Justice and Security (Northern Ireland) Bill

Public Bill Committee, 18 January 2007.

Clause 9

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 31, in clause 9, page 6, line 24, leave out

‘in the course of his functions as’

and insert ‘whilst’.

I am delighted to sit under your chairmanship this morning, Mrs. Anderson, as we resume this interesting Committee on the Justice and Security (Northern Ireland) Bill. Clause 9 deals with restrictions on disclosure of juror information. It adds an important restriction to the Juries (Northern Ireland) Order 1996 on the disclosure of juror information that has come into the possession of various people through, for example, the electoral office and their work.

Committee members will have noticed the significant penalty. Proposed new article 26A(8) says:

“A person who contravenes paragraph (1) shall be guilty of an offence and shall be liable”

to a hefty fine or six months’ imprisonment, or indeed to both. The penalty for any criminal offence committed in contravention of proposed new paragraph (1) is severe.

My amendment relates to some rather curious wording. It pertains to

“a person who is or has been an electoral officer or a court official”.

Proposed new paragraph (2)(b) means that an offence is committed only if the person who is or has been an electoral officer or a court official obtained the juror information

“in the course of his functions as an electoral officer or court official.”

I dislike that wording because it is ambiguous. It implies that the person was acting appropriately when they obtained the information.

My amendment represents no slight on, or criticism of, the staff of either the courts or the electoral office. It attacks the Bill’s wording, because it implies that a person in either the electoral office or the court obtained the information relating to juries in the course of his functions. It implies that they have obtained it appropriately.

It is possible for an electoral officer or a court official to obtain juror information inadvertently, or of course deliberately, not in the course of his functions, but in walking past a desk and appropriating it. I have tabled the amendment to tease out the Minister’s explanation about why

“in the course of his functions”

is set out only in proposed new paragraph (2)(b), and not elsewhere when it qualifies the other people and the work that they do in obtaining juror information.

Bridget Prentice (Labour, Lewisham East)

It is a delight to serve under your chairmanship, Mrs. Anderson. You are always firm and fair, although I suspect that the former will be unnecessary because the Committee has made good progress in a co-operative fashion.

I have thought deeply about the amendment, and I would very much like to grant the hon. Lady the opportunity to amend the Bill. I have asked detailed questions about it because she has scrutinised the legislation assiduously. It would have been a pleasure to tell her that the amendment was satisfactory. Sadly, that will not be the case, but I hope that what I say will reassure her about why the wording is as it is.

Proposed new article 26A makes it an offence for certain officials who obtain information in the course of their employment to disclose any of it without lawful authority. The amendment would shorten the wording so that instead of specifically referring to obtaining information by the electoral officer or court official in the course of their duties, it would refer to their obtaining it while the person in question was an electoral officer or court official.

The reason for the restriction on disclosure of jury information is that we want to give greater reassurance to people who are called on to serve in the criminal justice system, and, in turn, to promote greater confidence in it. That is why we want to make the arrangements as robust and precise as possible. The provisions have been crafted deliberately to ensure that the restrictions apply to officials who come into possession of the information in the course of their duties. That, of course, would be while they were in their official posts, but the wording in the amendment is less precise.

Perhaps I can give an example. An electoral officer who was in court as a defendant would not be there in the course of his or her duties. Often in England and Wales, electoral officers have other duties besides their electoral officer’s duties. It is important to define the provision so that it relates to what is done in the relevant post, while performing the relevant duty. Having considered the matter for some time, I think that the clause gets the right balance and the amendment would not add anything to the proposed arrangements.

As a final point, the inadvertent obtaining of information would be specifically dealt with under data protection legislation; there is already legislation to cover people who either inadvertently or deliberately obtain the relevant information by the wrong means.

Sylvia Hermon (UUP, North Down)

I welcome the Minister’s presence this morning. She has been in attendance before, but did not have the opportunity to speak. Will she confirm that the punishment under the data protection legislation would be equivalent to that set out in the Bill—that is, a hefty fine, six months’ imprisonment, or both?

Bridget Prentice (Labour, Lewisham East)

I cannot give the hon. Lady the exact sentencing guidelines for the data protection legislation, but six months, a fine or both on summary conviction is a pretty standard form of sentencing. I should be surprised if the sentences available under the data protection legislation were anything less. However, I shall write to her if there are significant differences in the sentencing procedures.

Sylvia Hermon (UUP, North Down)

I am grateful for that explanation, but I am slightly at sea in responding. I think that I took down the Minister’s words exactly and that she said that the provisions had been crafted deliberately and were “as robust as possible.” My concern is that the wording

“in the course of his functions”

pertains only, in clause 9, to an electoral officer or a court official. When the provisions of proposed new article 26A(4), for example, were crafted deliberately, and as robustly as possible, in relation to

“a person...who is...a member of the police service”,

the drafting was altogether different. The provision applies to a member of the police service,

“who obtained the juror information for or in connection with the making of checks, in accordance with jury check guidelines”.

It is not similar to the drafting with respect to electoral or court officials, with its reference to information obtained

“in the course of his functions”.

I am somewhat bemused by the differences in the carefully crafted drafting of the Bill. The Minister indicated that it is to be “as robust as possible,” but one would have thought that consistency of language between the lines of one clause would have helped to make it more robust and give the appearance that it had been deliberately crafted to be robust.

Bridget Prentice (Labour, Lewisham East)

Let me clarify matters. Other officials are also included for specific purposes in relation to jury checks. All those officials are dealt with in specific ways relating to their duties in respect of checks on juries, so there is consistency.

Sylvia Hermon (UUP, North Down)

That is extremely helpful, and it is good to have it on the record. I appreciate the Minister’s point, which supports the conclusion that I had already reached, which is that I shall seek the Committee’s permission to withdraw the amendment. The discussion on the clause has been helpful, and I beg to ask leave to withdraw the amendment.

Clause 13

Sylvia Hermon (UUP, North Down)

I want to make a few comments on the clause before we nod it through. We have moved on to an interesting chapter on the Northern Ireland Human Rights Commission, and perhaps I can set out some of the background for the benefit of those Committee members who may not be so familiar with the various and numerous commissions in Northern Ireland, whose numbers are growing—we may be a small jurisdiction of 1.7 million people, but we have commissions second to none.

The Human Rights Commission was one of the early commissions. One of the many outstanding achievements of the Belfast agreement signed on Good Friday was that it set in train the establishment of two statutory bodies—the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. That would remain an outstanding achievement even if the agreement were to fall tomorrow, which it certainly will not; now that the Democratic Unionist party is prepared to operate the agreement, it has a long and bright future. The Northern Ireland Act 1998 gave the Human Rights Commission specific powers and put the provisions of the Belfast agreement—the international agreement between the Irish and British Governments—on a statutory footing.

If we agree to it, clause 13 will significantly extend the powers of the Human Rights Commission, which is why I should like to draw the Committee’s attention to it for a few minutes. The present wording allows the commission to institute or intervene in human rights proceedings where it is not a victim or a potential victim of an unlawful act and where no award of damages can be made to it.

I am sorry to be a pedant, but will the Minister clarify the use of the word “and” in subsection (2), where we again have a curious construction? Four conditions must be met:

“(a) the Commission need not be a victim or potential victim...(b) section 7(3) and (4) of the Human Rights Act...shall not apply...(c) the Commission may act only if there is or would be one or more victims of the unlawful act, and”—

the conjunction “and” appears only there, at the end of subsection (2)(c)—

“no award of damages may be made to the Commission”.

Will the Minister confirm that human rights proceedings must be ongoing in Northern Ireland and that the commission will not be given a free rein? That is not to criticise the commission—some parties are extremely critical of it, but I am not. However, clause 49—we will come to it in due course, but presumably not this morning—extends the powers of the commission in clauses 13 to 19, beyond Northern Ireland, to England, Wales and Scotland. The hon. Member for Tewkesbury and other Members should consider clause 13 and the extent of the powers that the commission will have in their constituencies.

I would appreciate clarification on clause 13 and the intended remit of the commission, which is regional, unlike the Paris principles of 1991, which are often quoted in support of extending the commission’s powers. The principles pertain to national human rights organisations such as the Irish Human Rights Commission, not to the Northern Ireland Human Rights Commission, which is regional. So will the Minister explain the extent of its powers in clause 13?

Laurence Robertson (Conservative, Tewkesbury)

I welcome you to the Chair, Mrs. Anderson. I had not intended to speak to clause 13 because I have two amendments to clause 14, although those could have been tabled under this clause. I am concerned about clause 13(2)(c), which says that

“the Commission may act only if there is or would be one or more victims of the unlawful act”.

To save time in our discussions on the next clause, I would like the Minister to answer one brief question: is an unlawful act not better investigated by other authorities? That is the motivation behind my amendments to the next clause, but it might be more convenient for him to answer that question now.

Paul Goggins (Labour, Wythenshawe and Sale East)

I, too, welcome you to the Chair, Mrs. Anderson. I shall respond briefly to the questions put by the hon. Members for North Down and for Tewkesbury. We are now at an important stage of the Bill dealing with the Northern Ireland Human Rights Commission. As always, I applaud the work of the hon. Lady in looking at the detail of the clauses. I shall look carefully at the wording, to which she drew the Committee’s attention, to ensure that it is appropriate.

The hon. Lady is right that clause 13 gives power to the commission to institute legal proceedings provided that there is a victim, even if that is not the commission itself. Rather than a whole host of individuals pursuing legal proceedings, the commission could instigate a test case in order to clarify a point of law instead of relying on individuals to do so. That mirrors the provisions granted to the Commission for Equality and Human Rights in Great Britain through the Equality Act 2006. She drew attention to provisions elsewhere that will bring legislation on the Northern Ireland Human Rights Commission in line with legislation in Great Britain. As long as there is a victim, the provisions enable the commission to take on a test case.

Sylvia Hermon (UUP, North Down)

I am most grateful to the Minister for that short but precise clarification. Will he confirm that he and his officials will consider whether it would be helpful—I believe it would—to include the word “and” between paragraphs (a), (b) and (c). At the moment, the provision is not clear, and implies that

“the Commission need not be a victim or potential victim of the unlawful act”.

There could be a test case under its own volition without there being a victim.

The commission already has powers—this is where we must be careful—under the Northern Ireland Act 1998 to assist a victim of alleged human rights abuse to take legal proceedings and to support them financially. It would be helpful if the Minister could indicate whether a budgetary commitment will be given to the commission to institute proceedings and test cases when it is not the victim.

Paul Goggins (Labour, Wythenshawe and Sale East)

I do not intend to discuss the budgetary requirements of the commission now. There is a budget and the commission does its work. The provision gives extra rights to the commission and I believe the hon. Lady welcomes that. I assure her that the Committee stage of any Bill usually reveals an “and” or a “but” or an “if” or a “maybe” that is in the wrong place or that an additional “and” may be beneficial. I am happy to consider whether this is one of those instances.

Sylvia Hermon (UUP, North Down)

With that reassurance, I am delighted for clause 13 to stand part of the Bill.

Clause 14

Paul Goggins (Labour, Wythenshawe and Sale East)

On a point of order, Mrs. Anderson. I seek your guidance. If the Committee wishes to explore or to have an explanation of an amendment tabled by an hon. Member who is not present, is it normal for an explanation to be given, or do we move to the next business?

Janet Anderson (Labour, Rossendale and Darwen)

The normal procedure is to move to the next business. If an amendment is not moved, it is not possible to debate it.

Nick Palmer (Labour, Broxtowe)

On a point of order, Mrs. Anderson. Would it assist the Committee if I moved amendment No. 41 to enable it to be debated?

Janet Anderson (Labour, Rossendale and Darwen)

It is possible for the Minister to refer to the amendment on clause stand part, and I am sure that he would be happy with that.

Laurence Robertson (Conservative, Tewkesbury)

I beg to move amendment No. 15, in clause 14, page 11, line 21, at end insert

‘, and

(c) establishes that it has not been investigated by another person because it has been determined that it most properly falls to the Commission to carry out such an investigation.’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments: No. 16, in clause 14, page 11, line 21, at end insert—

‘(4A) The Commission shall give a reason for the issuing of the notice to the person to whom it is issued at the point of issuing it.’.

No. 42, in clause 14, page 11, line 22, leave out subsection (5).

No. 44, in clause 14, page 12, line 1, leave out subsection (10).

Laurence Robertson (Conservative, Tewkesbury)

As I said briefly during the short debate on the previous clause, I have one or two concerns about the extension of the commission’s powers, to which the hon. Member for North Down referred. It already has considerable powers under section 69(8) of the Northern Ireland Act 1998 which states:

“For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.”

That is a wide-ranging power and the clause extends it.

My concern is that under clause 13(2)(c)

“the Commission may act only if there is or would be one or more victims of the unlawful act”.

The word “unlawful” prompted me to move the amendment, because if there is an unlawful act, why would it not be more properly investigated by other authorities?

Amendment No. 15 would require the commission to establish that there has been no investigation by another person because it has been determined that it most properly falls to the Commission to carry out such an investigation.

Under amendment No. 16,

“The Commission shall give a reason for the issuing of the notice to the person to whom it is issued at the point of issuing it.”

I am asking the Minister to explain why an unlawful act would be investigated by the commission. Surely other bodies might more properly investigate such an act.

Paul Goggins (Labour, Wythenshawe and Sale East)

I suspect that there is little difference on this issue between ourselves and those on the Opposition Front Bench. The hon. Gentleman is right that, in practice, the commission should work with other appropriate bodies to determine the appropriate body to pursue a particular investigation. Working arrangements are already in place between the commission and similar investigatory bodies. That matter is best dealt with by memorandums of understanding rather than the Bill.

The amendment takes us a shade too far. These investigations and the kinds of issue that the commission will examine are necessarily complex. While we would expect agreement between the relevant bodies as to which was the appropriate one to pursue a particular case, the commission might believe that another body has failed in its duties by not pursuing a particular inquiry. We want to leave in place the power for the commission to pursue such an investigation if it so decides. The normal procedure that we would expect is that when a complaint is made, consideration would be given as to the appropriate body. Sometimes investigations would be carried out jointly between two or more bodies. The commission might make a considered judgment that another investigatory body ought to have conducted an investigation and has not done so, and therefore we wish to leave the power in the Bill for the commission to follow that through.

Sylvia Hermon (UUP, North Down)

I am enormously concerned about what the Minister has just said. There are other investigatory bodies in Northern Ireland, such as the Police Service of Northern Ireland and the Police Ombudsman for Northern Ireland. Is the Minister telling the Committee that if the Human Rights Commission, under clause 14(4), which is being called into question by the hon. Member for Tewkesbury, takes into its head that the PSNI and the Police Ombudsman for Northern Ireland have not investigated a matter sufficiently, it can have a second bite of the cherry? Police officers on the ground would not be amused or entertained by that idea.

Paul Goggins (Labour, Wythenshawe and Sale East)

The powers in the Bill would allow that to happen. The hon. Lady is assiduous, so she will have looked elsewhere in the Bill and seen that terms of reference have to be given for an investigation. There is also an opportunity for the subject of the investigation to appeal against the decision to the county court. Safeguards are in place for the person who is to be investigated. For example, if the Human Rights Commission wishes to enter a place of detention, there can be an appeal. The commission could not act recklessly, but we want to leave in place the power for it to conduct an investigation if it believes that other investigatory bodies have not carried out what it regards as their duty.

