Joint Committee On Human Rights

Joint Committee On Human Rights Fifth Report

1 Justice and Security (Northern Ireland) Bill

Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

27 November 2006

HC Bill 10

None

Background

1.1 This is a Government Bill introduced into the House of Commons on 27 November 2006. The Rt Hon Peter Hain MP, Secretary of State for Northern Ireland, has made a statement of compatibility under s.19(1)(a) of the Human Rights Act 1998. The Explanatory Notes accompanying this Bill set out the Government's view of the Bill's compatibility with the Convention rights at paras 152-181. The Bill completed its Committee stage on 25 January 2007 and is due to reach Report stage on 6 February 2007.

1.2 On our initial consideration of the Bill we thought that it raised a number of significant human rights issues and we therefore wrote to the Minister on 19 December 2006 asking for a fuller explanation of the Government's view that the proposals in the Bill are compatible with human rights in certain respects.[1] We received the Minister's reply in a letter dated 22 January 2007 from Paul Goggins MP, Parliamentary Under-Secretary of State for Northern Ireland.[2] We are grateful to the Minister for his detailed response.

1.3 We also considered that the Bill's provisions relating to the powers of the Northern Ireland Human Rights Commission ("the NIHRC") are very significant in their potential effect on the capacity of the NIHRC to further the promotion and protection of human rights in Northern Ireland, and on its status as a national human rights institution. These are matters in which this Committee has a longstanding interest[3] and which we recently discussed with the NIHRC during our visit to Belfast in November 2006. We therefore wrote to the Chief Commissioner of the NIHRC asking it to provide us with a memorandum of evidence setting out the NIHRC's views of these provisions in the Bill, in particular its views of the likely effects of the various restrictions on the proposed new powers and whether the NIHRC would wish to see included in the Bill any of the additional powers for the NIHRC which it has recommended in the past.[4] We also indicated that we would welcome any comments the NIHRC might have on the human rights implications of any other provisions in the Bill. We received a response setting out the Commission's views on the human rights issues raised by the Bill[5] and appending a copy of a Parliamentary briefing on the clauses of the Bill concerning the powers of the Commission prepared for the purposes of the Public Bill Committee considering the Bill. We are grateful to the NIHRC for its detailed responses to our questions.

The effect of the Bill

1.4 The main purpose of the Bill is to introduce measures which the Government says are necessary to deliver its commitment to security normalisation in Northern Ireland. Part VII of the Terrorism Act 2000 contains counter-terrorism provisions particular to Northern Ireland, including provision for so-called Diplock courts, whereby certain scheduled offences are tried without a jury. The Government proposes to repeal Part VII in July 2007 if security conditions permit. This Bill makes provision in anticipation of that repeal. It introduces reforms to the jury system to reduce the risk of jury intimidation and partisan juries and introduces a new system of non-jury trial for use in exceptional cases. It extends the powers of the Northern Ireland Human Rights Commission and provides certain additional powers for the police and the military. It also provides for the permanent regulation of the private security industry in Northern Ireland.

1.5 In our view the Bill raises three groups of significant human rights issues, concerning

(1) Juries and non-jury trials;

(2) the powers of the Northern Ireland Human Rights Commission; and

(3) additional powers for the police and the Army.

(1) Juries and non-jury trials

1.6 The Bill's provisions reforming the jury system in Northern Ireland raise a number of significant human rights issues.

(A) JUSTIFICATION FOR NEW SYSTEM OF NON-JURY TRIAL

1.7 The Bill provides for a new system of non-jury trial to replace the Diplock courts.[6] Under the current law in Northern Ireland, the presumption is that trials for scheduled offences will be without a jury, subject to the Attorney General exercising his discretion to direct that a case is to be tried before a jury. Under the Bill the position would be reversed: the presumption would be for jury trial, subject to the power of the DPP for Northern Ireland to issue a certificate that trial is to be conducted without a jury. The power to issue such a certificate is exercisable if the DPP suspects that any one of a number of conditions is met and is satisfied that because of this there is a risk that there might not be a fair trial if it were to be conducted with a jury.[7]

1.8 The Explanatory Notes to the Bill correctly state that the Bill's provision for non-jury trial does not infringe the right to a fair trial in Article 6(1) ECHR, because that right does not confer the right to trial by jury: both trial by jury and trial by judge alone provide valid mechanisms for the determination of a criminal charge by an independent and impartial tribunal.[8] However, the Bill's provision for non-jury trial still requires justification, for two reasons. First, the common law recognises a right to jury trial, restrictions on which are possible in principle but require justification.[9] Second, a difference of treatment within the scope of application of a Convention right requires justification under Article 14 ECHR even if the difference of treatment does not itself amount to a breach of the relevant Convention right.

1.9 The main justification for the introduction and continuation of the Diplock courts in Northern Ireland was to prevent jury intimidation. The Bill contains other measures designed to reduce the risk of juror intimidation (considered below). However, the Explanatory Notes state that, even with these proposed jury reforms, "it is not yet possible for Northern Ireland to operate entirely without the fall-back of some special arrangements for a small number of exceptional cases."[10] The new system of non-jury trial is said to be "necessary to ensure that trials continue to be fair in Northern Ireland and that the quality of justice remains high."

1.10 The Explanatory Notes do not, however, contain any more detailed justification for the proposed new system of non-jury trials. We decided that we wanted to reach our own view as to whether there is sufficient justification for this provision in the Bill. We therefore asked the Government for a more detailed justification of the need for the new power, including up to date evidence of the incidence of juror intimidation in Northern Ireland compared to the rest of the UK, and an explanation of why the other measures in the Bill to reduce the risk of jury intimidation are not considered by the Government to be adequate.

1.11 The Government says that it is difficult to gain a true picture of the scale of jury tampering and perverse verdicts in Northern Ireland given the restrictions on enquiring into what goes on inside the jury room. The police only have intelligence of eleven cases where jury tampering has been reported since 1999, but seven of these were between 2004 and 2006 and seven of the eleven involved people with paramilitary connections. The Minister also says that he is aware of many more anecdotal examples where there appears to have been intimidation in a case and one recent case where a trial collapsed as a result of jury tampering. The Government mainly relies on information about the prevalence of intimidation more generally in Northern Ireland, including the Seventh Report of the Independent Monitoring Commission ("the IMC") in October 2005, the Northern Ireland Crime Survey of 2003/04 and the fact that the Police Service of Northern Ireland ("the PSNI") recorded 74 instances of witness intimidation in 2004/05 (compared to 29 in 2001/02).

1.12 The Government argues that intimidation is therefore still a significant problem in Northern Ireland, despite the recent improvements in the security situation, and poses a significant risk to the ability of the criminal justice system to deliver fair trials in certain cases. It says that there is also a perception that intimidation of jurors occurs. Although many of the juror protection measures in the Bill should reduce the scope for jurors to be intimidated and so help also to reduce the perception or fear of intimidation, these measures do not prevent a juror from being recognised by the defendant or his associates. The security assessment from PSNI and the IMC is that in the context of paramilitary control of communities, intimidation and fear of intimidation is expected to continue for the time being. Although the Government acknowledges that perverse verdicts and juror intimidation are only likely to happen in a minority of cases, it is significant enough to pose a risk to the safety of jurors, and the Government is therefore under an obligation to address it.

