Wednesday, 21 March 2007.
The Committee met at quarter to four.
[The Deputy Chairman of Committees (LORD TORDOFF) in the Chair.]
Justice and Security (Northern Ireland) Bill
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.]:
24: Clause 15 , page 13, line 17, leave out “means” and insert “includes”
The noble Lord said: I begin by apologising for the fact that I was not able to be here on Monday. At least I have a reason, or even an alibi: I had to be in Strasbourg on a grave and weighty human rights matter. I am very sorry that I was not here because my function is to act on behalf of the Joint Committee on Human Rights and to raise those issues that we have raised in our report on the Bill so that the Minister can reply; the Committee will no doubt want to consider the debate as a whole as we go through each of the issues that the Joint Committee raised.
We are largely concerned, in this amendment and others, with the powers of the Northern Ireland Human Rights Commission. The amendments have been grouped in a slightly odd way, so that one is considering bits and pieces rather than the whole context of the problem. I say by way of brief introduction that, when considering the powers of this commission, it is important to have regard to the kind of powers that are enjoyed by the existing commissions dealing with human rights, notably the Equal Opportunities Commission, the Commission for Racial Equality and the Northern Ireland Human Rights Commission.
The amendment is one of several amendments—we shall come to others, such as Amendment No. 25, later—concerned with access to places of detention. I remind the Committee of what the Joint Committee on Human Rights drew to the attention of both Houses about this, beginning with paragraph 1.67 of our report. It said:
“In relation to the restrictions placed on the Commission's new power to access places of detention, the Government argues that the Northern Ireland Prison Service has been subject to inspections and external reviews from 17 different bodies since 2004, and that it is right that ‘places of detention have the opportunity to suggest that an additional investigation is not necessary if it has only recently co-operated with an investigation by another body in very similar territory’”.
The Government also pointed out that,
“despite the fact that a place of detention will have a 15-day period during which it can appeal against a visit, once that period is over or any application against the use of the power has been determined in the Commission's favour, the Commission will have unrestricted access for the purposes of the relevant investigation. The Commission”—
that is, the Northern Ireland Human Rights Commission—
“argues, on the other hand, that its power of access to places of detention must allow for unannounced visits if it is to be effective as a means of discouraging or uncovering human rights violations. It also points out that, unless it has announced a formal investigation, it will be reliant on the permission of the relevant authorities to undertake a visit in pursuance of its other statutory responsibilities.
“In response to our question—
that is, the Joint Committee’s question—
“the Government did not provide us with its assessment of whether the power to access places of detention as set out in the Bill was sufficient to enable the NIHRC to be part of the UK's National Preventive Mechanism (NPM) under OPCAT”—
that is, the optional protocol to the convention against torture—
“Instead it said that discussions on the nature of the NPM and the various bodies which should be part of it are still in progress and no final judgment has been reached. Article 20 of OPCAT requires States Parties, inter alia, to grant NPMs ‘access to all places of detention and their installations and facilities’ and ‘the liberty to choose the places they want to visit and the persons they want to interview’”.
That is the necessary background. The Joint Committee on Human Rights expressed the view that the restrictions placed by the Bill on the commission’s powers to access places of detention are,
“far too onerous to enable it to carry out its statutory responsibilities in an effective manner. We consider that an unrestricted right of access to places of detention for the Commission, subject to the redress of judicial review if the Commission uses its power inappropriately, is necessary to enable the Commission to protect the human rights of those in the custody of the state. We also consider that the proposals in the Bill make it very doubtful whether the Commission could form part of the UK's National Preventive Mechanism under OPCAT”.
I hope those issues are plain and obvious to Members of the Committee. I have never seen in any statute such a hobbling of the powers of a body that is given an important independent task, especially when it is to protect human rights. Certainly, one does not find similar hobbling of the equivalent body in the Republic of Ireland or of any human rights commission in any other jurisdiction with which I am familiar—South Africa, New Zealand, Australia or India.
If I can put it not too pejoratively, the question that arises is why the Government have so little confidence in the wisdom of a commission which will be subject to judicial review if it misuses its powers that they find it necessary to hobble the commission by restricting its powers of access and by producing a highly bureaucratic and cumbersome mechanism that must be gone through when an investigation may already have been carried out by another body. If I think about bodies that I know better, such as the Equal Opportunities Commission or the Commission for Racial Equality, they are free to investigate suspected discriminatory practices irrespective of whether other bodies, such as the Her Majesty’s Chief Inspector of Prisons or the ombudsman, have carried out an inspection. The committee takes the view that having willed the creation of a commission of this kind, taken care about selecting its appointments and recognised that it is fully subject to judicial review if it misuses its powers, these restrictions are not appropriate or necessary. The committee very much hopes that the Government will remove these shackles.
