I start, as usual, by saying that if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Clause 15 [Investigations: access to prisons, &c.]:

moved Amendment No. 24:

On a point not directly to do with this Bill, we have all at different times complained about the groupings. I remind myself and everybody else that we have perfect access to the groupings in advance, and we have a right to change them. If the groupings are not to our satisfaction it is our fault. I can tell the noble Lord, Lord Lester, that I felt the same way on Monday, but it was my fault for not having checked them. It would have helped had they been checked and grouped rather better.

I have one question before deciding on the merits of the noble Lord’s amendment. Why have the Government decided that a closed and finite list is necessary? I understand that the word “means” in this subsection, as opposed to the word “includes”, means that it is a closed list, and that it is not relevant to anything anywhere else. I should be interested to know whether that is the case.

I am speaking to Amendment No. 30, which stands in my name and that of my noble friend Lord Smith of Clifton, and which is consequential to Amendment No. 24.

The Northern Ireland Human Rights Commission said that Clause 15 would, by new Section 69C of the Northern Ireland Act 1998, allow the commission to enter a place of detention only during and for the purposes of a formal, time-bound investigation established under Section 69(8). For any other purpose, however serious or urgent, the commission would need to secure the permission of the relevant authorities. The commission needs to have the option of visiting places of detention as a means of fulfilling its statutory functions under Section 69(5), (6) and (8) of the Northern Ireland Act 1998 in relation to legal proceedings, research, investigations or educational activities. It would need to have a right of access to places of detention for the exercise of any of its statutory functions; and protection against any inappropriate use of this power is available through judicial review.

Subsection (3) offers an extensive list of “places of detention”, but reliance on the ordinary English meaning of the phrase would provide a more efficient and, we believe, inclusive approach, as was done in, for example, the Armed Forces Act 2006 and the Criminal Justice Act 2003. The opportunity could also be taken to address any possible consequences of delay in amending the list.

I start by fully accepting the reasons for the absence of the noble Lord, Lord Lester of Herne Hill, on Monday. His amendments were succinctly put and clearly placed on the record. I did my inadequate best to answer his colleague who stood in for him but, if he is dissatisfied, we will naturally come back to them on Report. The Attorney-General dealt with a good part of the issues as well.

I am very grateful to the Minister for that full reply. It is correct to say that a fetter is being imposed on the commission by the way in which this clause is drafted. It allows the commission to enter only a place of detention specified in the exhaustive list set out in subsection (3). When we were debating the Equality Bill, the noble Baroness, Lady Ashton of Upholland, was the Minister responsible. She said again and again that she was allergic to prescribing in detail in exhaustive lists in a Bill, and I agree with her. She said that she found that highly bureaucratic and unnecessary and she preferred the least possible specificity and prescription in legislation of this kind. What we do not understand is why it is necessary in the first place.

I shall deal with the 17 other bodies shortly but, focusing on why it is necessary, let us suppose that the list were omitted and it simply said that the commission may enter a place of detention in Northern Ireland and left it to the discretion of the commission as to what it should do. That is exactly the position that applies to the existing equality agencies—the Equality Commission in Northern Ireland, the EOC, the CRE and the Disability Rights Commission in Great Britain. If they are carrying out an investigation into suspected discrimination in, say, a prison, nothing in the equality legislation has lists that say these are the only places that they can investigate, and I am not aware that there has ever been a case of abuse. So we simply do not understand why it is necessary—and it is rather heavy-handed to say that the only way to deal with this is not by leaving it to the good sense of the commission or the court in the event of a judicial review but having to introduce by Order in Council an amendment to the list. It would be perfectly possible, I suppose, to have this list for clarity but say,

“or any other similar place of detention”,

which would at least not give rise to the need for further Orders in Council.

We find it particularly strange, given the other restrictions placed on the investigation, which we will come to later in this clause and which again give the impression that there is a lack of confidence from the beginning in the good sense of the commission—a view that I am sure that the Minister does not share. It is very important to prevent unnecessary bureaucratic restrictions being imposed in the name of certainty.

As for the point about the 17 other bodies, none of them has the function of this commission, which is to ensure that public authorities in Northern Ireland comply with the international human rights standards by which the United Kingdom as a whole is bound. Of course it is true that all public authorities in our democratic country are subject to inspections of all kinds, including the National Audit Office, ombudsmen, prison inspectors—all the list that the Minister gave us. But that seems no reason to restrict the powers of the commission.

If a particular matter, such as deaths in custody in Northern Ireland, has been fully investigated already—and the JCHR has investigated that matter—and the proper standards applied by the JCHR, for example, it would have been absurd for the Northern Ireland Human Rights Commission to use its resources to investigate the same subject with the same standards. If it did so, it could and should be criticised. But that is a case in which an investigation has been made into the same issue by another body, which has covered the same ground, and none of the other 17 bodies mentioned by the Minister has this function.

Of course, we will consider this matter, but I hope that the Government will also consider whether there might be some flexibility to avoid the list becoming an exhaustive cage for the commission.

Committee stage is an opportunity to consider everything that is said but, to the best of my knowledge, however much criticism there may be of the list, it covers all lawful places of detention in Northern Ireland. Therefore, all places where the commission may wish to investigate are on the list; we have not missed any off, to the best of our knowledge. If there are others that we do not know about, we shall clearly add them. We have done the list in the cause of the commission’s clarity and certainty, so that no one can argue, “You have no right here”. As we have covered all lawful places of detention, the commission has more powers. We obviously have confidence in the commission, hence the contents of the Bill, but I place on the record that we have no hidden places of detention; that would be unlawful. Therefore, all lawful places of detention are covered on this list to the best of my knowledge. I shall obviously have all this double-checked before Report, and ensure that it has further consideration.

We did it for clarity. It supports the commission. There cannot be any argument about where its writ runs; its writ runs on all lawful places of detention. Listing them benefits the commission and stops any legal challenge of those who might wish to frustrate its work.

I am grateful. I hope that the commission will carefully read what the Minister has said, and reflect on whether there are gaps. If so, we can come back to them at a later stage. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

In calling Amendment No. 25, in the name of the noble Lord, Lord Lester, I point out that, were it to be agreed to, I should not be able to call Amendments Nos. 26 to 29 because of pre-emption.

moved Amendment No. 25:

I rise to speak to the Amendments Nos. 27 and 29 in my name and that of my noble friend. The Northern Ireland Human Rights Commission has done extensive research in prisons and juvenile justice establishments for many years, as we have already heard. It has dealt with complaints and inquiries from prisoners and prison staff and it has advised the Government and the Prison Service on numerous matters connected with prison conditions and policies. The commission needs to be able to enter places of detention for a variety of reasons, not only for formal investigations. There have been times when its access has been obstructed and delayed to such an extent that judicial review proceedings have had to be instigated. Indeed, the UN Committee Against Torture has indicated that it wants the NIHRC to participate in the UK's national preventive mechanism under the optional protocol to the convention against torture—OPCAT.

The power of access to places of detention must allow for unannounced visits. As drafted, new Section 69C imposes a minimum delay of 15 days’ notice between the commission deciding to investigate and gaining the right of entry. Subsection (5) does not make any provision for emergencies and subsection (6) further delays access by allowing for application to the county court where access can not only be prevented or restricted but alterations can be made to the terms of reference decided by the commission and communicated by it to all the interested parties, as my noble friend Lord Lester of Herne Hill reminded us.

Even the Department of Finance and Personnel has to give only 24 hours’ notice before entering establishments under Article 26A of the Rates (Northern Ireland) Order 1977. It is therefore entirely wrong to insist on these arbitrarily restrictive issues applying to the NIHRC. I trust that the Minister and the Government will look closely at this matter before Report.

I take what the noble Lord, Lord Lester, said at the start of his speech regarding the fact that he referred to these issues in the earlier debate. However, I want full clarity so that we can have a decent Report stage and shall therefore put my remarks on these amendments on the record so that they can be trawled over for advice outside.

