Motion to Approve
My Lords, this order puts into practice a revised code of practice governing the recording with sound of interviews of persons detained at a police station in Northern Ireland under Section 41 of, or Schedule 7 to, the Terrorism Act 2000. A copy of the draft revised code of practice was laid before Parliament on 8 June 2020.
The purpose of this code of practice is to provide protection to both the person being interviewed and the officers conducting the interview. I start by thanking the Police Service of Northern Ireland for the vital work that it carries out on a daily basis to keep communities across Northern Ireland safe. The threat level from Northern Ireland-related terrorism remains “severe”. Despite this, ongoing work by police and MI5 means that most people in Northern Ireland are not directly affected by the “severe” terrorist threat.
However, I assure noble Lords that these proposed revisions will not change the way interviews are conducted in any way and, instead, relate to how interviews are recorded and how the recordings are stored. The changes will allow the Police Service of Northern Ireland to start using digital recording technology in line with the practice commonly adopted in England, Wales and Scotland. The changes to this code of practice will impact how the interviews are recorded and how the recordings are stored. They will apply only to interviews that take place after the updated code of practice has been brought into force. I will now outline the main revisions.
First, the code has been amended to allow the Police Service of Northern Ireland to use modern digital recording technology. Your Lordships may not believe it, but the current Police Service of Northern Ireland recording capability for Terrorism Act interviews is by cassette tape, a now rather archaic method which emerged back in the 1960s. It is an understatement to say that this equipment is difficult to source due to the rise of digital technology, and that is why it is important to maximise this opportunity to allow updated recording media or a secure digital network to be used instead, thereby bringing Northern Ireland into line with technology used in the rest of the UK. It is worth noting that the Police Service of Northern Ireland already possesses the necessary technology and utilises it for other, non-Terrorism Act, interviews.
The order had a smooth passage in the other place last week and, to allay any concerns about secure storage, the Minister provided assurance that section 1.8(b) of the updated code confirms that recordings will be stored on a secure file server which is accredited by the national accreditor for police information systems, in accordance with the UK Government security classification policy.
The safe storage of these interviews is enabled through both a hardware and software-based solution rather than being IT Cloud-based. Through this new technology, interviews could be conducted on either fixed or portable interview recording devices—for example, a laptop—then uploaded and stored in a central system. This central system is protected and managed through a partnership of Police Service Northern Ireland’s internal security team and a specialist third party.
The second revision I will outline for your Lordships is that the code of practice has been amended to closely shadow the equivalent code of practice for Great Britain. While this means some changes to language and format, the purpose and key content of the code remain the same. It is worth noting that the draft code does not exactly replicate the code in Great Britain, reflecting the devolution of policing and justice functions in Northern Ireland and consequent differences in approach adopted in different jurisdictions.
I draw noble Lords’ attention to the fact that the code for Great Britain, for example, contains references to post-charge questioning provisions as set out in the Counter-Terrorism Act 2008, but this proposed code does not. This is because the 2008 Act stipulates that, before its provisions on post-charge questioning can be commenced, police and criminal evidence—PACE—codes must be amended to reflect how post-charge questioning should be dealt with and recorded. While the Home Office amended the PACE codes for Great Britain in 2012, in Northern Ireland this function falls to the devolved Northern Ireland Department of Justice. To date, this has not been done and it has therefore not been possible to commence post-charge questioning provisions under the Terrorism Act.
I reassure noble Lords across the House that the Government ran a 12-week public consultation on the proposed amendments to the code of practice. This consultation engaged local politicians, the judiciary, eminent legal and security bodies and academia. It may be indicative of the non-contentious, minor and technical nature of these amendments that the majority of those engaged in consultation were rather silent. We received six responses, all of which were supportive. Three of those respondents suggested other minor amendments to the code; these were duly considered, and most were accepted. The full details of these suggestions were published in our consultation response document, which some noble Lords may have read.
One of the respondees was the Police Service of Northern Ireland, which suggested adding remote monitoring to the code. Remote monitoring is routinely used in the Serious Crime Suite in Musgrave Police Station in Northern Ireland. Remote monitoring uses technology to enable the senior investigating officer, interview co-ordinator or any other person who has justification, to monitor the interview process from another room. As remote monitoring is routinely used in Terrorism Act interviews, the PSNI recommended including it in the code of practice.
I hope that noble Lords will agree that, while these revisions are technical and minor, they are important. They align the code of practice used in Northern Ireland with the code used in the rest of the UK, they allow the Police Service of Northern Ireland to utilise digital recording technology in terrorism interviews, and they future-proof the code. Accordingly, I beg to move.
My Lords I thank the noble Viscount, Lord Younger, for his reassuring explanation and for his courtesy as a Minister, and I am more than happy to support this order.
In your Lordships’ House on Wednesday, I raised again the issue of the refusal—not the failure but the refusal—of the Northern Ireland Executive to fulfil their legal and moral obligations to implement the 2019 legislation to provide for modest payments for those terribly injured through no fault of their own during the Troubles in Northern Ireland.
Two years ago, some of these victims came to Westminster with the WAVE Injured Group because for 10 years they had got little more than tea and sympathy from Stormont. One made a particular impression on me. Paddy Cassidy was 28 when 50 years ago, a random gun attack by loyalist terrorists near his north Belfast home left him with severe spinal injuries. He spent a year in a wheelchair and later could walk only with the aid of calipers and crutches. When I met him he was in constant pain, and it was clear that coming from Belfast to London was a huge and draining effort for him. The fear that more than one of the WAVE Injured Group expressed to me on that occasion was that some of them would die before the pension they had been campaigning for for years came through. On Monday 22 June, exactly that happened to Paddy Cassidy. The Northern Ireland (Executive Formation etc) Act 2019, enacted by this Parliament and initiated in this House, required claims to be assessed and payments to be made from 29 May. Paddy Cassidy died a month later.
It is now getting towards two months’ delay. How many more among the hundreds of terribly injured victims eligible will also have to die before the Secretary of State sorts this out with the First and Deputy First Ministers and the law is implemented? I will keep asking until justice prevails. We owe it to Patricia, Paddy’s widow, to his sons Edward and Michael and to his daughter Patricia. We owe it to the memory of Paddy Cassidy. May he rest in peace.
My Lords, I express my support for the campaign of the noble Lord, Lord Hain, but I will not follow him on the particulars that he has just given.
