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Equally, as the Bill stands, it is provided that there can be an appeal to the county court against the commissions power to enter places of detention. Again, this is not found in other Northern Ireland legislation on investigatory powers that we are aware of. Why has the Human Rights Commission been singled out for this restriction on its investigatory powers? It is simply not necessary. If the commission exceeds its powers, it can already be judicially reviewed. All that will be achieved by this provision is the ability to slow down the commissions work and reduce its effectiveness in working on behalf of our citizens.
We want to ensure that the Human Rights Commission has the powers to enable it to do the job that is expected of it by our citizens.
Mr. Hanson: I thank my hon. Friends the Members for South Down (Mr. McGrady) and for Foyle (Mark Durkan) for the way in which they have approached the topic before us today. I have to say at the outset that the Northern Ireland Human Rights Commission has welcomed the new powers that we have given it in the Bill. It has also expressed some concerns, which have been amply outlined by my hon. Friends, but I believe that the Government have struck the right balance by giving new powers to the commission while not extending them as my hon. Friends propose.
My hon. Friends amendments seek to remove various restrictions that apply to the commissions new powers to compel evidence and to access places of detention to undertake investigations on human rights matters. From my perspective, these new powers are serious ones for the Human Rights Commission to exercise. I am acutely aware that human rights issues apply across the public sector. Consequently, unlike almost any other similar body, the commission will be able to investigate matters anywhere across the public sector.
Sammy Wilson: We oppose the additional powers granted to the commission. Given that prisons in Northern Ireland are already heavily regulated and heavily investigated, what does the Minister hope will be added by giving to the Human Rights Commission additional powers to enter prisons which are not already available to the inspector of prisons, the board of visitors and the range of investigatory bodies that exist in the prison system?
Mr. Hanson: From my perspective, I hope that the Human Rights Commission will undertake what I term thematic examinations of human rights issues, which may involve visits to and investigations of places of detention. It may wish to have access to those places of detention once it has given a clear indication of the remit of the investigation and has agreed its time scale and format. I am not going to second-guess what the commission may wish to examine, but it could certainly look at human rights issues across government, and those may involve its having access to places of detention. I am trying to ensure that there is guidance to limit the investigatory powers so that the impact they have on the Northern Ireland Prison Service or places of detention is reasonable. The amendments would remove those limitations, but the limitations are fair and proper in the light of concerns expressed.
With such wide-ranging powers come appropriate measures necessary to ensure that they are used properly. I think that we have got the measures on inspection of places of detention right. There is an appeals process, which will allow public authorities an opportunity to argue that an investigation is unreasonable or unnecessary. That is a proportionate measure, given the commissions powers. As my hon. Friend the Member for Foyle said, it parallels the processes that apply to the Commission for Equality and Human Rights in Great Britain.
The appeals process is balanced by the opportunity that the commission will have to appeal to the courts if public authorities do not comply with its powers. The Bill creates new offences for failure to comply. Those are subject to fines of up to £5,000. I accept again that my hon. Friend does not think that that is a sufficient deterrent, but I think that it is appropriate punishment for that level of offence. There are also necessary restrictions on the commission which prevent it from compelling information that would prejudice national security or reveal the reasons for prosecution decisions.
Amendment No. 17 would remove an important restriction. It ensures that recipients of notices are not caught by conflicting duties arising from different Acts. The potential for such conflict is real. Without the current restriction, it would be possible for a notice to require the production of information that is prohibited under, for example, the Data Protection Act 1998. There are conflicting legislative demands on individuals and organisations. Where Parliament has decided to restrict the disclosure of information in another Act, it is right that the Bill should recognise that fact.
I touched on amendments Nos. 19 and 23 with regard to the maximum fine of £5,000. The level of punishment for that criminal offence is the same as is applied to those who have unreasonably failed to accede to a request for information from the Commission for Equality and Human Rights. As with the Great Britain commission, the sanction will prevent undue impediment to investigations.
My hon. Friend the Member for South Down spoke to amendment No. 20, which would remove the exemption for prosecution decisions. The exemption is necessary to ensure that decisions are taken independently on the merits of a case. It is well established that prosecution decisions are exempt from equality investigations. Clause 14(10) simply extends that existing situation to human rights investigations. The Public Prosecution Service will not be exempt from the commissioners power to investigate, only the prosecution decisions accordingly.
Amendment No. 21 would remove the exemption for national security issues. My hon. Friend the Member for Foyle knows the answer to this, but I want to put the Governments view on the record. The national security exemptions in the Bill mirror provisions for Great Britain in the Equality Act 2006. It is important that national security interests are protected throughout the UK, and I am not willing to offer less protection for Northern Ireland than would be the case elsewhere in the UK.