Peter Bone (Conservative, Wellingborough)

It is a pleasure to serve under your chairmanship for the first time, Mrs Anderson. Will the Minister clarify a point? If the police had investigated and had made a decision that the commission does not agree with, could that be investigated or would that decision be final?

Paul Goggins (Labour, Wythenshawe and Sale East)

If a complaint is made and the commission judges that another body ought to have conducted an investigation and has not done so, it can carry out that investigation. The Bill empowers it to do so. The hon. Lady praised the commission for some of the work that it has done in recent years and, on Second Reading, she made some powerful arguments in that regard. The commission is a responsible body that behaves responsibly, and it is given these powers so that it can carry out its work.

For the most part, we expect either that another body will carry out the investigation, that it will be done jointly, or that the Human Rights Commission will be the most appropriate body to do it, but we leave the powers in place because they are important.

Sylvia Hermon (UUP, North Down)

The Minister has taken the wind out of my sails by confirming my worst fears about what we are doing. He knows perfectly well that the historical inquiries team was set up at great expense—it cost millions of pounds—to investigate the 3,000 unsolved murders in Northern Ireland. There is also a commission looking into the disappeared—those ghastly, grisly murders by the IRA in which the bodies were not returned to the families. Is he confirming that if the Human Rights Commission decides that anyone—the police ombudsman, the historical inquiries team or the PSNI—has not investigated a matter sufficiently, it can reopen the inquiry, so that we end up with a truth commission by another name? Is that really what we will get from this provision?

Paul Goggins (Labour, Wythenshawe and Sale East)

I honestly believe that the hon. Lady is unnecessarily concerned. There are, as she says, many other oversight bodies in Northern Ireland, such as the police ombudsman’s office and the historical inquiries team within the PSNI. If one of those bodies undertook an extensive investigation into a complaint and formed a conclusion, that investigation would have been carried out. If the investigation has been carried out, then it has been done. It is only if the investigation has not been carried out and the Human Rights Commission believes that it should have been that it has the power to do so.

I hope that that clarifies the matter and addresses her concerns. There is no opportunity for the commission endlessly to reopen investigations that have been carried out. If other oversight bodies have conducted investigations, they have fulfilled their obligations. It is only if they have not carried out an investigation that the commission may act.

Sammy Wilson (DUP, East Antrim)

The Minister says that the measure applies only if an investigation has not already been carried out, but that is not indicated in the clause. We know from experience in Northern Ireland that even when there have been extensive police investigations into a case—sometimes two or three—the police ombudsman’s office will, for particular reasons, decide to rake over those coals again. What in the clause prevents the Human Rights Commission, which is trying to establish some credibility after a stormy period, from doing the same thing?

Paul Goggins (Labour, Wythenshawe and Sale East)

I draw to the hon. Gentleman’s attention, as I did the hon. Member for North Down, the other provisions. It is only if the Human Rights Commission believes that a complaint has been insufficiently investigated that it can carry out its own inquiry. It is required to place on record the terms of reference for that investigation, and has to give them to the person or persons who are being investigated. Also, there is a right of appeal against the investigation being carried out. While the clause extends powers, we have safeguards in place to ensure that no frivolous investigations can be carried out.

Laurence Robertson (Conservative, Tewkesbury)

When I met the Human Rights Commission some months ago, I asked what number of cases it deals with. I cannot remember the exact number, but it passes on to the relevant agencies something like 90 per cent. of the cases that are referred to it. If the relevant agency does not then carry out an investigation to the commission’s satisfaction, is the commission able to take it up again? That seems a ridiculous duplication.

Paul Goggins (Labour, Wythenshawe and Sale East)

Let us be clear about this, and I am grateful to the hon. Gentleman for pointing out that the agreements between the various oversight bodies work in practice. The Human Rights Commission does not seek to investigate everything. If it believes that a complaint is better suited to another oversight body it passes it on. The fact that the Human Rights Commission might suspect that it would come to a different conclusion would not be grounds to carry out its own investigation. Only if the commission believed that the other body concerned did not carry out an investigation that should have been carried out, or if it believed that the other body had investigated insufficiently, would it have the power to carry out its own investigation, subject to all the safeguards that I have described—the need to present terms of reference and the opportunity for challenge and appeal.

I have no doubt that in practice a very sensible approach will be adopted to the arrangements, that the agreements between oversight bodies will continue to work as effectively as they do, and that no frivolous investigations will be carried out, because of the safeguards in the clause.

Sammy Wilson (DUP, East Antrim)

The Minister has indicated that he believes the Human Rights Commission has not sought to overstep its powers; indeed, he cited evidence given by the hon. Member for Tewkesbury. Does he accept that in many ways the Human Rights Commission has already overstepped its remit by commenting on the war in Iraq, education matters, such as the ending of the 11-plus, and numerous other things? That trend within the Human Rights Commission is already evident. Does he accept that the clause provides an opportunity for it to overstep its remit further?

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman himself—I give him credit for it—previously highlighted the Human Rights Commission’s commitment to being seen as a credible body in Northern Ireland. I think he acknowledged that in his terms there had been positive movement in that direction. We are considering powers to carry out investigations, rather than to pass comment on matters that may or may not be of interest to the general public. I ask him to focus on the powers that are being given in the clause.

I do not think that the hon. Member for Tewkesbury referred—not in great detail, anyway—to amendment No. 16, which would require the commission to provide a reason for issuing a notice for evidence at the point of its issue. I agree with the sentiment, although as the hon. Gentleman will have noted and as I have mentioned, clause 16 would require the provision of terms of reference, including the specifying of a period in which the investigation must be concluded. That requirement will be sufficient and I hope that he will be satisfied with that.

I shall reserve any other comments that I might have made on other amendments in the group for another opportunity.

Laurence Robertson (Conservative, Tewkesbury)

I am grateful for the Minister’s explanation of the way in which the clause is worded. I remain concerned, however, for the reasons that I and other Opposition Members have given. As I mentioned, the commission often in practice passes a complaint on to a body that it presumably thinks might more appropriately, at that point, investigate the unlawful acts or the other issues in question. The power then to pass judgment on whether the matter has been sufficiently investigated by the other body puts it in a very powerful position—almost more powerful, in some ways, than the police, for example. Will the commission have available to it all the facts that would be available to the police, because it is to be able to judge whether the police, for example, have sufficiently investigated the unlawful act? I am very uncomfortable with that.

That said, and having listened to the Minister’s explanation, perhaps my amendments do not fully address my concerns. I do not know whether you are minded to allow a stand part debate on the clause, Mrs. Anderson.

Janet Anderson (Labour, Rossendale and Darwen)

indicated assent.

Laurence Robertson (Conservative, Tewkesbury)

We may have to consider voting against the clause. I am not satisfied that the role of the commission is likely to be carried out properly, given the extension of its powers.

Paul Goggins (Labour, Wythenshawe and Sale East)

Let me repeat that this is not an unbridled power to examine and investigate willy-nilly anything and everything that may be of concern to the commission, and the hon. Gentleman should bear that in mind when he considers whether to support the clause. The commission must provide terms of reference and there is an opportunity to appeal against the decision to carry out an investigation—in other words, there is judicial oversight of the commission’s power to carry out investigations. Indeed, if there were any serious question that the commission was being frivolous or attempting to duplicate an investigation that had been thoroughly carried out elsewhere, its decision could be challenged in court.

I hope that the hon. Gentleman will be reassured by that when he reflects on whether to support the clause. We want to give the commission the proposed additional powers, but they are still subject to safeguards and scrutiny that would result in decisions being taken to court. I hope that that will be sufficient to encourage him to support the clause and withdraw his amendment.

Laurence Robertson (Conservative, Tewkesbury)

I am grateful to the Minister again. I still have a lot of concerns about the general drift and about the way in which the commission is going. When it was set up under the 1998 Act, it had considerable powers, and it could be argued that they are quite sufficient. I am uncomfortable about giving the commission further powers, including the power to consider whether

“the matter to which the notice relates has already been sufficiently investigated by another person”,

but we will see how the clause stand part debate goes. For now, however, I do not think that the amendments are sufficient, so I shall not press them. I beg to ask leave to withdraw the amendment.

Sylvia Hermon (UUP, North Down)

In fairness to the hon. Member for Foyle, who is not here to move his amendments, let me say that he diligently attends to all his parliamentary duties in the House, but that he had to fly to Dublin yesterday—I know that that is no excuse—and had a commitment in Belfast this morning. I am sure that no offence is intended to you, Mrs. Anderson, or to colleagues on the Committee.

I oppose the clause because I am deeply concerned about the ramifications of what we have just discussed. We have had a useful debate so far about what appeared to be a quite innocuous extension of the powers of the Human Rights Commission. I am not a great critic of the commission, as the Minister said, but I want us to be consistent and get things right, and we have the opportunity to do so while the Bill is before us.

The Minister tried to assuage the fears of the hon. Member for Tewkesbury by responding with what it is quite right to call the facts. The facts are that an appeal could be taken to the county court where the commission has served a notice on an individual and drawn up terms of reference under later clauses. That is all well and good if a person can afford to take an appeal to the county court, but let us think of the many police officers who retired under the Patten package.

After the Belfast agreement, we had the Patten report, and many police officers left what was the Royal Ulster Constabulary—I am, of course, married to a former chief constable of the RUC, although that is not relevant; I merely draw it to the Committee’s attention to it. I am extremely concerned about the situation in respect of the police ombudsman investigating complaints of alleged police misconduct by serving or past officers. Many past officers receive no financial assistance in making a court challenge to a decision of the ombudsman.

The same situation will apply when, under subsection (4), the Human Rights Commission alone decides to issue a notice when it has

“considered whether the matter to which the notice relates has already been sufficiently investigated by another person, and”

when, in its wisdom, it has

“concluded that it has not.”

The commission will make an entirely subjective decision about whether to proceed with an investigation.

Subsection (6) states:

“where the Commission thinks that a person—

(a) has failed without reasonable excuse to comply with a notice”.

Most bizarrely of all, it goes on to state:

“or

(b) is likely to fail without reasonable excuse to comply with a notice.”

The commission will decide on whether a person has failed, or is likely to fail without reasonable excuse, to comply with a notice. The matter then becomes an offence; subsection (8) states that someone “commits an offence” if they do not “comply with a notice”.

By dint of the clause, we will again give powers to the Human Rights Commission that mean that the person at the other end—the one who is receiving the notice of an investigation—is seriously disadvantaged in terms of financial support should they apply to the county court to get rid of the wretched notice.

If the Minister is intent on driving forward with the clause, I should remind him of the suggestion that I made on Second Reading. We have a chief inspector of criminal justice, a post established by the Justice (Northern Ireland) Act 2002, who can examine the Police Service of Northern Ireland, the police service reserve, the state pathologist and the Office of the Police Ombudsman for Northern Ireland. The clause gives extensive powers to the Human Rights Commission, which is not accountable to, or reviewable by, any other body, but it should be—it ought, at least, to be inspected. I urge the Minister not to tell the Committee that the commission is independent and therefore cannot be open to review by the chief inspector of criminal justice, because he knows full well that the Office of the Police Ombudsman for Northern Ireland is also a statutory independent body and that it is reviewable and can be inspected by the chief inspector of criminal justice.

The precedent has been set, so when Minister defends the clause, as he will do, I urge him to assure the Committee that he will seriously examine extending the powers of the chief inspector of criminal justice, so that people can have confidence that the Human Rights Commission is not off on a frolic of its own trailing through past cases that have already been investigated by the police ombudsman, the PSNI and various other bodies. I am horrified at the manner in which the clause stands at present, and I shall certainly vote against it.

Peter Bone (Conservative, Wellingborough)

Will the Minister answer a question on subsection (4)? It states:

“The Commission may issue a notice under subsection (1) only if it has—

(a) considered whether the matter to which the notice relates has already been sufficiently investigated by another person”.

Surely that is a Catch-22 situation. The commission has to investigate initially to find out whether there has been a sufficient investigation. The drafting is so woolly. The Minister is allowing the commission to investigate on any grounds at any time. Is that not really the case?

Sammy Wilson (DUP, East Antrim)

My view of the Human Rights Commission is slightly more jaundiced than that of the hon. Member for North Down, in the same way that my view of the Belfast agreement is much more so than that of the hon. Member for Foyle. The hon. Lady made the scurrilous allegation that my party has accepted that agreement. She need only listen to the hon. Member for Foyle and his party to know that they believe that we are practically rewriting it. But I shall leave that to one side—I just felt that I had to rise to the bait that she threw out.

The Human Rights Commission has been in turmoil. It is a newly formed body with a very turbulent first few years, in which it has shown no ability even to operate its current powers. The commissioner left under a cloud and the institution is still finding its feet. Under those circumstances, to give it more powers is inappropriate and premature. As with all groups, it is trying to establish itself and prove its worth, so the tendency will be to push the boundaries as far as possible. Clause 14 almost encourages it to do that. There is no restriction on the investigations that it could undertake. The commission will conclude whether a matter has been investigated sufficiently by another person. That is totally subjective. There is no objectivity in it at all. It will be totally dependent on the view of the commission.

The commission might see value to itself in certain cases. For instance, some might raise its profile positively, whereas others might be pursued owing to political push, or vociferous groups or individuals—that will be the tendency. The Minister said that if anyone feels aggrieved that the commission has overstepped itself and that a full investigation has been conducted already— the hon. Member for North Down pointed this out—the onus will be on them to challenge the commission’s decision, but without its resources. Do not forget that the commission is backed up by huge public resources whereas a private individual might not have any at all. Police officers in my constituency—it might not be just police officers—have found themselves in that position with the police ombudsman. There is the same potential with the commission.

I do not believe that the commission has made the case for an extension of its powers. The Minister knows that it wants to push the boundaries of its powers as much as possible—so much so, in fact, that he had to accept in the consultation document that much of what it asked to be included in the Bill could not be accepted because it went beyond what the Government see as its remit. I suspect that having turned down some of its milder requests for the extension of its powers, the Government have thrown the provisions before us as a sop to the commission. The decision to include them in the Bill should not have been made on that basis and, therefore, we will join the hon. Member for North Down in opposing clause 14.

Laurence Robertson (Conservative, Tewkesbury)

I shall not go over the arguments raised when I discussed my amendments, nor indeed those arguments put forward by the hon. Members for North Down and for East Antrim; I shall just reiterate my concern.

Clause 14 says insert “69A Investigations: evidence”, and:

“For the purpose of an investigation...the Commission may by notice in writing require a person—”

to provide information, documents, oral evidence and so forth. As hon. Members have said, there is no comeback for the person who is required to provide that evidence, unless he has unlimited funds, which few people have. I remain concerned about the extent of the powers that commission has, and indeed seeks.

In the documents that the commission sent presumably to all hon. Members on the Committee, it complains that clause 14 also severely limits the capacity of the commission to investigate anything connected with national security. My goodness, should a human rights commission be investigating matters of national security? It should not, but that is its drive. The Minister does not want it to happen, but the commission certainly does.