The introduction many years ago of video recordings of police interviews was a welcome step forward. There used to be many a wrangle about the validity of the written confession of an accused. I recall a case in Hong Kong, where my client contested a signed written confession on the basis that the detective chief inspector had stamped on his hand until he signed whatever had been written out for him. When I expressed some doubt, he drew my attention to a photocopy of the confession. His signature after the caution at the beginning was in firm characters, but the characters with which he signed at the end were so shaky as to be almost illegible. The court threw the alleged confession out.
Video recordings that were subsequently introduced of the “harshing” of prisoners in Iraq during interviews have led to the Ministry of Defence paying out millions to claimants, and the MoD has given undertakings that none of these video recordings will ever be destroyed, so that the significance can be appreciated. Video recordings protect not only the accused from brutality and fakery, they also protect the police interviewer from trumped-up allegations. I am sure that that has led to a great diminution in these practices.
These regulations cover two important aspects: tampering and security. The first issue is dealt with by ensuring immediate access by the accused to a copy of the digital recording. This is well covered in the code of practice.
The second issue arises in the event that no charges are brought. Is the recording of an interview to remain for ever, if not in the cloud then on the secure system described by the Minister? Is there a time limit? When will it be destroyed or deleted? Paragraph 7.15 of the draft code of practice requires digital files to be stored in read-only format on non-removable storage devices to ensure their integrity; for example, on hard disk drives. Access is restricted under paragraph 7.16 to those who have been given specific permission to access them, or for
“specified purposes when this is necessary.”
That is completely vague. Access for the purposes of a prosecution is given only as an example, not as an exhaustive definition. Who specifies the purposes and what is the ambit or the limitation of those purposes?
My Lords, I thank the noble Viscount, Lord Younger of Leckie, for his detailed explanation of this statutory instrument, which I fully support. For the avoidance of doubt, I have always believed that terrorism, whether in the 1970s, 1980s or 1990s, when I was growing up in Northern Ireland, is never right and is never justified. Every death, every bombing, every maiming and every mutilation was totally wrong and unjustified.
I would like to underpin what has just been said by the noble Lord, Lord Hain, about the victims’ pension scheme; like I did, he also referred to this two days ago, during another debate on a statutory instrument for Northern Ireland. This issue needs to be resolved by the Northern Ireland Executive. If they are incapable of coming to an agreement on the issue, the British Government will have to take it into their own hands, to ensure that those people who suffered immeasurable pain, injury and grief have the pension that they deserve.
The other issue I want to raise is this. I hope that relations will settle down in the Northern Ireland Executive so that we can start to see the full implementation of the Good Friday agreement, to develop a shared island of Ireland and to build relationships between Ireland and Britain. That is vitally important.
I have two questions relating to the statutory instrument. Can the Minister confirm whether the provisions of this statutory order have been enacted, given that due to the election in December last year there has been a time lapse?
The second issue is one that has been raised by the Northern Ireland Human Rights Commission, which submitted a response to the then Secretary of State, Julian Smith, on the issue of the interpreter. Not only was the interpreter tasked to deal with people who may have had speech impediments, there was also a need for one for people with limited ability in English, so that they could be perfectly understood.
Lest we be in any doubt, this type of digital recording is an important step towards the prevention of coercion and ill-treatment by the police. I am therefore content to support the provisions. However, I make a final plea to the Northern Ireland Executive to sort out the pensions issue and get back to working properly, thus showing that they are a joint office.
My Lords, first, I declare an interest as set out in the register of interests. Perhaps I may say how strongly I support what has just been said by the noble Baroness, Lady Ritchie, about the condemnation of paramilitary terrorism in Northern Ireland. That is consistent with her position when she was the leader of the SDLP, and it is consistent today with most members of the SDLP in Northern Ireland, although sadly there are one or two exceptions. However, I am glad to say that the current leader of the SDLP, Mr Colum Eastwood MP, has roundly condemned any member of the party who is making excuses for paramilitary activity in Northern Ireland.
This statutory instrument arises from UK legislation, and replaces video recording with digital recording. As the Minister has said, it is a revised code of practice. I thank him for his presentation of the instrument, which will bring Northern Ireland into line with the rest of the United Kingdom.
However, several issues have occurred to me, the first of which is a constitutional one. Policing in Northern Ireland is once again a devolved matter. As the Minister has said, we have a Minister of Justice in the Northern Ireland Assembly and we have the Police Service of Northern Ireland. I would have thought that a procedure such as this would normally be dealt with by the Minister of Justice in Northern Ireland, but I assume that the reason it is being taken through this House—perhaps the Minister can clarify this—is that the original legislation was passed when the Northern Ireland Assembly was not in Session. It was therefore British legislation, and that is why this instrument is being taken through this House, rather than through the Northern Ireland Assembly.
The second point I want to mention is about the consultation procedure. We have nearly 2 million people in Northern Ireland. As everyone knows, policing is a very controversial and sensitive issue in Northern Ireland, yet out of those 2 million people, only six responded to the consultation. That truly is not a great example of the procedure. Indeed, it turns out that one of the six was the Police Service of Northern Ireland itself, so there were only five respondents. One would be interested to know who those five others are.
It seems the form of consultation in Northern Ireland was not adequate. I think the people in Northern Ireland did not really know that this consultation was taking place. It was probably done by a short notice online, which is never noticed in Northern Ireland. It should have been advertised in the press so that 2 million people could have seen it. For example, there are newspapers such as the Irish News, a nationalist paper in Belfast selling 29,000, and a cross-community paper called the Belfast Telegraph selling 27,000. There is a nationalist group called the Ulster Herald Group in the west of Ulster selling 27,000, the News Letter in Belfast, a unionist paper selling 14,000, and the Alpha Newspaper Group selling 40,000 right across Northern Ireland.
It seems that some people in government—not just on the exercise we are discussing today—are almost going out of their way to avoid the people of Northern Ireland being consulted by just having short entries online and not advertising in the press any more. In what way was this consultation exercised? Was it simply online or was it in the press?
In so far as historical statements are concerned, this will take a lot of money as some of them refer to events of 40 or 50 years ago. Who will provide the finance for these historical statements? Will it be Westminster or the Stormont Exchequer?
