I remind the Committee that, with this, it will be convenient to discuss the following amendments: No. 19, in clause 20, page 16, line 12, at end insert
‘, if he suspects that he may be able to provide information about a recent explosion or another recent incident endangering life, or the effects thereof.’.
No. 20, in clause 20, page 16, line 14, leave out ‘necessary’ and insert ‘reasonable’.
I suspect, Sir Nicholas, that the only person who can remember is the Hansard reporter, but we shall proceed anyway.
I think that I was finally about to persuade the hon. Gentleman that the word “necessary” was preferable to the word “reasonable”. Let me give an example of why “necessary” is the right word to use here. For instance, an officer could detain an individual, stop them to question them and ask them for details of their home address. After the individual gives some information, the officer may ask, “Well, what colour is your front door then?” When the person answers that question, the officer may then ask, “What street is the next street?” When the person answers, the officer must send someone to check whether that information is accurate. If it is accurate, the person will be released; if there are further grounds for questioning, the questioning will continue. In other words, that officer can detain that individual for as long as it is “necessary” to carry out those inquiries. “Necessary” is a more black-and-white, a more certain word than “reasonable”, which, as I suggested earlier, offers too much room for doubt and uncertainty.
I do not suggest that for a minute. The hon. Gentleman is playing a substantial role in the Committee’s deliberations, and I thank him for that.
“Reasonable” is the correct word in other circumstances, but we are discussing extreme circumstances, in which an officer has considerable concerns about a particular individual and perhaps needs to check certain information. It is important in those pressured circumstances that the officer has certainty, and the word “necessary” gives the degree of certainty that we feel is essential. There is a judgment to be made here. I began my remarks by saying that judging the difference between the word “reasonable” and the word “necessary” is a fine judgment, but we think that the word “necessary” is the right one here.
In conclusion, I would like to deal with the other amendment that the hon. Member for Tewkesbury has tabled, which relates to limiting questioning to instances in which there was a suspicion that someone had information regarding an explosion or an incident that would endanger life. It would simply be impossible to conduct any kind of random stop-and-search operation if we were to accept that amendment. I hope that the hon. Gentleman will understand that, if a threat is made against a particular meeting, building or event, it may be necessary for the Army or the police to mount some kind of surveillance operation, perhaps involving some rolling surveillance cordon. If they were not able, to some degree, to make a random selection of individuals, it would make that operation extremely difficult. Obviously, all such operations need to be carried out carefully, sensibly and sensitively, particularly in certain parts of the community, but we believe that the constraint that the hon. Gentleman’s amendment would give would make it very difficult for the police and the Army to do their job.
The wording of amendment No. 19 is lifted from elsewhere in the Bill, so the Government accept that such a situation is the only time that individuals can be stopped for this particular kind of questioning. Subsection (2) says:
“A member of Her Majesty’s forces on duty may stop a person for so long as is necessary to question him...about a recent explosion or another recent incident endangering life...what he knows about a person”.
That qualifies why individuals can be stopped under subsection (2). Subsection (1) does not actually state why the member of Her Majesty’s forces or the constable would want to stop that person; they could just stop them for no reason at all for as long as they feel necessary. I suggest that subsection (1) is at least badly worded, and probably worse than that.
I simply ask the hon. Gentleman to reflect, as I know he does, on the context in which we are moving the clause. We are moving to normalisation, under which part VII of the Terrorism Act 2000 will be repealed, but we need specific powers in place to deal with some of the extreme situations with which the law enforcement and the security services have to deal.
I again draw on the experience of Whiterock. Officers have very little time to make judgments, decide and act to preserve law and order or detain people who may be responsible for lawlessness and worse. It is to deal with those extreme and pressing circumstances that we seek such powers. We have judged them necessary. I ask the hon. Gentleman, in assessing whether to support the clause, to bear in mind the context in which we are proposing it.
The Minister used an interesting phrase when he said that the context was that wewere moving toward normalisation, but the word “necessary” is not normal in this context; the word “reasonable” is. I am afraid that he has done the reverse of selling the case to me.