Paul Goggins (Labour, Wythenshawe and Sale East)

We have not had the opportunity to touch on national security issues, but the hon. Gentleman knows from examining the clauses on the Human Rights Commission that it will not be able to investigate matters of national security.

Laurence Robertson (Conservative, Tewkesbury)

Indeed, and I do not accuse the Minister of wanting the commission to do so. However, that is its drive, that is the way it is pushing and that is of great concern.

With those few remarks, I remain dissatisfied with clause 14. I look forward to the Minister’s response, although we have probably heard most of it already. We will see how we go.

Paul Goggins (Labour, Wythenshawe and Sale East)

The Minister will try not to be too repetitive, but I regret that that may be the case.

The hon. Members for North Down and for East Antrim raised the issue of legal aid. I expect that if the Human Rights Commission had issued a notice about an investigation to an individual, they would be entitled to legal aid, subject to the usual merits and means test that would apply to any legal aid application in any proceedings. However, it is important to remember that in most cases, the commission will investigate not individuals but organisations. That will be the normal type of investigation. The idea of the commission harassing and haranguing the penniless person is inaccurate.

Laurence Robertson (Conservative, Tewkesbury)

It is possible.

Paul Goggins (Labour, Wythenshawe and Sale East)

If somebody satisfied the means and merit tests, they as an individual would be able to apply for legal aid and they would have the wherewithal to counter the commission’s notice. I shall confirm that point to my satisfaction, and if turns out to be untrue I shall write to hon. Members to make them aware. For the most part, however, the commission will investigate organisations and the issue will not arise.

Sylvia Hermon (UUP, North Down)

Will the Minister point to a single clause in this extensive Bill stating that the commission will mostly investigate organisations? Is there anything in the Bill to support the claim? Without repeating what I have just pointed out to the Minister, the vast majority of retired police officers on their pensions will not qualify for legal aid. That was the problem when we discussed investigations by the police ombudsman. Such an investigation is an enormous ordeal, and to come through it and have it reopened without the assistance of legal aid—despite reassurances to the Committee—by an unaccountable Northern Ireland Human Rights Commission is unacceptable and unreasonable.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is unusual for the hon. Lady to paint an exaggerated picture, but with that argument I fear that she has. I have already assured the Committee, and I shall offer the following reassurance to her: an individual or organisation that has been through the investigation she describes would have undergone a thorough investigation, so in practice the commission would have no ground on which to conduct its inquiry and investigation. The investigation would already have been carried out thoroughly. If someone has been subjected to a thorough and long-running investigation, it is highly unlikely that the Human Rights Commission would reopen it. That would just not occur in real life, and I suggest that the hon. Lady is painting a slightly exaggerated picture.

Peter Bone (Conservative, Wellingborough)

Even in his answer the Minister said that an investigation was highly unlikely, which means that it could happen. How on earth can he guarantee that it would not when the commission has to investigate whether the original investigation was thorough enough?

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman made that point earlier. Clearly, the commission must have grounds for believing that an investigation was insufficient. I have said that that is subject to terms of reference being drawn up, and to appeal. A safeguard is in place to ensure that frivolous inquiry does not take place.

The hon. Gentleman brings us to the nub of the issue. The Human Rights Commission is independent, so there must be a point at which it is free to make its own judgment and decisions, and to carry out its own investigations. If it is not truly independent, it cannot be trusted absolutely to do the job that we expect it to do. Of course, there are restrictions in place—for example, in relation to national security—and there are safeguards in the terms of reference and appeals.

There must be an element of independence. We may not always like the investigations that are carried out or the conclusions that are reached, but the commission must have that so that it has credibility for the public generally. Being able to make a judgment on whether there has been sufficient investigation is a firm guarantee of an overall system of scrutiny in Northern Ireland that is fit for purpose and does the job.

Laurence Robertson (Conservative, Tewkesbury)

To coin a phrase.

Paul Goggins (Labour, Wythenshawe and Sale East)

Perhaps I should withdraw that comment.

In most cases, the conclusion when an investigation had already been carried out would be that a sufficient investigation had been carried out, thus guaranteeing oversight, which is considerable in Northern Ireland with the ombudsman and so on. The provision is a guarantee that the oversight system works in practice.

I am sure that hon. Members in Northern Ireland and others will be assiduous in asking questions about how many investigations are carried out and so on, and the commission will publish its own reports so we will be able to see how the system works in practice. I believe that it will be independent, albeit with greater powers that will occasionally enable it to carry out an investigation, but for the most part it will offer a guarantee that the overall system works effectively.

Laurence Robertson (Conservative, Tewkesbury)

The clause is written with reference to “person” rather than “person or organisation”, which gives rise to the concern expressed by the hon. Member for North Down. I know that it is difficult to give a specific example without warning, but could the Minister give an example of the sort of cases that the powers will enable the commission to investigate?

Paul Goggins (Labour, Wythenshawe and Sale East)

If a complaint had been made to the commission by someone in prison about something that had happened there, it would immediately refer the matter to the prisoner ombudsman. That would be the appropriate oversight person to carry out the investigation. If subsequently—perhaps six months later—the prisoner contacted the commission saying, “I was in touch with you. You recommended that the prisoner ombudsman carry out the investigation, but he has never been in touch with me,” the commission would first inquire of the ombudsman why the investigation was not carried out. If the ombudsman said, “Well, I had a look at it and decided not to do so,” and the commission felt that there were grounds for an investigation, it could investigate.

Laurence Robertson (Conservative, Tewkesbury)

It is duplication.

Paul Goggins (Labour, Wythenshawe and Sale East)

There is no duplication because, as the hon. Gentleman said, the vast majority of complaints will be handed over to the appropriate body and followed through in a thorough and timely way. The power enables us all to be certain that all complaints will be properly investigated and that an appropriate response will be made.

I want to make a little progress. I reassure the hon. Member for North Down, who at least once—twice, I think—mentioned the prospect of retired police officers being investigating by the Human Rights Commission when they had already been the subject of other investigations. The Bill includes a start date of January 2008, so the prospect of such retired officers being subjected to investigation by the commission does not arise. The commission is not part of the criminal justice system and therefore it is not appropriate that it should be under the scrutiny of an inspectorate. That is a simple matter of fact.

I want briefly to allude to one or possible arguments in relation to other propositions that might have been made. It is very important—we have included a relevant provision in the Bill—that the Human Rights Commission cannot force people to produce information that other legislation prevents them from providing. For example, if someone is prevented under data protection legislation from providing information, the Human Rights Commission cannot compel that person to provide it. The Bill makes that clear.

We spent considerable time explaining to the hon. Member for Foyle why we wanted to retain limited rights of appeal, whereas he encouraged the Committee to press for broader rights of appeal, and I am intrigued to note that some of his amendments would have removed rights of appeal altogether. I have made clear to the Committee the importance of a right of appeal against the issue of a notice, to preserve the right balance.

It is of course important that the Human Rights Commission cannot be in a position to compel the prosecution services, for example, to provide information. The prosecution service must make a judgment and it would be wrong for it to be forced to bring information about the decision in question before the Human Rights Commission.

Sammy Wilson (DUP, East Antrim)

I thank the Minister for his observation in which, perhaps unintentionally, he exposed one of the difficulties faced by the Human Rights Commission—that it is seen as a fairly partisan body with which those on the nationalist side would have more sympathy and which they would regard as more sympathetic to their point of view than to others. I suspect that that is why the hon. Member for Foyle, who is not here to answer for himself, wants fewer powers of appeal against the Human Rights Commission than he wanted in relation to matters that we discussed earlier.

Paul Goggins (Labour, Wythenshawe and Sale East)

We can only speculate about arguments that might have been put to the Committee. However, I am sure that the hon. Gentleman will agree that we need to arrive at a point in Northern Ireland at which all the relevant bodies—whether the Human Rights Commission or the Police Service of Northern Ireland—serve the interest of all communities there, and are perceived to be doing so.

In conclusion, the fines in the clause are appropriate. Furthermore, it is important that we have an exclusion for matters of national security intelligence because it would be quite wrong if the commission were in a position to force intelligence to be passed into its hands and into the public domain. It is therefore important that we have the relevant restriction in place.

Janet Anderson (Labour, Rossendale and Darwen)

We were now to have discussed amendment No. 46 to clause 15, in the name of the hon. Member for Foyle. Let me say for the benefit of the Committee that the hon. Gentleman did me the courtesy of sending me a letter explaining that he would not be able to be here this morning, but that he hopes to be here this afternoon.

Clause 19

Alan Reid (Liberal Democrat, Argyll and Bute)

I beg to move amendment No. 52, in clause 19, page 15, line 35, leave out ‘1st January 2008’ and insert

‘the coming into force of this section’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss amendment No. 53, in clause 50, page 29, line 20, at end insert—‘( ) section 19;’.

Alan Reid (Liberal Democrat, Argyll and Bute)

It is a pleasure to serve under your chairmanship this morning, Mrs. Anderson.

The amendments would allow the commission to start investigations when the Bill comes into effect, rather than on 1 January 2008, as laid down in the clause. On Second Reading, we raised concerns about the clause preventing the commission from using its new power to compel evidence retrospectively, except in situations existing on, or arising after, 1 January 2008. The commission will be prevented from investigating anything that has already happened or which may happen in the rest of the current year.

The clause will prevent the commission from compelling evidence or accessing a place of detention for the purpose of investigating any matter relating to the period before 1 January 2008. The commission could not, for example, require the production of any document created before that date, even if it was directly relevant to a human rights violation that existed on or after 1 January 2008. That is an unnecessary restriction.

The effect of the time limit is particularly severe in relation to gathering evidence. It is difficult to imagine how any alleged human rights violation could effectively be investigated without looking to events and information in the time leading up to it. In practice, it could be a considerable time after 1 January 2008 before the commission could effectively use its powers.

The clause creates a notable anomaly in relation to the protection of human rights in Northern Ireland, as opposed to other jurisdictions in the UK. In Great Britain, the existing equality bodies already have powers to compel evidence, and the new Commission for Equality and Human Rights acquired similar powers under the Equality Act 2006.

The Scottish Commission for Human Rights Act 2006 contains not only evidence powers, but a right of entry to places of detention without any time restrictions. Thus in England, Scotland and Wales, the equivalent bodies of the Northern Ireland Human Rights Commission have and will have powers with no arbitrary time limit. The same is also the case in the Republic of Ireland, where the Irish Human Rights Commission, which was established in parallel with the Northern Ireland Human Rights Commission as a result of the Belfast agreement, has extensive powers to compel evidence with no such time limit. The agreement, and the corresponding treaty, committed the United Kingdom and the Republic of Ireland to maintaining an equivalent level of protection of human rights in Northern Ireland and the Irish Republic.

Having regard to the particular circumstances of Northern Ireland, the Committee will want to consider whether, in the interests of normalisation, confidence building and conflict resolution are served better by enabling or blocking the investigation of past human rights violations. The commission’s primary focus should always be on preventing such abuses, but its effectiveness in that regard, particularly in relation to its credibility with public authorities, is hardly enhanced by fettering its discretion as to what it may or may not investigate.

As I have said before, the treatment of other oversight bodies is illuminating. The Commission for Equality and Human Rights, established under the Equality Act 2006, has powers to investigate with no limitations on timing. The Equality Commission for Northern Ireland has numerous powers of investigation that are not subject to limitation based on the time at which the matter being investigated arose. The Commissioner for Children and Young People (Northern Ireland) Order 2003 specifically applies, in article 27, to matters that come before it. We should also consider the RUC (Complaints, etc.) Regulations 2001. However, under regulation 6, in cases where a police officer may have committed an offence or may be subject to disciplinary proceedings, the ombudsman has discretion if she believes that the matter should be investigated because of the gravity of the matter or the exceptional circumstances. In suitably grave matters, the Police Ombudsman for Northern Ireland investigates matters stretching back to the 1970s.

Clause 19 serves no useful purpose in terms of the protection of human rights and should either be left out or amended. Our amendment would mean that the powers under clause 19 would come into effect with the passing of the Bill. I see no reason for the delay until January 2008. It is not just investigations after 1 January 2008 that would be hindered. Investigations after that date would be hindered by the clause, because the commission would not be able to acquire documents created before that date.

We have reservations about the clause as a whole, but it could be improved by bringing forward the implementation date from 1 January 2008 to the date when the Bill comes into effect.

Paul Goggins (Labour, Wythenshawe and Sale East)

I will not detain the Committee long on this issue. The Committee will be aware of the bodies and public inquiries in existence in Northern Ireland, which look back into history and try to deal with matters. There is the historical inquiries team within the PSNI, the police ombudsman and so on. My right hon. Friend the Secretary of State is clear that the new powers that we are giving to the Human Rights Commission should be forward looking. That is why we set the start date of 1 January 2008.

There is a technical flaw with the hon. Gentleman’s proposal. He seeks to delete the date of 1 January 2008 in one part of the clause but leaves it in subsection (3). He might want to reflect on that when deciding whether to withdraw his amendment.

Since Second Reading there has been some discussion between my right hon. Friend and the Human Rights Commission, not with a view to opening up endless investigations into the past, but about some concerns of the commission about conducting its present business because of the implementation date that we have set. We are giving that matter some consideration.

I have listened to the hon. Gentleman’s arguments and if we decide to make any changes, we shall table our own amendment on Report.

Alan Reid (Liberal Democrat, Argyll and Bute)

In view of what the Minister has said, I beg to ask leave to withdraw the amendment.

Clause 20

Laurence Robertson (Conservative, Tewkesbury)

I beg to move amendment No. 18, in clause 20, page 16, line 11, leave out ‘necessary’ and insert ‘reasonable’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments:

No. 19, in clause 20, page 16, line 12, at end insert

‘, if he suspects that he may be able to provide information about a recent explosion or another recent incident endangering life, or the effects thereof.’.

No. 20, in clause 20, page 16, line 14, leave out ‘necessary’ and insert ‘reasonable’.

Laurence Robertson (Conservative, Tewkesbury)

The amendments refer to the stop and question powers of a member of Her Majesty’s forces on duty or a constable. The clause says:

“A member of Her Majesty’s forces on duty or a constable may stop a person for so long as is necessary to question him to ascertain his identity and movements.”

Why is “necessary” used rather than “reasonable”, which is more frequently used in such cases? Another amendment in the group before us would qualify subsection (1) by adding

“if he suspects that he may be able to provide information about a recent explosion or another recent incident endangering life, or the effects thereof.”

My amendments would offer a belt and braces approach: one tries to change the wording to “reasonable” rather than “necessary”; and another would add the provision that there must be a good reason to stop and question people. Why has the Minister approached the issue as outlined in the clause?

Paul Goggins (Labour, Wythenshawe and Sale East)

It is always an interesting stage in Committee when we start debating the difference between words like “reasonable” and “necessary”. However, the hon. Gentleman makes an important point. For the understanding of the court, “necessary” has a better and clearer meaning than “reasonable”. “Reasonable” would cast the mind over a wider range of circumstances, and the important point is that the provision takes into account the mind of the officer when they make their decision to carry out their actions. Their mind cannot lack certainty or clarity when they make that decision. If they were to make a decision that turns out to have been unnecessary, it would be discovered in due course and they would have to face up to the consequences. “Necessary” is clearer in law than “reasonable”, and we want to provide for certainty in such circumstances.

