Justice (Northern Ireland) Bill

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The Chairman: Order. To help the hon. Lady, to whom we are being a little unfair in driving her so forcefully, I think we should deal with amendments Nos. 191 to 194 first before we discuss amendment No. 195, with which she may like to debate amendments Nos. 196 and 197. I hope that helps her—it certainly helps me.

Lady Hermon: Amendment No. 195 shows the seriousness with which I view obstruction of the inspector in the course of his duties.

The clause does not deal with intentionally and wilfully destroying or hiding documents when the chief inspector is conducting an inspection. I am especially concerned about the level of punishment that will be meted out to a person guilty of an offence under subsection (3). The Bill is drafted so that a person

    ''guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.''

I do not pretend to be a criminal lawyer, but I think that the level of fine is equivalent to that meted out to someone convicted on a charge of drunk and disorderly behaviour. Intentionally or recklessly obstructing the inspector in the course of an inspection merits a much more severe punishment.

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Mr. Turner: It may help the hon. Lady to know that the Education Bill, which received its Third Reading last night, makes it an offence wilfully to obstruct Her Majesty's Inspector of Schools. A person guilty of that offence is liable, on summary conviction, to a fine not exceeding level 4.

The Chairman: Order. Before the hon. Lady responds to that intervention, which was in order, may I point out that we should stick to the first group of amendments rather than wander into a discussion of subsection (4), as we are in danger of doing? We shall come to that under the next group of amendments. Rather than taking a great raft of amendments together so that no one knows where we are, we should confine ourselves to amendments Nos. 191 to 194, if the hon. Lady is happy with that. We shall discuss the standard scale next.

Lembit Öpik: Am I right to assume that the points that the hon. Lady has just made primarily refer to amendment No. 194, which seeks to stiffen the offences or penalties for obstructing an inspection? Did her point not relate to that amendment, rather than to the group that comes after it?

Lady Hermon: I know that the hon. Member for Montgomeryshire (Lembit Öpik) had the best of intentions in supporting amendments Nos. 194 and 273, but I do not intend to press those amendments. I shall explain why. I tabled the long amendment No. 194 because I wanted to toughen up the offence, or to tease out an explanation of what was meant by ''reasonable excuse.'' However, last night, when I examined that carefully constructed amendment—I am being sarcastic—I noticed that the final line states that

    ''it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.''

That is tautologous, so I do not want to speak to amendments Nos. 194 and 273. I have spoken to the other amendments in this little bunch. We need to consider the seriousness of intentionally obstructing the inspector during an inspection.

Lembit Öpik: In attempting to assist the hon. Lady, I managed to harm myself, and I apologise for talking about a later amendment.

I would be interested to hear the Minister's thoughts on the intention behind amendment No. 194, although it seems that the hon. Lady does not intend to press it to a vote. She made a very persuasive point, however, when she said that it would make explicit something that the Bill leaves to the courts to determine. Perhaps the Minister could consider that issue before Report stage.

Mr. Browne: I have sought in my contributions to this short debate to deal with amendment No. 191, so I shall not return to it.

If I understood the comments that the hon. Member for North Down made in support of amendment No. 192, she seeks to highlight the distinction between subsection (4), which uses the word ''guilty'', and

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subsection (3), which uses the phrase ''commits an offence''. She will, however, not be surprised to learn that we made that distinction deliberately.

A person can be sentenced only when he has been found guilty, which is why subsection (4), which deals with sentences, uses the word ''guilty''. Subsection (3), however, describes the constituent elements of an offence, and it will be for the court to determine whether a person is guilty. That is why the phrase ''commits an offence'' is used. I have read numerous statutes in my life, but I have never before picked up on the fact—perhaps it was obvious—that they commonly make such a distinction when describing an offence and the penalty for it. I hope that that reassures the hon. Lady.