On the reasonable test of the man on the Clapham omnibus, I came in by bus this morning, so I consider myself that reasonable man. Members in Committee yesterday probably did not think so, but that was a different matter. I have watched a video of Whiterock with the police, and it was a terrible situation. If a constable or member of Her Majesty’s forces needed to detain someone hurling rocks at the police—as some were—in order to question them about their identity and movements and if that person did not comply, I would think that the person questioning them would be entitled to detain them for a substantial amount of time. I would consider that reasonable. What I do not consider as moving toward normalisation is the insertion of the word “necessary”. It is open-ended and not generally accepted as a legal term, whereas “reasonable” most certainly is. Given that, I am sorry to tell the Minister that I am not happy with his explanation and that I will press the amendment to a Division.
It is a real pleasure to see you back in the Chair this afternoon, Sir Nicholas, to take us through more clauses of an interesting Bill. With your leave, I apologise to my Committee colleagues, as I was called away to a meeting outside the House this morning and missed the exciting debate, particularly about the provisions concerning the Northern Ireland Human Rights Commission.
My amendment relates to what I think is the proportionate punishment for not complying with a reasonable—in fact, as the Minister has now told us, necessary—provision for Her Majesty’s forces on duty to have certain powers of stop and question. The Minister, in response to the hon. Member for Tewkesbury, reminded the Committee that the Government were attempting to deal with “extreme circumstances”, such as Whiterock, which was a vicious outbreak of rioting in September 2005 in Belfast that spilled over into my constituency of North Down. Yes, I am well aware of the nasty circumstances in Whiterock.
Let us consider what is in clause 20. Subsection (1) says:
“A member of Her Majesty’s forces on duty or a constable may stop a person for so long as is necessary”.
Subsection (2) adds:
“A member of Her Majesty’s forces on duty may stop a person for so long as is necessary to question him” about very serious matters—
“(a) what he knows about a recent explosion or another recent incident endangering life” or
“(b) what he knows about a person killed or injured in a recent explosion or incident”.
The member of Her Majesty’s forces on duty is not stopping the person to question them about bird watching or another light matter, but about serious issues— about a person killed or injured in a recent explosion or some other incident endangering life. However, in punishment for failing to stop to answer such questions—which the Minister has assured us are “necessary” bearing in mind the circumstances of,for example, Whiterock—for refusing to answer the questions or for failing to answer the questions to the best of his knowledge or ability, a person is merely “guilty of an offence” and liable
“to a fine not exceeding level 5 on the standard scale”.
Roughly translated, that is about £5,000. Frankly, I do not think that that penalty is at all proportionate to the serious matters that a member of Her Majesty’s forces may stop and question a person about.
The intention of my amendment is, first, for the Minister to accept the amendment, which would be the best judgment. However, he might be unable to accept the amendment at this early juncture and might need a little time to reflect on how to get the provision right. I therefore urge him to make the punishment fit the crime and to be proportionate to the serious issues that he has drawn to the attention of the Committee when responding to earlier amendments in the name of the hon. Member for Tewkesbury. With those words, I look forward to the Minister’s response.
I am grateful to the hon. Lady, as ever, for probing and for scrutinising every aspect of the Bill. It is important that penalties are proportionate tothe offence. It is also important that penalties are consistent throughout the legislation. As set out in schedule 3, an offence of failing to stop is punishable by a fine up to level 5, the same penalty that we are proposing in clause 20.
The hon. Lady should consider that the clause deals specifically with the offence of failing to stop. It may be that a person refuses to stop because they have a grudge against the police or Army but, of course, it is important that there is a penalty for someone who fails to stop in whatever circumstances. A person may not have committed any offence or have any further information to offer but, even so, failing to stop would be an offence. If a person had committed a more serious offence, if they were actively engaged in violence or inciting violence and so on, they could be arrested by the police, taken away and placed in custody. There is no question that a person behaving unlawfully can be arrested under other legislation. Clause 20 deals merely with the offence of failing to stop.
I made it clear earlier in the debate that it may be necessary to use the powers to stop and question randomly. It may be that surveillance is drawn up on a particular event and that people are stopped and questioned randomly. In those circumstances, we regard the fine of up to level 5 to be proportionate for the simple offence of failing to stop. If a more serious offence is being committed—if people’s lives are endangered, or violence incited—it would be up to the police to arrest the individual involved and deal with them appropriately.
“Her Majesty’s forces on duty or a constable”.
Will the Minister assure the Committee that the penalties for the offences of failing to reply, refusing to answer to the best of one’s ability or refusing to answer at all a question posed by a constable of the PSNI, and not merely a failure to stop, are punishable merely with a £5,000 fine?
