After Clause 59 (Hansard, 20 June 1991)

HC Deb 20 June 1991 vol 193 cc485-513 485

§ Lords amendment: No. 12, to insert the following new clause—

§ Independent Assessor of Military Complaints Procedures in Northern Ireland.

(" .—(1) The Secretary of State shall appoint a person to be known as the Independent Assessor of Military Complaints Procedures in Northern Ireland (in this Act referred to as "the Independent Assessor").
(2) A person shall not be eligible for appointment as the Independent Assessor if he is, or at any time during the period of twenty years ending with the date of the appointment has been, a serving member of Her Majesty's forces.
(3) Schedule (Independent Assessor of Military Complaints Procedures in Northern Ireland) to this Act shall have effect with respect to the Independent Assessor.
(4) The Independent Assessor—

(a) shall keep under review the procedures adopted by the General Officer Commanding Northern Ireland ("the GOC") for receiving, investigating and responding to relevant complaints;
(b) shall receive and investigate any representations concerning those procedures;
(c) may investigate the operation of those procedures in relation to any particular complaint or group of complaints;
(d) may require the GOC to review any particular case or group of cases in which the Independent Assessor considers any of those procedures to have operated inadequately; and
(e) may make to the GOC recommendations concerning any inadequacies in those procedures, including inadequacies in the way in which they operate in relation to any particular complaint, group of complaints or description of complaints.

(5) In this section "relevant complaint" means a complaint relating to the behaviour of any member of Her Majesty's forces under the command of the GOC, other than—

(a) any complaint which has been referred by the GOC to the Royal Ulster Constabulary and not remitted by the Royal Ulster Constabulary to the GOC to be dealt with by him; and
(b) any complaint relating to a matter in respect of which a claim for compensation has been made under section 62 below or which is the subject of proceedings involving a claim for compensation which have been instituted in any court.

(6) The GOC shall—
1. (a) furnish such information;
2. (b) disclose such documents; and
3. (c) provide such assistance,
as the Independent Assessor may reasonably require for the purpose of the performance of his functions.")

§ Motion made, and Question proposed, That this House doth agree with the Lords in the said amendment.—[Dr. Mawhinney.]

4.39 pm

§ Mr. Kevin McNamara (Kingston upon Hull, North)
I beg to move amendment (a), as an amendment to the Lords amendment, in subsection (4), at end insert— 486 `(f) may, in the interests of justice, investigate any relevant complaints or groups of relevant complaints.'.

§ Mr. Speaker
With this it will be convenient to take Lords amendment No. 31.

§ Mr. McNamara
Although the appointment of an independent assessor of military complaints procedures in Northern Ireland represents a step forward in finding a form of procedure for complaints against the Army, this 487 step is very limited and does not in any way go as far as the tentative scheme proposed by the Opposition when the matter was discussed in Committee.
There are a number of major difficulties with the Government's proposal. First, the assessor will deal not with individual complaints but with the procedures for handling complaints. He has no power to investigate complaints, to give findings or to order recompense. His powers are therefore much more limited than those of the already agreed, but nevertheless limited powers of the independent Police Complaints Commission.
Judging by the duties laid down in Lords amendment No. 12 on the independent assessor, the Government appear to conceive the role of the assessor primarily as an adviser to the General Officer Commanding and to the Secretary of State. His ability to act independently in favour of an individual complainant is constrained by the powers proposed in the Bill. He is very much held at arm's length by the nature of his remit from the investigation of the complaint.
That is reflected in his limited term of office and the variety of reasons for which the Secretary of State can remove him from office. Bearing in mind the controversial nature of investigations into the security forces in Northern Ireland—for example, Army personnel do not appear at coroners' inquests, do not give sworn evidence and are not subject to cross-examination—it does not augur well for the independence of the new office. However, I hope and trust that I will be proved wrong. Decisions on appointment and removal of the independent assessor will be made by the same Minister whose conduct could come under scrutiny.
The debate in the other place showed that the Government assume that the authority of the assessor will derive from his ability to report to Parliament and from the co-operation of the General Officer Commanding. It is automatically assumed in the Government's proposals that there will always be full co-operation between the GOC and the independent assessor. However, the fact that the assessor is meant to be independent raises the possibility of conflict among Ministers, the GOC and the assessor. There are no proper grounds for believing that in those circumstances the independent assessor will be paramount.
Amendment (a) seeks to strengthen the position of the assessor. We urge that he may, in the interests of justice, investigate any relevant complaints or groups of relevant complaints. That would give him an ultimate power to intervene and investigate complaints himself if the interests of the circumstances and of justice so require. In that way, he would be able to act more directly in resolving the issue and be seen by complainants as being more directly involved in their problems.
Lord Colville's report was cited in the other place in support of the Government's amendment. However, while Lord Colville's proposals can be cited in support of the Government's version and procedures, it cannot be used to reject other options. His recommendation was tentative, although his insistence on the importance of the issue of having a viable system of complaints against possible Army or security forces misbehaviour was not.
Lord Colville points out that an informal and rapid procedure for handling complaints is the best way of 488 dealing with many grievances. No one would deny that, but there are always cases that cannot be easily handled in that way, where independent formal investigations may be necessary to alleviate public concern in matters which perhaps do not amount to specific and direct criminal offences.
There are certain cases which are not merely of direct concern to the people involved but which have substantial implications for public policy, confidence in the security forces and for public belief in the possibilities of securing justice in Northern Ireland against the security forces. Those are the types of case that amendment (a) seeks to address.
4.45 pm
In addition to those issues addressed by amendment (a), there are other matters to which the Government must address their mind when explaining the purposes of Lords amendment No. 12. Why is there such a difference between the Army and police complaints procedures? Why is it so great? The Government have not spelt out the reasons for the particular form of Lords amendment No. 12.
Why does the assessor have such limited powers? Why can he not both initiate inquiries and have complaints brought directly to him? Given the definition of "relevant complaint" as one relating to a member of the armed forces under the command of the General Officer Commanding Northern Ireland, can the Minister give an assurance that all members of Her Majesty's forces in Northern Ireland are directly under the command of the GOC Northern Ireland?
A further problem arises when a complaint against a member of the armed services is referred to the Royal Ulster Constabulary for possible criminal charges. What happens if no such charges materialise? As I understand the procedures in the Government's proposals, once the police begin an investigation into such a matter, such a charge would be in abeyance.
If the police decide that there is insufficient evidence for the Director of Public Prosecutions, or if the DPP decides not to prosecute, what will happen? Will the case revert to the jurisdiction of the assessor? If so, will there be any time limits on the period in which the RUC will make complaints? The essence of a complaints procedure, particularly when it does not involve a criminal offence, is that it should be speedy and direct, and the persons involved should see immediately that their problems are being addressed. The biggest complaint we hear from members of the public from both communities relates to the time that it takes for a matter to be resolved.
The Government have responded to a degree to matters which were raised by all the Opposition parties in Committee. However, the Government have missed the opportunity to give their full, frank acceptance of our proposal to give the ordinary person in the street an opportunity to see that justice was being done and that the complaint was being attended to, and that the person involved in assessing the complaint was and is sufficiently independent of the Government, the Minister and the General Officer Commanding.