My Lords, hiding behind this ostensibly anodyne order, which has been so clearly explained by my noble friend the Minister, are some complicated and highly sensitive questions about our criminal justice system—questions about how we deal with terrorism and terrorism suspects; about the relationship between the police and the accused; about the gathering of evidence by the police and other agencies; about the presentation of evidence in court and open justice; and more generally about public confidence in our law enforcement agencies and the courts. All these questions are prompted whenever one has to manage the justice process that takes a suspected terrorist from arrest through detention to trial.
Although this order specifically relates to Northern Ireland, it makes a small but necessary change relating to the interviewing of suspects detained under Section 41 of and Schedule 7 to the Terrorism Act 2000. One might think that making provision for the use by the PSNI of digital recording technology now and for the remote monitoring of interviews in future was simple enough—and on one level it is, but interviewing terrorism suspects is not at all simple in so many regards.
That we are dealing with this on a Friday should not mislead us as to its importance. This order is connected to PACE, the Police and Criminal Evidence Act 1984, and to Code H. Code H is one of eight separate codes governing the way in which suspects in custody are to be interviewed by the police. PACE brought about a major improvement in the way people in custody are treated by the police and the law enforcement agencies after the Birmingham Six scandal. Code H is an 80-page document and has often been revised to reflect necessary changes in good practice.
Giving false accounts of police interviews, if not routine, was far too common before PACE. Now it is far less likely to happen. We can be far more confident that those found guilty of terrorism offences will have been convicted on evidence fairly and lawfully obtained by the police. We can tell whether statements made by the convicted person in interview were in fact made and recorded fairly and lawfully. They can be checked against the video and the sound recording.
This order will allow us to be assured that Northern Ireland and the rest of the United Kingdom will now be on an equal footing as regards the recording of interviews of terrorism suspects in police stations. Despite appearances, this is an enormously important measure and can only increase confidence in our criminal justice system. It is much to be welcomed.
My Lords, I welcome the statutory instrument before us today, which will bring Northern Ireland more closely in line with the existing legislative framework elsewhere in the United Kingdom. In particular I welcome the fact that the code is being changed to allow the Police Service of Northern Ireland to comprehensively update and streamline its current system by incorporating recent advances in digital technology.
The current model is clearly outdated. Video and audio evidence go hand in hand with accountability and transparency, both of which are key elements in increasing public confidence in front-line policing. With the ongoing use of body-worn camera footage in certain other cases, the PSNI already has in place the ability to significantly improve the quality and transparency of investigations. The police service therefore already possesses some of the relevant and necessary technology for aiding its investigations, but to date it has been able to utilise this technology only ever for non-Terrorism Act interviews. As a result, the police have been unable to use the full gamut of investigation tools at their disposal when responding to the spike in shootings, attacks and other paramilitary activity in Northern Ireland that we have regrettably witnessed in recent months.
I also welcome the inclusion in this statutory instrument of the PSNI recommendation relating to remote monitoring by a senior investigating officer in Terrorism Act investigations. Again, this brings Northern Ireland in line with the rest of the union. All these crucial changes are to be welcomed, as they not only strengthen the credibility of investigations but will protect police officers from potentially vexatious claims. Can the Minister confirm whether there is a timeline for the training of officers to prevent potential litigation?
Key among the changes will be the maintenance and secure storage of future interviews and of older-format versions of historical interviews. The introduction of a more secure digital network will provide for the comprehensive sorting of all interviews, recording files on a secure server. During this process we must be mindful of protecting and ensuring the integrity of pre-existing recordings when digitising older formats, particularly in the case of Troubles-related terrorist activities. Can the Minister confirm whether discussions have taken place with the Northern Ireland Executive and the PSNI in relation to the cost implications of these changes? Will the Treasury assist and provide resources for their implementation? I am pleased to support this statutory instrument.
My Lords, I too thank my noble friend the Minister for his clear explanation of this instrument and broadly welcome it. Frankly, it is a bit of a shame that the police in Northern Ireland have had to rely on VHS tapes and outdated technology. It also saddens me that this matter could not have dealt with more from within Northern Ireland, for all the reasons that other Members have spoken about.
I will focus primarily on the technological side, an area I declare certain interests in more broadly. Having sat in on a case at the Old Bailey in which the poor use of technology—or the lack of the right evidence gathered in the right way using technology—led to the collapse of a drug-dealing case, I am well aware of the challenges that can arise from both the poor use and misuse of technology.
I have some questions for the Minister, first—to echo a previous speaker—on the training that will be provided on all this, both in the interview room and afterwards. On the use of the data, I am keen to know the ethical guidelines being adhered to. We now know that as crime and terrorism become more technologically advanced, there are increasing risks around hacking and the failure of encryption, which may be only a few years away because of the computing power that is now available and soon will be available. That will potentially lead to fake evidence being created, evidence being stolen or doctored or, possibly worse, profiles being generated of suspects that track their movement in the room or their facial expressions and emotions. That could be used for positive policing but could also be against people’s rights. What guidelines are being adhered to? The previous speaker mentioned vagaries around the use of the data, which for various terrorism-prevention reasons could be used along some of the lines I have described.
The security of the data is also very important, and I would like to ask a final question—if the Minister does not have time to answer, a letter would be fine—around the use of blockchain and ledger technologies to watermark the videos, so that they could not be doctored because each would have a unique online identity. It is time we moved not just from VHS to recording in digital form, but actually kept pace with technology a step further. I would like to hear the Minister’s thoughts on this.
My Lords, the content of this order is important, in that the application of modern technology to the conduct of police interviews is part of the criminal justice system. This is, of course, uncontroversial; no one is going to criticise the use of digital technology in this context. However, reading the order and the background to it, what leapt out at me was the point that the noble Viscount made at the outset, which is that it should be 2020 when we are making this change. That struck me as odd when I first looked at the order; he thought it was almost amusing that we were talking about the conduct of interviews by tape from the 1960s and 1970s. The notes on the background of this order raise a point of some concern. Paragraph 7.2 on the policy background says:
“The equivalent Code of Practice for video recording with sound for police in England and Wales and Scotland was updated in 2012. The current Code of Practice for Northern Ireland came into operation in 2003”.
So there were nine years between those two, and a further eight years since 2012, where there have been failures to update these provisions in respect of Northern Ireland.
The two points that come out of this clearly are, first, that that is obviously unacceptable. How did we in Parliament and the Northern Ireland Office continue for eight years after the equivalent updating of the code in England, Wales and Scotland, and 17 years after the original code came into practice, in respect of technology that has been available for that whole period? That is obviously unsatisfactory and could lead—and maybe has led—to miscarriages of justice, because old-fashioned tape corrupts and deteriorates in a way that modern digital recordings, with the storage we have talked about, do not.
