HC Deb 16 June 1988 vol 135 cc647-63 'Schedule [Body Samples—Northern Ireland] shall have effect with respect to the taking of samples from persons in Northern Ireland in connection with the investigation of offences to which it applies.'—[Mr. Stanley.]

Brought up, and read the First time.

The Minister of State, Northern Ireland Office (Mr. John Stanley)

I beg to move, That the Clause be read a Second time.

Mr. Deputy Speaker (Mr. Harold Walker)

With this it will be convenient to consider the following: New clause 82 —Non-intimate samples (Great Britain)— 'The same powers shall be available to police forces in England and Wales with regard to the taking of non-intimate samples as are given to the police in Northern Ireland in section (Body Samples—Northern Ireland).'. Government amendments Nos. 68, 69, 196 and 70.

Mr. Stanley

The effect of the new clause and the related schedule and amendments will be to bring on to the statute book essentially the same provisions on the taking of body samples from those suspected of serious offences as have already been passed into law in England and Wales under the Police and Criminal Evidence Act 1984—the so-called PACE.

I start by anticipating two questions which right hon. and hon. Members will wish to raise. The first is why it is necessary to introduce these provisions through the Criminal Justice Bill rather than through the normal Northern Ireland order-making procedure; the second is why, given that we have decided to use the Criminal Justice Bill, the amendments could not have been introduced at an earlier stage in the Bill's proceedings.

It was originally our intention to introduce the PACE provisions on body samples in the Northern Ireland draft order, in which we shall be replicating for Northern Ireland most of the PACE provisions. However, given the extensive scope and complexity of this draft order, which we shall be publishing for consultation later this year, it will not come into effect, subject to parliamentary approval, until 1989. The Criminal Justice Bill provides the possibility of bringing the statute law on the taking of body samples in Northern Ireland into line with that in England and Wales significantly earlier than would otherwise be the case. I hope the House will agree that there should be no avoidable delays in assisting the RUC to deal with serious and violent crime.

Sir Eldon Griffiths

I am glad that my right hon. Friend wants no avoidable delay in assisting the RUC. However, I and others suggested several years ago during the Committee stage of what is now the Police and Criminal Evidence Act 1984, that such powers should be given to the RUC. Does my hon. Friend not think that there has been a good deal of avoidable delay between then and now?

Mr. Stanley

My hon. Friend knows that the relevant overall legislation covered by the PACE provisions in Northern Ireland is somewhat different from that in England. We have seen the considerable process of examining the applicability of that situation in the Northern Ireland context. We shall shortly be presenting a substantial and complex order. I am not familiar with the detailed gestation over the period since the PACE legislation was passed, but I feel sure that my Department has done its utmost to press forward as quickly as possible. However, I am certain that we have this opportunity to give the RUC statutory powers that are extremely important and germane to their law enforcement responsibilities.

The present lack of statutory provisions for the taking of body samples is proving a material handicap in the circumstances of Northern Ireland. At present the RUC can act only under the common law, and this uncertainty has tended to handicap the police in the conduct of their investigations, as well as leaving suspects uncertain as to their rights. Furthermore, major advances in DNA profiling have become available to forensic scientists in recent years, making the ability to take body samples of even greater forensic value to the police than hitherto when dealing with violent crime, both terrorist and non-terrorist. For those reasons we have decided to take the opportunity presented by the Criminal Justice Bill to give the RUC the PACE powers to take samples and clarify the rights of those affected.

The reason why the amendments were not introduced earlier in the proceedings on the Bill is that our PACE order has been taking longer to finalise than was expected and it is only relatively recently that it has become apparent that there is likely to be a material time advantage in bringing the body sample provisions onto the statute book through the Criminal Justice Bill rather than through our PACE order. In addition, because of the consideration that we have been giving to the boundary between intimate and non-intimate body samples, to which I shall return, it was not possible, I am afraid, to introduce these amendments until the commencement of the Report stage of the Criminal Justice Bill.

Let me deal now with the detailed provisions of the amendments, the substantive element of which is essentially set out in the new schedule. With one modification, to which I shall come, the new schedule essentially reproduces for Northern Ireland the equivalent provisions on the taking of body samples in England and Wales as are found in the Police and Criminal Evidence Act 1984.

The powers to take body samples relate only to those who are suspected of being involved in serious offences. The serious offences listed in the new schedule are the same as those in the PACE Act and include murder, rape, kidnapping, sexual offences against children and various firearms and explosive offences. In addition, the powers to take body samples under this schedule will also apply to a person arrested under section 12(1)(b) of the Prevention of Terrorism Act 1984, which allows the police to arrest a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism.

The new schedule makes the same distinction as in the England and Wales legislation between intimate and non-intimate samples. Again, as in England and Wales, it provides that a non-intimate sample may be taken without the suspect's consent, but that an intimate sample may be taken only with the suspect's consent. With one difference, the definition of what constitutes intimate samples on the one hand, and non-intimate samples on the other, exactly follows the England and Wales legislation. The one difference is that we have included in the definition of non-intimate samples a swab taken from the suspect's mouth. A sample of saliva has also been added, because the taking of a mouth sample unavoidably results in the taking of saliva, for which a statutory basis needs, of course, to be provided.