§ Mr. Deputy Speaker (Mr. Harold Walker)
I should inform the House that this group of amendments involves privilege.

§ The Minister of State, Northern Ireland Office (Dr. Brian Mawhinney)
On 17 January, in Committee, I 489 announced that the Government were considering whether it would be possible to introduce an independent element into the complaints procedure relating to Her Majesty's forces. I returned to the subject on Report, and announced that the Government had decided to accept Lord Colville's recommendation that we should consider the appointment of some independent outside person to carry out on a continuing basis an audit of the way in which armed forces complaints procedures are operating. I also said that the necessary provisions would be brought forward in another place. The new clause and its associated schedule give effect to that undertaking.
The new clause would require the Secretary of State to appoint an independent assessor of military complaints procedures in Northern Ireland. It also outlines the independent assessor's functions in some detail. The assessor would be required to keep under review the procedures adopted by the General Officer Commanding Northern Ireland for receiving, investigating and responding to non-criminal complaints relating to the behaviour of members of the armed forces under his command. The assessor would be required to receive and investigate any representations concerning those procedures. He may also investigate the operation of those complaints procedures in relation to any particular complaint or group of complaints. He may require the General Officer Commanding Northern Ireland to review any particular case or group of cases in which he considers any of the procedures to have operated inadequately; and he may make recommendations to the General Officer Commanding concerning any inadequacies in the procedures.
The assessor has not been given any role in relation to complaints of criminal misconduct by the armed forces. Allegations of criminal misconduct by the armed forces are, and will remain, subject to independent investigation by the Royal Ulster Constabulary.
I have listened carefully to what the hon. Member for Kingston upon Hull, North (Mr. McNamara) said in moving amendment (a), but I have to tell the House that the Government do not support it. The hon. Gentleman criticised the fact that the assessor has not been empowered directly to investigate the substance of non-criminal complaints. The purpose of his amendment is to give the assessor such a role. But the Government do not support giving such a role to the assessor, and I should like to explain why.
First, I ask hon. Members to note that the Government have done exactly what Lord Colville recommended. I refer the House to paragraph 5.25 of Lord Colville's report, where he refers to the appointment of independent outside persons who carry out an audit of the way in which complaints procedures are operating". Lord Colville goes on to say: … such persons do not perform a reappraisal of any individual complaint investigation on its merits, but undertake a survey of the effectiveness of the machinery. They have generous access to files, can accept complaints about the procedure from anyone aggrieved, exercise a general oversight and usually publish an annual Report. That is exactly what the Government have provided in the new clause.

§ Mr. Seamus Mallon (Newry and Armagh)
At this stage, the Minister should perhaps elaborate on what he 490 means by "generous access to files", because that is a crucial element of the proposal. By "generous", does he mean comprehensive?

§ Dr. Mawhinney
I am not sure what distinction the hon. Gentleman is seeking to draw between "generous" and "comprehensive". The assessor will have access whatever files he wishes to have access to.
We believe that Lord Colville's recommendation—

§ Mr. McNamara
Returning to the intervention of the hon. Member for Newry and Armagh (Mr. Mallon), the Minister made an important point when he said that the assessor will have access to any files that he thinks necessary. Does that mean that no inhibitions whatsoever will be placed upon the assessor seeking to look at any file?

§ Dr. Mawhinney
The answer to the hon. Gentleman's question is that the provisions place a duty on the General Officer Commanding to furnish such information … as the … Assessor may reasonably require. That is a direct quote from amendment No. 12. That is what I meant when I said, in shorthand, that the assessor will have access to whatever files the assessor believes that he should have access to.

§ Mr. McNamara
Does "reasonably" apply to what the GOC regards as reasonable or what the assessor regards as reasonable?

§ Dr. Mawhinney
As the hon. Gentleman knows, there is a mechanism for ultimately determining what is or what is not reasonable in the legislation.

§ Mr. David Trimble (Upper Bann)
I am sure that the hon. Minister will agree that amendment No. 12 states that the GOC shall provide such information … as the … Assessor may reasonably require for the purpose of the performance of his functions." Surely that means "reasonably require from the point of view of the independent assessor's functions, and that other factors should not intervene.