It raises a second concern, which I wonder if the noble Viscount could address: are there other areas of police practice in Northern Ireland which are similarly antiquated by reason of the regulations that govern them? The noble and learned Lord, Lord Garnier, referred to all the codes relating to the conduct of interviews and investigations since the Birmingham Six. I hope the noble Viscount can address, by summing up or writing to us, whether other areas of police practice and regulation are governed by codes of practice and procedure more antiquated than those that apply in England and Wales, simply by failure to modernise the law. It is our duty as parliamentarians to ask that question, and the Government’s to give us a clear explanation of whether there are such areas. If there are, the obvious follow-up question is: should they not be modernised too, and a great deal more quickly than this order?
My Lords, anyone with any experience of practising criminal law knows that many trials depend on allegations of what has taken place in the police station, and the extent to which so-called confessions can be regarded as inadmissible on the basis that they have been unfairly obtained. Clearly, in the realm of terrorism, it is all the more acute that we should be satisfied that provisions for responding to questioning and things of that kind can be properly vouched for by improved technologies. To that extent, I do not think anyone could be other than supportive of this order.
But what leapt out to me, if I may use a phrase used by the noble Lord, Lord Adonis, was that the Justice Committee of the Assembly was perhaps unable or unwilling to agree to the provisions that would allow post-charge questioning under Sections 22 and 23 of the Counter-Terrorism Act 2008. It is all the more surprising, therefore, that none of its members felt it necessary to make an objection. Why that is the case, I do not want to speculate, but it is an interesting feature of this matter.
There cannot be any doubt that we are overruling the devolution of responsibility for crime, justice and policing to the Assembly. In these circumstances, we have to be satisfied that there is good reason for doing so. I believe there is, but perhaps the Minister wants to say a little of what the justification from Her Majesty’s Government is.
I confess I am always—nervous is too strong—apprehensive about future-proofing, given that it may cause issues that ought to be the subject of discussion to not face that kind of scrutiny. If any issue arises in future-proofing on which the Justice Committee of the Assembly cannot reach a view or to which it is opposed, will we, by passing this instrument, have prevented it from doing so? If so, that is a consequence further than what is observed on the face of this instrument.
My Lords, at the outset, I would like to comment in relation to what the noble Lord, Lord Hain, said regarding the pension for victims. He implied that the Executive were holding payment up, which is true to a degree but does not tell the whole story. All the parties in Northern Ireland, with the exception of Sinn Féin, agree that that pension should be paid, and my party certainly agrees with that position. But Sinn Féin, which has a veto on these issues, is refusing to move on it. I hope that the Government will do what Sinn Féin is refusing to do.
I and my party support this SI. While the amendments are of a technical nature, they set out a basic principle for the video recording, with sound, of interviews with persons detained at a police station. It brings Northern Ireland closely in line with what exists in the rest of the United Kingdom; the existing code of practice has not been updated since 2003, as has been mentioned. Much has changed since, including technology.
However, there are some concerns about interpreters, which I hope that the Minister will be in a position to address. According to the Northern Ireland Human Rights Commission:
“Access to interpreting services should be made available on a case by case basis where an officer deems an individual’s … English is not sufficiently strong.”
The wording leaves the issue of providing an interpreter to an officer’s judgment on an individual’s comprehension of English. This, I fear, has the potential for multiple judicial reviews and challenges to the admissibility of any evidence deducted from an interview on the basis that an interpreter was not provided. How is a police officer to assess the level of any individual’s grasp of English, and what are the parameters for gauging an individual’s strength in using English? A better approach would be to require an interpreter for those not born or resident in an English-speaking country, with the exception perhaps of some regions in the Irish Republic, and to empower police to establish in which language and medium a detained person corresponds in his daily life.
I also fear that the requirement to provide interpreters during sensitive interviews will create a number of practical problems, such as security vetting. Counterterrorism interviews often cover sensitive issues being put to suspects. Interpreters leaving an interview carry with them an understanding of the knowledge that the police have in any given case. This creates an opportunity for unvetted interpreters to pass information to associates outside the interview room during a live investigation. In many cases, it is virtually impossible to accurately vet interpreters, since often they have arrived in the UK as refugees or from countries that have no form of vetting process.
I ask the Minister: what are the vetting requirements for interpreters to gain access to an interview of a terrorist suspect? Does he agree that they should be required to have security clearance as standard? Vetting should be a legal requirement for an interpreter to be given access to the interview of a terrorist suspect. I look forward to hearing what the Minister has to say, either today or perhaps in writing.
My Lords, this is of course a very sensible updating of regulations because of technology. It must be admitted that not all interviews or questionings of terrorist suspects in the past have been appropriate or legal. I think that we can all accept that. Those of us who believe in the rule of law must therefore think that this is a good measure, and it has the support of the House.
I wish to make only one point. My concern is that we should not in general give way to any pressure from terrorist sympathisers. I worked in the Northern Ireland Office some six years ago now. I saw that the PSNI was often forced by regulations, and indeed by the law, to operate with such caution that terrorists had a great advantage over the security forces. Not all politicians and organisations support the maintenance of law and order in Northern Ireland as we see it. When I was there some were pushing—yes, legally—to further hamper the PSNI.
I was delighted to hear the comments of the noble Baroness, Lady Ritchie. I never doubted her opposition to all terrorism, but not all loyalist, unionist, republican and nationalist organisations or political parties take the same view. I absolutely support this change, but I hope the Government will always bear this point in mind in any further changes to the law.
My Lords, I start by making a general statement based on a lot of observation in Northern Ireland. The House should recognise the enormous progress that has been made by the Police Service of Northern Ireland and its clear understanding of the ethical matrix in which it absolutely must operate.
I also think that we should pay tribute to the judiciary in Northern Ireland. If one reads the judgments in the relatively small number of non-jury trials that take place in Northern Ireland, one can see that the quality of scrutiny, as well as of the judgments given, shows the judiciary to be absolutely up-to-date on the issues that have rightly been raised by noble Lords in the debate. For example, an issue was raised a few moments ago about possibly dishonest interpreters. It is absolutely clear—it barely needs saying to those of us who practised in the criminal courts—that an interpreter who is revealed in any way to be dishonest or not translating properly will be warned very clearly by the court. His or her interpretation will be replaced with somebody else’s and they might well face criminal prosecution.
