Northern Ireland (Offences) Bill |
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Lembit Öpik: We are debating process. The points have been pretty well made, but let me say this to the Minister, and he should reflect on it. In the eight and a half years during which I have been representing my party on Northern Ireland issues, the Government have, by acting in bad faith on a number of occasions, persistently eroded the good will that has been extended to them by Opposition parties. My concern is that if we do not make clear in the record now the strength of feeling in Committee, there is a danger that that could influence the interpretation of that strength of feeling when the record is analysed in another place. Mr. Russell Brown (Dumfries and Galloway) (Lab): The hon. Gentleman and I have been in the House of Commons for the same length of time, some eight and a half years, so we both know that it is not uncommon in Committee for a Minister to meet a point by saying that further consideration will be given to an issue if the amendment is withdrawn. I have the greatest respect for the hon. Gentleman, but there is no need to grandstand on this issue. The point has been well made and well recorded by Hansard, and we should move on. Lembit Öpik: I am sorry that the hon. Gentleman feels that I am grandstanding, but as he obviously knows and as other hon. Members have pointed out, the issue that we are discussing is one of the core issues in the debate. If I feel strongly about it, it is because I am frustrated by what I believe to be an illusory threat by the Minister that the matter may not be debated on Report. I have served on many Committees, as has the hon. Gentleman—I think that all of us are fairly
I want to believe that on this occasion the Minister will come up with something that satisfies our needs and, more importantly, the victims’ need to see the defendants in court. Having said that, given everything else that the Minister and the Secretary of State for Northern Ireland and, by implication, the Prime Minister have said about the need for this in absentia element in the Bill, I am at a loss to understand how we can be optimistic that he will introduce something that will satisfy the requirements of the hon. Members for South Derbyshire (Mr. Todd) and for Ogmore, the right hon. Member for Torfaen, the hon. Member for Hackney, South and Shoreditch and just about every other person who is sitting in this room, whether or not they have expressed an opinion. 10 pmI am concerned about the question of voting. We must not dwell too long on the process, but I ask the Minister to understand that I do not want to be sitting here in the middle of the night any more than anybody else does. However, I am desperately concerned about letting down the people to whom I give the greatest consideration—the victims—by playing into the hands of the Government, who could then abuse the fact that we did not vote at this stage. I respect the Minister and what he seeks to do, but on the basis of recent experience of the Government I do not have much faith that they will produce something with which we are satisfied. I am in somewhat of a dilemma, but I still believe, on balance, that I ought to press amendment No. 70 to a vote, bearing in mind that it changes only one word. Instead of stating that there is “no obligation” on a defendant to appear before the Special Tribunal, clause 8 would state that there is “an obligation” to appear. If the Minister is not willing to accept even that change, one has to wonder how dramatic his offer on Report will be. The Chairman: Order. Before the Minister responds, let me say that if the hon. Gentleman wishes to propose amendment No. 70, I would be happy that he should do so at the appropriate time, but it is not now. Mr. Hanson: The hon. Member for Montgomeryshire is entirely the owner of his own conscience and his own vote. He can do what he wishes. We have had the best part of 12 or 15 hours in Committee during the past week and a half. Members have known when I have fiercely resisted amendments and invited my hon. Friends to vote against them. I have suggested that I shall reflect on the meaning of the amendment of the hon. Member for Belfast, East. I hope that hon. Members will reflect on what I have said and on my approach to the amendment in the light of the victims’ comments that we heard about on
Mr. Robinson: Before I deal with my judgment about pressing or withdrawing the amendment, it might be proper to point out that it would have been easier to make that decision had the Minister not commenced with a robust defence of the legislation. He indicated that it had been drafted as it now stands for a purpose—clearly, it was. He said that the intention was to prevent the creation of more victims such as there had been in the past. There then followed an intervention by the hon. Member for Foyle, who wanted to know if there was a threat that there would be more victims if the measure was not approved in its present form. The Minister’s response was that there was no such threat, which seemed to remove the argument that the legislation was intended to prevent the creation of more victims in the future. However, the nature of this Committee and the mathematics of the House is such that, given the Minister’s assurances, the only thing advanced by pressing the amendment to a Division would be that somewhere, tucked away in the record of this debate, would be the result of a Division. I have been in the House long enough—longer than the years mentioned earlier combined—and I know that if the amendment is pressed to a Division, if we are not satisfied with the Minister, his hon. Friends will be satisfied and I know what the likely outcome of that Division would be. However, even without the Division, there will be a clear record of the dissatisfaction of the Minister’s hon. Friends, and that will rest in the record