Clause
24
Search
for unlawfullly detained persons
Question proposed, That
the clause stand part of the
Bill.
Lembit
Öpik:
Given that we have passed clause 22, which
gives a pretty wide definition of powers of entry, I do not see why
clause 24 is
necessary.
Lady
Hermon:
I do not think that I have ever heard the hon.
Member for Montgomeryshire be so brief, concise and controversial all
at once.
Sir Nicholas, it is generous of
you to allow time for Committee members to make points on each of the
clauses in stand part debates. My point is small and relates to the
drafting of clause 24(1), which
states:
“A
member of Her Majesty’s forces on duty who reasonably believes
that a person is unlawfully detained in such circumstances that his
life is in danger may enter and search any premises for the purpose of
ascertaining whether the person is detained
there.”
I stress that the
words “a person” are used twice in clause 24. It is
unfortunate that the opening words of subsection (2) are, “A
person”. That is confusing because it implies, wrongly, that
that person is somebody other than a member of Her Majesty’s
forces. For the purposes of complete clarity and the
understanding of the clause, it would be helpful if the opening words of
subsection (2) were also “A member of Her Majesty’s
forces”, rather than “A person”. It is a minor
point, but it would assist understanding of the
clause.
Mark
Durkan:
In response to earlier debates, the Minister
explained that the Army is intended to be down to garrison strength and
its personnel will very rarely be on duty, which means that they will
perform policing duties very rarely. On that basis, I do not know why
the Bill goes to such lengths to confer policing powers. The police
already get such powers under draft Police and Criminal Evidence Act
codes, and the matter is already governed by common law. Like the hon.
Member for Montgomeryshire, I have to ask what the justification is for
going any
further.
Paul
Goggins:
I have said that what we seek to putin
place through the clauses that we are debatingthis afternoon
has been arrived at after careful consideration of the types of
scenario that may pertain and require the police to have certain
powers. The clause describes one of the scenarios with which we believe
the Army should be empowered to deal. I emphasise, however, that use of
the power must be authorised by a commissioned officer. We recognise
that it is a serious matter and that a commissioned officer should have
to give approval.
My
hon. Friend the Member for Foyle is right to say that the police
already have sufficient powers under statute and common law to take
action to save life and limb. The power in the Bill applies only to the
armed forces. For the reasons I mentioned earlier, it is unlikely to be
used because it is increasingly unlikely that the Army will be deployed
in operational situations in Northern Ireland. However, should the
circumstances arise, the Army needs to be able to deal with them. If
someone has been kidnapped or imprisoned against their will, it is
important that the Army, as well as the police, should be able to deal
with it.
In answer to
the short speech and question of the hon. Member for Montgomeryshire,
we need the powers because if someone has been kidnapped and if the
Army are first to come across it, they will need to deal with it
urgently. The clause gives them the power to do
so.
Lembit
Öpik:
My intervention may be slightly longer than
my speech, Sir Nicholas, but I hope that it will be within the usual
constraints.
The
Minister has not addressed my concern, which is that we do not need
clause 24 because it is perfectly obvious that clause 22(1) covers the
same circumstances. More worrying is the fact that clause 24 does not
seem to impose the restrictions of authorisation outlined in detail in
clause 22. I do not see why the Minister thinks clause 24 is necessary.
It gives much more power to members of Her Majesty’s forces than
clause 22 but without the authorisation limitations outlined in clause
22.
Paul
Goggins:
The simple answer to the hon. Gentleman’s
further probing question is that clause 22 deals only with powers of
entry. Clause 24 deals with
powers of search and entry. We took considerable care when drafting
those powers to ensure that they are the minimum required in the
circumstances that pertain. It is necessary to have such powers in
place. A situation may arise in which they could save peoples’
lives.
Lembit
Öpik:
What the Minister says is important; we need
clarification on the record. By implication, he is saying that clause
22 does not give powers of search and entry but merely of entry. That
is the only logical way to interpret what he said. That is worrying,
because it means that a constable can go into premises but do nothing
more. Will the Minister explain exactly what clause 22 does permit, as
it could one day be of significance in
court?
Paul
Goggins:
We can go back to clause
22—
The
Chairman:
By reference
only.
Paul
Goggins:
Entry to premises may be necessary in the course
of operations for the preservation of the peace and the maintenance of
order. That clause deals with the powers of entry alone. I want to make
clearto the hon. Gentleman the scenario that we want to deal
with through clause 24. If someone has been kidnapped, imprisoned or
held against their will, their life may be at risk. In such
circumstances, we believe that the Army needs those additional
powers.