Laurence Robertson (Conservative, Tewkesbury)

The Minister knows that “reasonable” is the most important word in the legal system, because, as we discussed in a previous sitting, the man on the Clapham omnibus uses it to determine what is reasonable. We cannot discard the word; it is in almost if not every Bill that we pass. Why is “necessary” used here? If we consider the matter in terms of the person being stopped, “necessary” means potentially forever.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman makes an important point about “reasonable” and its significance, but he must consider a situation in which an officer has to make a decision about whether to stop and question an individual. The certainty provided by “necessary” enables the officer to make a quick decision, which they will need to make in the circumstances. “Reasonable” would cause them to reflect longer in order to satisfy themselves that their actions were reasonable. In that period something may happen: the person may disappear or an event may take place. We seek to provide for certainty in the mind of the officer when they make that decision. “Necessary” does so; “reasonable” would make for wider consideration.

Nicholas Winterton (Conservative, Macclesfield)

I remind the Committee that, with this, it will be convenient to discuss the following amendments: No. 19, in clause 20, page 16, line 12, at end insert

‘, if he suspects that he may be able to provide information about a recent explosion or another recent incident endangering life, or the effects thereof.’.

No. 20, in clause 20, page 16, line 14, leave out ‘necessary’ and insert ‘reasonable’.

I think that, when the sitting adjourned this morning, the Minister was responding to an intervention from the hon. Member for Tewkesbury. I may have got that wrong, but I call the Minister anyway.

Paul Goggins (Labour, Wythenshawe and Sale East)

I suspect, Sir Nicholas, that the only person who can remember is the Hansard reporter, but we shall proceed anyway.

I think that I was finally about to persuade the hon. Gentleman that the word “necessary” was preferable to the word “reasonable”. Let me give an example of why “necessary” is the right word to use here. For instance, an officer could detain an individual, stop them to question them and ask them for details of their home address. After the individual gives some information, the officer may ask, “Well, what colour is your front door then?” When the person answers that question, the officer may then ask, “What street is the next street?” When the person answers, the officer must send someone to check whether that information is accurate. If it is accurate, the person will be released; if there are further grounds for questioning, the questioning will continue. In other words, that officer can detain that individual for as long as it is “necessary” to carry out those inquiries. “Necessary” is a more black-and-white, a more certain word than “reasonable”, which, as I suggested earlier, offers too much room for doubt and uncertainty.

Peter Bone (Conservative, Wellingborough)

I am not following this argument, because what the Minister is really saying is that all previous legislation containing the word “reasonable”, which has long been accepted as the right word, is wrong.

Paul Goggins (Labour, Wythenshawe and Sale East)

I do not suggest that for a minute. The hon. Gentleman is playing a substantial role in the Committee’s deliberations, and I thank him for that.

“Reasonable” is the correct word in other circumstances, but we are discussing extreme circumstances, in which an officer has considerable concerns about a particular individual and perhaps needs to check certain information. It is important in those pressured circumstances that the officer has certainty, and the word “necessary” gives the degree of certainty that we feel is essential. There is a judgment to be made here. I began my remarks by saying that judging the difference between the word “reasonable” and the word “necessary” is a fine judgment, but we think that the word “necessary” is the right one here.

In conclusion, I would like to deal with the other amendment that the hon. Member for Tewkesbury has tabled, which relates to limiting questioning to instances in which there was a suspicion that someone had information regarding an explosion or an incident that would endanger life. It would simply be impossible to conduct any kind of random stop-and-search operation if we were to accept that amendment. I hope that the hon. Gentleman will understand that, if a threat is made against a particular meeting, building or event, it may be necessary for the Army or the police to mount some kind of surveillance operation, perhaps involving some rolling surveillance cordon. If they were not able, to some degree, to make a random selection of individuals, it would make that operation extremely difficult. Obviously, all such operations need to be carried out carefully, sensibly and sensitively, particularly in certain parts of the community, but we believe that the constraint that the hon. Gentleman’s amendment would give would make it very difficult for the police and the Army to do their job.

Laurence Robertson (Conservative, Tewkesbury)

The wording of amendment No. 19 is lifted from elsewhere in the Bill, so the Government accept that such a situation is the only time that individuals can be stopped for this particular kind of questioning. Subsection (2) says:

“A member of Her Majesty’s forces on duty may stop a person for so long as is necessary to question him...about a recent explosion or another recent incident endangering life...what he knows about a person”.

That qualifies why individuals can be stopped under subsection (2). Subsection (1) does not actually state why the member of Her Majesty’s forces or the constable would want to stop that person; they could just stop them for no reason at all for as long as they feel necessary. I suggest that subsection (1) is at least badly worded, and probably worse than that.

Paul Goggins (Labour, Wythenshawe and Sale East)

I simply ask the hon. Gentleman to reflect, as I know he does, on the context in which we are moving the clause. We are moving to normalisation, under which part VII of the Terrorism Act 2000 will be repealed, but we need specific powers in place to deal with some of the extreme situations with which the law enforcement and the security services have to deal.

I again draw on the experience of Whiterock. Officers have very little time to make judgments, decide and act to preserve law and order or detain people who may be responsible for lawlessness and worse. It is to deal with those extreme and pressing circumstances that we seek such powers. We have judged them necessary. I ask the hon. Gentleman, in assessing whether to support the clause, to bear in mind the context in which we are proposing it.

Laurence Robertson (Conservative, Tewkesbury)

The Minister used an interesting phrase when he said that the context was that wewere moving toward normalisation, but the word “necessary” is not normal in this context; the word “reasonable” is. I am afraid that he has done the reverse of selling the case to me.

On the reasonable test of the man on the Clapham omnibus, I came in by bus this morning, so I consider myself that reasonable man. Members in Committee yesterday probably did not think so, but that was a different matter. I have watched a video of Whiterock with the police, and it was a terrible situation. If a constable or member of Her Majesty’s forces needed to detain someone hurling rocks at the police—as some were—in order to question them about their identity and movements and if that person did not comply, I would think that the person questioning them would be entitled to detain them for a substantial amount of time. I would consider that reasonable. What I do not consider as moving toward normalisation is the insertion of the word “necessary”. It is open-ended and not generally accepted as a legal term, whereas “reasonable” most certainly is. Given that, I am sorry to tell the Minister that I am not happy with his explanation and that I will press the amendment to a Division.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 32, in clause 20, page 16, line 25, after ‘to’, insert ‘six months imprisonment or’.

It is a real pleasure to see you back in the Chair this afternoon, Sir Nicholas, to take us through more clauses of an interesting Bill. With your leave, I apologise to my Committee colleagues, as I was called away to a meeting outside the House this morning and missed the exciting debate, particularly about the provisions concerning the Northern Ireland Human Rights Commission.

My amendment relates to what I think is the proportionate punishment for not complying with a reasonable—in fact, as the Minister has now told us, necessary—provision for Her Majesty’s forces on duty to have certain powers of stop and question. The Minister, in response to the hon. Member for Tewkesbury, reminded the Committee that the Government were attempting to deal with “extreme circumstances”, such as Whiterock, which was a vicious outbreak of rioting in September 2005 in Belfast that spilled over into my constituency of North Down. Yes, I am well aware of the nasty circumstances in Whiterock.

Let us consider what is in clause 20. Subsection (1) says:

“A member of Her Majesty’s forces on duty or a constable may stop a person for so long as is necessary”.

Subsection (2) adds:

“A member of Her Majesty’s forces on duty may stop a person for so long as is necessary to question him”

about very serious matters—

“(a) what he knows about a recent explosion or another recent incident endangering life”

or

“(b) what he knows about a person killed or injured in a recent explosion or incident”.

The member of Her Majesty’s forces on duty is not stopping the person to question them about bird watching or another light matter, but about serious issues— about a person killed or injured in a recent explosion or some other incident endangering life. However, in punishment for failing to stop to answer such questions—which the Minister has assured us are “necessary” bearing in mind the circumstances of,for example, Whiterock—for refusing to answer the questions or for failing to answer the questions to the best of his knowledge or ability, a person is merely “guilty of an offence” and liable

“to a fine not exceeding level 5 on the standard scale”.

Roughly translated, that is about £5,000. Frankly, I do not think that that penalty is at all proportionate to the serious matters that a member of Her Majesty’s forces may stop and question a person about.

The intention of my amendment is, first, for the Minister to accept the amendment, which would be the best judgment. However, he might be unable to accept the amendment at this early juncture and might need a little time to reflect on how to get the provision right. I therefore urge him to make the punishment fit the crime and to be proportionate to the serious issues that he has drawn to the attention of the Committee when responding to earlier amendments in the name of the hon. Member for Tewkesbury. With those words, I look forward to the Minister’s response.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to the hon. Lady, as ever, for probing and for scrutinising every aspect of the Bill. It is important that penalties are proportionate tothe offence. It is also important that penalties are consistent throughout the legislation. As set out in schedule 3, an offence of failing to stop is punishable by a fine up to level 5, the same penalty that we are proposing in clause 20.

The hon. Lady should consider that the clause deals specifically with the offence of failing to stop. It may be that a person refuses to stop because they have a grudge against the police or Army but, of course, it is important that there is a penalty for someone who fails to stop in whatever circumstances. A person may not have committed any offence or have any further information to offer but, even so, failing to stop would be an offence. If a person had committed a more serious offence, if they were actively engaged in violence or inciting violence and so on, they could be arrested by the police, taken away and placed in custody. There is no question that a person behaving unlawfully can be arrested under other legislation. Clause 20 deals merely with the offence of failing to stop.

I made it clear earlier in the debate that it may be necessary to use the powers to stop and question randomly. It may be that surveillance is drawn up on a particular event and that people are stopped and questioned randomly. In those circumstances, we regard the fine of up to level 5 to be proportionate for the simple offence of failing to stop. If a more serious offence is being committed—if people’s lives are endangered, or violence incited—it would be up to the police to arrest the individual involved and deal with them appropriately.

Sylvia Hermon (UUP, North Down)

Will the Minister confirm what the penalties are if we are talking about a constable in the Police Service of Northern Ireland? There is a question of consistency, because clause 20(1) refers to

“Her Majesty’s forces on duty or a constable”.

Will the Minister assure the Committee that the penalties for the offences of failing to reply, refusing to answer to the best of one’s ability or refusing to answer at all a question posed by a constable of the PSNI, and not merely a failure to stop, are punishable merely with a £5,000 fine?

Paul Goggins (Labour, Wythenshawe and Sale East)

They are, and we believe that the penalties are proportionate. However, if a person acted in a violent way to an officer or to a member of the public in the course of failing to stop, that would be a more serious, arrestable offence, which could carry a sentence of imprisonment. We regard the penalty as proportionate for the actual offence of failing tostop. Indeed, we have consistently applied that proportionality in the Bill. Clearly, such things are a matter of judgment, but we regard a fine of up to level 5 as appropriate for the simple offence of failing to stop, and that that is proportionate and consistent with other measures in the Bill.

Sylvia Hermon (UUP, North Down)

The Minister has repeatedly implied, or has expressly said, that the only offence that can be committed under clause 20 is simply that of failing to stop. With the greatest respect to the Minister, and though I am about to disagree, the offences are listed in clause 20(3):

“A person commits an offence if he —

(a) fails to stop when required to do so...

(b) refuses to answer a question addressed to him, or”—

Paul Goggins (Labour, Wythenshawe and Sale East)

I have no quibble with the hon. Lady. Inadvertently, I was using the term “failure to stop” as shorthand for all that is contained in clause 20(3). She is entirely right.

Sylvia Hermon (UUP, North Down)

As ever, and characteristically, the Minister is entirely gracious. He was paraphrasing and using shorthand, which he has acknowledged. He meant to say that there are various offences, because we have the conjunction “or” in clause 20(3). The offence is not only

“failing to stop when required to do so”

but

“refusing to answer a question addressed to him”

and failing to

“answer to the best of his knowledge and ability a question addressed to him”

about

“a recent explosion or another recent incident endangering life”

or “a person killed”.

I know that the Minister does not think that life is cheap in Northern Ireland. For an incident in which someone’s life is endangered or they are killed or injured, I would like to think that a corresponding term of imprisonment would be an alternative to the £5,000 fine.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Lady helps the Committee to get nearer to the point. If a police officer has evidence that an individual has carried out or been connected with a violent act such as the setting of explosives or some other heinous crime, the officer has the power to arrest that individual. Any obstruction would carry its own penalties. If the individual were found guilty of those more serious crimes, they would go to prison and rightly so. The provision relates simply to somebody who has failed to stop; they may be completely innocent of any other crime. We think that the fine is a sufficient, proportionate penalty. If there are grounds to believe that somebody has committed a more serious offence, they should be arrested and dealt with.

Sylvia Hermon (UUP, North Down)

The Minister is as persuasive as ever, but he has highlighted a particular error in the drafting of clauses 20 and 22. I would like to draw hon. Members’ attention to an ambiguity that gives rise to some confusion, which the Minister just inadvertently put his finger on. Clauses 20 and 22 both begin with the words:

“A member of Her Majesty’s forces on duty or a constable”.

The rest of clause 20 does not talk about a constable, however. My amendment attaches to subsection (2), which is exclusively about a member of Her Majesty’s forces. Clause 22, however, contains the two alternatives of a member of Her Majesty’s forces or a member of the Police Service of Northern Ireland, and then deals only with the powers of one or the other. It is extremely confusing.

The Minister has just assured the Committee that if a more serious offence has been committed and if the person resists or is violent towards the officer, the police constable can arrest the individual. Sorry, Minister: in clause 20(2), that is the power of

“Her Majesty’s forces on duty”.

Mercifully, we do not have joint patrolling. In the horrible, awful days of the killings and of hundreds of deaths in Northern Ireland, we had joint operations.

The Minister indicated that these provisions were brought forward to deal with the extreme situation of the loyalist rioting in Whiterock in Belfast in September 2005. We witnessed on our television screens those absolutely disgraceful pictures, which were flashed around the world. It was the worst possible publicity for Northern Ireland.

We are trying to move towards a more peaceful, stable Northern Ireland, but the drafting of clause 20 deals with a member of Her Majesty’s forces on duty on his own, not on a joint operation. He cannot turn to his PSNI colleague and say, “You can use your powers.”

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall try to clarify the differences to which the hon. Lady has referred. Clause 20 refers to a

“member of Her Majesty’s forces on duty or a constable”

because when part 7of the Terrorism Act 2000 is repealed, neither will have the power to stop and question. If we look at clauses 21 and 22—I stray slightly, but only to make the point—we will see that they apply only to members of Her Majesty’s forces, because the police already have sufficient powers to carry out the actions that the clauses cover, whereas Her Majesty’s forces do not. An Army officer is not in a position to make an arrest, for example, and clause 21 will give him that power. That reinforces the point that our approach has been minimalist; we have identified the minimum powers necessary after July 2007 to have the wherewithal to maintain public order and deal with extreme circumstances.

