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Clause 23
Power to stop and question
Lords amendment : No. 5, in page 17, line 5, leave out ("and question any person") and insert
("any person for so long as is necessary in order to question him").
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
The purpose of the amendment is to clarify the powers to stop and question conferred by clause 23. In Committee, the hon. Member for Newry and Armagh (Mr. Mallon) expressed concern that, in some instances, the power was being used effectively as a power to detain persons for longer than was necessary to question them about the matters covered by subsection (1). This is the second Lords amendment to have arisen, at least in part, as a consequence of what was said in Committee by the hon. Member for Newry and Armagh. We considered his points carefully, and subsequently tabled the amendment in another place to ensure that the clause would not be regarded as a power to detain people for longer than necessary.
The only powers to detain persons for a significant period are those provided by clause 18--the Army arrest power--and clause 94, which allows persons' movements to be restricted during a house or vehicle search. In both cases, the maximum period for which persons can be detained is four hours, unless a further period of detention is authorised by the police.
The amendment is intended as a modest safeguard. I hope that it will be welcomed by the hon. Member for Newry and Armagh and by the House.
Mr. McNamara : In so far as the amendment limits the power to stop and question to the period required for questioning, it should prove a useful means of preventing harassment and what is regarded on occcasion as undue persecution by the security forces--the use of delaying tactics before people are actually questioned. We therefore welcome the amendment, which should go a long way towards enabling us to gain the support for the security forces that is currently needed. People will feel that they are being treated fairly, rather than being unduly harassed and delayed.
Mr. Mallon : I thank the Minister for his kind words. It would be churlish of me not to welcome what he has said, in part at least. Welcoming the amendment, however, is almost akin to welcoming the news that one is going to be not hanged but half hanged. That is of course an exaggerated analogy, but I should like to take this opportunity to repeat a plea that I constantly make to the Minister. In emergency legislation, we must always safeguard the rights of the individual, whoever that individual may be. The iniquitous business of stopping people on the street--especially young people--under guard of guns, and
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searching and questioning them, is not only humiliating ; it is bad policing and bad military tactics, and completely counter-productive.Question put and agreed to.
Clause 25
Power of Secretary of State to Direct the Closure, etc. of Roads
Lords amendment : No. 6, in page 18, line 12, leave out ("The Secretary of State") and insert
("If the Secretary of State considers it necessary to do so for the preservation of the peace or the maintenance of order he"). Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
Clause 25 empowers the Secretary of State to direct the closure or diversion of roads, and makes it an offence to interfere with works carried out in connection with such a closure. The amendment is intended to provide a certain safeguard on the exercise of those powers. It would enable the scope of the Secretary of State's power to be stated more explicitly, limiting it to occasions when he considers it necessary for the preservation of the peace or the maintenance of order. I hope that the House will accept the amendment on that basis.
Question put and agreed to.
Subsequent Lords amendments agreed to.
Clause 57
Additional investigation powers
Lords amendment : No. 11, in page 41, line 17, leave out from ("Where") to end of line 26 and insert
("a person who has been authorised under subsection (1) above to exercise the powers there mentioned considers that any material may be relevant to the investigation in relation to which the authority was given, Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 (terrorist investigations) shall have effect in relation to the material as if--
(a) the references to a constable in paragraphs 2(1), 3(1) and (2)(b), 5(1) and (3), 6(1), 12(2)(b), 14(3) and 15(1) ;
(b) the first of the references to a constable in paragraph 3(6) ; and
(c) the references to a procurator fiscal in paragraphs 12(1) and (6), 13(2), 14(1) and 15(1),
included references to that person ; and where (by virtue of this subsection) such a person has made an application for an order under paragraph 3 of that Schedule, the reference in paragraph 4(2)(b) to the constable on whose application the order was made or any constable serving in the same police station shall be construed as referring to that person.")
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
The purpose of the amendment is to extend to authorised investigators appointed under clause 57 some of the powers of a constable under schedule 7 of the Prevention of Terrorism (Temporary Provisions) Act 1989. That Act empowers a police officer to apply for search warrants and production orders in connection with investigations of terrorist finances.
