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Session 2006 - 07
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Public Bill Committee Debates

Draft Police and Criminal Evidence (Amendment) (Northern Ireland)Order 2007

The Committee consisted of the following Members:

Chairman: Hywel Williams
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Burden, Richard (Birmingham, Northfield) (Lab)
Campbell, Mr. Ronnie (Blyth Valley) (Lab)
Farrelly, Paul (Newcastle-under-Lyme) (Lab)
Foster, Mr. Michael (Worcester) (Lab)
Goggins, Paul (Parliamentary Under-Secretary of State for Northern Ireland)
Hamilton, Mr. Fabian (Leeds, North-East) (Lab)
Hermon, Lady (North Down) (UUP)
Lancaster, Mr. Mark (North-East Milton Keynes) (Con)
Lazarowicz, Mark (Edinburgh, North and Leith) (Lab/Co-op)
McKechin, Ann (Glasgow, North) (Lab)
Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab)
Öpik, Lembit (Montgomeryshire) (LD)
Robertson, Mr. Laurence (Tewkesbury) (Con)
Shepherd, Mr. Richard (Aldridge-Brownhills) (Con)
Southworth, Helen (Warrington, South) (Lab)
Streeter, Mr. Gary (South-West Devon) (Con)
Stuart, Mr. Graham (Beverley and Holderness) (Con)
Turner, Mr. Andrew (Isle of Wight) (Con)
Waltho, Lynda (Stourbridge) (Lab)
Wilson, Sammy (East Antrim) (DUP)
Glenn McKee, James Gerrard, Committee Clerks
† attended the Committee

Fifth Delegated Legislation Committee

Wednesday 24 January 2007

[Hywel Williams in the Chair]

Draft Police and Criminal Evidence (Amendment) (Northern Ireland)Order 2007

2.30 pm
The Parliamentary Under-Secretary of State for Northern Ireland (Paul Goggins): I beg to move,
That the Committee has considered the draft Policeand Criminal Evidence (Amendment) (Northern Ireland)Order 2007.
I welcome you to the Chair, Mr. Williams. Copies of the order were laid before the House on 4 December 2006. The purpose of the order is further to amend and update the Police and Criminal Evidence (Northern Ireland) Order 1989, commonly known as PACE, which introduced the now well established statutory framework for the exercise of police powers in Northern Ireland. The framework is closely modelled on that which was first introduced in England and Wales in 1984. Before I come to the details I shall briefly explain the background to the order and set it in context.
The last major review of PACE in Northern Ireland was in 1995. Since then, there have been several significant amendments to PACE in England and Wales. Indeed, those changes have accelerated in the last four years or so, largely due to a joint Home Office-Cabinet Office fundamental review of PACE in 2002 and a further Home Office review aimed at modernising police powers in 2004. Many of the proposals in those reviews were enacted in England and Wales in the Criminal Justice Act 2003 and the Serious Organised Crime and Police Act 2005.
Lady Hermon (North Down) (UUP): As ever, itis a pleasure to serve under your chairmanship, Mr. Williams. I am grateful to the Minister for taking an early intervention. We are in January 2007, but the PACE update took place in England and Wales in 2003 and 2005. Will the hon. Gentleman please explain why Northern Ireland has languished so far behind the rest of the United Kingdom?
Paul Goggins: I am grateful to the hon. Lady for her early intervention and the answer to her question is that it was not for the want of trying. My righthon. Friend the Member for Liverpool, Wavertree (Jane Kennedy), the former Northern Ireland security Minister, announced a review of PACE in Northern Ireland in 2004 and set the wheels in motion for that review, but the further reviews came across it, which lengthened the time process. I hope that the hon. Member for North Down will join me in welcoming this opportunity to modernise the PACE system for Northern Ireland.
The order addresses the deficit that may exist and the need to bring things up to date. By making several amendments to the Police and Criminal Evidence (Northern Ireland) Order 1989, we will provide the Police Service of Northern Ireland with a very similar regime to that available in England and Wales and enable it to combat crime in the 21st century more efficiently and effectively.
The substance of the proposal begins in part II, which deals with police powers to stop and search. I draw attention to two of a number of changes in that part of the order. The first relates to fireworks. Most people enjoy fireworks responsibly, but in the wrong hands they can cause not only great annoyance and misery, but serious injury and death. A small but dangerous minority use fireworks to intimidate and to terrorise those around them. Members of Parliament in Northern Ireland, and in England, Wales and Scotland, regularly have to deal with those issues.
Police in England and Wales have the power to stop and search a person or vehicle and to seize fireworksif they have a reasonable suspicion that possession is illegal under the terms of existing fireworks legislation. Although Northern Ireland already has a strict fireworks licensing scheme, that power should also be provided to police to deal with those who are intent on deliberately breaching the law.
The other change in respect of search powers—article 4—will require a police constable to provide his or her name in addition to their police number and station prior to commencing a search of a person ora vehicle. The same requirement will apply to the completion of a record of search. That is a routine requirement in England and Wales under PACE, but for Northern Ireland it is an important step as the police service moves towards greater transparency in its contact with the public. It is our intention that, through codes of practice to be issued after legislation is passed, officers will not be obliged to supply their names in the case of inquiries linked to the investigation of terrorism, or if they reasonably believe that by doing so they may be endangered. That is already the case in England and Wales.
Part III of the order deals with police powers of entry, search and seizure. Today, of course, criminal evidence and the proceeds of crime can be moved quickly between locations in an effort to thwart police investigations. It is therefore important that wereduce the current bureaucracy associated with search warrants, to reflect changes in working procedures and patterns of criminal activity.
