On a point of order, Mrs. Anderson. I seek your guidance. If the Committee wishes to explore or to have an explanation of an amendment tabled by an hon. Member who is not present, is it normal for an explanation to be given, or do we move to the next business?
On a point of order, Mrs. Anderson. Would it assist the Committee if I moved amendment No. 41 to enable it to be debated?
With this it will be convenient to discuss the following amendments: No. 16, in clause 14, page 11, line 21, at end insert—
‘(4A) The Commission shall give a reason for the issuing of the notice to the person to whom it is issued at the point of issuing it.’.
No. 42, in clause 14, page 11, line 22, leave out subsection (5).
No. 44, in clause 14, page 12, line 1, leave out subsection (10).
As I said briefly during the short debate on the previous clause, I have one or two concerns about the extension of the commission’s powers, to which the hon. Member for North Down referred. It already has considerable powers under section 69(8) of the Northern Ireland Act 1998 which states:
“For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.”
That is a wide-ranging power and the clause extends it.
My concern is that under clause 13(2)(c)
“the Commission may act only if there is or would be one or more victims of the unlawful act”.
The word “unlawful” prompted me to move the amendment, because if there is an unlawful act, why would it not be more properly investigated by other authorities?
Amendment No. 15 would require the commission to establish that there has been no investigation by another person because it has been determined that it most properly falls to the Commission to carry out such an investigation.
Under amendment No. 16,
“The Commission shall give a reason for the issuing of the notice to the person to whom it is issued at the point of issuing it.”
I am asking the Minister to explain why an unlawful act would be investigated by the commission. Surely other bodies might more properly investigate such an act.
I suspect that there is little difference on this issue between ourselves and those on the Opposition Front Bench. The hon. Gentleman is right that, in practice, the commission should work with other appropriate bodies to determine the appropriate body to pursue a particular investigation. Working arrangements are already in place between the commission and similar investigatory bodies. That matter is best dealt with by memorandums of understanding rather than the Bill.
The amendment takes us a shade too far. These investigations and the kinds of issue that the commission will examine are necessarily complex. While we would expect agreement between the relevant bodies as to which was the appropriate one to pursue a particular case, the commission might believe that another body has failed in its duties by not pursuing a particular inquiry. We want to leave in place the power for the commission to pursue such an investigation if it so decides. The normal procedure that we would expect is that when a complaint is made, consideration would be given as to the appropriate body. Sometimes investigations would be carried out jointly between two or more bodies. The commission might make a considered judgment that another investigatory body ought to have conducted an investigation and has not done so, and therefore we wish to leave the power in the Bill for the commission to follow that through.
I am enormously concerned about what the Minister has just said. There are other investigatory bodies in Northern Ireland, such as the Police Service of Northern Ireland and the Police Ombudsman for Northern Ireland. Is the Minister telling the Committee that if the Human Rights Commission, under clause 14(4), which is being called into question by the hon. Member for Tewkesbury, takes into its head that the PSNI and the Police Ombudsman for Northern Ireland have not investigated a matter sufficiently, it can have a second bite of the cherry? Police officers on the ground would not be amused or entertained by that idea.
The powers in the Bill would allow that to happen. The hon. Lady is assiduous, so she will have looked elsewhere in the Bill and seen that terms of reference have to be given for an investigation. There is also an opportunity for the subject of the investigation to appeal against the decision to the county court. Safeguards are in place for the person who is to be investigated. For example, if the Human Rights Commission wishes to enter a place of detention, there can be an appeal. The commission could not act recklessly, but we want to leave in place the power for it to conduct an investigation if it believes that other investigatory bodies have not carried out what it regards as their duty.
It is a pleasure to serve under your chairmanship for the first time, Mrs Anderson. Will the Minister clarify a point? If the police had investigated and had made a decision that the commission does not agree with, could that be investigated or would that decision be final?
If a complaint is made and the commission judges that another body ought to have conducted an investigation and has not done so, it can carry out that investigation. The Bill empowers it to do so. The hon. Lady praised the commission for some of the work that it has done in recent years and, on Second Reading, she made some powerful arguments in that regard. The commission is a responsible body that behaves responsibly, and it is given these powers so that it can carry out its work.
