With this it will be convenient to discuss the following amendments: No. 20, in clause 7, page 5, line 21, leave out paragraph (b).
No. 21, in clause 7, page 5, line 22, leave out paragraph (c).
No. 22, in clause 7, page 5, line 23, leave out paragraph (d).
No. 23, in clause 7, page 5, line 24, leave out subsection (3).
The amendment is critical—not that many of the other amendments are not equally critical—to maintaining any credibility in the process. Under clause 3, when an application is made for a certificate, a senior member of the Police Service of Northern Ireland is required to state in writing
“that members of the Service have, and have had since before 1st November 2005, reasonable grounds for suspecting the applicant to be guilty of an offence to which” the Bill applies. That provision places an obligation on the police not only to have reasonable grounds for suspecting, but subsequently to follow through on the issuing of a certificate of eligibility with an investigation into the matters that are to be the subject of the tribunal hearing.
In clause 7, however, serious limitations are applied to the powers that the police can exercise during the course of their investigation into the criminal or terrorist activity in which it is believed that the applicant has been involved. Once a certificate of eligibility has been issued, none of the following powers may be exercised in respect of an applicant with a certified offence:
“(a)a power of arrest or detention;
(b)a power of entry or search;
(c)a power to remand in custody or on bail;
(d)a power to take fingerprints or samples.”
Each power is a crucial to a police investigation, and to the capacity of the police to investigate rigorously an offence that they believe a perpetrator may have committed. To remove those powers would significantly undermine the capacity of the police to achieve convictions under a process that passes for justice. That is why we tabled our amendments.
In amendment No. 19, we ask the Committee to add to subsection (2)(a), so that the power of arrest or detention would remain in place for at least 28 days after the police had begun their investigation into an offence that they had reasonable grounds to believe the perpetrator may have committed. We believe that the police ought to have that power, because arrest and detention affords them the opportunity to question the suspect. We know that the questioning process is a key element in any police investigation. We chose 28 days because that is precisely the time that has been agreed by the House in respect of the Terrorism Bill for the detention of terrorist suspects. In the interests of retaining a degree of continuity and bringing, at least, some reality to the process, we felt that 28 days was appropriate.
In amendments Nos. 20, 21 and 22, we propose that the power of entry or search, the power to remand in custody or on bail, and the power to take fingerprints or samples should remain at the disposal of the police. Again, we believe that those powers are crucial to ensure that the police have the capacity to carry out a thorough investigation into the offences that they believe may have been committed. Under the clause as drafted, a person who holds a certificate is exempt from those powers. That makes it virtually impossible for the police to carry out a proper investigation into the offences.
In a sense, the system is designed to fail to convict those believed to be involved in offences. The police have limited investigatory powers under the Bill, so they will be seriously hampered in pursuing their investigations of those offences. The Bill not only creates a situation whereby people will not serve a day in prison for their offences, but it will be virtually impossible for the police to secure a conviction. In the absence of conviction, no remedy will be available through the revocation of the licence in the event of a later breach of that licence. We therefore propose that the power of arrest is limited to 28 days and that the other exemptions are deleted. The amendments would, at least, allow a proper investigation to be held and a proper charge or charges to be brought against the perpetrator.
Subsection (3) provides:
“Where a person holds a certificate of eligibility, no power to obtain information exercisable in relation to criminal proceedings is exercisable”.
In amendment No. 23, we propose deleting that subsection.
The inability to arrest or, presumably, question a suspect—or in this case, someone believed to be guilty of an offence—will mean that inferences that might be drawn from silence, for example, will not be allowed. That means that a defendant under the scheme will not be in an equal position to a defendant who can have his silence at interview used against him. Because the police cannot arrest and detain perpetrators in these cases, they will lose the ability to interrogate a defendant who is brought in, questioned and then remains silent. That means that the silence of a defendant cannot be raised in court and used to disadvantage him in a trial under the scheme.