At present, a constable is required to apply in person for a warrant, which can be used to search a single premises on one occasion only and within one month of the date of issue. Applying repeatedly for warrants for different premises owned by the same person can cause delays and impede investigations. By broadening the scope of search warrants and the way in which they are applied for and executed, the effectiveness and efficiency of the existing warrant structure will, in my view, be substantially improved.
The order does two things. It will allow for a warrant to be issued covering one or more specified premises. It will also introduce a new warrant, authorising the search of any premises occupied or controlled by an individual, whether or not all addresses are known to the police at the time of the application. In addition, warrants may authorise access on more than occasion, and they will be valid for three months rather than one.
In widening the range and scope of search warrants, I am fully aware of the need to ensure stringent safeguards and protection for those whose premises are being searched. Under the new arrangements, there will be a greater requirement on police officers to satisfy a lay magistrate by providing specific information and justification when making application for a warrant. No premises may be entered or searched more than once without the written authority of an officer of at least inspector rank.
I turn to some important changes in arrest, as set out in part IV. The right to liberty is a key principle of the Human Rights Act 1998, and the power of arrest represents an obvious interference with that right. However, arrest is a crucial weapon in the police armoury for tackling crime. PACE has done muchto regulate the power of arrest by establishing a systematic structure based on the principles of seriousness and necessity. As well as the statutory power of arrest for arrestable and serious arrestable offences, a police officer in Northern Ireland has a general power of arrest, if considered necessary, for all offences. The criteria justifying such an arrest are set out in article 27 of the PACE order as it currently stands.
However, much has changed in crime and criminality and in the nature of offending in the 18 years since PACE was enacted, and the current arrangements are far from straightforward. Indeed, they were described by the Association of Chief Police Officers at the time of the Home Office review of PACE as a “myriad” of complex laws. There is undoubtedly a need for greater clarity.
In line with the changes made in England and Wales, under the Serious Organised Crime and Police Act 2005, article 15 of the order will abolish the category of arrestable and serious arrestable offences, replacing them with a power of arrest for all offences, but crucially one based on the concept of necessity. Seriousness will remain a key consideration when a constable decides to make an arrest, but it will be one of a number of necessary factors to be taken into account. It is the necessity for arrest that the officer must consider in order to decide whether or not to effect an arrest. Necessity requires the officer to set out the reasons why a person is being arrested and not dealt with by other means. It may help the Committee to refer to proposed new article 26(5), which sets out the grounds on which it may become necessary to make an arrest.
In addition, a new accompanying PACE code of practice, dealing solely with arrest, will shortly be laid before the House. Based on a similar code introduced in England and Wales, the new code will regulate the exercise of the new arrest provisions.
Lady Hermon: Again, I am grateful to the Minister for giving way. Will he confirm whether the new powers of arrest, the grounds for which he has just mentioned, are identical to those in Great Britain? If they are, which I understand that they are, how could there be any differences between the codes of practice applicable in Northern Ireland and in England and Wales?
Paul Goggins: I can confirm that they are the same. I would not anticipate a major difference in the codes of practice. However, we would need a code of practice to put into operation the new legislation that is providing for Northern Ireland. Does that satisfy the hon. Lady?
Lady Hermon: Momentarily.
Paul Goggins: The new arrest powers that we have been discussing have been in operation for over a year in England and Wales, where they have bedded in well. I am confident that they will have a similarly beneficial effect in Northern Ireland.
Part V of the draft order makes a series of changes to the detention provisions, aimed at reducing bureaucracy and making current procedures and processes more efficient and effective. In particular, new provisions will be introduced to allow police to review a person’s detention by telephone or video-conferencing facilities. I have also decided to remove the unnecessary and cumbersome provision that requires a person released on police bail to attend back at a police station no later than 28 days after being released. The police will still be able to require attendance in individual cases, where judged necessary, but the requirement will not be automatic.
The importance of identification data in the investigation of crime should not be underestimated. As forensic science and technology advance at an unprecedented rate, it is vital that the police are provided with the necessary tools as they investigate crime and seek to bring criminals to account for their deeds.
Part VI, which deals with the questioning and treatment of persons by the police, has been amended on a number of occasions in recent times, in line with England and Wales. The draft order makes a number of further changes, again in line with England and Wales. For example, police will be able to take footwear impressions, to photograph persons elsewhere than a police station and to take fingerprints without consent in order to confirm a person’s identity.
As part of the drive towards greater operational efficiency and the reduction of bureaucracy, authorisation levels have been reduced from superintendent to inspector in a range of duties, which include carrying out an intimate search, the taking of intimate and non-intimate samples, delaying a suspect’s right to have someone informed of their arrest and delaying access to legal advice.
I would like to draw attention to a new power, which will allow police to carry out a speculative search of fingerprint and DNA databases from samples taken from deceased persons, or a body part. That will be particularly valuable in the identification of victims of natural disasters such as the tsunamis in Asia and the hurricane in New Orleans.
In conclusion, I believe that the amendments contained in the order will greatly enhance the police and criminal evidence regime in Northern Ireland. In conjunction with radically revised, updated and expanded codes of practice, they will give police in Northern Ireland broadly the same range of powers already available to their colleagues in England and Wales. They will be provided with a more modern, effective and efficient range of provisions in the fight against crime. In keeping with the spirit of PACE, they strike a fair and proportionate balance between police powers and the rights of the individual. I commend the draft order to the Committee.
2.45 pm
Mr. Laurence Robertson (Tewkesbury) (Con): I join the Minister in welcoming you to the Committee, Mr. Williams. I do not intend to detain the Committee for long as the Opposition approve of the order, but I have a couple of questions, which the Minister has already touched on.