The other important aspect is the optional protocol to the convention against torture because it is extremely important that the United Kingdom is able to set a good example about access to the international mechanisms provided, especially on something as serious as torture. It is therefore vital that, if the taxpayer is spending money on a Northern Ireland Human Rights Commission, that body should be able to be part of the UK’s national preventive mechanism. We have explained our serious doubts about whether that would be possible unless these shackles are removed.
Amendment No. 24 is one of a series of amendments relating to the same problem, and I shall not make the same speech again on the other amendments. This amendment is a limited amendment because it provides that the places of detention referred to should be in an inclusive list, not in a closed list.
The Northern Ireland Human Rights Commission supports what I have just said, which I said not just on my own behalf but on behalf of a unanimous Joint Committee on Human Rights. I beg to move.
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 fully appreciate the motivation behind the two amendments. I do not think that the words “hobble” and “shackles” are appropriate and probably go too far. We think that the amendments would create uncertainty, whereas the system we have adopted gives clarity and certainty, as well as flexibility. We thought carefully about how to give the commission access to places of detention as part of its investigations. It would be possible to define places of detention, but we rejected this option. We were concerned that it would be more open to legal challenge and would create uncertainty for the commission and public authorities as to which places are covered by the legislation. We therefore decided to list all the possible places of detention that can be accessed, which gives us certainty and clarity. We have also allowed an order-making power which would allow us to add to the list if any places have been missed or new places are established, which might be an issue. I do not foresee that, but it is possible that there could be new places that would not be subject to a definition, which is the reason for our approach.
The commission is not an enforcement body, which must be at the forefront of our minds. Obviously, there are three debates to be had on this issue. However, it is worth while doing this because the noble Lord, Lord Lester, referred to it and the Government’s response. Seventeen bodies have inspected the Northern Ireland Prison Service, including joint inspections by the HM Chief Inspector of Prisons and the Criminal Justice Inspector; the Criminal Justice Inspection Northern Ireland in its own right—that is, on thematic inspections; the Northern Ireland Human Rights Commission; the Northern Ireland Commissioner for Children and Young People; the Mental Health Commission; the Regulation, Quality and Improvement Authority; the Northern Ireland Affairs Committee; the Prisoner Ombudsman; the Interception of Communications Commissioners; the Equality Commission; the Office of Surveillance Commissioners, the International Red Cross; the United Nations Committee against Torture; the Adult Learning Inspectorate; the Health and Safety Executive; the Independent Monitoring Board; and the Health Promotion Agency. That is a substantial number of inspections, all of which have a very important role, which is worth putting on the record.
We used this approach because, clearly, powers to investigate access to prison and places of detention are very important and we do not want lots of legal arguments about places of detention before investigations take place. We have tried to list all the places. If any Member of the Committee thinks that we have missed any out, we would be very pleased to receive a note on that so that we could consider them before Report stage. We have also built in the possibility, under new Section 26C(12), that the order can be amended to add other places if any have been missed or if new places are created.
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.
25: Clause 15, page 13, line 40, leave out from beginning to end of line 25 on page 14
The noble Lord said: I have essentially spoken to the substance of the amendment, which leaves out from the beginning of line 40 on page 13 to the end of line 25 on page 14, dealing again with the place of detention. Again, these lines are highly bureaucratic and, as far as I am aware, unprecedented in Human Rights Commission or Equality Commission legislation.
First, the commission may specify the place of detention in the terms of reference of the investigation, only if it has,
“considered whether the matter in respect of which the place is specified has already been sufficiently investigated by another person”.
So it must presumably look at the other 17 bodies, and see what it thinks of what they have been doing. It must then decide that those 17 bodies have not considered the particular matter. In subsection (5), the Bill goes on to say that the power to investigate,
“under subsection (1) may not be exercised”.
We then have a series of provisions which I find unnecessarily bureaucratic. It seems to us that they could simply be dispensed with altogether:
“during the period of 15 days beginning with that on which copies of the terms of reference of the investigation are provided … or while an application under subsection (6)”,
has been made to a county court and,
“has not yet been determined”,
for example. There is then a power for the country court to,
“on the application of a person who appears to the court to be responsible for a place of detention specified in terms of reference—
(a) order that the power under subsection (1) may not be used to enter the place of detention;
(b) impose restrictions on the exercise of the power in relation to the place of detention;
(c) require the Commission to amend the terms of reference.