§ Dr. Mawhinney
The hon. Gentleman does the House a favour by quoting the provisions exactly and at length.

§ Mr. Mallon
He is acting as the Minister's PPS.

§ Dr. Mawhinney
I am not sure that the hon. Member for Upper Bann (Mr. Trimble) would necessarily favour that offer by the hon. Member for Newry and Armagh (Mr. Mallon).
The hon. Member for Kingston upon Hull, North is right that this is an important part of our new proposals. I hope that a consequence of our exchange is that he has been able to accept that some of his remarks, on moving his amendment, did not deal as deeply with the powers that we are giving the assessor as he might originally have thought.
We believe that Lord Colville's recommendation was right. The Government are confident that all complaints alleging non-criminal misconduct by members of the armed forces are treated seriously by the Army authorities and are scrupulously and thoroughly investigated; and that appropriate disciplinary action is taken in relevant cases. We are not currently persuaded of the need for independent investigation of such complaints.
However, I ask hon. Members also to look carefully at the functions which have been conferred on the 491 independent assessor, as set out in clause 60(4), and in particular those in paragraphs (c), (d) and (e). Although these do not amount to giving the assessor a direct role in the investigation of complaints, they do amount to important new and review functions which go a long way to meet the concerns which have been expressed.
Thus, the assessor will be able to investigate how the complaints procedures have operated in relation to any particular complaint. That will enable the assessor to examine the effectiveness of the procedures for investigating complaints. Moreover, as I said, the assessor may require the General Officer Commanding to review any particular case where he believes that the investigation procedures have operated inadequately.
Finally, the assessor is empowered to make recommendations to the GOC concerning any inadequacies in complaints procedures, including—and this is of crucial importance—any inadequacies in the way in which the procedures have operated in relation to any particular complaint or group of complaints. It is clear, therefore, that, if the assessor finds the investigation procedures to have operated inadequately in relation to a particular case, he may require the GOC to review that case, and he may make recommendations to the GOC concerning any inadequacies that he has identified.
I hope that the House will agree that this is an important new provision. The Government believe that the assessor's functions are appropriate, and that he has been given sufficiently wide powers to make the new office fully effective.

§ Mr. Peter Robinson (Belfast, East)
rose—

§ Dr. Mawhinney
It is for those reasons that, as I said earlier, I must ask the House to reject the Opposition amendment—

§ Mr. Robinson
I am grateful to the Minister for giving way, because I suspect that he is coming to the end of his speech and I want to intervene before he does so.
Does the hon. Gentleman accept—I know that he will —that people in Northern Ireland look at the same situation from a different angle or vision? Is he aware that a broad body of opinion in Northern Ireland is concerned about the legislation that is piling up, which seems to burden our security forces and to make it more difficult for them to operate and to move left or right? Given that we are meeting after another soldier was brutally done to death in my constituency last night by the Provisional IRA, I am sure that the Minister will understand that, when considering with whom they should have sympathy in such circumstances, most people have sympathy with our security forces. Do we really need to make their job that much harder instead of making the task of the terrorist harder?

§ Dr. Mawhinney
I am sure that the whole House will have sympathy with the family and friends of the soldier who was murdered last night, and that that will not be a matter of debate across the House—nor will the associated condemnation of those who coldly, calculatedly and cold-bloodedly killed him.
I understand the point that the hon. Member for Belfast, East (Mr. Robinson) made. Indeed, I believe that it was made in Committee on several occasions. I recollect 492 this hon. Friend the Member for Mid-Ulster (Rev. William McCrea) making a similar point. However, his hon. Friend also accepted in Committee that it was important to have a balance between allowing the security forces to get on and do the job of supporting the Royal Ulster Constabulary, which they are there to do and in which, as the hon. Gentleman said, they have the backing of the vast majority of people in Northern Ireland, and the need, which is also important, for the community to have confidence in the conduct of security-related activity in the Province, because, if that confidence were in any way undermined, the task of the security forces would be made more difficult.
It is not part of the Government's intention in the amendment to shackle the security forces and make their job more difficult. But the Government seek to recognise that a certain level of accountability must be required from the security forces, as it is of the police and others who are involved in public service in the Province.

§ 5 pm

§ Rev. William McCrea (Mid-Ulster)
Does the Minister agree with me, however, that, while confidence in the security forces is certainly necessary, it is important that Members of Parliament should not only say that they give their support to the security forces but encourage their supporters to be an effective part of the security forces in their drive against the terrorist threat that is upon the whole community?

§ Dr. Mawhinney
The hon. Gentleman is tempting me to move wide of the amendment, but he makes a point in his own way which has been reflected on several occasions in the House. Within the House, there is general support for the security forces in carrying out their functions legitimately. I am sure that that support is welcomed on both sides of the Chamber.

§ Mr. Mallon
Will the Minister make it clear, before the issue keeps cropping up throughout the debate, that we are dealing with legislation, and therefore, in effect, with the law? It is not a matter of condescending to give people some type of protection under the law. The law itself is duty bound to protect the individual as well as to apprehend and punish the guilty. That is the responsibility of the law. Protection is not something given by grace or favour by the House or by any legislation. There is a duty under the law to provide it. I should like the Minister to clarify that as of now.

§ Mr. Deputy Speaker
Order. I should perhaps express a cautionary note at this stage: we are in danger of going very wide of the amendments.

§ Dr. Mawhinney
I take your caution, Mr. Deputy Speaker. All that I would say to the hon. Gentleman is that the law has been agreed through Parliament and, of course, it must be applied in exactly the way that he says.