For the most part, we expect either that another body will carry out the investigation, that it will be done jointly, or that the Human Rights Commission will be the most appropriate body to do it, but we leave the powers in place because they are important.
The Minister has taken the wind out of my sails by confirming my worst fears about what we are doing. He knows perfectly well that the historical inquiries team was set up at great expense—it cost millions of pounds—to investigate the 3,000 unsolved murders in Northern Ireland. There is also a commission looking into the disappeared—those ghastly, grisly murders by the IRA in which the bodies were not returned to the families. Is he confirming that if the Human Rights Commission decides that anyone—the police ombudsman, the historical inquiries team or the PSNI—has not investigated a matter sufficiently, it can reopen the inquiry, so that we end up with a truth commission by another name? Is that really what we will get from this provision?
I honestly believe that the hon. Lady is unnecessarily concerned. There are, as she says, many other oversight bodies in Northern Ireland, such as the police ombudsman’s office and the historical inquiries team within the PSNI. If one of those bodies undertook an extensive investigation into a complaint and formed a conclusion, that investigation would have been carried out. If the investigation has been carried out, then it has been done. It is only if the investigation has not been carried out and the Human Rights Commission believes that it should have been that it has the power to do so.
I hope that that clarifies the matter and addresses her concerns. There is no opportunity for the commission endlessly to reopen investigations that have been carried out. If other oversight bodies have conducted investigations, they have fulfilled their obligations. It is only if they have not carried out an investigation that the commission may act.
The Minister says that the measure applies only if an investigation has not already been carried out, but that is not indicated in the clause. We know from experience in Northern Ireland that even when there have been extensive police investigations into a case—sometimes two or three—the police ombudsman’s office will, for particular reasons, decide to rake over those coals again. What in the clause prevents the Human Rights Commission, which is trying to establish some credibility after a stormy period, from doing the same thing?
I draw to the hon. Gentleman’s attention, as I did the hon. Member for North Down, the other provisions. It is only if the Human Rights Commission believes that a complaint has been insufficiently investigated that it can carry out its own inquiry. It is required to place on record the terms of reference for that investigation, and has to give them to the person or persons who are being investigated. Also, there is a right of appeal against the investigation being carried out. While the clause extends powers, we have safeguards in place to ensure that no frivolous investigations can be carried out.
When I met the Human Rights Commission some months ago, I asked what number of cases it deals with. I cannot remember the exact number, but it passes on to the relevant agencies something like 90 per cent. of the cases that are referred to it. If the relevant agency does not then carry out an investigation to the commission’s satisfaction, is the commission able to take it up again? That seems a ridiculous duplication.
Let us be clear about this, and I am grateful to the hon. Gentleman for pointing out that the agreements between the various oversight bodies work in practice. The Human Rights Commission does not seek to investigate everything. If it believes that a complaint is better suited to another oversight body it passes it on. The fact that the Human Rights Commission might suspect that it would come to a different conclusion would not be grounds to carry out its own investigation. Only if the commission believed that the other body concerned did not carry out an investigation that should have been carried out, or if it believed that the other body had investigated insufficiently, would it have the power to carry out its own investigation, subject to all the safeguards that I have described—the need to present terms of reference and the opportunity for challenge and appeal.
I have no doubt that in practice a very sensible approach will be adopted to the arrangements, that the agreements between oversight bodies will continue to work as effectively as they do, and that no frivolous investigations will be carried out, because of the safeguards in the clause.
The Minister has indicated that he believes the Human Rights Commission has not sought to overstep its powers; indeed, he cited evidence given by the hon. Member for Tewkesbury. Does he accept that in many ways the Human Rights Commission has already overstepped its remit by commenting on the war in Iraq, education matters, such as the ending of the 11-plus, and numerous other things? That trend within the Human Rights Commission is already evident. Does he accept that the clause provides an opportunity for it to overstep its remit further?
The hon. Gentleman himself—I give him credit for it—previously highlighted the Human Rights Commission’s commitment to being seen as a credible body in Northern Ireland. I think he acknowledged that in his terms there had been positive movement in that direction. We are considering powers to carry out investigations, rather than to pass comment on matters that may or may not be of interest to the general public. I ask him to focus on the powers that are being given in the clause.