(7) An order may be made under subsection (6) only if the court thinks that—
(a) access to the place of detention is unnecessary having regard to the purpose of the investigation,
(b) it would be unreasonable to allow the Commission access to the place of detention, or
(c) the Commission has failed to comply with subsection (4) or section 69D.
(8) In considering whether to make an order under subsection (6), and in considering the terms of an order under subsection (6)(b), the court shall have regard, in particular, to the likely impact of the use of the power under subsection (1) on the operation of the place of detention”.
I find it difficult to be polite about that. It seems wholly unnecessary. When the other existing commissions propose to investigate—and they have subpoena powers and all the rest of it—they are fully subject to judicial review if they act unfairly. There have been cases where the commissions have been successfully challenged by judicial review.
I fully understand the needs of fairness and relevance; public law principles ensure that such things must be complied with for every public authority including this commission. But I do not understand these kinds of restrictions and this highly cumbersome procedure. A county court judge, of all people, will have to make decisions of this kind, not a High Court judge who is familiar with issues of public law and excessive powers and so forth. A county court judge will examine the proposed terms of reference, deal with all of that, and look at the other 17 bodies before there can be an investigation into a specified place of detention.
In our report, we regarded all of that as,
“far too onerous to enable [the commission] to carry out its statutory responsibilities in an effective manner”.
I would love to hear why these restrictions are imposed on this commission when they are not imposed on any other human rights body in the United Kingdom, or, as far as I am aware, elsewhere in the democratic world or in relation to the Equality Commission. Unless there is some very special reason, it will look terrible if we approve these kinds of cumbersome and bureaucratic restrictions. I beg to move.
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]:
31: Clause 19 , page 15, line 25, leave out “and” and insert “or”
The noble Lord said: Clause 19 prescribes the period during which the Northern Ireland Human Rights Commission’s powers may operate. As the Bill stands, the commission may only exercise its powers to investigate, call for evidence or visit detention centres in respect of matters arising on or after 1 August 2007.
The amendment is essentially a probing one. When we have heard the Minister’s explanation it may be that there is nothing between us. The amendment would ensure that the commission can rake over subjects from the past, which have no life in the present. We agree that that would not be in the public interest at all. We are concerned about a continuing situation. That is to say, when there is a practice, rule, procedure or something of that order on conduct, after 1 August, which can be explained only by looking at what has happened in July 2007 and before and which is part and parcel of a continuing course of conduct, the commission should then be able to exercise the powers conferred by Clauses 14 and 15, which are the powers of investigation as regards evidence and access to prisons, and so on. The way it is worded at the moment is that the commission may exercise the powers conferred only for the purpose of investigating matters arising and situations that exist on or after 1 August 2007.
The amendment would broaden that, without broadening it so that the commission could rake up matters in the past that have no continuing relevance, by providing only for the purpose of investigating matters arising on or after 1 August 2007, or situations that come into existence or remain in existence on or after 1 August 2007. It may be that the Minister will explain that that is what is already envisaged in the clause, in which case we will be happy. I beg to move.
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 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 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.
Let us suppose that I am pursuing an alleged sex discrimination case on behalf of a woman and I need documents from the past to show a course of conduct by the employer that indicates that the employer systematically treats women worse than men. I then seek disclosure of all relevant documents. If the document is not relevant, the employer will object and the judge will decide whether it is necessary in the interests of justice for that document to be disclosed. Otherwise, I cannot prove my case properly. In fairness to the employer, he would not be able to defend himself properly unless the relevant documents are all before the judge.
The same applies here. I am making up these facts, but let us suppose that there was a gross abuse involving deaths and highly vulnerable women in custody in a particular place. I am trying to load this as emotionally as I can in the right direction. This is not at all amusing and I do not mean to make light of it; on the contrary. Suppose that there have been suicides on a very high rate in that place and there is a question about whether the prison authorities have been doing their job properly in monitoring, supervising and protecting. In addition, let us suppose that there is sheaf of documents showing in the past that what is now being investigated in the present has been going on for some time. The Bill is framed in absolutist terms. It states:
“The Commission may not exercise a power conferred by section 14 to require a person … to provide information recorded before [1st August 2007] … to provide information relating to a time before that date”,
and so on, which is an absolute bar.
