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New Clause 10

Volume 114: debated on Wednesday 8 April 1987

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Searches Of Persons

`In section 15(3) (a) of the 1978 Act there shall be inserted after "person", the words "whom he reasonably suspects of having with him unlawfully, munitions in any public place, or having with him any transmitter"; after "he has any", the word "such"; and after "him or any", the word "such".'.— [Mr. Archer.]

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

With this and the ensuing new clauses we come to the whole troubled area of the powers vested in the members of the security forces to stop people and to search them. Of necessity, they are powers to stop people who may well transpire to be blameless, respectable citizens going about their lawful business, and who may well be in a hurry for legitimate reasons. The Opposition accept that in the conditions that exist in Northern Ireland some such powers are essential and that their existence imposes some restraint on the men of violence and may lead to their detention and arrest. However, those powers are fraught with possibilities of trouble. Even if everyone concerned is patient, courteous and sensitive, there is a potential confrontation which, by reason of its purpose, is impregnated with suspicion. There is suspicion of the person who is stopped and searched, because without that suspicion there would be little purpose in stopping and searching him. The person stopped is suspicious that the power is being exercised, not for its real purpose, but for that of arrest.

It is all highly susceptible to misunderstanding, and that is true even if everyone is on his best behaviour. Given that we are talking about human beings who, like you and me, Mr. Deputy Speaker, are sometimes irritable, who sometimes get out of the wrong side of the bed, and who sometimes carry with them a memory of some former bad experience, it is virtually inevitable that there will sometimes be irritation on both sides.

It is not surprising if the powers are sometimes used to pay off old scores, to give vent to discriminatory prejudice, or to flaunt a position of advantage. Even when that is not the case, it is not surprising if sometimes the powers are perceived in that way. We heard examples in Committee of how such powers are sometimes abused, and sometimes seen to be abused. Therefore, it is vital that the relationship between the various powers in the Bill is clearly understood and kept in mind throughout the episode. Of course, as the hon. Member for Newry and Armagh (Mr. Mallon) reminded us, the person who has suffered inconvenience and delay, who may have been at the receiving end of insults, and who may have been made to remove his shoes and jacket, may not feel any great academic interest in the subsection that is applicable to that specific stage of the episode. It is vital that all members of the armed forces should not attempt to exercise powers that Parliament has not given to them.

Sir George Baker gave us many examples of powers that have apparently been abused or, at best, used pointlessly. As we were reminded in an earlier debate today, the members of the security forces are fallible, but we impose heavy burdens on them and require them to expose themselves to great danger. They have to make instant judgments and sometimes, if they are wrong, the penalty can be high. If, to all that, one adds the fact that they, too, may be browned off, exasperated or irritable, we must seek a delicate balance between insisting on high standards and occasionally making allowances. I say that about this group of new clauses.

New clause 10 is the first to raise such questions. It relates to the power in section 15(3) of the Northern Ireland (Emergency Provisions) Act 1978 to stop a person in any public place and to search him for unlawful munitions or a transmitter, with a view to exercising the powers conferred by subsection (4). The only limit that is imposed is on the power to seize unlawful munitions or a transmitter. There is no limit on the power to stop and search someone for that purpose. The person need not have behaved suspiciously. A person may be stopped for no reason at all. The purpose of the new clause is to limit the power to circumstances of reasonable suspicion.

I understand the value of having a power to stop and search at random. If the only test to be applied were whether that was of advantage to the security forces, clearly that is an advantage. However, when against that there has to be set the aggravation to innocent people, the opportunity for harassment, the occasions for misunderstanding, and the loss of public confidence in and support for the security forces, a balance must be struck.

I hope that I am being fair in saying that what I think emerged in Committee was that a distinction seems to be drawn between stopping and searching vehicles and stopping and searching people. I think that a consensus emerged that there can be no real complaint about the random search of vehicles under other powers, provided that it is conducted without discrimination and with sensitivity. However, with persons who are not in vehicles, or even when they are in vehicles, if nothing suspicious is found in the vehicle itself, I think the consensus was that the balance should be the other way. I shall not elaborate on the reasons at this hour, but say only that this new clause would give effect to that consensus, if I have got it right.

8.45 pm

This is a rum clause. I have read section 15 of the Northern Ireland (Emergency Provisions) Act 1978 more times than I have found enjoyable and I find it more difficult every time I read it. Evidently my difficulties are shared by the right hon. and learned Member for Warley, West (Mr. Archer) who drafted what is not the most elegant of the new clauses that have been placed before the House. However, it is a consolation to me that we are the first House to consider this Bill. Perhaps the words that are shed during this debate may bear fruit in another place among Lords who are learned in the law.

I shall explain some of the curious features about this new clause in case something can be done about it later, because it is indeed awkward and rum. I begin with the observation made by the right hon. and learned Member for Warley, West on section 15(3) of the 1978 Act which quaintly states:
"Any member of Her Majesty's forces on duty or any constable may—(a) stop any person in any public place".
That is absolutely unqualified. It gives unqualified power to any member of the forces on duty or any constable to stop anybody. However, the matter ends there. A member of Her Majesty's forces or a constable can stop a person, can go on stopping him or, presumably stop him again and start him again. He cannot do anything but stop him. There is no qualification of the stopping power, and that is curious—at any rate in the context of the rest of the section.