of the debate. The record of a vote would be likely to convince people in another place, but I think it just as likely that this debate, enhanced as it has been by the contribution made by the hon. Member for Montgomeryshire, will do so too. In exercising my judgment, I have to recognise that we shall simply lose the vote if we press the amendment to a Division. That being the case, logic would have me withdraw the amendment. However, I do so making two points that it is worth the Minister bearing in mind. My withdrawal of the amendment does not allow him to escape the issue, because new clauses 13 and 18, on which there will no doubt be Divisions on Thursday, deal with exactly the same issue. Cooler counsels might have allowed the Minister the time between now and Thursday to convince the supporter of those new clauses of his genuine intent and the direction of his consultations. Some of us are a little suspicious that the Government cannot agree to any amendments today because they do not control what an amendment might be. They have bought into a deal with Sinn Fein and need Sinn Fein approval before they move from it. The very least that each Committee member can expect from the Minister, to whom I am happy to give way if he wants to give us the assurance, is that he will show the same commitment to fulfilling the undertaking that he has given to this Committee that the Government have shown to Sinn Fein. It seems that he is ready to do battle to keep the Government’s word to Sinn Fein in respect of that
Mr. Hanson: I am in danger of repeating myself, but I say again that I give the Committee an undertaking that between now and Report in the House of Commons the Government will reflect on what changes could be made to this aspect of the scheme. That is the undertaking that I give the hon. Gentleman. I appreciate his comments, because we have an opportunity to reflect on them, both in and outside the Committee. I hope that he will be satisfied with the outcome in due course. Mr. Robinson: It is the outcome that concerns me. I am not going to involve myself in the party politics of trying to score points on this issue. The Bill will never be acceptable to me, but I said at the beginning that it could be made less unacceptable if certain changes were made. On that basis, I am prepared to listen to what the Minister says on Report, and I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Motion made, and Question put, That the clause stand part of the Bill:— The Committee divided: Ayes 16, Noes 13. [Division No. 30] AYES Anderson, Mr. DavidBanks, Gordon Brown, Mr. Russell Coaker, Mr. Vernon Cooper, Rosie Foster, Mr. Michael (Worcester) Hanson, Mr. David Harris, Mr. Tom Hendrick, Mr. Mark Hillier, Meg Irranca-Davies, Huw McDonagh, Siobhain Moon, Mrs. Madeleine Slaughter, Mr. Andrew Todd, Mr. Mark Waltho, Lynda
NOES Bellingham, Mr. HenryBurt, Lorely Donaldson, Mr. Jeffrey M. Durkan, Mark Ellwood, Mr. Tobias Hermon, Lady Hunt, Mr. Jeremy McDonnell, Dr Alasdair Öpik, Lembit Robertson, Mr. Laurence Robinson, Mr. Peter Wallace, Mr. Ben Wilson, Sammy Question accordingly agreed to. Clause 6 ordered to stand part of the Bill. Clause 7 Exemption from arrest etc. Mr. Donaldson: I beg to move amendment No. 19, in clause 7, page 5, line 20, at end insert
Column Number: 282 The Chairman: With this it will be convenient to discuss the following amendments: No. 20, in clause 7, page 5, line 21, leave out paragraph (b). No. 21, in clause 7, page 5, line 22, leave out paragraph (c). No. 22, in clause 7, page 5, line 23, leave out paragraph (d). No. 23, in clause 7, page 5, line 24, leave out subsection (3). Mr. Donaldson: The amendment is critical—not that many of the other amendments are not equally critical—to maintaining any credibility in the process. Under clause 3, when an application is made for a certificate, a senior member of the Police Service of Northern Ireland is required to state in writing
the Bill applies. That provision places an obligation on the police not only to have reasonable grounds for suspecting, but subsequently to follow through on the issuing of a certificate of eligibility with an investigation into the matters that are to be the subject of the tribunal hearing. In clause 7, however, serious limitations are applied to the powers that the police can exercise during the course of their investigation into the criminal or terrorist activity in which it is believed that the applicant has been involved. Once a certificate of eligibility has been issued, none of the following powers may be exercised in respect of an applicant with a certified offence:
Each power is a crucial to a police investigation, and to the capacity of the police to investigate rigorously an offence that they believe a perpetrator may have committed. To remove those powers would significantly undermine the capacity of the police to achieve convictions under a process that passes for justice. That is why we tabled our amendments. 10.15 pmIn amendment No. 19, we ask the Committee to add to subsection (2)(a), so that the power of arrest or detention would remain in place for at least 28 days after the police had begun their investigation into an offence that they had reasonable grounds to believe the perpetrator may have committed. We believe that the police ought to have that power, because arrest and detention affords them the opportunity to question the suspect. We know that the questioning process is a key element in any police investigation. We chose 28 days because that is precisely the time that has been agreed by the House in respect of the Terrorism Bill for the detention of terrorist suspects. In the interests of retaining a degree of continuity and bringing, at least, some reality to the process, we felt that 28 days was appropriate. In amendments Nos. 20, 21 and 22, we propose that the power of entry or search, the power to remand in custody or on bail, and the power to take fingerprints