All we are searching for is flexibility, a rule of relevance, and a way in which one can write into the Bill that the commission can use the power only if it is relevant or can go to a judge when there is a dispute, and the judge can decide in a perfectly ordinary way, as they do on disclosure and discovery cases now, whether it is relevant. There should be flexibility, which is the real safeguard. We are not arguing that there should be no safeguards, simply that a situation now should be able to be investigated in its context, but not some ancient grievance going back 20 years or so.
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]:
35: Clause 20, page 16, line 6, at end insert “reasonably”
The noble Lord said: This amendment deals with the duration of stop and question. The Bill provides, in Clause 20(1), the police and members of the Armed Forces on duty with the power to,
“stop a person for so long as is necessary to question him to ascertain his identity and movements”.
Members of the Armed Forces are also given a power in Clause 20(2) to stop a person for so long as is necessary to question him to ascertain,
“what he knows about a recent explosion or another recent incident endangering life”,
or what he knows about,
“a person killed or injured in a recent explosion or incident”.
The Explanatory Notes state that this power does not engage the right to liberty in Article 5 of the European convention because it involves stopping a person for a relatively short time to question him, and that does not amount to a deprivation of liberty. In its report, the Joint Committee on Human Rights accepted that:
“It is correct that a short detention pursuant to a stop and search power will not normally amount to a deprivation of liberty”.
However, it points out that,
“the wording of this power to stop and question contains nothing on its face which limits the amount of time for which a person can be stopped. On the contrary, it authorises stopping a person for so long as is necessary to question him to ascertain certain facts”.
The committee pointed out that:
“There is no objective standard on the face of the provision to constrain the very wide power. We therefore wrote to the Minister asking why the power is not expressed in terms of the amount of time that is reasonably necessary”—
which is what this amendment does.
“The Minister in his response relies on the decision of the House of Lords in Gillan to argue that the right to liberty in Article 5 ECHR will not ordinarily be engaged by this power because the exercise of the power will not ordinarily involve a deprivation of liberty within the meaning of Article 5: the questioning would normally amount to no more than a few minutes. Although there is no explicit duration stated in the clause, questioning will only, other than in unusual or special circumstances, be for a very limited time because it can only relate to the matters stated in the clause. The exercise of the power will therefore usually be a restriction on liberty of movement rather than a deprivation of liberty, so that Article 5 does not apply. In any event, argues the Government, addition of the word ‘reasonably’ before ‘necessary’ would not be of any benefit, because it would add nothing to the court’s ability already to decide that detaining the person concerned was not in fact necessary, or that the officer did not in fact believe it to be necessary, which already provide some safeguard against abuse of the power. It would, however, in the Government’s view have a significant disadvantage, namely that it would introduce an element of uncertainty as to the scope of the power, which would affect the operational effectiveness of the police and armed forces in Northern Ireland”.
I make no apology for quoting all that because it is important to put the Government’s view on the record. I now come to the committee’s point of view so that the Minister can respond today and then we can see where we are. In the light of that explanation, the Joint Committee on Human Rights said that,
“ordinarily the use of this power would not engage Article 5 ECHR because the stop in question would be brief. We are concerned about what the Minister describes as ‘the unusual or special circumstances’ in which the questioning lasts for longer. For example, if the officer asking the questions is sure that the person stopped is withholding the information he is seeking to ascertain, he is likely to consider it to be necessary to continue to question him until he has ascertained the information which he is convinced the person is withholding. In those circumstances, it is conceivable that the detention of the person for questioning may amount to a deprivation of liberty so as to trigger the application of Article 5 ECHR. The question which would then arise is whether the deprivation is ‘in accordance with a procedure prescribed by law’ as required by Article 5”.
So the Joint Committee expressed the view, which is the foundation for this amendment, that,
“the lack of any objective standard in the clause conferring the power regulating the duration of the exercise of the power in any particular case gives rise to a risk of incompatibility with Article 5 on the basis that the deprivation of liberty pursuant to the power is not sufficiently regulated by any legal standard. The insertion of the word ‘reasonably’ before ‘necessary’ would remedy this deficiency and enable a court to decide whether the duration of the detention was such as could reasonably be considered necessary to ascertain the information sought. In the absence of such an objective standard on the face of the clause, there is a risk that the power will be interpreted by those exercising it as authorising detention for as long as they consider necessary to obtain what they regard as satisfactory answers to their questions”.
That is the full explanation of where we stand. I beg to move.