One could get the wrong impression with words such as “shackling” and “hobbling”—there was a third but I did not write it down). I therefore make it clear at the start that the Bill extends the powers of the Northern Ireland Human Rights Commission—period—and the powers go beyond that of the Commission for Equality and Human Rights in Great Britain. So the commission is not shackled or hobbled; its powers go beyond others in terms of accessing places of detention. As Ministers have said in the past, we have always made it clear that powers would be directed by appropriate safeguards. I have already referred to the role of many existing accountability bodies, and the safeguards would reflect the rights of public authorities to appeal and ensure that the powers were complied with.

I also want to make it clear that, once the 15-day period is up, the Bill allows the commission to carry out unannounced and unimpeded multiple visits to the places of detention. It is not a one-off visit and the commission does not have to keep applying—it can carry out unimpeded visits to places of detention without providing advance notice. That significant power should, we believe, be subject to the initial period of consultation with the relevant authority.

The issuing of terms of reference and the requirement to allow the 15 days to pass, during which a public authority can appeal, ensure that consultation takes place, as is right and fair. However, once the 15-day period has passed, or after any appeal has started and that period has ended, access to the place of detention can be restricted only after a court has ruled in favour of a public authority. I make it clear that the appeal process cannot be used as a mechanism to prevent investigations, and the court can restrict access only if the commission has failed to meet the clear statutory criteria set out in the Bill. I repeat: this commission is not an enforcement body but it has powers that go beyond those that apply in Great Britain. I made the point about the number of inspection bodies that the Northern Ireland Prison Service has been on the receiving end of in recent times.

We believe it is right that the Northern Ireland Human Rights Commission is furnished with the power to carry out unannounced and unimpeded visits to places of detention as part of its investigations into human rights issues, but, on the other side of the coin, the rights and needs of public authorities and the role of other accountability bodies need to be taken into account; hence, the 15-day period and the requirement for consultation so that everyone is satisfied. That is an extension of the powers of the Northern Ireland Human Rights Commission; it is not hobbling or shackling the commission in Northern Ireland. Clearly, we will listen to what has been said in Committee and will study the Joint Committee’s report, but one has to balance this issue. It involves a major increase in the powers of the Human Rights Commission and safeguards have been built in, as was always envisaged.

First, I thank the Minister and wish to say that I made a mistake, for which I apologise. He is perfectly right to say that the commissions to which I referred do not have the power to inspect in the way that is envisaged for this commission. Therefore, to the extent that I prayed them in aid, I was wrong and I apologise. The Minister is perfectly right to say that this is a new power. He is also right that this body, unlike the Equality Commission, has no enforcement powers. However, I should have thought that that suggested a less restrictive approach than in the case of a body that had enforcement powers because, when bodies with enforcement powers use this kind of power, the sanctions are great, whereas this body has no sanction; it can only make recommendations.

I shall try briefly to persuade the Minister to keep his mind ajar on this because the Bill is framed in such a way that requires the commission before it investigates to have terms of reference. Clause 16(1) states that the power we are talking about,

“may be used in relation to an investigation only if the Commission has … prepared terms of reference for the investigation in advance, and … sent a copy of the terms of reference to … any person identified in them … a person responsible for any place of detention specified in them, and … any other person whom the Commission thinks may be affected by the investigation”.

There is a requirement that notice must be given from the outset of what is envisaged before the power can be exercised.

It is perfectly clear that a person who is subject to the pains and penalties of an investigation can apply for judicial review if he is not treated fairly. There have been several cases in which the equality agencies with much greater powers than this body will have found that when they serve terms of reference, the person goes to the High Court and says, “This is unfair, oppressive, irrelevant”, or whatever else, and the court is astute to make sure that the body involved keeps within proper bounds.

I suggest that the real safeguard is that the commission will have to give notice at the outset, serve the terms of reference on those concerned and if they do not like them, one could—as Viscount Hailsham once did in one of our equality Bills many years ago—build in a provision for some kind of hearing on the terms of reference, or some right to be heard about them. That is a possibility to ensure fairness—the courts would require it.

The Minister says that he does not like my use of horse-racing language, such as hobbling and shackling, so I shall try to avoid it. Let me say “restrictions”. There is a new power, but it is subject to restrictions. The Minister said that those are safeguards, but safeguards for whom? If it is a safeguard of fairness and reasonableness, the courts are always there to ensure that. I am not satisfied that we need this enormously cumbersome procedure in order that the grant of a power for a body with no enforcement powers should not be misused. I think the Minister means safeguards that the commission will act fairly and reasonably, and not oppressively. I agree with that, but such matters can be dealt with by judicial review courts.

I shall reflect on what the Minister has said, as I am sure will he and his advisers. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 to 30 not moved.]

Clause 15 agreed to.

Clauses 16 to 18 agreed to.

Clause 19 [Timing]:

moved Amendment No. 31:

My amendment, Amendment No. 34, is in this group and attempts to achieve something quite similar. These amendments handle the restrictions that the commission has on what information it can request. Currently the Bill prevents it asking for anything from before 1 August 2007. I think that the commission has a point that documents or information from before that date could be relevant to a current investigation, so we have tabled an amendment to allow the county court to let through a request, even if it breaches the timing restriction, as long as it is relevant and appropriate. That is the difficulty.

I do not think that the commission should be given a free hand to decide this, since its ideas about what was relevant might be very different to that of the courts. We do not want all the restrictions lifted, by any means, which is what I think some Members of the Committee would like to see happen. I and my party are very much against any more investigations raking up old cases from the past. However, we see that there is some sort of anomaly here and, if Her Majesty's Government could find their way around this so that access could be allowed in a restricted way and confined to a particular case, that is what we would like to see. We are not supporting any form of wholesale investigation before the date stated in the Bill.

I should point out to the Committee that if Amendment No. 33 were agreed to I should not be able to call Amendment No. 34 because of pre-emption. That may be academic, but I thought I should tell Members of the Committee that.

I shall speak to Clause 19 stand part.

The Northern Ireland Human Rights Commission said that Clause 19 would prevent the commission from compelling evidence or accessing a place of detention for the purpose of investigating any matter related to the period before 1 January 2008. The commission could not, for example, require the production of any document created on or before 31 December 2007, even if it was directly relevant to a human rights violation existing on or arising on 1 January 2008. The effect of the time limit is particularly severe in relation to the gathering of evidence. It is difficult to imagine how any human rights violation could effectively be investigated without looking into events and information from previous years. It is thus likely in practice that several years would have to elapse before the commission would be able to use the powers to any effect.

In England, Scotland and Wales, the sister bodies of the Northern Ireland Human Rights Commission have, and will have, powers with no arbitrary time limit. In the Republic of Ireland, the Irish Human Rights Commission—established in parallel with the Northern Ireland commission as a result of the Belfast Good Friday agreement—has extensive powers to compel evidence with no such time limit. The agreement and the corresponding treaty committed the two states maintaining an equivalent level of protection of human rights in Northern Ireland and the Republic. Clause 19 serves no useful purpose for the protection of human rights, and should either be left out or amended to provide a positive formulation, allowing the commission to exercise its powers on matters arising before, as well as after, commencement of the new Act.

I say in the politest way possible that the noble Baroness, Lady Richmond, ought to think of the fees she pays for her briefers. She has read from an old brief, and all the dates she has given are wrong and irrelevant to the Bill. The Government changed the dates; we brought them forward.

I was referring to the Northern Ireland Human Rights Commission report at that time.

I gathered the noble Baroness was reading from a document pre-dating the Government’s changes. In other words, we have sought to meet some of those issues. I have a statement to put on the record; in shorthand, the Bill offers new powers for the future, existing powers for the past. It does not change the existing powers of the Northern Ireland Human Rights Commission; its new powers do not change the existing powers. I realise that, in looking at cases in two or three years’ time, there could well be documents that precede that. That is in some ways at the margin; it is not a question of changing the powers and the date being irrelevant. That is the point.