I echo the words of the hon. Member for North Down about how it seems odd that the first changes to PACE were in 2003, but that four years on we are only just including the changes for Northern Ireland, even though there were further changes in 2005. The Minister’s reference to other changes to PACE being considered by the Government also concerns me. Having waited so long, would it be better to wait a little while longer until the next review of PACE is carried out? That is a slight question. My other question was why the definition of a child in Northern Ireland is being raised to 18 when it is still 17 in England and Wales, but the Minister has touched upon that and it is being reviewed. Perhaps the Minister could take up those two points when he replies, but beyond that I have no further questions.
2.46 pm
Lembit Öpik (Montgomeryshire) (LD): I was a little late for the Committee, for which I apologise, due to conflicting parliamentary business, so I feel guilty about being called before the hon. Member for North Down.
Our first concern relates to the arrest provisions contained in article 16. We do not object in principle to the simplification of the criteria for arrest—on the face of it, that looks sensible—but we are nevertheless concerned that the article grants too much discretionto individual officers. The change in article 16 mightalso lead to large numbers of unnecessary arrests. Preventive detention other than for the purpose of initiating a criminal prosecution is not permitted by article 5 of the European convention on human rights. The police and others have powers to use reasonable force in the prevention of crime. Would the Minister have some comment on that concern in his summation?
We are also concerned about a general power of arrest, related to the same sort of worries. The conditions are drafted very broadly. It would be easy for an officer to justify an arrest under one or both of the provisions here. Since officers often have to make rapid decisions about whether to arrest, I put it to the Minister that it would be natural, particularly for the relatively inexperienced, to err on the side of caution and to make the arrest. This would lead to the further overcrowding of custody suites and an increased use of police time and resources in dealing with people arrested for relatively minor offences. I do not see any provision to ensure against that eventuality. Again, I ask the Minister for comment.
We are also concerned that there is considerable scope for abuse of the subsections and that they may be applied arbitrarily—or, rather, in a discriminatory fashion—against certain sectors of the community, such as against ethnic minorities. Once again, article 5 of the convention does not permit arbitrary procedures for arrest. Today’s proposals do permit arbitrary procedures for arrest or, certainly, procedures that could be applied arbitrarily. Can the Minister assure us that the provisions will at least be monitored and reviewed by Government? The Minister might respond by saying that my concerns will not come to pass, in which case he should at least be willing to accept that we should monitor the issues to which they relate. If my concerns proved to be unfounded, that would be great. However, I want the Government to monitor those issues if they do not withdraw the instrument today.
We are also concerned that giving officers the power to arrest for a minor offence could lead to a higher number of arrests of children and young people. It would be useful to have a system to analyse the provision’s effect on young people. That should be part of the monitoring process that I am asking the Minister to agree to.
Finally, we are also concerned at the provisions of articles 32 and 33, which lower the authorisation levels for the taking of intimate and non-intimate samples without consent from a superintendent or inspector. Will the Minister reassure the House that inspectors will be given appropriate training in that respect? Hopefully, putting it on the record will be an indication of what is expected in respect of the implementation of the regulations.
Articles 31 and 36 relate to the photographing of suspects and the taking of their footprints. That might be problematic, although the Minister sold it as a benefit. Under current PACE codes, additional safeguards should be in place when young or vulnerable people are required to undergo any intrusive acts at the request of a constable. Usually the requirement is that if a young or vulnerable person is taken to a police station for those activities to be undertaken, an appropriate adult should be with them. Those protections appear to go out of the window under the new provisions. Is it intended that the old provisions will apply and, if so, where is that assurance given and built into the legislation.
Our concerns relate not specifically to what the Government are trying to do today, but to a series of concerns that the Liberal Democrats have raised on related and similar legislation in the past. Those concerns do not seem to have been addressed in the current legislation. I look forward to what the Minister has to say to reassure us that they have.
2.53 pm
Lady Hermon: This is an interesting piece of legislation. Changes to the police and criminal evidence procedures in Northern Ireland are largely to be welcomed. I am personally very disappointed that a political party from Northern Ireland whose leader is keen—in fact, very enthusiastic—to condemn and to use parliamentary privilege to name retired police officers during Prime Minister’s questions is not represented in this Committee to discuss and debate an increase in police powers in Northern Ireland. That seems somewhat inconsistent of the Social Democratic and Labour party.
Moving on to the order, I am not as content tobe persuaded by the Minister as other Committee members seem to have been—apart, of course, from the hon. Member for Montgomeryshire; the hon. Member for Tewkesbury also raised two points. Of course, I am sure that the hon. Member for East Antrim will be enthusiastic to speak after the hon. Member for North Down.
I start by drawing the Committee’s attention to the very brief explanation of the order in the explanatory memorandum. Paragraph 3 states that the changes
“largely mirror the Police and Criminal Evidence Act 1984.”
Paragraph 4 refers in the same way to changes brought about by the Criminal Justice Act 2003 and the Serious Organised Crime and Police Act 2005. Paragraph 5 explains that the order merely brings the codes of practice and prevailing PACE legislation “more into line with”—it does not make it identical—that on policing in England in Wales.
As I hinted in an intervention on the Minister, I am extremely displeased that the police in Northern Ireland have only now acquired the additional powers, which are not to counter terrorism, but to deal with matters such as fireworks, which cause mayhem. There is an enormous amount of antisocial behaviour involving fireworks not only in autumn and Halloween, but throughout the year. Will the Minister revisit his notes, take advice from his officials and explain why Northern Ireland has languished so far behind? Why is it being brought into line only at this late stage, at the end of January 2007?
The Minister has given persuasive reasons why Northern Ireland should be brought largely into line with Great Britain—or with England and Wales, rather than Scotland—but will he reflect on the Government policy of devolution of policing and justice in Northern Ireland? He is a good Northern Ireland Minister and has given valid and cogent reasons for bringing Northern Ireland into line in PACE legislation, but does he share my concern that with the devolution of policing and justice, Northern Ireland might again fall out of kilter with England and Wales and drag well behind—and not just by three or four years—if we do not have competent and serious-minded Ministers in charge of justice and policing? If those matters are to be devolved, when there is community confidence—
Sammy Wilson (East Antrim) (DUP): Will the hon. Lady give way?