The Bill, as drafted, places the police at a significant disadvantage. It not only takes massive shortcuts through the judicial process and creates all kinds of new precedents for the British legal system, but it seriously undermines the capacity of the police to investigate crime. That is relevant to cases that may arise in the short term. Also, because the Government have not applied any time limit to the legislation—we touched on that point earlier—if the police, in the cold cases review that they are currently conducting, have reasonable grounds to suspect that someone is guilty of a serious crime, their current powers to arrest and detain an individual and take fingerprints and so on will be removed from them.
What about the victims who were promised that, in the cold cases review, no stone would be left unturned to find out the truth and to bring to justice those responsible for the perpetration of terrible crimes? The police will lose many of the powers that would have enabled them to achieve that objective. We believe that that is wrong, and that is why we tabled the amendments. I hope that the Committee will support them.
The Liberal Democrats support amendments Nos. 20 to 22, which, by removing subsection (2)(b), (c) and (d), would allow entry or search to take place and would also allow for remand in custody or on bail and for fingerprints or samples to be taken. All those police powers are very important, as they help the police to build a case against a person that could result in a successful prosecution. Amendment No. 23 is important, too. By virtue of subsection (3), a person availing themselves of the scheme could not be questioned. How on earth are the police to build a case, given the provisions of the clause?
We have rather more reservations about amendment No. 19, which attempts to tie in the provisions of the Bill with the latest Terrorism Bill, by making the clause say that a person cannot be arrested or detained
“for more than 28 days”.
My reading of that is that one can arrest somebody for up to 28 days, and we are a bit troubled by that amendment. We look forward to listening to what the Minister, and possibly other Members, have to say about that.
I have just a few comments to add to those of the hon. Members for Lagan Valley (Mr. Donaldson) and for Solihull.
The hon. Member for Lagan Valley is quite right to say that we are talking about exceptional powers. As for the special prosecutor, we really need to think of the Bill as a complete entity; it is difficult when we consider clauses in this way, because we have not looked to later clauses, in which the special prosecutor is mentioned, and clause 8, which refers to the special tribunal.
As I interpret clause 7, it means that when a person has been issued with a certificate of eligibility, it is then as if there is a stop. There cannot be any further police investigation, arrest, detention, entry or search—there is no indication of which premises would be entered and searched; it could mean those of friends or accomplices. The clause is so general, and its wording is not appropriate. It will make it difficult for the special prosecutor who will be appointed to take the case forward before the special tribunal that we will come to in clause 8.
Clause 7 prevents further evidence, further searches, further samplings, further DNA and further details being taken in order to bring a successful conviction against the person who may hold a certificate of eligibility but has not been convicted of anything unless they are convicted under this extraordinary scheme by the special tribunal. The wording makes it almost impossible for a special prosecutor to be successful before a special tribunal in gleaning any additional evidence through searches, samples or whatever to make sure that the individual is convicted and that those convictions are put on the licence that may be eventually given to the terrorist; it is almost like an antisocial behaviour order for terrorists.
Does the hon. Lady agree that the existence of the subsections that restrict police powers to conduct an investigation destroy a central plank in the Government’s argument that the scheme is not an amnesty because the people taking part will have to be subjected to full legal processes and will end up with a conviction? If we are hampering the ability of the police to undertake a proper, thorough investigation, that means that this is an amnesty in all but name.
Absolutely. I appreciate the intervention, which is spot on. The Minister is duty bound to explain to the Committee the justification for including a brake power on any further investigation to assist the special prosecutor in securing a conviction of those who are waving about their certificates of eligibility. I cannot understand why the Government have given such a general opt-out clause to bring any further evidence before the special tribunal. It behoves the Minister to explain the wording, generality and generosity of the clause.
As the hon. Member for Solihull has said, the addition of the words in amendment No. 19, which would allow the provision of power of arrest or detention for more than 28 days, would cause us particular difficulty. We do not agree that there should be a power of detention or arrest for up to 28 days anyway, and although we voted for that amendment in another Bill, the Terrorism Bill, that was to ensure that we did not face a period of three months. That other Bill will take its course and we will have a vote on that again. I am with the Liberal Democrats in that I see difficulties with amendment No. 19. However, we could support amendments Nos. 20 and 21.
