Clause 22
Justice and Security (Northern Ireland) Bill
1:45 pm

Entry

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Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

I beg to move amendment No. 21, in clause 22, page 17, line 5, leave out from ‘in’ to end of line 6 and insert

‘order to prevent paramilitary activity or to obtain evidence relating to suspected paramilitary activity.’.

Sir Nicholas, you are probably aware that one or two other Committee members have also been delayed by the weather. For example, the Conservative Whip, the hon. Member for North-East Milton Keynes, has been delayed.

I do not want to labour my point, as we have hada long discussion about similar amendments. The amendment deals with the provisions on entry inclause 22, which states:

“A member of Her Majesty’s forces on duty or a constable may enter any premises if he considers it necessary”.

My amendment would insert the words

“in order to prevent paramilitary activity or to obtain evidence relating to suspected paramilitary activity”.

As the hon. Member for North Down has pointed out, the clause starts by referring to a member of Her Majesty’s forces or a constable, but from subsection (2) onwards, it refers only to a constable. If the rest of the clause referred to members of Her Majesty’s forces as well, I would not have tabled the amendment. I say that because the constable has to obtain authorisation, where it is reasonably practicable to do so, from

“an officer of the Police Service of Northern Ireland of at least the rank of superintendent”.

A member of Her Majesty’s forces does not, as far as I can read, have to obtain any authorisation, so I thought it wise to suggest that we might want to strengthen the reasons for making such an entry.

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Sammy Wilson (East Antrim, DUP)

I appreciate the intention behind the amendment, but would it not be possible for those involved in organising, for example, a street riot to dodge into a house to escape arrest, to meet to arrange further disorder or simply to get away to come out again? They might not be there as members of a paramilitary group, or even be engaged in paramilitary activity, but they will be disturbing the peace and putting people’s lives in danger. In such circumstances, would the amendment not eliminate rather than extend the ability to enter premises?

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Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

I take the hon. Gentleman’s point, but clause 24(1) states:

“A member of Her Majesty’s forces on duty who reasonably believes that a person is unlawfully detained in such circumstances that his life is in danger may enter”.

Subsection (2) states that a member of Her Majesty’s forces

“may enter a dwelling...only if he is authorised for the purpose by a commissioned officer of Her Majesty’s forces.”

That contradicts clause 22 slightly.

I understand the hon. Gentleman’s point, but I am a little surprised that there is a difference between a constable, who must obtain authorisation where it is reasonably practicable, and a member of Her Majesty’s forces, who need not. I will not press the amendment, which is just a probing amendment to draw out the Minister’s explanation.

2:00 pm
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Lembit Ípik (Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs; Montgomeryshire, Liberal Democrat)

I, too, think that the words

“or the maintenance of order”

in clause 22(1) are extremely broad. That could be used as a justification for almost any entry. Taken in association with subsection (2), which states that a

“constable may not rely on subsection (1) to enter a building unless...it is not reasonably practicable to obtain authorisation”,

it could give constables wide latitude to enter buildings. It also seems that clause 24 is unnecessary. If the Minister insists on the broad definition under clause 22, I cannot see why a subset of that definition enjoys its own clause in clause 24.

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

The amendment would—the hon. Member for East Antrim hit the nail on the head—make dealing with the serious situations with which the powers are intended to deal unworkable. If the police in effect had to prove a paramilitary link before they were able to take any action, that might lead to unnecessary delay, which could have a devastating effect.

I shall present a scenario as an example. Two routes lead to a location where an explosive has been found or where some serious disorder is about to break out. One is through a public right of way and the other is across some private land. If we were to accept the amendment, the Army would have no choice but to go through the public right of way, where they might suspect that a booby trap was waiting, as unless they could prove a paramilitary link they would not be able to go across the private land. We do not want to constrain Army personnel who are dealing with extremely difficult situations so that they would have to  go to such lengths to deal with what might be a life-threatening situation. It would certainly have an impact on the operation if they were not allowed to enter premises without proof of a paramilitary link. It might even place not only members of the public but Army personnel in danger. I ask the hon. Member for Tewkesbury to consider that seriously.

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Stewart Jackson (Peterborough, Conservative)

The Minister is making a reasonably convincing point on a narrow issue. Does he agree that the wording could have been tighter? It is lax and so we have two extremes, particularly in the example that he has just given the Committee.

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

I am not at this stage convinced that the wording is too lax, but I made a commitment at the outset that throughout our deliberations we would look for ways in which the wording could be tightened and clarified. That is the purpose of the Committee. I will happily look again at the wording to ensure that it does the job that we want it to. The key idea is to give the Army the power to deal quickly with a fast-changing and dangerous scenario.