Lady Hermon: Of course. I am pleased to do so.
Sammy Wilson: Given the legislation that has passed through the House that will require the First Minister and Deputy First Minister to agree to the devolution of policing and justice powers, as well as the parallel consent of the Assembly and, as is being discussed at present, of the person who would take over as the Minister responsible for policing and justice, does the hon. Lady accept that all the mechanisms are in place to ensure that devolution will take place only when we can be sure that there will be confidence in the Minister who will be responsible?
Lady Hermon: I am most grateful for that extensive intervention. Perhaps if I followed that lead, Mr. Williams, I would be ruled out of order, although having caught your eye, I can say at least that I agree entirely with the sentiments expressed by the hon. Gentleman.
Paragraph 6 of the explanatory memorandum—I always read such documents from cover to cover, and I pay tribute to those who draft memorandums about the various unamendable Orders in Council for Northern Ireland that go this dreadful procedure at breakneck speed—is very interesting. It states:
“As part of the development of each policy area”—
I stress the term “policy area”—
“the Northern Ireland Office held extensive discussions with the Police Service of Northern Ireland”—
rightly so—
“and consulted with the Northern Ireland Policing Board”,
which I can understand as well. It goes on to mention the police ombudsman, however, as a named consultee, along with “other main stakeholders”. Will the Minister please explain to the Committee why the police ombudsman is a named consultee in this exercise? The powers of the police ombudsman are set out in section 51 of the Police (Northern Ireland) Act 1998, which states that the police ombudsman
“shall exercise his powers under this Part in such manner and to such extent as appears to him to be best calculated to secure—
(a) the efficiency, effectiveness and independence of the police complaints system; and
(b) the confidence of the public and of members of the police force in that system”—
that is, the complaints system.
The PACE proposal before us this afternoon deals with the increase of police powers and a policy decision—I repeat, a policy decision—about increasing police powers in Northern Ireland to bring them, albeit belatedly, into line with those in England and Wales, but it has not a word to say about police complaints. I repeat, why is the police ombudsman named as a consultee? That is not a criticism of the police ombudsman; I raise the issue because, like me and other members of the Committee, the Minister, who has been in the Northern Ireland Office for a considerable time, is well aware that we have in Northern Ireland a chief inspector of criminal justice, Kit Chivers. I would have expected the holder of that office to be named as a consultee. Was the chief inspector of criminal justice consulted? Was Lord Clyde, the justice oversight commissioner, who considers all issues of justice in Northern Ireland, consulted? [Interruption.] I am being prompted in a very helpful manner by the hon. Member for Aldridge-Brownhills, from a sedentary position. Was the Northern Ireland Human Rights Commission a consultee? However, the one point I would like the Minister to address is why the police ombudsman was named as one of the specific consultees.
I would like the Minister to address some specific issues in the order. Article 6 relates to road checks. It is difficult to read such an amendment order, however, if we do not have all the other updated legislation, in this case the original PACE provisions in Northern Ireland. It is therefore difficult to understand the full impact of article 6, which simply says:
“Article 6 of PACE (road checks) is amended as follows...for “a serious arrestable offence” (wherever it occurs) substitute “an indictable offence”.
Can the Minister explain what legislation gives a police officer on duty the power, for example, to stop and question a driver who, for no apparent reason, may be driving erratically or using a hand-held mobile phone? Will the Minister please say what other powers in other legislation a police officer will have?
I ask that question with specific reference to my constituency. It was brought to the attention of the PSNI, too late, that a number of serving soldiers in Northern Ireland based in Palace Barracks, Holywood, in my constituency had been driving on the roads in Northern Ireland without insurance. One in particular, who is now ex-Private Gordon Godley, was dismissed from the Army after being prosecuted for having driven a car while disqualified from driving, obviously without insurance or a valid driving licence. Under what powers in what legislation would the PSNI be able to check whether a person is disqualified from driving or to stop someone who is using a mobile phone? I would like clarification of article 6.
Article 7 relates to the powers of entry, search and seizure, which the Minister explained to us were absolutely necessary. I welcome these powers, as the police do not now have to apply for every single search warrant for every single individual premises; the warrant can be for any premises and it can last for a period. Will the Minister explain the following point, however? If there is an obligation on the PSNI officer or constable who is making an application for a search of multiple premises to make sure that there is an impact assessment on, for example, vulnerable people living at that address, be they children, elderly or disabled people or Alzheimer’s sufferers? For obvious reasons, I have a particular interest in the last category, since my husband suffers from Alzheimer’s.
I would like the Minister to confirm that a magistrate, in fact the lay magistrate—I love that title, which applies now that we no longer have the resident ones—can legitimately ask in Northern Ireland, before granting permission for a search warrant or warrants of any premises, that an impact assessment has been made for vulnerable people in the categories I have already mentioned? Those whom I have mentioned are but one example of the vulnerable people who may reside at a particular address. Can the lay magistrate ask for clarification or confirmation on that point before issuing the warrant?
Sammy Wilson: I shall try to keep this intervention brief, Mr. Williams. On the impact assessment, given that the search warrants will be for multiple premises and for premises where the exact circumstances of the person against whom the warrant has been awarded may not even be known, how in practical terms would such an impact assessment be carried out?
Lady Hermon: What a helpful intervention from the hon. Member for East Antrim. It is of course not for the hon. Member for North Down to answer the question. It is for that Member to pose the questions to the Minister for clarification. I can, however, say to the hon. Gentleman that I am always very conscious of the arguments that have been put by the Minister that we are in today’s order bringing Northern Ireland, albeit belatedly, into line with the PACE provisions and requirements that obtain in England and Wales. I am aware that magistrates, certainly in England, have asked for an impact assessment for particular premises before granting a search warrant. With that knowledge, I simply want clarification from the Minister about the questions I posed, but it is not the role of the hon. Member for North Down to answer for the Government. I could not possibly do the impossible and answer for the Government.