Next, I support what the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Campbell of Pittenweem, said with such clarity. I will not repeat what they said. The noble Lord, Lord Browne of Belmont, referred to body-worn video, which is a very important development in police forces throughout the United Kingdom. It has meant that the public, as we have seen recently, have been able to see what really happened during an incident. The police have been protected, in many cases, by body-worn video showing that allegations made against them might well have been false. It covers everybody and provides greater safety and assurance.
I have a concern that body-worn video might provide a solution to. I ask the noble Viscount, who opened the debate so clearly, to deal with this, either today or in writing. The definition of an “interview” is sometimes not hugely clear. Sometimes what is judged to be an interview takes place outside a police station because of necessity and the exigencies of events. Can we be assured that, when such events take place, they will always be on body-worn video? If they are not, the police must understand that the likelihood of that evidence being admitted is low.
My Lords, I will make a few points. The Explanatory Note to the instrument says that
“the Secretary of State has designated under paragraph 1(1) of Schedule 8 to the Act … a place where a person may be detained under section 41.”
Can my noble friend the Minister give any examples of where locations other than a police station have been designated? If it is not possible for him to answer me now, it would be perfectly fine for him to do so in writing.
My second point has been referred to by a number of Members. We talk about secure servers and encrypted interviews. I suggest that virtually nothing in this world is secure in cyberspace if people can get into the US Department of Defense’s weapon systems. We find that Governments do not seem to be very good at looking after people’s records, because they are sometimes found dumped by the side of a motorway or on a roundabout. Governments do not have good records in keeping material pertaining to individuals safe and secure. Where terrorists, who are very inventive, sometimes have an inside track it will be important to ensure that a high priority is placed on the security of these interviews, given that they will be held in remote locations. Whatever people say, I am not convinced that cyberspace is totally safe.
I cannot leave the debate without referring to what the noble Lord, Lord Hain, the noble Baroness, Lady Ritchie, and others have mentioned, which is the plight that the victims of terrorism find themselves in with the Northern Ireland Executive’s refusal to pay them their pensions, which this Parliament voted to ensure that they would receive. Will my noble friend ensure that his right honourable friend in the other place is aware that we have had a bad week in Northern Ireland as far as the Executive is concerned? We started off with the funeral of IRA godfather Mr Storey, which led to great tensions that are still ongoing.
Pensions are another potentially destabilising issue as far as the Executive is concerned. Please do not say that you have not been warned. It is important that this issue is settled. If it is not settled within the next very short space of time, the Minister’s right honourable friend in the other place should take over responsibility for implementing victims’ pensions. If it is left to fester, it will only further destabilise the Executive. Bear in mind that it has been re-established in the middle of the Covid crisis, so putting these additional strains on it would be irresponsible. I urge my noble friend to take that on board.
My Lords, I pay tribute to my noble friend the Minister for the manner in which he introduced this instrument, with his customary courtesy and clarity. I also take this opportunity to give my thanks and complete support to all those women and men in the security services: those in the west country and those based in town. They do their work invisibly—understandably so—but they are true heroes and heroines who keep us safe at all times. They deserve all our support and enduring thanks.
I support the order. On one level, they are very straightforward and clear, but I associate myself with the comments of my noble and learned friend Lord Garnier, and indeed those of my friend through sport, the noble Lord, Lord Campbell of Pittenweem. They go to the heart of a number of issues essential to the whole criminal justice process. In light of this change, have the Government done a piece of work, not just in the Northern Ireland context but across government, to understand other situations where cassette tapes, fax machines and other largely redundant, obsolete and—certainly from a security perspective—woefully inadequate sub-technology is still in use? I think it would be an incredibly important piece of work and I would be happy to help.
Finally, I associate myself with the comments of my noble friend Lord Wei. There is so much technology which needs to be deployed and could be helpful in this particular use case, not least distributed ledger technology. I gently guide the Minister to a report that I wrote in 2017 and updated in 2018, Distributed Ledger Technologies for Public Good. This kind of thing—albeit not exactly this—was one of the use cases set out there. It has such huge potential to transform the state, and the relationship between citizen and state, in a new, transformed, digital, smart social contract. I would welcome any comments the Minister might like to make on those issues.
My Lords, I associate myself with the words of the noble Lord, Lord Hain, and others, regarding victims. As my noble friend the Minister made clear in his opening remarks, there should be nothing controversial about this order. It does, however, provide an opportunity to make a few comments about the security situation in Northern Ireland.
Back in May 2010, the coalition Government inherited a deteriorating security picture. The previous year, the threat level had been raised from substantial to severe and three people had been murdered. In 2010 itself, there were 40 attacks relating to national security. Today, that number is significantly lower, and the reduction has not happened by accident. In the main, it has been down to the sterling efforts of the Police Service of Northern Ireland and the security services, working very closely with colleagues in An Garda Síochána in the Republic of Ireland. I should say that that one of the great pleasures for anybody serving in Northern Ireland is dealing with such dedicated professionals, who continue to do such a fantastic job in extraordinarily difficult circumstances. They deserve our gratitude and fullest possible support.
Successive Governments since 2010 have also played a key role. In 2011, I was pleased to help persuade colleagues to commit some £230 million in additional security funding for the PSNI, followed by a further £160 million in 2016. Without doubt, this has significantly boosted the ability of the PSNI to tackle Northern Ireland-related terrorism. This ongoing support remains absolutely vital because, regrettably, the threat level from dissident republicans remains severe, meaning that an attack is likely. While small in number and lacking any significant public support—and, I should stress, with zero legitimacy—these groups retain lethal intent and capability. Only good policing and intelligence has prevented a far greater loss of life.
Between June 2019 and May 2020, 96 arrests were made under Section 41 of the Terrorism Act 2000. In the same period, 26 firearms, 0.88 kilograms of explosives and 800 rounds of ammunition were found by the police —so the need for the utmost vigilance remains as these groups have clearly not, to borrow a phrase, “gone away”. Combating them and protecting the people of Northern Ireland from terrorism must remain a top priority for any Government. In the 2010 strategic defence and security review, it was made a tier 1 priority, and I hope this will be maintained when the current review finally sees the light of day. With those concluding words, I warmly support the order.
