HL Deb 06 June 1991 vol 529 cc806-31

7.12 p.m.

Report received.

Clause 19 [Power to search for munitions, radio transmitters and scanning receivers]:

The Paymaster General (Lord Belstead) moved Amendment No. 1:

Page 15, line 2, after ("supplied") insert ("at once or, where that is not practicable, as soon as is practicable").

The noble Lord said: My Lords, in Committee Clause 19 of this Bill was amended by the Government to place a duty on the police and armed forces to make a written record when they exercise their powers of search under this clause. The amendment also required the security forces to provide a copy of the record to the occupier of the premises or other place searched.

During the debate the noble Lord, Lord Prys-Davies, welcomed the amendment but drew attenticn to the fact that it did not specify any time limit within which the record must be provided to the occupier of the premises. I undertook to look at that point.

It was always the Government's intention that, if practicable, a copy of the record should be supplied at once. The amendment which stands in my name is designed to meet the point made by the noble Lord, Lord Prys-Davies. I hope that the noble Lord will feel that it goes as far as is reasonably possible.

Lord Prys-Davies

My Lords, I thank the noble Lord for the amendment. It fully meets the concerns that were expressed in Committee.

On Question, amendment agreed to.

Clause 22 [Examination of documents]:

Lord Prys-Davies moved Amendment No. 2:

Page 15, line 27, at end insert:

("() A statement by a qualified barrister or solicitor, or by a clerk to a qualified barrister or solicitor, that a document or record is subject to legal privilege (within the meaning of the Police and Criminal Evidence (Northern Ireland) Order 1989) shall be taken as conclusive proof by a constable or member of Her Majesty's Forces for the purposes of the operation of subsection (3) above.").

The noble Lord said: My Lords, this is an amendment to Clause 22, which is a new clause giving members of the security forces the power to examine and remove documents discovered in the course of a search. It is a very important clause. However, the clause ha s been the subject of a great deal of anxiety. It was the subject of debate in another place and we expressed those worries in Committee.

The original version of Clause 22 made no provision whatever for the protection of legal privilege. Subsection (3) was then introduced in another place in order to exclude legally privileged material from examination and removal when found in the course of a search. However, the amended Clause 22 is still defective since it fails to address the practical difficulty which we identified in Committee. That difficulty is this: how will a soldier without the necessary training and experience recognise that a particular document which he has found in the course of a search is entitled to legal privilege and is therefore not to be examined or removed? That is the question which I asked the Minister in Committee. It was not directly answered by the noble Lord, Lord Belstead. When he replied the Minister merely repeated that the soldier must have reasonable cause for believing it to be a legal document. In our view, that is not particularly helpful.

The noble Viscount, Lord Brookeborough, envisaged that it might present difficulties for soldiers. He went on to suggest that there could be a code of practice. We will come to that suggestion at a later stage. Therefore, the difficulty with the clause as it stands is how a soldier will determine that it is a document to which is attached privilege. If it is the case that he has to read through the document in order to answer that question, that would appear to me to be breaching the principle of privilege.

This amendment seeks to find a way out of this dilemma by providing that if a member of the legal profession states that the document in his possession is legally privileged the document cannot be examined further. In that situation the duty of the soldier would be to verify the identify of the person making the statement. Although I have not checked this, I am sure that a person falsely claiming legal privilege would be guilty of some offence. I beg to move.

Lord Holme of Cheltenham

My Lords, I so warmly support the intention of this amendment that I am reluctant to be critical of the way it is drafted. However, perhaps the noble Lord, Lord Prys-Davies, might wish to consider the point that there is a danger that terrorist organisations will organise themselves to get lawyers' letters saying that documents are protected by legal privilege. Also, would not the people most likely to go to the trouble of procuring legal privilege be those with the most to hide?

Therefore, my problem with the amendment as drafted is that it may present the danger that we hamper the security forces without affording real protection to anyone other than the very sophisticated or those who have something to hide. However, I warmly support the amendment and to save the House having to hear me twice on the same subject, I also warmly support Amendment No. 4 which, as originally drafted, was meant to deal with the same clause in the Bill. I support the idea of a code of practice. Perhaps that might be a better way to proceed.

While I am on my feet, and as this is the first occasion we have discussed Northern Ireland matters since the breakthrough in the talks, perhaps I may say a few words from these Benches of congratulation to the Secretary of State on the extraordinary breakthrough. He deserves our warmest congratulations. As to the Northern Ireland parties, we all know what sacrifice of entrenched positions has been involved for all parties to have reached this point. Some would say— I think I might say it myself— that now we can get on from matters of process to matters of substance.

It is worth remembering that in the Vietnam peace negotiations the biggest problem was deciding the shape of the table. Once the shape of the table was decided, which took many painful months, what followed turned out to be somewhat easier. I am sure that it is public opinion acting on the politicians and parties in Northern Ireland that is the key factor, combined with the skill and diplomacy of the Secretary of State himself. The greatest reason for optimism— there are many reasons to be pessimistic— is the pressure public opinion is now exerting directly on the political leaders in Northern Ireland. I apologise to the House for deviating somewhat from the amendment. However, it seemed right not to let the breakthrough go unmarked.

Lord Renton

My Lords, I should like to endorse what the noble Lord, Lord Holme, has said and to congratulate my right honourable friend the Secretary of State for Northern Ireland.

In coming to the amendment I disclose that I have been a barrister for 58 years. I find it very flattering that members of my profession should be allowed to offer documents as being subject to legal privilege and for it to be taken as conclusive proof, not even prima facie proof, that they are subject to legal privilege. I would not expect my noble friend to accept the amendment for several reasons. First, there is often doubt and dispute as to what constitutes legal privilege in any particular circumstance. I have already mentioned the second reason. For this to become conclusive proof is going much too far. My third reason is that it makes an assumption that every qualified barrister or solicitor or their clerk should be so reliable and in all circumstances so complete in their integrity that it would be safe to take this as conclusive proof. I do not consider that to be realistic.

Lord Fitt

My Lords, the arguments in favour of the amendment were adequately rehearsed in Committee. The argument put to the Minister then was to the effect that soldiers carrying out a search, whether of a home or of a car, are not especially qualified to ascertain the authenticity of whatever documents they may happen to find.

When a search of a home is taking place, the search is normally carried out by the Army in support of the civil authority; namely, the RUC. Members of the RUC in Northern Ireland are very much more experienced in the ways of the terrorist and in the documentation which may or may not be involved. It is not a slight on the British Army and no attack on the character of the ordinary soldier to say that, in such a sensitive situation as that which exists in Northern Ireland, the soldier is not an expert who would be able to make up his mind on a particular document. He could create a great deal of aggravation by the manner in which he took away documents, either from a car or from a home. I should be happy to hear the Minister say that if those documents were to be taken, they should be taken on the word of the RUC rather than on the word of the ordinary British soldier.

Viscount Brookeborough

My Lords, the noble Lord, Lord Fitt, may be a little out of date. When occupied houses are searched in Northern Ireland, so far as I am aware a policeman is always present. Therefore there will never be an occasion on which a soldier will have to act on his own.