We have moved to article 10 of the order, which again is a very interesting provision on which I need clarification from the Minister. It deals with the execution of warrants. We are talking here about the extension of PACE not just to constables in Northern Ireland, but as members of the Committee will see, to “a person so authorised”. In respect of the execution of a warrant, the order states:
“A person so authorised has the same powers as the constable whom he accompanies in respect of ... the execution of a warrant ... and the seizure of anything to which the warrant relates.”
Will the Minister kindly confirm who exactly is embraced by the phrase “the person so authorised”? Who exactly has the same powers as the constable—we are talking about a significant increase in police powers in Northern Ireland—and who are the other persons so authorised who fall within that category? Are they community support officers? If so, are they only community support officers, or will other categories also have identical powers to those of police officers? Can the Minister confirm to the Committee who comes within that very broad term and is not identified in the order? I am not prepared to nod the order through without clarification from him.
We come to the police ombudsman’s very relevant and proper powers to investigate complaints against the police in Northern Ireland. It is an independent complaints procedure that I support wholly, but can the Minister confirm whether complaints against a person so authorised who executes a warrant and seizes something to which it relates but gets it wrong and causes offence, annoyance or hurt will lie with the police ombudsman? If so, in which provision? I have read the order from cover to cover but have not identified which provision extends those powers. That would be helpful indeed.
Part IV of the order deals with powers of arrest. Again, the Minister was very courteous and precise in explaining the important changes to the power of arrest, confirming on an intervention that the test would be circumstances of seriousness and necessity, which I agree simplifies things considerably. Police officers need to know where they are and what they can do, because they are the ones who have to apply the law at the end of the day. We can sit in Committee this afternoon, but I would like those at the coal-face to understand their powers before they exercise them.
The Minister has confirmed that the powers are identical to those in England and Wales. He is correct, but I suggest that the powers are wrong in England and Wales as they are about to be wrong in Northern Ireland. I draw his attention and the Committee’s to new article 26(3), which will remove arrest without warrant for an indictable offence and substitute arrest without warrant. The power will be given to constables so they may arrest without a warrant various categories of individual—a person who is about to commit an offence, for instance. In the most peculiar phraseology that I have seen in legislation, a phraseology that I think is wholly incorrect, paragraph (3) reads:
“If an offence has been committed, a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.”
I can accept (b), but I cannot possibly accept (a). I thought that it was the power of a constable to arrest when he suspects or has reasonable grounds to suspect that someone is guilty of an offence, but surely it is for the courts, not a police constable, to decide whether a person is guilty of an offence.
Paul Goggins: I am doing my best to keep up with the hon. Lady’s pace, if she will forgive the pun—it was not intended, but I just realised that I made it. She will correct me if I am wrong, because I am genuinely trying to keep up. She referred to article 15 and to powers to arrest without warrant. Was she referring to powers of other persons?
Lady Hermon: To constables. I am sorry if I confused the Minister. The issue that I wished to bring to the Committee’s attention is that new article 26(3) says:
“If an offence has been committed, a constable”—
not other persons—
“may arrest without a warrant—
(a) anyone who is guilty of the offence”.
Guilt can be decided only by the courts; it cannot be decided by a constable. That is my point. It is simply a mistake. It is an error. It is wrong. No constable in any part of the United Kingdom may arrest, without a warrant, anyone who is guilty of an offence. A person may be suspected, the constable may have reasonable grounds and there may be a necessity to arrest that person, but guilt is determined by the courts, not by a constable.
The same mistake has been replicated, and the same problem has arisen, that appeared in the Serious Organised Crime and Police Act 2005, which did not apply to Northern Ireland immediately and was only brought into Northern Ireland two years later in January 2007. What has happened with the draftsmen? I am sorry to be critical of the draftsmen and draftswoman again, but they have cut section 110 on powers of arrest from the 2005 Act and pasted it into this order for Northern Ireland. If the Minister, in a moment of reflection after this sitting, cares to look at section 110(3), he will see the identical wording:
“If an offence has been committed, a constable may arrest without a warrant...anyone who is guilty of the offence”.
I am sorry, but that was wrong in 2005 and it is wrong in 2007. I stand to be corrected if I have got the balance on the independence of the judiciary wrong, but the present drafting is completely wrong and will have to be corrected. I would like the Minister to confirm that that will be changed, that Northern Ireland will be correct and that the 2005 Act will be amended at alater date.
Moving swiftly on—
Mr. Ronnie Campbell (Blyth Valley) (Lab): Swiftly?
Lady Hermon: I am sorry that some hon. Members find it amusing that I have not been swift, but we are dealing with an Order in Council that applies to1.7 million people in Northern Ireland, so it is incumbent on all Committee members to get it right. I represent a constituency in Northern Ireland and, in doing the honourable, right thing for those people, I want to get it right. That is why I am standing here. I do not do it for amusement, but to get it right.
Lembit Öpik: Perhaps the hon. Lady recalls that the late Patsy Calton took the same view as her and regarded it as her responsibility to look at flaws in legislation. Although I had not spotted a number of the points that the hon. Lady made, she is entitled to expect not just me but the entire Committee to take seriously the points that she makes. As she says, she is operating not in the interests of her party, but in the interests of 1.7 million people in the Province.
Lady Hermon: I very much appreciate the tribute paid by the hon. Gentleman.