The point of Clause 19 is to ensure that the Northern Ireland Human Rights Commission uses its powers to compel evidence and access places for the detention for investigation of matters arising from situations existing on or after 1 August 2007; they may of course have existed from some time before then. The clause prevents information recorded or produced before this date from being compelled, because that is not part of the existing powers.

We obviously do not accept that the date restriction should be removed and the commission should be able to use its new powers to investigate and compel information from the past. The investigations should be forward looking. There is no question that the commission will make a positive contribution to the present and future development of human rights and practice in Northern Ireland as it becomes more of a civic society, particularly in view of the changes that will hopefully take place in a few days’ time.

There are of course other bodies thought to be better placed and specifically mandated to investigate historic issues. It is not as though anyone has completely closed the book on the past; that would not be our intention. There is an argument that the commission should be able to compel information from the past when it relates to situations that arise after August this year. There will obviously be cases when information from the past is relevant to ongoing matters. Clearly, that has to be so and any reasonable person would accept that, because human rights issues are not a snapshot; they cover a period of time. However, deciding what information is relevant is not at all straightforward in terms of getting that into statute. It could be argued that records stretching back over 30 years could be used as background material for current events. In other circumstances, one document from July this year could be thought relevant to an investigation.

We have given a great deal of thought to whether there is a way to define which documents from the past are clearly relevant to current events and therefore could be compelled by the commission. But we have concluded that a definition would be very difficult and probably ineffective. We do not believe that we could cover all the different circumstances that might arise and we would risk diluting what we want to be a forward-looking approach by the commission.

We have considered very carefully, as proposed by Amendment No. 34, whether courts could be given the responsibility to determine whether a document is relevant. But we are concerned that that could lead to the courts becoming involved in almost every investigation that the commission conducts and that is not advisable. I emphasise that Clause 19 applies only to the new investigatory powers that Parliament is granting to the commission in the Bill. That is the whole point of the exercise. The new powers and the timings relevant in Clause 19 go together. Therefore, the best way to deal with the issue is for the commission to use its existing powers when it wishes to investigate the past or consider documents from the past, just as it has been able to do for the past eight years. In those circumstances, it will be able to use the Freedom of Information Act 2000 to request information. The noble Lord, Lord Lester, shakes his head as though the Freedom of Information Act has no significance and is no good.

When the commission wants to investigate current and ongoing events and rely on information produced from August 2007 onwards, it will be able to use its new powers. That is what this Bill is about. We think that that is the right balance. Existing powers will enable it to look at the past, as it has been able to do, and new powers in the Bill will enable it to look to the future. For information that falls between the two there is a perfectly good Act of Parliament, which many people make use of daily, to cover the period in between. Naturally, we will look at the points raised, particularly the crossover points, but the purpose of the Bill is to give new powers to the commission. The start date is relevant for using those new powers. It would be wholly counter-productive not to have a date and to make it retrospective. That would not create a forward-looking commission.

I am grateful to the Minister. The reason that I shook my head was not because I thought the Freedom of Information Act was not a good thing: it is a very good thing. But it is a curious way of tackling a practical problem in a reasonable period of time, which all of us moving these amendments are concerned about. I have not sought to argue, as have my learned friends, that there should be no restriction at all, although I fully sympathise with that view. I am concerned—I think the Minister agrees with me—about a situation in which documents that predate 1 August are relevant and necessary for an effective investigation. The commission, which is a public authority, should not have to use the Freedom of Information Act to obtain that material.

The noble Lord, Lord Glentoran, and I are both seeking a common position. Those of us who have to deal with questions of discovery, as they used to be called or disclosure of documents as it is now called, have to deal with such things all the time.

I support the points made by the noble Lord, Lord Lester. Surely, it should be possible to draft an amendment to provide that where an investigation has begun properly after the date—there should be no question about the appropriateness of the investigation—it should be possible for the commission to acquire or to insist on the provision of relevant documents which came into existence beyond that date if they have a bearing on the investigation. I would think that that would be a fairly easy and straightforward amendment to draft, which would fit within the framework that the Minister has described; that is, essentially forward looking. Incidents and situations will not develop in neat little packages and there will be relevant histories, so it is a perfectly reasonable proposition. I agree with the framework as spelt out by the Minister; namely, that the commission’s new power should be forward looking, not backward. With regard to new situations and problems arising in the future, I accept that those new situations will have a past and it may be that a proper investigation of a situation arising will require going into that past to some extent. It should be possible to frame that.

I should also say, parenthetically, that it seems to me that in framing these provisions to be forward looking, not backward looking, the Government are learning from the mistakes that they made with regard to the police ombudsman. I am very glad to see them correcting the mistake in this context and I hope that they will take the opportunity we offered them earlier this week to correct the other mistakes that have been made in that context too.

I have lost a bet I made with myself because I thought the words “police ombudsman” would be uttered less than 60 minutes into our proceedings today. Deciding what information is relevant is not straightforward. Our difficulty is that trying to draft something would dilute the forward-looking nature of the new powers. I shall take advice on this because I have not received any, but if there was a detention institution with a history like that in the example given by the noble Lord, Lord Lester, more than one other authority with enforcement powers would have been in and out of it with documentation to prove it. We are giving the commission the power to require information. The example given by the noble Lord is probably not a good one because I suspect that all the information that would be requested as background material would probably be in the public domain if there had been lots of suicides in a detention institution. There would have been investigations by the police, the prisons ombudsman and all kinds of other people.

I shall almost pass the problem on to the noble Lord by asking whether between now and Report he can come up with an example that we can have a look at that does not dilute the forward-looking nature of the new powers. It is clear that there could be a case in 2008 or 2009 where there is something relevant before 1 August 2007. I cannot envisage such a case, but I can envisage they will arise. We want the powers of compelling to be forward looking. We have had a look at drafting this, but I am happy to go back to my colleagues in the Northern Ireland Office and point this one up. However, it has been looked at, and drafting something is not straightforward because any attempt to do so has seemed to undermine the forward-looking nature of the new powers. That is our dilemma and is why I fall back on the freedom of information legislation.

I do not think it is a criticism for a public authority to have to use the freedom of information authority to get information. I do not see what the problem with that is. It is open to public authorities and individual citizens, and I do not see that public authorities should have carte blanche to obtain information outwith their powers when the FoI is there. If they can use it and activate the freedom of information legislation, I do not see that as a problem. A public authority using FoI to obtain information is not a failure of the system. It is a plus for it to use its existing powers and the freedom of information legislation and, after 1 August this year, to use its new powers to try to get all the information it requires for its inquiries. I fully accept that this is difficult. I cannot say that no case starting—or events occurring—on 1 August will have any connection with anything prior to that. It would be ludicrous to say that. There are bound to be cases in future that have some relevance before 1 August. The question is how we deal with the new powers in such a way that we keep the commission forward looking rather than backward looking.

Unlike the Minister, I have tried to use the Freedom of Information Act and he may not realise that you have to live a long time in order to get what you seek. The procedures are so bureaucratic that it may be a year or two before you get the result. So the idea of a public authority having to go through the Freedom of Information Act to get information so that it can carry out an effective investigation into a matter of compelling public importance is the kind of thing on which Franz Kafka wrote in his novels about Czechoslovakia in the inter-war years, and that does not seem a very straightforward or sensible remedy.

The remedy put forward by the noble Lord, Lord Glentoran, seems to be a perfectly sensible way of dealing with this matter, but it has not been addressed as such by the Minister. My solution, which is no doubt imperfect, is to make it clear in Clause 19(1) that the powers would cover matters arising on or after 1 August or situations that would,

“come into or remain in existence, on or after”.

