Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Goodhart: I have a slight problem as most of the debate has been directed not at our amendments but at the Conservative amendments which concern a matter which our amendments do not address; namely, whether the decision we are discussing should be taken by the Secretary of State or by a judicial authority. I have therefore not had an opportunity to speak on that issue. I hope that the Committee will forgive me if I speak briefly on that matter.

I am reluctant to differ from the opinion of the noble and learned Lord, Lord Mayhew, for whom I have the greatest respect both as a lawyer and as someone who played a most distinguished role in Northern Ireland and has enormous knowledge of what happens, and has happened over the years, in that Province. My reluctance to differ from him is, however, somewhat reduced by the fact that the noble Lord, Lord Dubs, has spoken in a contrary way. My views are very much the same as those of the noble Lord, Lord Dubs.

We have to start by lifting our eyes from Northern Ireland, or indeed from the United Kingdom as a whole, and thinking what we would say if we were considering this question in relation to another country, a civilised country with a proper legal system. We would surely say that decisions on detention of suspects, whether for terrorism or other offences, should be taken by the judiciary and not the executive. I think we would all be horrified at the idea that decisions on bail after charges, for example, ought to be taken, or even could be taken, by members of the executive. It seems to me that the principle can be no different with regard to the authority for detention for questioning.

It seems to me therefore that in principle it must be right that the decision on continued detention should be taken by a judicial authority. Indeed the fact that it had to be taken by the Secretary of State in Northern Ireland was not due to the fact that judicial authority was for some reason the wrong thing to apply there but because in that case it was impossible to find a judicial authority willing to act in the matter. That was an extremely unfortunate situation. The European Court of Human Rights recognised in the Brogan case that, in the special circumstances of Northern Ireland, a departure from the proper rule of judicial authority for detention could be justified.

But, when one is creating a permanent Bill which will apply not only in Northern Ireland but throughout the United Kingdom, and which will apply across a wide variety of circumstances and different cases, we must surely incorporate in that kind of legislation the proper rule that the decision on detention should be taken by a judicial authority and not by the executive. It is to be hoped that it will not be necessary to maintain the derogation for Northern Ireland for much longer.

Turning to our amendments, I do not wish to press further the question of whether the appropriate initial period for police custody should be 36 or 48 hours.

24 May 2000 : Column 697

However, Amendment No. 95A needs serious attention and we may wish to come back on it. There are serious problems in the possibility of a judicial authority allowing continued detention for a period of five days without the suspect having the opportunity to come back to ask for release during that period. If the initial period is two days, it would be necessary for continued detention to be ordered for no more than two days at a time. If the Government do not accept that principle, they will face the possibility of a real challenge to that provision. We may well return to that issue. I suspect that we may not come back on the other issues, but certainly I do not give that commitment at this stage. We shall not take this point further today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Schedule 8 [Detention]:

7 p.m.

Lord Bach moved Amendment No. 69:


    Page 110, line 38, leave out from ("State") to end of line 39 and insert ("shall designate places at which persons may be detained under Schedule 7 or section 41").

The noble Lord said: On behalf of my noble friend, in moving Amendment No. 69 I shall speak also to the other essentially technical amendments with which it is grouped--that is, Amendment Nos. 70, 72, 73 and 166.

In regard to Amendments Nos. 69 and 70, at Committee stage in the Commons we undertook to look again at the drafting of the beginning of Schedule 8 to ensure that it was clear that the Secretary of State's power to designate places at which detainees could be held under the Bill was a general power, not a power to direct that a particular detainee be held at a particular place. Amendment No. 69 is designed to make that intention clear. Amendment No. 70 provides that references to a police station in Schedule 8 include references to any other places the Secretary of State has designated under this power.

Amendment No. 72 provides that where a video recording with sound requirement is in force, the Secretary of State need not also require audio recording. This avoids unnecessary duplication. Amendments Nos. 73 and 166 make it clear that interviews need only be audio or video recorded if they take place at a police station. I beg to move.

On Question, amendment agreed to.

Lord Bach moved Amendment No. 70:


    Page 110, line 41, leave out from ("place") to ("be") in line 42 and insert ("which the Secretary of State has designated under sub-paragraph (1) as a place where a person may").