The amendment as it is written is not to my liking and I do not think we need it. The noble Lord, Lord Prys-Davies, said that in Committee I mentioned a code of practice. I did mention it. I do not totally disagree with a code of practice but it would be much more practicable to have a straightforward written instruction for soldiers as to how they should conduct a search of documents or whatever. If there is any suspicion that a document may be legal in any way, they should call the police. It should go through that system.

Lord Elton

My Lords, the Bill already requires the authorities not to examine, retain or remove documents which they have reason to believe are subject to privilege. The amendment merely gives them a particular basis for that belief which will depend on the soldier knowing that the person giving the evidence is a qualified barrister or solicitor. What basis he will have for making that assumption is not clear. I merely put in my ha'p'orth in order to join the noble Lord, Lord Holme, and my noble friend Lord Renton in the warmest congratulations to the Secretary of State, and also to the politicians involved in the, for them, very difficult step of moving away from positions which they have occupied as entrenchments for far too long. It is a difficult move which we should all welcome.

Lord Belstead

My Lords, I am grateful to noble Lords for their words about the talks process which is going on. I shall draw the attention of my right honourable friend the Secretary of State for Northern Ireland to what has been said. I know that he will much appreciate it.

I fully understand the anxiety which underlies the amendment but it would, as my noble friend Lord Renton in essence said, give rise to more difficulty than it would solve. One of the difficulties which my noble friend adumbrated is that it would be necessary for a policeman or soldier to establish that a person was a qualified barrister or solicitor or a clerk to a qualified barrister or solicitor before such a statement could be held as conclusive. That would be almost unworkable. It would be only too easy, as the noble Lord, Lord Holme of Cheltenham, said, for members of paramilitary organisations to claim fraudulently that they were members of one of those professions.

Perhaps I may be a little more constructive than that and draw attention to the wording in subsection (3) of the clause. It makes clear that a person may not examine, remove or retain a document or record at a time when he has reasonable cause for believing it to be an item subject to legal privilege. As my noble friend Lord Elton reminded us, the change was made in the House of Commons in order to try to be helpful. If someone who is a barrister or a solicitor indicates that a document or a set of documents is subject to legal privilege, then a policeman or a soldier would not be justified in examining them for longer than it was necessary to check that the documents were of a legal nature. I realise that that brings us to the point of how that is done.

At the previous stage of the Bill my noble friend Lord Brookeborough made some helpful observations about how in practical terms a soldier or policeman might seek to operate the provision. My noble friend said then that it is clearly right that where any doubt arises it should be for a policeman rather than a soldier to make a judgment about the nature of a document or a set of documents because the police are trained in the police and criminal evidence legislation. I give an undertaking to the House that instructions issued to the security forces will make the point clear that it is the police who ought to make the examination.

I should like to emphasise that in introducing subsection (3) of the clause we were seeking to meet the worries that had been expressed about the importance of protecting legal privilege—which is given special protection within the police and criminal evidence legislation—while at the same time not in any way undermining the generality of the power or causing it to be inoperable.

We all accept the sensitivity of this provision; but equally I hope that your Lordships will be reminded at this new stage of the Bill that this is a clause which has great potential value in saving lives and securing convictions. I do not think that this amendment would assist in the operation of this particular power which was put in to try to be helpful or enhance the protection given to legally privileged documents. But I give the assurance that, in co-operation with the security forces, we shall ensure that this aspect of the power is fully understood and its operation properly set out in the instructions given to individual soldiers and policemen.

Lord Prys-Davies

My Lords, our theory is that the clause may be unworkable. The amendment was an attempt to get around the difficulties that I identified. I accept, as I must, that there is force in the criticism that has been levelled at the amendment. It is imperfect. I am not so convinced however that the clause should remain without an additional safeguard. I therefore reserve the right to come back at an even later stage with an improved safeguard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 p.m.

Lord Belstead moved Amendment No. 3:

Page 17, line 9, at end insert ("at once or, if that is not practicable, as soon as is practicable").

The noble Lord said: My Lords, this is the second occasion that I am going to suggest to your Lordships that a change should be made to the Bill in response to a perceptive point put by the noble Lord, Lord Prys-Davies. He moved an amendment at a previous stage of the Bill to place a duty on the police and armed forces to issue a written receipt on the spot, as I understood it, when they remove documents for examination under Clause 22. On that occasion I said in reply that the Government considered that the detailed written record of the examination would constitute a receipt. But I also undertook to reflect further on the noble Lord's anxieties.

It was always the Government's intention where practicable that a copy of the written record ought to be provided at once. The noble Lord is right that this ought to be written on the face of the Bill. I hope that the noble. Lord will feel that this essentially meets the point he made.

Lord Prys-Davies

My Lords, again I thank the noble Lord, Lord Belstead, for the amendment which goes a long way to meet the problem that one had identified in Committee. However, it is not quite directed at the difficulty. The difficulty could arise where the document is removed for examination under subsection (2) and it has not been practicable to provide a written record—and, after all, the written record needs to specify seven matters—and then subsequently the document is lost.

I wonder whether the Minister has overlooked that documents can get lost. They can get lost in transit. Therefore is there not a case for a short receipt—not consisting of the seven matters in subsection (6)—to be issued where a document is removed for examination and it has not been practicable to issue the fuller record under subsection (6)? I should be grateful if the Minister could in addition address his mind to that particular case, bearing in mind that documents can get lost in course of transit.

Lord Belstead

My Lords, I think the noble Lord is going for a belt and braces approach. The first amendment I moved was in reply to a point that had been put by the noble Lord. In that particular case I agreed—and the noble Lord graciously replied that it met his point—that there ought to be a record made of a search of a house, and that that should be given as soon as practicable. The noble Lord did not then say that that record might be lost and therefore that yet another piece of paper might be supplied.

In this case I thought that I was meeting the noble Lord's point by agreeing that the written record of the examination of the documents should be given to the person concerned immediately, or as soon as practicable. The reason for that is just in case at the crucial moment there is another bomb found in a particular situation, or a sudden alarm or excursion. The noble Lord is saying, "But that piece of paper might be lost". That is asking for a little too much. If the noble Lord will forgive me, I shall resist that suggestion.

Lord Prys-Davies

My Lords, the noble Lord has misunderstood the point that I am making. He cannot draw the comparison between the record under Clause 19 and that under Clause 22. A document can get lost. Premises cannot get lost. Under Clause 19 we are concerned with premises, whereas here we are concerned with documents. Nevertheless, I take note of what the noble Lord has said. I do not accept it, and I shall have to consider whether this is an issue which I shall bring back at a later stage.

Lord Belstead

My Lords, if the House will forgive me, may I draw the noble Lord's attention to subsection (6) of Clause 22, where the record has to make under subsection (a) a description of the document or record"? If the document gets lost, the description is still there. To say then that therefore the effect of this amendment is negated is to stand logic on its head.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No. 4:

Page 17, line 32, at end insert:

("() The Secretary of State shall issue a code of practice on the operation of this section.").

The noble Lord said: My Lords, we shall see whether we can be a little more relaxed on this amendment. This amendment is also related to this difficult Clause 22. Its purpose is to ensure that a more detailed and statutory guidance on the operation of the clause is issued to the police and the armed forces in order to exercise some degree of control over the power to examine documents. It was generally agreed in Committee that there is a need to provide soldiers and constables with more detailed and specific instructions about the use of these powers. The Minister told the Committee that the RUC chief constable and the GOC intended to issue detailed force instructions on the use of these powers. We welcome that. The Minister also agreed that it would be necessary for the clause to be administered properly and sensitively.

