Justice and Security (Northern Ireland) Bill

moved Amendment No. 35: 35: Clause 20, page 16, line 6, at end insert ““reasonably”” The noble Lord said: This amendment deals with the duration of stop and question. The Bill provides, in Clause 20(1), the police and members of the Armed Forces on duty with the power to, "““stop a person for so long as is necessary to question him to ascertain his identity and movements””." Members of the Armed Forces are also given a power in Clause 20(2) to stop a person for so long as is necessary to question him to ascertain, "““what he knows about a recent explosion or another recent incident endangering life””," or what he knows about, "““a person killed or injured in a recent explosion or incident””." The Explanatory Notes state that this power does not engage the right to liberty in Article 5 of the European convention because it involves stopping a person for a relatively short time to question him, and that does not amount to a deprivation of liberty. In its report, the Joint Committee on Human Rights accepted that: "““It is correct that a short detention pursuant to a stop and search power will not normally amount to a deprivation of liberty””." However, it points out that, "““the wording of this power to stop and question contains nothing on its face which limits the amount of time for which a person can be stopped. On the contrary, it authorises stopping a person for so long as is necessary to question him to ascertain certain facts””." The committee pointed out that: "““There is no objective standard on the face of the provision to constrain the very wide power. We therefore wrote to the Minister asking why the power is not expressed in terms of the amount of time that is reasonably necessary””—" which is what this amendment does. "““The Minister in his response relies on the decision of the House of Lords in Gillan to argue that the right to liberty in Article 5 ECHR will not ordinarily be engaged by this power because the exercise of the power will not ordinarily involve a deprivation of liberty within the meaning of Article 5: the questioning would normally amount to no more than a few minutes. Although there is no explicit duration stated in the clause, questioning will only, other than in unusual or special circumstances, be for a very limited time because it can only relate to the matters stated in the clause. The exercise of the power will therefore usually be a restriction on liberty of movement rather than a deprivation of liberty, so that Article 5 does not apply. In any event, argues the Government, addition of the word ‘reasonably’ before ‘necessary’ would not be of any benefit, because it would add nothing to the court’s ability already to decide that detaining the person concerned was not in fact necessary, or that the officer did not in fact believe it to be necessary, which already provide some safeguard against abuse of the power. It would, however, in the Government’s view have a significant disadvantage, namely that it would introduce an element of uncertainty as to the scope of the power, which would affect the operational effectiveness of the police and armed forces in Northern Ireland””." I make no apology for quoting all that because it is important to put the Government’s view on the record. I now come to the committee’s point of view so that the Minister can respond today and then we can see where we are. In the light of that explanation, the Joint Committee on Human Rights said that, "““ordinarily the use of this power would not engage Article 5 ECHR because the stop in question would be brief. We are concerned about what the Minister describes as ‘the unusual or special circumstances’ in which the questioning lasts for longer. For example, if the officer asking the questions is sure that the person stopped is withholding the information he is seeking to ascertain, he is likely to consider it to be necessary to continue to question him until he has ascertained the information which he is convinced the person is withholding. In those circumstances, it is conceivable that the detention of the person for questioning may amount to a deprivation of liberty so as to trigger the application of Article 5 ECHR. The question which would then arise is whether the deprivation is ‘in accordance with a procedure prescribed by law’ as required by Article 5””." So the Joint Committee expressed the view, which is the foundation for this amendment, that, "““the lack of any objective standard in the clause conferring the power regulating the duration of the exercise of the power in any particular case gives rise to a risk of incompatibility with Article 5 on the basis that the deprivation of liberty pursuant to the power is not sufficiently regulated by any legal standard. The insertion of the word ‘reasonably’ before ‘necessary’ would remedy this deficiency and enable a court to decide whether the duration of the detention was such as could reasonably be considered necessary to ascertain the information sought. In the absence of such an objective standard on the face of the clause, there is a risk that the power will be interpreted by those exercising it as authorising detention for as long as they consider necessary to obtain what they regard as satisfactory answers to their questions””." That is the full explanation of where we stand. I beg to move.