Clause 26
Justice and Security (Northern Ireland) Bill
2:45 pm

Examination of documents

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

Photo of Lady Hermon

Lady Hermon (North Down, UUP)

I oppose clause 26 standing part of the Bill not because I object in principle to the Government’s intention, but because we need further clarification and assurances from the Minister. As members of the Committee will have noted, the clause deals with the examination of documents, but only an examination that is performed consequent on a search by a member of Her Majesty’s forces as outlined in previous clauses.

Clause 26 is carefully drafted. We are delighted that the hon. Member for Foyle is back with us this afternoon. We missed his contributions earlier, but he has certainly livened up proceedings and made up for his absence from Committee this morning. I might not agree with half of what he says, but it is always a delight to listen to him.

Photo of Lady Hermon

Lady Hermon (North Down, UUP)

Well, more than half. I was being polite.

My difficulty with the clause is that it is precise in providing that a member of Her Majesty’s forces who performs such a search

“may examine any document or record found in order to ascertain whether it contains information of the kind mentioned in section 58(1)(a)...of the Terrorism Act 2000...(information likely to be useful for terrorism)”

and that

“if necessary or expedient for the purpose”

of the provision that person

“may remove the document or record to another place and retain it there until the examination is completed.”

The clause deals with specific types of documents that relate to terrorism. It is unusual in such circumstances that, under clause 26(3),

“A document or record may not be retained by virtue of subjection (1)(b) for more than 48 hours.”

When we discuss clause 27 stand part, it will become apparent that no photocopy or photograph can be taken of a document that might relate to terrorism.

Given what the Minister just said in response tothe objections of the hon. Member for Foyle and his assurance that the powers are still necessary in Northern Ireland to combat terrorism in all its forms—I make no distinction between home-grown terrorism and international terrorism; I loathe and detest all forms of terrorism—it seems that an amendment is necessary. That is why I urge the Minister to review clause 26. As drafted, it places no obligation on a member of Her Majesty’s forces to pass to the PSNI documents they find that are useful for combating terrorism. Instead, they are duty bound to return the original document within 48 hours. They cannot retain the original and pass back a photocopy or photograph, because that is prohibited by clause 27, so I am not at all happy with the clause.

Photo of Sammy Wilson

Sammy Wilson (East Antrim, DUP)

We are discussing not only documents but records, which I presume could include computer records—perhaps the Minister could clarify that. In the past, the PSNI has found that in some cases it can take up to four or five weeks to get into such records because of firewalls and so on, or the ways in which records are stored. Would the hon. Lady accept that a limit of 48 hours could mean that the people who seize information may not have time even to find out what they have seized?

Photo of Lady Hermon

Lady Hermon (North Down, UUP)

I am most grateful to the hon. Gentleman for making such a sensible contribution—as he has done throughout the afternoon. He makes a valuable point indeed. There have already been two trials in Northern Ireland of al-Qaeda suspects. Both gentlemen—and they were gentlemen—had various and multiple aliases and their computer records used obscure middle eastern dialects that required expert translation. That was one reason why I, as opposed to Democratic Unionist party Members, supported 90 days detention without trial. We have set it at 28 days.

Will the Minister confirm and clarify for the benefit of the Committee the point that the hon. Member for East Antrim just made? Let us say that a suspect has already been detained for 28 days, in accordance with current law, and the documents or computer records  are pertinent and relate to both terrorism and the defendant. In such circumstances, surely there should be an obligation under clause 26 to pass those key documents and references to a member of the PSNI.

Photo of Mark Durkan

As has been indicated, clause 26 gives the Army power when performing searches under clauses 23 and 25 to examine and remove documents. Given what I said earlier, hon. Members will not be surprised to hear that I am opposed to the provisions, but I want to clarify that. We are not persuaded that even the police should have such powers, never mind the Army. The Minister is aware that he is proposing similar powers for the police in the policing order,but he is aware from the exchanges that I am surehe enjoyed with members of the programme for Government sub-committee in the Parliament buildings that my party is not persuaded of the need for such powers even for the police, never mind the Army.

Photo of Paul Goggins

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

Members of the Committee are right in saying that the clause deals with the removal of documents and records for examination, and I confirm that “record”, which is not defined in the Bill, can indeed include computer records. I acknowledge that my hon. Friend and his colleagues in the SDLP reject such powers for the police as well as for the Army. Members of the Committee will know that the Government intend to provide similar powers to the police through the Policing (Miscellaneous Provisions) (Northern Ireland) Order 2007. I enjoyed my exchange with colleagues in the transitional Assembly sub-committee when I met them a few days ago.