Because the material obtained as a result of the execution of such warrants and orders is likely to be complex and technical, in such cases the RUC will
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probably apply to the Secretary of State for the appointment of an authorised investigator to assist the investigation. The amendment would simply provide that, when an authorised investigator had been appointed to deal with such an investigation, he could himself apply for any further search warrants or production orders that were required. Persons applying for such orders can expect to be asked searching questions by whomever is considering the application, and it would not be easy for anyone but the authorised investigator to attempt to answer them.The proposal in no way alters the properly strict conditions that must be fulfilled before any order may be granted under schedule 7. It simply enables an authorised investigator to apply for such orders. It also allows an authorised investigator access to any material that is the subject of an access order. Without such a provision, the authorised investigator would have to seek a production order for the material.
Question put and agreed to.
Clause 60
Codes of practice : police powers
Lords amendment : No. 13, in page 42, line 19, leave out from ("State") to ("the") in line 26 and insert
("shall make codes of practice in connection with the detention, treatment, questioning and identification of persons detained under the Prevention of Terrorism (Temporary Provisions) Act 1989 and may make codes of practice in connection with--
(a) the exercise by police officers of any power conferred by Part II of this Act of by that Act ; and
(b)").
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
On Second Reading, in Committee and on Report, concern was expressed from a number of quarters about police procedures at the terrorist holding centres. I repeat that the Government are wholly committed to ensuring that the highest standards apply in the conduct of police interviews with terrorist suspects. We have listened carefully to the anxieties that were expressed, and have decided to make a number of important changes.
First, we have decided to create a code of practice under the powers in clause 60, dealing with the detention, treatment, questioning and identification of terrorist suspects. The amendment would impose a duty on the Secretary of State to produce such a code ; it would also leave intact the enabling power in relation to the other matters currently specified in the clause as possibilities for codes of practice.
The Government also announced in another place on 13 May that we were considering the appointment of an independent commissioner to monitor procedures at terrorist holding centres. While our ideas on that remain at a formative stage, it is possible to envisage a scheme with certain general features.
First, the commissioner would be appointed with the remit to visit holding centres and to have access to those centres at any time of his or her choosing. Secondly, the primary task of the commissioner would be to ensure that the proper procedures relating to the treatment of terrorist suspects were being followed. Thirdly, the commissioner would, therefore, be concerned with such matters as the proper completion of custody records, the procedures
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under schedule 3 of the Prevention of Terrorism Act 1989, the proposed code of practice on detention to be made under the Bill, the provisions of part VI of the Bill, the continued supervision of the closed circuit monitors and, generally, to see that the arrangements for the detention of suspects were satisfactory. Fourthly, the commissioner might have the duty to report periodically to the Secretary of State and could be required to draw any matter of immediate concern to the attention of the Chief Constable. It will take some time to work out the details of the scheme. We are currently having discussions with the RUC, the police authority and the Standing Advisory Commission on Human Rights, among others, on those matters. I hope that the House will feel able to welcome those developments. They demonstrate that the Government have given serious consideration to the concerns that were raised in the House and are prepared, wherever possible and practicable, to introduce new measures to enhance confidence in police procedures and to enhance further the rights of persons arrested and detained under the terrorism provisions in Northern Ireland. I commend the amendment to the House.Mr. McNamara : The main purpose of the amendment is to place a statutory duty on the Secretary of State in connection with the making of codes of practice concerning detention, treatment, questioning and the identification of people detained under the Prevention of Terrorism Act 1989. That is to be welcomed. There exists an internal contradiction, however, because whereas the codes of practice dealing with the Army and so on will be discretionary, the code that we are discussing will be mandatory. That requires explanation. When will the code of practice be published? It is important for it to become available as soon as possible because of continuing complaints and controversy surrounding matters at holding centres.
We greatly welcome the decision announced in the other place about the possible appointment of an independent commissioner to examine matters at holding centres. Under what power will the independent commissioner be appointed? Will it be under this or other legislation, or will the appointment flow from the publication of the code of practice?