My Lords, as is quite normal when you are fairly far down the list, anything you thought you had to say of any originality seems to have been taken away and done better by those in front of you. My remarks will be even briefer than I originally intended. What drew me towards this was the use of digital technology to record stuff. It was not so much the fact that you have an accurate record of what is going on but how people with limited capacity to read and write English can interact with it through technology. I remind the House of my declared interests in this field.
However, if you have this information, you must know how to get people to interact with it. Voice operation, text-to-voice and voice-to-text technology is out there and fairly readily available. I hope that having a digital format will mean that the person involved in the case will be able to see and refer back to what they have said, as will those outside. It is quite simple: the written page for many people is a nice, comforting, familiar format, but, for many people out there, it is not. In the criminal justice system, lower levels of literacy are a recognised fact. I am not sure about the terrorism sector, but I would be very surprised if elements of this, at least, were not applicable. If used properly, it will help you get the right answer and organise your defences, and will make the person at the centre of any criminal proceedings slightly more aware of what is going on and what is being done to them. I hope that this would be an advantage. I believe the noble Lord, Lord Holmes, also referred to this.
The only other thing that comes up is: what are doing about slang, which changes very quickly? Youth groups tend to change it; it is language they use for a bit and then they dump it. I have a friend who is a JP—although not serving in Northern Ireland—and several years younger than me. She found herself listening to a case where a series of references went out. She and her colleagues were sure it was about sex, but they were not quite sure what bit of sex. Eventually they had to ask and were told. She described the experience as feeling like the person in those old sketches—the judge who said, “Who are the Beatles? I hear they are a popular beat combo.”
We should make sure we have a reference to this as we go backwards and forwards, because it might be important, not just here but somewhere else. Where we have a verbal record, we should note that verbal language changes fast. Can we make sure that we record that ?
My Lords, I too thank the Minister for the clear and collegiate way in which he introduced this proposal. I am happy to support the order. I shall not repeat the questions that noble Lords have already asked, but I want to ask two further brief questions for clarification.
First, as the Minister said, the proposed code of practice shadows the code for England and Wales, and for Scotland, but it is different in one important respect. Unlike the other codes, this one for Northern Ireland contains no reference to post-charge questioning. This is because under the 2008 Act, PACE codes need to be amended first to reflect how post-charge questioning should be dealt with, which is now the responsibility of the Northern Ireland Assembly and Executive.
As someone who had the privilege of serving as a Northern Ireland adviser to Gordon Brown when he was Prime Minister and was involved in so-called “phase 2” of the devolution of policing and justice, I was disappointed to see that the necessary changes to PACE code H have not been agreed by the Northern Ireland Justice Committee. Do we have any idea of timescales and can we all urge the Justice Committee to do this as soon as possible?
Secondly, I have a related question about the preservation of existing evidence: will it remain technically viable? The need to switch to digital recording technology raises the question of what steps are being taken to preserve long-standing evidence on pre-digital formats. I know from my time in government that there is a significant challenge for legacy investigations—some of which can stretch back over many decades—in ensuring that existing records do not decay and degrade. The Police Service of Northern Ireland has estimated that digitisation of this catalogue of evidence could cost many millions of pounds. Can the Minister assure us—for the sake of existing legacy investigations and for those that may be necessary in the future—that the Government will fund this vital preservation work? Can he also assure us that this commitment to evidence preservation will extend to the Stormont House oral history archive, which is a key historical, community and national public resource in documenting the Troubles?
My Lords, I pay tribute to the sterling efforts of the officers of the PSNI in serving the community, and wholeheartedly acknowledge the plight of the innocent victims of terrorism, and indeed, the promised payment.
However, I was disappointed that the noble Lords, Lord Hain and Lord Empey, and the noble Baroness, Lady Ritchie, did not point the finger at Sinn Féin, the party that is blocking the implementation of this payment. I join other noble Lords in welcoming this statutory instrument and acknowledge that Northern Ireland is updating an antiquated system. It served its purpose in its time but now, with the use of modern digital recording technology, we are moving forward in the interests of transparency and investigative integrity. In many areas of policing, the Police Service of Northern Ireland has a reputation for the highest standards of professionalism; here, it is catching up with advances in technology that are already operational in the rest of the United Kingdom.
The advancement proposed in the short statutory instrument encapsulates the modern future-proof system for recording interviews, yet we must be ever mindful that the evidential integrity of existing records is preserved in such a way that it is technically viable and maintains prosecutorial value. We are informed that the advancement in digital technology across the rest of the United Kingdom has proved invaluable in the cause of criminal justice, and when operational in Northern Ireland, it will prove to be an effective tool in the fight against crime. I must confess that my first interest is the protection of the innocent, not the criminal, but I acknowledge that to do that, we must have credible evidence and a process that is beyond reproach. However, I hope that the operation of this statutory instrument will not create new means of installing due process; that already causes frustration within the community and must not be the outworking of this change.
Northern Ireland’s Department of Justice should re-examine the current approach regarding post-charge questioning of terror suspects, which is already operational in Great Britain. The Counter-Terrorism Act 2008
“allows a district judge (magistrate’s court) to authorise questioning of a person in Northern Ireland about an offence, for which they have been charged or after they have been officially informed that they may be prosecuted, by a constable where the offence is a terrorism offence (as defined in section 27) or where it appears to the judge that the offence has a terrorist connection (as defined in section 93).”
It is important that the investigative merits of this approach are examined in Northern Ireland.
What are the cost implications for the PSNI of bringing in this new technology, and will our government investment provide the necessary resources? It is essential that the budget already allocated is not put in danger or diverted from the protection of the community, but rather, put into front-line services. I give my support to this statutory instrument.
Lord Bruce of Bennachie? We will move on to Lord Murphy of Torfaen and come back to Lord Bruce afterwards.
My Lords, this has been a very good and useful debate. The Opposition absolutely and completely support the Government in this statutory instrument. We must remind ourselves that it comes under the Terrorism Act 2000. I completely agree with the noble Lord, Lord Caine, that the threat from republican dissidents and rogue loyalists still very much exists. We have only to think of the murder of Lyra McKee to emphasise that. Also, it has been an opportunity for noble Lords, particularly those from Northern Ireland, to refer to the scandalous situation whereby the Northern Ireland Executive are not in a position to pay the pensions to victims. I applaud my noble friend Lord Hain for his remarks on that.