This amendment would provide for a code of practice to be issued by the Secretary of State. Although the amendment had its origins in a suggestion made in Committee by the noble Viscount, Lord Brookeborough, I now understand that he is possibly no longer in support of the suggestion. The code of practice would have advantages over the voluntary code to be issued by the RUC and by the GOC. It would have these advantages. It would allow for some degree of parliamentary scrutiny of the ways in which it is envisaged that the power would be exercised. Secondly, the code, unlike the voluntary guidance, would have some statutory authorisation, and would therefore enhance its legal status.

Thirdly, the code would be a public document. It would give members of the public a clearer understanding of where they stand in relation to the operation of Clause 22 and how it could affect them. For those reasons, we believe that a statutory code of practice is preferable to relying upon a voluntary code to be issued by the army or the RUC. I beg to move.

Lord Renton

My Lords, I wonder why the noble Lord feels that the amendment is necessary because Clause 61, which refers to police powers, requires the Secretary of State to make codes of practice, in connection with the exercise by police officers of any power conferred by Part II", of the Bill. The power contained in Clause 22 is in Part II. For members of the armed forces, we find a parallel provision in Clause 62(1). It would seem that the amendment adds nothing to the Bill.

Lord Belstead

My Lords, as I said in Committee, we expect that the exercise of the powers contained in Clause 22 will be governed, at any rate in the first instance, by joint force instructions issued by the chief constable and the GOC. The exercise of the new power will, in any case, require special training for ordinary policemen and soldiers, and it seems sensible that the basic rules governing the use of the power should be summarised briefly on something akin to the yellow card. I was interested in what my noble friend Lord Brookeborough said about that at an earlier stage. If we go down this road, which is what I believe we can and should do, I make it clear that the Government would be consulted in the drafting of those instructions. Our view, which is shared by the security forces, is that in most circumstances it should be policemen and not soldiers who should exercise the power, and that they should do so only in a limited number of circumstances. That view will be reinforced by the requirement to make a record of each occasion upon which the power is exercised.

When the Bill comes into force the existing non-statutory guidance to the emergency powers will be superseded and will therefore need to be revised in the light of the new powers contained in the Bill, especially those in Clause 22. In the course of updating the guidance, we shall take account of the instructions on those powers which have been issued. I hope that I have said enough to convince the noble Lord that that is the right way to proceed. My noble friend Lord Renton is also right technically and legislatively: the point is covered elsewhere in the Bill if the Government wish to take that line. I am being honest with the House when I say we would not wish to take that line on this point, because I believe that force instructions through a yellow card procedure would be preferable.

Lord Prys-Davies

My Lords, I am grateful to the noble Lord, Lord Renton, for having drawn my attention to the provisions of Clauses 61 and 62. They may well cover the point. I shall not press the amendment. The Minister referred to the yellow card. As I understand it, the yellow card is a confidential document, while a code of practice would be a public document. We took the view that it would be helpful if members of the public had access to the guidance. Bearing in mind that the point may well be provided for in Clause 61, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

Clause 25 [Power of Secretary of State to direct the closure, etc. of roads]:

Lord Belstead moved Amendment No. 5:

Page 18, line 37, leave out ("The Secretary of State") and insert ("If the Secretary of State considers it necessary to do so for the preservation of the peace or the maintenance of order he").

The noble Lord said: My Lords, the amendment is intended in the main to meet the concerns expressed by the noble Lord, Lord Prys-Davies, when he tabled a similar amendment in Committee. The effect of the amendment would be to state more explicitly the scope of the Secretary of State's power to direct the closure or diversion of roads; namely, where he considers it necessary, for the preservation of the peace or the maintenance of order".

I have considered whether it would be appropriate to introduce a criterion of "reasonableness" into the power, as the noble Lord intended. I should make it clear that the exercise of the existing power is already susceptible to judicial review, and the amendment he moved in Committee might have assisted an application for such a review in certain circumstances, but it could create real difficulties if the "reasonableness" of the Secretary of State's decision to close a road, which is often based on confidential security advice, were open to challenge on each occasion. Such a provision could be of assistance to terrorist organisations.

As I said in Committee, it is essential that the social and economic implications of a closure are considered by the Secretary of State and his advisers before the decision is made to close a road; but there are circumstances in which the security considerations, and the danger that lives may be lost, are compelling, and it is necessary that a road should be closed and remain closed. For the reasons that I have given the amendment does not include a criterion of "reasonableness", which I know that the noble Lord, Lord Prys-Davies, wished to see included. I hope that he will feel that the amendment is a practical and genuine attempt to meet his point. I beg to move.

Lord Prys-Davies

My Lords, although the amendment does not fully meet the point made in Committee, nevertheless I thank the Minister for tabling it.

On Question, amendment agreed to.

Clause 58 [Supplementary regulations for preserving the peace, etc.]:

Lord Prys-Davies moved Amendment No. 6:

Page 42, line 36, after ("or) insert ("Parts I, II, III, and IV of').

The noble Lord said: My Lords, Clause 58 gives the Secretary of State wide powers to make additional regulations for promoting the preservation of the peace and the maintenance of order. The Bill contains no hint of the nature of those regulations, but we noted in. Committee that the regulations may create a new criminal offence, punishable by a fine or up to six months' imprisonment. In Committee, we attempted, unsuccessfully. to limit the scope of the clause. The amendment is yet another attempt to restrict the scope of the clause, as it would restrict the provisions of the clause to the first four parts of the Bill.

It will be recognised that the wording of the amendment is inspired by the comments made in Committee by the noble Viscount, Lord Colville. Clause 58 is not a new clause. It mirrors the provisions of Section 27 of the Northern Ireland (Emergency Provisions) Act 1978, the powers of which are a legacy of the special powers legislation.

Clause 58 adds enormously to the potential scope of the Bill. The 1978 Act consisted of 36 clauses and four parts, but the Bill consists of 71 clauses brought together in nine parts. The power contained in Section 27 applied only to matters connected with scheduled offences, powers of arrest and search, public order offences and detention orders. Those matters are to be found in Parts I, II, III and IV of the Bill, hence the significance of the wording of the amendment. We say that the other parts of the Bill should not be subject to the Secretary of State's regulation-making power. If new regulations are required, then it would be for the Secretary of State to obtain them by introducing fresh legislation. I beg to move.

Lord Holme of Cheltenham

My Lords, I support the amendment very warmly. It is an attempt by the noble Lord, Lord Prys-Davies, to limit the subjective interpretation by the Secretary of State. Clause 58 is extraordinary: The Secretary of State may by regulations make provision additional to the foregoing provisions of this Act for promoting the preservation of the peace and the maintenance of order". The qualifying clause at the end is welcome; but this is an objectionable clause from any parliamentary perspective. As it stands, or even, to some extent, amended as the noble Lord, Lord Prys-Davies, wisely suggests, it is constitutionally objectionable, and I venture to say dangerous. It is a blank cheque which allows the Secretary of State by regulation and by order to do what he wishes.