§ Mr. Trimble
I want to ask the Minister two questions. The first is on subsection (2) of the new clause. While I appreciate that one wants to ensure that the independent assessor is genuinely independent, that will depend largely on the character of the assessor. So is it really wise or right to exclude from that post any person who has served in Her Majesty's forces in the past 20 years? Might not experience of service in the forces in some cases be of assistance, and possibly regarded as a qualification?
493 My second question is on subsection (5) of the new clause. The Minister may recall that the hon. Member for Kingston upon Hull, North (Mr. McNamara) asked for an assurance that all persons deployed as members of the security forces in Northern Ireland would be under the command of the General Officer Commanding. The Minister may have forgotten to deal with that.

§ Dr. Mawhinney
I am grateful to the hon. Gentleman for reminding me of the second point. Not everyone in Northern Ireland is under the command of the GOC. There are Territorial Army units and training units in Northern Ireland which are not under his control.

§ Mr. Trimble
I was referring to forces operating as security forces.

§ Dr. Mawhinney
Security force operations are under the control of the GOC. The hon. Gentleman did not mention the word "security"; I think that he simply said "forces". He used a broad brush in his question, and I was seeking to respond to the question that he asked.
The first point is a matter of judgment. Of course, the hon. Gentleman is right. One could say that service in the armed forces might be an advantage to someone in the role of an assessor. It is a matter for judgment whether in such cases there should be five, 10, 20, or 30-years between service and eligibility. The Government have come to a judgment that 20 years is appropriate, but I recognise that that is a judgment and, as such, is open to debate.
The associated schedule deals with a number of "housekeeping" matters, such as the independent assessor's tenure of office, his remuneration, staff and reports. I should like to say a little more on that last matter. The assessor would be required to submit an annual report to the Secretary of State on the performance of his functions. The schedule provides that such reports are to be published and laid before each House of Parliament. Provision is also made for the independent assessor to make a report to the Secretary of State about any matter which comes to his attention in the course of the performance of his functions. The Government believe that that is an important new safeguard.
We are confident that this new measure to establish the office of independent assessor of armed forces' complaints procedures, coming in addition to all the other improvement in complaints systems introduced in recent years, will be in the public interest. We believe that it will be of value to not only the community, but the armed forces themselves in helping retain the confidence and support of all men and women of good will from both traditions in Northern Ireland.
As I said earlier, we cannot accept the Opposition's amendment, but I commend the Lords amendment to the House.

§ Mr. Mallon
I support the amendment tabled by the hon. Member for Kingston upon Hull, North (Mr. McNamara), although I regard even that as inadequate, for several reasons which I shall explain briefly. The first problem is the location. In practical terms, if the complaints procedure is to be effective, there must be ready access to the person's office so that the role can be overseen in a practical way in accordance with the Government's position and the Lords amendments.
Whoever would be appointed would sit in an office somewhere in the Greater Belfast region. He might deal 494 adequately with the situation in Greater Belfast, but he would be completely inaccessible to the vast tract of Northern Ireland outside that area. The problem of location also affects the operation of the Police Complaints Commission. It is a common factor. Although the commission has the power under the legislation to go out, investigate and see for itself at first hand, the instances of its doing so are few and far between. Location seems a small point, but it is a big problem if one happens to live in say, South Armagh and happens to be the recipient of undue attention from the security forces. People in such areas have no access to the location where the assessor will be.
The second point is about the person. I do not want to make it in an offensive way, but I can find no other way of doing so. What sort of person will he or she be? Will he or she be drawn from the coterie of people in the north of Ireland who, for whatever reason, seem to be suitable for a Government appointment to such a job? He or she will certainly not be a Unionist with a capital "U" or a Nationalist with a capital "N". If experience is anything to go by, he or she will be someone whose experience in the community bears no relation to the sort of problems being dealt with. I would rather see the position given to a committed Unionist, with a capital "U", with enough courage and bottle to stand up and deal with the problems, than to a nice person who has been brought in because she or he holds a tea cup properly on special occasions.
Without being offensive, may I suggest that, given the circumstances in the north of Ireland, with 20 years of violence and 20 years of problems stemming from violence of all sorts, it seems incredible that we cannot find the right sort of person to sit on the Police Complaints Commission who has direct experience on the ground. I do not wish to be personal, but it stretches my credibility—and perhaps that of others—that the vice chairman of the Police Complaints Commission is the wife of a High Court judge. It requires a stretch of the imagination to establish any credibility for that appointment. I shall not go further than that, although I could. I make a plea to those who make the decisions that the communities in the north of Ireland, whether Unionist or Nationalist, contain some honest people who could be chosen to carry out such a job.
I envisage some great difficulties in relation to the operation of the assessor, which I shall couch in terms of recent experience. Mr. Stevens was sent to the north of Ireland to investigate alleged collusion between members of the security forces and terrorist organisations. Mr. Stevens' team had to go to Army headquarters, knock on the door or ring the bell, and say to whoever answered, "We understand that you have boxes of montages containing confidential information about people, and that those boxes were given to you by a member or members of a terrorist organisation to prevent them from being caught with them; could we please have them?" I wonder what the position of the independent assessor, supervising the Army's position, would be in those circumstances. Where would his powers—his teeth—lie? That situation occurred recently in the north of Ireland and was investigated. If we put an independent assessor without any power into that position, it is difficult to imagine what the GOC might have to say to him. In reality, the Stevens inquiry had to wring the evidence out of the Army. That is one of the good reasons why the assessor must be independent, not someone without the power or the teeth to deal with the problem
495 I shall make a third general point which I believe is relevant. With whom does the responsibility rest for the implementation of the legislation that Parliament draws up? Is it the GOC, the Chief Constable or the Government, acting through Parliament? That is a crucial question, to which the answer is equally crucial. The attitude is developing both in the House and in practice that the people who make security decisions, on policy or otherwise, are not Ministers, but those who carry security clout—be they members of the security services, senior Army officers or civil servants. I should like an assurance from the Minister at some stage today that each and every element of Government in relation to Northern Ireland is honouring its duty in making those decisions, not having the decisions imposed on it by people who are not empowered to do so.
Another relevant factor is the grey area of what has been known as "public interest". The term "public interest" is often used on the Floor of the House. If the independent assessor asks to examine the way in which a complaint was made and is told that information and files will not be given to him because it would not be in the public interest, where is the independent assessor's authority? Surely his authority diminishes almost immediately. Such circumstances can and will arise.
5.15 pm
There is a distinction to be made between the criminal complaint and the non-criminal complaint. Those of us who deal with such matters at the coal face on an almost weekly basis know exactly what the procedure is. First, the complaint goes to the police to establish whether it is a criminal complaint. A period elapses while that decision is made. If the complaint is deemed not to be a criminal one, it is returned to the Army authorities, by which time the soldier and regiment involved are no longer in Northern Ireland, but are in Germany or somewhere else. I have filing cabinets full of letters stating that the Army would be only too glad to deal with a problem, but that the person involved is now in a different country and, unfortunately, the matter must rest there.
These are the sort of difficulties that present themselves on a daily basis. That is why the independent assessor, as envisaged by the Government, will be quite inadequate. Even if the Lords amendment were carried, as I hope it will be, the assessor's toothlessness will remain due to his inability to penetrate the grey area of the decision-making process in relation to security.

