Police (Northern Ireland) Bill [HL]

My Lords, I beg to move that this Bill be now read a second time. The Government of Ireland Act 1920, which established Northern Ireland, prohibited discriminatory legislation. The Stormont Parliament never provided for religious discrimination. That began in this Parliament, with the Police (Northern Ireland) Act 2000, as a result of the 50:50 recruitment proposals in the 1999 Patten report, a measure I am now seeking to reverse with this Police (Northern Ireland) Bill. In introducing the Second Reading debate, I will ask a number of questions of the Minister. If he does not wish to answer them today, I am sure he will do so in writing. I will also be raising a question about the Patten report, which I put to the author, now the noble Lord, Lord Patten of Barnes, in writing in advance of today’s debate. I do not believe that the Royal Ulster Constabulary discriminated against Catholics. Eight per cent in 1998 was too low, but over 16 per cent of senior officers were Roman Catholic. The RUC is most unlikely to have discriminated in recruitment but not in promotion. Does the Minister believe that there was a problem of discrimination that had to be addressed with the exceptional measures suggested in the Patten report? If so, what is the evidence? I think there were three reasons for the low representation of Roman Catholics in the RUC: first, republican intimidation; secondly, social ostracism by Roman Catholics; and thirdly, political abstentionism. Can the Minister point to any independent reputable study that measures these factors, and any others that academics might have suggested? The first factor, republican intimidation, waned from 1998, but it has not been eradicated. The second factor, social ostracism, also appears to be lessening. There are many Roman Catholic men and women in the PSNI today, and they are respected by an increasing element of the minority community. The third factor, political abstentionism, is more problematic. Nationalists have begun to share responsibility for policing, but they persist in pretending that Northern Ireland is on its way to a united Ireland. The proportion of Roman Catholics in the police has increased since 1999; 36 per cent of applicants are from the minority community. I welcome that. But this has to do with the Belfast agreement in general, and in particular the SDLP taking responsibility for policing. I welcome that. The 50:50 proposed by the noble Lord, Lord Patten, was not necessary, and has not worked. This is proved by the fact that 38 per cent of new recruits are female: an increase achieved in a non-discriminatory action plan. I suggest that the Roman Catholic figure would have improved without 50:50, just as the proportion of female recruits has risen significantly without reverse discrimination. Will the Minister contend that 50:50 was necessary to get Roman Catholics to apply? If so, is he saying that Roman Catholics do not want fairness, they want favouritism? That is a slander on my fellow citizens in Northern Ireland. Roman Catholics, like Protestants, want fairness; they do not want favouritism. There is no legal precedent for quotas in the United States or the European Union. If I am right, I expect the Minister to acknowledge that. If I am wrong, will he please tell your Lordships’ House which states have lawfully created quotas to benefit what groups? Not even the radical Committee on the Administration of Justice called for 50:50. The noble Lord, Lord Patten, said he took advice from the equality industry and from legal counsel. No one has identified the givers of this incorrect advice. The noble Lord, Lord Patten, said Europe would not object to religious discrimination. Wrong. The prohibition was envisaged in a treaty, and emerged in an equal treatment directive in November 1999. The objection to 50:50 is simply that it involves direct religious discrimination, otherwise banned in a series of laws from 1973. Why was it right to ban religious discrimination over three decades in Northern Ireland, at the behest of nationalists with very little in the way of reasoned argument? And then for this Parliament to enact direct religious discrimination in 2000—against Roman Catholics and Protestants depending upon the numbers—simply because the Government found themselves under nationalist pressure to implement the Patten report in full. The pragmatic argument against 50:50 is that it does not work, as I have been told repeatedly by members of the policing family in Northern Ireland. Say the police want to recruit 200 trainees. If 50 Roman Catholics and 150 Protestants get through to the pool on merit, only 50 Roman Catholics and 50 Protestants may be recruited. There is 50 per cent under-recruitment. It does not matter how able the Roman Catholics are or not; and Protestants of ability have been rejected because they are of the wrong religion. However, the PSNI does not put it that way. It tells a rejected Protestant that other members of his community have done better than him or her. It does not say whether successful Roman Catholics did worse than he in the merit ranking. That has been the story