Issues such as visits to holding centres to see the procedures that are followed, and other aspects of the independent commissioner's remit, are also important. Will the report to the Secretary of State and documents calling matters to the attention of the police constable be publicly reported? Is there likely to be a report to Parliament, as has been suggested under the procedures for the Army complaints system?
I appreciate the difficulties involved and I welcome the general thrust of what is proposed, but are we likely to receive further information on this issue before the House rises towards the end of July? Or shall we have to wait until after the House reassembles in the autumn?
The Minister should be aware that, no matter how much we welcome the new procedures, by far the best safeguard would be to adopt the suggestion of Lord Colville, against which the Government and the RUC have steadfastly set their faces, for the videoing of all interrogations and occurrences at holding centres. That would be the greatest safeguard. Indeed, if what is proposed were coupled with the full sound and video taping and recording of interrogations, that would go a
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long way towards overcoming many difficulties and suspicions. Even so, we welcome the step that the Government are taking.6.15 pm
Mr. Mallon : I, too, welcome the code of practice, but I hope that the Minister will use all his courage and make the provision statutory rather than mandatory. Such an approach would go a long way towards helping to ease the minds of people concerned with the code of practice.
While I welcome the appointment of an independent commissioner, I believe that the commissioner should have the power to speak to the person or persons being held. If not, it will seem that he is hearing only one side of the story. Three criteria must be met in that connection. First, only by speaking to the person being held can he know whether and at what time a request for legal advice was made. Secondly, he could be told whether a request had been made for a visit from the person's own medical practitioner. No amount of oversight of the documentation could establish properly in the mind of the commissioner the facts about that. Without that criterion being met, the commissioner will have to go on the word of, say, the senior police officer, who may have denied such requests for legal advice and the presence of a medical practitioner. To be properly convinced, the commissioner should have the right to talk to the person or persons being held.
Thirdly, the commissioner should know precisely how and when the next of kin was notified of the fact that the person concerned was detained in a holding centre. Without the right to speak to the person in detention, the commissioner will have to accept the word perhaps of the person who made the decision in question.
There seems no reason why such power should not be given to the independent commissioner, remembering that the person concerned is in a police station or holding centre. That person should have the right to say to the commissioner, "I asked for a legal adviser at a certain time ; I asked for a visit from a medical practitioner at a certain time ; and may I be told whether my parents or next of kin have been notified, as required under the legislation, and at what time that was done?"
Dr. Mawhinney : With the permission of the House, I will speak again.
I thank the hon. Member for Kingston upon Hull, North (Mr. McNamara) for welcoming the amendment. The Government are not currently convinced of the case for making codes of practice in connection with the exercise by the police and armed forces of the emergency powers conferred by part II of the Bill. However, we shall be updating the guide to the emergency powers and will keep the case under review. The hon. Gentleman knows from our exchanges in Committee and on Report that when I say that we will keep the matter under review, that is not just a form of words.
The hon. Member for Newry and Armagh (Mr. Mallon) has misunderstood the difference between mandatory and statutory. The code of practice will be statutory. The Bill would impose a mandatory requirement on the Secretary of State to make such a code.
Both hon. Gentlemen mentioned a number of points about our thinking concerning a commissioner. Though valid points, I cannot respond to them today, for obvious
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reasons. As I said, we are still at the formative stage of our thinking, but I undertake to draw the attention of my noble Friend to the comments of both hon. Gentlemen, although I must tell the hon. Member for Kingston upon Hull, North that I doubt whether we shall be able to conclude our thinking and consultations on the issue before the summer recess.Question put and agreed to.
Subsequent Lords amendment agreed to.
Clause 66
Orders and regulations
Lords amendment : No. 15, in page 46, line 35, after ("4") insert
("or paragraph 7 of Schedule 5")
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
Mr. Deputy Speaker : With this, it will be convenient to take Lords amendment No. 30.