That is simply a device to deal with a continuing situation. But of course it does not deal with the situation in Clause 19(2), which concerns the absolute bar on requiring information to be provided if it is “recorded before that date”. Although I do not have an amendment on it today, my solution to that would be to say that that is typically a matter where you can trust the court. The commission could apply to the court for permission, as is the case with subpoena powers, to obtain information on showing that it was appropriate and necessary to provide that information for the effective conduct of the investigation. That could be dealt with by a county court judge in the same way as subpoena powers. That would then give some flexibility.

I think that everyone who has spoken in this debate agrees that there is a need for flexibility. Even the Minister half conceded that, but he said that the Freedom of Information Act should be used to deal with it. His point about information already being in the public domain because, being a scandal, it will already have been investigated by someone else is not a very good one, because we are not dealing with matters that are already in the public domain—the power would not be necessary if they were. We are dealing only with the exceptional case where relevant documents are needed for an effective investigation and which relates to a situation which continues from before 1 August into the present.

I very much hope that, especially if the Government can do our work for us, one way or another they can find a form of words that will include judicial control and effective safeguards to avoid abuse. Having said that, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 to 34 not moved.]

Clause 19 agreed to.

Clause 20 [Stop and question]:

moved Amendment No. 35:

Listening with care to the noble Lord, Lord Lester, I realise that the heading of Clause 20 “Stop and question” does not explain what it is about. We are not talking about any old stop and question or every stop and question. We are talking about stop and question relating to,

“a recent explosion or another recent incident endangering life”,

or,

“a person killed or injured in a recent explosion or incident”.

The scope of the clause is constrained. We have to bear that in mind in the answer I shall put on the record. I regret to say that we cannot accept the amendment as drafted.

Amendment No. 35 applies to Clause 20(2), which deals with the power of the Armed Forces to ask questions about recent explosions or other incidents endangering life or about individuals injured or killed in them. Amendment No. 37 applies to Clause 22(1) which provides power of entry where it is necessary in the course of operations for the preservation of peace or the maintenance of order. We understand that the intention is to give effect to points made in the report of the Joint Committee on Human Rights and we have considered them closely.

As the noble Lord said, the Joint Committee is concerned to ensure that the power cannot be exercised in a way that might engage Article 5 on the right to liberty. It worries that the power is not sufficiently regulated by the word “necessary” and asks that the word “reasonably” be placed in front of it. The noble Lord accepted that in most cases individuals will be questioned under this power for no more than a few moments. The questions may relate to defined and finite issues only; namely, what the person knows about a recent explosion or other incident as set out in the clause. The range of questions is limited and therefore the time taken to obtain the information is limited. Where the officer’s questions are evaded or there are suspicions, he may continue to question. For example, if a person states that he lives at such and such an address, the officer may ask him what colour his front door is and then get a passing patrol car to check the information. The necessity of such questioning can be challenged in court, and the officer would have to state why he believed it to be necessary and set out the grounds for his belief. His actions can be challenged and he can be cross-examined, which is an important safeguard against abuse. It remains open to the court to find that the use of the power was not necessary on the facts of a particular case or that the officer did not believe that the use of the power was necessary. To introduce the concept of reasonableness would introduce an element of uncertainty in the exercise of the power which would hamper its use on the ground in the circumstances that I have described; that is, following an explosion, a death or other matter endangering life. The same argument applies in relation to the use of the power of entry in Clause 22.

The test of reasonableness may prevent officers from quickly making decisions that are operationally important because there is an element of uncertainty about the scope of the power. We believe that officers on the ground would be hampered by trying to assess whether a third party would view their actions as reasonably necessary as opposed to necessary. In this instance, we wish to ensure that police officers and members of the Armed Forces who are involved in responding to what by definition in the clause are fast moving situations—the clause is clear that it is not about every stop and question—can use this power without having to exercise judgment about what is reasonable and can base their actions about what is necessary on the facts.

Defining the use of powers in terms of their necessity is not an innovation; it is not new in legislation. Both the Police and Criminal Evidence Act and the Terrorism Act use that test. We believe that it is the appropriate test here. As in the Government response to the Joint Committee, I would highlight the important judgment of the noble and learned Lord, Lord Bingham, in Gillan v. Metropolitan Police Commissioner in relation to Clause 20. The noble and learned Lord found that stops that were ordinarily brief and did not involve arrest, handcuffing, confinement or custody did not amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights. We believe that this power clearly fits within those boundaries. Alternatively, even if Article 5 were to be engaged, the use of the power could still be appropriate, provided that it was to secure the fulfilment of an obligation prescribed by law. The public are, by virtue of Clause 20(3), placed under an obligation to provide information when requested. An officer questioning someone to establish his knowledge of the specific incidents under Clause 20(2) would be doing so to secure the fulfilment of an obligation in law, which means that Article 5 would not be engaged.

We are moving into territory where the lawyers will have a field day, but as a non-lawyer, I understand exactly what I have just said. I can imagine the circumstances. They are highly constrained by the clause, which does not apply to every conceivable situation. It relates to where there has recently been an explosion or other incident endangering life or where a person has recently been killed or injured in an explosion or incident. It would be a fast-moving situation, and therefore we think the powers are appropriate.

I am very grateful to the Minister. I would like to discuss this further with my colleagues on the Joint Committee on Human Rights and our legal adviser because as I listened to the Minister and reread the clause I asked myself what is the difference between a test of what is necessary and what is reasonably necessary. It occurs to me—and I hope my colleagues on the committee will forgive me for having this thought—that if the word “necessary” is in the clause and there was a challenge in the court, the court would be bound to apply the standard of reasonable necessity anyway because if the power were used unnecessarily it would be an unreasonable and disproportionate exercise of the power. Therefore, if that is a correct legal interpretation, the word “reasonable” would not be necessary. I mention this because the right to liberty is a basic civil right and one would not wish to give even Her Majesty’s forces carte blanche to hold someone indefinitely in order to compel him to provide information that he would be under a legal obligation to provide. I would like to reflect further on this. I doubt whether the Minister is willing to concede today that the word “necessary” necessarily imports the notion of reasonableness, but he may be able to reflect on that before we come back to this. It would be an importance acceptance in the course of the discussions on the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clause 21 [Arrest]:

moved Amendment No. 36:

Having listened to the noble Lord, Lord Lester, I am no lawyer and can be outgunned from every direction on that front. However, I have been a soldier for a long time. I have observed internal security operations in Northern Ireland over many years, and am particularly aware of the pressures on young soldiers when they are deployed on internal security operations. The first principle is that a soldier is only deployed on internal security operations in some form of action in direct support of the civil power; the police. The police are in charge of that operation and in charge of those soldiers. They have the authority.

I can foresee many problems if the amendment proposed by the noble Lord, Lord Lester, is agreed to. First, from a training point of view, it is yet one more piece of paper that you have to fumble to read in the middle of an operation to work out what you have to do. Secondly, there are times when it would be totally impractical. You could be trying to arrest the guy and he could disappear behind the hedge pretty quickly or into a ditch. That would not be the time to explain to him carefully that you have just seen him throwing bombs. By and large, I do not support this amendment.

In looking at both the amendment and the clause, I ask noble Lords to look at the power within the context of the Bill and Northern Ireland. The military role in Northern Ireland is changing. The end of July will see the end of Operation Banner, which has been running since 1972. There will no longer be routine military support to the police after that period. It is also worth bearing in mind that the Armed Forces’ power of arrest under Part 7 of the Terrorism Act 2000 was used only six times in 2005. I do not have a figure for 2006 yet. Therefore, we expect the use of this power to be similarly sparse. It will be used rarely.

When exercising the power of arrest in the circumstances set out in subsection (1) those detained should be informed promptly of the reasons for their detention. Naturally, I understand the reason for the amendment—I make no complaint about that. But the Armed Forces’ power of detention following arrest lasts, as is clearly set out in the clause, for a maximum of four hours within which time the individual would be re-arrested by the police or released. At that point of re-arrest, they would be told the reasons for their arrest by a police officer trained to do so and the provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 would be applicable.