I do not think that the hon. Member for Tewkesbury referred—not in great detail, anyway—to amendment No. 16, which would require the commission to provide a reason for issuing a notice for evidence at the point of its issue. I agree with the sentiment, although as the hon. Gentleman will have noted and as I have mentioned, clause 16 would require the provision of terms of reference, including the specifying of a period in which the investigation must be concluded. That requirement will be sufficient and I hope that he will be satisfied with that.
I shall reserve any other comments that I might have made on other amendments in the group for another opportunity.
I am grateful for the Minister’s explanation of the way in which the clause is worded. I remain concerned, however, for the reasons that I and other Opposition Members have given. As I mentioned, the commission often in practice passes a complaint on to a body that it presumably thinks might more appropriately, at that point, investigate the unlawful acts or the other issues in question. The power then to pass judgment on whether the matter has been sufficiently investigated by the other body puts it in a very powerful position—almost more powerful, in some ways, than the police, for example. Will the commission have available to it all the facts that would be available to the police, because it is to be able to judge whether the police, for example, have sufficiently investigated the unlawful act? I am very uncomfortable with that.
That said, and having listened to the Minister’s explanation, perhaps my amendments do not fully address my concerns. I do not know whether you are minded to allow a stand part debate on the clause, Mrs. Anderson.
We may have to consider voting against the clause. I am not satisfied that the role of the commission is likely to be carried out properly, given the extension of its powers.
Let me repeat that this is not an unbridled power to examine and investigate willy-nilly anything and everything that may be of concern to the commission, and the hon. Gentleman should bear that in mind when he considers whether to support the clause. The commission must provide terms of reference and there is an opportunity to appeal against the decision to carry out an investigation—in other words, there is judicial oversight of the commission’s power to carry out investigations. Indeed, if there were any serious question that the commission was being frivolous or attempting to duplicate an investigation that had been thoroughly carried out elsewhere, its decision could be challenged in court.
I hope that the hon. Gentleman will be reassured by that when he reflects on whether to support the clause. We want to give the commission the proposed additional powers, but they are still subject to safeguards and scrutiny that would result in decisions being taken to court. I hope that that will be sufficient to encourage him to support the clause and withdraw his amendment.
I am grateful to the Minister again. I still have a lot of concerns about the general drift and about the way in which the commission is going. When it was set up under the 1998 Act, it had considerable powers, and it could be argued that they are quite sufficient. I am uncomfortable about giving the commission further powers, including the power to consider whether
“the matter to which the notice relates has already been sufficiently investigated by another person”,
In fairness to the hon. Member for Foyle, who is not here to move his amendments, let me say that he diligently attends to all his parliamentary duties in the House, but that he had to fly to Dublin yesterday—I know that that is no excuse—and had a commitment in Belfast this morning. I am sure that no offence is intended to you, Mrs. Anderson, or to colleagues on the Committee.
I oppose the clause because I am deeply concerned about the ramifications of what we have just discussed. We have had a useful debate so far about what appeared to be a quite innocuous extension of the powers of the Human Rights Commission. I am not a great critic of the commission, as the Minister said, but I want us to be consistent and get things right, and we have the opportunity to do so while the Bill is before us.
The Minister tried to assuage the fears of the hon. Member for Tewkesbury by responding with what it is quite right to call the facts. The facts are that an appeal could be taken to the county court where the commission has served a notice on an individual and drawn up terms of reference under later clauses. That is all well and good if a person can afford to take an appeal to the county court, but let us think of the many police officers who retired under the Patten package.
After the Belfast agreement, we had the Patten report, and many police officers left what was the Royal Ulster Constabulary—I am, of course, married to a former chief constable of the RUC, although that is not relevant; I merely draw it to the Committee’s attention to it. I am extremely concerned about the situation in respect of the police ombudsman investigating complaints of alleged police misconduct by serving or past officers. Many past officers receive no financial assistance in making a court challenge to a decision of the ombudsman.
The same situation will apply when, under subsection (4), the Human Rights Commission alone decides to issue a notice when it has
“considered whether the matter to which the notice relates has already been sufficiently investigated by another person, and” when, in its wisdom, it has
“concluded that it has not.”
The commission will make an entirely subjective decision about whether to proceed with an investigation.
Subsection (6) states:
“where the Commission thinks that a person—
(a) has failed without reasonable excuse to comply with a notice”.