We are making that one difference for DNA profiling reasons. As the House knows, DNA profiling has made great strides in recent years and this progress seems certain to continue. DNA profiling is already proving of increasing forensic value to the police in providing the possibility of enabling those suspected of violent crime to be positively identified by the matching of the suspect's DNA profile with the profile of DNA material found on the victim's body or clothes or at the scene of the crime. DNA profiling, it should be stressed, is proving of value in eliminating suspects as well as in confirming a suspect's involvement.

The reason why a mouth swab is being added to the list of non-intimate samples in the new schedule is this. Under the England and Wales legislation, the samples that can be guaranteed to provide sufficient DNA material for profiling purposes, blood in particular, are classified as intimate, and can therefore be taken only with the suspect's consent. In England and Wales, we understand that that consent is normally forthcoming; hence the fact that this change is being made in relation to Northern Ireland only. However, in Northern Ireland, both among terrorist organisations, and increasingly among other serious non-terrorist criminals, there is an altogether more determined and more systematic attempt to conceal and to destroy material that may be of forensic value to the police.

Relatively recently, as research on DNA profiling has progressed, it has been discovered that a mouth swab, which can be taken by rubbing the area between the lip and the gum, and without any need for the mouth, other than the lips, to be opened, will usually provide a reliable means of obtaining sufficient DNA material for profiling purposes without a need for contact with a part of the body that would generally be considered to be intimate.

8.45 pm

Last year in Northern Ireland 100 people were murdered and nearly 200 were made the victims of the barbaric practice of punishment shootings, with victims being shot through knees, ankles and elbows. We also had our share of other violent crimes such as rape and other forms of violence against the person. In the particular circumstances of Northern Ireland, highlighted once again by the horrific murder of six soldiers yesterday, it seems to us to be entirely reasonable and necessary, in the interests of protecting the law-abiding public, to give the police powers to take a mouth swab, if necessary, without the suspect's consent.

We shall at the same time be ensuring through the new schedule that the statutory rights of individuals from whom samples are requested are clarified, and I should like to spell these out.

First, no sample can be taken—intimate or non-intimate—except with the authorisation of an RUC officer of the rank of superintendent or above.

Secondly, that authorisation can be given only if the superintendent has reasonable grounds, first for suspecting the involvement of the suspect in one of the serious offences listed in the schedule, and, secondly, for believing that the sample will tend to confirm or disprove the suspect's involvement. These authorisations by the superintendent will of course all be justiciable before the courts. Thirdly, as I have said, an intimate sample may be taken only with the suspect's consent, and then, other than a sample of urine, only by a registered medical practitioner. Fourthly, we shall be publishing and making available to the House that part of our code of practice under the PACE legislation which relates to the taking of body samples before the new provisions come into effect.

The specific safeguards in relation to the taking of body samples will, of course, be additional to the standard safeguards already available to all arrested persons under the existing judges' rules. For terrorists, the safeguards include statutory rights of access to legal advice and to having a family member or friend informed of the arrest. Indeed, it is the RUC's standard practice to give terrorist suspects a written notice setting out their rights.

I hope the House will agree that it is right that the legislation in Northern Ireland on the taking of body samples should be brought into line with that in the rest of the United Kingdom at the earliest possible opportunity. I hope the House will also agree that the potential forensic importance of the very limited addition to the ability to take non-intimate samples that we are proposing for the RUC is fully justified in relation to the unique difficulties put in the way of the police in Northern Ireland in obtaining forensic evidence, and also in relation to the compelling obligation that we have to protect the public from violent criminals in what is, sadly, still much the most violent part of the United Kingdom.

Mr. Kevin McNamara (Kingston upon Hull, North)

Just before the recess I received a letter from the Secretary of State courteously informing me of the Government's intention to table this new clause on Report, and I am grateful for that.

The purpose behind the new clause, and the schedule involved, is one with which the House will agree. I do not think that people generally will object to the changes regarding saliva and mouth swabs which have been made specifically to meet the situation in Northern Ireland. It does not strike me as an infringement of human dignity.

It is also particularly important in the campaign against men of violence, or indeed women of violence—whether or not they are involved in terrorism—that this weapon should be added to the forensic arsenal. We cannot rule out any legitimate scientific advance in our fight against serious crime. That is equally true in Great Britain and in Northern Ireland. If they may help in finding men guilty of such outrages as we discussed earlier today, no one in his right mind should deny these methods to the police force.

DNA profiling, as the Minister has pointed out, is an important and significant scientific development. In many ways it can be a new defence for those caught up in circumstances in which they might be found guilty but scientific evidence can result in their acquittal. This is one of the instances in which the advance of science works equally well in dealing with the wrongly accused and the person who seeks a false alibi to escape conviction. It is therefore to be welcomed.

At the same time, I wonder to what extent the new developments in DNA profiling will make it continually necessary to seek intimate samples. I understand that nearly all DNA characteristics can be found in non-intimate samples. If so, much of what we are discussing today will, I hope, become obsolete. I also hope that it will mean more effective policing and police discovery of serious crimes. I hope that the Minister can advise the House whether he feels that DNA profiling will no longer necessitate the taking of some intimate body samples, granted that safeguards exist in the taking of such samples.