The clause, as drafted, gives us great difficulty, which is why we are strongly sympathetic to the need to amend it. The fact is, to go back to our earlier discussions although not completely, that the clause ensures that once someone has a certificate, they are immune from any serious investigation. The evidence that could be brought would not be of the quality that the police and prosecution service would try to bring to a real court in a real prosecution. It means that this so-called prosecution system in this so-called court has protections and privileges that are so bespoke that it is very hard to take seriously the argument that we are not looking at an amnesty or amnesty’s close cousin.
The certificate of eligibility will mean that the police cannot pursue any serious evidence to put in front of the special tribunal, and the chances are that there will be a pretty high rate of acquittals for that reason. I understand that many senior police officers expect very few convictions, but the Bill has been sold on the basis that it will give people the satisfaction that those who would otherwise be walking round without convictions might be convicted.
The Secretary of State told us on a radio programme that people would be brought before a proper court, but we know that they will not. First, they do not have to be in the court, and secondly, we are not talking about a prosecution in the serious sense—not that the events of last week give us great confidence regarding proper prosecutions, when the Director of Public Prosecutions can suddenly withdraw charges at an unlisted hearing, supposedly in the public interest. We have had radio silence from the Government, Ministers and the Attorney-General ever since.
There is not a lot of assurance in that, and it just adds to the cynicism with which many regard this tightly designed scheme, which is aimed at ensuring that very limited information will be put before the special tribunal. It is wrong for the Government to provide that all the standard investigatory powers of the police automatically stop once there is a certificate.
I say that because, touching on a point made by other hon. Members, the Government responded in a positive and genuine way to a gross anomaly hanging over from the peace process. Many people who have suffered from unresolved crimes or lost loved ones in murders that went undetected or unprosecuted believed that they were left hanging, and that their history and need for truth was being washed away. The historic inquiries team was established so that issues pursued through the police ombudsman’s office in relation to the quality of past investigations—or the lack of them—could be dealt with if the ombudsman found that police investigations had been inadequate.
The Government, through the good offices of the then Secretary of State, the right hon. Member for Torfaen, moved to deal with the issue and committed significant moneys because they were needed. That was meant to be a confidence-building measure for victims; the historic inquiries team was to be resourced so that after the police ombudsman was given powers to look at past cases, it would be equipped to re-open those past cases, but the reality is that the provisions of the Bill—precisely and deliberately, I believe—undermine the possibility of the team getting to the truth and delivering justice.
Does the hon. Gentleman agree that the provisions will not only extend to cases that arise from the historic inquiries team, but to cases that are presently the subject of public inquiries in Northern Ireland? Is it not remarkable that the republican movement are pressing for measures that will mean that if members of the Ulster Defence Association or another loyalist organisation are arrested in connection with the murder of Pat Finucane or Rosemary Nelson, the same restrictions will apply to the police?
The hon. Gentleman is right, because the provision freezes the police’s powers and duty to investigate in respect of any offence that comes under the provisions of the Bill. That includes any offence carried out not just by republican paramilitaries but by loyalist paramilitaries and people acting on behalf of the state to one degree or another. That frustrates the prospect of justice, and not only for families who have been given some hope because the historic inquiries team is investigating their case, has established appropriate relationships with them, is following leads and publicly soliciting information and evidence through TV programmes. The clause will also frustrate any prospect of justice for those who campaign for or who have been granted public inquiries. That is another reason to oppose the Bill, and, in particular, this clause.
Nobody is suggesting that some people, simply because they have certificates of eligibility, should be subject to disproportionate investigation by the police. The fact remains, however, that the police must be free to investigate where necessary. That is why we would prefer to see clause 7 deleted from the Bill, and why we shall support some of the amendments. We shall not, however, support amendment No. 19.