Most bizarrely of all, it goes on to state:
(b) is likely to fail without reasonable excuse to comply with a notice.”
The commission will decide on whether a person has failed, or is likely to fail without reasonable excuse, to comply with a notice. The matter then becomes an offence; subsection (8) states that someone “commits an offence” if they do not “comply with a notice”.
By dint of the clause, we will again give powers to the Human Rights Commission that mean that the person at the other end—the one who is receiving the notice of an investigation—is seriously disadvantaged in terms of financial support should they apply to the county court to get rid of the wretched notice.
If the Minister is intent on driving forward with the clause, I should remind him of the suggestion that I made on Second Reading. We have a chief inspector of criminal justice, a post established by the Justice (Northern Ireland) Act 2002, who can examine the Police Service of Northern Ireland, the police service reserve, the state pathologist and the Office of the Police Ombudsman for Northern Ireland. The clause gives extensive powers to the Human Rights Commission, which is not accountable to, or reviewable by, any other body, but it should be—it ought, at least, to be inspected. I urge the Minister not to tell the Committee that the commission is independent and therefore cannot be open to review by the chief inspector of criminal justice, because he knows full well that the Office of the Police Ombudsman for Northern Ireland is also a statutory independent body and that it is reviewable and can be inspected by the chief inspector of criminal justice.
The precedent has been set, so when Minister defends the clause, as he will do, I urge him to assure the Committee that he will seriously examine extending the powers of the chief inspector of criminal justice, so that people can have confidence that the Human Rights Commission is not off on a frolic of its own trailing through past cases that have already been investigated by the police ombudsman, the PSNI and various other bodies. I am horrified at the manner in which the clause stands at present, and I shall certainly vote against it.
Will the Minister answer a question on subsection (4)? It states:
“The Commission may issue a notice under subsection (1) only if it has—
(a) considered whether the matter to which the notice relates has already been sufficiently investigated by another person”.
Surely that is a Catch-22 situation. The commission has to investigate initially to find out whether there has been a sufficient investigation. The drafting is so woolly. The Minister is allowing the commission to investigate on any grounds at any time. Is that not really the case?
My view of the Human Rights Commission is slightly more jaundiced than that of the hon. Member for North Down, in the same way that my view of the Belfast agreement is much more so than that of the hon. Member for Foyle. The hon. Lady made the scurrilous allegation that my party has accepted that agreement. She need only listen to the hon. Member for Foyle and his party to know that they believe that we are practically rewriting it. But I shall leave that to one side—I just felt that I had to rise to the bait that she threw out.
The Human Rights Commission has been in turmoil. It is a newly formed body with a very turbulent first few years, in which it has shown no ability even to operate its current powers. The commissioner left under a cloud and the institution is still finding its feet. Under those circumstances, to give it more powers is inappropriate and premature. As with all groups, it is trying to establish itself and prove its worth, so the tendency will be to push the boundaries as far as possible. Clause 14 almost encourages it to do that. There is no restriction on the investigations that it could undertake. The commission will conclude whether a matter has been investigated sufficiently by another person. That is totally subjective. There is no objectivity in it at all. It will be totally dependent on the view of the commission.
The commission might see value to itself in certain cases. For instance, some might raise its profile positively, whereas others might be pursued owing to political push, or vociferous groups or individuals—that will be the tendency. The Minister said that if anyone feels aggrieved that the commission has overstepped itself and that a full investigation has been conducted already— the hon. Member for North Down pointed this out—the onus will be on them to challenge the commission’s decision, but without its resources. Do not forget that the commission is backed up by huge public resources whereas a private individual might not have any at all. Police officers in my constituency—it might not be just police officers—have found themselves in that position with the police ombudsman. There is the same potential with the commission.
I do not believe that the commission has made the case for an extension of its powers. The Minister knows that it wants to push the boundaries of its powers as much as possible—so much so, in fact, that he had to accept in the consultation document that much of what it asked to be included in the Bill could not be accepted because it went beyond what the Government see as its remit. I suspect that having turned down some of its milder requests for the extension of its powers, the Government have thrown the provisions before us as a sop to the commission. The decision to include them in the Bill should not have been made on that basis and, therefore, we will join the hon. Member for North Down in opposing clause 14.