Amendment No. 22 challenges the notice to be given by the Human Rights Commission before any investigation into a place of detention can be undertaken. Again, we have put that in place so that there is an opportunity,
first for the terms of reference for the investigation to be determined, and secondly, for the time scale and points of contact of that investigation to be agreed. However, once the 15-day notice is up and the terms of reference have been agreed, the commission may visit on a number of occasions without prior notice being given to those places of detention.
As the hon. Member for East Antrim (Sammy Wilson) said, a number of bodies already have the power to take action immediately in the event of any concerns arising. For example, the prisons ombudsman, the criminal justice inspectorate, the prison monitoring boards, and indeed the police, can take action in those circumstances. We want to give the Human Rights Commission the opportunity to undertake thematic investigations into human rights issues. Those might require visits and access to a place of detention, but we have to ensure that that is not done if there is duplication with existing bodies, as the hon. Gentleman said, or if there is the potential for the investigation to disrupt the normal day-to-day work of the organisation that is being investigated.
Sammy Wilson: In the case of places of detention in police stations, the Policing Board, for example, already employs a human rights officer who can look at a range of things. Where would an investigation by the Human Rights Commission stand vis-Ã -vis decisions or reports made by that human rights officer in relation to police stations? Is there not a potential for one set of human rights interests to come into conflict with another?
Mr. Hanson: Ultimately, it would be for the Human Rights Commission to determine what it wants to investigate, and if that involves entry to places of detention it must draw up terms of reference for that inquiry. It may well be that items or matters are brought to the attention of the commissioner by members of the public or organisations that are concerned about a range of human rights issues in police stations, in prisons or elsewhere. The Human Rights Commission may well then decide that there are common themes concerning human rights that it wishes to explore. In that event it will compile terms of reference and share them with police stations, and presumably the bodies responsible for them, to establish whether any issues require investigation. If the terms of reference are agreed, the commission can investigate them by visiting places of detention.
I am sure that in such circumstances there will be liaison with the Police Service. I am seeking to extend the powers of the Human Rights Commission by giving it what are, by any stretch of the imagination, significant new powers of entry and significant new powers to compel evidence, while balancing those powers with the powers of existing organisations whose statutory role includes taking action when systems fail or concerns are brought to their attention.
I am sorry to reject the amendments tabled by my hon. Friends the Members for Foyle and for South Down, but I hope that in the light of what I have said they will conclude that the proposals are fair and just, and will not press their amendments to a vote.
Lady Hermon: This is a very simple inquiry. Will the Minister tell us whether the Human Rights Commissions budget will be increased, given the significant increase in its powers, duties and responsibilities?
Mr. Hanson: I am not proposing any increase beyond what would be expected in the normal budget round. There are no specific new funds for these powers. The Human Rights Commission has a statutory duty to examine human rights issues and will exercise its judgment on where it wishes to direct its resources, which I think is fair and proper.
Mr. McGrady: I thank the Minister for his detailed reply to me, and to my hon. Friend the Member for Foyle (Mark Durkan). I also thank the hon. Members for Belfast, East (Mr. Robinson) and for North Down (Lady Hermon) for their attempts at elucidation.
We still consider these to be powerful issues. Overall, we feel that the Human Rights Commissions ability to sanction powers of investigation is inferior to those of similar bodies. Most of the commissions investigations will be case-specific; it is not as though it will have carte blanche to enter all prisons and other places of detention and demand this or that. It has power to require the reviewing of policy themes, but that will happen rarely and exceptionally.
Sammy Wilson: The hon. Gentleman is trying to downplay the commissions empire-building capacity. Does he not accept that to date it has sought to increase its remit well beyond what is laid down for it, to the extent of making declarations about the Iraq war, the 11-plus and a range of other matters?
Mr. McGrady: It is possible that when the rights of the people of Northern Ireland or people generally are infringed, the commission has a right to comment. Whether a distinction can be made between political comments and comments on infringements of human rights is a matter for debate.
The hon. Gentleman intervened on the Minister earlier about the alleged duplication involved in the appointment of a human rights adviser to the Northern Ireland Policing Board, given the existence of the Northern Ireland Human Rights Commission. His intervention may have been tongue-in-cheek, but he is a straightforward speaker, so it probably was not. In fact, there could be a conflict. The human rights personnel of the Northern Ireland Policing Board act for the board in advising and guiding it on human rights; they do not investigate human rights cases. I do not think that that bit of obfuscation was entirely accurate, but we will leave it at that.