I do not want to repeat the points that have been made, but as a member of the Northern Ireland Policing Board, I raised the issue with the Deputy Chief Constable of the PSNI at last week’s Policing Board meeting. In public session he made it clear that, whatever the Secretary of State may have said on Second Reading and despite the defence that the Minister might mount here tonight, the police believe that this clause will make it virtually impossible for them to secure the necessary evidence to secure a conviction at a tribunal that will result in a licence being imposed.
The police have painted the following scenario: the historic inquiries team digs up some new evidence, lead or inquiry, and decides to talk to Mr. So-and-so. As soon as the police knock on Mr. So-and-so’s door, Mr. So-and-so is aware that the police are on to him. He knows that the police may wish to talk to him, question him, search his premises and collect fingerprints and other evidence. What does Mr. So-and-so do? He decides, “I’ll stop this whole process. I’ll apply for a certificate of eligibility.” That will prevent the historic inquires team from securing further evidence against him.
If the hon. Gentleman refers back to clause 3(2), he will see that no one can qualify for the scheme after 1 November 2005. Therefore that provision is already in place.
But the police inquiry could have started long before then. In an historic case, the offence may have occurred a long time ago—but once the police ask someone about a particular crime, that person can immediately put a stop to the inquiry.
The Minister may say that the police would have to have reasonable grounds for speaking to an individual, so they would already have some evidence. However, last Thursday, in his enthusiasm to tell us why victims should not have any knowledge of certificates of eligibility that have been issued, he pointed out that when someone applies for a certificate and that certificate is granted,
“the police may not have sufficient information to charge the person”.
Indeed, he went further:
“when a person applies to the certification commissioner, in many cases charges will not have been brought. There may be grounds for arrest, but in some cases there may not even be that.”—[Official Report, Standing Committee B, 8 December 2005; c. 129.]
According to the Minister, when a person applies for a certificate, there may not even be grounds for arrest. The police may not have sufficient information to charge the person.
My hon. Friend will know that under the criteria set down in clause 3(2)(i), at the stage where a certificate of eligibility is being sought the police officer is only required to have “reasonable grounds for suspecting”. No police officer would send a case to the DPP or the special prosecutor if he just had reasonable grounds for suspecting; that is the stage when he would bring somebody in, start his cross-examination and follow up leads. The critical issue will be fingerprints, because those, and the other tests, will tell the police officer not just whether that person is responsible for the crime under review, but whether he was responsible for more up-to-date crimes.
That is exactly the point that the police have been making, and the Minister made the same point in this Committee. When the certificate is being applied for, the police may not have sufficient information to charge a person. The Minister did not want the victims to know about the certificate, because it might be premature. If it is premature—by the Minister’s admission that might be so—how does he expect the police to build the case?
As the hon. Member for Foyle suggested, is not the true intent of the Bill to make it impossible for a case to be built against the person? The Bill is weighed against the victim and in favour of the defendant, and that may suit the Government in many cases. It will certainly suit the people who wanted the Bill in the first place to make it as difficult as possible to get convictions—and on the Minister’s own admission, and on the evidence that the police have put forward and the points that they have made, it is clear that that will be the outcome.
I refute the suggestion made by the hon. Member for East Antrim that the Government do not wish to seek convictions under the scheme. If that were so, it would have been easy to design the scheme differently to make sure that that outcome was achieved. The Government have designed it to ensure that there is accountability, potential convictions if people are found guilty of charges, and a release on licence. The clause 7 exemptions are key elements in the scheme and reflect the 2003 proposals in detail; they allow the certificate holder to return to Northern Ireland without risking arrest, being questioned, or otherwise, by the police.
I have checked the proposals that were published in the annexe to the joint declaration at Hillsborough in 2003, but I cannot see spelled out in detail the restrictions that clause 7 places on the police. The annexe states simply that the defendant, or applicant in this case,
“would be able to plead not guilty and ... instruct a defence to be mounted. The Special Judicial Tribunal would not have the power to remand in custody.”
It does not specify the restrictions that the Government seek to impose on the police.