The curious thing about this section is the mounting excitement with which one approaches subsection (4). In subsection (1) there is a power to enter any premises, other than a dwelling house, and to search it, but only
"with a view to exercising the powers conferred by subsection (4) below."
Therefore, we wait to find out the powers that are conferred by "subsection (4) below." Then we come to subsection (2) which states that any member of Her Majesty's forces may enter, if authorised, any dwelling house in which certain things are suspected but, however strong his suspicion may do that only
"with a view to exercising the said powers."
Holding our breath, we continue. We already have powers to enter premises other than dwelling houses and to enter a dwelling house. Subsection (3) is prefaced by the words:
"Any member of Her Majesty's forces on duty or any constable …"
may not only stop that person—that is an unqualified power on which I have already descanted —but can search him, but only
"with a view to exercising the said powers."
The excitement is now at fewer pitch. The subsection continues by stating that the purpose of searching him is to ascertain
"whether he has any munitions … or any transmitter with him."
Then, under subsection (3)(b) that member of Her Majesty's forces or constable can do something else, with a view to exercising the said powers. Again, he can search a person
"not in a public place"
—in fact, he can search him in a private place, but he must do that
"with a view to exercising the said powers."
At last, having cleared subsections (1), (2) and (3) of section 15 of the principal Act, we come to the answer to all our expectations, in subsection (4). What is the purpose of exercising the powers in subsection (4)? It is to seize any munitions found in the course of the search—unless it appears that they are being used for a lawful purpose—and, if necessary, to destroy them. Therefore, provided one intends conscientiously to seize and destroy munitions, one can do all the other things that are set out in the subsection.

But who can do that? I return for the umpteenth time to a study of subsection (4) which states that it is a member of Her Majesty's forces or a constable who is authorised to search any premises or other place or any person under the Act. I am told that they get that authorisation either under subsection (2), which refers to subsection (4), or in subsection (4) itself. Therefore, a person is authorised to do these things in subsection (4) provided that he is doing them for the purposes of subsection (4). This is the rummest of all pieces of drafting.

I am sure that the new clause has its value, even if it will not be accepted exactly as it stands, as I suspect it will not be, amidst such a cloud of difficulties. I hope that it will be taken by the Government as a signal that the parliamentary draftsman needs to take away this subsection from the principal Act, to make decent, logical, progressive sense of it, and not leave it in its present tumultuous position.

The power that is conferred on the RUC and members of the armed forces to stop any person in a public place and search him is wholly exceptional. I shall not follow the right hon. Member for South Down (Mr. Powell) in his canter through the logical or illogical order in which the various powers are set out in section 15, but after the debate I shall study carefully what he has had to say. These powers are exceptional, which is why they are in the emergency provisions legislation with all the other exceptional provisions; why they are all kept under constant review; and why, if the Bill passes into law, they will have a maximum life of five years.

I hope that the right hon. Gentleman will simply recall that we amended section 15(4) in Committee to get rid of the particular difficulty about authorisation. That may meet one scintilla of his case. The House knows why these powers are necessary. Serious terrorist threats exist in Northern Ireland and the power to stop and search people is an important element of prevention and deterrence. It makes the terrorist aware that if he moves illicit material around, either on his person or in a vehicle, he is liable to be stopped and searched. If the new clause is accepted, it will weaken the ability of the security forces to deter and prevent such activity. It will remove what has been a serious constraint on the ability of terrorists to make preparations for terrorist attacks, whether by carrying firearms or explosives. That, in essence, is my case.

I know that difficulties arise, and I would be the last person to claim that the power has never been used unreasonably. I am sure that occasionally it has been abused. But the House knows that my ministerial colleagues and I are always ready to investigate genuine grievances. The fact that the security forces have this power is a considerable reassurance to the majority of people on both sides of the community in Northern Ireland who do not resent being stopped. Many of these stops are over in a matter of seconds—a minute or two at most — before those searched go on their way. I would equate it with the power to stop and search passengers before they board an aircraft flight. It is a measure of reassurance that others are being subjected to the same treatment and that everyone is in a greater state of safety as a result. It would not be right to remove that power from the security forces.

Is the Minister seriously saying that there should be a power to stop, but not to search? That is the point that is raised by new clause 10. At present, on any ordinary construction of section 15(3), that is exactly the law. There is a power to stop without searching.

It may well be that the sole purpose of stopping someone would be to establish his identity—to do what in common parlance in Northern Ireland is called a "P-check" — and let him go on his way without proceeding to search him. Under other powers, having searched and found something, the person may be arrested. There is a logical progression. Certainly there should be a power to stop people and establish their identity. This power has an important deterrent effect on the activities of terrorists, so I ask the House to reject the new clause.

Had the Minister not sat down I would have referred him to section 18 of the 1978 Act, which states that a constable may stop and question any person for various purposes. Surely the Minister is not seriously saying that there should be a power per se to stop, unless the stopping is for the purpose of either questioning or searching.

In practice, the powers under section 15 would be used to search and those under section 18 to stop and question. That is absolutely fair. I told the right hon. Gentleman that we would consider the drafting, if that was the point at issue. I thought that the right hon. Gentleman was questioning generally whether there should be a power simply to stop.

Question put and negatived.