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”,
“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]:
36: Clause 21, page 16, line 27, leave out from first “he” to end of line 28 and insert “informs the detainee of the facts which are the foundation of the decision”
The noble Lord said: This amendment concerns information to be provided on arrest. The Bill provides a member of the Armed Forces with the power to arrest and detain a person for up to four hours if he or she suspects that the person is committing, has committed or is about to commit an offence. A member of the Armed Forces making such an arrest is deemed by the Bill to comply with any rule of law requiring him to state the grounds of arrest if he states that he is making the arrest as a member of Her Majesty’s Armed Forces unless the rule of law requiring him to state the ground of arrest has effect only by virtue of the Human Rights Act 1998. Section 28(3) of the Police and Criminal Evidence Act 1984 provides that no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of or as soon as is practicable after the arrest. Article 52 of the European Convention on Human Rights provides that everyone who is arrested shall be informed promptly, in a language that he understands, of the reason for his arrest and of any charge against him. Therefore, the effect of the Bill appears to be to disapply Section 28(3) of PACE for the purpose of this power of arrest, but to leave the requirements of Article 5(2) of the convention in place.
The Explanatory Notes tell us that the purpose of the power is to allow sufficient time for a police officer to attend, to re-arrest the person and charge them with an offence if appropriate. The reason for not requiring them to provide detailed legal grounds for arrest is said to be that they are not expected to know the law as intimately as a police constable. In his response to a letter from the Joint Committee on Human Rights, the Minister made clear that the rationale for the provision is to not impose excessive requirements on the Armed Forces. The Minister said that,
“a simple to use power of arrest that is effective in the range of circumstances in which it might arise, and is suitable for members of the forces (who will not have the extensive experience of the police in exercising such powers) is essential”.
The Government’s concern is that the operational effectiveness of the Armed Forces would be impaired if the requirement were too onerous. If the grounds of arrest were wrongly stated by a member of the Armed Forces, it could mean that the arrest would be held to be unlawful and any actions to restrain the individual may also be illegal. If members of the Armed Forces became reluctant or uncertain about the use of these powers, it would hamper their ability to react appropriately in complex and fast-moving situations.
The Minister is satisfied that the clause satisfies the procedural requirement in Article 5(2) of the convention. The Joint Committee accepts that, according to European Court of Human Rights case law interpreting Article 5(2), it is not always necessary for the relevant information to be given at the very moment of arrest, provided it is given within a sufficient period following the arrest, and the extent of the information required depends on the circumstances. For example, the committee observes, an arrested person can be taken to a police station before being given the information.
However, precisely what Article 5(2) requires is likely to depend on the circumstances of the particular case. In the committee’s view, if there are no good operational reasons for delaying the provision of the requisite information, and it is clear that the information was available to—and understood by—the arresting officer, there would seem to be a risk of a breach of Article 5(2) if that information were not provided to the detainee until four hours later. Since the requirements of Article 5(2) have been elaborated in judgments of the European court interpreting the standard contained in Article 5 in the circumstances of particular cases, the committee’s view is that it is questionable whether the provisions of the Bill as drafted provide enough guidance to members of the Armed Forces about what type of information they must provide on arresting somebody and precisely when they must provide it.
The committee then comes to the point in its report. Bearing in mind that the member of the Armed Forces making the arrest must suspect that the person arrested has committed, was committing or was about to commit, an offence, in the committee’s view there does not appear to be a good reason, in principle, why the arresting officer should not be required at the very least to inform the detainee of the facts which are the foundation of the decision to detain, and asked whether he admits or denies the allegations. This would reduce the risk of findings of incompatibility with Article 5(2) in particular cases.
The committee notes from the Minister’s response that, where a person is detained by a member of the Armed Forces, they will be informed in general terms of the reason for their arrest. This will normally be a reference to the facts giving rise to the arrest, such as the individual being seen throwing a petrol bomb. Soldiers are already given guidance in training to explain the factual grounds giving rise to the arrest. The committee welcomes this, which it thinks is likely to satisfy the requirements of Article 5(2) in most cases. We recommend that, to reduce the risk of incompatibility with Article 5, that good practice be turned into a requirement of the Bill. That is what the amendment does, hopefully modestly, by requiring the arresting officer to inform the detainee of the facts which are the foundation of the decision. That is not complicated and technical, but quite straightforward. I beg to move.
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.]
38: Clause 22, page 17, line 1, after “A” insert “member of Her Majesty’s forces or a”
The noble Lord said: This amendment is concerned with the breadth of the powers of entry on to premises. The Bill provides the police or a member of the Armed Forces with a power to enter premises, including a vehicle, without a warrant if he or she considers it necessary,
“in the course of operations for the preservation of the peace or the maintenance of order”.
A police officer requires authorisation from an officer of at least the rank of superintendent, unless it is not reasonably practicable to obtain such authorisation. There is no equivalent requirement for authorisation by a senior officer where the power is exercised by a member of the Armed Forces.
