Justice (Northern Ireland) Bill

[back to previous text]

Mr. Mallon: I thank the hon. Lady for giving way. I have listened with great interest to the points made by her, the Minister and other members of the Committee. The point that she makes is correct in that these are serious offences that should be dealt with. I am not competent to debate the legal issues, but as a lay person I have a feeling that obstruction in this area is serious, and that it should be treated seriously. I ask the Minister take the matter seriously, as he is doing.

Lady Hermon: The hon. Gentleman is correct: we all take the view that it is a serious matter to obstruct a chief inspector carrying out an inspection of any of those listed organisations. However, I must say with knowledge of the jurisprudence of the European Court of Human Rights in Strasbourg that there is a great emphasis on the word ''proportionality'', and the punishment must be proportionate to the offence. I would not want us to rush into a series of cases in which this legislation was struck down on the grounds that it is disproportionate to the seriousness of the offence. I appreciate his intervention, but the proportionality principle is fundamental, and it is recognised in the Bill. The discussion has been useful, and we have extracted a lot of background information from the Minister, which is always helpful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Column Number: 255

Mr. Turner: I should like to pursue the question of whom the inspector is not allowed to inspect. The Minister explained that the Bill in no way restricts the inspector's sphere of operations. I am uneasy with his explanation because, although the Bill does not restrict the inspector's sphere of operations, I wonder how the courts would interpret its provisions if Her Majesty's Inspector of Criminal Justice in Northern Ireland knocked on my door and asked questions about the inspection of the Prison Service. I would be entitled to say that I was not prepared to have him in my house, or answer his questions, and that should be an end to the matter. That is an obvious distinction. Some people associated with the Prison Service in Northern Ireland would feel the same.

Inspectors may feel that they have knowledge pertinent to their inspections, despite the fact that they are no longer, or never were, employed by the Prison Service. For very good reasons, the widow of a former member of the Prison Service may resist being questioned about the activities of her husband in that service, and the way it was being run. In those circumstances, a court would find it hard to say that that individual was automatically subject to the inspector's powers. The inspector may have to go to court to demonstrate that he has those powers. The individual may want to go to court to demonstrate the opposite.

The powers are subject to somebody, who would probably work for the institutions described in clause 46 (1)(a) to (j). If one used to be employed by the compensation agency, the inspector would have to prove that he had a good reason for asking questions and demanding papers. In supplying that reason, he may reveal elements of his line of inspection. I am expressing unease; I want the Minister to reflect on that and consider whether it is appropriate to give an inspector broad powers without specifying their extent. The inspector should have those powers. It is right that he could ask a former serving member of one of the institutions what happened to a particular document, for example. However, it would be helpful if that were clearer.

Mr. Browne: I am grateful to the hon. Member for Isle of Wight for allowing us to return to that point, which I thought we would return to in the context of clause stand part. His contributions have been helpful because they have outlined potential circumstances. Every time he gets to his feet, he produces another set of circumstances, as he imagines the possibilities. He demonstrates the futility of trying to anticipate every set of circumstances. The Bill is a substantial document. It would be twice the size if we were to cover every potential circumstance relating to inspections.

The draftsmen, and the Government, intend to provide inspectors with the relevant powers, knowing that they will be subject to the sort of arguments that the hon. Gentleman imagines will take place in extremis on doorsteps or in courts. It is for the courts to interpret the extent of the inspector's powers and functions. That will depend largely on circumstance. It is clear from the context that the premises that are referred to are intended to, and probably will, be

Column Number: 256

restricted to premises of those in the list of organisations subject to inspection. I do not anticipate that ''premises'' will be interpreted more widely than that, but I can figure a set of circumstances in which premises are no longer occupied by such an organisation, but a store of files has been left there. Common sense tells us that the inspector would not be unreasonable in arguing that his powers extended to those remaining files—in a situation similar to the earlier analogy of the hon. Member for Isle of Wight . It is right to have such flexibility, because we cannot anticipate every circumstance.

11.15 am

Subsection (3), which refers to persons who can commit an offence, was clearly drafted with employees in mind. I will refer to the analogy that the hon. Gentleman used of ex-employees taking documents home. The powers relating to documents are intended to be used for documents and the information therein. We home could get into an interesting argument about whose property the documents are if they are taken by an employee who becomes an ex-employee; he or she may forget to return a briefcase of documents to the agency, or perhaps intended to hold on to it because it contained information that they did want to see the light of day.