§ Mr. Peter Robinson
I wish briefly, not so much to make a speech, but to put several questions to which the Minister may respond when he replies.
During an intervention I told the Minister of my general concern, and that of a large section of the community in Northern Ireland, at the practice of wearing down the security forces with various forms of restrictions, regulations and inquiries about this, that and the other, as though people in the forces had to be scrutinised the most and we should spend the majority of our time looking at what they were doing. Instead, we should concentrate on those causing death and devastation in Northern Ireland. Perhaps if the House spent as much time thinking of ways and means to take on the terrorists and remove them from 496 our society, we should have less cause to concern ourselves with the tasks that our security forces are asked to do in the most difficult circumstances.
When I consider clause 59 and the appointment of an independent assessor, I am forced to think of the difficulties faced by the Secretary of State when he is being asked to appoint people to independent posts. During the past weeks, if not months, we have been considering the appointment of an independent chairman. If that has not acquainted the Secretary of State with the difficulties of finding someone who is deemed to be independent by all parties, perhaps nothing will. If he did not have the power that is set out in the Bill to make an appointment, I suspect that no one would be found to take on the task. It would be a long day before the hon. Member for Newry and Armagh (Mr. Mallon), we who represent constituencies in Northern Ireland who sit on the Government side of the Chamber and those who similarly represent Northern Ireland constituencies but who sit on the Opposition Benches agreed on who the independent assessor might be. I have no doubt that we would have to take into consideration the views of both the Government and the Opposition.
Would the matter have to go before the Anglo-Irish conference? Will that body have a say in who the assessor will be? Under the Anglo-Irish Agreement, would the Government of the Irish Republic be entitled to make a proposal? Perhaps the Minister will tell us when he replies.
I suspect that much of what is contained in the Bill is designed for cosmetic purposes. I say that with the deepest regret.

§ Mr. Barry Porter (Wirral, South)
Has it not become entirely obvious during this short debate that the Government have leant over backwards to provide someone who is independent to take on the task of the independent assessor? However, if we produced the Archangel Gabriel, some Opposition Members would find something wrong with that.

§ Mr. Robinson
I think that they would object if Gabriel was chosen for the task.
When introducing legislation in the past relating to terrorism in Northern Ireland there have been attempts, for cosmetic purposes, to show that something is being done. I have in mind the legislation that prevents members of proscribed organisations from being heard when they are shown on television. We see their mouths moving, but we are not allowed to hear what they say. An actor can speak for them and utter the appropriate words as the lips of the terrorists move. For some unknown reason we are not allowed to hear terrorist spokesmen as they make their remarks. My view is that if we are to do a job, we should do it properly. In other words, we should ensure that terrorists do not appear on television screens. I suspect that this sort of legislation will contain provisions that are designed for cosmetic purposes.
Can the Minister assure the House that a truly independent person will be appointed? I do not want a yes man to be appointed. I have genuine sympathy for some of the comments made by the hon. Member for Newry and Armagh, for there is a small group in Northern Ireland from which the Government seek to make their appointments for all the major posts within the Province. Appointees have usually been members of the Alliance party at some stage in their careers. Alternatively, they are 497 members of the small group in Northern Ireland that has affiliated itself to the Conservative party. They have assisted the Tory party from time to time, no doubt because of their affluence if not their influence. These people seem always to be given the key posts by means of the various appointments that are made in Northern Ireland by the Secretary of State. I doubt whether the right hon. Gentleman will have any credibility if he appoints someone who merely holds down the post and is not seen to be doing the job for which he has been appointed.

§ Mr. Trimble
The hon. Gentleman is right to draw attention to the disproportionate number of public appointments that are made within the membership of the minuscule Alliance party. He must concede that a few appointees are members of Nationalist parties and of nationalist persuasion. Almost no appointees come from the majority Unionist community.