I pay tribute to the security agencies, the judiciary, as the noble Lord, Lord Carlile, has said, the PSNI and, above all, the overwhelming number of people in Northern Ireland from every community who completely reject violence and all that goes with it. We need to modernise the tools for tackling terrorism, including digitalising the recordings of interviews, but I agree with my noble friend Lord Adonis. We should not be using video cassettes in 2020. There must be a reason why this has taken so long. Nevertheless, we are changing it now; obviously, we agree with that change.
The Minister referred to the consultation, which I think has been good. The response has not been great, but those who did respond—the PSNI, the Independent Reviewer of Terrorism Legislation, the Northern Ireland Human Rights Commission—raised some very important issues which have been addressed, such as the awareness of suspects of their rights under caution. A number of your Lordships also raised the question of interpreters; that is really an issue of resources, ensuring that there is sufficient money so that interpreters can be employed.
My noble friend Lord Wood made an extremely good point about retaining the old video cassettes, which go back nearly four decades, while we are still looking at legacy investigations, including those recommended by the Government in their most recent proposals. He also mentioned the oral history archive, which was agreed in the Stormont House agreement. The preservation of those cassettes could cost a great deal of money but would be necessary if these legacy investigations continue.
However, whatever the issues that have been raised; this order very much deserves your Lordships’ support. I fully support it.
My Lords, I apologise; I was unmuted but your Lordships could not hear me.
This debate has demonstrated the value of this Chamber. We have had expertise on all aspects from all around the House—legal expertise, political expertise and technical information. Compared with the debate in the other place, which I think took just a few minutes, we have covered all the parameters and raised a lot of important issues which I know the Minister will want to address. I thank him for his courteous and clear introduction to the debate.
A number of issues have been raised. I will refer first to the concern over the lack of progress on the victims pension scheme, referred to by the noble Lord, Lord Hain, and others. As the noble Lord, Lord Empey, said, this has the potential to be destabilising. What people in Northern Ireland want, particularly the victims, is not a record of blame or finger-pointing but action to unblock and release this logjam. The warning of the noble Lord, Lord Empey, should be heeded: the British Government should not be an obstacle to ensuring that what has been promised by this Chamber, more than any other source, is delivered.
On the recording of evidence and interviews, it is astonishing that Northern Ireland is so far behind in technical innovation. We all support this order as necessary, but very late in the game. Another issue that must be addressed is the updating of PACE, which, as my noble friend Lord Campbell pointed out, has to some extent been deadlocked in the Northern Ireland Executive and Assembly. As a result, one aspect of effective investigation is blocked for the police and security services in Northern Ireland.
To follow up on the concerns raised about data security, in some ways you could argue that old-fashioned, physically located data that is not accessible through the cloud or hacking is more secure than digital data. The Minister will recognise that there is a need to ensure that the digital data is comprehensively protected and to address whether old data in non-digital formats will be valid or will need to be updated and possibly digitalised in future.
Concern was raised about whether interpreters could be a problem, or a source of misinformation or disruption of justice. I also highlight the need to include sign language interpreters. My noble friend Lord Addington made the point that, for many people, speech is more valuable than the written word. That is absolutely true and shows the value of recording video and sound evidence. However, for the small, but relevant, number of people who are profoundly deaf, access to good-quality interpreters is really important. This is, in any case, normally required in a judicial situation by the European Convention on Human Rights. I would be grateful if the Minister could clarify the position on this.
The consultation was light on responses. Can the Minister indicate that he is satisfied that it was broadly enough based? The acceptance of remote monitoring was one of the positive developments as a result of the consultation. It is fair to point out that the people who did respond were those one would have expected—in other words, those directly engaged with it, rather than the wider public. The overall situation in Northern Ireland is that we have apparently waited eight years, or possibly 17—whichever way you look at it—for technology to catch up with the rest of the United Kingdom. In that context, this is clearly overdue.
Terrorism in Northern Ireland has haunted that community for more than a generation. The House will welcome, with no surprise, the total denunciation by the noble Baroness, Lady Ritchie, of terrorism in all its forms and from all sources. This is echoed right across the House. We have to recognise that, while the situation in Northern Ireland is much improved, the pressures that have existed in the past are still building. The Executive has been out of action for three years and, since its re-establishment, clearly still has fundamental tensions within it. There is difficulty in bridging gaps, moving forward and recognising the need for joint working and co-operation. It is still disappointing to see finger pointing between the two extremes getting in the way of resolving problems and moving forward. This order is not only necessary and valuable, but an important step forward. I think the Minister will acknowledge that this House has debated this with a great deal more thoroughness than the other Chamber and has raised a lot of issues that need to be addressed. I am sure the Minister will wish to do this.
My Lords, I am pleased that this order has been broadly welcomed by the House today, with speeches from my noble and learned friend Lord Garnier, the noble Lords, Lord Adonis, Lord Morrow and Lord Wood, and many other noble Lords. As my noble friend Lord Caine said, the Government’s first priority is to keep people safe and secure right across the United Kingdom. The PSNI, MI5 and others in communities and the wider public sector, who work tirelessly to keep people safe, have—and must have—our full support for the public service they give. As my noble friends Lord Holmes and Lord Caine said, rather more eloquently than me, they do fantastic work.
Another theme of this debate is that there is no excuse for paramilitary activity. This was raised by the noble Lords, Lord Murphy and Lord Kilclooney, my noble friend Lord Robathan and the noble Baroness, Lady Ritchie. Terrorism, paramilitary violence and criminality have no place in Northern Ireland. They must not hold us back from progress towards a peaceful and prosperous future. Those involved offer nothing but harm to communities. Their callous disregard, in recent weeks, for the safety and well-being of communities stands in stark contrast to the focus of police and others who have been working hard to save lives and protect people.
Preventing violent attacks takes a great deal of effort; it also requires the right resources. To reassure the noble Lord, Lord Browne, we have consistently provided PSNI and others with additional resources to improve the security situation. On top of funding that PSNI gets from the Department of Justice Northern Ireland, the UK Government have invested significantly in PSNI: more than £160 million in the 2015 Parliament. We should give credit where credit is due to my noble friend Lord Caine for helping to bring that about. We have also provided £25 million of match funding to the Northern Ireland Executive’s five-year tackling paramilitarism programme. It is why the commitments in New Decade, New Approach that we supported to reform the justice system are also so important.