Paragraph 7 of the proposals that I have in front of me says:
“Once someone had been declared eligible, he or she would be free to return to Northern Ireland without risk of arrest for questioning or charge in relation to a qualifying offence.”
I thank the Minister. That is in paragraph 7, but it does not say here—[Interruption.] As my hon. Friend the Member for Belfast, East, rightly points out, that is only for someone returning to Northern Ireland from outside the jurisdiction. As we know, Sir Nicholas, the net for the legislation is cast much wider than that. Nowhere here does it say that the police cannot take fingerprints or do the other things that clause 7 stops them doing.
I referred to that in the context of those who are returning from outside the jurisdiction. The historic inquiry team proposals can continue, and only at the stage where an individual is charged can they apply for a certificate. Under the historic inquiry route, an individual may have an investigation by the police undertaken against them, and at some point they may be charged by the police for an alleged offence. At that stage, they can apply for a certificate.
If that is the case, then why do the Government not distinguish in the Bill between those returning to the jurisdiction—the real on-the-runs, for whom the original deal was done—and those in the jurisdiction who the police may suspect as a result of the cold case inquiry team, whose work is ongoing and started well before 1 November. Where do we draw the line here?
If your patience will allow, Sir Nicholas, I refer the hon. Gentleman back to certificates of eligibility and their criteria. Returning to clause 3(2):
“An applicant falls within this subsection” on a number of grounds. The first is when the police suspect that, prior to 1 November 2005, the applicant was guilty of an offence; secondly,
“the applicant would have been arrested for the offence” if he had been in the United Kingdom at the time; thirdly, that
“the applicant has been charged with an offence to which this Act applies”— that relates to the historical inquiry team aspect—or, fourthly, that
“the applicant has been convicted of ... an offence and ... has not been sentenced for it”,
“is unlawfully at large”.
The potential elements for clause 7 are therefore dealt with in the eligibility criteria. I shall try to clarify the point again for the hon. Gentleman: for people currently on the run, the exemptions relating to certified offences will certainly apply. However, those who enter the scheme as a result of being charged, say, as a result of the historical inquiry team review, will be unable to benefit from most of clause 7’s provisions because the very fact that they have been charged would mean that the police investigation had been completed. They can therefore qualify for the scheme. I hope that that helps the hon. Gentleman.
The Minister is confirming to the Committee what some of its members have believed all along: that the legislation primarily benefits OTRs to the disadvantage of others. The Minister has confirmed that the clause 7 powers reflect the agreement made in 2003 and has now, in reply to the hon. Member for Lagan Valley, said that the cold case review team would be something different. So the Minister can now confirm to the Committee what we thought all along. This clause almost exclusively benefits OTRs who may wish to return.
The clause will benefit individuals who have not yet been charged, because of their suspected offences, or who would have been arrested for offences but for the fact that they were outside the United Kingdom. Again, it does not impact those who are involved through the historic inquiry team because, returning to the certificate of eligibility aspect, individuals who can join the scheme because they are potentially being charged under that team’s work cannot avail themselves of the provisions of clause 7 until such time as they have been charged. The very fact that they have been charged means that the police will not necessarily need to investigate them further by taking samples, or using other aspects of the scheme.
The answer to the hon. Lady’s question is therefore yes, but the purpose of the scheme is to ensure that we get individuals back to face the special tribunal while the eligibility criteria elsewhere mean that the historic inquiry team will not be hampered by the clause 7 provisions.
I was questioned, on a fine BBC programme, about the comments of Paul Leighton, the Deputy Chief Constable, at the Policing Board that the hon. Member for East Antrim attended last week. Following questions from that hon. Gentleman, the Deputy Chief Constable made some comments on this matter. I hope that I can clarify, both for the hon. Gentleman and for the Deputy Chief Constable, that nothing in the clause will hamper or hinder the progress of the historic inquiries team, which has a mandate to investigate unsolved crimes.