In the context of Northern Ireland, in most cases we would expect the re-arrest to be within the one-hour period, but there are instances when the Armed Forces may be operating in a rural area. For example, they may be the first on the scene of an unexploded ordnance and it may take the police longer to reach them. That is why there is a four-hour limit. The Armed Forces will always seek to hand over the individual that they have arrested at the earliest possible opportunity. Case law suggests that while the information on the reasons for detention required by Article 5(2) must be conveyed promptly, it need not be related fully by the arresting officer—a member of the Armed Force—at the time of arrest.

Case law also makes clear that whether the content and promptness of the information is sufficient to comply with Article 5(2) should be assessed in each case according to its special features. It also suggests that intervals of a few hours do not fall outside the notions of promptness required by Article 5(2). The power in Clause 21 therefore satisfies the requirement to be told promptly. As I have said, there would be a four-hour maximum. We would expect most of the handful of cases to be dealt with within one hour.

Although members of the Armed Forces would currently give some indication as to why they were arresting an individual, a statutory obligation to do so would provide a route to challenge the actions of the Armed Forces. A successful challenge on the grounds of arrest would mean that the arrest and any actions following it—for instance the restraining of an individual—would be deemed illegal.

The Armed Forces are not trained in the law to the same level as members of the police force. They will not be using the power anywhere near as regularly as the police, and will be using the powers only for a brief period before the police arrive to re-arrest, or indeed, release the individual. On the rare occasions when they use the power, it is likely to be in a fast-moving and high-pressure situation, where police back-up is quickly forthcoming. In our view it is excessive to place a further burden on the Armed Forces.

I shall repeat what I said when I started. The military role in Northern Ireland is changing, and the end of July will see the end of Operation Banner, which has run since 1972. There will no longer be routine military support to the police. The powers of arrest of the Armed Forces in Part 7 of the Terrorism Act were used only six times in 2005, and we expect the use of this power to be similarly sparse. That is the context in which we are dealing with this issue, which is the basis on which I reject the amendment. Naturally it is up to the noble Lord to come back on Report, but that is the background to the reasons why the power is in the Bill, and how we expect it to be used in reality.

I am grateful to the Minister. A surprising and extraordinary fact about me is that I served in national service during the Suez campaign and became a gunner officer. That simply shows the disadvantages of national service, and is a grotesque example. However, it means that I am familiar, as the noble Lord, Lord Glentoran, indicated, with the importance of not hobbling, fettering or otherwise bridling or limiting the powers of the Armed Forces in their extraordinarily important mission and duties. I am fully aware of that.

I am also fully aware of the fact that this power would be used not frequently but rarely and sparingly. I do not understand why the amendment would be considered to be imposing any significant burden. All it requires is that the officer,

“informs the detainee of the facts which are the foundation of the decision”.

We know already—the Joint Committee has pointed it out, and the Minister has referred to it in correspondence—that Army personnel are quite properly trained on how to do that. I am sure that the Minister would agree that it would be bad practice not to do so. If you exercise a coercive power, there should be some factual basis for doing so. If there is one, one should, without the complications of legal matters, be able to tell the individual the basis on which the power is being exercised. As the Armed Forces are trained in how to do it, and since it is not a legalistic amendment, I cannot understand why it would be objectionable.

If the Minister said that it is not necessary to include it in the Bill because it will be made perfectly clear in prescribed guidance to the Armed Forces that this is what they should do in practice, that would give some flexibility and would not involve insertion in primary legislation. That might be a sensible way of dealing with the problem. I see no reason why published guidance—it would need to be published, so citizens would know where they were—could not achieve the same objective. It would not technically be prescribed by law, but I do not think the European Court of Human Rights would worry about that, if the guidance was authorised by a Minister and was clearly prescribed in that sense.

If the noble Lord will allow me, this is probably repeating something that I said earlier. In some ways, it meets the point that the noble Lord is making. Currently, members of the Armed Forces give some indication of why they are arresting an individual. They say why they are doing it. We believe that a statutory obligation would provide a route for challenging an action by the Armed Forces. I am about to take advice on this but I am assuming that, while the training is not equivalent to that given to a police officer, anyone making such an arrest and saying something would have gone through some process. We will look at guidance being given to the military as an option but I cannot guarantee anything.

Clearly, the forces are trained in this matter but not to the extent that police officers are. Something may be written down concerning what should be said but I do not know and we will check on that. I am a non-lawyer but I know lawyers and I suspect that the military would be told, “Say the minimum possible consistent with the circumstances because there’s no need to say any more. A police officer is going to come and carry out the arrest or the release”. We will certainly check what guidance or training, if any, is given to the military and what words are used, but I believe that at the point of arrest they would ordinarily say the words that I have just given and would indicate why they were arresting the individual. We believe that putting that on a statutory footing in the Bill would open up all kinds of difficulties in a fast-moving situation—the context is Northern Ireland and subsection (1)—but we will look at that.

One wants to avoid the situation described in an American short story where a father is driving his daughter through some urban jungle and the daughter keeps saying, “Daddy, where are we?”. He gets more and more angry with her and eventually the story records the words, “‘Shut up’, he explained”. One wants to avoid that kind of approach. In fact, I am sure that if anyone was asked why a coercive power was being used, they would never not give a reason. But the point of the amendment will be achieved if common sense and reasonableness are embodied in the guidance.

I remember that during my period of national service the Manual of Military Law gave detailed guidance on grave and weighty matters concerning war crimes, crimes against humanity and so on, and it also detailed matters of this kind. That manual no longer exists but I know that the Armed Forces are given careful written guidance. Provided that the guidance made clear the commonsense position and said, “Don’t exercise a coercive power without explaining to the citizen the factual basis of what you are doing”, and provided that the citizen knew that that was good practice, that would meet the point of the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clause 22 [Entry]:

[Amendment No. 37 not moved.]

moved Amendment No. 38:

As the noble Lord said, the thrust of the amendment is to extend the written authorisation procedure incumbent on the police to the Armed Forces before the power of entry can be used. This is in no way a criticism of the noble Lord, but I emphasise that this applies only to the power of entry, not the power of search. The clause is quite specific on that.

The power is already limited. It only provides for entry, and may be used only when it is considered necessary in the course of operations for the preservation of peace or the maintenance of order, as set out in subsection (1). I repeat what I said in the previous debate: because of the changing role of the Armed Forces in Northern Ireland, these exceptional powers will be used only occasionally by the Armed Forces. It is important to consider that the Armed Forces operate differently from the police, and would not be as familiar with the more complex authorisation procedures. As I have said, they are not trained in the law in the same way as a police officer. We are therefore justified in simplifying the power for the Armed Forces to ensure that they can use it effectively. If the power were exercised without appropriate authorisations in place, entries made under it and subsequent actions would, of course, be illegal. That is why I cannot accept the amendment, looking at it in the context of Northern Ireland, the changing nature of the Armed Forces and the narrow powers in the clause.

I am grateful. We will obviously need to reflect on that answer. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 to 42 not moved.]

Clauses 22 and 23 agreed to.

Schedule 3 [Munitions and Transmitters: Search and Seizure]:

moved Amendment No. 43:

On the noble Lord’s final point, there is some time between now and the final stages of the Bill—after Easter—and I shall do my best to ensure that that happens. We cannot have a mature consideration on Report unless we get as much of the guidance available to noble Lords as possible.

We have certainly considered the Article 5 compatibility of the power, but the amendment would affect the operational effectiveness of the police and Armed Forces. It would simply limit the powers in paragraph 3 of Schedule 3, which seeks to ensure that searches for munitions and transmitters are not disputed by limiting their duration to two hours, extendable to four. The power currently sits at four hours, extendable to an absolute maximum of eight. Where the authority of a senior officer or member of the Armed Forces has been sought, they must reasonably believe that the extension is necessary to carry out the search or ensure that it is not frustrated.