§ Mr. Robinson
I shall be cautious in replying to the hon. Gentleman's intervention. The Minister appointed me to a post on the Sports Council. I know that if I do not admit that now he will ensure that it is commented upon at the end of the day. He was able to make the appointment because I was nominated by my district council. My hon. Friend the Member for Mid-Ulster (Rev. William McCrea), who was appointed to the Housing Executive, followed the same route, as have many others.

§ Rev. William McCrea (Mid-Ulster)
Now that my hon. Friend has aspired to the great heights of the Sports Council, perhaps he will use his influence to encourage the Minister to appoint some of our colleagues to other positions in the Province.

§ Mr. Robinson
I have greater hopes. I hope that with the success of the talks it will be us who will be appointing rather than the Minister. We might appoint the Minister to something after we have taken over.
It seems that there is one major criterion that must be considered when it is decided whether a person is appropriate to take on the task of the independent assessor. One would think that it would be deemed that the character of the individual would be the most important factor, and that a clear guideline would appear in legislation that no one with a criminal record should be appointed to the post. That guideline is not to be found in the Bill. One might think that some degree of experience in an area of the law, for example, might be necessary. Again, that is not set down in the Bill. Following the deep thinking of those who drafted the Bill, there is only one criterion, and it is a negative one: the Bill provides that the appointee should not have been a member of Her Majesty's forces for the past 20 years. It seems that it is all right if someone has been a criminal, but if he has been a soldier or an airman he is ineligible to take up the post.
I suggest that someone from another branch of the security forces might be the best person to be appointed. He would have some knowledge of the way in which Her Majesty's forces operate. He would know when the General Officer Commanding or any other senior officer was trying to pull the wool over his eyes. Such a person would perhaps not be so easily intimidated as others by the top brass within the Army when he attempts to do business. It is wrong that there is a carte blanche refusal to have an independent assessor who has been in Her Majesty's forces within the past 20 years.
498 There is not much information about the way in which the independent assessor will undertake his responsibilities. We are aware of the various rights—perhaps "rights" is putting it too strongly—that the assessor will have to obtain papers and other pieces of information. To take up one of the terms used by the Minister, I think that they are generous. It would have been pleasant for those of us who were members of the Northern Ireland Assembly to have had the same rights, which would have enabled us to obtain documentation from Departments. The Minister is right that the position of the independent assessor will be such that it will not be possible to hold him back from doing his job by failing to supply him with adequate information. It seems, however—perhaps I have not studied the provisions closely enough—that the independent assessor will not be able to speak to the soldier against whom an allegation has been made, whether or not in the company of a senior officer, so that he can make an assessment of whatever the complaint may be. Will the Minister give us a more graphic description of the sort of job that he sees the independent assessor doing and the way that he might go about it?
Lords amendment No. 12 would insert a new clause 59, subsection (4)(d) of which says that the independent assessor may require the GOC to review any particular case". Can the independent assessor simply force the GOC to review the case, or can he go beyond that and force him to review it in a particular way? It would be fairly meaningless if, having looked at what the GOC might have done in a particular case and having found that he dealt with it inadequately, he asked them to review it and the GOC did just what he did before. The independent assessor would not convince people in the community of his worth if he did not have the power to encourage the GOC to go beyond simply rubber-stamping his decision.
I hope that the Minister will respond to those matters, but, above all, I press him, instead of introducing more and more legislation to tie down our security forces, to bring us legislation that will encompass a new, strong, tough security initiative against the terrorists so that the men who are really causing problems in Northern Ireland can be dealt with.

5.30 pm

§ Dr. Mawhinney
rose—

§ Mr. Deputy Speaker
I take it that the Minister has the leave of the House to speak again.

§ Dr. Mawhinney
The hon. Members for Newry and Armagh (Mr. Mallon) and for Belfast, East (Mr. Robinson) asked a number of questions, and it would be courteous if I responded briefly.
The hon. Member for Newry and Armagh commented on the Stevens inquiry and collusion. That goes well beyond the purpose of the clause. It is an offence under the Bill to possess information such as montages likely to be useful to terrorists, and because it is illegal, it would be an offence for the RUC to investigate rather than the assessor.
The hon. Gentleman also asked who makes policy. As the hon. Gentleman knows, policy is made by Ministers, but operational details are not their responsibility. He, like the hon. Member for Belfast, East, asked who the assessor would be and what would be his standing in the community. I hope that he will accept what I am about to 499 say in the spirit in which it is said. The assessor will have to be someone who can command confidence across the community.
That leads me to a question asked by the hon. Member for Belfast, East. When he said—I do not believe that I do him an injustice—that he thought that it would be difficult for him and the hon. Member for Newry and Armagh to agree on an independent assessor, he highlighted the importance of having someone who can command confidence across the community and put the appointment into sharp political focus. Perhaps, in so doing, he went at least some way to answer the concern expressed by the hon. Member for Newry and Armagh about the appointment of those who are clearly and strongly identified in political terms with one part of the community or the other.
The hon. Gentleman said that the only requirement was that the man should have been independent of the armed forces for the previous 20 years, but he did not go on to mention paragraph (1) (4) of Lords amendment No. 31, which enables the Secretary of State to remove from office anyone who has been convicted of a criminal offence, has been made bankrupt or is otherwise unfit to perform his functions. Those were some of the points raised by the hon. Gentleman, and I hope that he will be encouraged to find them in the legislation.
The statutory responsibility for the appointment falls on the Secretary of State. I have already answered the hon. Gentleman's point about the appointment of a yes man. As I said to the hon. Member for Newry and Armagh, the man, or woman, will have to command confidence across the community. The hon. Member for Belfast, East is right—getting political agreement across the community is not necessarily the easiest job of any Secretary of State, as we have discovered during recent weeks, but I believe that there are people who can command confidence, and I accept the comment of the hon. Member for Newry and Armagh that that confidence should involve a degree of independence to enable him to do his job.
The hon. Gentleman asked how the person appointed will do his job. That is a matter not for me but for the person who is appointed. He will have his own views on how the job should be conducted within the law passed by this Parliament. He will be able to ask the GOC to review procedures in a particular case, and the GOC, who I am sure will want to co-operate with such a request, will also be conscious that the assessor will be producing an annual report which will not only go to the Secretary of State but will be laid before both Houses of Parliament. I believe that, when I spoke about that matter, I stressed the importance of that aspect of the legislation.