While I support the purpose and spirit of the Minister's proposals, I fear that I cannot support his method. I felt that his reasons for introducing the proposals on Report were rather thin. It is not as though this was new material; it has been on the statute book for four or five years, and we on the mainland are well acquainted with it. I understand the pressures from the RUC and the security forces in Northern Ireland to end the doubt and to be given such powers, but that desire existed when the Bill was first introduced. This is the second occasion on which it has been before the House. The proposal could have been included in the second Bill, if not in the first.

When the old PACE order for Northern Ireland was being drafted, it must have been clear to the Minister that the RUC would want to accelerate the introduction of parts of that legislation into the arsenal of forensic weaponry. It seems that only four, five or six weeks ago the Government thought, "We are not going to be able to do this now. Let us shove it into the Report stage," but it could have been done earlier. Many of the points that I shall make later are essentially Committee points and could have been dealt with in Committee. Those interested for reasons of civil liberty or legal procedure—or perhaps with a straightforward interest in the fight against crime —could have had the opportunity to put their ideas to the Committee. As it is, we are in the position that we were in when dealing earlier this week with the Housing Bill. We are facing the same attitude from the Government, and the same material difficulties.

We are not being given proper time to go through all the small print of this important item. It is a case of take it or leave it. Either we pass the new clause as it is, or we seek to vote against it. We have no opportunity to try to amend it constructively. Normally, in a matter affecting criminal justice, there is common ground on both sides of the House. Hon. Members should have the opportunity to contribute their thinking so that Ministers, even those at the Northern Ireland Office, can have second thoughts and come back on Report. This is scarcely the way to advance understanding and discussion of such important matters.

We should not consider Northern Ireland in such a context. We return to the question: why was it necessary to introduce the proposal in this way? Again, the Minister's arguments were very thin. It is not new legislation; it has been there for a long time. We could, if necessary, have taken the new clause and amendment No. 196 out of the proposed PACE legislation and order for Northern Ireland, produced it as a separate Order in Council and sent it round to the bodies that might want to discuss it. That might not have been the best way of dealing with the matter, but it would have given interested bodies such as the Police Federation and the Bar Association an opportunity to make their observations. We could also have discussed the matter when debating the last major Bill dealing with Northern Ireland, or in the European Parliamentary Assembly in the light of United Kingdom experience.

This casual attitude contains all sorts of problems for Northern Ireland legislation and the way in which these matters are dealt with on the Floor of the House. It is not a question of take it or leave it. People mind about that way of dealing with such questions.

The former semi-detached Leader of the House—now the detached right hon. Member for Shropshire, North (Mr. Biffen)—put it eloquently when we were dealing with the Firearms (Amendment) Bill. It was the same principle with regard to Northern Ireland. New material was introduced on Report. It was important material which in that context most hon. Members would not have regarded as particularly controversial. It is important because of what we seek to achieve in the fight against the men of violence in Northern Ireland, but again we were asked either to accept it or to reject it. That was not the right way to deal with it.

The right hon. Member for Shropshire, North, speaking in the debate on the allocation of time for the Firearms (Amendment) Bill, said: Thirdly, the Bill now contains provisions for Northern Ireland that were introduced at a late stage. I would not anticipate the speech of the hon. Member for Londonderry (Mr. Ross) but the House knows, from its intimate concern with Northern Ireland affairs over the years, that the idea of transforming British legislation into United Kingdom legislation by making a common provision for the Province is a matter of considerable constitutional significance, which I suspect would divide the House in several directions. I shall not dwell on that this evening, except to say that one cannot introduce legislation of this character, with its implications for precedent, on some sort of side wind introduced on Report. That is not a proper use of parliamentary procedure. 9 pm

It is a matter of considerable constitutional significance. I shall not dwell on the matter at length, but the danger is there. A precedent was being set in that Bill. Various matters relating to Northern Ireland were being introduced on a side wind on Report. That is not the proper way to deal with matters that concern and are important to the people of Northern Ireland. The right hon. Member for Shropshire, North referred in that debate to the hon. Member for Londonderry, East (Mr. Ross).

Unfortunately, the hon. Member for Londonderry, East did not wax so eloquent as the right hon. Member for Shropshire, North, who had cause to blaze a trail for us. Nevertheless, what he lacked in paragraphs he made up for by his succinct and direct remarks during the limited time that was available to him. He referred kindly to the speech of the right hon. Member for Shropshire, North when he said: We have listened to a most interesting and entertaining speech from the right hon. Member for Shropshire, North (Mr. Biffen). He referred to the fact that the Bill was extended to Northern Ireland at the last moment, a matter which annoys Northern Ireland Members intensely. That should not become a precedent. If the Government were to pursue this course in future, time and again legislation for Northern Ireland would be introduced and we would not even know it was coming. Only a fortnight ago today, the amendment extending the Bill to Northern Ireland was tabled and it was just by chance that I happened to notice it the next morning." — [Official Report, 25 May 1988; Vol. 134, c. 392–93.] Not all of us have the courtesy of letters from the Secretary of State informing us of changes or other proposals, but what the right hon. Member for Shropshire, North and the hon. Member for Londonderry, East seemed to fear was the creation of a precedent. That precedent seems to have been created, from the Firearms (Amendment) Bill to this Bill. We have to make sure that it goes no further. When the Minister replies to the debate, I hope that he will be able to give to Northern Ireland Members and to other hon. Members an undertaking that such a procedure will be avoided in future.