They are, and we believe that the penalties are proportionate. However, if a person acted in a violent way to an officer or to a member of the public in the course of failing to stop, that would be a more serious, arrestable offence, which could carry a sentence of imprisonment. We regard the penalty as proportionate for the actual offence of failing tostop. Indeed, we have consistently applied that proportionality in the Bill. Clearly, such things are a matter of judgment, but we regard a fine of up to level 5 as appropriate for the simple offence of failing to stop, and that that is proportionate and consistent with other measures in the Bill.
The Minister has repeatedly implied, or has expressly said, that the only offence that can be committed under clause 20 is simply that of failing to stop. With the greatest respect to the Minister, and though I am about to disagree, the offences are listed in clause 20(3):
“A person commits an offence if he —
(a) fails to stop when required to do so...
(b) refuses to answer a question addressed to him, or”—
I have no quibble with the hon. Lady. Inadvertently, I was using the term “failure to stop” as shorthand for all that is contained in clause 20(3). She is entirely right.
As ever, and characteristically, the Minister is entirely gracious. He was paraphrasing and using shorthand, which he has acknowledged. He meant to say that there are various offences, because we have the conjunction “or” in clause 20(3). The offence is not only
“failing to stop when required to do so” but
“refusing to answer a question addressed to him” and failing to
“answer to the best of his knowledge and ability a question addressed to him” about
“a recent explosion or another recent incident endangering life” or “a person killed”.
I know that the Minister does not think that life is cheap in Northern Ireland. For an incident in which someone’s life is endangered or they are killed or injured, I would like to think that a corresponding term of imprisonment would be an alternative to the £5,000 fine.
The hon. Lady helps the Committee to get nearer to the point. If a police officer has evidence that an individual has carried out or been connected with a violent act such as the setting of explosives or some other heinous crime, the officer has the power to arrest that individual. Any obstruction would carry its own penalties. If the individual were found guilty of those more serious crimes, they would go to prison and rightly so. The provision relates simply to somebody who has failed to stop; they may be completely innocent of any other crime. We think that the fine is a sufficient, proportionate penalty. If there are grounds to believe that somebody has committed a more serious offence, they should be arrested and dealt with.
The Minister is as persuasive as ever, but he has highlighted a particular error in the drafting of clauses 20 and 22. I would like to draw hon. Members’ attention to an ambiguity that gives rise to some confusion, which the Minister just inadvertently put his finger on. Clauses 20 and 22 both begin with the words:
“A member of Her Majesty’s forces on duty or a constable”.
The rest of clause 20 does not talk about a constable, however. My amendment attaches to subsection (2), which is exclusively about a member of Her Majesty’s forces. Clause 22, however, contains the two alternatives of a member of Her Majesty’s forces or a member of the Police Service of Northern Ireland, and then deals only with the powers of one or the other. It is extremely confusing.
The Minister has just assured the Committee that if a more serious offence has been committed and if the person resists or is violent towards the officer, the police constable can arrest the individual. Sorry, Minister: in clause 20(2), that is the power of
“Her Majesty’s forces on duty”.
Mercifully, we do not have joint patrolling. In the horrible, awful days of the killings and of hundreds of deaths in Northern Ireland, we had joint operations.
The Minister indicated that these provisions were brought forward to deal with the extreme situation of the loyalist rioting in Whiterock in Belfast in September 2005. We witnessed on our television screens those absolutely disgraceful pictures, which were flashed around the world. It was the worst possible publicity for Northern Ireland.
We are trying to move towards a more peaceful, stable Northern Ireland, but the drafting of clause 20 deals with a member of Her Majesty’s forces on duty on his own, not on a joint operation. He cannot turn to his PSNI colleague and say, “You can use your powers.”
I shall try to clarify the differences to which the hon. Lady has referred. Clause 20 refers to a
“member of Her Majesty’s forces on duty or a constable” because when part 7of the Terrorism Act 2000 is repealed, neither will have the power to stop and question. If we look at clauses 21 and 22—I stray slightly, but only to make the point—we will see that they apply only to members of Her Majesty’s forces, because the police already have sufficient powers to carry out the actions that the clauses cover, whereas Her Majesty’s forces do not. An Army officer is not in a position to make an arrest, for example, and clause 21 will give him that power. That reinforces the point that our approach has been minimalist; we have identified the minimum powers necessary after July 2007 to have the wherewithal to maintain public order and deal with extreme circumstances.
