Briefly, and on the same lines as I questioned the Minister on why it is necessary to extend the powers of the police under clause 20—I was desperately searching through the Terrorism Act 2000, but we reached clause 21 before I could find the relevant provision—will he explain why it is necessary at this stage to introduce powers that I think he said do not exist for Her Majesty’s forces, given that we are supposed to be moving towards normalisation?
My second question concerns subsection (1), which begins:
“If a member of Her Majesty’s forces on duty reasonably suspects”.
Are we going to continue to use “suspects”, or will it be “believes” in future? I am struggling to understand what subsection (2) means. Perhaps the Minister will clarify the situation.
It is important to recognise a couple of things. First, members of Her Majesty’s forces do not have a power of arrest, which we seek to provide them with under limited circumstances. Secondly, I ask the Committee to consider a situation in which a member of Her Majesty’s forces is dealing with explosives that have been found. The Army has the expertise to deal with a threat from explosives by defusing them and so on. The Army could be called urgently to a road closure or some other scenario. They might be the only people in the area; they might get there before the police; or they might be there because they are the only people who are safe to be there. If they came across somebody whom they suspected of being involved in the commission of the offence of laying explosives, they would need to have the power to arrest that individual. After the Terrorism Act 2000 is repealed, they will not have that power—
That has given me an opportunity to comment on two curious aspects of the clause. First, I should like some clarification and assurances from the Minister about the way in which it is drafted. It states:
“If a member of Her Majesty’s forces on duty reasonably suspects that a person is committing, has committed or is about to commit any offence he may...arrest the person without warrant, and...detain him for a period not exceeding four hours.”
What is the position of an off-duty soldier? The Minister has given us assurances that the PSNI has powers of arrest and detention under other legislation, even when part VII of the 2000 Act is dropped. Will an off-duty member of the PSNI have to stand by and not intervene? And will they have to call in aid a member of the PSNI who is on duty? What is the position of an off-duty soldier? It is rather vexing that community support officers in Northern Ireland will have more powers than members of Her Majesty’s forces when a person about to commit an offence.
The second point is related to that in the sense that subsection (2) states that a person—meaning a member of Her Majesty’s forces—
“making an arrest under this section complies with any rule of law requiring him to state the ground of arrest if he states that he is making the arrest as a member of Her Majesty’s forces.”
For ease of interpretation, subsection (5) defines“a rule of law”:
“The reference to a rule of law in subsection (2) does not include a rule of law which has effect only by virtue of the Human Rights Act 1998.”
That is extraordinary. Given the overall content ofthe Bill and, as we have highlighted, the powers of the Northern Ireland Human Rights Commission, I am amazed and surprised to find an exclusion whereby a soldier does not seem to have to comply with the Human Rights Act 1998. Those are the two points on which I await clarification by the Minister.
On the hon. Lady’s first question, the powers are not conferred on an off-duty solder by this piece of legislation. An off-duty soldier would, of course, have the power of citizen’s arrest, in as much as any other member of the public would have that power if something were happening and they were the closest person to the situation, but they would not have the powers conferred under the Bill. Soldiers would have those powers only when they were on duty. I hope that that clarifies the position. In reality, there would, of course, be an ongoing Army operation to deal with a major security threat or serious incident, which would obviously include only soldiers who were on duty.
Both the hon. Lady and the hon. Member for Tewkesbury have mentioned subsection (2). When the police make an arrest, they have to give reasons for doing so. They have to say that there is a suspicion that the person being arrested has been involved in the commission of an offence. The police have to give that information to the person whom they are arresting, which they are trained to do with great care.
The Army is not trained to do that. We therefore propose that it is sufficient for members of Her Majesty’s forces who make arrests simply to state that they are doing so as members of Her Majesty’s forces, which is a simple, straightforward line that they will all be in a position to use. That provision will empower them to detain the person for up to four hours. Of course, if the police arrest that person, that person must be given reasons. If that person is then rearrested and detained for other reasons, they must be given those reasons, too. However, because members of Her Majesty’s forces are not trained for that, because there is no need to train them for that, all they have to do is say that the arrest is being made by a member of Her Majesty’s forces, which is sufficient for the powers conferred under the clause.
There is some confusion here. The hon. Lady is rarely confused, so I simply say that there must compliance with the 1998 Act and that there is no exemption from that. The 1998 Act still applies, and it is not suspended in the situations that we are discussing.
The Minister has just confirmed that, of course, all soldiers abide by their human rights obligations. Will he therefore explain the need to include subsection (5), which, unless my eyesight is really poor, clearly states:
“The reference to a rule of law in subsection (2) does not include a rule of law which has effect only by virtue of the Human Rights Act 1998”?
Which rules of law arising only by virtue of the 1998 Act do not bind Her Majesty’s forces?
The best scenario is for me to write to the hon. Lady and give her a fuller answer than I can give her now. I offer her the wider assurance that the Bill is compliant with the European convention on human rights and has been carefully drafted as such. However, I am more than happy to write to her in relation to her point about subsection (5), if that is sufficient.
On a slightly different point about subsection (2), the Minister has said that members of the armed forces do not need to give a reason when making an arrest. Is he comfortable with that? I accept his explanation that they are not trained to handle such situations, but there must be a reason why the police have to give a reason for an arrest. The person being arrested will presumably not have listened to this debate and will not know why they have not been given the reasons for being arrested. Is the Minister comfortable with that?
I am comfortable with that, given the kind of scenario that I remind the Committee we are dealing with, which might involve extreme risk to life. Obviously it is necessary for a member of Her Majesty’s forces to offer some explanation, but we have confined that to saying simply that they are making the arrest as a member of Her Majesty’s forces. That is sufficient, in the face of what might be great pressure, for an arrest and detention for up to four hours. It is a sensible and proportionate measure and, to answer the hon. Gentleman, I am comfortable with it.
I thank the hon. Member for Foyle, who has just arrived, for courteously arranging for his office to send a further message to the Chairman that his plane had been delayed at Belfast City airport by adverse weather conditions. We welcome him, a little belatedly, to this afternoon’s sitting.