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Grand Committee

Wednesday, 21 March 2007.

The Committee met at quarter to four.

[The Deputy Chairman of Committees (LORD TORDOFF) in the Chair.]

Justice and Security (Northern Ireland) Bill

(Second Day)

The Deputy Chairman of Committees (Lord Tordoff): I start, as usual, by saying that if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Clause 15 [Investigations: access to prisons, &c.]:

Lord Lester of Herne Hill moved Amendment No. 24:

The noble Lord said: I begin by apologising for the fact that I was not able to be here on Monday. At least I have a reason, or even an alibi: I had to be in Strasbourg on a grave and weighty human rights matter. I am very sorry that I was not here because my function is to act on behalf of the Joint Committee on Human Rights and to raise those issues that we have raised in our report on the Bill so that the Minister can reply; the Committee will no doubt want to consider the debate as a whole as we go through each of the issues that the Joint Committee raised.

We are largely concerned, in this amendment and others, with the powers of the Northern Ireland Human Rights Commission. The amendments have been grouped in a slightly odd way, so that one is considering bits and pieces rather than the whole context of the problem. I say by way of brief introduction that, when considering the powers of this commission, it is important to have regard to the kind of powers that are enjoyed by the existing commissions dealing with human rights, notably the Equal Opportunities Commission, the Commission for Racial Equality and the Northern Ireland Human Rights Commission.

The amendment is one of several amendments—we shall come to others, such as Amendment No. 25, later—concerned with access to places of detention. I remind the Committee of what the Joint Committee on Human Rights drew to the attention of both Houses about this, beginning with paragraph 1.67 of our report. It said:

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The Government also pointed out that,

that is, the Northern Ireland Human Rights Commission—

that is, the Joint Committee’s question—

that is, the optional protocol to the convention against torture—

That is the necessary background. The Joint Committee on Human Rights expressed the view that the restrictions placed by the Bill on the commission’s powers to access places of detention are,

I hope those issues are plain and obvious to Members of the Committee. I have never seen in any statute such a hobbling of the powers of a body that is given an important independent task, especially when it is to protect human rights. Certainly, one does not find similar hobbling of the equivalent body in the Republic of Ireland or of any human rights commission in any other jurisdiction with which I am familiar—South Africa, New Zealand, Australia or India.

If I can put it not too pejoratively, the question that arises is why the Government have so little confidence in the wisdom of a commission which will be subject to judicial review if it misuses its powers that they find it necessary to hobble the commission by restricting its powers of access and by producing a highly bureaucratic and cumbersome mechanism that must be gone through when an investigation may already have been carried out by another body. If I think about bodies that I know better, such as the Equal Opportunities Commission or the Commission for Racial Equality, they are free to investigate

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suspected discriminatory practices irrespective of whether other bodies, such as the Her Majesty’s Chief Inspector of Prisons or the ombudsman, have carried out an inspection. The committee takes the view that having willed the creation of a commission of this kind, taken care about selecting its appointments and recognised that it is fully subject to judicial review if it misuses its powers, these restrictions are not appropriate or necessary. The committee very much hopes that the Government will remove these shackles.

The other important aspect is the optional protocol to the convention against torture because it is extremely important that the United Kingdom is able to set a good example about access to the international mechanisms provided, especially on something as serious as torture. It is therefore vital that, if the taxpayer is spending money on a Northern Ireland Human Rights Commission, that body should be able to be part of the UK’s national preventive mechanism. We have explained our serious doubts about whether that would be possible unless these shackles are removed.

Amendment No. 24 is one of a series of amendments relating to the same problem, and I shall not make the same speech again on the other amendments. This amendment is a limited amendment because it provides that the places of detention referred to should be in an inclusive list, not in a closed list.

The Northern Ireland Human Rights Commission supports what I have just said, which I said not just on my own behalf but on behalf of a unanimous Joint Committee on Human Rights. I beg to move.

Lord Glentoran: On a point not directly to do with this Bill, we have all at different times complained about the groupings. I remind myself and everybody else that we have perfect access to the groupings in advance, and we have a right to change them. If the groupings are not to our satisfaction it is our fault. I can tell the noble Lord, Lord Lester, that I felt the same way on Monday, but it was my fault for not having checked them. It would have helped had they been checked and grouped rather better.

I have one question before deciding on the merits of the noble Lord’s amendment. Why have the Government decided that a closed and finite list is necessary? I understand that the word “means” in this subsection, as opposed to the word “includes”, means that it is a closed list, and that it is not relevant to anything anywhere else. I should be interested to know whether that is the case.

Baroness Harris of Richmond: I am speaking to Amendment No. 30, which stands in my name and that of my noble friend Lord Smith of Clifton, and which is consequential to Amendment No. 24.