Sammy
Wilson:
The more the Minister answers, the more confused I
become. He says that clause 22 refers only to the power of entry. The
sort of scenario that I painted when the hon. Member for Tewkesbury was
speaking was the example of a house being used by people who were
involved in rioting or whatever, and that the police or the Army had to
enter in the interest of maintaining the peace. Is the Minister saying
that the Army could not look into cupboards or under the stairs or
under beds to see if people were hiding there? Are they allowed only to
go through the
door?
Paul
Goggins:
I am grateful to the hon. Gentleman for giving me
the opportunity to clarify my remarks. Clause 22 gives the power of
entry. Powers given elsewhere in the Bill enable Army personnel to take
further appropriate action. For example, schedule 3, which we have just
dealt with, gives the power to seize explosives. Having been given the
power to enter, the Army can take further action under the powers given
in schedule 3. Hon. Members will see that, throughout the Bill, the
Army is given other powers that maybe required in the scenario
that pertains. Initially, however, we need to give the Army the power
to enter, which is given in clause 22. Clause 24 gives additional
powers in relation to detained persons.
Finally, I can tell the hon.
Member for North Down that I will happily go away and look at “a
person”, “the person” and “a member of Her
Majesty’s forces” and ensure that all the appropriate
phrases are in order.
Question put and agreed
to.
Clause 24
ordered to stand part of the Bill.
Clause
25
Premises:
vehicles,
&c.
Question
proposed, That the clause stand part of the
Bill.
2.45
pm
Mark
Durkan:
Clause 25 takes the powers inclause 23,
which we have already debated and agreed, and applies them to vehicles.
The powers to stop and search a person for explosives or to stop and
search someone in a car have been among the most controversial powers
in Northern Ireland. They were used systematically and were seen by
many as a tool for harassment because there was no requirement for
reasonable suspicion. Anyone in a public place or anyone making a
journey by car, whether every day for business, or for a Sunday run
over the border from Derry, could be searched at any time—and
that happened. Whatever justification there may have been for that in
the past, when a significant number of explosions were happening in
Northern Ireland, we are now at a point when the power is not
necessary. Unfortunately, there are still some explosions, but the
number is far less than it was.
We should not follow the logic
of everything that the Government tell us about the threat of terrorism
in Britain. The threat posed by al-Qaeda in Britain is far greater that
that posed by domestic terrorism in Northern Ireland, yet Britain has
no equivalent to the powers in clauses 23 and 25 or schedule 3. I
therefore oppose the clause standing part. If people cannot justify
those powers in Great Britain, given the threat of terrorism and
explosions there, how can they be justified in Northern
Ireland?
Paul
Goggins:
I have already made it clear that it is necessary
to counter the threat of international terrorism. We discussed the
matter extensively in the early stage of our deliberations. In clause
25, we seek to put in place powers that will enable the police and the
Army to deal with the terrorist threat that is specific to Northern
Ireland.
Sammy
Wilson:
Does the Minister not find the arguments of the
hon. Member for Foyle most unusual given the fact that a number of
members of his party, the Social Democratic and Labour party, who were
also members of district policing partnerships and the Police Board
have had their homes attacked by people who carried explosives to those
homes and then threw the bombs at
them?
Paul
Goggins:
I give credit to my hon. Friend the Member for
Foyle and members of his party; they have indeed taken a risk in recent
years by showing their support for the police and the rule of law and
being prepared to engage with the issues. Some of them have paid a
heavy price. I am grateful to the hon. Gentleman for giving me the
opportunity to acknowledge and applaud that. They have given a lead,
and it has not always been easy. If my hon. Friend wishes to respond, I
am sure that he will find an opportunity to do so.
Clause 25 clarifies certain
powers, particularly the power to stop and search a vehicle. That is
important in respect of Northern Ireland and the type of threats
that we are discussing. Obviously, people can move vehicles round with
explosives in them so we must provide such powers. There is also a
power under the clause that requires someone to remain with a vehicle
or to go with it when it is searched for munitions and transmitters.
That is necessary as individuals could attempt to walk away from a
vehicle that is being searched. We have thought through the matter
carefully and believe that such powers are necessary in respect of both
premises and vehicles. I encourage the Committee to support the
clause.
Question
put, That the clause stand part of the
Bill:—
The
Committee divided: Ayes 16, Noes
1.
Division
No.
12
]
Foster,
Mr. Michael
(Worcester)
Question
accordingly agreed to.
Clause 25 ordered to stand
part of the
Bill.