I shall address a question raised by the noble Lord, Lord Kilclooney, about why this order is coming now. It was not so much to do with the absence of an Assembly but because the order relates to national security and falls under the responsibility of the Secretary of State and is not devolved. I am sure the noble Lord knows that, but I wanted to confirm it.
There were a number of questions about security, in particular cybersecurity, raised by my noble friend Lord Wei, the noble Lord, Lord Bruce, and others. Secure data is very important. It is important that the Police Service of Northern Ireland can bring an end to the archaic use of cassette tapes, as I said earlier, and avail itself of modern digital recording technology to bring its practice in line with the rest of the UK. I have outlined the steps taken by the Police Service of Northern Ireland to ensure that digital recorded interviews are stored on a secure file server accredited by the national accreditor for police information systems in accordance with the UK government security classification policy. I trust this provides adequate reassurance, but I will look carefully at Hansard for the specific questions raised, in particular by my noble friend Lord Wei. I also take note of the report that my noble friend Lord Holmes produced. I will be sure to look at it—I have not looked at it yet—and will make sure that the Northern Ireland Office also does so.
The noble Lord, Lord Thomas of Gresford, asked how long the recordings are stored after interviews. Although the secure storage of recordings is included in this code of practice, the retention period for recordings is not covered by the code. The Police Service of Northern Ireland has confirmed that current cassette recordings are retained indefinitely. Once it moves to digital recording of interviews, the retention period will be seven years, but I reassure the noble Lord and the House that this is currently under review.
It is clear that the Northern Ireland Office has listened to those who took the time to respond to this consultation and has amended the code accordingly. The Northern Ireland Human Rights Commission recommended that access to interpreting services should be made available on a case-by-case basis. This was raised by the noble Lord, Lord Bruce, who regarded it as a particular issue for those who might have hearing, reading or writing difficulties. He made some very good points. I reiterate that they will be looked at on a case-by-case basis, but PSNI has accepted this recommendation without reservation and stated that extra resources should not be required to make sure that such people are looked after properly and fully.
The noble Lord, Lord Carlile, raised important points. First, I should say to the House that he is right: we should give huge credit to the judiciary in Northern Ireland and there are safeguards and reassurances on interpreters, which I have largely covered.
In relation to historical recordings—there was not much in the debate about them—I want to say that the changes set out in this legislation will apply to future interviews only. This Government have recently reaffirmed their commitment to introduce legislation to address the legacy of the past, as the House will know, in Northern Ireland in a way that focuses on reconciliation, delivers for victims and ends the cycle of reinvestigations into the Troubles that has failed victims and veterans alike.
That leads me on to a very important point that was raised by many noble Lords—the noble Lord, Lord Hain, the noble Baroness, Lady Ritchie, the noble Lord, Lord Morrow, my noble friend Lord Empey and the noble Lord, Lord McCrea—concerning victims’ payments. I was in the Chamber this week when the noble Lord, Lord Hain, raised this important matter once again and received a response from, I believe, my noble and learned friend Lord Keen of Elie. Other noble Lords have referred to this as a campaign by the noble Lord, Lord Hain, and of course it is. No one wishes the matter to be taken forward more than me, the UK Government and the Northern Ireland Office. I was very moved by the noble Lord’s account of Paddy Cassidy. I feel deeply about his tragic story and his death. However, we must also not forget—we certainly do not—the terrible injuries that have been suffered by many others during the Troubles. Victims have waited too long already, and we will continue to prioritise supporting the Executive’s delivery of this scheme.
The Government provided a legislative framework in the absence of an Executive, and the Executive must now deliver. The Executive need to designate a department that can own the policy and implement the scheme, so that applications can be processed and payments made to victims. The necessary resources, including personnel, can be allocated to expedite payments. This is also the precursor to the independent board that is being set up to determine the details of payments to individuals. It is vital that this matter is dealt with as urgently as possible.
The current framework provides a fair, balanced and proportionate basis for helping those who suffered most throughout the Troubles, and I repeat that it is very important that all parties move forward. What has been happening? The Secretary of State has written and spoken to the First Minister and Deputy First Minister on several occasions—the most recent being yesterday—about the need to address the delay to the scheme.
The noble Lord, Lord Hain, spoke about statistics. I think that I have largely covered that matter. I do not want to go over the figures again, but I hope that the House agrees that the UK Government, in conjunction with the Northern Ireland Office, are taking resourcing in Northern Ireland particularly seriously. That will continue.
The noble Lord, Lord Kilclooney, raised the subject of the consultation, and perhaps I can give him a few more details. It was launched on 22 July and closed on 14 October. I reassure him that it was a public consultation and was publicised by the Northern Ireland Office Twitter account. However, we also wrote to 37 relevant stakeholders inviting them to respond, and we received six responses. I hope that that gives the noble Lord some reassurance.
The noble Lord, Lord Adonis, asked about other codes of practice being updated on the back of this one. Perhaps I may give him some reassurance that the Home Office is currently considering making similar updates to PACE Code H and the code for Great Britain, and that the Department of Justice in Northern Ireland is considering adding remote monitoring to the PACE (Northern Ireland) Order Code H.
If I understood correctly, my noble friend Lord Empey asked about the locations of terrorism interviews. I reassure him that this code applies to all interviews under Schedule 7 to, or Section 41 of, the Terrorism Act that take place in a police station in Northern Ireland. In practice, Musgrave Police Station, as I am sure he knows, is a designated TACT suite for the police service, but Antrim can also be called upon as a back-up.
I was asked why this has taken so long. I think that that requires a letter, as I am running out of time. That matter was raised by a number of noble Lords, not least the noble Lord, Lord Adonis.
My noble friend Lord Holmes asked about a wider review of how the data is held. The answer is that the secure storage is accredited by the national accreditor for police information systems, which I have covered already.
I realise that time is running out. I think noble Lords will know me well enough to know that I will look at Hansard extremely carefully and make sure that a full letter is written to all those who have taken part in this debate.
In closing, let us get back to the order. It is, as the House acknowledged, largely technical. The aim is that it will impact not how interviews are conducted in any way, only how they are recorded and stored. I also re-echo the view of nearly all those in the Chamber this afternoon: the Police Service of Northern Ireland has, and must have, our full support for the public service that it gives. I commend it and all the law enforcement agencies that do their utmost, sometimes quietly and sometimes out of sight, in delivering safety and security for the public in Northern Ireland and Great Britain. I commend this statutory instrument to the House.