The deficiencies of this kind of procedure are shown by part of the Minister's speech. He said that when this provision is introduced the relevant part of the Police and Criminal Evidence Act regulations dealing with it will be published at the same time. If the Minister could produce the schedule for us, he could also produce the regulations governing the code of practice. We are arguing, debating and discussing something without knowing precisely what terms, procedures and practices are to be followed by officers of the rank of superintendent and above.

We do not know what the rights of those who are challenged will be, or how those rights are to be protected. That is all in limbo. The House will have no opportunity to discuss matters that are of the utmost importance when powers such as these are given to the police. We ought to be able to discuss the manner in which the Government are seeking to proceed with these matters at the same time as we are giving powers to the Government and to the police.

Sir Eldon Griffiths

I have been following the hon. Gentleman's speech very closely. Would it not be passing strange if the guidance sent to the Royal Ulster Constabulary were materially to differ from that which is already available and used by the police in England and Wales? If that is the case, and if the guidance is going to be identical, as I trust it will be, what is the reason for not providing it now?

Mr. McNamara

I thank the hon. Gentleman for putting so eloquently what was going to be my next point —that the code is published in Great Britain. He made the point very well. It is a serious point which needs to be answered. We have to know if there will be any differences at all.

Having made a general point that should be made on Report, regrettably I must make what many would regard as a Committee stage point, but unfortunately this is the only stage at which we can discuss it. First, I wish to raise a question about the definition of an intimate sample. We are told that it means a sample of blood, semen, or any other tissue fluid, urine or pubic hair, or a swab taken from any of a person's bodily orifices except his mouth". I, and I think most hon. Members, would accept the reasons for "except his mouth."

We would like to know how far the point that I made earlier, which arose from my immediate response to what the Minister said about DNA profiling, will apply to all those samples of an intimate nature. Will we reach a point where, for purposes of identification—there are other purposes; for example, a sample of urine to test for drunken driving—it will be sufficient to have a non-intimate sample? On a more flippant note, but still a serious point, what would be the attitude of a district judge in Port Laoise to a DNA profile for identity purposes? Perhaps that is trespassing on foreign jurisdiction.

An intimate sample can be taken only by appropriate consent. That provision gives protection to a person who is accused. According to the schedule, 'appropriate consent' means—

  1. (a) in relation to a person who has attained the age of 17 years, the consent of that person;
  2. (b) in relation to a person who has not attained that age but has attained the age of 14 years; the consent of that person and his parent or guardian; and
  3. (c) in relation to a person who has not attained the age of 14 years, the consent of his parent or guardian".
Under the heading, "Intimate Samples", the schedule states: (9) Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause, in any proceedings against that person for an offence—
  1. (a) the court, in determining—
  2. (i) whether to commit that person for trial; or
  3. (ii) whether there is a case to answer; and
  1. (b) the court or jury, in determining whether that person is guilty of the offence charged,
may draw such inferences from the refusal as appear proper; and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence against the person in relation to which the refusal is material. That seems good.

What is "without good cause"? As I understand it, that has not been defined. Would the nature of a person's religion constitute good cause? What sort of inference would be drawn from a person's refusing to give an intimate sample of his semen because he might regard that as the sin of Onan—a mortal sin? Would it be regarded as good cause if a Christian Scientist refused to give a sample because that represented an attack on the body? I am not asking these questions flippantly. We need definitions because people's dignity is affected as much by religious attitudes to such matters as by a dislike of physical assault. The increasing use of DNA can become of the utmost importance in establishing identity.

Section 62(8) of the Police and Criminal Evidence Act provides: If an intimate sample is taken from a person detained at a police station, the matters required to be recorded by subsection (7) above shall be recorded in his custody record. There appears to be no similar requirement for Northern Ireland, which has a different provision of which I heartily approve. Are there any real differences of substance between the procedures in Northern Ireland and those in the United Kingdom? Would the procedures within the RUC cover the matter contained in section 62(8) about custody records? I do not know; the House is entitled to know.

I welcome the provision: An intimate sample, other than a sample of urine, may only be taken from a person by a registered medical practitioner. That is useful and proper.

The English legislation covering these matters refers to "serious arrestable offences". The schedule gives a list of precise offences; to a degree, they are already covered in the English legislation. Is anything in the Northern Ireland legislation not contained in the English, Scottish or Welsh legislation—or vice versa? In other words, are serious arrestable offences synonymous with the list in the schedule to the new clause?

