Justice and Security (Northern Ireland) Bill

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Clause 19

Mr. Reid: I beg to move amendment No. 52, in clause 19, page 15, line 35, leave out ‘1st January 2008’ and insert
‘the coming into force of this section’.
The Chairman: With this it will be convenient to discuss amendment No. 53, in clause 50, page 29, line 20, at end insert—‘( ) section 19;’.
Mr. Reid: It is a pleasure to serve under your chairmanship this morning, Mrs. Anderson.
The amendments would allow the commission to start investigations when the Bill comes into effect, rather than on 1 January 2008, as laid down in the clause. On Second Reading, we raised concerns about the clause preventing the commission from using its new power to compel evidence retrospectively, except in situations existing on, or arising after, 1 January 2008. The commission will be prevented from investigating anything that has already happened or which may happen in the rest of the current year.
The clause will prevent the commission from compelling evidence or accessing a place of detention for the purpose of investigating any matter relating to the period before 1 January 2008. The commission could not, for example, require the production of any document created before that date, even if it was directly relevant to a human rights violation that existed on or after 1 January 2008. That is an unnecessary restriction.
The effect of the time limit is particularly severe in relation to gathering evidence. It is difficult to imagine how any alleged human rights violation could effectively be investigated without looking to events and information in the time leading up to it. In practice, it could be a considerable time after 1 January 2008 before the commission could effectively use its powers.
The clause creates a notable anomaly in relation to the protection of human rights in Northern Ireland, as opposed to other jurisdictions in the UK. In Great Britain, the existing equality bodies already have powers to compel evidence, and the new Commission for Equality and Human Rights acquired similar powers under the Equality Act 2006.
The Scottish Commission for Human Rights Act 2006 contains not only evidence powers, but a right of entry to places of detention without any time restrictions. Thus in England, Scotland and Wales, the equivalent bodies of the Northern Ireland Human Rights Commission have and will have powers with no arbitrary time limit. The same is also the case in the Republic of Ireland, where the Irish Human Rights Commission, which was established in parallel with the Northern Ireland Human Rights Commission as a result of the Belfast agreement, has extensive powers to compel evidence with no such time limit. The agreement, and the corresponding treaty, committed the United Kingdom and the Republic of Ireland to maintaining an equivalent level of protection of human rights in Northern Ireland and the Irish Republic.
Having regard to the particular circumstances of Northern Ireland, the Committee will want to consider whether, in the interests of normalisation, confidence building and conflict resolution are served better by enabling or blocking the investigation of past human rights violations. The commission’s primary focus should always be on preventing such abuses, but its effectiveness in that regard, particularly in relation to its credibility with public authorities, is hardly enhanced by fettering its discretion as to what it may or may not investigate.
As I have said before, the treatment of other oversight bodies is illuminating. The Commission for Equality and Human Rights, established under the Equality Act 2006, has powers to investigate with no limitations on timing. The Equality Commission for Northern Ireland has numerous powers of investigation that are not subject to limitation based on the time at which the matter being investigated arose. The Commissioner for Children and Young People (Northern Ireland) Order 2003 specifically applies, in article 27, to matters that come before it. We should also consider the RUC (Complaints, etc.) Regulations 2001. However, under regulation 6, in cases where a police officer may have committed an offence or may be subject to disciplinary proceedings, the ombudsman has discretion if she believes that the matter should be investigated because of the gravity of the matter or the exceptional circumstances. In suitably grave matters, the Police Ombudsman for Northern Ireland investigates matters stretching back to the 1970s.
Clause 19 serves no useful purpose in terms of the protection of human rights and should either be left out or amended. Our amendment would mean that the powers under clause 19 would come into effect with the passing of the Bill. I see no reason for the delay until January 2008. It is not just investigations after 1 January 2008 that would be hindered. Investigations after that date would be hindered by the clause, because the commission would not be able to acquire documents created before that date.
We have reservations about the clause as a whole, but it could be improved by bringing forward the implementation date from 1 January 2008 to the date when the Bill comes into effect.
Paul Goggins: I will not detain the Committee long on this issue. The Committee will be aware of the bodies and public inquiries in existence in Northern Ireland, which look back into history and try to deal with matters. There is the historical inquiries team within the PSNI, the police ombudsman and so on. My right hon. Friend the Secretary of State is clear that the new powers that we are giving to the Human Rights Commission should be forward looking. That is why we set the start date of 1 January 2008.
There is a technical flaw with the hon. Gentleman’s proposal. He seeks to delete the date of 1 January 2008 in one part of the clause but leaves it in subsection (3). He might want to reflect on that when deciding whether to withdraw his amendment.
Since Second Reading there has been some discussion between my right hon. Friend and the Human Rights Commission, not with a view to opening up endless investigations into the past, but about some concerns of the commission about conducting its present business because of the implementation date that we have set. We are giving that matter some consideration.
I have listened to the hon. Gentleman’s arguments and if we decide to make any changes, we shall table our own amendment on Report.
Mr. Reid: In view of what the Minister has said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 ordered to stand part of the Bill.