The Bill is already extremely comprehensive. Its provisions have been accumulated over painful years. It has been closely debated both here and in the other place. Although it is necessary as a whole, in the view of these Benches, it comes dangerously close at points to tilting the balance between liberty and security towards security. We should ask ourselves what these new unspecified powers are that might be required. Clearly they may result in putting people in prison, because that is provided for here. Why should Parliament not have the right to hear if extra powers of some kind are required? Why should it not be a matter for Parliament?

If I may say this to noble Lords opposite: it is difficult, but imagine for a moment a government of a different complexion sitting on those Benches, putting portmanteau clauses into Bills which allow Secretaries of State to do what they choose when they wish, for whatever reason. I can hear the protests now from noble Lords with a long and distinguished record of opposition to the overweening power of the Executive saying, "This really will not do. You can't give Ministers blank cheques. Parliament must decide". I can hear those arguments now. I suggest that we should not only support the noble Lord's amendment but the Government should think again about the whole nature of the clause.

Lord Fitt

My Lords, when the special powers legislation was introduced in Northern Ireland in 1920, it met with a good deal of opposition from all those people who believed in the liberty of the subject. Over the years, it was added to by the Government who were frightened of what they saw as a nasty minority in Northern Ireland who might bring about the downfall of the state.

When the civil rights demonstrations began in Northern Ireland in the mid-1960s, one of the demands made by the civil rights movement was for the abolition of the special powers legislation. I cannot recall when exactly, but I am sure that the Minister is aware that during this time a debate took place in the South African parliament on the apartheid laws. It met with a good deal of opposition from those who were opposed to that type of legislation. The minister responsible for security in the South African parliament said, during a dramatic part of the debate, "I would be willing to give up all this legislation for Sections 14 or 15 of the special powers Act as it applies to Northern Ireland". I remember taking note of it at the time and we put the quotation in our banners. We felt that it totally justified our opposition to the special powers legislation, particularly when it had the support of the apartheid government in South Africa.

It is unwise for the Minister to accept Clause 58 which appears to do exactly the same. On its own the clause gives the Government overwhelming power to take whatever action they deem necessary in the face of any situation. Under the Bill, all the other clauses could be made to look irrelevant.

It has been said in this House that when all those of us who have questioned the necessity for the legislation voice opposition to some of the clauses and seek to put forward amendments, it is not in any way with a view to helping the terrorists. I would not stand up in this House for a second to make comments on the legislation if I thought it would help the terrorists in Northern Ireland. It has been stated repeatedly that the legislation is draconian and is only on the statute book because of the awful situation that has existed for so long in Northern Ireland.

However, recognising that the legislation is draconian, every effort must be made to assure the innocent public in Northern Ireland that we shall not have a repeat of the special powers legislation as we knew it during the existence of the Northern Ireland Government.

Lord Belstead

My Lords, to use a rather time-worn expression, perhaps there is a misunderstanding here. The noble Lord, Lord Holme, is always fair about these matters. He says that the clause is constitutionally objectionable. The noble Lord, Lord Fitt, believes that it allows the Secretary of State to do what he likes. The noble Lord, Lord Prys-Davies, also believes that it gives wide powers with no hint of exactly what could be raised by regulations.

If these fears were real I should find myself on the same side as noble Lords opposite; but, with respect, I do not believe that the fears hold water. The reason I say that is that the limit on the regulation-making power that we are talking about is in the reference to promoting the preservation of the peace and the maintenance of order. In addition, the power conferred by the clause is narrower now than the corresponding power in Section 27 of the 1978 Act since there are now more matters in the foregoing provisions.

I wish to make it clear that the clause does not allow the Secretary of State to do as he wants when he wants. The Bill states clearly that: The Secretary of State may by regulations make provision additional to the foregoing provisions of this Act for…the preservation of the peace and the maintenance of order". He may only do that. There are two criteria of which noble Lords have perhaps not taken account. For that basic reason, I believe that we are on the wrong track in this discussion. With great respect, the amendment is on the wrong track because it narrows what was the corresponding power in the 1978 Act. There are now more matters in the foregoing provisions. In addition to Parts V to VII, the Bill now includes Clauses 22 and 27 and the part of Clause 25 dealing with border crossing closures. Thus there is less that the regulations could add. It is common sense that if there is an absolute limit to the number of provisions that it is possible to make and extra provisions have been included in the Bill, then the overall pool of possible provisions must have been reduced.

The noble Lord, Lord Prys-Davies, may be reassured if I also say that there is no intention on behalf of the Government to use the regulation-making power to add to the provisions already in Parts V to VII. Anyway, it is difficult to see how those parts of the Bill could be added to by way of provision under Clause 58. The regulations will be subject to the affirmative resolution procedure.

Lord Prys-Davies

My Lords, were any regulations made under the 1978 Act?

Lord Belstead

My Lords, I cannot reply to that question without notice.

Lord Prys-Davies

My Lords, the Minister has given the House some reassurances. I accept that Clause 58(1) has certain limitations. In a sense the Minister is right. As this Bill contains many more provisions than the previous Bill, fewer matters can be added by regulations. That is a fair point to make. However, on the other hand, the Secretary of State will, under the Bill, be able to make regulations in a total of nine areas, whereas under the 1978 Act he was confined to the four areas which come under Parts I, II, III and IV of this Bill. In that sense the scope for the power has been considerably extended. We may well have to reflect upon this matter and possibly return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8 p.m.

Clause 60 [Independent Assessor of Military Complaints Procedures in Northern Ireland]:

Lord Prys-Davies moved Amendment No. 7:

Page 43, line 37, at end insert:

"() may require the GOC to make further investigations into a particular complaint if the Independent Assessor considers such further investigations to be necessary.").

The noble Lord said: My Lords, in moving Amendment No. 7, I shall speak also to Amendments No. 8 and 13. I welcomed Clause 60 when it was introduced by the Minister in Committee. Clause 60 establishes the office of the independent assessor of military complaints procedures. It is the assessor who will provide the independent element in the system for the supervision of complaints involving the security forces. Nevertheless, the clause could be improved and should be improved.

The major criticism of the clause has been the limited role which the independent assessor has been given. The new office is in many ways—although not entirely so—apparently intended to be that of an adviser to the general officer commanding. The object of Amendments Nos. 7 and 8 is to strengthen the role of the assessor. In a sense both are self-explanatory. Amendment No. 7 would enhance the assessor's supervisory role by giving him authority to require the general officer commanding to make further investigations into a complaint. We believe the assessor should have that authority. Where he is satisfied that an investigation has been inadequately carried out or that something may have gone wrong in the course of an investigation, he should have the authority that I have just referred to. This amendment would give the assessor the authority to ensure that investigations are adequately carried out.

Amendment No. 8 would also strengthen the role of the assessor. As drafted, Clause 60 gives the assessor the power to make a recommendation to the general officer commanding, but this amendment requires the GOC to make a response to any such recommendation. It seems to me that a power for a supervisor to make a recommendation without a duty on the recipient to respond is not satisfactory. These two amendments would strengthen the role of the independent assessor. I hope that these amendments, or amendments along these lines, will be acceptable to the Government.