Hon. Members have mentioned the safeguards. As set out in the clause, it is clear that the police should seek written authorisation from a superintendent or oral authorisation from an inspector. That is the system that the police are used to, and if time allows that is what they should and would do. The Army is not used to operating in that way and it is important that in pressing and difficult circumstances we keep the system as simple as possible, so the authorisation will not be sought in the same way. However, the Army and the police are required under the legislation to make a record of what has happened. That applies equally to the Army as to the police.

In relation to the police, we return to the issue of oversight. The police ombudsman will be able to investigate any allegations if there are concerns.

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Lady Hermon (North Down, UUP)

For the benefit of the Committee,will the Minister identify which subsection obliges a member of Her Majesty’s forces to have authorisation?

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

I am sorry if I have inadvertently misled the Committee. I am saying that members of the police must have authorisation in writing from a superintendent if there is time, or verbally from an inspector if there is not. A record must always be made. We are not seeking the requirement of the same system of authorisation in relation to the Army, because it does not operate using similar systems. To make that requirement might induce confusion and uncertainty, which we do not want to do. We will, however, require a record to be made that can be examined with hindsight.

Photo of Laurence Robertson

Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

I was about to make the same point as the hon. Member for North Down. My reading of the clause suggests that members of Her Majesty’s forces are not required to make a record. I understand that—

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

Will the hon. Gentleman give way?

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Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

Is the Minister intervening on my intervention?

Photo of Laurence Robertson

Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

Secondly, I understand that the Army does not normally work on an authorisation basis, but when a member of Her Majesty’s forces on duty reasonably believes that a person is unlawfully detained in such circumstances that his life is in danger—there cannot be a more serious situation—he will have to obtain authorisation under clause 24. Unless I am reading it wrong, I cannot understand that difference between clauses 22 and 24.

Photo of Paul Goggins

Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

We are seeking to keep the matter as simple as possible. The armed forces do not need to make a record because that is not reasonably practicable in the situations that I have described. I offer clarification of my earlier remarks: it will not be necessary for the Army to make a written record. We want to keep the situation clear and simple for the Army. We want the Army to have the powers in question and not to have them confused or reduced by a requirement to prove a connection with paramilitary activity before personnel can act. The powers will facilitate rapid responses to what might be difficult circumstances, and they are proportionate and represent the minimum necessary.

Photo of Mark Durkan

I apologise again to the Committee for my absence earlier, which I am sure was welcome to some Members, considering the number of amendments that we have tabled. I appreciate your tolerance, Sir Nicholas, and that of the Committee. My embarrassment is exceeded only by my gratitude for some hon. Members seeking to assist me.

Will the Minister address the point that, like other clauses, clause 22 gives powers not only to the Army, but to the police? A moment ago, he mentioned that the police are subject to the police ombudsman. The Army will not be subject to that process of scrutiny or to a complaints process. Do not these clauses not only reverse the commitment made by the Governments in the joint declaration of 2003 and what was enacted last year, but breach Patten? The Patten report stated:

“Eventually—and we hope this will come about sooner rather than later—army support for the civil power in Northern Ireland should in principle be no more than it is in any other part of the United Kingdom”.

Patten also recommended that

“the law in Northern Ireland should be the same as that in the rest of the United Kingdom.”

These provisions clearly breach that. Patten also observed—

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Nicholas Winterton (Macclesfield, Conservative)

Order. I am always fascinated to listen to the hon. Gentleman, but this is an intervention, not a speech. Will he put the particular point that he wishes to make to the Minister in this articulate intervention?

Photo of Mark Durkan

I am simply asking the Minister to address the fact that these provisions breach the Patten vision of policing. That has serious implications.

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

Patten recognised that there may still be a role for the Army to play in a situation of extreme public disorder. We recognise it too. Although the Army stationed in Northern Ireland beyond July of this year will be a garrison force, we want to make provision to ensure that, should the situation arise, the Army can act decisively to protect public order and deal with explosives and other difficulties.

My hon. Friend the Member for Foyle, whom I am delighted to see here this afternoon, missed our discussion on aeroplanes and stop and question, but he is here anyway and was not stopped and questioned along the way. On the powers of the police ombudsman, the ombudsman is of course able to investigate in relation to the police.