I shall be reasonably brief, but I first provide some background on the use of the power. It is intended to ensure that important searches are not disrupted. Police officers may face people standing in their way, running around the house, moving objectives and inviting everyone from the neighbourhood in for a cup of tea. That is a perfectly civilised thing to do, but it would completely frustrate the objectives of a search. It could mean that a gun remains in the hands of criminals or terrorists.

Both the police and the Armed Forces seek to ensure that powers are used in a proportionate way. They do not walk into a house and simply impose the measures. Where they are not necessary, they do not use them. I do not think that I would be contradicted if I said that the Police Service of Northern Ireland is already one of the most human rights-aware police forces in the world because of its experience over the past 30 to 40 years. But both the police and the Armed Forces will be providing additional guidance to their officers and soldiers to reinforce the proportionate and limited manner in which this power must be used. I will share that guidance with the House.

Accepting the amendments would mean that the complex and detailed searches of houses that may need to be carried out could not be done without disruption. We have worked closely with the police and Armed Forces to ensure that the four-hour limit, extendable where absolutely necessary to eight, is the minimum length of time necessary. We are not seeking a longer period than is necessary. The exercise of the powers would amount to a restriction of movement rather than the deprivation of liberty in most instances. As was said on a previous amendment, if the use of a power did engage Article 5, it would be compliant with the European Convention on Human Rights because the use of the power is necessary to secure fulfilment of an obligation prescribed by law. In paragraph 8 of Schedule 3, there is an offence of obstructing or frustrating a search under the powers in the schedule. Therefore, there is an obligation to comply with police or Army orders to co-operate and not to frustrate a search. We will obviously return to this matter at Report and I will make sure that we have the guidance well in advance of the debate so that proper consideration can be given.

Since this is the last amendment with which I will be troubling the Committee, I would like to say a few words. This House has an extremely good procedure in the Grand Committee. It enables us without votes to go through a Bill in this way. It also enables the Scrutiny Committee, which serves both Houses, to have its points put to the Minister and for him to answer those points in this Committee before we return at Report. Unfortunately, the other place does not have a similar procedure, nor are Members of the other place as interested—maybe that states too highly the interests of people in this Committee—in the subject matter that we have been discussing today as are noble Lords.

It is important to say that because I am sure that the Joint Committee on Human Rights is extremely grateful that it has this opportunity through Members of the House to debate and discuss these matters with the Minister. The product of what we do is significant, not only because it may be considered by our courts and the European Court, but, above all, by the general public and by the police and Armed Forces. We are extremely grateful to the Minister for the way in which he has answered these points and I am sure that our Committee will reflect further.

Before the noble Lord sits down, I draw his attention to the fact that, while it is certainly true that a greater number of Members of the other place are not as keenly interested in the detailed legislation as the noble Lord and his colleagues, it is not true of all such persons. I speak as someone who served in every Home Office Standing Committee from early 1992 until my party translated me to a higher field. I found in those committees, dealing with a succession of Bills, that there was a certain consistency of personnel and a constant interaction of and discussion between Members on the Opposition Benches and the then Minister and his officials. There was a degree of scrutiny, much of it very fruitful. But I understand that all of that has been completely disrupted by things called reforms to procedure that have helped to neuter the other place.

The other benefit of your Lordships’ House, including in Grand Committee, is that we are self-regulating, and that means that we stick strictly to the amendments before us.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 44 and 45 not moved.]

Schedule 3 agreed to.

Clauses 24 to 37 agreed to.

Schedule 4 agreed to.

Clauses 38 and 39 agreed to.

moved Amendment No. 46:

I have a very similar amendment, although it looks rather neater and shorter than the amendment moved by my noble friend Lady Harris. Both amendments would impose sunset clauses on the extra powers for the police and Army. Our amendment seeks to make the provisions in Clauses 20 to 39 cease at the end of next year. They can be extended in whole or in part for up to a year or modified by affirmative order if the Secretary of State so wishes. The timescales are given for probing purposes. The substantive point is that we think there should be a sunset clause to these powers, and perhaps we can harden up on the date when we have heard what the Minister has to say.

Before I respond, perhaps I may point something out. I know that the noble Lord, Lord Lester, will have read the report of our proceedings on Monday, but I should mention that my noble and learned friend the Attorney-General gave a clear commitment that if Members of the Committee require any meetings on Clauses 1 to 12, which, I am pleased to say, he is taking through the House, he would be very happy to see them before the next stage of the Bill.

As the noble Baroness said, as did the noble Lord in similar terms in relation to his amendment, Amendment No. 46 provides for the expiry of these powers after 12 months, unless an order subject to the draft affirmative procedure is made. It also includes a power for the Secretary of State to provide by order subject to the draft affirmative procedure that the powers in Clauses 20 to 39 shall cease to have effect or come back into force for a period not exceeding 12 months. Amendment No. 47 provides for the expiry of the powers on 1 December 2008, although with a power of extension for one year.

Put simply, we do not believe that yearly renewal debates of these powers will be an effective use of this House’s time. Parliamentary scrutiny will continue to be provided through the laying of the independent reviewer’s report in the House, and through parliamentary Questions and debates which may be asked and called for at any time and which I or someone else will be responsible for answering on behalf of the Government. The House will still be able to hold the Government to account on this issue—that is the crucial point; as Ministers, we are responsible to the House.

Given that we all agree about the huge progress that Northern Ireland has made, why do we not impose some limit on the duration of these powers? We believe that the powers in the Bill are the absolute minimum necessary for the police and Armed Forces to operate effectively in Northern Ireland.

That environment includes an ongoing threat from public order incidents which are on a different scale from those in the rest of the UK, the specific residual Irish terrorist threat and the threat posed by paramilitaries moving into organised crime. Although we expect the powers to be used rarely, they are just as critical in ensuring the safety and security of the people of Northern Ireland when they are used occasionally as when they are used frequently. I do not expect to see the remaining threat regress significantly any time soon, although I very much hope that I and the Government are wrong in that assessment.

We would argue that these reduced police and Armed Forces powers, balanced by appropriate safeguards, are not now so exceptional that they require Parliament’s consideration on a 12-monthly basis, as well as the scrutiny of an independent reviewer, whose report will be laid before Parliament on a 12-monthly basis.

Amendment No. 46 also provides the Secretary of State with the power to bring these police and Army powers in and out of force by an order subject to the draft affirmative procedure, whereas Clause 40 simply provides for the repeal of these clauses by order. That is because we believe that, once a power is deemed to be no longer necessary, it should be taken out of use without the possibility of resurrection by secondary legislation, which, in a way, is the test of normality. That would be the Holy Grail: we would remove them from the statute book rather than bring them in and out.

The Bill provides a power for the Secretary of State to repeal the Armed Forces and police powers by order. I can assure the Committee that the reports of the independent reviewer and the continuing monitoring of the use of the powers will provide sufficient transparency in relation to the ongoing need for their use. The Secretary of State will seek to ensure that the powers remain at the bare minimum necessary for the operational effectiveness of the police and the Armed Forces by repealing any powers that become unnecessary.

I thank the Minister for that response. It seems that we will have to satisfy ourselves that parliamentary scrutiny will suffice in this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 [Duration]:

[Amendment No. 47 not moved.]

Clause 40 agreed to.

Clauses 41 and 42 agreed to.

Schedule 5 [Northern Ireland department with policing and justice functions]:

moved Amendment No. 48:

The restriction to which the amendment relates is not one that we should like to see in perpetuity. However, it seems sensible for the situation to remain as it is for the time being. Having said that we do not wish to see it in perpetuity, perhaps the Minister can explain when the Government envisage this limitation being lifted. Will the Assembly be able to lift it itself or will the Government at the time have to wait for Northern Ireland lobbyists to make a sufficient fuss saying that they want the restriction to be lifted?