Amendment No. 13 seeks to ensure that the new office will be well publicised. If adequate publicity is not given to the existence and the role of the assessor, we fear that the effectiveness of the office may be considerably reduced. If the office is not well publicised, how will the ordinary citizen quickly get to know of its existence? If the independent assessor is not within reach of complainants and is not aware of their feelings and beliefs about the complaints procedures, how can he know whether the procedures are perceived to be working fairly? If the independent assessor does not know how complainants feel about such procedures, how will he know whether they should be perfected? Those are the kinds of questions that have led to the tabling of this amendment. The amendment seeks to establish an adequate budget for the new office to enable its existence and its work to be publicised. I beg to move.

Lord Elton

My Lords, I believe that the answer to the anxieties expressed by the noble Lord, Lord Prys-Davies, as regards Amendments Nos. 7 and 8 can be four d in paragraph 4 of Schedule 6. The noble Lord seeks to ensure that the GOC adequately meets the requirements placed upon him by the assessor, and that he is prompt in responding to the assessor. Under paragraph 4 of Schedule 6 the independent assessor is given a power to draw the Secretary of State's attention to any shortcomings that may have occurred in the behaviour of the GOC during the year. The Secretary of State is required to publish that information and to lay copies of the information before both Houses of Parliament. Moreover, if the behaviour of the GOC falls far short of what the assessor believes to be reasonable, the latter has an opportunity to make a report on that behaviour to the Secretary of State without waiting for the annual report to be submitted.

Perhaps the noble Lord, Lord Prys-Davies, simply wishes to bring pressure to bear on the GOC in Northern Ireland. However, I believe that pressure is placed overwhelmingly in the hands of your Lordships through the provision that is already included in the Bill.

Lord Holme of Cheltenham

My Lords, I rise to support Amendment No. 13. I support the proposal for some measure of publicity to be given to the office of the independent assessor. I believe that on the whole the House regards that office as an extremely valuable appointment that is designed to secure public reassurance. Therefore a modest publicity budget could only be helpful. In the case of the provisional appointment of the various ombudsmen and also of the police complaints authority and other bodies publicity has been used to explain the role of those bodies to the public. The matter of public relations is at the root of this measure. It is important that justice is seen to be done. People need to be reassured that, should matters go wrong, nothing will be covered up. That purpose is positively served by the right kind of publicity. I hope the Government will look sympathetically at Amendment No. 13.

Lord Lyell

My Lords, before my noble friend replies, I hope he can clarify something for me. I listened with particular attention when the noble Lord, Lord Prys-Davies, moved Amendment No. 7. In conjunction with what my noble friend Lord Elton suggested in relation to Schedule 6, it seemed to me that paragraphs (c), (d) and (e) of Clause 60(4) cover every eventuality in any particular case.

If your Lordships look at Clause 60(4) (d) you will see that the independent assessor "may require the GOC"—that is fairly strong: to review any particular case". Should there be any failure in that particular respect there is a further fallback provision in paragraph (e) in that the independent assessor: may make to the GOC recommendations concerning any inadequacies in those procedures…in the way in which they operate in relation to any particular complaint". Therefore it seems to me that paragraphs (d) and (e) cover what I see as any eventuality in any problem in relation to the independent assessor and the GOC. I wonder what difference Amendment No. 7 in the name of the noble Lord, Lord Prys-Davies, would make or what cream it would put on the provisions of Clause 60.

Lord Belstead

My Lords, in essence the purpose of the first of this group of amendments, Amendment No. 7, is to give the independent assessor a direct role in the investigation of non-criminal complaints. However, the Government do not support that concept. I sought at Committee stage to explain why, by reference to my noble friend Lord Colville's recommendation. I refer noble Lords to paragraph 5.25 of my noble friend's report. The Government have done exactly what my noble friend recommended there so far as concerns complaints against the Army.

My noble friend Lord Lyell asked your Lordships to look carefully at the functions of the independent assessor, which are set out in paragraphs (c), (d) and (e) of Clause 60(4). While those do not amount to giving the assessor a direct role in the investigation of a complaint, my noble friend is absolutely right in saying that they amount to important review functions, which I believe go a long way to meeting the anxieties expressed by the noble Lord opposite.

Under those subsections the assessor will be able to investigate how the complaints procedures have operated in relation to a particular complaint. That will enable the assessor to examine the effectiveness of the procedures for investigating complaints. Moreover, the assessor may require the General Officer Commanding to review any particular case in which the assessor believes any of the investigation procedures have operated inadequately. The assessor is empowered to make recommendations to the GOC concerning any inadequacies in complaints procedures including—and this is very important—any inadequacies in the way in which the procedures have operated in relation to any particular complaint or group of complaints.

Therefore, it is clear that if the assessor finds the investigation procedures have operated inadequately in relation to a particular case—and I am repeating myself now but I believe that it is important that I do so—he may require the GOC to review that case. The assessor may make recommendations to the GOC concerning any inadequacies in procedures that he has identified.

I hope that the noble Lord may feel that that goes quite a long way to meeting his anxieties in relation to Amendment No. 7. I am grateful to my noble friend Lord Lyell for pointing that out in his remarks.

So far as concerns Amendment No. 8, the Government do not feel that the amendment is necessary. The Bill makes it clear that the independent assessor may make recommendations to the GOC concerning any inadequacies in military complaints procedures. It is inconceivable that the GOC would refuse to consider any recommendations made to him. That would not be in the interests of the armed forces. That is not to say that every recommendation would be acceptable. Some might be misdirected.

That said, as my noble friend Lord Elton, pointed out, there is Schedule 6, which requires the Secretary of State to publish the independent assessor's annual report and to lay copies of it before each House of Parliament, making clear to the public and Members of both Houses what recommendations the assessor has made and the action that the GOC has taken in response. I am most grateful to my noble friend for making that point, which I believe covers this particular point rather better.

Finally, I turn to the final amendment, which the noble Lord, Lord Holme of Cheltenham, also supported, relating to publicity. I do not want to appear pig-headed, but rather than put additional provisions in the Bill perhaps I may make two points. Given the importance of this office it is axiomatic that the Government will wish to publicise the existence and role of the independent assessor. We have gone out of our way to bring the amendment forward and we shall certainly not keep quiet about it. There will be opportunities to review and reissue the existing publicity leaflets and other material dealing with military complaints procedures. No doubt the assessor will have ideas about how the office's existence and role should be publicised. We should like to wait and see what the assessor himself has in mind before finalising the publicity.

However, at the same time there is our old friend Schedule 6, and every year there will be annual reports. The noble Lord, Lord Holme, talked about the dangers of covering up. There will be no such dangers because there will have to be an annual report.

I hope that your Lordships will feel that under those circumstances the amendments are unnecessary. I do not want to refuse amendments for the sake of it, but I feel that these matters are covered.

8.15 p.m.

Lord Prys-Davies

My Lords, I believe that the discussion of the three amendments has been helpful. This is a new office, starting from scratch. I believe that the discussion has helped us to see how the Government perceive the role of the independent assessor. Time will tell whether he should be given additional functions and powers. I shall not press Amendments Nos. 7 or 8 further.

As to Amendment No. 13, there is now a considerable body of research which establishes that publicity is important to the success of any complaints procedure. I understand from the Minister that the Government accept that this office must be given adequate publicity, otherwise it will be reduced in effectiveness, and that this does not call for a provision in the Bill.

I am content to accept what the Minister has said and that the Government agree that the funds should be made available and will be made available but that that is not a matter to be provided for in legislation.