Clause
26
Examination
of
documents
Question
proposed, That the clause stand part of the
Bill.
Lady
Hermon:
I oppose clause 26 standing part of the Bill not
because I object in principle to the Government’s intention, but
because we need further clarification and assurances from the Minister.
As members of the Committee will have noted, the clause deals with the
examination of documents, but only an examination that is performed
consequent on a search by a member of Her Majesty’s forces as
outlined in previous
clauses.
Clause 26 is
carefully drafted. We are delighted that the hon. Member for Foyle is
back with us this afternoon. We missed his contributions earlier, but
he has certainly livened up proceedings and made up for his absence
from Committee this morning. I might not agree with half of what he
says, but it is always a delight to listen to
him.
Lady
Hermon:
Well, more than half. I was being
polite.
My difficulty with the clause is
that it is precise in providing that a member of Her Majesty’s
forces who performs such a search
“may examine any document or
record found in order to ascertain whether it contains information of
the kind mentioned in section 58(1)(a)...of the Terrorism Act
2000...(information likely to be useful for
terrorism)”
and
that
“if necessary or
expedient for the
purpose”
of the provision
that person
“may remove
the document or record to another place and retain it there until the
examination is
completed.”
The clause
deals with specific types of documents that relate to terrorism. It is
unusual in such circumstances that, under clause
26(3),
“A
document or record may not be retained by virtue of subjection (1)(b)
for more than 48
hours.”
When we discuss
clause 27 stand part, it will become apparent that no photocopy or
photograph can be taken of a document that might relate to
terrorism.
Given what
the Minister just said in response tothe objections of the
hon. Member for Foyle and his assurance that the powers are still
necessary in Northern Ireland to combat terrorism in all its
forms—I make no distinction between home-grown terrorism and
international terrorism; I loathe and detest all forms of
terrorism—it seems that an amendment is necessary. That is why I
urge the Minister to review clause 26. As drafted, it places no
obligation on a member of Her Majesty’s forces to pass to the
PSNI documents they find that are useful for combating terrorism.
Instead, they are duty bound to return the original document within 48
hours. They cannot retain the original and pass back a photocopy or
photograph, because that is prohibited by clause 27, so I am not at all
happy with the
clause.
Sammy
Wilson:
We are discussing not only documents but records,
which I presume could include computer records—perhaps the
Minister could clarify that. In the past, the PSNI has found that in
some cases it can take up to four or five weeks to get into such
records because of firewalls and so on, or the ways in which records
are stored. Would the hon. Lady accept that a limit of 48 hours could
mean that the people who seize information may not have time even to
find out what they have
seized?
Lady
Hermon:
I am most grateful to the hon. Gentleman for
making such a sensible contribution—as he has done throughout
the afternoon. He makes a valuable point indeed. There have already
been two trials in Northern Ireland of al-Qaeda suspects. Both
gentlemen—and they were gentlemen—had various and
multiple aliases and their computer records used obscure middle eastern
dialects that required expert translation. That was one reason why I,
as opposed to Democratic Unionist party Members, supported 90 days
detention without trial. We have set it at 28
days.
Will the
Minister confirm and clarify for the benefit of the Committee the point
that the hon. Member for East Antrim just made? Let us say that a
suspect has already been detained for 28 days, in accordance with
current law, and the documents or computer records
are pertinent and relate to both terrorism and the defendant. In such
circumstances, surely there should be an obligation under clause 26 to
pass those key documents and references to a member of the
PSNI.
Mark
Durkan:
As has been indicated, clause 26 gives the Army
power when performing searches under clauses 23 and 25 to examine and
remove documents. Given what I said earlier, hon. Members will not be
surprised to hear that I am opposed to the provisions, but I want to
clarify that. We are not persuaded that even the police should have
such powers, never mind the Army. The Minister is aware that he is
proposing similar powers for the police in the policing
order,but he is aware from the exchanges that I am
surehe enjoyed with members of the programme for Government
sub-committee in the Parliament buildings that my party is not
persuaded of the need for such powers even for the police, never mind
the
Army.
Paul
Goggins:
Members of the Committee are right in saying that
the clause deals with the removal of documents and records for
examination, and I confirm that “record”, which is not
defined in the Bill, can indeed include computer records. I acknowledge
that my hon. Friend and his colleagues in the SDLP reject such powers
for the police as well as for the Army. Members of the Committee will
know that the Government intend to provide similar powers to the police
through the Policing (Miscellaneous Provisions) (Northern Ireland)
Order 2007. I enjoyed my exchange with colleagues in the transitional
Assembly sub-committee when I met them a few days
ago.