As I understand it, the hon. Lady does not want to press amendment No. 194, but it might be possible to deal with some of her concerns in the context of amendment No. 273. Subsection (3) includes the phrase ''without reasonable excuse'' because it does not deal with an absolute offence. When charged, people can offer the defence that they had an excuse based on reason for not preventing something that would otherwise have constituted an offence. The offence set out in the clause is not absolute, unlike some road traffic offences. One is guilty of such an offence if particular circumstances prevail in relation to the state of a motor vehicle, whether or not one could have prevented them. The onus is, therefore, on the person to prevent such circumstances from arising.

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The inspector will mostly be seeking the co-operation of civil servants on public bodies, who will have a duty to co-operate. Someone who has an excuse based on reason for being unable to respond to a request for information from the inspector could offer it as a defence. That is why the phrase ''without reasonable excuse'' is included. We do not seek to create an absolute offence or to stipulate that a person is guilty of an offence where information is not passed on, whether or not that is their responsibility.

Mr. Turner: I would like to go back to the analogy that I used in respect of amendment No. 191. One of the authorities covered by the inspector commits an offence by failing to provide a document without reasonable excuse. That document has been taken home by a former employee of the authority. The authority has a reasonable excuse for not producing the document, because it neither has it nor knows where it is. However, I wonder why the inspector should not be able to go and extract it. That seems to be the weakness of clause 48 in general.

Mr. Browne: I do not accept that that is a weakness. In his earlier contribution, the hon. Gentleman suggested that the clause was designed to allow the inspector to exercise his powers in relation to authorities but not individuals, when it is clear from the provisions that a person commits the offence. There is anticipation that individuals as well as organisations may be required by the inspector to respond. That is why subsection (3) uses such phraseology.

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We may need to return to this matter at some stage, and I would be happy to do so, but at the moment I am not persuaded that there is a problem. I do not have anything further to say about the amendments. We should move on to consider the nature and scale of the penalty, if you will allow that, Mr. Conway.

The Chairman: Order. Before I call the hon. Member for North Down to wind up the debate, I should make it clear that, if she were to seek to withdraw amendment No. 191, and the Committee were to agree, that would not prevent her from pressing any of the other amendments in that group to a Division, if she so wished. I expect her to give an indication of her intentions in her concluding remarks.

Lady Hermon: Thank you, Mr. Conway—

Mr. Browne: I understood that the hon. Lady had said that she did not intend to move amendment No. 194. That is why I structured my remarks in the way that I did. I did not address the matter in detail.

The Chairman: The trouble with messing around with groups is that it can confuse everyone. The debate formally concerns amendment No. 191, but the other amendments have been grouped with it, so amendment No. 194 has not, technically, been moved. It would have to be formally moved if it were to be pressed to a Division. As far as the Chair is concerned, it has not been moved as such, even though the debate has centred on it.

Lady Hermon: Thank you, Mr. Conway. I also thank the Minister.

I recommend, as bedtime reading, the Competition Act 1998. It is a useful way to get to sleep—at least in my experience. To recap, I do not propose to divide the Committee on the amendments. The Minister kindly said that he may return to the matters. I suspect that that was a commitment to do so. We may have difficulties when we re-read this morning's discussions, but he has adequately addressed the issue for my purposes. However, when we discuss the next group of amendments, I shall want to return to the seriousness of obstructing the inspector in the course of his inspections. Therefore, I am happy not to press amendment No. 191 to a Division and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lady Hermon: I beg to move amendment No. 195, in page 28, line 6, leave out from 'subsection' to end of line 7 and insert

    '(3)(a) is liable—

    (a) on summary conviction to a fine not exceeding the statutory maximum, and

    (b) on conviction on indictment, to a fine'.

The Chairman: With this we may also take the following amendments: No. 196, in page 28, line 7, at end insert—

    '(4A) A person is guilty of an offence if, having been required to produce a document under subsection (2)—

    (a) he intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or

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    (b) he causes or permits its destruction, disposal, falsification or concealment.'.

No. 197, in page 28, line 7, at end insert—

    '(4B) A person guilty of an offence under subsection (4A) above is liable—

    (a) on summary conviction, to a fine not exceeding the statutory maximum;

    (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.'.

 
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