1.13 The NIHRC acknowledges that the risks of perverse verdicts and intimidation of jurors need to be dealt with in order to move to a presumption of trial by jury. However, it argues that any departure from trial by jury should require to be justified by demonstrating the presence of exceptional circumstances that must be clearly legislated for, so as to ensure that non-jury trials are indeed the exception rather than the norm. Although it welcomes the fact that the Bill includes some of the recommendations previously made by the NIHRC to address the risk of jury intimidation, such as restrictions on the disclosure of juror information, it considers that the current situation in Northern Ireland does not justify the adoption of provisions relating to non-jury trials which are not deemed acceptable in England and Wales. In the NIHRC's view, provided certain safeguards are put in place to deal with the risks of juror intimidation and perverse verdicts, it is possible to abandon the Diplock Court system without further delay.

1.14 We acknowledge that the Government is under a positive obligation to ensure the safety and security of jurors. It is also under a positive obligation to guarantee the right of everyone charged with a criminal offence to receive a fair trial. We therefore accept in principle the need for safeguards to protect jurors against intimidation and for provision for trial without a jury where there is a danger of jury tampering or of perverse verdicts.

1.15 Such provision already exists for England and Wales in s. 44 of the Criminal Justice Act 2003. It provides that the prosecution may apply to a judge of the Crown Court for an order that the trial be conducted without a jury and that the judge must make such an order if satisfied that both of the following two conditions are satisfied:

(1) that there is evidence of a real and present danger that jury tampering would take place; and

(2) that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.

1.16 We note that the Government's response to our question about up to date evidence of the incidence of juror intimidation in Northern Ireland did not provide any information about the incidence of such intimidation in Great Britain, as requested. Actual evidence of juror intimidation in Northern Ireland appears to be relatively scarce, and we do not consider the Minister's account of anecdotal evidence to be a satisfactory basis on which to legislate. We accept, however, that there is evidence of a level of intimidation in local communities which may be unusually high, compared to Great Britain, due to the legacy of the paramilitary conflict.

1.17 We welcome the Bill's reinstatement of a presumption in favour of jury trial in Northern Ireland. In our view the necessity for any departures from that presumption must be shown to be clearly demonstrated and the exceptions drawn as narrowly as possible. On balance, we accept in principle that there may need to be departures from the presumption for reasons which are specific to the circumstances of Northern Ireland, which may be capable of justifying different provision from that already contained in s. 44 of the Criminal Justice Act 2003 for England and Wales. However, we would expect these departures to be very tightly defined and demonstrably related to the general problem of intimidation and sectarianism in Northern Ireland.

1.18 It is against this background that we turn to consider the detail of the different provision that the Bill makes for Northern Ireland.

(B) WIDTH OF DPP'S POWER TO CERTIFY

1.19 The Bill gives the DPP for Northern Ireland the power to issue a certificate that a trial on indictment is to be conducted without a jury if he suspects that any one of four conditions are satisfied and that there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.[11] The four conditions are:

(1) that the defendant is, or has at any time been, a member of a proscribed organisation, or is an associate of such a person;

(2) that the offence was committed on behalf of a proscribed organisation, or a proscribed organisation was otherwise involved with, or assisted in, the carrying out of the offence;

(3) that an attempt has been made to prejudice the investigation or prosecution of the offence on behalf of a proscribed organisation or with the involvement or assistance of a proscribed organisation; and

(4) that the offence was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group towards another person or group.

1.20 "Associate" for the purposes of the first condition is defined to include a "friend" or a "relative",[12] as well as spouses or former spouses, civil partners or former civil partners, and co-habiting partners or former partners. A proscribed organisation is defined to include an organisation which was proscribed at the time of a person's membership of the organisation. The power to certify is therefore extremely wide. This raises questions of compatibility with the right to freedom of association in Article 11 ECHR, the right to respect for private and family life in Article 8 ECHR, and the right not to be discriminated against in the enjoyment of Convention rights in Article 14 ECHR. We therefore asked the Government for a more detailed justification for applying the power to certify to people who are associates of members or former members of proscribed organisations.

1.21 The Government response largely relies on its security assessment. It says that the security assessment that the Government has received is that members of paramilitary groups do attempt to intimidate witnesses and jurors in cases where close friends or family members are the defendant in order to secure acquittals, and that former members of paramilitary groups also continue to intimidate their communities and attempt to use this to secure acquittals. The Government also points out that a connection with a member or former member of a paramilitary group would not be enough on its own to justify a decision for non-jury trial in a case: the DPP would also need to be satisfied of the risk thereby posed to the administration of justice.

1.22 In the NIHRC's view, the first condition is extremely problematic. The inclusion of "friend", which is very subjective, and "relative", which is very open-ended, within the meaning of "associate" makes the condition extremely broad in scope and so gives the DPP an extremely broad power to prevent a jury trial. The Commission also considers that there is a risk of a breach of Article 14 in conjunction with Article 6(1) ECHR, insofar as the Bill makes it possible for a person to be denied a trial by jury on the basis of having been born into a family one of whose members had at some time broken a particular law.

1.23 We remain concerned about the breadth of the first condition. We would accept the possible need for a departure from the presumption of jury trial where the defendant is or has at any time been a member of a proscribed organisation, but we are concerned about the extension of this to "associates" of such people. We agree with NIHRC that "friend" is an extremely vague and subjective term and potentially very broad in scope and that "relative" is also a very open-ended concept. As the clause is currently drafted a person may be deprived of a jury trial, for example, if the DPP suspects that the person is a friend or relative of a former member of a formerly proscribed organisation. We accept that the DPP must also be satisfied that this poses a risk to a fair trial, and that this does narrow the scope of the power to some extent.[13] Nevertheless, we are concerned that the breadth of the first condition gives rise to a risk that the power to certify will be used arbitrarily, in a way which is incompatible with the right to freedom of association and the right to respect for private life, and potentially discriminates against the friends and relatives of members or former members of proscribed or formerly proscribed organisations. We recommend that the clause be amended to remove the reference to "associates".

1.24 We also asked the Government what safeguards there would be against this extremely broad power being exercised arbitrarily.

1.25 The Government in its response states that the decision is one of mode of trial only, decisions which the DPP already takes when deciding whether certain offences should be tried summarily or on indictment, and that the defendant will still be able to make representations to the DPP about the mode of trial decision. There will be no special rules of evidence or sentencing in non-jury trials, and the judge must give a reasoned verdict when convicting. Appeals against conviction or sentence will be possible without leave. The Government is satisfied that these safeguards provide adequate protection to the defendant and ensure that they will suffer no detriment from being tried without a jury.