Sylvia Hermon (UUP, North Down)

I am absolutely fascinated by that response. If a police constable in Northern Ireland already has those powers and we therefore do not need to grant them through clause 20, why on earth does clause 20(1) include the word “constable”?

Paul Goggins rose—

Sylvia Hermon (UUP, North Down)

I see that the Minister wants to clarify yet again the confusion that he has caused.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall simply repeat what I said earlier. Once part 7 goes, neither the police nor the Army will have the powers that we seek to provide in clause 20. If we did not replace some of those powers for the Army, the police would still have the powers that clauses 21 and 22 seek to give the Army. However, we wish the Army to have the powers, too, so we look to do the minimum necessary.

Sylvia Hermon (UUP, North Down)

Let me paraphrase what the Minister has just told the Committee. Owing to the lapse of other terrorist legislation, the police and the Army will not have powers. Therefore, under the legislation before us, we must give the Army powers, but the police will have powers under other legislation. That is a fair summary of what he has just said.

If that is true, will the Minister look carefully at the wording of clause 20? Subsection (1) refers to:

“A member of Her Majesty’s forces on duty or a constable”.

If a constable already has the powers, as the Minister has assured the Committee, there is no need for the clause to refer to a constable at all. He just said that the provisions give members of Her Majesty’s forces the powers to stop and to question.

My point and that of my amendment is that there will be no joint patrols: a member of Her Majesty’s forces will be on duty on his or her own. They will have the power to stop a person in serious circumstances pertaining to a recent explosion, a recent incident endangering life, or to a person killed or injured in a recent explosion or incident. My entire argument is that in those serious circumstances, when a member of Her Majesty’s forces is on duty on their own and unable to call in aid a member of the PSNI, any offence committed ought to be punishable by a term of imprisonment equivalent to the £5,000 fine. That is my point.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful for the opportunity to speak again, if for no other reason than to clarify one point on which I slightly misled the Committee when responding to the hon. Lady. Clause 22 applies to constables as well as to members of the Army, so we seek to confer powers specifically on members of Her Majesty’s forces only in clause 21. When part 7 lapses, they will not have any power of arrest. The Army must have that limited power of arrest and of detention for up to four hours so that they can participate effectively in what may be a difficult public order situation or a situation surrounding an explosion.

Clause 21 is only for the Army, and clauses 20 and 22 apply power equally to the police and to the Army. We want to introduce the minimum powers necessary. The specific powers in clause 20 are concerned with the ability to stop and to question. If the Committee focuses on that narrow offence, I hope that it will agree that the penalty of a fine not exceeding level 5, which is the issue under discussion, is proportionate.

Sylvia Hermon (UUP, North Down)

That was a lengthy intervention.

I am terribly sorry to disagree with the Minister, but as all hon. Members who consider the Bill will clearly see, the reference that he made to clause 21 and to the powers of arrest refers only to the powers of arrest given to Her Majesty’s forces. There is no equivalence given to a member of the PSNI. The word “constable” does not appear in clause 21. The powers in clause 22, relating to entry to a building, noting what and who is in the building and so on, are given to a police officer. There is no equivalence between the powers of entry in clause 22 and what we are discussing in clause 20, namely the power to stop and to question. It would be helpful if the Minister could indicate the legislative provisions that give PSNI constables the right to do what a member of Her Majesty’s forces can clearly do under clause 20, because the Bill does not.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am always happy to try to help the hon. Lady and the Committee, but I suspect that I have gone as far as I can. On the narrow point of her amendment, which concerns whether a fine of up to level 5 is proportionate in relation to the offence of failing to stop when a constable or a member of Her Majesty’s forces insists on it, I fail to see how I can say more to try to persuade her. I acknowledge, however, that the clauses need to be read with great care, as the hon. Lady has said. For example, clause 20(1) refers to a

“member of Her Majesty’s forces on duty or a constable”

but clause 20(2) refers just to “Her Majesty’s forces”. We do not seek to give the powers to the police under subsection (2), because they already have them under the Police and Criminal Evidence Act 1984, and we do not seek to duplicate powers that already exist. Instead, we want to give the minimum powers necessary to ensure that both the police and the Army can operate effectively in situations of extreme public disorder or in a situation involving explosives. I have gone as far as I can—I do not know whether I have persuaded the hon. Lady, but we shall soon find out.

Sylvia Hermon (UUP, North Down)

I do not wish to detain the Committee, but the Minister has just pinpointed PACE as the source of the rights of police constables to stop and question in relation to an explosion, an incident endangering life, or where a person has been killed in a recent explosion or another incident. PACE has been identified for the first time this afternoon. Previously, the Minister said that clauses 21 and 22 provide equivalent police powers, but they most certainly do not. He has clarified the point, which is helpful. As he has said, given the seriousness of incidents, such as rioting, about which a person can be questioned by a soldier on his own with no member of the PSNI present, I am not happy that a person who refuses to co-operate when someone has been killed or seriously injured—

Laurence Robertson (Conservative, Tewkesbury)

I am following the hon. Lady’s argument and the Minister’s explanation closely. I am concerned about the extra punishment that she is seeking to introduce, which is based on amendments that I tabled. Had I succeeded in getting those amendments through, I would have been more comfortable with a stronger punishment, but as I did not, I am not as comfortable. Does she follow that argument, and would she like to comment?

Sylvia Hermon (UUP, North Down)

I am not persuaded by the argument—I regret that I have not been here for the entire debate. It should be borne in mind that the provisions that we are considering today have just increased the powers of the Northern Ireland Human Rights Commission. We are saying loudly and clearly to the people of Northern Ireland that we care about their human rights and most certainly about the right to life. We have just identified in clause 20 an incident that might deprive a person of their life or leave someone seriously injured. I should like to think that any well-intentioned, reasonable person on the bus—for example, the hon. Member for Tewkesbury, who travelled on the bus this morning—would expect full co-operation from every single person in Northern Ireland who was a witness or who has information. In those circumstances, I cannot for the life of me believe that a person could turn their back and walk away, and receive no more than a fine. It does not make moral sense, so I shall press the amendment to a Division.

Sammy Wilson (DUP, East Antrim)

Before we move off clause 20, I would like the Minister to clarify something. During his long debate with the hon. Member for North Down, I became increasingly intrigued by subsection (5). In what circumstances would he envisage the police or the Army stopping an aircraft that is airborne? Is it anticipated that Superman might be recruited by the PSNI to knock on the window of the cockpit and demand that the aircraft should be stopped? Will the Minister clarify that matter, because it has intrigued me for the past half hour?

Nicholas Winterton (Conservative, Macclesfield)

Before the Minister replies, I call the hon. Member for Argyll and Bute.

Alan Reid (Liberal Democrat, Argyll and Bute)

Thank you, Sir Nicholas. I seek the Minister’s clarification on something that arose in the previous debate. The phrase “or a constable” is contained in the first line of subsection (1), but why do those words need to be there? Surely a constable would have those powers anyway under PACE.

Nicholas Winterton (Conservative, Macclesfield)

I call the Minister to reply. I think that he has had time to ascertain precisely how he is going to answer the hon. Member for East Antrim.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall come to the hon. Member for East Antrim in a moment.

The hon. Member for Argyll and Bute must read the wording in subsection (1) carefully. A constable would not otherwise have the power to question someone to ascertain his identity and movements

“for so long as is necessary”.

We seek to give that power to the police, because it would be ridiculous for the Army to have more powers than the police to deal with a public order matter or other pressing situation. Subsection (1) must be read very carefully. It states that a constable may

“stop a person for so long as is necessary to question him to ascertain his identity and movements.”

The police in Northern Ireland would not otherwise have that power in the circumstances that we have been discussing.

Laurence Robertson (Conservative, Tewkesbury)

Given that we are returning to a situation of normalisation, to use the Minister’s words, why is it necessary to give Her Majesty’s forces or the police even more powers?

Paul Goggins (Labour, Wythenshawe and Sale East)

Let us consider a situation elsewhere in the UK. If the police have reasonable grounds to believe that an offence has been committed, they can stop someone and question them under PACE. We are discussing situations in which the police need to detain someone to ascertain their identity and movements. We believe that we need such powers in Northern Ireland and that similar powers should be given to the Army to deal with incidents that endanger life—sadly, the threats of explosives and of serious social disorder still exist in Northern Ireland. It is specifically because those risks still exist in Northern Ireland that we seek to give those limited but important powers to the police.

Laurence Robertson (Conservative, Tewkesbury)

The Minister has not quite answered my question. The question is why now? Why were those powers not introduced in 1972, at the height of the troubles, or more recently? The DUP is almost sitting down with Sinn Fein, and the IMC report says that the IRA is not involved in paramilitary activity, so why is it necessary to extend Army and police powers?

Paul Goggins (Labour, Wythenshawe and Sale East)

I have failed to explain the matter sufficiently clearly. Those powers already exist in Northern Ireland under part VII of the Terrorism Act 2000. Because of the commitment to repeal part VII from the end of July this year, Ministers had to decide whether leaving out all those powers was reasonable, given the threat that still exists from terrorism and serious public disorder linked to paramilitary activity. Our judgment was that we could not do so and that we needed to put in place minimum powers to enable the police and the Army to continue to deal with such serious situations. We are including powers that already exist, but we are dropping the part VII powers, which will not exist after July. We feel that the powers that we are keeping are necessary in the present circumstances.

I cannot remember, Sir Nicholas, whether I am intervening or making a speech.

Nicholas Winterton (Conservative, Macclesfield)

The Minister is making a speech.

Paul Goggins (Labour, Wythenshawe and Sale East)

Thank you, Sir Nicholas. I hope that I have clarified the position.

We now come to the question raised by the hon. Member for East Antrim. If I were to give a serious explanation, I would not persuade anyone. I presume that the provision means that if a police officer or someone in the Army were waving to someone flying overhead, it would not constitute an offence, but I am happy to write to the hon. Gentleman—[Interruption.] I see a pilot in our midst.

Nicholas Winterton (Conservative, Macclesfield)

I am sure that the hon. Member for Montgomeryshire is going to ask a cheeky question.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

It had to happen, Sir Nicholas, but I salute your self-control up to this point.

I want to thank whoever drafted this piece of legislation on behalf of pilots all over Northern Ireland. It is a matter of great relief to me that we will not be stopped while we are flying. I suggest to the Minister that it might be possible to stop an aircraft that is airborne by using a large fan. Is it the Minister’s understanding that an aircraft about to become airborne could legitimately be stopped by a memberof the security forces? It would be travelling at about 150 mph.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman will be copied into my letter to the hon. Member for East Antrim. That is probably the most constructive way to respond to that most insightful question.

Nicholas Winterton (Conservative, Macclesfield)

Before I put the question, I have to say that I thought that the Minister might reply by, bearing in mind the name of the hon. Member for East Antrim, saying that he would stop it with a SAM.

Clause 21

Laurence Robertson (Conservative, Tewkesbury)

Briefly, and on the same lines as I questioned the Minister on why it is necessary to extend the powers of the police under clause 20—I was desperately searching through the Terrorism Act 2000, but we reached clause 21 before I could find the relevant provision—will he explain why it is necessary at this stage to introduce powers that I think he said do not exist for Her Majesty’s forces, given that we are supposed to be moving towards normalisation?

My second question concerns subsection (1), which begins:

“If a member of Her Majesty’s forces on duty reasonably suspects”.

Are we going to continue to use “suspects”, or will it be “believes” in future? I am struggling to understand what subsection (2) means. Perhaps the Minister will clarify the situation.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is important to recognise a couple of things. First, members of Her Majesty’s forces do not have a power of arrest, which we seek to provide them with under limited circumstances. Secondly, I ask the Committee to consider a situation in which a member of Her Majesty’s forces is dealing with explosives that have been found. The Army has the expertise to deal with a threat from explosives by defusing them and so on. The Army could be called urgently to a road closure or some other scenario. They might be the only people in the area; they might get there before the police; or they might be there because they are the only people who are safe to be there. If they came across somebody whom they suspected of being involved in the commission of the offence of laying explosives, they would need to have the power to arrest that individual. After the Terrorism Act 2000 is repealed, they will not have that power—

Laurence Robertson (Conservative, Tewkesbury)

But they do now.

Paul Goggins (Labour, Wythenshawe and Sale East)

They do at the moment, but they have no powers other than those conferred by part VII. We need to ensure that they have the powers, and this clause provides them.

Sylvia Hermon (UUP, North Down)

That has given me an opportunity to comment on two curious aspects of the clause. First, I should like some clarification and assurances from the Minister about the way in which it is drafted. It states:

“If a member of Her Majesty’s forces on duty reasonably suspects that a person is committing, has committed or is about to commit any offence he may...arrest the person without warrant, and...detain him for a period not exceeding four hours.”

What is the position of an off-duty soldier? The Minister has given us assurances that the PSNI has powers of arrest and detention under other legislation, even when part VII of the 2000 Act is dropped. Will an off-duty member of the PSNI have to stand by and not intervene? And will they have to call in aid a member of the PSNI who is on duty? What is the position of an off-duty soldier? It is rather vexing that community support officers in Northern Ireland will have more powers than members of Her Majesty’s forces when a person about to commit an offence.

The second point is related to that in the sense that subsection (2) states that a person—meaning a member of Her Majesty’s forces—

“making an arrest under this section complies with any rule of law requiring him to state the ground of arrest if he states that he is making the arrest as a member of Her Majesty’s forces.”

For ease of interpretation, subsection (5) defines“a rule of law”:

“The reference to a rule of law in subsection (2) does not include a rule of law which has effect only by virtue of the Human Rights Act 1998.”

That is extraordinary. Given the overall content ofthe Bill and, as we have highlighted, the powers of the Northern Ireland Human Rights Commission, I am amazed and surprised to find an exclusion whereby a soldier does not seem to have to comply with the Human Rights Act 1998. Those are the two points on which I await clarification by the Minister.

Paul Goggins (Labour, Wythenshawe and Sale East)

On the hon. Lady’s first question, the powers are not conferred on an off-duty solder by this piece of legislation. An off-duty soldier would, of course, have the power of citizen’s arrest, in as much as any other member of the public would have that power if something were happening and they were the closest person to the situation, but they would not have the powers conferred under the Bill. Soldiers would have those powers only when they were on duty. I hope that that clarifies the position. In reality, there would, of course, be an ongoing Army operation to deal with a major security threat or serious incident, which would obviously include only soldiers who were on duty.

Both the hon. Lady and the hon. Member for Tewkesbury have mentioned subsection (2). When the police make an arrest, they have to give reasons for doing so. They have to say that there is a suspicion that the person being arrested has been involved in the commission of an offence. The police have to give that information to the person whom they are arresting, which they are trained to do with great care.

The Army is not trained to do that. We therefore propose that it is sufficient for members of Her Majesty’s forces who make arrests simply to state that they are doing so as members of Her Majesty’s forces, which is a simple, straightforward line that they will all be in a position to use. That provision will empower them to detain the person for up to four hours. Of course, if the police arrest that person, that person must be given reasons. If that person is then rearrested and detained for other reasons, they must be given those reasons, too. However, because members of Her Majesty’s forces are not trained for that, because there is no need to train them for that, all they have to do is say that the arrest is being made by a member of Her Majesty’s forces, which is sufficient for the powers conferred under the clause.