The answer to my final question may be an historical one. One of the serious arrestable offences in the United Kingdom is incest with a girl under the age of 13". In Northern Ireland, the age is 14. Similarly, section 5 of the Sexual Offences Act 1956 governing the United Kingdom lays down that intercourse with a girl under the age of 13 is such an offence. Again, in Northern Ireland, the corresponding age is 14. I take it that those are historical accidents arising from old jurisdiction.

The new clause is too important to have been introduced in this way and tacked on as a mere appendage to a piece of English legislation. There are mechanisms for introducing similar Northern Ireland legislation, for all the failings in the way in which the House treats these mattes. A debate under such mechanisms might raise different matters for discussion. We should have had an opportunity to discuss this in far more detail in Committee.

It would be helpful if the House were told whom the Government consulted. Did they merely consult the RUC? I can understand why the RUC wants this power. Why did the Government not issue a full consultative document? Why, instead of giving weak and thin excuses, did they not tell the House earlier of their proposals so that we could have dealt with the Bill in a more workmanlike manner?

9.15 pm
Sir Eldon Griffiths

The effect of new clause 82 is to ensure that there is symmetry between the powers available to the police in Northern Ireland and those available to the police in England and Wales for the taking of non-intimate samples.

Like the hon. Member for Kingston upon Hull, North (Mr. McNamara), I believe that no hon. Member could object to the application to Northern Ireland of the Police and Criminal Evidence Act 1984 powers and responsibilities for the taking of intimate and non-intimate samples to achieve successful prosecutions against the evil men who perpetrate terror or traffic in drugs.

I am very much with my hon. Friend the Minister on the principal argument about which the Government are seeking to persuade the House. My criticism is not so much that the Government are asking the House to apply those powers to Northern Ireland as that when they were asked—among others by myself—when the Police and Criminal Evidence Act was proceeding through the House for an inordinate length of time, the Government were not willing to do that and said that Northern Ireland was different. Apparently, at least in this respect, events in Northern Ireland over the past four or five years have not made Northern Ireland different. We shall apply the main body of the Police and. Criminal Evidence Act requirements to the Bill, which is entirely correct.

Where I must depart from my hon. Friend is that the Bill is not simply applying the same rules that apply in England and Wales but goes a step further. He is saying, "Let us apply the Police and Criminal Evidence Act rules to intimate and non-intimate samples exactly as they are and have been in England and Wales for the past five years, but let us add one more—the ability to take the swab between the lip and gum to assist police in Northern Ireland with what is rather fancifully called DNA profiling, but which ordinary people would more easily recognise as genetic fingerprinting."

The Minister is entirely right to say that the RUC needs to be able to take swabs. They will be of material help in dealing with terrorist and drug offences. What I cannot understand is why it is right to provide powers to the RUC but deny them to the Metropolitan police and the other police forces on this side of the water which deal with the same offences.

If the House agrees to the Government's proposals—I hope that it will—a wanted terrorist or suspected drug trafficker could be stopped at Belfast airport and a swab taken between his lip and gum, which could establish that he is the wanted person or, just as important, eliminate him from the investigation. But once that same man gets across to Heathrow airport the Metropolitan police will not be able to take a swab between the lip and the gum.

As I said earlier, I am very much in favour of symmetry between the powers available and the responsibilities of the police in Northern Ireland and in England and Wales. It makes for consistency and greater public accountability. It makes it easier for the public to understand what is going on if the powers of the police are the same. Parliament ought to have some very good reasons if it allows the powers and responsibilities of the Queen's police on either side of St. George's channel to be materially different.

I have had to ask myself what can be the reason why the police service in England and Wales, and as far as I know in Scotland, is to be denied powers to deal with drug trafficking and terrorism which the RUC and the Government have concluded are imperative in Northern Ireland—so imperative that they must be imported into a Bill so that it applies to Northern Ireland not merely those matters that we have fully debated in Committee but new powers that we have not debated at all.

I have to say in reply to the hon. Member for Kingston upon Hull, North (Mr. McNamara) that I do not believe that the Government are committing any grave error in importing the PACE powers into this Bill. Those powers were thoroughly discussed in the longest Committee stage that the House has ever known—indeed, they were discussed twice, because there were two Committee stages —and no sections were discussed more thoroughly than those dealing with intimate sampling.

But one power was not discussed at all, and that is the one that is being brought in tonight for Northern Ireland, and Northern Ireland alone, so that there is no opportunity to consult the people on that and no opportunity to consider whether it is relevant. I think that it is, but others may think that it is not. I believe with the hon. Gentleman that, at least on that narrow point, the Government have treated the House quite improperly.

I am very sorry that it falls again to my hon. Friend the Minister of State, Northern Ireland Office to be presenting this matter. He is one of my favourite Ministers. He has been an excellent addition to the team in Northern Ireland and has done many things there that will make him highly regarded by the police service in Northern Ireland. He is, indeed, the first Northern Ireland Minister who has brought forward these powers, which we have wanted in the RUC for many years, and I thank him for that. I regret very much that, once again, as in the case of the Firearms (Amendment) Bill, he has to explain the inexplicable.