1.26 The NIHRC point out the lack of any substantial safeguards against misuse of the power. First, whereas the current provision for England and Wales in s. 44 CJA 2003 requires the prosecution to apply to a judge of the Crown Court for an order that the trial be conducted without a jury, under the Bill the decision rests with the DPP. Second, the threshold which the DPP must meet is extremely low: he need merely "suspect" that any of the stipulated conditions is met, and be "satisfied" that there is therefore "a risk" that the administration of justice might be impaired. This is considerably lower than the requirement in s. 44 CJA 2003 that there must be evidence of a real and present danger that jury tampering would take place and that the likelihood of such tampering is so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. Third, there is nothing in the Bill which makes it a precondition of the issue of a certificate for non-jury trial that the DPP first be satisfied that other steps, such as police protection, cannot be taken to prevent jury tampering. Fourth and finally, in the Bill as drafted there is no or very little in the way of subsequent judicial control (see further below).

1.27 We are not persuaded that the Bill contains sufficient safeguards against the arbitrary exercise of the DPP's very wide power to certify that trial should be without a jury. We recommend that the Bill be amended to provide additional safeguards, for example by raising the threshold that the DPP is required to meet before certifying, by requiring that the DPP be satisfied that other less restrictive measures will not prevent jury tampering, and by providing for judicial control.

1.28 The Bill purports to oust the jurisdiction of the ordinary courts to entertain challenges to the DPP's decision to issue a certificate, including challenges to the legality of that decision.[14] It also purports to subject s. 7 of the Human Rights Act (by which proceedings can be brought claiming that a public authority has infringed a Convention right) to the ouster clause.[15]

1.29 The Explanatory Notes to the Bill state that this clause does not oust the jurisdiction of the courts altogether, but rather restricts the grounds on which the issue of a certificate by the DPP may be challenged.[16] Challenge would still be possible on grounds of dishonesty or bad faith. The notes also claim that such a limitation on the grounds on which a certificate can be challenged is not incompatible with the right of access to a court in Article 6(1) ECHR because the DPP's decision to issue a certificate does not amount to the determination of a civil right.

1.30 This provision raises the very significant issue of preclusion or restriction of the right of access to court, recognised as fundamental both by the common law and in the scheme of the ECHR by the European Court of Human Rights. Although on its face the clause permits challenge on grounds of bad faith or dishonesty, it expressly precludes challenge on grounds of lack of jurisdiction or error of law (in other words, on grounds of illegality). Clause 7(1) of the Bill states baldly that "No court may entertain proceedings for questioning (whether by way of judicial review or otherwise) any decision of the DPP for Northern Ireland in relation to the issue of a certificate under section 1" and clause 7(2) states explicitly that this prevents a court from hearing any challenge on grounds of lack of jurisdiction or error of law. In practical terms, this means, for example, that if the DPP issued a certificate on the basis that a person was a member of an organisation which in fact had never been proscribed, it would be impossible to challenge that decision in the courts.

1.31 We therefore wrote to the Minister asking for the Government's justification for proposing such a wide statutory ouster of the courts' jurisdiction to review the legality of a delegated decision, and why in the Government's view it is compatible with the rule of law to legislate to prevent any court from considering whether a delegated decision-maker has acted without jurisdiction or on the basis of an error of law.

1.32 The Government's explanation is that the Bill's restrictions on challenge to the DPP's decision are intended to put on a statutory footing the current case-law concerning challenges to the Attorney General's decision whether or not to deschedule a case (that is, approve it as being appropriate for trial by jury) under the current legal framework of the Diplock courts. The case which the Government has in mind is a decision of the High Court of Northern Ireland called Shuker, in which a challenge was made to the decision of the Attorney General not to exercise his power to certify for jury trial the offences with which the defendants had been charged.[17] According to the Government, "the court ruled that the procedure for determining mode of trial of the accused is not a process suitable for the full panoply of judicial review. Judicial review would be possible, however, on grounds such as bad faith, dishonesty, or other exceptional circumstances." In his letter responding to our question, the Minister says that he is not seeking to exclude judicial review altogether, but is merely intending to put the case-law in Shuker on a statutory footing and to allow limited challenges to the issue of a certificate for non-jury trial by the DPP. He also argues that to allow every decision of the DPP to be challenged would result in considerable delay, and may lead to cases that are not safe to be tried before a jury having to be so tried, because the intelligence on which the DPP's decision is based could not be disclosed. In any event, the Minister argues, the restriction should be seen in the context of the nature of the DPP's decision, which only concerns the mode of trial.

1.33 We welcome the Minister's undertaking at Committee stage to reflect further on the wording of the clause before Report stage. However, we note that the Minister also states in his letter to us that he "remains committed to the principle behind clause 7". We therefore make three observations on the justifications offered by the Government, in the hope that these may still inform debate on any proposed amendment to the clause.

1.34 First, a careful reading of the decision of the High Court of Northern Ireland in the Shuker case reveals that the ouster clause in clause 7 of the Bill is identical in effect to the argument made by the Attorney General and rejected by the court in that case. It was argued by the Attorney General that his decision was non-justiciable, that is, immune from judicial review altogether except on grounds of bad faith, because the decision-making process entailed the application of high policy and was frequently based on sensitive material that could not be disclosed without risk to certain vital public interests.[18] That argument was expressly rejected by the High Court of Northern Ireland, which held that it was satisfied that the decision of the Attorney General on whether a case should be de-scheduled is not within the exceptional category that is exempt from judicial review, albeit that there are significant constraints on the extent of review that may be undertaken.[19] In light of this, we regret to say that we find the explanation given in the Explanatory Notes and by the Minister in his letter, that this clause is merely intended to give statutory effect to the decision in Shuker, disingenuous. In fact, clause 7(1) and (2) of the Bill are an attempt to put into statutory form the very argument which was made by the Attorney General and rejected by the High Court of Northern Ireland in Shuker.

1.35 Our second observation is that the provision in clause 7(2) of the Bill, which purports to prevent a court from deciding whether a decision of the DPP's was a nullity by reason of lack of jurisdiction or error of law, goes far beyond what the court actually held in Shuker. It is correct that the court held that in certain situations a decision which is subject to judicial review generally may be exempt from certain grounds of challenge or that the scope of the challenge under some of the conventional judicial review grounds will have to be modified or adjusted in order to reflect the specific nature of the decision attacked.[20] It is also correct that the court concluded that the Attorney General's decision about de-scheduling offences "is not a process which is suitable for the full panoply of judicial review superintendence."[21] It said that "this is par excellence a procedure on which the courts should be reluctant to intrude."[22] However, the only ground in respect of which the court held the decision is not amenable to judicial review is failure to comply with the requirements of procedural fairness. The court was at pains to point out that although it had concluded that judicial review was not available to challenge the decision of the Attorney General in this particular case, it did not consider that judicial review will be excluded in every circumstance. As well as being reviewable on grounds of bad faith, the court said "depending on the circumstances of other cases that may arise, further grounds of judicial review challenge may be deemed appropriate but we do not consider that it would be helpful, or even possible to predict what those grounds might be."[23] Clause 7(2) of the Bill, which purports to preclude challenge on grounds of lack of jurisdiction or error of law, therefore goes significantly beyond the actual decision in Shuker, which only rules out judicial review of such decisions on the ground of procedural unfairness and expressly leaves open the possibility of judicial review being available on other grounds in the circumstances of future cases.