I shall not go over the arguments raised when I discussed my amendments, nor indeed those arguments put forward by the hon. Members for North Down and for East Antrim; I shall just reiterate my concern.
Clause 14 says insert “69A Investigations: evidence”, and:
“For the purpose of an investigation...the Commission may by notice in writing require a person—” to provide information, documents, oral evidence and so forth. As hon. Members have said, there is no comeback for the person who is required to provide that evidence, unless he has unlimited funds, which few people have. I remain concerned about the extent of the powers that commission has, and indeed seeks.
In the documents that the commission sent presumably to all hon. Members on the Committee, it complains that clause 14 also severely limits the capacity of the commission to investigate anything connected with national security. My goodness, should a human rights commission be investigating matters of national security? It should not, but that is its drive. The Minister does not want it to happen, but the commission certainly does.
We have not had the opportunity to touch on national security issues, but the hon. Gentleman knows from examining the clauses on the Human Rights Commission that it will not be able to investigate matters of national security.
Indeed, and I do not accuse the Minister of wanting the commission to do so. However, that is its drive, that is the way it is pushing and that is of great concern.
With those few remarks, I remain dissatisfied with clause 14. I look forward to the Minister’s response, although we have probably heard most of it already. We will see how we go.
The Minister will try not to be too repetitive, but I regret that that may be the case.
The hon. Members for North Down and for East Antrim raised the issue of legal aid. I expect that if the Human Rights Commission had issued a notice about an investigation to an individual, they would be entitled to legal aid, subject to the usual merits and means test that would apply to any legal aid application in any proceedings. However, it is important to remember that in most cases, the commission will investigate not individuals but organisations. That will be the normal type of investigation. The idea of the commission harassing and haranguing the penniless person is inaccurate.
If somebody satisfied the means and merit tests, they as an individual would be able to apply for legal aid and they would have the wherewithal to counter the commission’s notice. I shall confirm that point to my satisfaction, and if turns out to be untrue I shall write to hon. Members to make them aware. For the most part, however, the commission will investigate organisations and the issue will not arise.
Will the Minister point to a single clause in this extensive Bill stating that the commission will mostly investigate organisations? Is there anything in the Bill to support the claim? Without repeating what I have just pointed out to the Minister, the vast majority of retired police officers on their pensions will not qualify for legal aid. That was the problem when we discussed investigations by the police ombudsman. Such an investigation is an enormous ordeal, and to come through it and have it reopened without the assistance of legal aid—despite reassurances to the Committee—by an unaccountable Northern Ireland Human Rights Commission is unacceptable and unreasonable.
It is unusual for the hon. Lady to paint an exaggerated picture, but with that argument I fear that she has. I have already assured the Committee, and I shall offer the following reassurance to her: an individual or organisation that has been through the investigation she describes would have undergone a thorough investigation, so in practice the commission would have no ground on which to conduct its inquiry and investigation. The investigation would already have been carried out thoroughly. If someone has been subjected to a thorough and long-running investigation, it is highly unlikely that the Human Rights Commission would reopen it. That would just not occur in real life, and I suggest that the hon. Lady is painting a slightly exaggerated picture.
Even in his answer the Minister said that an investigation was highly unlikely, which means that it could happen. How on earth can he guarantee that it would not when the commission has to investigate whether the original investigation was thorough enough?
The hon. Gentleman made that point earlier. Clearly, the commission must have grounds for believing that an investigation was insufficient. I have said that that is subject to terms of reference being drawn up, and to appeal. A safeguard is in place to ensure that frivolous inquiry does not take place.
The hon. Gentleman brings us to the nub of the issue. The Human Rights Commission is independent, so there must be a point at which it is free to make its own judgment and decisions, and to carry out its own investigations. If it is not truly independent, it cannot be trusted absolutely to do the job that we expect it to do. Of course, there are restrictions in place—for example, in relation to national security—and there are safeguards in the terms of reference and appeals.
There must be an element of independence. We may not always like the investigations that are carried out or the conclusions that are reached, but the commission must have that so that it has credibility for the public generally. Being able to make a judgment on whether there has been sufficient investigation is a firm guarantee of an overall system of scrutiny in Northern Ireland that is fit for purpose and does the job.