I now move swiftly to article 34, entitled “Fingerprints and samples: supplementary”. Again, the technological improvements have to be welcomed. I am pleased that fingerprints can be taken at places other than a police station. Will the Minister, who will look after the budget for the Police Service of Northern Ireland, say whether any thought has been given to setting aside some of that budget for hand-held technology, so that fingerprints and palm prints can be taken when police officers are out on duty?
Sammy Wilson: The hon. Lady has highlighted—indeed, has put her finger on—the reason for this provision. Under the information technology programme for the police it is intended that hand-held machines can be used—although I am not too sure about the technology—which means that identification can be done on the roadside.
Lady Hermon: It is always a benefit to have someone who speaks for the Northern Ireland Policing Board, although he is not technically doing so this afternoon. He provides a welcome confirmation to the Committee that the Policing Board, on which he continues to play a significant role as a member, has considered that technology.
Perhaps the Minister could look at article 34, particularly as it relates to fingerprints that can be taken by “relevant law enforcement authorities”, which are defined as
“(a) a police force ... (b) the Serious Organised Crime Agency”
and various other bodies. Can the Minister confirm whether the Assets Recovery Agency currently has the power to take fingerprints? Is the Assets Recovery Agency a relevant law-enforcement authority? As I have indicated to the Committee, I am concerned about the future of the Assets Recovery Agency, which has done such tremendously good work in tackling paramilitary and organised crime and in taking assets off some of the major gangsters and criminals in Northern Ireland. There is a proposal that it willbe soaked up into the Serious Organised Crime Agency—I am bitterly opposed to that. Can the Minister confirm whether the Assets Recovery Agency has the capacity to take fingerprints? If it does andif the agency is absorbed, what will become of the fingerprints that it has stored and any of its technology?
Finally, I bring the Committee’s attention to the definitions of a police force, as contained in article 34. There has been a huge amount of adverse and ill-informed criticism of Northern Ireland’s Royal Ulster Constabulary. I would bring it to the Committee’s attention that the legal title of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve is set out in the Police (Northern Ireland) Act 2000. The operational title has changed to the Police Service of Northern Ireland, but as for the legal title:
“The body of constables known as the Royal Ulster Constabulary shall continue in being as the Police Service of Northern Ireland (incorporating the Royal Ulster Constabulary).”
For operational purposes the title was changed, but for legal purposes not. That is a technical amendment that can be made at any time. With those comments, I look forward to the Minister’s response.
3.22 pm
Sammy Wilson: I shall be brief, because the hon. Lady has gone through the order with a fine-toothed comb. We welcome the order.
The hon. Member for North Down keeps referring to me as a current member of the Policing Board, but, under the Trade Descriptions Act, that is incorrect. I have been demoted or unseated, whatever the term may be. However, a number of the issues contained in the order address some of the things that, during my time on the Policing Board, we recognised as problems, which, if not currently arising, might in the future. One issue was fingerprinting. The Policing Board is currently investigating the technology to allow for fingerprinting by officers out on the job, rather than bringing people back into the police station, and additional powers would be needed for that.
I want to welcome a number of things. The first is the extension to allow for searches and for the stop and search of people carrying fireworks. For that legislation to be available in Northern Ireland is long overdue, especially given the organised way that the fireworks legislation is now being flouted, sometimes by gangs, which are deliberately doing so and making a lot of money. It is important that the additional powers should be available.
I do not share the concerns of the hon. Member for Montgomeryshire regarding the number of arrests owing to the extension of the powers of arrest—for example, for ascertaining someone’s name or whatever. I believe that to be a very important additional power. I know this through my role in Belfast city council. Quite frequently, illegal street traders escaped by giving false names, although it was known that false names were being given. By giving a false name and forfeiting a few goods, they could walk away without having to appear in court. It cost the council an immense amount of money. The nature of some of the areas where the illegal markets were held meant that the council officer had to be accompanied by the police.
I welcome the granting of this power; I do not think that it will lead to more arrests, but when people are stopped they will give their proper name. I do not see that it will create the problem that the hon. Member for Montgomeryshire has highlighted.
Lembit Öpik: The hon. Gentleman puts the other side of the case. I hope that in order to determine which of us is right, the Minister will confirm that he will monitor the situation, so that if things transpire as I fear they will, we shall be able to do something about it. If the hon. Gentleman is correct, I have raised a concern that is not founded on fact.
Sammy Wilson: The Policing Board has raised concerns about the provisions relating to detained persons, particularly with regard to vulnerable persons. The board made the good point that in the code of practice, provision should be made for people who were deaf or mentally disoriented, for example, and would find it difficult to communicate with police officers. The code of practice should reflect that there should be protection for such people, in the form of someone who could help them communicate with the police while they were detained.
By and large, I welcome the powers that the instrument grants. Many of them reflect changing circumstances. The hon. Member for North Down raised the issue of the impact assessment of searches of properties and so on. Warrants for multiple searches and searches of premises that are initially not known to belong to the individual concerned are absolutely essential, especially given that criminals use a wide variety of premises. The police need the flexibility to respond to that and move quickly from one set of premises to another. I therefore do not share the hon. Lady’s concerns and I hope that we do not impose unnecessary restraints, which would take away the flexibility that the order is intended to give.
3.29 pm
Paul Goggins: I thank all hon. Members for the varying levels of welcome that they have given to the legislation. The hon. Member for Tewkesbury asked why the measures are being implemented now if a further review is taking place. At some point, it is necessary to bridge the gap between that question and the point made by the hon. Member for North Down, who quite rightly pressed for the introduction as quickly as possible of measures such as those contained in the order. A review is taking place, in which the Northern Ireland Office will participate. A further update of PACE may be necessary as a result of that, but given the delays that we have had, we could not wait any longer, as I hope the hon. Gentleman will accept.