My hon. Friend will have noticed that the independent reviewer, whose prime purpose is to review the powers that we are giving the Army and the police under this part of the Bill, will also have a role to play in dealing with any complaint that relates to military personnel. Such complaints are very few and far between. From memory, I think that in the last year there were perhaps just half a dozen—a small number—so we do not anticipate that there will be many. There will be fewer still when there are no Army personnel to be seen on a regular basis on the streets of Northern Ireland, but we have a provision that will allow complaints to be made and dealt with.

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Peter Bone (Wellingborough, Conservative)

Will the Minister clarify the Government’s thinking as between clause 22, when a soldier does not need to have authority, and clause 24, when he does? I just cannot see the consistency or the logic as to why there should be two different standards.

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

The only explanation I can offer at this stage is that clause 24 includes the power of search while clause 22 provides only for the power of entry. Those are different powers and we believe, on balance, that one requires authorisation while the other does not. The hon. Gentleman may or may not accept that explanation, but it is the explanation that I offer.

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Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

I had almost forgotten that it was my amendment we were discussing, as the discussion has gone on for so long. I said that it was a probing amendment, and we can safely say that we have probed, but I am not satisfied by the Minister’s response as to why the personnel we are discussing do not need permission to enter premises. They are not going to just enter and stand there. Presumably they are going to do something when they get in. Under clause 24, however, they need permission to enter, even though that clause seems to relate to a more urgent circumstance—someone’s life being in danger.

I cannot understand the reason for the difference between clauses 22 and 24, and I would be happy if the Minister agreed to discuss that difference with his officials to see whether the provisions could be tightened up a little. That said, we have had a good discussion.

Photo of Paul Goggins

Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

In the general spirit of the work being done by the Committee, I am very happy to go away and satisfy myself that the authorisation powers in clauses 22 and 24 are proportionate and do sit together.

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Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

I thank the Minister for that intervention and look forward to discussing the issue with him further perhaps, but we have probed and he has been generous and accommodating, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

2:15 pm
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Lady Hermon (North Down, UUP)

When the Minister goes away to reflect and to try to satisfy himself that clause 22 is consistent with the wording of clause 24, will he take with him a copy of Hansard for the record of our debate on clause 20? During that debate—as I recall, but Hansard will show—the Minister used words akin to, “It would be ridiculous if the Army had more powers than the police.” I highlighted the problem in both clause 20 and clause 22. The difficulty and the confusion has arisen because of the wording of subsection (1) of the clauses:

“A member of Her Majesty’s forces on duty or a constable”.

The Bill then concentrates on giving powers either to the constable under clause 22 or to a soldier under clause 20. Surely, to be consistent, if it is indeed ridiculous for the Army to have more powers than the police, the soldier on duty must have an obligation to take details—at least to have a record of the building. The requirements on a police officer under clause 22 mean that he has a duty and must ensure that

“as soon as is reasonably practicable a record is made of...the address of the building (if known)...the location of the building...the date of entry...the time of entry...the purpose of entry...the police number of each constable entering, and...the police number and rank of the authorising officer ”.

That is very detailed. The Minister said that we do not want to make it too difficult or cumbersome for the Army; but with the greatest respect, it has been made very easy for the Army. The drafting of clauses 20, 22 and 24 is appalling and inconsistent, although I apologise to the draftsmen and women who work so hard.

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Sammy Wilson (East Antrim, DUP)

I understand the point that the hon. Lady is making about the apparent difference between the powers of the police and the Army, but does she not accept that the list in clause 22(6) shows what most police officers would make as entries their notebooks in the event of entering premises?

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Lady Hermon (North Down, UUP)

Indeed; the hon. Gentleman makes a good intervention—and he was almost on time this afternoon. Yes, that is the normal procedure for a constable in the normal course of his duties.

Those obligations will be imposed by the Bill, but the curious thing is that, although clause 22 introduces the words

“a member of her Majesty’s forces”,

they do not apply in any other provision in that clause to soldiers on duty. The Minister is trying to defend the clause, but if he reads Hansard, he will see that he contradicts what he said in relation to clause 20. That is the only point that I would make—that the Minister should reflect on clause 22 to be consistent.

Photo of Mark Durkan

Clause 22 provides wide powers to enter premises. It is considered necessary for the police to do so for the maintenance of public order. The police do not need a warrant and there is no requirement even for reasonable suspicion. That is worrying when it applies to the police.

The Government have indicated that the provision gives the police some flexibility, and they will argue that police actions will be subject to accountability mechanisms through the Policing Board and, importantly, through the police ombudsman. The Government will indicate that there are new safeguards for police officers getting authorisation. However, those powers are also being given to the British Army, and the Army will not have to seek authorisation.