Perhaps I should withdraw that comment.
In most cases, the conclusion when an investigation had already been carried out would be that a sufficient investigation had been carried out, thus guaranteeing oversight, which is considerable in Northern Ireland with the ombudsman and so on. The provision is a guarantee that the oversight system works in practice.
I am sure that hon. Members in Northern Ireland and others will be assiduous in asking questions about how many investigations are carried out and so on, and the commission will publish its own reports so we will be able to see how the system works in practice. I believe that it will be independent, albeit with greater powers that will occasionally enable it to carry out an investigation, but for the most part it will offer a guarantee that the overall system works effectively.
The clause is written with reference to “person” rather than “person or organisation”, which gives rise to the concern expressed by the hon. Member for North Down. I know that it is difficult to give a specific example without warning, but could the Minister give an example of the sort of cases that the powers will enable the commission to investigate?
If a complaint had been made to the commission by someone in prison about something that had happened there, it would immediately refer the matter to the prisoner ombudsman. That would be the appropriate oversight person to carry out the investigation. If subsequently—perhaps six months later—the prisoner contacted the commission saying, “I was in touch with you. You recommended that the prisoner ombudsman carry out the investigation, but he has never been in touch with me,” the commission would first inquire of the ombudsman why the investigation was not carried out. If the ombudsman said, “Well, I had a look at it and decided not to do so,” and the commission felt that there were grounds for an investigation, it could investigate.
There is no duplication because, as the hon. Gentleman said, the vast majority of complaints will be handed over to the appropriate body and followed through in a thorough and timely way. The power enables us all to be certain that all complaints will be properly investigated and that an appropriate response will be made.
I want to make a little progress. I reassure the hon. Member for North Down, who at least once—twice, I think—mentioned the prospect of retired police officers being investigating by the Human Rights Commission when they had already been the subject of other investigations. The Bill includes a start date of January 2008, so the prospect of such retired officers being subjected to investigation by the commission does not arise. The commission is not part of the criminal justice system and therefore it is not appropriate that it should be under the scrutiny of an inspectorate. That is a simple matter of fact.
I want briefly to allude to one or possible arguments in relation to other propositions that might have been made. It is very important—we have included a relevant provision in the Bill—that the Human Rights Commission cannot force people to produce information that other legislation prevents them from providing. For example, if someone is prevented under data protection legislation from providing information, the Human Rights Commission cannot compel that person to provide it. The Bill makes that clear.
We spent considerable time explaining to the hon. Member for Foyle why we wanted to retain limited rights of appeal, whereas he encouraged the Committee to press for broader rights of appeal, and I am intrigued to note that some of his amendments would have removed rights of appeal altogether. I have made clear to the Committee the importance of a right of appeal against the issue of a notice, to preserve the right balance.
It is of course important that the Human Rights Commission cannot be in a position to compel the prosecution services, for example, to provide information. The prosecution service must make a judgment and it would be wrong for it to be forced to bring information about the decision in question before the Human Rights Commission.
I thank the Minister for his observation in which, perhaps unintentionally, he exposed one of the difficulties faced by the Human Rights Commission—that it is seen as a fairly partisan body with which those on the nationalist side would have more sympathy and which they would regard as more sympathetic to their point of view than to others. I suspect that that is why the hon. Member for Foyle, who is not here to answer for himself, wants fewer powers of appeal against the Human Rights Commission than he wanted in relation to matters that we discussed earlier.
We can only speculate about arguments that might have been put to the Committee. However, I am sure that the hon. Gentleman will agree that we need to arrive at a point in Northern Ireland at which all the relevant bodies—whether the Human Rights Commission or the Police Service of Northern Ireland—serve the interest of all communities there, and are perceived to be doing so.
In conclusion, the fines in the clause are appropriate. Furthermore, it is important that we have an exclusion for matters of national security intelligence because it would be quite wrong if the commission were in a position to force intelligence to be passed into its hands and into the public domain. It is therefore important that we have the relevant restriction in place.
We were now to have discussed amendment No. 46 to clause 15, in the name of the hon. Member for Foyle. Let me say for the benefit of the Committee that the hon. Gentleman did me the courtesy of sending me a letter explaining that he would not be able to be here this morning, but that he hopes to be here this afternoon.