Dr. Mawhinney : Lords amendment No. 30 would place a duty on the Secretary of State to make a code of practice in connection with the exercise by authorised investigators of the powers conferred by schedule 5. Because those powers are, in some respects, as far-reaching as the powers of the security forces in relation to the detention, treatment, questioning and identification of persons detained under the Prevention of Terrorism (Temporary Provisions) Act 1989, we have thought it appropriate that their exercise should be regulated by a code. Such a code will act as a safeguard for those who are subject to the use of the powers and for the authorised investigators who are to exercise them. The detailed provisions relating to the making of the code are set out in Lords amendmentNo. 30.
Lords amendment No. 15 provides that an order bringing such a code into operation shall be subject to the negative resolution procedure.
The amendments introduce a significant safeguard. They have been welcomed in another place and by interested parties in Northern Ireland, including the Standing Advisory Commission on Human Rights, and I commend them to the House.
Mr. McNamara : I welcome the Minister's announcement. When the question of greater and extensive powers being given to authorised investigators first jumped on the Committee, grave concern was expressed, particularly by my hon. Friend the Member for Leicester, South (Mr. Marshall) and the hon. Member for Newry and Armagh (Mr. Mallon). The ability to channel powers and responsibilities into a code of practice is to be welcomed, and it ties in with a previous amendment in which we regularised the position of investigators as constables. The combination of the code of practice and the position of constables puts something that was vague, and therefore dangerous, when it was first presented to the Committee into a framework that may allay some of our earlier fears about the powers.
We welcome the proposal, but we shall have to see what is in the code before we can say that it is fully welcomed.
Question put and agreed to.
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Subsequent Lords amendment agreed to.Schedule 1
The Scheduled Offences
Lords amendment : No. 17, in page 51, leave out line 44 and insert--
("(e) paragraph 25B of Schedule 4 (contravention of restraint orders.")
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
Mr. Deputy Speaker : With this, it will be convenient to take Lords amendment No. 32.
Dr. Mawhinney : Lords amendments Nos. 17 and 32 consolidate and strengthen the law relating to breaches of restraint orders granted under powers in schedule 4. As the House will be aware, the purpose of such orders is to freeze assets so that they are available to be confiscated or forfeited if a conviction is obtained. It is right that the courts should have available a wide range of penalties to deal with those who choose deliberately to flout such orders, and that is the effect of the amendments.
Contraventions of restraint orders are normally dealt with as contempts of court. By virtue of the Contempt of Court Act 1981, the maximum sentence available to a court is two years' imprisonment. I believe that hon. Members will recognise that such a penalty is not adequate to deal with those who deliberately flout a restraint order relating to terrorist finance.
There is the further difficulty that contempt of court is neither a scheduled offence nor a relevant offence for the purpose of the confiscation scheme and, as most contempts of court have nothing to do with the emergency in Northern Ireland, it would be inappropriate to provide that they should be.
As hon. Members will recall, the confiscation scheme as introduced on Report included a new offence of contravening a restraint order granted by the Secretary of State. That was necessary because contravention of such an order would not amount to contempt of court but, because the offence was analogous to contempt of court, it was not considered that we could ask the House to provide a stiffer penalty for it than for contempt.
The inadequacies of the two-year maximum sentence and the other difficulties to which I referred were appreciated, but unfortunately it was not possible to complete all the consultations necessary before Report stage in the House. The consultation has since been completed, and the amendments are the result.
The amendments therefore create new offences of contravening restraint orders, whether made by the High Court or by the Secretary of State. It will be a defence to prove that the breach took place with lawful authority or reasonable excuse. The maximum penalty will be 14 years' imprisonment. The offences will be both scheduled and relevant for the purposes of the confiscation scheme in part VII. I commend them to the House.
Question put and agreed to.
Subsequent Lords amendment agreed to.
Lords amendment : No. 19, in page 52, line 15, leave out ("8(4)") and insert ("8A")
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
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Mr. Deputy Speaker : With this we shall take Lords amendment No. 29.Dr. Mawhinney : Lords amendments Nos. 19 and 29 have the same effect for restraint orders under schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989 and the arguments for them are identical to those that I made in support of Lords amendments Nos. 17 and 32. I commend the amendments to the House.