I think that I answered the hon. Gentleman’s final question in my opening remarks. The decision to classify 17-year-olds as children is the result of international conventions, representations that have been made and our own considerations. I understand that my colleagues in the Home Office are reviewing the matter along similar lines. I am sure that the hon. Lady will welcome the fact that Northern Ireland is ahead of England and Wales on that matter.
Sammy Wilson: It might be important for the Minister to spell out exactly what the consequences of this change will be for the police. Although he has skirted over them, I understand that they could be quite significant.
Paul Goggins: Indeed, that is why in the order it is very clear that the beginning of the use of the powers contained in relation to 17-year-olds will be delayed for a little while at least because the vast majority of children who will be arrested now that 17-year-olds are classified as children will be 17. They will need, for example, an appropriate adult to be made available. The police will need to operate the code, which I will come on to in a second, in relation to the treatment of children who are detained for questioning and so on in a police station rather differently from if they were adults. Putting in place the resources and training necessary will require some further time and that is why there is a delay. The hon. Gentleman is quite correct that it will place additional responsibilities on the police and we need to make sure they are properly equipped to make that possible.
I am grateful to the hon. Member for Montgomeryshire for his welcome, particularly for the changes we are making in relation to 17-year-olds. It was good of him to acknowledge that. It was clear from his remarks that, if he were in my position, he might draw the balance between the need to empower the police and the need to protect the interests of the individual citizen in a different place. He made that clear. It is important to make a judgment about where to draw that balance. If he and I differ on where we make that judgment, so be it. What is important is that we are transparent about that.
He asks how the powers in the new order will be monitored. They will be monitored in a number of different ways. Senior police officers will monitor the day-to-day operational use of these powers, but also, of course, we have the oversight provided by the Policing Board and the police ombudsman. So we will have that degree of monitoring and we will also have the PACE statistics, which are gathered and published on an annual basis. I hope he is reassured that, while he draws the balance in a different place from me, this has to be done in a transparent way and there has to be accountability.
When it comes to issues such as how 17-year-olds will be dealt with and how children will be dealt with, codes will be issued pursuant to the legislation that we are considering today that will inform in great detail how these powers should be used by police officers. Again, they will be closely monitored. I hope that offers him some reassurance.
The hon. Gentleman drew the Committee’s attention to the new powers of arrest with the test of necessity that is spelt out on the face of the draft order. Officers are accountable for the way in which they implement those powers and I have just set out some of the mechanisms for that accountability. With referenceto how this legislation will impact in terms of disproportionality, in Northern Ireland there is significant equality legislation and indeed this legislation has been tested against that. We regard it as completely compliant with that. The strong equality legislation in Northern Ireland is a further test, but again this is something that can be monitored over time. I hope this will provide him with the reassurance he seeks. I can further reassure him that inspectors who will now have new powers to make decisions and authorise some of these powers will be appropriately trained. They will be very well trained indeed. We have a strong commitment to making sure the Police Service of Northern Ireland is adequately and properly trained at all levels.
From the point of view of other Members of the Committee the hon. Member for North Down may have been going rather slowly, but from my point of view she was going very quickly. If I did not manage to keep up with every single detail she raised I apologise and I will certainly write to her if anything is missing. I am sure she will intervene if anything is missing. Her tour de force this afternoon demonstrates again her meticulous approach. On behalf of her constituents and the people of Northern Ireland she quite rightly tests the Minister and the legislation. I am grateful and I am sure the whole House is grateful for that.
In relation to fireworks, she made the point about Northern Ireland languishing behind. I have to say that the Northern Ireland legislation in relation to fireworks is much tougher than it is in England. Some of my constituents might like the tougher legislation in Northern Ireland. Apart from a few sparklers and some domestic fireworks, the only circumstances in which ordinary people can use fireworks in Northern Ireland is if they apply and pay for a licence. That is certainly a more stringent regime than the one here. It is very important that the police have the necessary powers to deal with someone whom they suspect of having fireworks, which might be in the boot of a car, for example, and for which they do not have a licence, or, even more worryingly, as the hon. Member for East Antrim suggests, fireworks connected with organised criminal activity. The order will provide the police with those powers.
The hon. Lady mentioned the devolution of policing and justice and asked whether I was confident that placing such powers in the hands of Northern Ireland Ministers was the right thing to do. I say a resounding yes, but on the basis that, as the hon. Gentleman made clear in his intervention, there is a stable Government and all parties are committed to the rule of law. The First and Deputy First Ministers and the Assembly must agree, as too must this House, before policing and justice can be devolved. I hope that we move on that sooner rather than later—I think that those were the words of the hon. Gentleman—but we must be confident that there is proper and true respect for law and order.
The hon. Lady asked about the ombudsman and why she is named as one of the consultees. A general answer would be that owing to her oversight it is important to listen to her considerations in the light of investigations that she has carried out and the insight that she has acquired. More importantly, she is named because her staff operate under the Police and Criminal Evidence Act 1984. They have powers of arrest so it is important that we consult the ombudsman as much as we consult the Police Service of Northern Ireland. She and her staff operate the powers concerned.
Lady Hermon: On a technical point, if the police ombudsman’s staff have powers under PACE, as the Minister has indicated is the case, and if they get it wrong, who investigates them?
Paul Goggins: That is a very good question. I suppose that a complaint would be made formally to the ombudsman. That would be possible. A complaint could be made to her about one of her members of staff. However, the hon. Lady will remember that we debated elsewhere the power of the Human Rights Commission to conduct a further investigation, if one had not already been carried out. Her question might be the example for which I was searching in that discussion. The ombudsman’s office would have its own internal disciplinary procedures so it would be possible for the complaint to be reviewed internally and, if necessary, to carry out a further investigation. However, I shall look into the detail to satisfy myself that that is correct. I think that the ombudsman could carry out that investigation.