The power to enter premises without a warrant is very broadly worded and contains no objective standard. The Government’s reasons for that are the same as in relation to the provisions that we have already considered: introducing objective words into the formulation of the power would impair operational effectiveness because it would introduce uncertainty into the scope of the power; and officers may be prevented from taking decisions which are operationally necessary because they are not certain whether a third party will consider it to be reasonably necessary.
The Government also claim that oversights and safeguards exist, even with such a subjectively worded power, in that the officer’s factual basis for believing the action to be necessary can be tested in court, and it would be open to a court to find that it was not necessary or that he did not believe it to be necessary.
In the view of the Joint Committee on Human Rights, however, judicial control over subjectively worded powers is significantly weaker than where the definition of the power contains an objective standard such as reasonableness. We recommend that the power of entry in Clause 22 should be expressed in objective terms, such as where the police officer or member of the Armed Forces reasonably considers it necessary, in order to reduce the risk of the power being found to be incompatible with Article 8 of the convention. We also recommend that there be an equivalent requirement of authorisation by a senior officer where the power is exercised by a member of the Armed Forces. The amendment is therefore to be taken with Amendments Nos. 39 to 42, dealing with the same matter, to which I have just spoken. I beg to move.
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]:
43: Schedule 3, page 37, line 29, leave out “four” and insert “two”
The noble Lord said: The amendment concerns powers of detention during the search of premises. The Bill provides the police or members of the Armed Forces with the power to enter and search premises to ascertain if there are munitions or wireless apparatus there unlawfully, where there is a reasonable suspicion that such items are present. The Bill gives the officer carrying out such a search the power to require a person to remain on the premises for up to four hours, extendable to eight hours in total, if he reasonably believes it necessary, to carry out the search or prevent it being frustrated.
The Explanatory Notes acknowledge that this power could be used in such a way as to engage Article 5 of the European Convention on Human Rights, because the requirement to remain on the premises could in theory last for up to 8 hours. However, the Explanatory Notes state that, in practice, individuals would be allowed to leave the premises or move around them subject to some restrictions and for a much shorter time, and that guidance will be issued to police and the Armed Forces on the appropriate use of this power so as to ensure that these powers are not exercised in a way that engages Article 5. That acknowledgement of guidance is useful in the context of our earlier debate.
Requiring a person to remain on premises for up to eight hours during the conduct of a search of those premises is clearly capable of amounting to a deprivation of liberty for the purposes of Article 5. The committee therefore asked the Minister which of the enumerated exceptions to the right to liberty in Article 5 the Government relies on in cases where the exercise of the power amounts to a deprivation of liberty. In his response, the Minister acknowledges that the power could clearly be applied in ways and for a duration which would engage Article 5, and argues that the deprivation of liberty in such a case would be within the scope of Article 5(1)(b)—that is, in order to secure the fulfilment of an obligation prescribed by law. That is because—applying the reasoning of the noble and learned Lord, Lord Bingham of Cornhill, in Gillan—it is an offence to obstruct or frustrate a search of the premises, and any detention is therefore to secure effective fulfilment of that obligation.
The Joint Committee accepts that this appears to be the effect of the comments of the noble and learned Lord, Lord Bingham, in Gillan. However, as the committee commented in its recent report on the Offender Management Bill, it finds this to be a circular argument of potentially alarming breadth, and doubts whether the same view would be taken by the European Court of Human Rights. In the committee’s view, the exception to the right to liberty in Article 5(1)(b) has been given a very narrow scope by that court, to cover only those situations where a person is detained to compel him to fulfil a pre-existing, specific and concrete obligation which he has until then failed to satisfy. We doubt that it covers deprivation of liberty for the purposes of a search, where the only obligation prescribed by law is the obligation to co-operate with the search. We therefore doubt whether detention for up to eight hours during a search of premises is compatible with the right to liberty in Article 5 of the convention. That is a criticism, with respect, of a decision of our own courts, and a suggestion that that view would not be taken by the Strasbourg court.
The committee has also frequently commented that conferring a power of this width, capable of interfering with the right to liberty, and leaving it to as yet unpublished guidance to regulate the use of that power so as to avoid incompatibility, is not satisfactory because it deprives the committee and Parliament of the opportunity to subject the scope of the power to the careful scrutiny its subject matter demands. We asked the Minister whether he would make a draft of the guidance available, and welcome his indication that he intends to make a draft of the guidance available during the passage of the Bill. It would be most helpful if that could be done for the previous issue as well as this one. I am not suggesting that the guidance would take statutory form, but it would at least be helpful for parliamentary scrutiny of this important Bill. I beg to move.