1.36 Our third observation concerns the appropriateness, in human rights terms, of including such sweeping statutory ouster clauses in legislation. This is the first time that the Government has included such an ouster clause in a Bill since the ouster clause contained in the Asylum and Immigration (Treatment of Claimants etc.) Bill as introduced in the 2003-04 Session. Our predecessor Committee was highly critical of that clause in a number of reports on the Bill in which it pointed out that it is now widely regarded as an indispensable feature of the rule of law that there be a right of access to a court to challenge the legality of Government action.[24] The Government eventually withdrew that clause in the face of overwhelming parliamentary opposition. In our view the current clause raises the same rule of law concerns. We acknowledge that there are good reasons why courts on judicial review of the DPP's decision should exercise restraint, not least the fact that the DPP's decision-making process will usually involve the evaluation of material of a sensitive nature which it may not be possible to disclose without causing undue harm to the public interest. In our view, however, these are considerations which should be dealt with on a case-by-case basis, rather than by a wide-ranging legislative ouster of judicial review precluding such consideration in all cases. It should be for the court to decide, in the circumstances of a particular case, whether the DPP has demonstrated that the issue raised by the applicant for judicial review cannot be determined by the court without disclosing information which is damaging to the public interest.

1.37 The Government has now introduced an amendment which would:

(1) remove altogether the reference in clause 7(2) to a court being prevented from entertaining proceedings on the basis that the DPP's decision was a nullity by reason of lack of jurisdiction or error of law;

(2) maintain the prohibition in clause 7(1) preventing any court from entertaining any proceedings for questioning the decision of the DPP "except on the grounds of (a) dishonesty, (b) bad faith or (c) other exceptional circumstances."

(3) replace the clause subjecting s. 7(1) of the Human Rights Act 1998 to the ouster clause with a clause subjecting the ouster clause to s. 7(1) HRA.

We welcome the narrowing of the scope of this previously sweeping clause by these amendments, and in particular the subjection of the ouster clause to the Human Rights Act 1998. However, we note that the amendment still does not meet all of our concerns expressed above. A prohibition on judicial review except on grounds of dishonesty, bad faith or "other exceptional circumstances" does not make sufficiently clear in our view that judicial review for lack of jurisdiction or error of law will still be available. In our view the rule of law requires no less.

(D) EQUAL OPPORTUNITY OF DEFENCE AND PROSECUTION TO CONDUCT JUROR CHECKS

1.38 The Bill introduces new restrictions on revealing jurors' information to the defence.[25] The purpose of the restrictions is to reduce the risk of juror intimidation. This is obviously a legitimate aim. However, the introduction of such restrictions raises the question of whether the defence is being placed at an unfair disadvantage compared to the prosecution in terms of its ability to conduct juror checks and so to challenge a juror.

1.39 The Explanatory Notes state that Article 6 ECHR does not confer a right to access information pertaining to jurors. However, the principle of "equality of arms", which is inherent in the ECHR concept of a fair trial, requires that no party is placed at a substantial disadvantage compared to other parties to the proceedings. As the Explanatory Notes make clear, in certain circumstances the police will be permitted to carry out additional juror checks.[26] However, the Notes state that there will be no inequality of arms between the parties because it is intended that such checks will be carried out by police not connected to the prosecution and that the Attorney-General will issue guidelines strictly to limit the occasions when such additional checks can be undertaken.

1.40 We asked the Government whether the Attorney General's proposed guidelines would be made available, and if not, what the likely content of those guidelines would be, to help us decide whether the arrangements envisaged by the Government will be adequate to ensure that there will be no inequality of arms between the defence and the prosecution. The Government responded that the policy in relation to the guidelines on jury checks has yet to be settled, but it is anticipated that the guidelines will closely reflect those on juror checks that already apply in England and Wales, a copy of which it helpfully provided.[27]

1.41 The reason given by the Government for the difference of approach to juror checks by the prosecution and the defence is that there may be certain types of exceptional case of public importance where routine checks may not be sufficient to ensure the proper administration of justice. In such cases, the Government says, it is in the interests both of justice and the public that there should be further safeguards against the possibility of bias and in such cases checks which go beyond investigation of criminal records may be necessary.

1.42 Such additional juror checks by the prosecution are envisaged in cases relating to national security or terrorism. The guidelines explain that the aspects of these cases which may make it desirable to seek extra precautions are twofold. First, in security cases there is a danger that a juror, either voluntarily or under pressure, may make an improper use of evidence which, because of its sensitivity, has been given in camera. Second, in both security and terrorist cases, there is a danger that a juror's political beliefs are so biased as to go beyond normally reflecting the broad spectrum of views and interests in the community to reflect the extreme views of sectarian interest or pressure groups to a degree which might interfere with his fair assessment of the facts of the case or lead him to exert improper pressure on other jurors. To ascertain whether these risks are present, it may be necessary to conduct further investigations with the records of police Special Branches and, in appropriate cases, the security services.

1.43 Such "authorised checks" require the personal authority of the Attorney General. The results of such authorised checks are sent to the DPP who decides what information ought to be brought to the attention of prosecuting counsel. The Guidelines envisage that the information obtained through such additional checks may lead to the Crown exercising its right of stand-by (i.e., asking for a juror to be replaced, considered below), where the information affords strong reason for believing that a particular juror might be a security risk, be susceptible to improper approaches or be influenced in arriving at a verdict for political or sectarian reasons.[28]

1.44 The Government's view is that providing for additional jury checks in limited circumstances does not confer any unfair advantage on the Crown, or subject the accused to any unfair disadvantage, and that any concerns over fairness and equality of arms can be allayed by setting out clearly in administrative guidelines the circumstances in which jury checks may be carried out by police not connected to the prosecution.

1.45 We have given careful consideration to the Government's arguments but we are not persuaded that the proposed administrative guidelines, if modelled on the existing guidelines for England and Wales, overcome concerns about equality of arms between the defence and the prosecution in cases concerning national security or terrorism. The guidelines themselves envisage that the information revealed during an authorised juror check by the prosecution may justify exercise of the prosecution's remaining right to stand-by. This in itself seems to us to be a breach of the principle of equality of arms for the simple reason that the prosecution in national security and terrorism cases has an opportunity, not available to the defence, to conduct juror checks and remove jurors on the basis of the information so obtained. A breach of the principle of equality of arms is not capable of justification.

1.46 To avoid a breach of the principle of equality of arms, it would be necessary, in our view, either to retain the defence's equivalent right of peremptory challenge, or for the Crown to be prepared to disclose enough of the gist of the information obtained by way of its further authorised checks to support a challenge to a juror for cause. A challenge for cause, in our view, is capable of including a challenge on the basis that the juror is a security risk, susceptible to improper approaches, or liable to be influenced in arriving at a verdict for political or sectarian reasons.