I hope that I can reassure the hon. Lady, who will acknowledge, of course, that a document might not at first reveal its evidential value and require a more thorough examination by the authorities. The powers that we are discussing will allow them to do that for 48 hours. Obviously, we have spoken to the police and the Army about the time that it is likely to take to decide whether those documents have evidential value. From their experiences in Northern Ireland, they think that 48 hours is sufficient. For example, they can draw on their experience at Whiterock when documents seized by authorities turned out to contain detailed plansfor the events conducted there by paramilitary organisations. It took some time to analyse those documents.

The hon. Lady rightly pressed a key issue: if during those 48 hours it becomes clear that documents contain evidence of an offence, they can be retained under the Police and Criminal Evidence Act and used in a prosecution. The powers before us simply allow the authorities to remove documents for 48 hours in order to conduct their investigations. I repeat: during that time, which the authorities tell us is sufficient, if it becomes clear that the documents contain evidence, they can be retained and used as such to prosecute those who might be responsible for very serious offences. I hope that that reassures her. The 48 hour cut-off time is simply for consideration of a document’s evidential value.

3:00 pm
Photo of Lady Hermon

Lady Hermon (North Down, UUP)

Sir Nicholas, it is kind of you to allow me to respond to the Minister. I shall keep my remarks short.

I am not persuaded at all by the Minister. Clause 26 reads:

“A document or record may not be retained by virtue of subsection (1)(b) for more than 48 hours.”

The Bill needs more clarity. He said that the Police Service of Northern Ireland has assured him that48 hours is sufficient to determine whether a document or record pertains to terrorism. Those documents should then be retained for use in a criminal investigation.

Photo of Paul Goggins

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

I just want to draw the hon. Lady’s attention to a very important point that she made—the end of subsection (1)(b) reads:

“until the examination is completed”.

The provisions here simply confer the power to hold documents until the examination is completed and we have been assured that 48 hours is sufficient for that.

Photo of Lady Hermon

Lady Hermon (North Down, UUP)

The Minister confirms my worst fears. Let us repeat: documents seized and examined for up to 48 hours are likely to contain

“information likely to be useful for terrorism”.

That examination might well confirm that those documents and records are pertinent and useful to terrorists. Please remember that clause 26 enables only a member of Her Majesty’s forces to carry out such an examination. Even if that confirms the pertinence and usefulness to terrorism of the documents, the Army can neither retain the documents nor, courtesy of clause 27, to which we are about to come, make a copy or take a photograph of them—they must be returned. That does not make sense or seem logical to me, since the offences are so serious.

Photo of Paul Goggins

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

I am failing to express myself clearly enough. I point out again to the hon. Lady the words in paragraph (b),

“until the examination is completed.”

The police and the Army tell us that that can be done within 48 hours. If the examination reveals information that can then be used as evidence in a prosecution, then it can be retained under different powers—under PACE rather than the Bill.

Photo of Lady Hermon

Lady Hermon (North Down, UUP)

The Minister makes that point even though there is no provision in the Bill for a member of Her Majesty’s forces to be duty-bound to pass on the documents. I asked him for assurances that if Her Majesty’s forces come to the conclusion that documents that they have seized and examined within 48 hours would be useful for the purposes of killing or terrorising people, the forces would be duty-bound to transfer those documents to the police. That is certainly not clear in the wording of the clause—quite the opposite: they will not be able to retain the documents.

Photo of Paul Goggins

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

The powers in the clause are specific and allow documents to be retained for up to 48 hours for the examination to be completed. The hon. Lady rightly points out that the provision relates only to  Army powers, because police powers are set out in other legislation. If documents reveal information pertaining to terrorism or the commission of serious offences, the police will re-seize them under the provisions of the Police and Criminal Evidence Act.

As always, we must consider the Bill alongside other provisions. Of course, if the information pertains to serious disorder or paramilitary activity, the police will seize it and it will be used as part of a prosecution. I cannot offer a stronger reassurance.

Photo of Lady Hermon

Lady Hermon (North Down, UUP)

I am enormously grateful to the Minister. That was as firm an assurance as we needed. Had he given it a few minutes ago, it would have curtailed our debate. We have reached the right conclusion—that such documents will be transferred to the PSNI if they relate to terrorism. That is not clear from the wording of the Bill. I appreciate the Minister’s clarification.

Question put and agreed to.

Clause 26 ordered to stand part of the Bill.

Clauses 27 to 33 ordered to stand part of the Bill.