I shall simply repeat what I said earlier. Once part 7 goes, neither the police nor the Army will have the powers that we seek to provide in clause 20. If we did not replace some of those powers for the Army, the police would still have the powers that clauses 21 and 22 seek to give the Army. However, we wish the Army to have the powers, too, so we look to do the minimum necessary.
Let me paraphrase what the Minister has just told the Committee. Owing to the lapse of other terrorist legislation, the police and the Army will not have powers. Therefore, under the legislation before us, we must give the Army powers, but the police will have powers under other legislation. That is a fair summary of what he has just said.
If that is true, will the Minister look carefully at the wording of clause 20? Subsection (1) refers to:
“A member of Her Majesty’s forces on duty or a constable”.
If a constable already has the powers, as the Minister has assured the Committee, there is no need for the clause to refer to a constable at all. He just said that the provisions give members of Her Majesty’s forces the powers to stop and to question.
My point and that of my amendment is that there will be no joint patrols: a member of Her Majesty’s forces will be on duty on his or her own. They will have the power to stop a person in serious circumstances pertaining to a recent explosion, a recent incident endangering life, or to a person killed or injured in a recent explosion or incident. My entire argument is that in those serious circumstances, when a member of Her Majesty’s forces is on duty on their own and unable to call in aid a member of the PSNI, any offence committed ought to be punishable by a term of imprisonment equivalent to the £5,000 fine. That is my point.
I am grateful for the opportunity to speak again, if for no other reason than to clarify one point on which I slightly misled the Committee when responding to the hon. Lady. Clause 22 applies to constables as well as to members of the Army, so we seek to confer powers specifically on members of Her Majesty’s forces only in clause 21. When part 7 lapses, they will not have any power of arrest. The Army must have that limited power of arrest and of detention for up to four hours so that they can participate effectively in what may be a difficult public order situation or a situation surrounding an explosion.
Clause 21 is only for the Army, and clauses 20 and 22 apply power equally to the police and to the Army. We want to introduce the minimum powers necessary. The specific powers in clause 20 are concerned with the ability to stop and to question. If the Committee focuses on that narrow offence, I hope that it will agree that the penalty of a fine not exceeding level 5, which is the issue under discussion, is proportionate.
That was a lengthy intervention.
I am terribly sorry to disagree with the Minister, but as all hon. Members who consider the Bill will clearly see, the reference that he made to clause 21 and to the powers of arrest refers only to the powers of arrest given to Her Majesty’s forces. There is no equivalence given to a member of the PSNI. The word “constable” does not appear in clause 21. The powers in clause 22, relating to entry to a building, noting what and who is in the building and so on, are given to a police officer. There is no equivalence between the powers of entry in clause 22 and what we are discussing in clause 20, namely the power to stop and to question. It would be helpful if the Minister could indicate the legislative provisions that give PSNI constables the right to do what a member of Her Majesty’s forces can clearly do under clause 20, because the Bill does not.
I am always happy to try to help the hon. Lady and the Committee, but I suspect that I have gone as far as I can. On the narrow point of her amendment, which concerns whether a fine of up to level 5 is proportionate in relation to the offence of failing to stop when a constable or a member of Her Majesty’s forces insists on it, I fail to see how I can say more to try to persuade her. I acknowledge, however, that the clauses need to be read with great care, as the hon. Lady has said. For example, clause 20(1) refers to a
“member of Her Majesty’s forces on duty or a constable” but clause 20(2) refers just to “Her Majesty’s forces”. We do not seek to give the powers to the police under subsection (2), because they already have them under the Police and Criminal Evidence Act 1984, and we do not seek to duplicate powers that already exist. Instead, we want to give the minimum powers necessary to ensure that both the police and the Army can operate effectively in situations of extreme public disorder or in a situation involving explosives. I have gone as far as I can—I do not know whether I have persuaded the hon. Lady, but we shall soon find out.
I do not wish to detain the Committee, but the Minister has just pinpointed PACE as the source of the rights of police constables to stop and question in relation to an explosion, an incident endangering life, or where a person has been killed in a recent explosion or another incident. PACE has been identified for the first time this afternoon. Previously, the Minister said that clauses 21 and 22 provide equivalent police powers, but they most certainly do not. He has clarified the point, which is helpful. As he has said, given the seriousness of incidents, such as rioting, about which a person can be questioned by a soldier on his own with no member of the PSNI present, I am not happy that a person who refuses to co-operate when someone has been killed or seriously injured—
I am following the hon. Lady’s argument and the Minister’s explanation closely. I am concerned about the extra punishment that she is seeking to introduce, which is based on amendments that I tabled. Had I succeeded in getting those amendments through, I would have been more comfortable with a stronger punishment, but as I did not, I am not as comfortable. Does she follow that argument, and would she like to comment?