Those powers are meant to be used in support of the civil power. We are told that the Army will be acting only in support of the civil power, but none of the civil power standards will apply. As well as not seeking authorisation, the Army will not have to keep records, as the police have to do. Those aggrieved by such Army actions will find no means open to complain. They may go to the police, who might want to be responsive and understanding, but the police will not be able to help. That will create a totally unsatisfactory situation, which breaches the Patten vision.

In reply to my earlier intervention, the Minister said that those powers will be subject to annual review. Patten touched on the question of annual review if there was unfortunately a need to continue any sort of special provisions in Northern Ireland. What Patten said in that respect was that such provisions

“should be subject to annual independent review and to Parliament’s approval of any or all of them remaining in force”—

that is, annual renewal by Parliament, just as emergency provisions and special laws always are. We should remember that, under the Bill, there will be no more annual renewal. The powers will be there permanently.

How can the Government justify those wide powers for the Army? I think they go too far, even in relation to the police, but at least we have some comfort in accountability of the police service. If we get to devolution of justice and policing, those powers are likely to be reserved for legislation by this Parliament, not by the devolved Assembly. The police service, supposedly under the devolved remit, will be backed up by the Army—obviously, not under the devolved remit—and both the police service and the Army will use controversial special powers, which those in the devolved institutions will have no right or role in reviewing or amending. That is contrary to what people envisaged under the Good Friday agreement and the Patten report.

That is why I ask the Minister to address the fact that, in relation to matters in earlier clauses that refer to the courts and now these matters of continuing the  emergency powers permanently, the Government must think very carefully about the exact situation that they are creating. They are creating a situation of quicksand and confusion, and many people leading the new beginning in the police service will be unhappy about that, whatever their justification for retaining some powers. I understand that some officers believe that some powers should be retained, not least in relation to the possible difficulties that may arise—we hope that they will not—with parades. The Government are going too far with permanent sweeping provisions and such wide-ranging clauses.

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Sammy Wilson (East Antrim, DUP)

Is the hon. Gentleman not overstating his case? First, clause 22(1) clearly specifies a fairly high threshold in so far as a member of Her Majesty’s forces or a constable must consider the action necessary. That is a fairly strong statement. It does not say “suspects” or “believes”; it says “considers it necessary”. There is a high threshold to be met.

Secondly, although the hon. Gentleman made an issue of the fact that the Army will not be under the same constraints as the police, I cannot think of any instance when the Army would not be accompanied by the police, because they are there to help the police and to back them up. The only situation in which they will be used is when the Chief Constable asks them to help the police. There will be a police officer present who must have the authorisation to which the hon. Gentleman referred.

Photo of Mark Durkan

The hon. Gentleman’s points are flatly contradicted by the Bill. If a police officer is always present and if he needs authorisation, why are Army officers immunised from that need for authorisation? If they are always accompanied by police officers, why does the question of a soldier acting without authorisation arise? Surely, the policeman who can obtain authorisation can act. Similarly, if the Army will always be accompanied by the police, why is the power of arrest, which we discussed on other clauses, necessary? The hon. Gentleman’s argument that the police will always be present is an argument against the Army having such powers.

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Sammy Wilson (East Antrim, DUP)

In practical terms, when the police and the Army are involved in joint operations, the arrest may often involve a police officer and an Army officer or a member of the Army, so they need to be covered, so that they can jointly take part in such an arrest or operation.

Photo of Mark Durkan

Why then has the hon. Gentleman not tabled an amendment to give the Army the right to exercise those powers only in circumstances when it is clearly acting in support of the civil power withpolice officers present, having obtained the proper authorisation and so on?

The hon. Gentleman said earlier that clause 22(1) provides a very high threshold and a very high test—it does not. It simply says:

“A member of Her Majesty’s forces on duty or a constable may enter any premises if he considers it necessary in the course of operations”.

It does not say that he must have reasonable grounds; he has only to consider it necessary. Many people may consider lots of things necessary in such circumstances, but there is no serious test. In particular, when a member of the forces is under no requirement to keep a record, we cannot take the assurance that the hon. Gentleman suggests.

I have made the point in relation other clauses that the Government are reversing legislative changes that Parliament made in the Terrorism Act 2006. I have still heard no good explanation from the Minister about why the clear statements and commitments from the Secretary of State that powers would be renewed only until 31 July and would then be renewable for one year only until July 2008 should be overtaken. What has changed in the prevailing circumstances since the Secretary of State made those clear unambiguous statements? After all, he was telling us in glowing terms that things are getting better every day and that all sorts of bad things are being put behind us. Why, then, are we having to make emergency legislation permanent? Why, then, are we violating the Patten vision of policing?