(E) ABOLITION OF DEFENCE'S RIGHT OF PEREMPTORY CHALLENGE

1.47 The Bill also abolishes the defendant's right of peremptory challenge in Northern Ireland.[29] The Explanatory Notes state that the abolition of this right should not in principle compromise in any way the defendant's right to a fair trial, as the defendant will continue to enjoy adequate protection due to the retention of his right to challenge any juror for cause.[30] However, the Explanatory Notes do not provide any justification for the abolition of this right of peremptory challenge. We therefore asked the Government to provide the justification.

1.48 The Government explained that the reason for abolishing the defence's right of peremptory challenge is to limit the defendant's ability to "pack" a jury and thereby reduce the risk of perverse verdicts. The Government considers it likely that in a polarised society such as Northern Ireland there are jurors who may be influenced by their political and religious backgrounds when reaching a verdict. It points out that the NIHRC called for the abolition of the right to peremptory challenge in its response to the review of the Diplock courts in 2000, arguing that such challenges pander to a stereotypical thinking and further entrench prejudice in Northern Ireland.

1.49 The NIHRC, however, points out that clause 12 of the Bill only implements its recommendation in part. It recommended that in order to reduce the risk of perverse verdicts, both the defence's right to peremptory challenges and the Crown's right to stand-by ought to be removed. The NIHRC believes that if the right to peremptory challenge is to be abolished, this should be accompanied by the abolition of the use of stand-by, in order to be compatible with the principle of "equality of arms" implicit in Article 6(1) ECHR (i.e. that no party must be under a procedural disadvantage compared to any other party to the litigation).

1.50 The Government argue that there is no breach of the principle of equality of arms because any imbalance is acceptable. It relies on a combination of the prosecution's duty to act with absolute propriety, the court's obligation to intervene to ensure that appropriate standards of propriety are observed, and the introduction of counter-balancing restrictions on the exercise by the Crown of its right to require jury panel members to stand-by. We asked the Government whether a draft of the Attorney-General's proposed guidelines on restriction of stand-by would be made available, and the Government responded that they would be the same as those that currently apply in England and Wales. In accordance with those guidelines, the Crown will only exercise their right of stand-by in future where information comes to light suggesting that a juror is not suitable for jury service.

1.51 As explained above, however, one of the circumstances in which the Guidelines clearly envisage that it would be proper for the Crown to exercise its right to stand-by a juror is where an authorised juror check by the prosecution reveals information affording strong reason to believe that a particular juror might be a security risk, be susceptible to improper approaches, or be influenced by political/sectarian reasons in arriving at a verdict. In our view, for the reasons given above, this continued opportunity for the prosecution to stand-by a juror is in breach of the principle of equality of arms, however rarely in practice the right is exercised.

(2) The powers of the Northern Ireland Human Rights Commission

THE BILL'S PROVISIONS

1.52 The Bill's provisions in relation to the powers of the Northern Ireland Human Rights Commission (NIHRC) arise from a lengthy process of negotiation and consultation. The Northern Ireland Act 1998, which established the Commission and set out its functions and powers, required the Commission to make recommendations about its own effectiveness within 2 years of its establishment, which it duly did in March 2001, submitting 25 recommendations to the Government. In May 2002 the Government produced its initial response; the Commission then withdrew some recommendations and added new ones, and the Government issued a further consultation paper in November 2005. The results of that consultation, which informed the relevant provisions of this bill, were published in November 2006.[31]

1.53 The previous JCHR took a close interest in the adequacy of the NIHRC's powers to promote and protect human rights in Northern Ireland, reporting on the subject in Session 2002-03.[32] In its final report of the 2001-2005 Parliament, that Committee recorded its "profound dissatisfaction" that it had taken the Government so long to respond to the NIHRC's review of its powers.[33] We discussed this question with Commissioners and staff of the NIHRC on a visit to Belfast in November 2006, before publication of the Bill.

1.54 Clauses 13 to 15 of the Bill extend the powers of the NIHRC in three ways:

Clause 13 enables the NIHRC to institute or intervene in legal proceedings on human rights grounds, disregarding the victim test in s.7(3) of the Human Rights Act 1998, though there has to be one or more actual or potential victims of the alleged unlawful act by a public authority;
Clause 14 allows the NIHRC to compel a person to produce documents or information in their possession, or to give oral evidence, for the purpose of an investigation under s. 69(8) of the Northern Ireland Act 1998;
Clause 15 grants the NIHRC the power to access places of detention, again for the purpose of an investigation under s. 69(8) of the 1998 Act.

1.55 The new powers under Clauses 14 and 15 are subject to a number of restrictions and conditions. The Explanatory Notes describe these as safeguards to help ensure that the powers are used appropriately by the Commission and complied with by public authorities.[34] In its Response to Consultation document, the Government also says that, in relation to the power to compel evidence, it will ensure that the human rights of those who might be placed in danger from the release of evidence are adequately protected.[35]

1.56 In relation to the exercise of both powers, the NIHRC must have prepared terms of reference of an investigation and sent these to persons affected by it.[36] The powers may only be used in respect of matters arising, and situations that exist, on or after 1 January 2008,[37] and the Commission may not use its power to compel evidence in relation to documents or matters created before, or giving information relating to a time before, that date.[38] Also in relation to the exercise of the power to compel evidence, notices given by the NIHRC may be disregarded if they would require the disclosure of national security information.[39] In such cases the Commission may apply to the tribunal established under s.65 of the Regulation of Investigatory Powers Act 2000 for an order requiring the person to comply, rather than to the county court as it will be able to do in relation to other grounds on which people may fail to comply with a notice to produce evidence. A new provision prevents the NIHRC from considering in an investigation whether an intelligence service has acted, or is acting, in a way which is incompatible with a person's human rights, or other matters concerning human rights in relation to an intelligence service.[40]

1.57 The power to access places of detention may only be exercised if the NIHRC has considered whether that place of detention has been sufficiently investigated by another person, and concluded that it has not.[41] It may not be used until 15 days have elapsed from the provision of the terms of reference of an investigation to the person responsible for the place of detention, who may apply to a county court to prevent the NIHRC accessing the place of detention, or for restrictions to be imposed on the exercise of the power.[42]

1.58 Following our initial consideration of the Bill, we wrote to the NIHRC asking them to set out their view of the likely effects of the various restrictions on its proposed new powers. In response the Commission provided us with the briefing it prepared for Committee stage of the Bill in the Commons in relation to Clauses 13 to 19. In our letter to the Government on the Bill, we also requested further justification from the Government of the restrictions, and the Government's view as to whether the power to access places of detention as set out in the Bill is sufficient to enable the NIHRC to be part of the UK's National Preventive Mechanism under the (NPM) under the Optional Protocol to the UN Convention against Torture (OPCAT).

(A) HUMAN RIGHTS PROCEEDINGS

1.59 The NIHRC welcomes Clause 13 of the Bill, enabling it to institute or intervene in human rights legal proceedings. This Clause provides the NIHRC with powers analogous to those which the Commission for Equality and Human Rights will possess under s.30 of the Equality Act 2006. We welcome this provision, which will enhance the NIHRC's effectiveness in promoting and protecting human rights.