Sylvia Hermon (UUP, North Down)

Will the Minister clarify for the benefit of the Committee which rules of law under the Human Rights Act 1998 do not bind on-duty members of Her Majesty’s forces?

Paul Goggins (Labour, Wythenshawe and Sale East)

There is some confusion here. The hon. Lady is rarely confused, so I simply say that there must compliance with the 1998 Act and that there is no exemption from that. The 1998 Act still applies, and it is not suspended in the situations that we are discussing.

Sylvia Hermon (UUP, North Down)

The Minister has just confirmed that, of course, all soldiers abide by their human rights obligations. Will he therefore explain the need to include subsection (5), which, unless my eyesight is really poor, clearly states:

“The reference to a rule of law in subsection (2) does not include a rule of law which has effect only by virtue of the Human Rights Act 1998”?

Which rules of law arising only by virtue of the 1998 Act do not bind Her Majesty’s forces?

Paul Goggins (Labour, Wythenshawe and Sale East)

The best scenario is for me to write to the hon. Lady and give her a fuller answer than I can give her now. I offer her the wider assurance that the Bill is compliant with the European convention on human rights and has been carefully drafted as such. However, I am more than happy to write to her in relation to her point about subsection (5), if that is sufficient.

Laurence Robertson (Conservative, Tewkesbury)

On a slightly different point about subsection (2), the Minister has said that members of the armed forces do not need to give a reason when making an arrest. Is he comfortable with that? I accept his explanation that they are not trained to handle such situations, but there must be a reason why the police have to give a reason for an arrest. The person being arrested will presumably not have listened to this debate and will not know why they have not been given the reasons for being arrested. Is the Minister comfortable with that?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am comfortable with that, given the kind of scenario that I remind the Committee we are dealing with, which might involve extreme risk to life. Obviously it is necessary for a member of Her Majesty’s forces to offer some explanation, but we have confined that to saying simply that they are making the arrest as a member of Her Majesty’s forces. That is sufficient, in the face of what might be great pressure, for an arrest and detention for up to four hours. It is a sensible and proportionate measure and, to answer the hon. Gentleman, I am comfortable with it.

Nicholas Winterton (Conservative, Macclesfield)

I thank the hon. Member for Foyle, who has just arrived, for courteously arranging for his office to send a further message to the Chairman that his plane had been delayed at Belfast City airport by adverse weather conditions. We welcome him, a little belatedly, to this afternoon’s sitting.

Clause 22

Laurence Robertson (Conservative, Tewkesbury)

I beg to move amendment No. 21, in clause 22, page 17, line 5, leave out from ‘in’ to end of line 6 and insert

‘order to prevent paramilitary activity or to obtain evidence relating to suspected paramilitary activity.’.

Sir Nicholas, you are probably aware that one or two other Committee members have also been delayed by the weather. For example, the Conservative Whip, the hon. Member for North-East Milton Keynes, has been delayed.

I do not want to labour my point, as we have hada long discussion about similar amendments. The amendment deals with the provisions on entry inclause 22, which states:

“A member of Her Majesty’s forces on duty or a constable may enter any premises if he considers it necessary”.

My amendment would insert the words

“in order to prevent paramilitary activity or to obtain evidence relating to suspected paramilitary activity”.

As the hon. Member for North Down has pointed out, the clause starts by referring to a member of Her Majesty’s forces or a constable, but from subsection (2) onwards, it refers only to a constable. If the rest of the clause referred to members of Her Majesty’s forces as well, I would not have tabled the amendment. I say that because the constable has to obtain authorisation, where it is reasonably practicable to do so, from

“an officer of the Police Service of Northern Ireland of at least the rank of superintendent”.

A member of Her Majesty’s forces does not, as far as I can read, have to obtain any authorisation, so I thought it wise to suggest that we might want to strengthen the reasons for making such an entry.

Sammy Wilson (DUP, East Antrim)

I appreciate the intention behind the amendment, but would it not be possible for those involved in organising, for example, a street riot to dodge into a house to escape arrest, to meet to arrange further disorder or simply to get away to come out again? They might not be there as members of a paramilitary group, or even be engaged in paramilitary activity, but they will be disturbing the peace and putting people’s lives in danger. In such circumstances, would the amendment not eliminate rather than extend the ability to enter premises?

Laurence Robertson (Conservative, Tewkesbury)

I take the hon. Gentleman’s point, but clause 24(1) states:

“A member of Her Majesty’s forces on duty who reasonably believes that a person is unlawfully detained in such circumstances that his life is in danger may enter”.

Subsection (2) states that a member of Her Majesty’s forces

“may enter a dwelling...only if he is authorised for the purpose by a commissioned officer of Her Majesty’s forces.”

That contradicts clause 22 slightly.

I understand the hon. Gentleman’s point, but I am a little surprised that there is a difference between a constable, who must obtain authorisation where it is reasonably practicable, and a member of Her Majesty’s forces, who need not. I will not press the amendment, which is just a probing amendment to draw out the Minister’s explanation.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I, too, think that the words

“or the maintenance of order”

in clause 22(1) are extremely broad. That could be used as a justification for almost any entry. Taken in association with subsection (2), which states that a

“constable may not rely on subsection (1) to enter a building unless...it is not reasonably practicable to obtain authorisation”,

it could give constables wide latitude to enter buildings. It also seems that clause 24 is unnecessary. If the Minister insists on the broad definition under clause 22, I cannot see why a subset of that definition enjoys its own clause in clause 24.

Paul Goggins (Labour, Wythenshawe and Sale East)

The amendment would—the hon. Member for East Antrim hit the nail on the head—make dealing with the serious situations with which the powers are intended to deal unworkable. If the police in effect had to prove a paramilitary link before they were able to take any action, that might lead to unnecessary delay, which could have a devastating effect.

I shall present a scenario as an example. Two routes lead to a location where an explosive has been found or where some serious disorder is about to break out. One is through a public right of way and the other is across some private land. If we were to accept the amendment, the Army would have no choice but to go through the public right of way, where they might suspect that a booby trap was waiting, as unless they could prove a paramilitary link they would not be able to go across the private land. We do not want to constrain Army personnel who are dealing with extremely difficult situations so that they would have to go to such lengths to deal with what might be a life-threatening situation. It would certainly have an impact on the operation if they were not allowed to enter premises without proof of a paramilitary link. It might even place not only members of the public but Army personnel in danger. I ask the hon. Member for Tewkesbury to consider that seriously.

Stewart Jackson (Conservative, Peterborough)

The Minister is making a reasonably convincing point on a narrow issue. Does he agree that the wording could have been tighter? It is lax and so we have two extremes, particularly in the example that he has just given the Committee.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am not at this stage convinced that the wording is too lax, but I made a commitment at the outset that throughout our deliberations we would look for ways in which the wording could be tightened and clarified. That is the purpose of the Committee. I will happily look again at the wording to ensure that it does the job that we want it to. The key idea is to give the Army the power to deal quickly with a fast-changing and dangerous scenario.

Hon. Members have mentioned the safeguards. As set out in the clause, it is clear that the police should seek written authorisation from a superintendent or oral authorisation from an inspector. That is the system that the police are used to, and if time allows that is what they should and would do. The Army is not used to operating in that way and it is important that in pressing and difficult circumstances we keep the system as simple as possible, so the authorisation will not be sought in the same way. However, the Army and the police are required under the legislation to make a record of what has happened. That applies equally to the Army as to the police.

In relation to the police, we return to the issue of oversight. The police ombudsman will be able to investigate any allegations if there are concerns.

Sylvia Hermon (UUP, North Down)

For the benefit of the Committee,will the Minister identify which subsection obliges a member of Her Majesty’s forces to have authorisation?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am sorry if I have inadvertently misled the Committee. I am saying that members of the police must have authorisation in writing from a superintendent if there is time, or verbally from an inspector if there is not. A record must always be made. We are not seeking the requirement of the same system of authorisation in relation to the Army, because it does not operate using similar systems. To make that requirement might induce confusion and uncertainty, which we do not want to do. We will, however, require a record to be made that can be examined with hindsight.

Laurence Robertson (Conservative, Tewkesbury)

I was about to make the same point as the hon. Member for North Down. My reading of the clause suggests that members of Her Majesty’s forces are not required to make a record. I understand that—

Paul Goggins (Labour, Wythenshawe and Sale East)

Will the hon. Gentleman give way?

Laurence Robertson (Conservative, Tewkesbury)

Is the Minister intervening on my intervention?

Nicholas Winterton (Conservative, Macclesfield)

Order. A Member cannot intervene on an intervention.

Laurence Robertson (Conservative, Tewkesbury)

Secondly, I understand that the Army does not normally work on an authorisation basis, but when a member of Her Majesty’s forces on duty reasonably believes that a person is unlawfully detained in such circumstances that his life is in danger—there cannot be a more serious situation—he will have to obtain authorisation under clause 24. Unless I am reading it wrong, I cannot understand that difference between clauses 22 and 24.

Paul Goggins (Labour, Wythenshawe and Sale East)

We are seeking to keep the matter as simple as possible. The armed forces do not need to make a record because that is not reasonably practicable in the situations that I have described. I offer clarification of my earlier remarks: it will not be necessary for the Army to make a written record. We want to keep the situation clear and simple for the Army. We want the Army to have the powers in question and not to have them confused or reduced by a requirement to prove a connection with paramilitary activity before personnel can act. The powers will facilitate rapid responses to what might be difficult circumstances, and they are proportionate and represent the minimum necessary.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I apologise again to the Committee for my absence earlier, which I am sure was welcome to some Members, considering the number of amendments that we have tabled. I appreciate your tolerance, Sir Nicholas, and that of the Committee. My embarrassment is exceeded only by my gratitude for some hon. Members seeking to assist me.

Will the Minister address the point that, like other clauses, clause 22 gives powers not only to the Army, but to the police? A moment ago, he mentioned that the police are subject to the police ombudsman. The Army will not be subject to that process of scrutiny or to a complaints process. Do not these clauses not only reverse the commitment made by the Governments in the joint declaration of 2003 and what was enacted last year, but breach Patten? The Patten report stated:

“Eventually—and we hope this will come about sooner rather than later—army support for the civil power in Northern Ireland should in principle be no more than it is in any other part of the United Kingdom”.

Patten also recommended that

“the law in Northern Ireland should be the same as that in the rest of the United Kingdom.”

These provisions clearly breach that. Patten also observed—

Nicholas Winterton (Conservative, Macclesfield)

Order. I am always fascinated to listen to the hon. Gentleman, but this is an intervention, not a speech. Will he put the particular point that he wishes to make to the Minister in this articulate intervention?

Mark Durkan (Social Democratic and Labour Party, Foyle)

I am simply asking the Minister to address the fact that these provisions breach the Patten vision of policing. That has serious implications.

Paul Goggins (Labour, Wythenshawe and Sale East)

Patten recognised that there may still be a role for the Army to play in a situation of extreme public disorder. We recognise it too. Although the Army stationed in Northern Ireland beyond July of this year will be a garrison force, we want to make provision to ensure that, should the situation arise, the Army can act decisively to protect public order and deal with explosives and other difficulties.

My hon. Friend the Member for Foyle, whom I am delighted to see here this afternoon, missed our discussion on aeroplanes and stop and question, but he is here anyway and was not stopped and questioned along the way. On the powers of the police ombudsman, the ombudsman is of course able to investigate in relation to the police.

My hon. Friend will have noticed that the independent reviewer, whose prime purpose is to review the powers that we are giving the Army and the police under this part of the Bill, will also have a role to play in dealing with any complaint that relates to military personnel. Such complaints are very few and far between. From memory, I think that in the last year there were perhaps just half a dozen—a small number—so we do not anticipate that there will be many. There will be fewer still when there are no Army personnel to be seen on a regular basis on the streets of Northern Ireland, but we have a provision that will allow complaints to be made and dealt with.

Peter Bone (Conservative, Wellingborough)

Will the Minister clarify the Government’s thinking as between clause 22, when a soldier does not need to have authority, and clause 24, when he does? I just cannot see the consistency or the logic as to why there should be two different standards.

Paul Goggins (Labour, Wythenshawe and Sale East)

The only explanation I can offer at this stage is that clause 24 includes the power of search while clause 22 provides only for the power of entry. Those are different powers and we believe, on balance, that one requires authorisation while the other does not. The hon. Gentleman may or may not accept that explanation, but it is the explanation that I offer.

Laurence Robertson (Conservative, Tewkesbury)

I had almost forgotten that it was my amendment we were discussing, as the discussion has gone on for so long. I said that it was a probing amendment, and we can safely say that we have probed, but I am not satisfied by the Minister’s response as to why the personnel we are discussing do not need permission to enter premises. They are not going to just enter and stand there. Presumably they are going to do something when they get in. Under clause 24, however, they need permission to enter, even though that clause seems to relate to a more urgent circumstance—someone’s life being in danger.

I cannot understand the reason for the difference between clauses 22 and 24, and I would be happy if the Minister agreed to discuss that difference with his officials to see whether the provisions could be tightened up a little. That said, we have had a good discussion.

Paul Goggins (Labour, Wythenshawe and Sale East)

In the general spirit of the work being done by the Committee, I am very happy to go away and satisfy myself that the authorisation powers in clauses 22 and 24 are proportionate and do sit together.

Laurence Robertson (Conservative, Tewkesbury)

I thank the Minister for that intervention and look forward to discussing the issue with him further perhaps, but we have probed and he has been generous and accommodating, so I beg to ask leave to withdraw the amendment.

Sylvia Hermon (UUP, North Down)

When the Minister goes away to reflect and to try to satisfy himself that clause 22 is consistent with the wording of clause 24, will he take with him a copy of Hansard for the record of our debate on clause 20? During that debate—as I recall, but Hansard will show—the Minister used words akin to, “It would be ridiculous if the Army had more powers than the police.” I highlighted the problem in both clause 20 and clause 22. The difficulty and the confusion has arisen because of the wording of subsection (1) of the clauses:

“A member of Her Majesty’s forces on duty or a constable”.

The Bill then concentrates on giving powers either to the constable under clause 22 or to a soldier under clause 20. Surely, to be consistent, if it is indeed ridiculous for the Army to have more powers than the police, the soldier on duty must have an obligation to take details—at least to have a record of the building. The requirements on a police officer under clause 22 mean that he has a duty and must ensure that

“as soon as is reasonably practicable a record is made of...the address of the building (if known)...the location of the building...the date of entry...the time of entry...the purpose of entry...the police number of each constable entering, and...the police number and rank of the authorising officer ”.

That is very detailed. The Minister said that we do not want to make it too difficult or cumbersome for the Army; but with the greatest respect, it has been made very easy for the Army. The drafting of clauses 20, 22 and 24 is appalling and inconsistent, although I apologise to the draftsmen and women who work so hard.