Question put and agreed to.
Subsequent Lords amendment agreed to.
Schedule 4
Confiscation Orders : Supplementary Provisions
Lords amendment : No. 21, in page 60, line 12, leave out from beginning to ("and") in line 14
Dr. Mawhinney : I beg to move, That this House doth agree with the Lords in the said amendment.
Mr. Deputy Speaker : With this we shall take Lords amendments Nos. 22 to 28.
Dr. Mawhinney : Lords amendments Nos. 22 to 28 make a small but important change to the provisions on restraint and charging orders found in schedule 4 to the Bill. We now take the view that, in the very special circumstances that regrettably exist in Northern Ireland, the involvement of the Director of Public Prosecutions in the making of applications for such orders in terrorist cases, sometimes before anyone has even been charged with any offence, might be regarded as calling into question his independence at a later stage.
The effect of the amendments is therefore to provide that applications for such orders made before a person has been convicted are to be made by an officer of the Royal Ulster Constabulary of at least the rank of superintendent. Applications made after a person has been convicted will continue to be made by the DPP in Northern Ireland.
Lords amendments Nos. 21 and 23 to 27 are simply consequential on that decision not to involve the DPP in Northern Ireland in pre-conviction applications. I commend the amendments to the House. Question put and agreed to.
Subsequent Lords amendments agreed to.
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Northern Ireland (Interim Period)
6.28 pm
The Secretary of State for Northern Ireland (Mr. Peter Brooke) : I beg to move,
That the draft Northern Ireland Act 1974 (Interim Period Extension) Order 1991, which was laid before this House on 3rd June, be approved.
The draft order renews the temporary provisions in the Northern Ireland Act 1974 under which government by direct rule continues in Northern Ireland. In presenting the draft order to the House, I owe the House an account of the Government's stewardship in Northern Ireland over the past year and, in particular, of the progress made in preparing the ground for the political talks on Northern Ireland which are now under way.
I shall first report on the security situation in Northern Ireland and on what Her Majesty's Government and the security forces are doing to bring terrorism to an end. Tragically, the security situation continues to bring death and suffering to the Province. Last year, 76 people were killed and this year to date the figure is 38. The terrorism which is the motor of this continuing misery is anathema and runs counter to everything that we value. Terrorists fail--or refuse--to comprehend that they will achieve nothing by their brutal methods of coercion and that they are an undemocratic and unrepresentative anachronism in a world where people increasingly settle their political differences by peaceful democratic means. They will not succeed because of the resolve of all decent people in Northern Ireland and because of the Government's determination to maintain the rule of law.
I must pay a special tribute to the security forces, whose courage and professionalism in the face of unremitting threat to their lives is exemplary and who strive to protect the people of Northern Ireland. The efforts of the security forces are all the more vital because it is the present intention of the terrorists to prevent any political progress. The security forces deserve the support of everyone in Northern Ireland.
The Government will do all in their power to assist and support the security forces. The House will be aware that the current Northern Ireland (Emergency Provisions) Bill brings together, in one piece of legislation, all the anti-terrorism provisions which apply uniquely to Northern Ireland. In addition to re-enacting the main emergency powers, as Lord Colville recommended, the Bill creates a number of new offences and additional powers which will materially assist in the defeat of terrorism. It is also important to strike the right balance between providing the legal means needed to protect the community effectively while at the same time providing appropriate safeguards for individuals. For that reason, the Bill provides for statutory codes of practice on the exercise of its powers, and creates the new office of Independent Assessor of Armed Forces Complaints Procedures in Northern Ireland to help enhance public confidence in the way in which non-criminal complaints against soldiers are dealt with.
The Government's determination to build on the progress that has been achieved with the Irish Government on security co-operation remains no less strong. Much has been achieved since 1985, but more needs to be done if both Governments are to defeat the terrorist threat to the entire island of Ireland.
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The Government have of course been active over the whole range of their responsibilites.
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