There is no ground for these powers being provided, in the case of the swab, in Northern Ireland and denied to the Metropolitan police dealing with terrorism and drugs in precisely the same fashion. His argument is that things in Northern Ireland are very much more horrendous than those in England and Wales. That is true in respect of terrorism, but not in respect of drug trafficking. Genetic fingerprinting—DNA profiling—is just as relevant to drug trafficking as to terrorism. Therefore, the case does not stand up on that count.

I must not trespass into private correspondence that has been exchanged, but I was told that the Home Office's reason for not including these powers for the Metropolitan police and the other police forces over here was that they did not ask for them. I immediately asked the police why they had not asked for them, and that was not their account of events at all. When I enquired of the Metropolitan Commissioner whether his men needed this power to take a swab to deal with a terrorist or drugs trafficker, four separate groups within the Metropolitan police—special operations, Deputy Assistant Commissioner (Crime), the forensic branch and one other dealing with specialist criminal cases—said unanimously that they needed these powers. But the Home Office said that they did not need them.

I do not believe that that is right. I believe that the Government should not discriminate between the powers and responsibilities of the police in Northern Ireland and the powers and responsibilities of the police in England and Wales. The police in England and Wales need DNA profiling and power to take the swab. I cannot understand why those powers are to be provided to the RUC but denied to the police on this side of the water.

Mr. Roy Beggs (Antrim, East)

My hon. Friend the Member for Londonderry, East (Mr. Ross) had occasion and good reason to complain bitterly recently about the extension of the Firearms (Amendment) Bill to Northern Ireland. The Government were wrong to extend that Bill to Northern Ireland on Report without giving proper notice or reasonable opportunity for Northern Ireland Members to consult their constituents. Large parts of this Bill can be extended to Northern Ireland by Order in Council. Obviously the Government did not adequately think through the implications, for they have yet again at a late stage brought in new clause 80 to extend this important power the Northern Ireland. However, we appreciate that the Government, through the Minister of State, wrote to the leader of the Ulster Unionist group to inform us that the intention was to table the new clause which would make it apply to Northern Ireland.

I welcome the new clause in that it would bring to the statute book in Northern Ireland essentially the same provisions for the taking of body samples of those suspected of serious crimes as have already been passed into law for England and Wales in the Police and Criminal Evidence Act 1984. I note the proposal to depart from the provisions for England and Wales in only one relatively minor respect. The Minister has outlined the reasons for this so-called minor departure which will give one additional power to the RUC to assist it in genetic fingerprinting, the term more easily understood by most people.

Our basic complaint about the Bill remains the same: that the procedure for governing Northern Irelad is still unsatisfactory. In some ways the Bill is a prime example of the unsatisfactory system of legislating for Northern Ireland. Perhaps the Minister can tell us why the sections listed in clause 160 could not be applied directly to Northern Ireland along with other legislation for the rest of the United Kingdom. Clause 164 lists the parts of the Bill which apply directly to Northern Ireland. Thus, our demand to have the same law-making process is strengthened.

I welcome steps being taken to bring the statute law in Northern Ireland on the taking of body samples into line with that in England and Wales. I trust that the new powers will increase the effectiveness of the police in their investigations into serious crimes. May I record my personal sympathy and that of my constituents to the relatives of the young soldiers who were brutally murdered last night. I hope that the new powers will assist the RUC in bringing to justice at an early date those who have hitherto escaped prosecution.

I do not intend to oppose the new clause but wish to register the desire of Ulster Unionists that legislation for Northern Ireland should not be treated as an afterthought but included at every opportunity as part of United Kingdom legislation.

Mr. Worthington

I listened with great interest to the hon. Member for Bury St. Edmunds (Sir E. Griffiths), who asked why police on the mainland were not allowed to use the same techniques as are to be made available in Northern Ireland. Is the Home Office unwilling to allow the police in England, Wales and Scotland to use this technique because of their stance on immigration? People from the Indian sub-continent in particular who have sought admission to this country must prove their relationship with relatives here. This technique, which would establish the relationship and prove that they could come to this country, has been denied them. Is it possible that a consequence of extending this power to the Metropolitan police is to make it more difficult for the Home Office——

9.30 pm
Mr. Deputy Speaker

Order. The new clause extends powers to Northern Ireland.

Mr. Worthington

I am grateful for your guidance, Sir, but the issue was raised of the extension of those powers to England, Wales and Scotland. The House has been asked why it should not be possible to have these powers in this country, and I was putting forward a possible reason.

Mr. Harry Barnes

The Minister's explanation of why the provisions in new clause 80 should be applied to Northern Ireland and were not in the Police and Criminal Evidence Act 1984 has been described as thin. It was unsatisfactory. The explanation seemed to be that the Government had not done their homework. We can accept that people do not do their homework at various stages, so there is a need for action later. We hope that by the time action is taken the homework has been completed.

We are not given confidence by the fact that the measure has been slipped in at this late stage. It is of such significance that it is to be included in the title, through amendment No. 70. It appears to be an afterthought. Some of us who stayed during the night of the debate on the Firearms (Amendment) Bill objected strongly to Northern Ireland's treatment. I should have thought that Northern Ireland, with its vast problems and difficulties —of which we are very conscious today—should be dealt with by the House with more care than any other part of the United Kingdom and should be up front in terms of provisions.