Sammy Wilson (DUP, East Antrim)

I understand the point that the hon. Lady is making about the apparent difference between the powers of the police and the Army, but does she not accept that the list in clause 22(6) shows what most police officers would make as entries their notebooks in the event of entering premises?

Sylvia Hermon (UUP, North Down)

Indeed; the hon. Gentleman makes a good intervention—and he was almost on time this afternoon. Yes, that is the normal procedure for a constable in the normal course of his duties.

Those obligations will be imposed by the Bill, but the curious thing is that, although clause 22 introduces the words

“a member of her Majesty’s forces”,

they do not apply in any other provision in that clause to soldiers on duty. The Minister is trying to defend the clause, but if he reads Hansard, he will see that he contradicts what he said in relation to clause 20. That is the only point that I would make—that the Minister should reflect on clause 22 to be consistent.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Clause 22 provides wide powers to enter premises. It is considered necessary for the police to do so for the maintenance of public order. The police do not need a warrant and there is no requirement even for reasonable suspicion. That is worrying when it applies to the police.

The Government have indicated that the provision gives the police some flexibility, and they will argue that police actions will be subject to accountability mechanisms through the Policing Board and, importantly, through the police ombudsman. The Government will indicate that there are new safeguards for police officers getting authorisation. However, those powers are also being given to the British Army, and the Army will not have to seek authorisation.

Those powers are meant to be used in support of the civil power. We are told that the Army will be acting only in support of the civil power, but none of the civil power standards will apply. As well as not seeking authorisation, the Army will not have to keep records, as the police have to do. Those aggrieved by such Army actions will find no means open to complain. They may go to the police, who might want to be responsive and understanding, but the police will not be able to help. That will create a totally unsatisfactory situation, which breaches the Patten vision.

In reply to my earlier intervention, the Minister said that those powers will be subject to annual review. Patten touched on the question of annual review if there was unfortunately a need to continue any sort of special provisions in Northern Ireland. What Patten said in that respect was that such provisions

“should be subject to annual independent review and to Parliament’s approval of any or all of them remaining in force”—

that is, annual renewal by Parliament, just as emergency provisions and special laws always are. We should remember that, under the Bill, there will be no more annual renewal. The powers will be there permanently.

How can the Government justify those wide powers for the Army? I think they go too far, even in relation to the police, but at least we have some comfort in accountability of the police service. If we get to devolution of justice and policing, those powers are likely to be reserved for legislation by this Parliament, not by the devolved Assembly. The police service, supposedly under the devolved remit, will be backed up by the Army—obviously, not under the devolved remit—and both the police service and the Army will use controversial special powers, which those in the devolved institutions will have no right or role in reviewing or amending. That is contrary to what people envisaged under the Good Friday agreement and the Patten report.

That is why I ask the Minister to address the fact that, in relation to matters in earlier clauses that refer to the courts and now these matters of continuing the emergency powers permanently, the Government must think very carefully about the exact situation that they are creating. They are creating a situation of quicksand and confusion, and many people leading the new beginning in the police service will be unhappy about that, whatever their justification for retaining some powers. I understand that some officers believe that some powers should be retained, not least in relation to the possible difficulties that may arise—we hope that they will not—with parades. The Government are going too far with permanent sweeping provisions and such wide-ranging clauses.

Sammy Wilson (DUP, East Antrim)

Is the hon. Gentleman not overstating his case? First, clause 22(1) clearly specifies a fairly high threshold in so far as a member of Her Majesty’s forces or a constable must consider the action necessary. That is a fairly strong statement. It does not say “suspects” or “believes”; it says “considers it necessary”. There is a high threshold to be met.

Secondly, although the hon. Gentleman made an issue of the fact that the Army will not be under the same constraints as the police, I cannot think of any instance when the Army would not be accompanied by the police, because they are there to help the police and to back them up. The only situation in which they will be used is when the Chief Constable asks them to help the police. There will be a police officer present who must have the authorisation to which the hon. Gentleman referred.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The hon. Gentleman’s points are flatly contradicted by the Bill. If a police officer is always present and if he needs authorisation, why are Army officers immunised from that need for authorisation? If they are always accompanied by police officers, why does the question of a soldier acting without authorisation arise? Surely, the policeman who can obtain authorisation can act. Similarly, if the Army will always be accompanied by the police, why is the power of arrest, which we discussed on other clauses, necessary? The hon. Gentleman’s argument that the police will always be present is an argument against the Army having such powers.

Sammy Wilson (DUP, East Antrim)

In practical terms, when the police and the Army are involved in joint operations, the arrest may often involve a police officer and an Army officer or a member of the Army, so they need to be covered, so that they can jointly take part in such an arrest or operation.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Why then has the hon. Gentleman not tabled an amendment to give the Army the right to exercise those powers only in circumstances when it is clearly acting in support of the civil power withpolice officers present, having obtained the proper authorisation and so on?

The hon. Gentleman said earlier that clause 22(1) provides a very high threshold and a very high test—it does not. It simply says:

“A member of Her Majesty’s forces on duty or a constable may enter any premises if he considers it necessary in the course of operations”.

It does not say that he must have reasonable grounds; he has only to consider it necessary. Many people may consider lots of things necessary in such circumstances, but there is no serious test. In particular, when a member of the forces is under no requirement to keep a record, we cannot take the assurance that the hon. Gentleman suggests.

I have made the point in relation other clauses that the Government are reversing legislative changes that Parliament made in the Terrorism Act 2006. I have still heard no good explanation from the Minister about why the clear statements and commitments from the Secretary of State that powers would be renewed only until 31 July and would then be renewable for one year only until July 2008 should be overtaken. What has changed in the prevailing circumstances since the Secretary of State made those clear unambiguous statements? After all, he was telling us in glowing terms that things are getting better every day and that all sorts of bad things are being put behind us. Why, then, are we having to make emergency legislation permanent? Why, then, are we violating the Patten vision of policing?

Paul Goggins (Labour, Wythenshawe and Sale East)

First, I assure the hon. Member for North Down that I will be happy to consider the consistency between the clauses and my remarks on clause 20. From memory, I think that I was talking about the Army and the police in the same situation, saying that it would be ridiculous for the Army to have more powers than the police if they were both engaged in the same situation. However, I will happily check and reflect on that point.

My hon. Friend the Member for Foyle asked about the role of the reviewer. I draw his attention in advance of our discussions on it to clause 39(1)(b), under which the reviewer will look at the procedures adopted by the General Officer Commanding Northern Ireland for

“receiving, investigating and responding to complaints.”

The reviewer must then make a report to the Secretary of State, who will report to Parliament. There will be considerable scrutiny of any complaint about military activity. My hon. Friend’s movements suggest that he is not satisfied with that assurance. I am happy to give way.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I remind the Minister that the Patten test was Parliament’s approval of

“any or all of them remaining in force”.

Paul Goggins (Labour, Wythenshawe and Sale East)

I will come to Patten and the other matters raised by my hon. Friend in a moment.

My hon. Friend asked about the renewal of powers. Again, that strays into territory that we are likely to deal with later in our deliberations. We take the view that the powers are limited when compared to the part VII powers and that they will be necessary for some time to come. It seems quite unnecessary to have to renew them every year, as we anticipate that they will continue to be necessary. However, using reviewer’s reports to the Secretary of State and our other monitoring, we will see over time which of these powers in the Bill are no longer necessary—and the Secretary of State has the power to repeal them. We prefer to take that approach, rather than renewing the powers every year.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister said that it is necessary for the powers to remain in place. That may be the Government’s clear view now, but why has it changed from the clear view expressed by the Secretary of State and Ministers when the House was debating the Terrorism Act 2006, which would extend the powers to July this year—and only in extremis extend them for a further year and no more? That was the Government’s clear statement then. Are things worse now than they were last summer?

Paul Goggins (Labour, Wythenshawe and Sale East)

It would be irresponsible of any Government not to put in place the necessary powers for the police or the Army to deal with situations specific to the circumstances in Northern Ireland that may endanger life. I make no apology for making such proposals.

Let us inject some realism into this debate. The Army no longer routinely patrols the streets of Northern Ireland; as I have said, from the end of July this year, we will have a garrison fort in Northern Ireland. That brings me to the issue of proportionality in respect of the powers that we are giving the Army. The Army would be operational in Northern Ireland in support of the police only in extreme circumstances, such as a Whiterock scenario or serious attacks involving explosives. Do my hon. Friend and others expect the Government to rush back to get the powers when the Army has to be deployed in Northern Ireland in an emergency? No, it is much better to foresee any such eventuality now by putting the powers in place. Every one of us hopes that they will never need to be used, but if such extreme situations arise, the Army will need them to protect life and protect people.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister says that he regards legislating in that way as a mark of the Government’s responsibility. Is he saying that he and the Secretary of State were irresponsible in asking Parliament to pass the Terrorism Act 2006, which removed those powers, only months ago?

Paul Goggins (Labour, Wythenshawe and Sale East)

I reject that entirely. It would be irresponsible if now, in taking the bold step of repealing part VII of the Terrorism Act 2000, we did not make sure that the police and the Army had sufficient powers to deal with extreme situations. Pictures of the serious disorder at Whiterock have been mentioned; I have seen them too, and other members of the Committee may have seen the reality. No responsible Minister would not empower the police and the Army to deal with such situations as they occur.

The hon. Member for East Antrim pointed out that clause 22(1) has a high threshold. Perhaps its most important words are

“Her Majesty’s forces on duty”.

As Northern Ireland moves towards normalisation, the fact that Her Majesty’s forces are rarely—perhaps never—on duty should encourage us all. However, if they need to be on duty in support of the police, they need the powers to act. We are seeking to give them the minimum powers required to deal with the situations that I have described.

Nicholas Winterton (Conservative, Macclesfield)

We shall shortly come to clauses that relate to powers. They are not all interlinked, and I am well aware of the interest of the hon. Member for Foyle in all of them. He has tabled amendments that, for good reason, have not been selected. I intend to allow clause stand part debates on all the clauses, but ask Committee members to use their discretion and good sense and not to repeat arguments in each debate. If they wish to have a clause stand part debate, they should direct any remarks to the details of the specific clause.

Clause 24

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Given that we have passed clause 22, which gives a pretty wide definition of powers of entry, I do not see why clause 24 is necessary.

Sylvia Hermon (UUP, North Down)

I do not think that I have ever heard the hon. Member for Montgomeryshire be so brief, concise and controversial all at once.

Sir Nicholas, it is generous of you to allow time for Committee members to make points on each of the clauses in stand part debates. My point is small and relates to the drafting of clause 24(1), which states:

“A member of Her Majesty’s forces on duty who reasonably believes that a person is unlawfully detained in such circumstances that his life is in danger may enter and search any premises for the purpose of ascertaining whether the person is detained there.”

I stress that the words “a person” are used twice in clause 24. It is unfortunate that the opening words of subsection (2) are, “A person”. That is confusing because it implies, wrongly, that that person is somebody other than a member of Her Majesty’s forces. For the purposes of complete clarity and the understanding of the clause, it would be helpful if the opening words of subsection (2) were also “A member of Her Majesty’s forces”, rather than “A person”. It is a minor point, but it would assist understanding of the clause.

Mark Durkan (Social Democratic and Labour Party, Foyle)

In response to earlier debates, the Minister explained that the Army is intended to be down to garrison strength and its personnel will very rarely be on duty, which means that they will perform policing duties very rarely. On that basis, I do not know why the Bill goes to such lengths to confer policing powers. The police already get such powers under draft Police and Criminal Evidence Act codes, and the matter is already governed by common law. Like the hon. Member for Montgomeryshire, I have to ask what the justification is for going any further.

Paul Goggins (Labour, Wythenshawe and Sale East)

I have said that what we seek to putin place through the clauses that we are debatingthis afternoon has been arrived at after careful consideration of the types of scenario that may pertain and require the police to have certain powers. The clause describes one of the scenarios with which we believe the Army should be empowered to deal. I emphasise, however, that use of the power must be authorised by a commissioned officer. We recognise that it is a serious matter and that a commissioned officer should have to give approval.

My hon. Friend the Member for Foyle is right to say that the police already have sufficient powers under statute and common law to take action to save life and limb. The power in the Bill applies only to the armed forces. For the reasons I mentioned earlier, it is unlikely to be used because it is increasingly unlikely that the Army will be deployed in operational situations in Northern Ireland. However, should the circumstances arise, the Army needs to be able to deal with them. If someone has been kidnapped or imprisoned against their will, it is important that the Army, as well as the police, should be able to deal with it.

In answer to the short speech and question of the hon. Member for Montgomeryshire, we need the powers because if someone has been kidnapped and if the Army are first to come across it, they will need to deal with it urgently. The clause gives them the power to do so.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

My intervention may be slightly longer than my speech, Sir Nicholas, but I hope that it will be within the usual constraints.

The Minister has not addressed my concern, which is that we do not need clause 24 because it is perfectly obvious that clause 22(1) covers the same circumstances. More worrying is the fact that clause 24 does not seem to impose the restrictions of authorisation outlined in detail in clause 22. I do not see why the Minister thinks clause 24 is necessary. It gives much more power to members of Her Majesty’s forces than clause 22 but without the authorisation limitations outlined in clause 22.

Paul Goggins (Labour, Wythenshawe and Sale East)

The simple answer to the hon. Gentleman’s further probing question is that clause 22 deals only with powers of entry. Clause 24 deals with powers of search and entry. We took considerable care when drafting those powers to ensure that they are the minimum required in the circumstances that pertain. It is necessary to have such powers in place. A situation may arise in which they could save peoples’ lives.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

What the Minister says is important; we need clarification on the record. By implication, he is saying that clause 22 does not give powers of search and entry but merely of entry. That is the only logical way to interpret what he said. That is worrying, because it means that a constable can go into premises but do nothing more. Will the Minister explain exactly what clause 22 does permit, as it could one day be of significance in court?

Paul Goggins (Labour, Wythenshawe and Sale East)

We can go back to clause 22—

Nicholas Winterton (Conservative, Macclesfield)

By reference only.

Paul Goggins (Labour, Wythenshawe and Sale East)

Entry to premises may be necessary in the course of operations for the preservation of the peace and the maintenance of order. That clause deals with the powers of entry alone. I want to make clearto the hon. Gentleman the scenario that we want to deal with through clause 24. If someone has been kidnapped, imprisoned or held against their will, their life may be at risk. In such circumstances, we believe that the Army needs those additional powers.

Sammy Wilson (DUP, East Antrim)

The more the Minister answers, the more confused I become. He says that clause 22 refers only to the power of entry. The sort of scenario that I painted when the hon. Member for Tewkesbury was speaking was the example of a house being used by people who were involved in rioting or whatever, and that the police or the Army had to enter in the interest of maintaining the peace. Is the Minister saying that the Army could not look into cupboards or under the stairs or under beds to see if people were hiding there? Are they allowed only to go through the door?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to the hon. Gentleman for giving me the opportunity to clarify my remarks. Clause 22 gives the power of entry. Powers given elsewhere in the Bill enable Army personnel to take further appropriate action. For example, schedule 3, which we have just dealt with, gives the power to seize explosives. Having been given the power to enter, the Army can take further action under the powers given in schedule 3. Hon. Members will see that, throughout the Bill, the Army is given other powers that maybe required in the scenario that pertains. Initially, however, we need to give the Army the power to enter, which is given in clause 22. Clause 24 gives additional powers in relation to detained persons.