Lord Belstead

My Lords, perhaps I may add one further point, if the House will allow me. In relation to Amendment No. 8 there was also a very compelling technical reason why the amendment is unnecessary. I believe that the amendment of the noble Lord, Lord Prys-Davies, is met squarely. I had not realised that until I came today to look again at the Bill with my advisers. Clause 60(6) requires the GOC to furnish such information as the assessor may require. If the noble Lord would like to look subsequently at Clause 60(6) I believe he will see that the objective of amendment is met completely by the provisions of the Bill. I thought that I should just say that because it is almost tantamount to accepting the noble Lord's amendment.

Lord Prys-Davies

My Lords, I am grateful to the noble Lord, Lord Belstead, for drawing our attention to Clause 60(6) which goes a long way to meeting at least the spirit of Amendment No. 8. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Prys-Davies moved Amendment No. 9:

After Clause 61, insert the following new clause:

("Codes of practice: lethal force

.—(1) The Secretary of State shall make a code of practice in connection with the use of lethal force by police officers and members of Her Majesty's forces in dealing with suspected terrorists.

(2) Subsections (2) to (5) of section 60 above shall apply to a code under this section as they apply to a code under that section.

(3) A failure on the part of a police officer or a member of Her Majesty's forces to comply with any provision of such a code shall constitute an offence punishable on conviction on indictment by imprisonment for a term not exceeding two years or a fine or both, or on summary conviction by imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.").

The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 10 because it is concerned with the same area of policy.

Amendment No. 9 is identical to an amendment which I moved in Committee. It seeks to complement the code of practice in Clauses 61 and 62 with a code of practice on the circumstances in which it is legitimate for the security forces to use lethal force. Given the controversies that have arisen in Northern Ireland during the past few years over the use of lethal force in certain situations by the security forces, that allegations are made from time to time that the use of lethal force in a particular situation was avoidable, and that every human life deserves some respect, we believe that a strong case can be made out for a statutory code of practice with regard to the circumstances in which it is legitimate for the security forces to use lethal force, identifying the precautions that would be taken where practicable before lethal force is used.

I mentioned in Committee that the case for a code of practice is supported by the Standing Advisory Commission on Human Rights in Northern Ireland. The Minister rejected the argument primarily on the grounds that such a code of practice would undermine the position of parity. By that he meant that it would place policemen and soldiers in a different legal position when confronted by a suspected terrorist and an armed robber. Nevertheless, the Minister recognised the strength of feeling on the issue and assured the Committee that the Government would continue to consider the case for the concept of a code of practice to deal with the use of lethal force. This is not an easy matter to discuss, particularly when we are reminded, as we have been this week, of the strength of feeling on the issue, but I trust that the Government will continue to have discussions about the possibility of a code of practice.

I now turn to Amendment No. 10. Given the present definition of the crime of murder, there is often no satisfactory way of dealing with cases in which the current rule about the legitimate use of lethal force as we understand that rule has been broken. The formal legal rule is that, where unreasonable force is deliberately used when some force could be justified, only a charge of murder is permissible. In practice, that makes it difficult for the prosecution to justify making a charge of murder in many cases because there is no realistic prospect of securing a conviction of murder against a soldier or a policeman who has used unreasonable force in self-defence, except in the most flagrant cases. The choice therefore appears to be a charge of murder or no charge at all.

However, it is important in terms of public confidence that members of the security forces should not be seen by members of certain communities to be above the law. They should be seen to be amenable to the law, particularly in a case involving the killing of a person. The noble Lord, Lord Colville, recommended on more than one occasion that the law should be changed to permit a charge of manslaughter to be laid in cases in which some force can be justified in self-defence, but where lethal force has been unreasonably used. The amendment was powerfully supported in Committee by the noble and learned Lord, Lord Ackner, who reminded the Committee that the principle of the amendment had been recommended by the Select Committee on murder and life imprisonment and by the Lord Chief Justice.

Again, in Committee the Minister accepted that there was a case for the amendment but that it was not appropriate to be dealt with in the emergency provisions legislation. In the light of what the Minister said on that occasion, I thought of making the amendment less general by restricting its application to members of the security forces in Northern Ireland, but I decided otherwise as I believe that it would be a mistake to have one rule for the armed forces in Northern Ireland and another for the armed forces elsewhere in the United Kingdom. That would only lead to more difficulties. I have therefore brought back the amendment in the form in which it was presented to the Committee. I beg to move.

Viscount Brookeborough

My Lords, it appears on the face of it that the noble Lord, Lord Prys-Davies, has a nice argument for trying to improve what he perceives to be a problem in Northern Ireland. However, I believe that those who support the amendment do not fully understand what happens in the circumstances that we are discussing.

We are discussing lethal force. It is not a code of practice about the handling of prisoners and how one interrogates and talks to people or how one searches their cars. Lethal force is used only in what appear at the time to be life-threatening situations, and there are clear directions on its use to all members of the security forces. I do not think that by having a code of practice one can improve on what amounts to almost a single sentence of description as to when one should use lethal force. Because we are talking about shooting, we are inevitably talking about something that happens not just in a matter of seconds but about actions to which someone has to react instinctively.

Let us face the fact that the use of lethal force is the ultimate means that a soldier or a policeman may have. It is the most extreme means and it must therefore be clear in a person's mind as to when he may open fire. I believe that it already is that way in Northern Ireland. I do not believe that, as a result of a one-page code of practice, a person who is involved in such an incident will either not open fire or that the life of the man who is fired at will be saved. I therefore cannot accept that one should have a code of practice. It will simply blur what is already absolutely clear; namely, that people open fire only when they think that it is absolutely necessary.

If any of your Lordships are in any doubt about what is at present understood to be the reason for opening fire in Northern Ireland and think that it is in any way inadequate, you may care to consider the situation that occurred on the night of 25th-26th of last month in an area of Belfast called the Crescent. An RUC patrol, including a woman constable, was walking past a chip shop. It must have been some sort of routine, but four people came out, some dressed in dinner jackets, shot the rear policeman, pushed the policewoman to the ground and would clearly have murdered the other two policemen when a military patrol came round the corner and saw that something was happening and that life was clearly being threatened. They appear to have fired to miss. Given where they were, it is inconceivable that they fired at anyone in particular. They did not hit anyone. The only place from which muzzle flashes came was the terrorists who are still at large after having killed Constable Spence. I do not advocate that we should relax what is already there but I totally dispute the fact that the impression may be given that members of the security forces in Northern Ireland travel round opening fire all too easily. I make just one other point. I do not believe that the three terrorists in Coagh were going armed to the teeth to have tea with their grandmothers at 7.30 in the morning. One must look at what is happening. One cannot deny what is going on.

I am very unhappy about Amendment No. 10, primarily because I understand that there is no equal to it in the remainder of the law throughout the United Kingdom. At present some terrorist acts take place in England as well as in Northern Ireland. I am not quite sure why we are hounding the members of the security forces and trying to convict them of some offence if, as we have just discussed, the person has been acquitted of murder, it having been deemed that he had reasonable justification at that time for opening fire. Therefore I do not go along with the notion that, should he be acquitted of murder, having been justified in the first place, we should then try to convict him of manslaughter. That would be not at all useful in its effect upon soldiers and policemen when the occasion arises on which they have to open fire. I cannot support either of these amendments.