I remember dealing with this, or referring to it on Second Reading. I emphasise this point, so that there is no misunderstanding. Clause 42, which is a long clause, and Schedule 5 add an additional possible model for the department of justice to those currently available to the Assembly. It is for the Assembly to choose the model it considers most appropriate. Unusually, the Secretary of State has taken a power to bring forward a draft Order in Council to impose this model as a measure of last resort—it is not our choice, nor is it the first choice, which would be for the Assembly to decide—if the Assembly proves unable to agree on a model, because we would not want that failure to agree to impede progress.

Schedule 5 confines possible candidates for the Minister and Deputy Minister posts in this departmental model—I emphasise, it is this departmental model—to members of the two largest political designations in the Assembly. That is the means by which we are attempting to secure cross-community confidence in the ministerial arrangements. This amendment would remove that stipulation.

The inclusion of a Deputy Minister post in this model is intended as a temporary measure. It is there to promote confidence in the arrangements in the early days of the devolution of policing and justice, but the Government’s hope is that it will not be required in the longer term. That is why the Bill includes a power for the Secretary of State to bring forward a draft Order in Council to abolish the post three years after devolution, unless the Assembly itself decides that it should go before or remain beyond that date. It will be the Assembly’s decision. It is open to the Assembly at any time to put different departmental arrangements in place. Review is built into the system and change is within the Assembly’s power.

I understand the purpose in tabling the amendment. It is because the arrangement in this model precludes members of the Alliance Party from taking a justice post. I know that the leader of the party has raised that point with the Secretary of State, but, as I have said, the purpose of the Deputy Minister position is to provide a counterbalance to the other Minister who is drawn from one of the two largest designations.

I emphasise again that this stipulation applies only to this model, not to a department headed by a Minister selected through the d’Hondt system, or one based on any of the three models set out in the Northern Ireland (Miscellaneous Provisions) Act 2006. In other words, the models are there, which would allow the situation that the noble Baroness described to become a reality.

In the Northern Ireland (Miscellaneous Provisions) Act models, it would be open to the First Minister and Deputy First Minister, acting jointly, to nominate a member of the Alliance Party or another party of the centre ground for a ministerial post, subject to cross-community support in a vote. Of course, this is something the Assembly may wish to take into account when considering which model to adopt.

Obviously we acknowledge the spirit of the amendment, but there are already sufficient departmental models that are not restricted, and there are particular reasons why the one currently before the Committee should remain restricted. As I said, it is not our first choice; it is the last resort if the Assembly cannot agree which of the models to choose. We do not want that failure to impede progress towards devolution when the appropriate time comes.

I am most grateful for the Minister’s very clear explanation. Of course, it is absolutely right that the Assembly will choose the model it wants. I recognise that this is the last resort and a temporary measure.

Perhaps I may stretch the Committee’s patience for a second. This will be the last time I will speak before what I hope will be the successful outcome on the 26th, and I take this opportunity to wish everyone from all communities in Northern Ireland well for the future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 agreed to.

Clauses 43 to 46 agreed to.

Schedule 6 agreed to.

Clause 47 agreed to.

[Amendment No. 49 not moved.]

moved Amendment No. 50:

I support the noble Lord’s remarks and the amendment, understanding his reasoning behind it.

Those who take an interest in Northern Ireland in my party in your Lordships' House and another place are as concerned about this issue as about any of the remaining concerns within the general Northern Ireland political situation. It came up frequently among members of our party in Northern Ireland during the recent elections. The issue must be attended to—and I think I can say that conversations have taken place between the Secretary of State and the shadow Secretary of State about this at different times over the past months. I know that David Lidington MP is very concerned about where the Government are going on this.

I do not wish to be unkind, but I am going to be. I can put it as strongly as this: we do not trust the Government on this issue. It is not often we say that with regard to Northern Ireland affairs, but this is a very serious issue, as the noble Lord, Lord Trimble, pointed out. I do not intend to repeat anything that he said—but somebody in the Northern Ireland Office and the Government has to get a grip on this while there is time.

I had not intended to speak on this issue until I heard the noble Lord, Lord Trimble. He referred to the subject at Second Reading, and I agreed with what he said then—and I agree even more, having heard what he said today.

My party, as I understand it, is fully in support of the principle of community restorative justice schemes, as I think the noble Lord, Lord Trimble, also is. But the rule of law, which is something on which people pontificate very readily, often without understanding why it is at the heart of a democracy, is a principle that transcends everything else. It is a principle well recognised on both sides of the Irish Sea and north and south of the border. If that principle is undermined and these schemes become a mockery of justice, that is extremely serious for the future of the citizens of both islands and countries.

I am sure that my view will be reflected by my party, although I am now speaking for myself. The rule of law first requires, as the noble Lord, Lord Trimble, said, a legal basis for these schemes, so that they do not suffer from the vice of extreme informality with all the dangers that that implies. Secondly, there must be prescribed criteria for the scheme, including requirements that those who administer this form of justice are qualified, independent and impartial in the sense required by natural justice. Thirdly, there must be adequate safeguards against abuse of the procedures. Whether a republican, unionist or any other political interest group was involved, and whatever their associations in the past, I would say of any of them that these principles transcend party and societies. They apply now with particular force in Northern Ireland, as it has moved from a period of grave undermining of the rule of law to what we all hope is going to be a healthy democracy based on the rule of law and an end to lawlessness, terrorism and the scourge of violence that has afflicted both communities.

For the sake of all the people of Northern Ireland, I hope that the Government will respond to the noble Lord’s amendment before we debate the matter at the next stage.

I agree with what has been said about the community restorative justice schemes in republican areas, but we must not forget that in Protestant areas that are generally law-abiding we have been scourged with Protestant paramilitaries who are no better than those in the republican areas, some of whom have committed the most heinous crimes. We need to watch out on both sides of the divide in Northern Ireland that we do not let those people into the schemes. I am sure that the noble Lord would agree with that also.

I am most grateful for the contributions, and to the noble Lord for raising the issue. I was present when he raised the issue on Monday, but at Question Time we cannot have debates like those in Grand Committee. I have no doubt that we shall return to the matter on Report.

I shall give a considered response and answer some of the points raised, but the one thing that I dare not do is get involved in comments relating to any particular case or scheme. The fact of the matter is—and the noble Lord, Lord Glentoran, is quite right in saying this—that the onset of a degree of normality and, I hope, the successful devolution of power in Northern Ireland on Monday will turn the spotlight on to normal activities and processes.This is certainly one of them. The next stage after this would be the devolution of policing and criminal justice at some time in the future—I do not have dates, or anything like that. The fact is that this will be a hot issue, and it has to be one that everybody is very comfortable with, because people were not comfortable with the concept of restorative justice when it was first raised, even in England. It had to be explained by example and provision. The noble Lord, Lord Trimble, said that schemes and designs that fit the mainland may not be applicable in Northern Ireland, because of the history. As the noble Baroness has just said, it works both sides of the community.

The community-based schemes are voluntary bodies which, in common with residents groups and other organisations in the voluntary sector, operate lawfully, independently and without regulation by the statutory sector. The schemes are primarily involved in seeking resolutions to issues of concern to local residents—for example, in the areas of neighbourhood mediation, community development and capacity building, race relations and provision of positive activities aimed at diverting youths from engaging in anti-social behaviour. Where their work does engage the statutory sector is in their role in mediating reparative interventions between the perpetrators and victims of low-level crime in the local community. This represents only a small proportion of their overall workload.

The work of the schemes has developed to deal with issues of low-level criminal offending. For this reason, the Government published a protocol last month—I think that it was 7 February—setting out standards with which community restorative justice schemes must comply, including direct contact with the police and a strict inspection programme by the Criminal Justice Inspectorate. The protocol already delivers the intended purpose of the proposed new subsection (2) of the noble Lord’s new clause.