We have just passed new clause 72, on torture. Subsection (3) states: It is immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or an omission. I do not think that there is a definition of intimate searches in the 1984 Act. My hon. Friend the Member for Kingston upon Hull, North (Mr. McNamara) gave one definition. On 1 March 1984, when Standing Committee E was dealing with the Police and Criminal Evidence Bill, the definition in clause 58 was the taking of a sample of blood, semen or any other tissue fluid, urine, saliva or pubic hair, or a swab taken from the genital or rectal area of a person's body. If we are discussing such provision for Northern Ireland and the control of torture, we need to link the two.

People in senior positions who are required to act under the new clause may nevertheless be subject, in highly tense situations, to taking action that may not be entirely justified. That does not necessarily lead us to reject the new clause but it means that the matter requires a great deal of thought and investigation. It cannot be that by adding provisions relating to Northern Ireland we are simply covering something that happens to have been missed, because the effect of other provisions in the Bill on Northern Ireland also needs the most serious thought. We should at least protest strongly about the cavalier way in which Northern Ireland has been dealt with.

Mr. William Cash (Stafford)

I am very interested in new clause 80. It does not seem to me that there is any reasonable justification for distinguishing what goes on in the United Kingdom as a whole from what goes on in Northern Ireland, but perhaps my right hon. Friend will explain why he has confined the new clause to non-intimate samples. Perhaps I have missed something, but amendment No. 196, the new schedule, deals with two different types of sample, one of which is intimate and the other of which is not. On the basis of my right hon. Friend's compelling logic, I do not see why he has distinguished between the two.

It is important to ensure that we manage to apprehend people, bring them to trial and find them guilty, by using modern methods and techniques of surveillance and forensic science. We should therefore have the best possible means available to ensure that that happens. I cannot for the life of me understand why there should be a different regime in Northern Ireland from that in England for rape, murder and the other offences set out in the schedule. Perhaps my right hon. Friend will explain.

Mr. Stanley

I welcome the support of the hon. Member for Kingston upon Hull, North (Mr. McNamara) for the substance of the new clause and the addition of the mouth swab to the range of non-intimate samples. He asked whether advances in DNA profiling would make the taking of intimate samples unnecessary in the future. I am advised that this may eventually prove to be the case. It is difficult to predict the likely course of research but it is certainly not so at the moment and, it is unlikely that in the near future we shall be able to rest solely on non-intimate samples.

The hon. Gentleman will be aware that from another point of view it is desirable to retain the statutory power to take intimate samples, as such samples can be taken only with the consent of the suspect. They are taken on an entirely voluntary basis. Some individuals may prefer voluntarily to agree to give a blood sample than to be told that their only option is to give a non-intimate sample, which can be taken compulsorily. A balance must be struck, and the House may feel that it would always be desirable to retain the option of taking an intimate sample, with the caveat of the consent of the suspect being required.

The hon. Members for Kingston upon Hull, North, for Antrim, East (Mr. Beggs) and for Derbyshire, North-East (Mr. Barnes) asked why this group of amendments was being introduced into the Bill. I sought to explain that in my opening remarks. We rightly and justifiably have been reluctant to avoid breaking up the PACE leglisation for Northern Ireland if possible. All those who have been involved in the England and Wales PACE legislation will appreciate that it was introduced as an integrated balancing package. We have with reluctance decided to separate a segment of that legislation—that relating to body samples—for the reasons I explained.

It became apparent that with the complexity of the PACE order and the course that the Bill has taken there would be a material time advantage in getting these powers in the hands of the RUC. I hope the House will understand that with our real responsibilities for law and order and security in Northern Ireland it did not seem right to let pass the opportunity of putting these essential powers on to the statute book and into the hands of the RUC possibly a year earlier than would otherwise be the case.

Ms. Marjorie Mowlam (Redcar)

The Minister has not yet addressed the basic underlying principle involved. He is saying that because of Government inefficiency the principle of democracy and consultation has been ignored. That is the point that my hon. Friends have made and I want him to deal with it.

Mr. Stanley

That is not entirely fair, because we are not introducing legislation that is completely new. We are simply replicating legislation that has gone through a detailed and extensive process of examination in the United Kingdom Parliament. I take the hon. Lady's point that we have not been able to go through a specific consultation process in the Northern Ireland context. That is a fair point. On the other hand, this is virtually a duplication of legislation that has been the subject of extensive debate and consultation over many years, and a balance must be struck. We must ask ourselves how long it is right to deny the RUC, with its crucial law enforcement responsibilities, the powers that are available to police forces elsewhere in England and Wales.

The hon. Member for Kingston upon Hull, North asked whether I would give an undertaking that the Government would never again proceed by adding amendments on Report to Bills such as this to apply provisions to Northern Ireland. He will not be surprised to learn that I cannot give that blanket undertaking. We have taken this course with some reluctance, as with the Firearms (Amendment) Bill. The hon. Gentleman would be the first to acknowledge—he has already done so in his remarks and in his response to today's statement by my right hon. Friend the Secretary of State for Northern Ireland—that we face an exceptionally serious security situation in Northern Ireland. In those circumstances, it is incumbent on us to put to the House proposals that we believe are necessary to reinforce our ability and that of the RUC to deal with that serious security situation.