(B) POWERS TO OBTAIN EVIDENCE AND ACCESS PLACES OF DETENTION

1.60 In its Committee stage briefing the NIHRC expresses strong concern about the fact that the powers relating to evidence and access provided in the Bill are offered " in a very limited form, hedging them with exclusions, limitations and procedural obligations, and adding little value in terms of the protection of human rights."[43] The Government, on the other hand, states that given the broad remit of the Commission, it is important that the powers are subject to appropriate safeguards, arguing that there "are many public bodies with responsibility for ensuring compliance with human rights law in specific parts of the public sector and it is not necessary for the Commission to duplicate the work of these bodies".[44]

1.61 The NIHRC identifies three key issues arising from the provisions of the Bill

restrictions on the use of evidential powers, including "national security" exclusions
fettering of access to places of detention
the time limit on using new powers.[45]

1.62 The NIHRC argues that the provision in the Bill enabling a recipient of a notice which the Commission may issue requiring the production of evidence to apply to a county court for cancellation of the notice would not add to the protection of human rights, and cites the UN Paris Principles in support of its view that national human rights institutions should be able to take action falling within their competence, subject to responsible use of their powers as determined, in this case, against the ordinary threshold of judicial review.[46]

1.63 Similar provisions exist in the Equality Act 2006 in respect of inquiries, investigations and assessments to be undertaken by the Commission for Equality and Human Rights (CEHR).[47] In one respect, however, the NIHRC is more circumscribed than the CEHR will be. In respect of a notice issued by the NIHRC, the county court may cancel it on the grounds that the requirement imposed by the notice contravenes the new subsection 69A(4) of the 1998 Act, establishing the requirement for the Commission to have considered whether a matter has been sufficiently investigated by another person and to have concluded that it has not. It is not clear on the face of the Bill whether this is merely a procedural obligation, and that the court only has power to cancel the notice if the Commission has failed to go through the prescribed procedural step before issuing the notice, which in our view would be unobjectionable, or whether the court can cancel the notice because in the court's view the matter has already been sufficiently investigated by another person.[48] The NIHRC appears to interpret the Bill as meaning the latter. It points out that it avoids duplication of work with other regulatory bodies through Memoranda of Understanding and other protocols, and argues that the activities of other oversight bodies should not create any ground to object to an investigation by the Commission.

1.64 We consider it is reasonable for the NIHRC to be subject to essentially the same judicial oversight of its powers to compel evidence as that which will apply to the CEHR, and we do not consider that the right of the recipient of a notice to apply to the county court for cancellation of the notice on the grounds that it is unnecessary or unreasonable would be an undue infringement of the NIHRC's independence of action. We do, however, agree with the Commission that a court should not be able to cancel a notice on the grounds that the matter to which the notice relates has already been sufficiently investigated by another person, if that is the intended effect of new subsection 69A(5)(b). Indeed, we consider that if this were the effect of the new subsection it would create an unjustifiable limitation on the Commission's freedom of action, failing to take into account its specific role to promote and protect human rights which is not fully shared by other regulatory bodies in Northern Ireland. We recommend that proposed new subsection 69A(5) be amended to make clear that the ground on which the notice can be cancelled is that the Commission has not complied with the procedural obligation in new subsection 69A(4), and so bring it into line with the equivalent provision in proposed new section 69C(7)(c).

1.65 We also note that in her recent report on her investigation into allegations of collusion between the police and their informants,[49] the Police Ombudsman for Northern Ireland said that it is "essential that, in the arrangements for the future strategic management of National Security issues in Northern Ireland, there will be accountability mechanisms which are effective, and which are capable of ensuring that what has happened here does not recur."[50] The effect of the blanket prohibition on the NIHRC considering human rights matters in relation to the intelligence services in proposed new subsection 69B(5) would be that the NIHRC has no role to play in such accountability mechanisms, which would be a surprising position for an independent national human rights institution.

1.66 We recognize and accept the need to protect information the disclosure of which could affect national security. However, we agree with the NIHRC that there should be no blanket ban preventing it from raising questions about the intelligence services in its investigations. In the context of Northern Ireland, such a limitation would be a severe blow to the credibility and effectiveness of the Commission in protecting and promoting human rights.

(D) ACCESS TO PLACES OF DETENTION

1.67 In relation to the restrictions placed on the Commission's new power to access places of detention, the Government argues that the Northern Ireland Prison Service has been subject to inspections and external reviews from 17 different bodies since 2004, and that it is right that "places of detention have the opportunity to suggest that an additional investigation is not necessary if it has only recently co-operated with an investigation by another body in very similar territory".[51] It also points out that, despite the fact that a place of detention will have a 15-day period during which it can appeal against a visit, once that period is over or any application against the use of the power has been determined in the Commission's favour, the Commission will have unrestricted access for the purposes of the relevant investigation.[52] The Commission argues, on the other hand, that its power of access to places of detention must allow for unannounced visits if it is to be effective as a means of discouraging or uncovering human rights violations.[53] It also points out that, unless it has announced a formal investigation, it will be reliant on the permission of the relevant authorities to undertake a visit in pursuance of its other statutory responsibilities.

1.68 In response to our question the Government did not provide us with its assessment of whether the power to access places of detention as set out in the Bill was sufficient to enable the NIHRC to be part of the UK's National Preventive Mechanism (NPM) under OPCAT. Instead it said that discussions on the nature of the NPM and the various bodies which should be part of it are still in progress and no final judgment has been reached.[54] Article 20 of OPCAT requires States Parties, inter alia, to grant NPMs "access to all places of detention and their installations and facilities" and "the liberty to choose the places they want to visit and the persons they want to interview".

1.69 In our view the restrictions placed on the NIHRC's powers to access places of detention by the Bill are far too onerous to enable it to carry out its statutory responsibilities in an effective manner. We consider that an unrestricted right of access to places of detention for the Commission, subject to the redress of judicial review if the Commission uses its power inappropriately, is necessary to enable the Commission to protect the human rights of those in the custody of the state. We also consider that the proposals in the Bill make it very doubtful whether the Commission could form part of the UK's National Preventive Mechanism under OPCAT.

(E) TIME LIMIT ON USING NEW POWERS

1.70 The Commission may only exercise its new powers to compel evidence and access places of detention on or after 1 January 2008. In his letter to us, Mr Goggins says this is in accordance with the Government's belief that the Commission's investigations should be "forward looking".[55] In the House of Commons Public Bill Committee he indicated that he would be giving the matter further consideration and the Government might table its own amendment for report stage, primarily because of the Commission's concerns about conducting its present business.[56]

1.71 The Commission points out that Clause 19 of the Bill as introduced would prevent it from requiring the production of any document created on or before 31 December 2007, even if it was directly relevant to a human rights violation existing on or arising after 1 January 2008. It also notes that no such time limits will apply in respect of the work of the CEHR or the Scottish Human Rights Commissioner, and that in sufficiently grave matters the Police Ombudsman is not restricted by any such time limit.[57]

1.72 For report stage in the Commons the Government duly tabled amendments to bring forward the cut-off date from 1 January 2008 to 1 August 2007. If made, these amendments will represent a marginal improvement over the bill as introduced. They will not however address the difficulties created for the NIHRC by their inability to compel the production in information created before, or relating to a time before, the new date.