The Northern Ireland Human Rights Commission said that Clause 15 would, by new Section 69C of the Northern Ireland Act 1998, allow the commission to enter a place of detention only during and for the purposes of a formal, time-bound investigation established under Section 69(8). For any other

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purpose, however serious or urgent, the commission would need to secure the permission of the relevant authorities. The commission needs to have the option of visiting places of detention as a means of fulfilling its statutory functions under Section 69(5), (6) and (8) of the Northern Ireland Act 1998 in relation to legal proceedings, research, investigations or educational activities. It would need to have a right of access to places of detention for the exercise of any of its statutory functions; and protection against any inappropriate use of this power is available through judicial review.

Subsection (3) offers an extensive list of “places of detention”, but reliance on the ordinary English meaning of the phrase would provide a more efficient and, we believe, inclusive approach, as was done in, for example, the Armed Forces Act 2006 and the Criminal Justice Act 2003. The opportunity could also be taken to address any possible consequences of delay in amending the list.

Lord Rooker: I start by fully accepting the reasons for the absence of the noble Lord, Lord Lester of Herne Hill, on Monday. His amendments were succinctly put and clearly placed on the record. I did my inadequate best to answer his colleague who stood in for him but, if he is dissatisfied, we will naturally come back to them on Report. The Attorney-General dealt with a good part of the issues as well.

4 pm

I fully appreciate the motivation behind the two amendments. I do not think that the words “hobble” and “shackles” are appropriate and probably go too far. We think that the amendments would create uncertainty, whereas the system we have adopted gives clarity and certainty, as well as flexibility. We thought carefully about how to give the commission access to places of detention as part of its investigations. It would be possible to define places of detention, but we rejected this option. We were concerned that it would be more open to legal challenge and would create uncertainty for the commission and public authorities as to which places are covered by the legislation. We therefore decided to list all the possible places of detention that can be accessed, which gives us certainty and clarity. We have also allowed an order-making power which would allow us to add to the list if any places have been missed or new places are established, which might be an issue. I do not foresee that, but it is possible that there could be new places that would not be subject to a definition, which is the reason for our approach.

The commission is not an enforcement body, which must be at the forefront of our minds. Obviously, there are three debates to be had on this issue. However, it is worth while doing this because the noble Lord, Lord Lester, referred to it and the Government’s response. Seventeen bodies have inspected the Northern Ireland Prison Service, including joint inspections by the HM Chief Inspector of Prisons and the Criminal Justice Inspector; the Criminal Justice Inspection Northern Ireland in its own right—that is, on thematic inspections; the Northern Ireland Human Rights Commission; the Northern Ireland Commissioner for Children and Young People; the Mental Health Commission; the Regulation,

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Quality and Improvement Authority; the Northern Ireland Affairs Committee; the Prisoner Ombudsman; the Interception of Communications Commissioners; the Equality Commission; the Office of Surveillance Commissioners, the International Red Cross; the United Nations Committee against Torture; the Adult Learning Inspectorate; the Health and Safety Executive; the Independent Monitoring Board; and the Health Promotion Agency. That is a substantial number of inspections, all of which have a very important role, which is worth putting on the record.

We used this approach because, clearly, powers to investigate access to prison and places of detention are very important and we do not want lots of legal arguments about places of detention before investigations take place. We have tried to list all the places. If any Member of the Committee thinks that we have missed any out, we would be very pleased to receive a note on that so that we could consider them before Report stage. We have also built in the possibility, under new Section 26C(12), that the order can be amended to add other places if any have been missed or if new places are created.

Lord Lester of Herne Hill: I am very grateful to the Minister for that full reply. It is correct to say that a fetter is being imposed on the commission by the way in which this clause is drafted. It allows the commission to enter only a place of detention specified in the exhaustive list set out in subsection (3). When we were debating the Equality Bill, the noble Baroness, Lady Ashton of Upholland, was the Minister responsible. She said again and again that she was allergic to prescribing in detail in exhaustive lists in a Bill, and I agree with her. She said that she found that highly bureaucratic and unnecessary and she preferred the least possible specificity and prescription in legislation of this kind. What we do not understand is why it is necessary in the first place.

I shall deal with the 17 other bodies shortly but, focusing on why it is necessary, let us suppose that the list were omitted and it simply said that the commission may enter a place of detention in Northern Ireland and left it to the discretion of the commission as to what it should do. That is exactly the position that applies to the existing equality agencies—the Equality Commission in Northern Ireland, the EOC, the CRE and the Disability Rights Commission in Great Britain. If they are carrying out an investigation into suspected discrimination in, say, a prison, nothing in the equality legislation has lists that say these are the only places that they can investigate, and I am not aware that there has ever been a case of abuse. So we simply do not understand why it is necessary—and it is rather heavy-handed to say that the only way to deal with this is not by leaving it to the good sense of the commission or the court in the event of a judicial review but having to introduce by Order in Council an amendment to the list. It would be perfectly possible, I suppose, to have this list for clarity but say,

which would at least not give rise to the need for further Orders in Council.

