| Justice (Northern Ireland) Bill
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Mr. Mallon: I thank the hon. Lady for giving way. I have listened with great interest to the points made by her, the Minister and other members of the Committee. The point that she makes is correct in that these are serious offences that should be dealt with. I am not competent to debate the legal issues, but as a lay person I have a feeling that obstruction in this area is serious, and that it should be treated seriously. I ask the Minister take the matter seriously, as he is doing. Lady Hermon: The hon. Gentleman is correct: we all take the view that it is a serious matter to obstruct a chief inspector carrying out an inspection of any of those listed organisations. However, I must say with knowledge of the jurisprudence of the European Court of Human Rights in Strasbourg that there is a great emphasis on the word ''proportionality'', and the punishment must be proportionate to the offence. I would not want us to rush into a series of cases in which this legislation was struck down on the grounds that it is disproportionate to the seriousness of the offence. I appreciate his intervention, but the proportionality principle is fundamental, and it is recognised in the Bill. The discussion has been useful, and we have extracted a lot of background information from the Minister, which is always helpful. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Question proposed, That the clause stand part of the Bill. Column Number: 255 Mr. Turner: I should like to pursue the question of whom the inspector is not allowed to inspect. The Minister explained that the Bill in no way restricts the inspector's sphere of operations. I am uneasy with his explanation because, although the Bill does not restrict the inspector's sphere of operations, I wonder how the courts would interpret its provisions if Her Majesty's Inspector of Criminal Justice in Northern Ireland knocked on my door and asked questions about the inspection of the Prison Service. I would be entitled to say that I was not prepared to have him in my house, or answer his questions, and that should be an end to the matter. That is an obvious distinction. Some people associated with the Prison Service in Northern Ireland would feel the same. Inspectors may feel that they have knowledge pertinent to their inspections, despite the fact that they are no longer, or never were, employed by the Prison Service. For very good reasons, the widow of a former member of the Prison Service may resist being questioned about the activities of her husband in that service, and the way it was being run. In those circumstances, a court would find it hard to say that that individual was automatically subject to the inspector's powers. The inspector may have to go to court to demonstrate that he has those powers. The individual may want to go to court to demonstrate the opposite. The powers are subject to somebody, who would probably work for the institutions described in clause 46 (1)(a) to (j). If one used to be employed by the compensation agency, the inspector would have to prove that he had a good reason for asking questions and demanding papers. In supplying that reason, he may reveal elements of his line of inspection. I am expressing unease; I want the Minister to reflect on that and consider whether it is appropriate to give an inspector broad powers without specifying their extent. The inspector should have those powers. It is right that he could ask a former serving member of one of the institutions what happened to a particular document, for example. However, it would be helpful if that were clearer. Mr. Browne: I am grateful to the hon. Member for Isle of Wight for allowing us to return to that point, which I thought we would return to in the context of clause stand part. His contributions have been helpful because they have outlined potential circumstances. Every time he gets to his feet, he produces another set of circumstances, as he imagines the possibilities. He demonstrates the futility of trying to anticipate every set of circumstances. The Bill is a substantial document. It would be twice the size if we were to cover every potential circumstance relating to inspections. The draftsmen, and the Government, intend to provide inspectors with the relevant powers, knowing that they will be subject to the sort of arguments that the hon. Gentleman imagines will take place in extremis on doorsteps or in courts. It is for the courts to interpret the extent of the inspector's powers and functions. That will depend largely on circumstance. It is clear from the context that the premises that are referred to are intended to, and probably will, be Column Number: 256 restricted to premises of those in the list of organisations subject to inspection. I do not anticipate that ''premises'' will be interpreted more widely than that, but I can figure a set of circumstances in which premises are no longer occupied by such an organisation, but a store of files has been left there. Common sense tells us that the inspector would not be unreasonable in arguing that his powers extended to those remaining files—in a situation similar to the earlier analogy of the hon. Member for Isle of Wight . It is right to have such flexibility, because we cannot anticipate every circumstance.
11.15 amSubsection (3), which refers to persons who can commit an offence, was clearly drafted with employees in mind. I will refer to the analogy that the hon. Gentleman used of ex-employees taking documents home. The powers relating to documents are intended to be used for documents and the information therein. We home could get into an interesting argument about whose property the documents are if they are taken by an employee who becomes an ex-employee; he or she may forget to return a briefcase of documents to the agency, or perhaps intended to hold on to it because it contained information that they did want to see the light of day. The powers clearly relate to the documents and, although I do not ever expect to be instructed by the inspector to argue this, I can easily construct the framework of an argument for the court, and for the doorstep, that says that a power in the Act allows the inspector, or his agent, to have access to documents. Unless criminality or malpractice is being covered up, I do not imagine that anyone will have to go to court. I want to reassure the hon. Gentleman that the framework and the context of the powers are restrictive enough not to have someone going around Northern Ireland with powers over any person. The courts will be sufficiently informed that, to make the appropriate decisions at the margins, there may need to be arguments about how far the powers extend. Mr. Turner: I understand that my comments may appear to be fanciful flights of my imagination, but the problem is that situations already arise in the case of, say, the local government ombudsman in England. He is constantly frustrated in the investigations he attempts by the fact that staff have left the local authority and refuse to appear. If the situation is something as insubstantial as that in the Isle of Wight, it is likely to be far more substantial in an allegation brought or an inspection undertaken in Northern Ireland. Mr. Browne: The hon. Gentleman is unduly sensitive. His were not flights of fancy, but interesting issues and I was congratulating him on his ability to use his imagination in debate to figure circumstances that could have basis in reality. I understand his analogy, but we cannot cover every eventuality in the Bill. If he knows of a specific eventuality that would not be covered except by statutory provision, I shall be happen to debate it in the context of an amendment. Statute law does not seek to cover every eventuality, Column Number: 257 but to create a framework in which a statutory authority works, and powers to allow that authority to carry out inspections to the necessary extent. That is what the clause seeks to do.Mr. Andrew Turner: I appreciate the Minister's words, and accept the explanation that, in his view, there is sufficient power. Question put and agreed to. Clause 48 ordered to stand part of the Bill. Clause 49 ordered to stand part of the Bill.
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| Prepared 7 February 2002 | |