Mr. McNamara

I hope that I shall not be up and down like a yo-yo. If the Minister cannot give me that undertaking, can he say that when the new clause goes to the other place, Members there will be able to see the code of practice? Can he also answer the point that I raised earlier? Will "good reason" cover religious objection?

Mr. Stanley

I shall deal with the hon. Gentleman's latter point in a moment. I shall do my best to put the code of practice into a form that we can give to Members of the other House. That will depend upon the time scale of the Bill, but we shall do our best to bring that forward. It will be based on the code of practice for England and Wales and will need some modifications to deal with the variations in Northern Ireland. I hope that the hon. Gentleman will rest his case on that.

9.45 pm

The hon. Gentleman's detailed point about how the courts might construe the phrase "without good cause", referred to in paragraph 7(9) of the schedule, will ultimately be a matter for the courts and they will have to interpret the legislation. I am advised that good cause could be interpreted to include religious objections or medical difficulties, but it will be for the courts to determine that. The phrase being used here is exactly the same as that used in the England and Wales legislation.

The hon. Gentleman referred to semen being taken as an intimate sample. In practice, the only way in which a specific intimate sample is likely to be taken for DNA profiling purposes would be through a blood sample.

The hon. Gentleman also referred to custody records. Very detailed custody records are retained under existing procedures by the Royal Ulster Constabulary, and I understand that the practical procedures that have already been adopted amount to the same as those in England and Wales.

The hon. Gentleman also asked whether for the purpose of these amendments the definition of a serious arrestable offence is the same in Northern Ireland as in England and Wales. The definitions and types of offences deemed to be covered by the amendments are exactly the same as in England and Wales, with the one exception to which I referred—the inclusion of those arrested under section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 which, as the hon. Gentleman will understand, is relevant to, and necessary in, Northern Ireland.

The hon. Gentleman also asked for an explanation of the differences in ages in respect of sexual offences against children. I confirm that his supposition is correct and that the slight differences in ages in the schedule compared with those in England and Wales legislation relate to historical differences between Northern Ireland and England and Wales legislation.

I turn now to new clause 82. I thank my hon. Friend the Member for Bury St. Edmunds (Sir E. Griffiths) for his kind comments, coupled with some notes of criticism, which I took very much in the spirit that he put them forward. The hon. Member for Clydebank and Milngavie (Mr. Worthington) referred to the same point and asked why the provisions, particularly the extension of non-intimate samples to include mouth swabs, were not being followed in England and Wales by my right hon. Friend the Home Secretary. The need for a slightly wider definition of non-intimate samples in Northern Ireland arises because of the more determined and systematic attempts made by criminals in Northern Ireland, compared with those by criminals on the mainland, to withhold and conceal evidence of forensic value to the police.

Unwillingness to give consent for the taking of intimate samples is not something that has hitherto been put to my right hon. Friend the Home Secretary by the police as causing particular problems in England and Wales. My hon. Friend will understand that if the police can obtain intimate samples, usually a blood sample, that will yield all the necessary material for DNA profiling to take place. I understand that a recent study by the Home Office of 5,500 custody records did not include any instances of requests for intimate samples being refused.

My right hon. Friend the Home Secretary therefore did not think that he would be justified in bringing forward a proposal now for England and Wales to make mouth swabs non-intimate samples, but he is not opposed in principle to the idea of doing that. He intends to consult chief officers on whether the present classification of mouth swabs in England and Wales as intimate samples is causing difficulty. He will certainly consider the possibility of making a similar change in England and Wales at some future date.

Sir Eldon Griffiths

With respect, my right hon. Friend is not saying very much if he is saying that my right hon. Friend the Home Secretary is not opposed to this in principle. The Cabinet collectively put forward the proposal to bring in DNA sampling in Northern Ireland. The principle must be accepted collectively by the entire Cabinet and all the Secretaries of State. Therefore, of course my right hon. Friend the Home Secretary accepts the principle. However, I have a simple point. A man in Northern Ireland whom the police may wish to check by DNA profiling for drug trafficking or terrorist offences may be checked at Belfast airport, but if he eludes them and arrives at Heathrow, he cannot be checked there. Where is the logic in that?

Mr. Stanley

My hon. Friend has made a perfectly reasonable point about people moving from one part of the jurisdiction to another. I am sure that that point will be made to my right hon. Friend the Home Secretary when he consults the chief officers. At present my right hon. Friend does not believe that it is necessary, given the apparent ease with which intimate samples are obtained in England and Wales, which is certainly not the case in Northern Ireland, to make the small extension to mouth swabs which we feel is necessary in Northern Ireland in the definition of non-intimate samples.

I hope that I have already explained some of the distinctions between intimate and non-intimate samples to satisfy my hon. Friend the Member for Stafford (Mr. Cash). The basic reason for separating them is that the procedures are different. The essential difference is that a non-intimate sample can be taken without the consent of the suspect, while an intimate sample requires the suspect's consent before it can be taken. I hope that I have responded to all the points that were raised.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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