We will be pursuing our amendments. Our arguments have been rehearsed on Second Reading, in Committee and in interviews with Ministers over many months, and the amendments will not go away. They contain what remain fundamental requirements for the fulfilment of the human rights guardianship of Northern Ireland, and I ask the Minister to consider them further, perhaps when the Bill is dealt with in the other House. We have presented the arguments, we
have heard the replies, and we will present our arguments again in another form and at another time.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Alan Reid: I beg to move amendment No. 24, page 15, line 32, leave out clause 19.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss Government amendments Nos. 26 and 27.
Mr. Reid: Amendment No. 24 would leave out clause 19, which restricts the Northern Ireland Human Rights Commission by preventing it from investigating any matters arising before 1 August 2007. Government amendments Nos. 26 and 27 are welcome as they put back the date from which the Human Rights Commission can start investigating from 1 January 2008 to 1 August 2007. However, I question whether they go far enough, because even with them, clause 19 would prevent the commission from compelling evidence, or accessing a place of detention for the purpose of investigating any matter, relating to the period before 1 August 2007.
Indeed, the clause goes even further than that, as it prevents the commission from requiring the production of any document created before 1 August even if it is directly relevant to a human rights violation that exists or arises after 1 August. The effect of the time limit is severe in relation to the gathering of evidence. Many human rights violations can be investigated effectively only by looking into events, and at information, that arose in the period before the violation occurred. My concern is that under the clause, in practice the commission might not be able to use its powers to any great effect for several years to come.
Mr. Hanson: The hon. Gentleman is referring solely to compelling information; there is nothing under the proposed legislation that prevents the commission from requesting such information.
Mr. Reid: But if that information is not released it could inhibit the commission in its investigation. It should be allowed to compel the release of documents created before 1 August, just as it can compel the release of documents created after 1 August.
The clause also creates a notable anomaly in relation to the protection of human rights in Northern Ireland compared with other UK jurisdictions. In Great Britain, the existing equality bodies already have powers to compel evidence, and the new Commission for Equality and Human Rights will acquire similar powers under the Equality Act 2006. The Scottish Commission for Human Rights Act 2006 contains not only evidence powers, but a right of entry to places of detention, without any time restriction.
Thus in England, Scotland and Wales the sister bodies of the Northern Ireland Human Rights Commission have, and will have, powers that have no
arbitrary time limit. In the Republic of Ireland also, the Irish Human Rights Commission, established in parallel with the Northern Ireland Human Rights Commission as a result of the Belfast agreement, has extensive powers to compel evidence, with no such time limit. The Belfast agreement, and the corresponding treaty, committed the two Governments to maintaining an equal level of protection of human rights in Northern Ireland and the Republic of Ireland.
The Government have suggested that the Northern Ireland Human Rights Commission should focus on the future, and that it might be too busy to look into events of the past. However, such decisions are best made by the commission itself. The commission is guided by the United Nations Paris principles, and it should have the power to determine for itself how best to direct its energy and its resources. The criterion should be the weighing up of the human rights importance of a particular matter, not an arbitrary time limit. The commission might well decide that a flagrant breach of human rights in the past is just as deserving of its time and resources as a possibly less serious breach in the future.
Lady Hermon: The hon. Gentleman referred to a flagrant breach of human rights in the past. What exactly does he have in mind? I ask him to list any flagrant breaches of human rights that have not already been extensively investigated and inquired into, because Northern Ireland has ombudsmen and commissions that are second to none, compared with those anywhere else in the United Kingdom. Will he identify one or two such breaches?
Mr. Reid: I do not have any particular incident in mind, but that is not to say that evidence could not come to light indicating a past breach. As it stands, the clause would prevent the Human Rights Commission from carrying out such an investigation if evidence did come to light.
It is important to remember that Northern Ireland is a society emerging from a long period of conflict, and we have to consider whether the interests of normalisation, confidence building and conflict resolution are best served by enabling or blocking the investigation of past human rights violations. Although it is true that the commissions primary focus should always be the prevention of such abuses, its effectiveness in that regard is hardly enhanced by fettering its discretion as to what may or may not merit investigation. I have already referred to other oversight bodies, and in Northern Ireland the Equality Commission has numerous powers of investigation that are not subject to limitation based on the time at which the matter being investigated arose. The Commissioner for Children and Young People (Northern Ireland) Order 2003 specifically applies to matters arising before and after its commencement, and in suitably grave matters, the police ombudsman can investigate issues going back many years.
To summarise, clause 19 serves no useful purpose in the protection of human rights. It should be left out of the Bill, or amended so as to allow the commission to exercise its powers in relation to documents and matters arising before 1 August 2007, as well as afterwards.
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