8.30 p.m.

Lord Fitt

My Lords, I support Amendment No. 11 in particular. I do so as a result of my wide experience in Belfast. This week I have again been nauseated and sickened by statements coming from the IRA and Sinn Fein, its political spokesmen, in relation to the deaths of three IRA men in Coagh. Some people would call those three men freedom fighters; some people would call them patriotic Irishmen; and some people would call them terrorists. The fact is that they had rifles in their possession and were certainly on an errand of murder.

They were apprehended by the security forces. I read in a newspaper report either yesterday or today a statement by a Sinn Fein councillor, or so I believe, who said that the security forces used an anti-tank gun to stop the car and kill its occupants. Surely, that is a gross exaggeration. But that type of charge is levelled every time some terrorist is killed by the security forces.

It must be said that some innocent people have been killed as well by the security forces, notably in Derry on Bloody Sunday. It is necessary to consider the number of deaths that have been caused by the action of the security forces and set it against the claims of Sinn Fein and the IRA that the security forces are carrying out a shoot to kill policy when it is exactly that policy which the terrorists, both Loyalist and Republican, have been carrying out for the past 20 years. Theirs has been a shoot to kill policy and a bomb to kill policy. What sickening hypocrisy we hear from their spokesmen when their own terrorists have been killed by the security forces! I can understand it from people of that level of intelligence. What I find harder to accept is the attitude of the elected representatives of either the Republican community or the Loyalist community when someone from within their communities has been killed by the security forces. A terrorist has been killed. The elected representative feels compelled to go on television and say, "I hope that minimum force was used. I hope that every effort was made to apprehend the terrorists before they were killed". That sounds very reasonable. In fact, it is a coded message to the community whom that elected representative represents. In other words, by voicing such sentiments he is objecting to the security forces killing terrorists.

We have seen that happen in the past week. Indeed, it happens every time a terrorist from one or other of the communities is killed in Northern Ireland. We have seen it so many times. If a code of practice were to be introduced into this legislation, it would mean a better clarification of the circumstances in which lethal force could be used. I am not sure that there are many individuals in Northern Ireland who know exactly what is stated on the yellow card or know exactly what they should or should not be doing if they are not to render themselves a victim of the security forces. The yellow card has not been given the publicity that should be available to the public in general in Northern Ireland so that they may be made aware of the dangerous circumstances in which they may be killed.

If a code of practice was made available to the public in Northern Ireland and in particular to their elected representatives, there might not be such nauseating expressions of part sympathy, part condemnation and part anticipation of the next election such as we have seen this week and all too repeatedly from elected representatives over the past few years. That is why we need a code of practice. We need clear guidelines so that the public will be aware of the circumstances in which it is necessary for the security forces to use lethal force.

The amendment moved by my noble friend Lord Prys-Davies seeks just that. It does not want restrictions unduly to be placed on the security forces who help to deal with some terrible situations in Northern Ireland, one of which was illustrated by the noble Viscount, Lord Brookeborough. I quite understand. I heard and read of the circumstances of that incident. The IRA men or Loyalists—terrorists, whoever they may be—were not apprehended. But they killed a policeman and, surely, they must be taken as being in the Republican camp. They were certainly carrying out a shoot to kill policy that night. There is no doubt about what they were trying to do. We hear a statement issued by the RUC yesterday that the two rifles found in the car had been used to murder four innocent Protestants in Northern Ireland. So how many of all the spurious objections made by those who apologise for the actions of terrorists are we supposed to accept?

I believe that this code of practice should be used. It would make clear to every individual in Northern Ireland the circumstances in which lethal force is permitted. That would be in the interest of the soldiers concerned, those who are behind the trigger in Northern Ireland, and those people who possibly could become victims in certain circumstances.

Lord Elton

My Lords, one instinctively has sympathy for the sentiments expressed by the noble Lord, Lord Fitt. It is difficult to disagree with his conclusions. However, I have two reasons to doubt whether it would be wise for noble Lords to carry Amendment No. 9 into the Bill.

The first reason is that I do not believe that the publication of a code of practice would have the effect that the noble Lord hopes for. It would merely produce a mesh of circumstances which the terrorist would seek to circumvent. And to the extent that it made plain to them the constraints on the security forces, it would make the task of those forces more difficult.

However, a greater difficulty for the House of Lords is presented by subsection (2) of the proposed new Clause 9. The noble Lord apparently proposes —I did not hear him disclaim the intention—to import the provisions of the clause dealing with independent assessors to bear upon the clause that he inserts in the Bill dealing with codes of practice. I would expect his intention to be to attract the effects of Clause 61(2) to (5) of the Bill rather than Clause 60. However, the moment has passed at which it is possible to rectify that error—if error it were. I should have thought that the amendment was fatally flawed since as drafted it makes no sense.

Regarding Amendment No. 10, I am not a lawyer. I take note of the fact that the noble and learned Lord, Lord Ackner, is reported to have been warmly in sympathy with a provision resembling the measure on the Marshalled List when it came before your Lordships in Committee. As a layman who has spent a good deal of time dealing with the law being framed in your Lordships' House, I find it extraordinary that a Bill which relates to Northern Ireland should be used to reinterpret a defence against murder and its treatment in the courts throughout the United Kingdom since the Bill deals with only a part of the United Kingdom.

I find the intention equally disturbing—as I believe the effect would be—to change both the defence and the consequences to make them different in one part of the United Kingdom from another. I should have thought that the law on murder must be uniform throughout the United Kingdom. I believe that noble Lords would be ill-advised to accept either amendment.

Lord Belstead

My Lords, when we discussed the matter previously, I expressed anxiety about the proposition that the breach of any provision of a code —that is the subject of Amendment No. 9—should constitute a criminal offence punishable by a maximum of two years' imprisonment. I agree with my noble friend Lord Elton that while enormously appreciating what the noble Lord, Lord Fitt, said—his words will be warmly appreciated also by members of the security forces—almost on that ground alone I am very wary of the amendment. To create a code and make it subject to criminal sanctions is a major step indeed.

I endeavoured previously also to say that the Government believe that it is a matter which has implications for the criminal law as a whole and should not therefore be considered simply in the context of emergency legislation. However, I also assured the Committee that we would continue to consider the concept of a code of practice alongside the other propositions that have been made relating to the general use of force including the possibility of a new defence of manslaughter. In discussions with my officials, the Standing Advisory Commission on Human Rights in Northern Ireland have I believe accepted that the issue is best considered in the round and in relation to the whole question of the investigation and adjudication of incidents in which the security forces open fire, in particular where death results.

My noble friend Lord Renton (who was present earlier) intervened in Committee to say that we ought not to use codes of practice as a way of making subordinate legislation. That is a quite powerful technical reason against the amendment. The effect of the code of practice proposed would be to create a series of new criminal offences which would apply uniquely to soldiers and policemen. To create such specific offences would be a major decision in itself; but one would strongly question whether we should be attempting to criminalise members of the security forces in Northern Ireland who already run such terrible risks in carrying out their duties.