§ Mr. Peter Robinson
The Minister does me an injustice if he suggests that I have not seen the amendment to the schedule concerning being convicted of a criminal offence. Clearly, I did not get my point over to the Minister. I was drawing a comparison between the clause 59 provision that a person shall not be eligible if he has been a serving member of Her Majesty's forces and the schedule which says that the Secretary of State may remove someone who has a conviction or a criminal record. There is nothing to prevent the Secretary of State appointing someone with a conviction or a criminal record as an independent assessor. It may be unlikely, but the legislation does not prohibit it.

500

§ Dr. Mawhinney
I apologise if the hon. Gentleman thought that I was misrepresenting him; I was not doing so deliberately. I think that the hon. Gentleman and I would agree that it would be fairly unlikely for the Secretary of State to appoint someone with a major criminal conviction, given the power in the legislation to have such a person removed were it to happen once he had been appointed.
I think that I have addressed the questions that were asked of me. I hope that, in the light of what I have said, the House will not accept amendment (a) but will accept Lords amendments Nos. 12 and 31.

§ Mr. McNamara
I have listened with care to what the Minister had to say. He did not answer the main point at issue—the individual right of complaint to be taken up by an independent assessor against the security forces. In view of the Minister's failure to do that, I shall seek to divide the House.

§ Question put, That the amendment be made to the Lords amendment:—

§ The House divided: Ayes 98, Noes 199.

502

Division No. 184]	[5.37 pm
AYES
Abbott, Ms Diane	Jones, Martyn (Clwyd S W)
Adams, Mrs Irene (Paisley, N.)	Kennedy, Charles
Anderson, Donald	Leighton, Ron
Armstrong, Hilary	Lestor, Joan (Eccles)
Ashton, Joe	Livingstone, Ken
Banks, Tony (Newham NW)	Loyden, Eddie
Barnes, Harry (Derbyshire NE)	McAllion, John
Battle, John	McAvoy, Thomas
Beckett, Margaret	Macdonald, Calum A.
Beith, A. J.	McFall, John
Benn, Rt Hon Tony	McGrady, Eddie
Blair, Tony	McKelvey, William
Boateng, Paul	McMaster, Gordon
Brown, Nicholas (Newcastle E)	McNamara, Kevin
Campbell-Savours, D. N.	Madden, Max
Carl Me, Alex (Mont'g)	Mahon, Mrs Alice
Clark, Dr David (S Shields)	Mallon, Seamus
Clarke, Tom (Monklands W)	Marek, Dr John
Clwyd, Mrs Ann	Marshall, Jim (Leicester S)
Cook, Frank (Stockton N)	Meacher, Michael
Corbett, Robin	Meale, Alan
Cousins, Jim	Michie, Bill (Sheffield Heeley)
Cox, Tom	Mitchell, Austin (G't Grimsby)
Crowther, Stan	Morgan, Rhodri
Cryer, Bob	Morris, Rt Hon A. (W'shawe)
Davis, Terry (B'ham Hodge H'I)	Mullin, Chris
Dixon, Don	Nellist, Dave
Dobson, Frank	O'Brien, William
Dunnachie, Jimmy	Owen, Rt Hon Dr David
Dunwoody, Hon Mrs Gwyneth	Patchett, Terry
Edwards, Huw	Pike, Peter L.
Fields, Terry (L'pool B G'n)	Powell, Ray (Ogmore)
Fisher, Mark	Prescott, John
Foster, Derek	Quin, Ms Joyce
Fyfe, Maria	Randall, Stuart
Galloway, George	Richardson, Jo
George, Bruce	Robertson, George
Godman, Dr Norman A.	Robinson, Geoffrey
Golding, Mrs Llin	Sheerman, Barry
Graham, Thomas	Short, Clare
Griffiths, Win (Bridgend)	Skinner, Dennis
Hain, Peter	Smith, C. (Isl'ton & F'bury)
Hattersley, Rt Hon Roy	Soley, Clive
Hood, Jimmy	Spearing, Nigel
Howells, Geraint	Steinberg, Gerry
Hughes, John (Coventry NE)	Wallace, James
Hughes, Simon (Southwark)	Walley, Joan
Ingram, Adam	Warded, Gareth (Gower)