The powers clearly relate to the documents and, although I do not ever expect to be instructed by the inspector to argue this, I can easily construct the framework of an argument for the court, and for the doorstep, that says that a power in the Act allows the inspector, or his agent, to have access to documents. Unless criminality or malpractice is being covered up, I do not imagine that anyone will have to go to court. I want to reassure the hon. Gentleman that the framework and the context of the powers are restrictive enough not to have someone going around Northern Ireland with powers over any person. The courts will be sufficiently informed that, to make the appropriate decisions at the margins, there may need to be arguments about how far the powers extend.

Mr. Turner: I understand that my comments may appear to be fanciful flights of my imagination, but the problem is that situations already arise in the case of, say, the local government ombudsman in England. He is constantly frustrated in the investigations he attempts by the fact that staff have left the local authority and refuse to appear. If the situation is something as insubstantial as that in the Isle of Wight, it is likely to be far more substantial in an allegation brought or an inspection undertaken in Northern Ireland.

Mr. Browne: The hon. Gentleman is unduly sensitive. His were not flights of fancy, but interesting issues and I was congratulating him on his ability to use his imagination in debate to figure circumstances that could have basis in reality. I understand his analogy, but we cannot cover every eventuality in the Bill. If he knows of a specific eventuality that would not be covered except by statutory provision, I shall be happen to debate it in the context of an amendment. Statute law does not seek to cover every eventuality,

Column Number: 257

but to create a framework in which a statutory authority works, and powers to allow that authority to carry out inspections to the necessary extent. That is what the clause seeks to do.

Mr. Andrew Turner: I appreciate the Minister's words, and accept the explanation that, in his view, there is sufficient power.

Question put and agreed to.

Clause 48 ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.

Clause 50

Law Commission

Lady Hermon: I beg to move amendment No. 198, in page 28, line 35, after 'Court', insert

    'either in Northern Ireland, England and Wales or Scotland.'.

The law in Northern Ireland is fragmented with old Acts from the time of Stormont, Orders in Council from the awful time of direct rule, and now Acts of the new Northern Ireland Assembly. I am delighted that we are to have a law commission and I welcome that.

However, when the criminal justice review team made a comparative analysis of law commissions in other jurisdictions, including the Republic of Ireland, England and Wales, and elsewhere, it came to the interesting conclusion in paragraph 14.55 that

Column Number: 258

    ''From experience of law reform bodies and other jurisdictions, it is clear that the involvement of at least one person engaged full time on law reform quickly enhances the productivity and credibility of the organisation. However, in the context of a jurisdiction the size of Northern Ireland, we believe that it would be sensible to start with an entirely part-time membership.''

Despite that conclusion by the review team, the Bill does not suggest that we are starting with an entirely part-time membership. On the contrary, under clause 50 the Law Commission will have five members and my understanding is that they will be full-time members.

The Law Commission for the Republic of Ireland, which is a larger jurisdiction, has five full-time members. The Law Commission for England and Wales, which is a much larger jurisdiction, has only five members. It is clear from clause 50(3) that the chairman of the Northern Ireland Law Commission must be a High Court judge and I remind hon. Members that in Northern Ireland we have only seven judges in the High Court.

Mr. Browne: Will the hon. Lady give way?

The Chairman: Order. I am sorry to interrupt the Minister and the hon. Lady. I am required now to adjourn the Committee, but the hon. Lady will have the Floor when we return this afternoon and the Minister may then intervene.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

        Adjourned till this day at half-past Two o'clock.

Column Number: 259

The following Members attended the Committee:
Conway, Mr. Derek (Chairman)
Atherton, Ms
Barnes, Mr.
Blunt, Mr.
Browne, Mr.
Calton, Mrs.
Campbell, Mr. Gregory
Clarke, Mr. Tony
Dobbin, Jim
Francois, Mr.
Hall, Patrick

Column Number: 260

Hayes, Mr.
Hermon, Lady
Heyes, Mr.
Kilfoyle, Mr.
McIsaac, Shona
Mallon, Mr.
Mole, Chris
Öpik, Lembit
Stringer, Mr.
Turner, Mr. Andrew
Tynan, Mr.

Previous Contents

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2002
Prepared 7 February 2002