On Amendment No. 10, there are a number of practical issues which would need to be considered were we to introduce such a provision. I know that I repeat myself. However, it would be invidious if we appeared to single out for special legislative treatment soldiers and RUC officers in their anti-terrorist roles. If we were to change the law in that way it should be a change to the general criminal law as a whole.

On those grounds, on a matter which is very much ongoing, on which we are having discussions with the Standing Advisory Commission on Human Rights, and on which we understand the worries of the noble Lord, I nonetheless resist the amendment.

Lord Prys-Davies

My Lords, I am particularly grateful to my noble friend Lord Fitt for his contribution to the debate.

According to my understanding of the law, there is a precedent in the law of Scotland for Amendment No. 10. It would not be unique to Northern Ireland. I was also anxious not to confine Amendment No. 10 to members of the armed forces. I thought that I had made it clear that I resisted that approach.

I accept that there is a typing error—it might have been my error—in Amendment No. 9. The reference should be to Section 61. I should be satisfied at this stage for the Government to continue to have discussions on the issue with the Standing Advisory Commission on Human Rights in Northern Ireland. The view which is held in some communities that the armed forces in Northern Ireland may be above the law substantially detracts from the policy of conciliation and reconciliation which the Government are actively seeking to promote.

There are strong political reasons why the Government should be giving very active consideration to the principles involved in these two amendments in order to bring the law on the use of lethal force and the possible charges for the breach of that law into a proper shape and state.

Having said that, I am content to withdraw the amendment. I beg leave to do so.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

8.45 p.m.

Lord Prys-Davies moved Amendment No. 11:

After Clause 62, insert the following new clause:

("Codes of Practice: Miscellaneous

. The Secretary of State may issue codes of practice in connection with the exercise of powers by any person engaged in the implementation of the powers conferred by this Act or by the Prevention of Terrorism (Temporary Provisions) Act 1989.").

The noble Lord said: My Lords, when we discussed an amendment in Committee which required the Secretary of State to make a code of practice to provide for the video recording of interviews of terrorist suspects, the Minister indicated that the Government were considering the possibility of appointing a commission to monitor the procedures at the holding stations. We fully support that suggestion. The appointment of a commissioner would be a great advance.

If such an office were to be established, is there a case for authorising the Secretary of State to make a statutory code of practice to give guidance about his role? The general arguments and the benefits (as I see them) for a code of practice have already been referred to earlier today. I shall not repeat them. I emphasise that I do not argue that there should be a code of practice for the proposed office of a commissioner. There may be valid arguments for and against a code of practice. However, prompted by what the Minister told the Committee—that the Government were considering whether to appoint a commissioner—I shall urge the Government to accept the principle that there should be a provision in the Bill to enable the Secretary of State to make a code of practice if that were seen to be appropriate.

The Bill will be in place for four or five years. During that time it may be desirable or necessary to introduce another office, which is not referred to in the Bill, to perform duties in connection with the implementation of the powers contained in it. It may be desirable for those powers to be supported by a code of practice. If the Minister tells me that the power is already available in the Bill, or elsewhere, that is an end of the matter. However, if the power is not available the amendment will fill a gap in the legislation. I beg to move.

Lord Holme of Cheltenham

My Lords, at times during the debate I have thought that we are in danger of producing an Act that has more codes of practice than clauses. I wish to exploit the amendment by asking the Minister a question and I make no apologies for reverting to the issue of video taping. It is pleasing to see that in Clause 61 the Secretary of State shall make codes of practice in connection with detention, treatment and questioning. That issue figured in the Minister's speech in Committee. Therefore, provision exists for a code of practice on the questioning of suspects. It is also pleasing to see that the draft code of practice will be laid before both Houses of Parliament.

Can we take it that in the preparation of the code of practice relating to questioning the Minister is not excluding the possibility of video taping interviews with suspects? That provision is recommended not only by the noble Viscount, Lord Colville of Culross, but by the Standing Advisory Commission on Human Rights and the Committee for the Administration of Justice. It is also supported by the Labour Party and Members on these Benches. It would be reassuring if the Minister, without committing himself, could say that in the preparation of codes of practice the Secretary of State would have the option of looking at the issue again. That would be a matter of great satisfaction in many quarters in Northern Ireland and in both Houses of Parliament.

Lord Belstead

My Lords, in answer to the noble Lords, Lord Prys-Davies and Lord Holme, I must point out that there will be a code of practice under Clause 61 covering the detention, treatment, and so forth, of terrorist suspects in police custody. Under those circumstances the role of the commissioner or assessor, to which I referred in detail at a previous stage of the Bill, could be spelt out. The noble Lord, Lord Holme, referred to detention which could also be covered by a code of practice.

I am sorry to cross swords with the noble Lord but I wish to make clear beyond peradventure that the Government are certainly not considering the question of video recording. I sought to make that clear at a previous stage of the Bill.

Lord Prys-Davies

My Lords, can the Minister answer more specifically a question that I have sought to ask the Government? Let us assume that during the course of the next five years the Secretary of State decides to establish a new office in order further to implement the Bill. If he took the view that it would be desirable for the office to be governed by a code of practice would he have the power to produce a code of practice in those circumstances?

Lord Belstead

My Lords, Clauses 61 and 62 allow the Secretary of State to make codes of practice in relation to all the main powers of the police and army under the Bill in addition to all the police powers conferred by the Prevention of Terrorism (Temporary Provisions) Act 1989. It is therefore the case that all the significant powers in this Bill and in that Act for which a code of practice would normally be appropriate are included in the existing enabling clauses. It was the Government's intention that those clauses should be reasonably comprehensive in the scope of the powers that were covered.

The only other powers that the Bill confers are those of the Secretary of State to authorise the closure of roads, to set time limits on preliminary proceedings, to make regulations, and so forth. In addition there are powers for the High Court to grant bail and legal aid in scheduled cases, the powers of explosives inspectors under Clause 20, and those of the Independent Assessor of Military Complaints Procedures. I do not believe that a code of practice would be appropriate in relation to any of those powers; their scope is fully spelt out on the face of the Bill.

That exhausts the opportunities for making codes of practice which are extensive, as the noble Lord, Lord Holme, said. I hope that answers the point raised by the noble Lord, Lord Prys-Davies.

Lord Prys-Davies

My Lords, it appears that the Government are satisfied that there are no gaps to be filled in the legislation. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [The Scheduled Offences]:

Lord Belstead moved Amendment No. 12:

Page 53, line 44, at end insert:

(" Aviation and Maritime Security Act 1990

20A. Offences under the following provisions of the Aviation and Maritime Security Act 1990—

  1. (a) section 1 (endangering safety at aerodromes);
  2. (b) section 9 (hijacking of ships);
  3. (c) section 10 (seizing or exercising control of fixed Platforms).").

The noble Lord said: My Lords, this is a technical amendment. I beg to move.

On Question, amendment agreed to.

Schedule 6 [Independent Assessor of Military Complaints Procedures in Northern Ireland]:

[Amendment No. 13 not moved.]

Schedule 8 [Repeals and Revocations]:

Lord Belstead moved Amendment No. 14:

Page 82, line .34, at end insert:

("1990 c. 31 The Aviation and. Maritime Security Act 1990. In Schedule 3, paragraph 5.")

The noble Lord said: My Lords, the amendment is consequential on Amendment No. 12. I beg to move.

On Question, amendment agreed to.