On Question, amendment agreed to.

24 May 2000 : Column 698

Lord Bassam of Brighton moved Amendment No. 71:


    Page 111, line 25, at end insert--


("( ) This paragraph does not confer the power to take--
(a) fingerprints, non-intimate samples or intimate samples (within the meaning given by paragraph 9F below), or
(b) relevant physical data or samples as mentioned in section 18 of the Criminal Procedure (Scotland) Act 1995 as applied by paragraph 22 below.").

The noble Lord said: In moving Amendment No. 71 I shall speak also to the other amendments in the group.

On forfeiture, Amendments Nos. 84, 86, 91A and 92A make equivalent provisions for Scotland. Amendments Nos. 105, 107 and 108--no, this is wrong. I apologise to the Committee. My speaking note was out of order.

These amendments set out on the face of the Bill the regime for taking, retaining and using the fingerprints and samples of those detained under the terrorism provisions in England and Wales and Northern Ireland. This regime is modelled closely on that in the Police and Criminal Evidence Act 1984 and the PACE (Northern Ireland) Order 1989.

The Prevention of Terrorism Act 1989 provided for the PACE regime to be applied with certain necessary modifications in terrorism cases. We started by using that approach in the Bill, and this is reflected in the current wording of paragraphs 10 to 15 of Schedule 8. However, we have come to the view that it is more helpful to the reader to set out the regime as it applies in terrorism cases on the face of the Bill--not least because the PACE regime is itself extremely complicated.

The Scottish position is set out in paragraph 22 of Schedule 8. This provides that the relevant provisions of the Criminal Procedure (Scotland) Act 1995 are to be applied in terrorism cases, with certain necessary modifications. I beg to move.

Lord Glentoran: As a question of detail, Amendment No. 71 states,


    "This paragraph does not confer the power to take ... fingerprints, non-intimate samples or intimate samples within the meaning given by paragraph 9F below)".

Are we removing the power to take fingerprints?

Lord Bassam Brighton: I should make it clear that we are not removing that power.

On Question, amendment agreed to.

Lord Bach moved Amendments Nos. 72 and 73:


    Page 111, line 43, at end insert--


("( ) Where the Secretary of State has made an order under sub-paragraph (2) requiring certain interviews to be video recorded with sound--
(a) he need not make an order under sub-paragraph (1)(b) in relation to those interviews, but
(b) he may do so.").
Page 111, line 45, leave out from ("under") to ("if") in line 46 and insert ("Schedule 7 or section 41").

24 May 2000 : Column 699

On Question, amendments agreed to.

Lord Bach moved Amendment No. 74:


    Page 113, line 5, at beginning insert ("Subject to sub-paragraph (4A),").

The noble Lord said: In moving Amendment No. 74 I shall speak also to Amendments Nos. 75, 76, 77, 84, 86, 91A, 92A, 105, 107 and 108--11 government amendments in all.

Paragraphs 6 to 9 of Schedule 8 make provision for the rights of detained persons to have someone informed and to consult a solicitor. These paragraphs are modelled on Sections 56 and 58 of the Police and Criminal Evidence Act 1984 and have effect in England and Wales and in Northern Ireland.

Amendments Nos. 74 to 77 complete the replication of Sections 56 and 58 by adding provisions corresponding to Sections 56(5A) and 58(8A). They allow the rights to be delayed if a superintendent believes it will hinder confiscation of criminal proceeds or forfeiture of terrorist property. The rights still cannot, of course, be delayed beyond the 48-hour point in any circumstances. Amendments Nos. 84, 86, 91A and 92A make equivalent provision for Scotland.

Paragraph 36 of Schedule 8 allows information in extension of detention hearings to be withheld from detained persons in certain circumstances. These circumstances are similar to those where rights can be delayed. Amendments Nos. 105, 107 and 108 therefore provide for information to be withheld where this might hinder confiscation or forfeiture. This is subject to the important safeguard that the judicial authority must be satisfied that the conditions apply. I beg to move.

On Question, amendment agreed to.


Next Section Back to Table of Contents Lords Hansard Home Page