Clause 20

Stop and question
Mr. Robertson: I beg to move amendment No. 18, in clause 20, page 16, line 11, leave out ‘necessary’ and insert ‘reasonable’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 19, in clause 20, page 16, line 12, at end insert
‘, if he suspects that he may be able to provide information about a recent explosion or another recent incident endangering life, or the effects thereof.’.
No. 20, in clause 20, page 16, line 14, leave out ‘necessary’ and insert ‘reasonable’.
Mr. Robertson: The amendments refer to the stop and question powers of a member of Her Majesty’s forces on duty or a constable. The clause says:
“A member of Her Majesty’s forces on duty or a constable may stop a person for so long as is necessary to question him to ascertain his identity and movements.”
Why is “necessary” used rather than “reasonable”, which is more frequently used in such cases? Another amendment in the group before us would qualify subsection (1) by adding
“if he suspects that he may be able to provide information about a recent explosion or another recent incident endangering life, or the effects thereof.”
My amendments would offer a belt and braces approach: one tries to change the wording to “reasonable” rather than “necessary”; and another would add the provision that there must be a good reason to stop and question people. Why has the Minister approached the issue as outlined in the clause?
Paul Goggins: It is always an interesting stage in Committee when we start debating the difference between words like “reasonable” and “necessary”. However, the hon. Gentleman makes an important point. For the understanding of the court, “necessary” has a better and clearer meaning than “reasonable”. “Reasonable” would cast the mind over a wider range of circumstances, and the important point is that the provision takes into account the mind of the officer when they make their decision to carry out their actions. Their mind cannot lack certainty or clarity when they make that decision. If they were to make a decision that turns out to have been unnecessary, it would be discovered in due course and they would have to face up to the consequences. “Necessary” is clearer in law than “reasonable”, and we want to provide for certainty in such circumstances.
Mr. Robertson: The Minister knows that “reasonable” is the most important word in the legal system, because, as we discussed in a previous sitting, the man on the Clapham omnibus uses it to determine what is reasonable. We cannot discard the word; it is in almost if not every Bill that we pass. Why is “necessary” used here? If we consider the matter in terms of the person being stopped, “necessary” means potentially forever.
Paul Goggins: The hon. Gentleman makes an important point about “reasonable” and its significance, but he must consider a situation in which an officer has to make a decision about whether to stop and question an individual. The certainty provided by “necessary” enables the officer to make a quick decision, which they will need to make in the circumstances. “Reasonable” would cause them to reflect longer in order to satisfy themselves that their actions were reasonable. In that period something may happen: the person may disappear or an event may take place. We seek to provide for certainty in the mind of the officer when they make that decision. “Necessary” does so; “reasonable” would make for wider consideration.
It being twenty-five minutes past Ten o’clock, The chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at One o’clock.
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