501

Williams, Rt Hon Alan	Tellers for the Ayes:
Wray, Jimmy	Mr. Frank Haynes and
	Mr. Ken Eastham.
NOES
Arbuthnot, James	Harris, David
Arnold, Jacques (Gravesham)	Hayes, Jerry
Baker, Nicholas (Dorset N)	Hayhoe, Rt Hon Sir Barney
Baldry, Tony	Hayward, Robert
Beggs, Roy	Higgins, Rt Hon Terence L.
Bennett, Nicholas (Pembroke)	Hill, James
Blackburn, Dr John G.	Hind, Kenneth
Blaker, Rt Hon Sir Peter	Hogg, Hon Douglas (Gr'th'm)
Boswell, Tim	Hordern, Sir Peter
Bottomley, Peter	Howarth, Alan (Strat'd-on-A)
Bottomley, Mrs Virginia	Howe, Rt Hon Sir Geoffrey
Bowden, Gerald (Dulwich)	Hughes, Robert G. (Harrow W)
Brazier, Julian	Hunt, Sir John (Ravensbourne)
Bright, Graham	Irvine, Michael
Brooke, Rt Hon Peter	Jack, Michael
Brown, Michael (Brigg & Cl't's)	Janman, Tim
Browne, John (Winchester)	Jessel, Toby
Bruce, Ian (Dorset South)	Johnson Smith, Sir Geoffrey
Buck, Sir Antony	Jones, Robert B (Herts W)
Burns, Simon	Kilfedder, James
Burt, Alistair	King, Roger (B'ham N'thfield)
Butler, Chris	Kirkhope, Timothy
Butterfill, John	Knapman, Roger
Carrington, Matthew	Knight, Greg (Derby North)
Carttiss, Michael	Knowles, Michael
Cash, William	Latham, Michael
Channon, Rt Hon Paul	Lawrence, Ivan
Chapman, Sydney	Lee, John (Pendle)
Clarke, Rt Hon K. (Rushcliffe)	Lester, Jim (Broxtowe)
Coombs, Anthony (Wyre F'rest)	Lloyd, Peter (Fareham)
Coombs, Simon (Swindon)	Lord, Michael
Curry, David	Lyell, Rt Hon Sir Nicholas
Davies, Q. (Stamf'd & Spald'g)	McCrea, Rev William
Davis, David (Boothterry)	McCrindle, Sir Robert
Devlin, Tim	MacGregor, Rt Hon John
Dicks, Terry	MacKay, Andrew (E Berkshire)
Dorrell, Stephen	Maclean, David
Douglas-Hamilton, Lord James	McNair-Wilson, Sir Michael
Dover, Den	Maginnis, Ken
Dunn, Bob	Malins, Humfrey
Durant, Sir Anthony	Mans, Keith
Dykes, Hugh	Maples, John
Eggar, Tim	Marshall, John (Hendon S)
Emery, Sir Peter	Marshall, Sir Michael (Arundel)
Evennett, David	Martin, David (Portsmouth S)
Farr, Sir John	Mates, Michael
Fenner, Dame Peggy	Maude, Hon Francis
Fishburn, John Dudley	Mawhinney, Dr Brian
Fookes, Dame Janet	Maxwell-Hyslop, Robin
Forman, Nigel	Mitchell, Andrew (Gedling)
Forsythe, Clifford (Antrim S)	Moate, Roger
Forth, Eric	Molyneaux, Rt Hon James
Fox, Sir Marcus	Morrison, Sir Charles
Franks, Cecil	Moss, Malcolm
Freeman, Roger.	Moynihan, Hon Colin
French, Douglas	Neale, Sir Gerrard
Gale, Roger	Nelson, Anthony
Gardiner, Sir George	Neubert, Sir Michael
Garel-Jones, Tristan	Newton, Rt Hon Tony
Goodhart, Sir Philip	Nicholls, Patrick
Goodlad, Alastair	Nicholson, David (Taunton)
Goodson-Wickes, Dr Charles	Onslow, Rt Hon Cranley
Gorman, Mrs Teresa	Paisley, Rev Ian
Gorst, John	Patnick, Irvine
Greenway, Harry (Ealing N)	Peacock, Mrs Elizabeth
Greenway, John (Ryedale)	Porter, Barry (Wirral S)
Gregory, Conal	Porter, David (Waveney)
Griffiths, Peter (Portsmouth N)	Raison, Rt Hon Sir Timothy
Grist, Ian	Rathbone, Tim
Ground, Patrick	Redwood, John
Gummer, Rt Hon John Selwyn	Renton, Rt Hon Tim
Hague, William	Rhodes James, Sir Robert
Hamilton, Rt Hon Archie	Riddick, Graham
Hanley, Jeremy	Robinson, Peter (Belfast E)
Hargreaves, Ken (Hyndburn)	Ross, William (Londonderry E)

502

Rossi, Sir Hugh	Thorne, Neil
Ryder, Rt Hon Richard	Thurnham, Peter
Sackville, Hon Tom	Tracey, Richard
Sayeed, Jonathan	Tredinnick, David
Scott, Rt Hon Nicholas	Trimble, David
Shaw, David (Dover)	Twinn, Dr Ian
Shaw, Sir Michael (Scarb')	Viggers, Peter
Shelton, Sir William	Waldegrave, Rt Hon William
Shephard, Mrs G. (Norfolk SW)	Walden, George
Shepherd, Colin (Hereford)	Walker, A. Cecil (Belfast N)
Shepherd, Richard (Aldridge)	Waller, Gary
Shersby, Michael	Wardle, Charles (Bexhill)
Smith, Tim (Beaconsfield)	Watts, John
Speller, Tony	Wells, Bowen
Spicer, Michael (S Worcs)	Wheeler, Sir John
Squire, Robin	Widdecombe, Ann
Stanbrook, Ivor	Wiggin, Jerry
Stanley, Rt Hon Sir John	Wilkinson, John
Steen, Anthony	Winterton, Mrs Ann
Stern, Michael	Winterton, Nicholas
Stewart, Andy (Sherwood)	Wood, Timothy
Summerson, Hugo	Yeo, Tim
Taylor, Sir Teddy
Tebbit, Rt Hon Norman	Tellers for the Noes:
Temple-Morris, Peter	Mr. David Lightbown and
Thompson, Patrick (Norwich N)	Mr. Neil Hamilton.