The protocol was developed following extensive public consultation with all interested parties, including the political parties and organisations within the statutory, voluntary and community sectors. The draft protocol, on which we consulted, was also the subject of a thorough investigation by the Northern Ireland Affairs Committee in the other place. That report endorsed the draft protocol as the basis for encouraging the development of community restorative justice schemes and the building of confidence in them and did not make any recommendations relating to the statutory regulation of the schemes.

The Government now firmly believe that in this finalised protocol we have a structure which will provide for effective engagement between community-based schemes and the criminal justice system in dealing with low-level offending in a manner which will command public confidence in the process. Without that, they will not work.

Correct me if I am wrong, but I think that the engagement of the police can be knocked out if the offender consents to be treated by the people operating the scheme without that involvement. My understanding is that there is no clarity in the protocols with regard to the exclusion from the administration of the schemes of persons with serious criminal convictions.

I probably will not be able to answer all the points put by the noble Lord, Lord Trimble, but I have two sets of notes and I shall move between both of them. I had a set prepared for yesterday in case certain things arose, and that set has more precise information in it than I have in my speaking note.

I should make it absolutely clear that the police have to be involved in all cases. Community restorative justice schemes have no policing function, and any leader or anyone employed by such a scheme who says so is a liar. They have no policing function—we have to get that absolutely clear—and the police are required to be involved in all cases. That is the position. Whatever anyone else is told to the contrary, I am giving the position as stated. There are rules about who can be involved, and I shall come to them in a moment.

We have the finalised protocol, and we think we have a structure that will command public confidence. However, if there is not public confidence, the schemes will not work. That is quite clear. Those running the schemes have to build public confidence or the schemes will not work. They will be permitted to deal only with cases referred to them by the Public Prosecution Service for Northern Ireland. They are not vigilante groups making local rules; they must conform to due process.

The protocols set out a process for ensuring that those involved with schemes dealing with low-level criminal cases are suitable persons. Those who are engaged in criminality or paramilitary activity have no place in such schemes. I cannot go over individual cases, such as those to which the noble Lord, Lord Trimble, referred, but conviction for certain offences related to children and young people will render individuals unsuitable, and I do not think there is any time limit on that. There are other points about people who have committed an arrestable offence after 10 April 1998—that is an important date that applies to a lot of other issues—or who has been sentenced to a term of imprisonment for such an offence in the three years before making an application. Criminal convictions will not be the only criteria considered. Any information from the police or other statutory sources that suggests that an individual is involved in criminal or paramilitary activity will be grounds for finding him unsuitable.

The finalised protocol very clearly identifies the requirement for schemes to comply fully with the rule of law, spells out in unequivocal terms the centrality of the police in the process and provides stringent safeguards to protect the rights of victims and offenders. Failure by schemes to comply with the standards in the protocol will result in the Government withdrawing their recognition of a scheme. It may be that some people want to freelance, but public confidence will come about only if the Government’s imprimatur is there. Otherwise, people will know that the scheme is not legitimate.

Given the voluntary sector status of schemes and the stringent requirements of the protocol, including the provision of an independent complaints mechanism and a rigorous inspection regime, the Government do not believe that statutory regulation would be proportionate or deliver more effective outcomes. Schemes must comply not only with the protocol but also with the law generally and are under an obligation to report crime to the police. It is therefore not necessary to accept an amendment that states that it is unlawful for a scheme to operate other than in accordance with the protocol. Schemes that do not seek accreditation will not receive any support from the statutory sector. While such schemes operate within the law, they cannot be required to refrain from working with victims and offenders, but the police will investigate any complaints which are received about their activities—I think that is an obvious question as the police are at the centre of the process, but the schemes are voluntary and seek accreditation because it brings government funding with it where the criteria are met.

If a scheme is successful in an application for government funding, it will be a condition of the grant that the scheme is subsequently successful in gaining and retaining accredited status. Government funding streams will be stopped immediately if a scheme fails to meet the full requirements of the protocol and is recommended for de-accreditation. The Criminal Justice Inspection Northern Ireland will verify that accredited schemes are conforming to the requirements of the protocol, and schemes will be inspected prior to accreditation and regularly and randomly thereafter.

I have said that, if schemes do not sign up to the protocol or meet the standards, they will receive no recognition or assistance from the statutory sector. They will not be able to claim government support, and the police will investigate any offences which may be reported in connection with how the schemes operate.

So several rules and constraints are set out in the protocol, but I am not saying that it is perfect. This is a new concept. It is relatively new—within the past decade—on the mainland of England, Scotland and Wales, and it has had a lot of success. People in any community will be naturally suspicious about it to start with. Given the situation in, and background of, Northern Ireland, people will be even more suspicious, but the schemes will not be set up to create no-go areas where policing is done by local self-appointed vigilantes. That is not the situation. I make it absolutely clear that there is no policing role in these community restorative justice schemes. The police are required to be involved in all the cases; otherwise, the accreditation will disappear.

Clearly, this issue will be ongoing. The protocol has only just been launched and it is hoped that we are entering a new phase in Northern Ireland. I have no doubt that this House, the other place and the Select Committee, which has carried out one inquiry, will want to review the operation of the schemes after a reasonable period, and no doubt the committee will report on its findings. That is our current position. I wish everyone well in these schemes. It is a difficult situation but they provide a good service to the community and they can be made to work in a fair and open way in which the public have confidence. However, I repeat: if the public do not have confidence in them, they will not work, and no amount of cajoling, support by the Government or weasel words from anyone will convince the public otherwise if confidence is lost. It is up to those running the schemes and employed by them in all areas of Northern Ireland to ensure that they gain and maintain public confidence.

Towards the end of his comments, the Minister said that there will be no no-go areas and no vigilante groups operating their own informal “justice”. But that is exactly what has been happening over the years in parts of Northern Ireland. Under the arrangements that the noble Lord described, it is likely that the vigilante groups that operate in certain localities will be, and are in the process of being, rolled over into community restorative justice schemes. That is the reality.

The reality is also that the provisions in the scheme facilitate the rollover of these vigilante groups into CRJ schemes. The Minister’s references to people’s suitability and to offences show that people who were leading members of paramilitary organisations will be involved because the guidelines that the Minister quoted allow for it. Offences committed before a certain date will be disregarded. He said that people involved in paramilitary activity will be excluded, but I recollect from Northern Ireland Questions in another place a Northern Ireland Office Minister saying that when he said “paramilitary activity”, he meant “current paramilitary activity” and not past activity. The loophole there is huge and it will enable these schemes to be rolled over.

I shall look very carefully at the protocol, which, I must confess, I had not caught up with. I am going on my recollection of things that have been said and done in the consultation phase. Certainly my recollection of the draft protocol when it went out to consultation was that it was also full of loopholes.

I come back to the fundamental point that if there are guidelines and principles set out in this, let us have those principles enshrined in law. Let us not have them subject to interpretation by officials or Ministers in the NIO or whatever justice department may succeed it in future. Let us have them set in such a way that they can be enforced on the department itself so that we do not have a situation in which the department fails to insist on the application of those principles. That is why I come back to the point that a legal framework is necessary for something that is going to form part of the legal system, even in a limited way. To do it without a legal framework is to leave the door open to abuse. To say that everything is going to be solved by the valiant efforts of Kit Chivers as inspector is not entirely realistic.

We have had a discussion and time is getting on. I do not want to keep noble Lords who have attended this debate, for whose presence and support I am indeed most grateful. I am not going to press the matter further, but we shall reflect on this and come back to it. As it stands, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 agreed to.

Schedule 7 agreed to.

Clauses 49 and 50 agreed to.

Clause 51 [Commencement]:

[Amendment No. 51 not moved.]

Clause 52 agreed to.

Bill reported without amendments.

The Committee adjourned at 6.42 pm