Sammy Wilson: I welcome the fact that the Minister has said that he will look into that further. However, given the incongruous situation in which the police ombudsman believes that the police need to be investigated independently, but that the ombudsman’s office will not be, and given also the office’s allegations of abuse of the powers of arrest by police officers, does the Minister not agree that the operations of the ombudsman’s office should be independently scrutinised?
Paul Goggins: As I promised the hon. Lady, I shall look into the detail of those powers, and the procedure for dealing with complaints about the conduct of the police ombudsman’s staff further to the use of the internal disciplinary processes, which might be sufficient. I shall happily look into the detail and write to the hon. Members concerned.
It might interest the Committee to know that some 300 organisations were consulted, including all those mentioned by the hon. Lady, and some 19 of them submitted responses.
The hon. Lady asked under what other powers the police could stop people who may have committed an offence. If the police suspect that an offence has been committed or is about to be committed under any legislation, they have that power. In the example that she gave, the Road Traffic Offenders (Northern Ireland) Order 1996 allows constables to stop a vehicle if they believe that its driver is disqualified.
One or two of the changes that the hon. Lady mentioned relating to indictable offences replacing serious arrestable offences are simply consequential amendments because of the new wording that we are using for the powers of arrest. She asked about the possibility of risk assessments being carried out prior to an entry into someone’s home, which was an important question. A constable has to go to a lay magistrate and set out specific information about the case, and he must provide justification for a warrant so that he can go into someone’s property. The lay magistrate can ask any question, and his questioning can be tough. Further to that, a code will be issued on the matter, and I will ensure that when it has been drawn up it will be brought to the attention of those involved.
The hon. Lady asked about the use of the phrase “a person so authorised” to carry out certain powers. That does refer to civilian staff, and she will know from other legislation that we are creating a group of civilian staff who will be able to act with some of the powers of a police officer. They might include, for example, a financial investigator, a computer analyst or someone with similar specific skills that are outwith the scope of an ordinary police officer but essential to an investigation. They will only be able to carry out their functions under the supervision of a constable, so they will not be able to freelance, as it were, even with their limited powers. They will have to be under the direct supervision of a constable. The hon. Lady is right about the people involved: police community support officers are one group of civilian staff with limited police powers and we shall seek to introduce others in legislation that will soon be debated in the House.
I was grateful to the hon. Lady for her explanation of the precise part of the draft order that she was referring to—proposed new article 26(3). She drew attention to the line that refers to someone who is “guilty of the offence”. That will mean someone has been caught red-handed, seen doing it and admitted it there and then. She is right to draw the distinction between empowering an officer to arrest someone in such a case and the finding of guilt in a court of law. The power of arrest does not supersede the power of a court to find guilt, but those are the circumstances in which an arrest will be able to be made under the proposed new article—if somebody commits an offence before the eyes of an officer and perhaps even admits guilt.
The hon. Lady asked about the use of new technology, and the hon. Member for East Antrim, with his experience of the Policing Board, was able to update the Committee on the work that it has been sponsoring and the work that the PSNI is doing to explore the matter. The powers that we are introducing will complement the more flexible use of new technology and new arrangements. For example, the use of street bail will be easier. We want to ensure that the police are not tied down by an overly bureaucratic system so that they can use new technology and more flexible systems but still carry out their important functions.
The hon. Lady mentioned the list of organisations in article 34. Each has its own database of fingerprints, and the article will enable the PSNI to refer to those databases in the pursuit of a particular criminal. It lists all the organisations. The Asset Recovery Agency is not listed as it does not have its own database. If it needed to access fingerprints it would go through the police.
On the subject of the Asset Recovery Agency, I think the hon. Lady wanted me to reassure her constituents and the people of Northern Ireland generally that the work of asset recovery in Northern Ireland will continue to develop and grow from its strong start under the leadership of Alan McQuillan. It has done some great work, very assiduously, in recent years.
The Home Office has given clear assurances to Ministers in Northern Ireland that the resources committed to asset recovery will not diminish and that there will be clear leadership for the very important asset recovery work within the new merged organisation when the Asset Recovery Agency and the Serious Organised Crime Agency come together.
There is a very high level of recognition of asset recovery work in Northern Ireland and growing public confidence that new powers are being used to seize assets. Last year alone the Asset Recovery Agency seized £11 million-worth of criminal assets. We must ensure that the word goes out to the public that the fight will go on and, indeed, that the criminal element in Northern Ireland knows that the pursuit of their criminally gained assets will continue.
The hon. Lady’s remarks about the legal name for the Police Service of Northern Ireland are correct, as she knows.
I again thank the hon. Member for East Antrim; I have referred several times to his remarks and I hope I have covered all the points that he raised.
Lady Hermon: The Minister’s speech has been a tour de force, replying to the many points that were raised. However, one is outstanding: it relates to those civilians who are brought in as community support officers to assist constables and who are always supervised by them. If those civilians get something wrong, or do something wrong, does the complaint go to the police ombudsman?
Now that the Minister has explained how a constable can be the arresting officer, the jury, and the judge and confirm that a person is guilty of the offence, will he also confirm that the drafting of the order is compliant with the European convention on human rights and the Human Rights Act, which guarantees people a fair trial, before a constable makes up his mind that they are guilty?
Paul Goggins: In answer to the hon. Lady’s second point, I can confirm that the measure is compliant with the Human Rights Act. In respect of the first point, I apologise for omitting to reply to her question. Anyone who exercises the powers of a constable is accountable to the police ombudsman, who has that oversight even if the person is a civilian operating with limited police powers. If the person had no police powers but was acting under the supervision of a constable, the constable would in turn be accountable to the ombudsman. The ombudsman has that oversight role whenever police powers are exercised.
Question put and agreed to.
That the Committee has considered the draft Policeand Criminal Evidence (Amendment) (Northern Ireland)Order 2007.
Committee rose at eleven minutes to Four o’clock.

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