Finally, I can tell the hon. Member for North Down that I will happily go away and look at “a person”, “the person” and “a member of Her Majesty’s forces” and ensure that all the appropriate phrases are in order.

Clause 25

Mark Durkan (Social Democratic and Labour Party, Foyle)

Clause 25 takes the powers inclause 23, which we have already debated and agreed, and applies them to vehicles. The powers to stop and search a person for explosives or to stop and search someone in a car have been among the most controversial powers in Northern Ireland. They were used systematically and were seen by many as a tool for harassment because there was no requirement for reasonable suspicion. Anyone in a public place or anyone making a journey by car, whether every day for business, or for a Sunday run over the border from Derry, could be searched at any time—and that happened. Whatever justification there may have been for that in the past, when a significant number of explosions were happening in Northern Ireland, we are now at a point when the power is not necessary. Unfortunately, there are still some explosions, but the number is far less than it was.

We should not follow the logic of everything that the Government tell us about the threat of terrorism in Britain. The threat posed by al-Qaeda in Britain is far greater that that posed by domestic terrorism in Northern Ireland, yet Britain has no equivalent to the powers in clauses 23 and 25 or schedule 3. I therefore oppose the clause standing part. If people cannot justify those powers in Great Britain, given the threat of terrorism and explosions there, how can they be justified in Northern Ireland?

Paul Goggins (Labour, Wythenshawe and Sale East)

I have already made it clear that it is necessary to counter the threat of international terrorism. We discussed the matter extensively in the early stage of our deliberations. In clause 25, we seek to put in place powers that will enable the police and the Army to deal with the terrorist threat that is specific to Northern Ireland.

Sammy Wilson (DUP, East Antrim)

Does the Minister not find the arguments of the hon. Member for Foyle most unusual given the fact that a number of members of his party, the Social Democratic and Labour party, who were also members of district policing partnerships and the Police Board have had their homes attacked by people who carried explosives to those homes and then threw the bombs at them?

Paul Goggins (Labour, Wythenshawe and Sale East)

I give credit to my hon. Friend the Member for Foyle and members of his party; they have indeed taken a risk in recent years by showing their support for the police and the rule of law and being prepared to engage with the issues. Some of them have paid a heavy price. I am grateful to the hon. Gentleman for giving me the opportunity to acknowledge and applaud that. They have given a lead, and it has not always been easy. If my hon. Friend wishes to respond, I am sure that he will find an opportunity to do so.

Clause 25 clarifies certain powers, particularly the power to stop and search a vehicle. That is important in respect of Northern Ireland and the type of threats that we are discussing. Obviously, people can move vehicles round with explosives in them so we must provide such powers. There is also a power under the clause that requires someone to remain with a vehicle or to go with it when it is searched for munitions and transmitters. That is necessary as individuals could attempt to walk away from a vehicle that is being searched. We have thought through the matter carefully and believe that such powers are necessary in respect of both premises and vehicles. I encourage the Committee to support the clause.

Clause 26

Sylvia Hermon (UUP, North Down)

I oppose clause 26 standing part of the Bill not because I object in principle to the Government’s intention, but because we need further clarification and assurances from the Minister. As members of the Committee will have noted, the clause deals with the examination of documents, but only an examination that is performed consequent on a search by a member of Her Majesty’s forces as outlined in previous clauses.

Clause 26 is carefully drafted. We are delighted that the hon. Member for Foyle is back with us this afternoon. We missed his contributions earlier, but he has certainly livened up proceedings and made up for his absence from Committee this morning. I might not agree with half of what he says, but it is always a delight to listen to him.

Sammy Wilson (DUP, East Antrim)

Only half?

Sylvia Hermon (UUP, North Down)

Well, more than half. I was being polite.

My difficulty with the clause is that it is precise in providing that a member of Her Majesty’s forces who performs such a search

“may examine any document or record found in order to ascertain whether it contains information of the kind mentioned in section 58(1)(a)...of the Terrorism Act 2000...(information likely to be useful for terrorism)”

and that

“if necessary or expedient for the purpose”

of the provision that person

“may remove the document or record to another place and retain it there until the examination is completed.”

The clause deals with specific types of documents that relate to terrorism. It is unusual in such circumstances that, under clause 26(3),

“A document or record may not be retained by virtue of subjection (1)(b) for more than 48 hours.”

When we discuss clause 27 stand part, it will become apparent that no photocopy or photograph can be taken of a document that might relate to terrorism.

Given what the Minister just said in response tothe objections of the hon. Member for Foyle and his assurance that the powers are still necessary in Northern Ireland to combat terrorism in all its forms—I make no distinction between home-grown terrorism and international terrorism; I loathe and detest all forms of terrorism—it seems that an amendment is necessary. That is why I urge the Minister to review clause 26. As drafted, it places no obligation on a member of Her Majesty’s forces to pass to the PSNI documents they find that are useful for combating terrorism. Instead, they are duty bound to return the original document within 48 hours. They cannot retain the original and pass back a photocopy or photograph, because that is prohibited by clause 27, so I am not at all happy with the clause.

Sammy Wilson (DUP, East Antrim)

We are discussing not only documents but records, which I presume could include computer records—perhaps the Minister could clarify that. In the past, the PSNI has found that in some cases it can take up to four or five weeks to get into such records because of firewalls and so on, or the ways in which records are stored. Would the hon. Lady accept that a limit of 48 hours could mean that the people who seize information may not have time even to find out what they have seized?

Sylvia Hermon (UUP, North Down)

I am most grateful to the hon. Gentleman for making such a sensible contribution—as he has done throughout the afternoon. He makes a valuable point indeed. There have already been two trials in Northern Ireland of al-Qaeda suspects. Both gentlemen—and they were gentlemen—had various and multiple aliases and their computer records used obscure middle eastern dialects that required expert translation. That was one reason why I, as opposed to Democratic Unionist party Members, supported 90 days detention without trial. We have set it at 28 days.

Will the Minister confirm and clarify for the benefit of the Committee the point that the hon. Member for East Antrim just made? Let us say that a suspect has already been detained for 28 days, in accordance with current law, and the documents or computer records are pertinent and relate to both terrorism and the defendant. In such circumstances, surely there should be an obligation under clause 26 to pass those key documents and references to a member of the PSNI.

Mark Durkan (Social Democratic and Labour Party, Foyle)

As has been indicated, clause 26 gives the Army power when performing searches under clauses 23 and 25 to examine and remove documents. Given what I said earlier, hon. Members will not be surprised to hear that I am opposed to the provisions, but I want to clarify that. We are not persuaded that even the police should have such powers, never mind the Army. The Minister is aware that he is proposing similar powers for the police in the policing order,but he is aware from the exchanges that I am surehe enjoyed with members of the programme for Government sub-committee in the Parliament buildings that my party is not persuaded of the need for such powers even for the police, never mind the Army.

Paul Goggins (Labour, Wythenshawe and Sale East)

Members of the Committee are right in saying that the clause deals with the removal of documents and records for examination, and I confirm that “record”, which is not defined in the Bill, can indeed include computer records. I acknowledge that my hon. Friend and his colleagues in the SDLP reject such powers for the police as well as for the Army. Members of the Committee will know that the Government intend to provide similar powers to the police through the Policing (Miscellaneous Provisions) (Northern Ireland) Order 2007. I enjoyed my exchange with colleagues in the transitional Assembly sub-committee when I met them a few days ago.

I hope that I can reassure the hon. Lady, who will acknowledge, of course, that a document might not at first reveal its evidential value and require a more thorough examination by the authorities. The powers that we are discussing will allow them to do that for 48 hours. Obviously, we have spoken to the police and the Army about the time that it is likely to take to decide whether those documents have evidential value. From their experiences in Northern Ireland, they think that 48 hours is sufficient. For example, they can draw on their experience at Whiterock when documents seized by authorities turned out to contain detailed plansfor the events conducted there by paramilitary organisations. It took some time to analyse those documents.

The hon. Lady rightly pressed a key issue: if during those 48 hours it becomes clear that documents contain evidence of an offence, they can be retained under the Police and Criminal Evidence Act and used in a prosecution. The powers before us simply allow the authorities to remove documents for 48 hours in order to conduct their investigations. I repeat: during that time, which the authorities tell us is sufficient, if it becomes clear that the documents contain evidence, they can be retained and used as such to prosecute those who might be responsible for very serious offences. I hope that that reassures her. The 48 hour cut-off time is simply for consideration of a document’s evidential value.

Sylvia Hermon (UUP, North Down)

Sir Nicholas, it is kind of you to allow me to respond to the Minister. I shall keep my remarks short.

I am not persuaded at all by the Minister. Clause 26 reads:

“A document or record may not be retained by virtue of subsection (1)(b) for more than 48 hours.”

The Bill needs more clarity. He said that the Police Service of Northern Ireland has assured him that48 hours is sufficient to determine whether a document or record pertains to terrorism. Those documents should then be retained for use in a criminal investigation.

Paul Goggins (Labour, Wythenshawe and Sale East)

I just want to draw the hon. Lady’s attention to a very important point that she made—the end of subsection (1)(b) reads:

“until the examination is completed”.

The provisions here simply confer the power to hold documents until the examination is completed and we have been assured that 48 hours is sufficient for that.

Sylvia Hermon (UUP, North Down)

The Minister confirms my worst fears. Let us repeat: documents seized and examined for up to 48 hours are likely to contain

“information likely to be useful for terrorism”.

That examination might well confirm that those documents and records are pertinent and useful to terrorists. Please remember that clause 26 enables only a member of Her Majesty’s forces to carry out such an examination. Even if that confirms the pertinence and usefulness to terrorism of the documents, the Army can neither retain the documents nor, courtesy of clause 27, to which we are about to come, make a copy or take a photograph of them—they must be returned. That does not make sense or seem logical to me, since the offences are so serious.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am failing to express myself clearly enough. I point out again to the hon. Lady the words in paragraph (b),

“until the examination is completed.”

The police and the Army tell us that that can be done within 48 hours. If the examination reveals information that can then be used as evidence in a prosecution, then it can be retained under different powers—under PACE rather than the Bill.

Sylvia Hermon (UUP, North Down)

The Minister makes that point even though there is no provision in the Bill for a member of Her Majesty’s forces to be duty-bound to pass on the documents. I asked him for assurances that if Her Majesty’s forces come to the conclusion that documents that they have seized and examined within 48 hours would be useful for the purposes of killing or terrorising people, the forces would be duty-bound to transfer those documents to the police. That is certainly not clear in the wording of the clause—quite the opposite: they will not be able to retain the documents.

Paul Goggins (Labour, Wythenshawe and Sale East)

The powers in the clause are specific and allow documents to be retained for up to 48 hours for the examination to be completed. The hon. Lady rightly points out that the provision relates only to Army powers, because police powers are set out in other legislation. If documents reveal information pertaining to terrorism or the commission of serious offences, the police will re-seize them under the provisions of the Police and Criminal Evidence Act.

As always, we must consider the Bill alongside other provisions. Of course, if the information pertains to serious disorder or paramilitary activity, the police will seize it and it will be used as part of a prosecution. I cannot offer a stronger reassurance.

Sylvia Hermon (UUP, North Down)

I am enormously grateful to the Minister. That was as firm an assurance as we needed. Had he given it a few minutes ago, it would have curtailed our debate. We have reached the right conclusion—that such documents will be transferred to the PSNI if they relate to terrorism. That is not clear from the wording of the Bill. I appreciate the Minister’s clarification.

Clause 34

Laurence Robertson (Conservative, Tewkesbury)

I beg to move amendment No. 23, in clause 34, page 23, line 8, at end insert

‘, but all breaches of the code shall subject the police officer to disciplinary procedures.’.

I shall not disappoint you this time, Sir Nicholas. Having examined the Bill more closely, I realised that it was not necessary to move the previous amendment.

Clause 34(1) refers to the effect of the code and states:

“A failure by a police officer to comply with a provision of a code shall not of itself make him liable to criminal or civil proceedings.”

My amendment is designed to give us the facility to discuss why that subsection is in the Bill and what the Minister envisages would happen if a police officer did not comply with the code, which has been compiled by the Secretary of State and approved by both Houses of Parliament.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am happy to try to clarify the powers in the clause and explain what would happen if we adopted the amendment.

The hon. Gentleman’s amendment would mean that any breach of the code would automatically result in disciplinary action against the officer who had transgressed it. All Committee members would expect that most breaches of the code—certainly serious ones—would result in disciplinary action under the direction of the Chief Constable.

We need to bear in mind, however, that in somerare situations a very minor breach of the code by experienced officers in difficult situations may lead the Chief Constable to conclude that it is not necessary for that officer to face disciplinary action. It is important that experienced officers doing their job in good faith and who may make a minor breach of the code can know confidently that they will get the support of their Chief Constable. We do not want minor transgressions to lead automatically to such police officers having their reputations tarnished. I remind the Committee that the issue could be subject to an investigation by the police ombudsman; if there were a complaint about the decision not to take disciplinary action, that could be investigated by the ombudsman. I hope that that satisfies the hon. Gentleman.

Laurence Robertson (Conservative, Tewkesbury)

I am grateful to the Minister forthat explanation. I beg to ask leave to withdraw the amendment.

Clause 39

Mark Durkan (Social Democratic and Labour Party, Foyle)

Given that, in our earlier exchanges, we touched on the possible role of the independent assessor, it is important that we test a number of points on clause 39. The clause provides for the Secretary of State to appoint a person to review the powers as an independent assessor. That assessor will have limited powers to oversee how the Army investigates complaints and will not have any powers to investigate complaints. That is no substitute for the office of the Police Ombudsman for Northern Ireland being able to investigate the Army when it plays a supporting role for policing. The reviewer will come each year, and the British Army is obliged only to give such information and documents as the independent assessor might reasonably require. By contrast, the police ombudsman has the power in the conduct of her duties to get any document that she needs.

Given that the Minister explained earlier and that it is pretty clear in the Bill that the Army does not have to keep any records of what it does or of its justification for it in the exercise of a lot of its powers, it is hard to know what the independent assessor will assess. We are told that the annual review of how the powers work will be the subject of a robust or significant report to the Secretary of State, and so the question arises of how there is to be an independent review that does not require renewal by Parliament if there are no records in relation to the Army.

The Committee earlier dealt with clause 36, which requires the Chief Constable to make records of the use of emergency powers. Of course, that does not apply to the Army. It does not have to keep any records. It is hard to see how the role of the independent assessor is in any way significant in relation to the Army’s use of the powers.

Let us remember that the Bill institutionalises emergency powers for the British Army—emergency powers that used to have to be renewed annually in the heat of the troubles and in the face of all sorts of violence, difficulty and turmoil. Now, in a morebenign situation, they are being institutionalised as permanent. Will the Minister give us a clear assurance that the references throughout the legislation to Her Majesty’s forces will apply only to the Regular Army and not to MI5 or MI6, for instance?

The rest of the debate is in Hansard.