.     Section 51 of the 1998 Act established the Police Ombudsman for Northern Ireland ("the Ombudsman"). Section 13 provides for investigations by the Ombudsman into current police practices and policies by inserting a new section 60A into the 1998 Act. This replaces with modifications the previous provision in section 61A of the 1998 Act (as inserted by section 63 of the 2000 Act), which provided for the Ombudsman to make reports to the Chief Constable and the Board on matters concerning police practices and policies.

35.     The new section 60A provides that the Ombudsman may investigate a current practice or policy of the police that has come to his attention if he has reason to believe that such an investigation would be in the public interest (section 60A(1)). Section 60A(2) provides that he may not conduct such an investigation if the practice or policy is concerned with conduct that falls within the jurisdiction of the Investigatory Powers Tribunal, set up by section 65 of the Regulation of Investigatory Powers Act 2000 (c.23).

36.     If the Ombudsman decides to conduct an investigation under section 60A, he must immediately inform the Chief Constable, the Board and the Secretary of State of this (section 60A(3)) and of his reasons for this decision. He must provide the Chief Constable and the Board with a copy of his investigation report (section 60A(4)). A copy of the report must also be sent to the Secretary of State if the investigation touches on excepted matters (as defined in section 4 of the Northern Ireland Act 1998 (c.47)) or matters for which the Secretary of State has a statutory responsibility (section 60A(5)).

37.     Subsection (3) makes a consequential amendment to 63(2A) of the 1998 Act. That subsection, which was inserted into the 1998 Act by section 63(2) of the 2000 Act, provides an exemption from the restriction on disclosure of information in section 63(1) of the 1998 Act. The effect of the exemption is to allow the Ombudsman to disclose information relating to the identity of an individual in a report under section 61A of the 1998 Act where he considers it necessary to do so in the public interest. Subsection (3) amends this provision so as to apply the exemption to the Ombudsman's report of an investigation under the new section 60A of the 1998 Act.

38.     Subsection (4) amends section 66 of the 2000 Act which provides that the Chief Constable and the Board shall supply the Ombudsman with such information and documents as he may require for the purpose of exercising his functions. Subsection (4) inserts new subsections (2) to (4) into section 66, which require the Chief Constable, or the Board, if supplying any sensitive information to the Ombudsman, to identify it as such and to notify the Secretary of State that it has been passed to the Ombudsman. (Sensitive information is that of a kind listed in the new section 66(4) of the 2000 Act as inserted by section 13(4).

DISTRICT POLICING PARTNERSHIPS

39.     Sections 14 to 19 and Schedule 1 make amendments to those provisions in the 2000 Act regarding district policing partnerships ("DPPs"). Section 14(1) of the 2000 Act requires each district council to establish a DPP, which has the functions set out in section 16 of the 2000 Act. Paragraph 2 of Schedule 3 of that Act provides for DPPs to be composed of members of the council ("political members") and of independent members.

Section 14: Independent members: appointment

40.     This section amends paragraph 4 of Schedule 3 to the 2000 Act. Its effect is that the Board (which appoints independent members from among persons nominated by the district council) shall, so far as practicable, ensure that the independent members of a DPP taken together are representative of the community in the district.

Section 15: Independent members: declaration against terrorism

41.     This section amends Schedule 3 to the 2000 Act so as to require applicants for independent membership of a DPP to make a declaration against terrorism before being nominated as independent members by the council. The form of the declaration is that set out in Part 1 of Schedule 2 to the Elected Authorities (Northern Ireland) Act 1989 (c.3), with the words "if appointed" substituted for "if elected".

42.     Subsection (4) amends paragraph 7 of Schedule 3 to the 2000 Act. It provides that acting in breach of the terms of a declaration against terrorism constitutes a further ground on which an independent member may be removed from office by the Board, or by the council with the Board's consent. Subsection (5) sets out how the terms of the Elected Authorities (Northern Ireland) Act 1989 apply to determine whether an independent member has acted in breach of the terms of his declaration against terrorism.

Section 16: Independent members: disqualification

43.     This section amends the provisions of paragraph 8 of Schedule 3 to the 2000 Act, which deal with disqualification for membership of DPPs. The previous paragraph 8(2) provided that a person was disqualified from membership of a DPP if he had ever had a sentence of imprisonment passed on him, whether suspended or not. The effect of the amendment at section 16 is that instead a person is disqualified for membership of a DPP for five years following his discharge from a sentence of imprisonment or detention.

44.     The new paragraphs 8(4) to (5) provide that the person's release on licence, or his release following a grant of remission, will be treated as his discharge from a sentence of imprisonment or detention for the purposes of paragraph 8. The exception to this is if the person is subsequently required to return to prison or detention for a further period in respect of that offence. The new paragraphs 8(6) to (8) provide that these disqualification provisions do not apply to people whose sentence has been suspended, unless the sentence is subsequently ordered to take effect.

Section 17: Disqualification following removal from office

45.     Paragraph 7(1) of Schedule 3 of the 2000 Act sets out various circumstances in which the Board, or a district council with the Board's approval, may remove a person from office as a member of a DPP (e.g. conviction of a criminal offence; bankruptcy). Section 17 amends paragraph 8 of Schedule 3 to the 2000 Act to provide that someone removed from a DPP under paragraph 7(1) is disqualified from reappointment until the next local general election. This brings the arrangements for DPP membership in line with those already in place for membership of the Board.

Section 18: Council's powers

46.     This section inserts two new paragraphs into Schedule 3 to the 2000 Act. The effect is to give district councils power to insure against accidents to a member of a DPP while he is engaged on DPP business, and to indemnify a member of a DPP for liability incurred in relation to DPP business. These provisions will apply retrospectively.



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Prepared: 25 June 2003