Justice and Security (Northern Ireland) Bill

Listening with care to the noble Lord, Lord Lester, I realise that the heading ofClause 20 ““Stop and question”” does not explain what it is about. We are not talking about any old stop and question or every stop and question. We are talking about stop and question relating to, "““a recent explosion or another recent incident endangering life””," or, "““a person killed or injured in a recent explosion or incident””." The scope of the clause is constrained. We have to bear that in mind in the answer I shall put on the record. I regret to say that we cannot accept the amendment as drafted. Amendment No. 35 applies to Clause 20(2), which deals with the power of the Armed Forces to ask questions about recent explosions or other incidents endangering life or about individuals injured or killed in them. Amendment No. 37 applies to Clause 22(1) which provides power of entry where it is necessary in the course of operations for the preservation of peace or the maintenance of order. We understand that the intention is to give effect to points made in the report of the Joint Committee on Human Rights and we have considered them closely. As the noble Lord said, the Joint Committee is concerned to ensure that the power cannot be exercised in a way that might engage Article 5 on the right to liberty. It worries that the power is not sufficiently regulated by the word ““necessary”” and asks that the word ““reasonably”” be placed in front of it. The noble Lord accepted that in most cases individuals will be questioned under this power for no more than a few moments. The questions may relate to defined and finite issues only; namely, what the person knows about a recent explosion or other incident as set out in the clause. The range of questions is limited and therefore the time taken to obtain the information is limited. Where the officer’s questions are evaded or there are suspicions, he may continue to question. For example, if a person states that he lives at such and such an address, the officer may ask him what colour his front door is and then get a passing patrol car to check the information. The necessity of such questioning can be challenged in court, and the officer would have to state why he believed it to be necessary and set out the grounds for his belief. His actions can be challenged and he can be cross-examined, which is an important safeguard against abuse. It remains open to the court to find that the use of the power was not necessary on the facts of a particular case or that the officer did not believe that the use of the power was necessary. To introduce the concept of reasonableness would introduce an element of uncertainty in the exercise of the power which would hamper its use on the ground in the circumstances that I have described; that is, following an explosion, a death or other matter endangering life. The same argument applies in relation to the use of the power of entry in Clause 22. The test of reasonableness may prevent officers from quickly making decisions that are operationally important because there is an element of uncertainty about the scope of the power. We believe that officers on the ground would be hampered by trying to assess whether a third party would view their actions as reasonably necessary as opposed to necessary. In this instance, we wish to ensure that police officers and members of the Armed Forces who are involved in responding to what by definition in the clause are fast moving situations—the clause is clear that it is not about every stop and question—can use this power without having to exercise judgment about what is reasonable and can base their actions about what is necessary on the facts. Defining the use of powers in terms of their necessity is not an innovation; it is not new in legislation. Both the Police and Criminal Evidence Act and the Terrorism Act use that test. We believe that it is the appropriate test here. As in the Government response to the Joint Committee, I would highlight the important judgment of the noble and learned Lord, Lord Bingham, in Gillan vs. Metropolitan Police Commissioner in relation to Clause 20. The noble and learned Lord found that stops that were ordinarily brief and did not involve arrest, handcuffing, confinement or custody did not amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights. We believe that this power clearly fits within those boundaries. Alternatively, even if Article 5 were to be engaged, the use of the power could still be appropriate, provided that it was to secure the fulfilment of an obligation prescribed by law. The public are, by virtue ofClause 20(3), placed under an obligation to provide information when requested. An officer questioning someone to establish his knowledge of the specific incidents under Clause 20(2) would be doing so to secure the fulfilment of an obligation in law, which means that Article 5 would not be engaged. We are moving into territory where the lawyers will have a field day, but as a non-lawyer, I understand exactly what I have just said. I can imagine the circumstances. They are highly constrained by the clause, which does not apply to every conceivable situation. It relates to where there has recently been an explosion or other incident endangering life or where a person has recently been killed or injured in an explosion or incident. It would be a fast-moving situation, and therefore we think the powers are appropriate.