In a sense, the system is designed to fail to convict those believed to be involved in offences. The police have limited investigatory powers under the Bill, so they will be seriously hampered in pursuing their investigations of those offences. The Bill not only creates a situation whereby people will not serve a day in prison for their offences, but it will be virtually impossible for the police to secure a conviction. In the absence of conviction, no remedy will be available through the revocation of the licence in the event of a later breach of that licence. We therefore propose that the power of arrest is limited to 28 days and that the other exemptions are deleted. The amendments would, at least, allow a proper investigation to be held and a proper charge or charges to be brought against the perpetrator. Subsection (3) provides:
In amendment No. 23, we propose deleting that subsection. The inability to arrest or, presumably, question a suspect—or in this case, someone believed to be guilty of an offence—will mean that inferences that might be drawn from silence, for example, will not be allowed. That means that a defendant under the scheme will not be in an equal position to a defendant who can have his silence at interview used against him. Because the police cannot arrest and detain perpetrators in these cases, they will lose the ability to interrogate a defendant who is brought in, questioned and then remains silent. That means that the silence of a defendant cannot be raised in court and used to disadvantage him in a trial under the scheme. The Bill, as drafted, places the police at a significant disadvantage. It not only takes massive shortcuts through the judicial process and creates all kinds of new precedents for the British legal system, but it seriously undermines the capacity of the police to investigate crime. That is relevant to cases that may arise in the short term. Also, because the Government have not applied any time limit to the legislation—we touched on that point earlier—if the police, in the cold cases review that they are currently conducting, have reasonable grounds to suspect that someone is guilty of a serious crime, their current powers to arrest and detain an individual and take fingerprints and so on will be removed from them. What about the victims who were promised that, in the cold cases review, no stone would be left unturned to find out the truth and to bring to justice those responsible for the perpetration of terrible crimes? The police will lose many of the powers that would have enabled them to achieve that objective. We believe that
Lorely Burt: The Liberal Democrats support amendments Nos. 20 to 22, which, by removing subsection (2)(b), (c) and (d), would allow entry or search to take place and would also allow for remand in custody or on bail and for fingerprints or samples to be taken. All those police powers are very important, as they help the police to build a case against a person that could result in a successful prosecution. Amendment No. 23 is important, too. By virtue of subsection (3), a person availing themselves of the scheme could not be questioned. How on earth are the police to build a case, given the provisions of the clause? We have rather more reservations about amendment No. 19, which attempts to tie in the provisions of the Bill with the latest Terrorism Bill, by making the clause say that a person cannot be arrested or detained
My reading of that is that one can arrest somebody for up to 28 days, and we are a bit troubled by that amendment. We look forward to listening to what the Minister, and possibly other Members, have to say about that. Lady Hermon: I have just a few comments to add to those of the hon. Members for Lagan Valley (Mr. Donaldson) and for Solihull. The hon. Member for Lagan Valley is quite right to say that we are talking about exceptional powers. As for the special prosecutor, we really need to think of the Bill as a complete entity; it is difficult when we consider clauses in this way, because we have not looked to later clauses, in which the special prosecutor is mentioned, and clause 8, which refers to the special tribunal. As I interpret clause 7, it means that when a person has been issued with a certificate of eligibility, it is then as if there is a stop. There cannot be any further police investigation, arrest, detention, entry or search—there is no indication of which premises would be entered and searched; it could mean those of friends or accomplices. The clause is so general, and its wording is not appropriate. It will make it difficult for the special prosecutor who will be appointed to take the case forward before the special tribunal that we will come to in clause 8. Clause 7 prevents further evidence, further searches, further samplings, further DNA and further details being taken in order to bring a successful conviction against the person who may hold a certificate of eligibility but has not been convicted of anything unless they are convicted under this extraordinary scheme by the special tribunal. The wording makes it almost impossible for a special prosecutor to be successful before a special tribunal in gleaning any additional evidence through searches, samples or whatever to make sure that the individual is convicted