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.
46: After Clause 39, insert the following new Clause—
“Duration of sections 20 to 39
(1) Sections 20 to 39 shall (subject to subsection (2)) cease to have effect at the end of the period of one year beginning with the day on which it is brought into force.
(2) The Secretary of State may by order provide—
(a) that a provision of sections 20 to 39 which is in force (whether or not by virtue of this subsection) shall continue in force for a specified period not exceeding twelve months; (b) that a provision of sections 20 to 39 shall cease to have effect; (c) that a provision of sections 20 to 39 which is not in force (whether or not by virtue of this subsection) shall come into force and remain in force for a period not exceeding twelve months. (3) No order may be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.”
The noble Baroness said: I shall speak also to the Question whether Clause 40 shall stand part of the Bill. Opposition to that clause also stands in the name of my noble friend Lord Smith of Clifton. I shall be extremely brief.
Amendment No. 46 is a simple repeal and renewal clause. It states that the provisions of Clauses 20 to 39 will lapse at the end of a 12-month period but that they can be renewed by statutory instrument for a further 12 months. It also provides the Secretary of State with the flexibility to repeal, renew or bring into effect any of Clauses 20 to 39 if the Government believe that to be required. Similar mechanisms are in place for, among other things, the arms decommissioning schemes in Northern Ireland and the use of control orders in the UK as a whole. Our opposition to Clause 40 is simply consequential. I beg to move.
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]:
48: Schedule 5, page 44, leave out lines 39 and 40
The noble Baroness said: The amendment provides the Government with the opportunity to explain why, in this model for a department with policing and justice, a Member of the Assembly is excluded from standing for election to be the Minister or Deputy Minister of that department if they do not belong to the largest or second-largest designation. This exclusion does not apply to any of the other models introduced in the Northern Ireland (Miscellaneous Provisions) Act 2006, which amended the Northern Ireland Act 1998.
Why have the Government specifically put this in this model? If the Assembly is allowed to choose any of its Members which it believes fit to hold the position of Minister of policing and justice under the models discussed by Parliament last year, why is it prevented from exercising that freedom of choice under this model? I probably have to declare an interest in that the Alliance Party is our sister party in Parliament. I beg to move.
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.]
50: After Clause 47 , insert the following new Clause—
“Community restorative justice schemes
(1) The Secretary of State shall by order make regulations providing for community restorative justice schemes.
(2) Without prejudice to the generality of subsection (1), such regulations shall provide for the relationship between such schemes and the Police Service of Northern Ireland, the Public Prosecution Service for Northern Ireland and the courts, and for the exclusion from the working of such schemes of persons with convictions for serious criminal offences.
(3) It shall be unlawful for a scheme to operate other than in accordance with such regulations.”
The noble Lord said: This is the last matter in the Bill to be considered in Committee. Looking at the clock, I am happy to see that there is ample time to do so. Having said that, I assure the Committee that I have no intention of taking all the time available. I do not wish to detain Members of the Committee for any great length of time.
However, there is a serious purpose behind the amendment, and I am sure that any number of technical objections could be raised against the drafting. It was drafted to raise the issue and to see whether the Government appreciated the need for some legislative framework here, and to identify some serious problems in this field. I shall not go into it at great length. Restorative justice has recently become very much a matter of general awareness. It seeks to deal with areas where the traditional legal system is not operating as effectively as it could, and to get a better resolution to situations by involving victims and trying to involve perpetrators in courses of action to resolve problems created by the offence, and getting to its root causes.
Restorative justice is also seen as potentially effective in areas where normal policing does not always work effectively. One thinks of the problems on large housing developments, for example, where there is anti-social behaviour. The Government have brought in various measures to deal with that, such as anti-social behaviour orders, but they also have their limitations. Involving those whose criminal or anti-social conduct causes problems in a process with those who suffer from those activities is worthwhile. I do not want it to be thought that one approaches the concept of restorative justice in negative terms.
Nor would I be negative about all manifestations of restorative justice in Northern Ireland. My friend and colleague Lady Herman is closely involved with the restorative justice scheme in a part of Bangor I know well; my mother lived there in the latter years of her life. The community restorative justice scheme in that district seems to be working in an effective and acceptable way. Unfortunately, however, that is not the case with all community restorative justice schemes in Northern Ireland. I want to focus on those that are not working so effectively, hence the amendment.