1.73 We consider that the cut-off established by Clause 19 is not only surprising and artificial, but also represents an unjustifiable restriction on the powers of the NIHRC to decide independently on its priorities for investigations and other work. In particular, the manner in which Clause 19 disapplies the Commission's new powers to compel evidence in respect of information or documents created before 1 January 2008 (or 1 August 2007 if the bill is amended to that effect at Commons report stage), or relating to a time before that date, could present an insuperable obstacle to the Commission's effective exercise of its statutory powers. We recommend that Clause 19 should be deleted.

(3) Additional powers for the police and the military

1.74 The Bill provides various additional powers to stop and question and of arrest, entry, search and seizure for the police and military, which raise issues of compatibility with the right to liberty in Article 5 ECHR and the right to respect for private, family life and home in Article 8 ECHR.

1.75 The NIHRC in its submission makes the general point that there are striking similarities between certain of these provisions and those contained in Part VII of the Terrorism Act 2000 which the NIHRC believes are no longer required in Northern Ireland in current conditions. It argues that powers such as the power of a member of the armed forces to arrest civilians without being required to inform them of the reasons for their arrest are extraordinary powers of a kind that a state should require only in the most extreme emergencies. It says that such powers are not currently used or needed by the Army in Northern Ireland, and their enactment in new legislation, without any sunset clause or any other limit of time, is not consistent with the Government's commitment to a process of normalisation in Northern Ireland.

1.76 While we see the force of the NIHRC's arguments, we find that we are not in a position to make judgments about the extent to which security conditions in Northern Ireland have now "normalised". For the purposes of this Report we therefore do not address important questions about the necessity for some of these powers in relation to current conditions, but confine ourselves to assessing their human rights compatibility in other respects.

(A) DURATION OF STOP AND QUESTION

1.77 The Bill provides the police and members of the armed forces on duty with the power to stop a person "for so long as is necessary" to question him to ascertain his identity and movements.[58] Members of the armed forces are also given a power to stop a person "for so long as is necessary" to question him to ascertain what he knows about a recent explosion or another recent incident endangering life, or about a person killed or injured in a recent explosion or incident.[59]

1.78 The Explanatory Notes state that this power does not engage the right to liberty in Article 5 ECHR because it involves stopping a person for a relatively short time in order to question, which does not amount to a deprivation of liberty.[60] It is correct that a short detention pursuant to a stop and search power will not normally amount to a deprivation of liberty.[61] However, the wording of this power to stop and question contains nothing on its face which limits the amount of time for which a person can be stopped. On the contrary, it authorises stopping a person for so long as is necessary to question him to ascertain certain facts. There is no objective standard on the face of the provision to constrain the very wide power. We therefore wrote to the Minister asking why the power is not expressed in terms of the amount of time that is reasonably necessary.

1.79 The Minister in his response relies on the decision of the House of Lords in Gillan to argue that the right to liberty in Article 5 ECHR will not ordinarily be engaged by this power because the exercise of the power will not ordinarily involve a deprivation of liberty within the meaning of Article 5: the questioning would normally amount to no more than a few minutes. Although there is no explicit duration stated in the clause, questioning will only, other than in unusual or special circumstances, be for a very limited time because it can only relate to the matters stated in the clause. The exercise of the power will therefore usually be a restriction on liberty of movement rather than a deprivation of liberty, so that Article 5 does not apply. In any event, argues the Government, addition of the word "reasonably" before "necessary" would not be of any benefit, because it would add nothing to the court's ability already to decide that detaining the person concerned was not in fact necessary, or that the officer did not in fact believe it to be necessary, which already provide some safeguard against abuse of the power. It would, however, in the Government's view have a significant disadvantage, namely that it would introduce an element of uncertainty as to the scope of the power, which would affect the operational effectiveness of the police and armed forces in Northern Ireland.

1.80 We accept that ordinarily the use of this power would not engage Article 5 ECHR because the stop in question would be brief. We are concerned about what the Minister describes as "the unusual or special circumstances" in which the questioning lasts for longer. For example, if the officer asking the questions is sure that the person stopped is withholding the information he is seeking to ascertain, he is likely to consider it to be necessary to continue to question him until he has ascertained the information which he is convinced the person is withholding. In those circumstances, it is conceivable that the detention of the person for questioning may amount to a deprivation of liberty so as to trigger the application of Article 5 ECHR. The question which would then arise is whether the deprivation is "in accordance with a procedure prescribed by law" as required by Article 5.

1.81 In our view the lack of any objective standard in the clause conferring the power regulating the duration of the exercise of the power in any particular case gives rise to a risk of incompatibility with Article 5 on the basis that the deprivation of liberty pursuant to the power is not sufficiently regulated by any legal standard. The insertion of the word "reasonably" before "necessary" would remedy this deficiency and enable a court to decide whether the duration of the detention was such as could reasonably be considered necessary to ascertain the information sought. In the absence of such an objective standard on the face of the clause, there is a risk that the power will be interpreted by those exercising it as authorising detention for as long as they consider necessary to obtain what they regard as satisfactory answers to their questions.

(B) INFORMATION ON ARREST

1.82 The Bill provides a member of the armed forces with a power to arrest and detain a person for up to four hours if he or she suspects that the person is committing, has committed or is about to commit any offence.[62] A member of the armed forces making such an arrest is deemed by the Bill to comply with any rule of law requiring him to state the ground of arrest if he states that he is making the arrest as a member of Her Majesty's forces,[63] unless the rule of law requiring him to state the ground of arrest "has effect only by virtue of the Human Rights Act 1998."[64]

1.83 Section 28(3) of the Police and Criminal Evidence Act 1984 ("PACE") provides that "no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest."

1.84 Article 5(2) ECHR provides:

"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."

1.85 The effect of the Bill therefore appears to be to disapply s. 28(3) PACE for the purposes of this particular power of arrest, but to leave the requirements of Article 5(2) ECHR in place.

1.86 The Explanatory Notes explain that the purpose of the power is to allow sufficient time for a police officer to attend in order to re-arrest the person and charge them with an offence, if appropriate.[65] The reason for not requiring them to provide detailed legal grounds for arrest is said to be that "they are not expected to know the law as intimately as a police constable." The Minister, in his response to our letter, made clear that the rationale for the provision is so as not to impose excessive requirements on the armed forces: "a simple to use power of arrest that is effective in the range of circumstances in which it might arise, and is suitable for members of the forces (who will not have the extensive experience of the police in exercising such powers) is essential." The Government's concern is that the operational effectiveness of the armed forces would be impaired if the requirement were too onerous. If the grounds of arrest were wrongly stated by a member of the armed forces it could mean that the arrest would be held to be unlawful, and any actions to restrain the individual may also be illegal. If members of the armed forces became reluctant or uncertain about the use of these powers, it would hamper their ability to react appropriately in complex and fast-moving situations.