We all want the individuals who have been responsible for those crimes to be identified, we want the victims to know, if possible, what has happened to their loved ones, and ultimately, if evidence can be produced, we want individuals to be charged with those offences. At the moment that they are charged they can, under the eligibility criteria, apply for admission to the scheme. That is the stage for the exemptions, and they would not hinder investigations by the police, who would already have charged individuals under the historic inquiries team.
I accept that there is a difference of opinion in the Committee. Once individuals have been charged under the historic inquiries team and have applied for their certificate, they will progress to the special tribunal. If found guilty, they will be convicted and, if convicted, released on licence—but they will still have been charged under that scheme. I hope that that is of some assistance to the hon. Lady.
Will the Minister confirm what I think he is saying, so that we are all clear on this point? Let us say that an on-the-run terrorist who has committed the most heinous of crimes returns to Northern Ireland waving their certificate of eligibility. Clause 7 will then kick into action, meaning that that person cannot be arrested or detained, their home or other premises cannot be entered or searched, they cannot be put in custody or bailed—indeed, if they are not in custody, obviously there can be no bail—and fingerprints or samples cannot be taken. In other words, if a person who has been on the run for however many years returns to Northern Ireland with their certificate, that is the end of the track for them. The special prosecutor will have no evidence on which to obtain a conviction that would allow the issue of a licence on which conditions could be imposed. Is that what the Minister is persuading us is the effect of the clause?
I am saying that individuals charged by the historic inquiries team will have been charged because it will have reached conclusions to that effect. At that stage, individuals under the historic inquiries team can apply for a licence and will not be affected by the clause, because to enter the scheme, they will already have been charged. In relation to individuals on the run, subsection (2)(a) of clause 3, “Certificates of eligibility”, says that there must be
“reasonable grounds for suspecting the applicant to be guilty of an offence” and that
“the applicant would have been arrested for the offence before that date but for the fact that he was believed to be outside the United Kingdom”.
Certainly there is the potential for those investigations and the information not to have an impact on that, but the very fact of eligibility means that the individual is under reasonable grounds of suspicion and/or would have been arrested had they been in the jurisdiction at the time. I am fairly confident that such a case could go to the special tribunal for conviction in due course.
I stress that the exemptions do not apply at large, but only in relation to certified offences. Those who have entered the scheme as a result of being charged will be unable to benefit from most of the provisions in the clause. I believe that to delete them would not be in the interests of the good management of the scheme. I therefore urge my hon. Friends to reject the amendments.
I note that the Minister has made an effort to clarify the confusion arising from the application of the clause. I understood him to say that if the cold case review team suspects that a member of a paramilitary organisation may have been involved in, for example, a murder, it can, notwithstanding the Bill when it is enacted, arrest that individual, interrogate them, take fingerprint samples and so on. Only when they charge that individual can the individual apply for a certificate of eligibility.
The hon. Member for North Down is correct to say that in the main, the provision applies to those who are on the run and outside the jurisdiction. Notwithstanding that, we still believe that the basis for our amendments, which aim to uphold the right of the police to hold a proper investigation, is crucial. If the Government do not want to give the impression that the provision is an amnesty for on-the-runs, they must ensure that the investigatory powers of the police are sufficient to ensure that prosecutions can be brought through the special tribunal, and that the special prosecutor has some evidence to present to the tribunal to secure those prosecutions.
It is difficult to see how the police can gather evidence to present to the tribunal and the special prosecutor to secure a conviction when they cannot arrest or detain the suspect, cannot enter or search the suspect’s premises or other premises, cannot remand the suspect in custody or on bail, and have no power to take fingerprints or samples. It means that they do not have the capacity to check whether the suspect might have been involved in other crimes. For those reasons, and because we are anxious to ensure that the provision does not amount to an amnesty for those who are on the run and want to evade the judicial process, we shall press the amendment to a Division.
I have been approached by the usual channels representing the political parties that are taking part in our discussions, and I believe that it will be for the benefit of the Committee and the proper conduct of our business if I suspend the sitting for 20 minutes.