I am not persuaded by the argument—I regret that I have not been here for the entire debate. It should be borne in mind that the provisions that we are considering today have just increased the powers of the Northern Ireland Human Rights Commission. We are saying loudly and clearly to the people of Northern Ireland that we care about their human rights and most certainly about the right to life. We have just identified in clause 20 an incident that might deprive a person of their life or leave someone seriously injured. I should like to think that any well-intentioned, reasonable person on the bus—for example, the hon. Member for Tewkesbury, who travelled on the bus this morning—would expect full co-operation from every single person in Northern Ireland who was a witness or who has information. In those circumstances, I cannot for the life of me believe that a person could turn their back and walk away, and receive no more than a fine. It does not make moral sense, so I shall press the amendment to a Division.
Before we move off clause 20, I would like the Minister to clarify something. During his long debate with the hon. Member for North Down, I became increasingly intrigued by subsection (5). In what circumstances would he envisage the police or the Army stopping an aircraft that is airborne? Is it anticipated that Superman might be recruited by the PSNI to knock on the window of the cockpit and demand that the aircraft should be stopped? Will the Minister clarify that matter, because it has intrigued me for the past half hour?
I shall come to the hon. Member for East Antrim in a moment.
The hon. Member for Argyll and Bute must read the wording in subsection (1) carefully. A constable would not otherwise have the power to question someone to ascertain his identity and movements
“for so long as is necessary”.
We seek to give that power to the police, because it would be ridiculous for the Army to have more powers than the police to deal with a public order matter or other pressing situation. Subsection (1) must be read very carefully. It states that a constable may
“stop a person for so long as is necessary to question him to ascertain his identity and movements.”
The police in Northern Ireland would not otherwise have that power in the circumstances that we have been discussing.
Let us consider a situation elsewhere in the UK. If the police have reasonable grounds to believe that an offence has been committed, they can stop someone and question them under PACE. We are discussing situations in which the police need to detain someone to ascertain their identity and movements. We believe that we need such powers in Northern Ireland and that similar powers should be given to the Army to deal with incidents that endanger life—sadly, the threats of explosives and of serious social disorder still exist in Northern Ireland. It is specifically because those risks still exist in Northern Ireland that we seek to give those limited but important powers to the police.
The Minister has not quite answered my question. The question is why now? Why were those powers not introduced in 1972, at the height of the troubles, or more recently? The DUP is almost sitting down with Sinn Fein, and the IMC report says that the IRA is not involved in paramilitary activity, so why is it necessary to extend Army and police powers?
I have failed to explain the matter sufficiently clearly. Those powers already exist in Northern Ireland under part VII of the Terrorism Act 2000. Because of the commitment to repeal part VII from the end of July this year, Ministers had to decide whether leaving out all those powers was reasonable, given the threat that still exists from terrorism and serious public disorder linked to paramilitary activity. Our judgment was that we could not do so and that we needed to put in place minimum powers to enable the police and the Army to continue to deal with such serious situations. We are including powers that already exist, but we are dropping the part VII powers, which will not exist after July. We feel that the powers that we are keeping are necessary in the present circumstances.
I cannot remember, Sir Nicholas, whether I am intervening or making a speech.
Thank you, Sir Nicholas. I hope that I have clarified the position.
We now come to the question raised by the hon. Member for East Antrim. If I were to give a serious explanation, I would not persuade anyone. I presume that the provision means that if a police officer or someone in the Army were waving to someone flying overhead, it would not constitute an offence, but I am happy to write to the hon. Gentleman—[Interruption.] I see a pilot in our midst.
It had to happen, Sir Nicholas, but I salute your self-control up to this point.
I want to thank whoever drafted this piece of legislation on behalf of pilots all over Northern Ireland. It is a matter of great relief to me that we will not be stopped while we are flying. I suggest to the Minister that it might be possible to stop an aircraft that is airborne by using a large fan. Is it the Minister’s understanding that an aircraft about to become airborne could legitimately be stopped by a memberof the security forces? It would be travelling at about 150 mph.
The hon. Gentleman will be copied into my letter to the hon. Member for East Antrim. That is probably the most constructive way to respond to that most insightful question.