1.87 The Minister is satisfied that the clause satisfies the procedural requirement in Article 5(2) ECHR. We accept that, according to European Court of Human Rights case-law interpreting Article 5(2), it is not always necessary for the relevant information to be given at the very moment of the arrest, provided it is given within a sufficient period following the arrest, and the extent of the information required depends on the circumstances.[66] For example, an arrested person can be taken to a police station before being given the information. However, precisely what Article 5(2) requires is likely to depend on the circumstances of the particular case. In our view, if there are no good operational reasons for delaying the provision of the requisite information, and it is clear that the information was available to and understood by the arresting officer, there would seem to us to be a risk of a breach of Article 5(2) if that information is not provided to the detainee until four hours later. Since the requirements of Article 5(2) have been elaborated in judgments of the Court interpreting the standard contained in that Article in the circumstances of particular cases, in our view it is questionable whether the provisions of the Bill as currently drafted provide enough guidance to members of the armed forces about what type of information they must provide on arresting somebody and precisely when they must provide it.

1.88 Bearing in mind that the member of the armed forces making the arrest must suspect that the person arrested has committed, was committing or was about to commit an offence, in our view there does not appear to be a good reason in principle why the arresting officer should not be required at the very least to inform the detainee of the facts which are the foundation of the decision to detain, and asked whether he admits or denies the allegations. This would reduce the risk of findings of incompatibility with Article 5(2) in particular cases.

1.89 We note from the Minister's response that in fact where a person is detained by a member of the armed forces they will be informed in general terms of their reason for their arrest. This will normally be a reference to the facts giving rise to the arrest, such as the individual being seen throwing a petrol bomb. Soldiers are already given guidance in training to explain the factual grounds giving rise to the arrest. We welcome this, which we think is very likely to satisfy the requirements of Article 5(2) in most cases. We recommend that in order to reduce the risk of incompatibility with that Article, this practice be turned into a requirement on the face of the Bill.

1.90 The Bill provides the police or a member of the armed forces with a power to enter premises (including a vehicle) without a warrant, if he or she "considers it necessary in the course of operations for the preservation of the peace or the maintenance of order."[67] A police officer requires authorisation from an officer of at least the rank of superintendent, unless it is not reasonably practicable to obtain such authorisation. There is no equivalent requirement of authorisation by a senior officer where the power is exercised by a member of the armed forces.

1.91 The power to enter premises without a warrant is very broadly worded and contains no objective standard. The Government's reasons are the same as in relation to the provisions considered above: introducing objective words into the formulation of the power would impair operational effectiveness because it would introduce uncertainty into the scope of the power: officers may be prevented from taking decisions which are operationally necessary because they are not certain whether a third party would consider it to be reasonably necessary. The Government also claims that oversights and safeguards exist even with such a subjectively worded power, in that the officer's factual basis for believing the action to be necessary can be tested in court and it would be open to a court to find that it was not necessary, or that he did not believe it to be necessary.

1.92 In our view, however, judicial control over subjectively worded powers is significantly weaker than where the definition of the power contains an objective standard such as reasonableness. We recommend that the power of entry in clause 22 should be expressed in objective terms, such as where the police officer or member of the armed services reasonably considers it necessary, in order to reduce the risk of the power being found to be incompatible with Article 8 ECHR. We also recommend that there be an equivalent requirement of authorisation by a senior officer where the power is exercised by a member of the armed forces.

(D) DETENTION DURING SEARCH OF PREMISES

1.93 The Bill provides the police or members of the armed forces with a power to enter and search premises to ascertain if there are munitions unlawfully on the premises or wireless apparatus on the premises where there is a reasonable suspicion that such items are present.[68] The Bill gives the officer carrying out such a search the power to require a person to remain on the premises for up to four hours, extendable to 8 hours in total, if he reasonably believes it necessary in order to carry out the search or prevent it from being frustrated.[69]

1.94 The Explanatory Notes acknowledge that this power could be used in such a way as to engage Article 5 ECHR, because in theory the requirement to remain on the premises could last for up to 8 hours.[70] However, they state that in practice individuals would be allowed to leave the premises or move around them subject to some restrictions and for a much shorter time, and that guidance will be issued to police and the armed forces on the appropriate use of this power so as to ensure that these powers are not exercised in a way that engages Article 5.

1.95 Requiring a person to remain on premises for up to 8 hours during the conduct of a search of those premises is clearly capable of amounting to a deprivation of liberty for the purposes of Article 5. We therefore asked the Minister which of the enumerated exceptions to the right to liberty in Article 5 the Government relies on in cases where the exercise of the power amounts to a deprivation of liberty. The Minister in his response acknowledges that the power could clearly be applied in ways and for a duration which would engage Article 5, and argues that in such a case the deprivation of liberty would be within the scope of Article 5(1)(b), that is, in order to secure the fulfilment of an obligation prescribed by law. This is because, applying the reasoning of Lord Bingham in Gillan, it is an offence to obstruct or frustrate a search of the premises, and any detention is therefore to secure effective fulfilment of that obligation.

1.96 We accept that this does appear to be the effect of Lord Bingham's comments in Gillan. However, as we commented in our recent Report on the Offender Management Bill,[71] we find this to be a circular argument of potentially alarming breadth, and doubt whether the same view would be taken by the European Court of Human Rights. In our view, the exception to the right to liberty in Article 5(1)(b) has been given a very narrow scope by that Court, to cover only those situations where a person is detained to compel him to fulfil a pre-existing, specific and concrete obligation which he has until then failed to satisfy. We doubt that it covers deprivation of liberty for the purposes of a search, where the only obligation prescribed by law is the obligation to co-operate with the search. We therefore doubt whether detention for up to 8 hours during a search of premises is compatible with the right to liberty in Article 5 ECHR.

1.97 The Committee has also frequently commented that conferring a power of this width, which is capable of interfering with the right to liberty, and leaving it to as yet unpublished guidance to regulate the use of that power so as to avoid incompatibility, is not satisfactory, because it deprives the Committee, and Parliament, of the opportunity to subject the scope of the power to the careful scrutiny its subject matter demands. We asked the Minister whether he would make a draft of the guidance available.

1.98 We welcome the Minister's indication that he intends to make a draft of the guidance available during the passage of the Bill.

1 Appendix 1b. Back

2 Appendix 1d. Back

3 Cf. Fourteenth Report of Session 2002-03, Work of the Northern Ireland Human Rights Commission, HL Paper 132/HC 142. Back

8 EN paras 153-4. Back

9 See our consideration of the Fraud (Trials without a Jury) Bill, Second Report of Session 2006-07, Legislative Scrutiny: First Progress Report, HL Paper 34/HC 263, at para 5.10. Back

10 EN para. 7. Back

11 Clause 1(2). Back