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We find it particularly strange, given the other restrictions placed on the investigation, which we will come to later in this clause and which again give the impression that there is a lack of confidence from the beginning in the good sense of the commission—a view that I am sure that the Minister does not share. It is very important to prevent unnecessary bureaucratic restrictions being imposed in the name of certainty.

As for the point about the 17 other bodies, none of them has the function of this commission, which is to ensure that public authorities in Northern Ireland comply with the international human rights standards by which the United Kingdom as a whole is bound. Of course it is true that all public authorities in our democratic country are subject to inspections of all kinds, including the National Audit Office, ombudsmen, prison inspectors—all the list that the Minister gave us. But that seems no reason to restrict the powers of the commission.

If a particular matter, such as deaths in custody in Northern Ireland, has been fully investigated already—and the JCHR has investigated that matter—and the proper standards applied by the JCHR, for example, it would have been absurd for the Northern Ireland Human Rights Commission to use its resources to investigate the same subject with the same standards. If it did so, it could and should be criticised. But that is a case in which an investigation has been made into the same issue by another body, which has covered the same ground, and none of the other 17 bodies mentioned by the Minister has this function.

Of course, we will consider this matter, but I hope that the Government will also consider whether there might be some flexibility to avoid the list becoming an exhaustive cage for the commission.

Lord Rooker: Committee stage is an opportunity to consider everything that is said but, to the best of my knowledge, however much criticism there may be of the list, it covers all lawful places of detention in Northern Ireland. Therefore, all places where the commission may wish to investigate are on the list; we have not missed any off, to the best of our knowledge. If there are others that we do not know about, we shall clearly add them. We have done the list in the cause of the commission’s clarity and certainty, so that no one can argue, “You have no right here”. As we have covered all lawful places of detention, the commission has more powers. We obviously have confidence in the commission, hence the contents of the Bill, but I place on the record that we have no hidden places of detention; that would be unlawful. Therefore, all lawful places of detention are covered on this list to the best of my knowledge. I shall obviously have all this double-checked before Report, and ensure that it has further consideration.

We did it for clarity. It supports the commission. There cannot be any argument about where its writ runs; its writ runs on all lawful places of detention. Listing them benefits the commission and stops any legal challenge of those who might wish to frustrate its work.

Lord Lester of Herne Hill: I am grateful. I hope that the commission will carefully read what the

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Minister has said, and reflect on whether there are gaps. If so, we can come back to them at a later stage. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees: In calling Amendment No. 25, in the name of the noble Lord, Lord Lester, I point out that, were it to be agreed to, I should not be able to call Amendments Nos. 26 to 29 because of pre-emption.

Lord Lester of Herne Hill moved Amendment No. 25:

The noble Lord said: I have essentially spoken to the substance of the amendment, which leaves out from the beginning of line 40 on page 13 to the end of line 25 on page 14, dealing again with the place of detention. Again, these lines are highly bureaucratic and, as far as I am aware, unprecedented in Human Rights Commission or Equality Commission legislation.

First, the commission may specify the place of detention in the terms of reference of the investigation, only if it has,

So it must presumably look at the other 17 bodies, and see what it thinks of what they have been doing. It must then decide that those 17 bodies have not considered the particular matter. In subsection (5), the Bill goes on to say that the power to investigate,

We then have a series of provisions which I find unnecessarily bureaucratic. It seems to us that they could simply be dispensed with altogether:

has been made to a county court and,

for example. There is then a power for the country court to,

(a) order that the power under subsection (1) may not be used to enter the place of detention;(b) impose restrictions on the exercise of the power in relation to the place of detention;(c) require the Commission to amend the terms of reference.(a) access to the place of detention is unnecessary having regard to the purpose of the investigation,(b) it would be unreasonable to allow the Commission access to the place of detention, or(c) the Commission has failed to comply with subsection (4) or section 69D.

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I find it difficult to be polite about that. It seems wholly unnecessary. When the other existing commissions propose to investigate—and they have subpoena powers and all the rest of it—they are fully subject to judicial review if they act unfairly. There have been cases where the commissions have been successfully challenged by judicial review.

I fully understand the needs of fairness and relevance; public law principles ensure that such things must be complied with for every public authority including this commission. But I do not understand these kinds of restrictions and this highly cumbersome procedure. A county court judge, of all people, will have to make decisions of this kind, not a High Court judge who is familiar with issues of public law and excessive powers and so forth. A county court judge will examine the proposed terms of reference, deal with all of that, and look at the other 17 bodies before there can be an investigation into a specified place of detention.

In our report, we regarded all of that as,

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