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

First, I assure the hon. Member for North Down that I will be happy to consider the consistency between the clauses and my remarks on clause 20. From memory, I think that I was talking about the Army and the police in the same situation, saying that it would be ridiculous for the Army to have more powers than the police if they were both engaged in the same situation. However, I will happily check and reflect on that point.

My hon. Friend the Member for Foyle asked about the role of the reviewer. I draw his attention in advance of our discussions on it to clause 39(1)(b), under which the reviewer will look at the procedures adopted by the General Officer Commanding Northern Ireland for

“receiving, investigating and responding to complaints.”

The reviewer must then make a report to the Secretary of State, who will report to Parliament. There will be considerable scrutiny of any complaint about military activity. My hon. Friend’s movements suggest that he is not satisfied with that assurance. I am happy to give way.

Photo of Mark Durkan

I remind the Minister that the Patten test was Parliament’s approval of

“any or all of them remaining in force”.

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

I will come to Patten and the other matters raised by my hon. Friend in a moment.

My hon. Friend asked about the renewal of powers. Again, that strays into territory that we are likely to deal with later in our deliberations. We take the view that the powers are limited when compared to the part VII powers and that they will be necessary for some time to come. It seems quite unnecessary to have to renew them every year, as we anticipate that they will continue to be necessary. However, using reviewer’s reports to the Secretary of State and our other monitoring, we will see over time which of these powers in the Bill are no longer necessary—and the Secretary of State has the power to repeal them. We prefer to take that approach, rather than renewing the powers every year.

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The Minister said that it is necessary for the powers to remain in place. That may be the Government’s clear view now, but why has it changed from the clear view expressed by the Secretary of State and Ministers when the House was debating the Terrorism Act 2006, which would extend the powers to July this year—and only in extremis extend them for a further year and no more? That was the Government’s clear statement then. Are things worse now than they were last summer?

2:30 pm
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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

It would be irresponsible of any Government not to put in place the necessary powers for the police or the Army to deal with situations specific to the circumstances in Northern Ireland that may endanger life. I make no apology for making such proposals.

Let us inject some realism into this debate. The Army no longer routinely patrols the streets of Northern Ireland; as I have said, from the end of July this year, we will have a garrison fort in Northern Ireland. That brings me to the issue of proportionality in respect of the powers that we are giving the Army. The Army would be operational in Northern Ireland in support of the police only in extreme circumstances, such as a Whiterock scenario or serious attacks involving explosives. Do my hon. Friend and others expect the Government to rush back to get the powers when the Army has to be deployed in Northern Ireland in an emergency? No, it is much better to foresee any such eventuality now by putting the powers in place. Every one of us hopes that they will never need to be used, but if such extreme situations arise, the Army will need them to protect life and protect people.

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The Minister says that he regards legislating in that way as a mark of the Government’s responsibility. Is he saying that he and the Secretary of State were irresponsible in asking Parliament to pass the Terrorism Act 2006, which removed those powers, only months ago?

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Paul Goggins (Parliamentary Under-Secretary, Northern Ireland Office; Wythenshawe and Sale East, Labour)

I reject that entirely. It would be irresponsible if now, in taking the bold step of repealing part VII of the Terrorism Act 2000, we did not make sure that the police and the Army had sufficient powers to deal with extreme situations. Pictures of the serious disorder at Whiterock have been mentioned; I have seen them too, and other members of the Committee may have seen the reality. No responsible Minister would not empower the police and the Army to deal with such situations as they occur.

The hon. Member for East Antrim pointed out that clause 22(1) has a high threshold. Perhaps its most important words are

Her Majesty’s forces on duty”.

As Northern Ireland moves towards normalisation, the fact that Her Majesty’s forces are rarely—perhaps never—on duty should encourage us all. However, if they need to be on duty in support of the police, they need the powers to act. We are seeking to give them the minimum powers required to deal with the situations that I have described.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 17, Noes 1.

Question accordingly agreed to.

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Nicholas Winterton (Macclesfield, Conservative)

We shall shortly come to clauses that relate to powers. They are not all interlinked, and I am well aware of the interest of the hon. Member for Foyle in all of them. He has tabled amendments that, for good reason, have not been selected. I intend to allow clause stand part debates on all the clauses, but ask Committee members to use their discretion and good sense and not to repeat arguments in each debate. If they wish to have a clause stand part debate, they should direct any remarks to the details of the specific clause.

Clause 23 ordered to stand part of the Bill.

Schedule 3 agreed to.