with each of the recruitment competitions. But one—which the NIO does not seem keen to discuss—went the other way. There was a majority of Roman Catholics in the pool, but the police could take only twice the number of Protestants. A system designed to fast track Roman Catholics ended up discriminating against Roman Catholics! There is only one way to resolve the issue of whether higher-scoring Protestants are being rejected in favour of lower-scoring Roman Catholics. The Government should permit the PSNI to release the raw data, suitably anonymized, showing how each competition worked. I believe I am right. I have spoken to failed applicants. If I am wrong, prove I am wrong! I have therefore made a Freedom of Information Act application to the Chief Constable, Sir Hugh Orde, asking for the evidence. If it is released, we will know how 50:50 has worked. If the police, at the behest of the NIO, seek to rely upon one of the many exceptions, then reasonable people will conclude that the Government have something to hide. My Police (Northern Ireland) Bill—which had its First Reading on 16 January 2006—does two things. First, it abolishes the Patten report’s quotas. However, it does not end the renewable Section 45 temporary provisions. Secondly, it empowers the policing board and Chief Constable to take direct action for,"““Roman Catholics, women, ethnic minorities and any other relevant social group””." The Patten report’s 50:50 should never have made it into law. Unfortunately, Peter Mandelson got a Northern Ireland opt-out in the equal treatment directive in 2000, but that was probably too clever by half. That is why I have again called for rejected trainees—Roman Catholic or Protestant—to come forward. Lawyers are ready to go to the European Court of Justice in Luxembourg. Their arguments are about unconstitutionality in European law. Finally, I want to return to the Patten report because that is the reason the Government got themselves in a mess. In paragraph 15.11 of his report, the noble Lord, Lord Patten, stated that, having consulted the Fair Employment Commission (now the Equality Commission), and received a legal opinion from counsel, his proposal, while contrary to existing anti-discrimination UK law, would not be contrary to European law, unlike the proposal to have reverse discrimination in favour of women. The noble Lord, Lord Patten, is correct: 50:50 was contrary to anti-discrimination law; and the Police (Northern Ireland) Act 2000 had to suspend such legal protection. The noble Lord, Lord Patten, is also correct on the point that European law opposed reverse discrimination in favour of women, who were almost as poorly represented in the RUC as Roman Catholics were. So how did the noble Lord, Lord Patten, reach his conclusion that European law would not oppose 50:50? I have made another Freedom of Information Act application, this time to the Secretary of State, asking for the advice on which the noble Lord, Lord Patten, relied. He says that he consulted the Fair Employment Commission. I know the views of the late Sir Bob Cooper, and he was not an advocate of quotas. In evidence to the Select Committee on the European Union at the time, he showed that he knew quotas were outside the principles of European law. I am most reluctant, in the absence of evidence to the contrary, to believe that Sir Bob Cooper advised the noble Lord, Lord Patten, to go for 50:50. The noble Lord, Lord Patten, said that he also took the advice of counsel. I do not know who that barrister was, or whether he or she practises in Belfast and/or London, but I look forward to seeing the legal advice saying that 50:50 would be compatible with European law. It will have to explain how Article 13 of the European Communities treaty, a general anti-discrimination provision inserted at Amsterdam on 2 October 1997 and entering into force on 1 May 1999, would have no impact on Westminster legislation. The same opinion, referred to in the Patten report published on 9 September 1999, would also have to explain how 50:50 was compatible with the equal treatment directive, which emerged eventually from the European Commission on 25 November 1999. I believe that no competent barrister, advising in 1999, would have produced an opinion saying there would be no problem in Europe with 50:50. We now know that 50:50 was contrary to European anti-discrimination law as it was being developed in 1999 to 2000. The UK had to secure the opt-out in the equal treatment directive, permitting Westminster to legislate for 50:50. The Bill will abolish 50:50 and align the UK with the other member states in opposing religious discrimination. The Government are currently providing for the police in the Northern Ireland (Miscellaneous Provisions) Bill. If my Bill were to be obstructed in another place, I would table amendments to the Government’s Bill providing for the abolition of 50:50. Meanwhile, the European Court of Justice might be looking at how exactly Peter Mandelson secured that crucial opt-out when he was Secretary of State for Northern Ireland. I commend the Bill to the House. Moved, That the Bill be now read a second time.—(Lord Laird.)