3
pm
I hope that I
can reassure the hon. Lady, who will acknowledge, of course, that a
document might not at first reveal its evidential value and require a
more thorough examination by the authorities. The powers that we are
discussing will allow them to do that for 48 hours. Obviously, we have
spoken to the police and the Army about the time that it is likely to
take to decide whether those documents have evidential value. From
their experiences in Northern Ireland, they think that 48 hours is
sufficient. For example, they can draw on their experience at Whiterock
when documents seized by authorities turned out to contain detailed
plansfor the events conducted there by paramilitary
organisations. It took some time to analyse those
documents.
The hon.
Lady rightly pressed a key issue: if during those 48 hours it becomes
clear that documents contain evidence of an offence, they can be
retained under the Police and Criminal Evidence Act and used in a
prosecution. The powers before us simply allow the authorities to
remove documents for 48 hours in order to conduct their investigations.
I repeat: during that time, which the authorities tell us is
sufficient, if it becomes clear that the documents contain evidence,
they can be retained and used as such to prosecute those who might be
responsible for very serious offences. I hope that that reassures her.
The 48 hour cut-off time is simply for consideration of a
document’s evidential value.
Lady
Hermon:
Sir Nicholas, it is kind of you to allow me to
respond to the Minister. I shall keep my remarks
short.
I am not
persuaded at all by the Minister. Clause 26
reads:
“A
document or record may not be retained by virtue of subsection (1)(b)
for more than 48
hours.”
The Bill needs
more clarity. He said that the Police Service of Northern Ireland has
assured him that48 hours is sufficient to determine whether a
document or record pertains to terrorism. Those documents should then
be retained for use in a criminal
investigation.
Paul
Goggins:
I just want to draw the hon. Lady’s
attention to a very important point that she made—the end of
subsection (1)(b)
reads:
“until the
examination is
completed”.
The
provisions here simply confer the power to hold documents until the
examination is completed and we have been assured that 48 hours is
sufficient for
that.
Lady
Hermon:
The Minister confirms my worst fears. Let us
repeat: documents seized and examined for up to 48 hours are likely to
contain
“information
likely to be useful for terrorism”.
That examination might well confirm that
those documents and records are pertinent and useful to terrorists.
Please remember that clause 26 enables only a member of Her
Majesty’s forces to carry out such an examination. Even if that
confirms the pertinence and usefulness to terrorism of the documents,
the Army can neither retain the documents nor, courtesy of clause 27,
to which we are about to come, make a copy or take a photograph of
them—they must be returned. That does not make sense or seem
logical to me, since the offences are so
serious.
Paul
Goggins:
I am failing to express myself clearly enough. I
point out again to the hon. Lady the words in paragraph
(b),
“until the
examination is
completed.”
The police
and the Army tell us that that can be done within 48 hours. If the
examination reveals information that can then be used as evidence in a
prosecution, then it can be retained under different
powers—under PACE rather than the
Bill.
Lady
Hermon:
The Minister makes that point even though there is
no provision in the Bill for a member of Her Majesty’s forces to
be duty-bound to pass on the documents. I asked him for assurances that
if Her Majesty’s forces come to the conclusion that documents
that they have seized and examined within 48 hours would be useful for
the purposes of killing or terrorising people, the forces would be
duty-bound to transfer those documents to the police. That is certainly
not clear in the wording of the clause—quite the opposite: they
will not be able to retain the
documents.
Paul
Goggins:
The powers in the clause are specific and allow
documents to be retained for up to 48 hours for the examination to be
completed. The hon. Lady rightly points out that the provision relates
only to
Army powers, because police powers are set out in other legislation. If
documents reveal information pertaining to terrorism or the commission
of serious offences, the police will re-seize them under the provisions
of the Police and Criminal Evidence
Act.
As always, we
must consider the Bill alongside other provisions. Of course, if the
information pertains to serious disorder or paramilitary activity, the
police will seize it and it will be used as part of a prosecution. I
cannot offer a stronger
reassurance.
Lady
Hermon:
I am enormously grateful to the Minister. That was
as firm an assurance as we needed. Had he given it a few minutes ago,
it would have curtailed our debate. We have reached the right
conclusion—that such documents will be transferred to the PSNI
if they relate to terrorism. That is not clear from the wording of the
Bill. I appreciate the Minister’s clarification.
Question put and agreed
to.
Clause 26
ordered to stand part of the
Bill.
Clauses
27 to 33 ordered to stand part of the
Bill.
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