Mr. Hunt: Does the hon. Lady agree that the existence of the subsections that restrict police powers to conduct an investigation destroy a central plank in the Government’s argument that the scheme is not an amnesty because the people taking part will have to be subjected to full legal processes and will end up with a conviction? If we are hampering the ability of the police to undertake a proper, thorough investigation, that means that this is an amnesty in all but name. Lady Hermon: Absolutely. I appreciate the intervention, which is spot on. The Minister is duty bound to explain to the Committee the justification for including a brake power on any further investigation to assist the special prosecutor in securing a conviction of those who are waving about their certificates of eligibility. I cannot understand why the Government have given such a general opt-out clause to bring any further evidence before the special tribunal. It behoves the Minister to explain the wording, generality and generosity of the clause. Mark Durkan: As the hon. Member for Solihull has said, the addition of the words in amendment No. 19, which would allow the provision of power of arrest or detention for more than 28 days, would cause us particular difficulty. We do not agree that there should be a power of detention or arrest for up to 28 days anyway, and although we voted for that amendment in another Bill, the Terrorism Bill, that was to ensure that we did not face a period of three months. That other Bill will take its course and we will have a vote on that again. I am with the Liberal Democrats in that I see difficulties with amendment No. 19. However, we could support amendments Nos. 20 and 21. The clause, as drafted, gives us great difficulty, which is why we are strongly sympathetic to the need to amend it. The fact is, to go back to our earlier discussions although not completely, that the clause ensures that once someone has a certificate, they are immune from any serious investigation. The evidence that could be brought would not be of the quality that the police and prosecution service would try to bring to a real court in a real prosecution. It means that this so-called prosecution system in this so-called court has protections and privileges that are so bespoke that it is very hard to take seriously the argument that we are not looking at an amnesty or amnesty’s close cousin. 10.30 amThe certificate of eligibility will mean that the police cannot pursue any serious evidence to put in front of the special tribunal, and the chances are that there will be a pretty high rate of acquittals for that reason. I understand that many senior police officers expect very few convictions, but the Bill has been sold on the basis that it will give people the satisfaction that those who would otherwise be walking round without convictions might be convicted. Column Number: 286 The Secretary of State told us on a radio programme that people would be brought before a proper court, but we know that they will not. First, they do not have to be in the court, and secondly, we are not talking about a prosecution in the serious sense—not that the events of last week give us great confidence regarding proper prosecutions, when the Director of Public Prosecutions can suddenly withdraw charges at an unlisted hearing, supposedly in the public interest. We have had radio silence from the Government, Ministers and the Attorney-General ever since. There is not a lot of assurance in that, and it just adds to the cynicism with which many regard this tightly designed scheme, which is aimed at ensuring that very limited information will be put before the special tribunal. It is wrong for the Government to provide that all the standard investigatory powers of the police automatically stop once there is a certificate. I say that because, touching on a point made by other hon. Members, the Government responded in a positive and genuine way to a gross anomaly hanging over from the peace process. Many people who have suffered from unresolved crimes or lost loved ones in murders that went undetected or unprosecuted believed that they were left hanging, and that their history and need for truth was being washed away. The historic inquiries team was established so that issues pursued through the police ombudsman’s office in relation to the quality of past investigations—or the lack of them—could be dealt with if the ombudsman found that police investigations had been inadequate. The Government, through the good offices of the then Secretary of State, the right hon. Member for Torfaen, moved to deal with the issue and committed significant moneys because they were needed. That was meant to be a confidence-building measure for victims; the historic inquiries team was to be resourced so that after the police ombudsman was given powers to look at past cases, it would be equipped to re-open those past cases, but the reality is that the provisions of the Bill—precisely and deliberately, I believe—undermine the possibility of the team getting to the truth and delivering justice. Mr. Donaldson: Does the hon. Gentleman agree that the provisions will not only extend to cases that arise from the historic inquiries team, but to cases that are presently the subject of public inquiries in Northern Ireland? Is it not remarkable that the republican movement are pressing for measures that will mean that if members of the Ulster Defence Association or another loyalist organisation are arrested in connection with the murder of Pat Finucane or Rosemary Nelson, the same restrictions will apply to the police? Mark Durkan: The hon. Gentleman is right, because the provision freezes the police’s powers and duty to investigate in respect of any offence that comes under the provisions of the Bill. That includes any offence carried out not just by republican paramilitaries but by loyalist paramilitaries and people acting on behalf of the state to one degree or another. That frustrates the prospect of justice, and not only for families who have
Nobody is suggesting that some people, simply because they have certificates of eligibility, should be subject to disproportionate investigation by the police. The fact remains, however, that the police must be free to investigate where necessary. That is why we would prefer to see clause 7 deleted from the Bill, and why we shall support some of the amendments. We shall not, however, support amendment No. 19. |
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