The basic concept of community restorative justice, and how it is envisaged as operating on this side of the water, is that it will operate in co-operation with the existing legal system, trying to make it more effective and fill in the gaps. It is not seen as an alternative legal system on this side of the water, but in parts of Northern Ireland it is. Attempts have been made to operate it as an alternative legal system. It has been used, particularly in republican areas, as a means by which local republican activists regulate both anti-social and criminal behaviour in their districts.
Now, “republican activists” is a euphemism that should be discarded. One should be frank about who one is talking about. We are talking about bully boys who, in the past, have used baseball bats and other implements to cause serious injuries to people. That is a form of kangaroo court with mob justice—the sort of thing that ought not to occur in a normal society. My concern which motivates this clause is that, instead of dealing clearly and unequivocally with this problem, the Northern Ireland Office is temporising with it. Community restorative justice schemes should be required to operate by clear principles—principles that observe human rights.
At the end of the day, we should bear in mind that people’s human rights are being affected by the behaviour of these bully boys. Instead of the Northern Ireland Office insisting that this happens in that form, they are temporising, fudging and creating a situation where decisions are taken based on the choice of the person involved. The huge weakness of the existing guidelines is that if the offender agrees to participate in the community restorative justice scheme, that can take it out of any form of regulatory control. In these areas people will not have freedom of choice. The choice to participate in the scheme will invariably be coerced. That is the danger.
What epitomises the difference between here in England and Wales and there in Northern Ireland is the point that I put to the noble Baroness, Lady Scotland, on Monday when she was praising community restorative justice schemes. I asked her whether it was contemplated in England and Wales, as is contemplated in Northern Ireland, that community restorative justice schemes would be administered by a double murderer. She said absolutely not. But that is what is happening in Northern Ireland. The republican community justice schemes are headed up by a former IRA activist—a former leading member of the IRA—who has been convicted of two murders, and it is quite probable that other offences should have been taken into consideration on his conviction.
That is the problem. It is a very serious criticism of the republican movement. If they genuinely intend these schemes to be beneficial in regulating minor problems and anti-social behaviour in their areas, they could find decent people to head them up. They could find in their localities persons who do not have criminal records, have not been involved in violence and who have some professional skills in handling these matters—persons who could be looked on with some confidence in the local community. They exist in those areas, and I am sure that they would be quite happy to operate. But they do not do that. To head up these community restorative justice schemes, they put in persons who have a history; and not a good history.
It is absolutely scandalous that the Northern Ireland Office has been so passive in its approach to these matters. I have tabled the amendment to point out the need for some legal regulation of this matter. The Northern Ireland Office currently proposes a set of guidelines without any legal basis, so that we will have part of the legal system contracted out to private enterprise of a sort that the noble Lord, Lord Glentoran, would not approve of, without there being any legal regulation.That is quite unacceptable. There ought to be at least a legal basis for it and provisions in law that define the entry points and relationship with the legal system, and which makes sure that we exclude from the operation of these schemes persons with serious criminal offences. I deliberately chose the phrase “serious criminal offences”, and I could easily have drafted something to say that anyone with a criminal offence should not be involved, but there is a distinction to be drawn. In saying “serious criminal offences”, I have not put a definition clause in—but I mean it to be serious and, by any stretch of the imagination, murder is a serious criminal offence.
I should like to know the Minister’s and the Northern Ireland Office’s position on the question of there being a legal basis and provisions to cover the key aspects. I want to hear the views of other noble Lords on the matter. I reserve the right to pursue this matter in a more detailed way. I realise that, with regard to the NIO’s operation of these matters, it is still developing its models and guidelines, and matters are still out to consultation. So we are in an evolving situation. But if we are going to have normality in Northern Ireland we must ensure that this area is covered properly.
There cannot or ought not to be objections from republicans to insisting on this. If they are going to finally, completely and irrevocably renounce violence and support policing and the legal system, they cannot have any objection to a legal framework for community restorative justice schemes and for provisions that ensure some protection for the human rights of those who may be affected by their operation. At present there is not sufficient protection; we must have protection in law. The Bill provides the opportunity. I am disappointed that the Northern Ireland Office did not try to avail itself of that opportunity, so I am coming here to help the Government try to create a decent future and ensure that we do not have a situation created when, out of sight of most people but in certain neighbourhoods and localities, the bully boys continue to operate and enforce their mob justice and kangaroo courts. We cannot have that; that is not what the future of Northern Ireland should be. It should be, instead, a situation in which things operate with some concept of due process and respect for human rights. I beg to move.
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