Northern Ireland (Emergency Provisions) Bill

HL Deb 13 May 1991 vol 528 cc1418-52

House again in Committee.

Schedule 3 agreed to.

Clauses 35 to 44 agreed to.

Lord Holme of Cheltenham moved Amendment No. 25: After Clause 44, insert the following new clause:

("Code of practice: video recording

—(1) The Secretary of State shall make a code of practice to provide for video recording of interviews of persons detained under this Act or under the Prevention of Terrorism (Temporary Provisions) Act 1989.

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

The noble Lord said: Amendment No. 25 proposes the addition to the Bill after Clause 44 of an entirely new clause. It proposes that the Secretary of State shall make a code of practice to provide for video recording of interviews of persons detained under this Bill or under the Prevention of Terrorism (Temporary Provisions) Act.

In the course of debates in Committee today, we have discussed many important matters of principle. However, I venture to suggest that the issue of video taping suspects is particularly important. In a sense I believe that it is a test case of how sensitive the Government are not only to the rights of the accused but also to the protection of the criminal justice system—which is under close scrutiny after some of the recent deplorable miscarriages of justice of which we are all too well aware—and to the maintenance of faith in the police force.

Of the 319 complaints that were made in 1989 to the independent commissioner for police complaints in Northern Ireland most concerned interviews by the police. No less than 191 were complaints of assault; and 28 were complaints that the interviewee had been forced either to sit down or to stand up against his will. A video tape would have revealed the truth in each instance. Either way, I believe that the police and the justice system would have won. Either the complaints were baseless propaganda, in which case their emptiness would have been exposed; or they were genuine, in which case police bullying would have been exposed, bad apples weeded out, and confidence in the police restored.

As the Government well know, the judgment in Re Gillen in 1988, and the subsequent recommendation of the noble Viscount, Lord Colville of Culross, both lead in the same direction. Perhaps I may quote the words of the noble Viscount, Lord Colville. He stated: It is hard to see how it is possible any longer to resist a system of recording the closed circuit TV signal".

As the Standing Advisory Commission on Human Rights, which also supports video recording, indicated, methods are available which, first, would result in a full visual record of what happened and, secondly, would protect detainees from identification and from lip-reading.

It has been said, and understandably, that the introduction of video recording would place an extra workload on the police. No doubt the Minister will comment on that. I can see that there might be practical and financial difficulties. However, I agree with the Standing Advisory Commission on Human Rights that the need for adequate protection for suspects is a more important consideration. Given the number of complaints about which I have reminded the Committee, is it not possible that the net financial effect might be the same? Fewer complaints would be brought, both genuine and trivial, and therefore less work would be involved in following them through.

A further anxiety is that suspects who incriminate others might be endangering themselves if tape recordings are played in open court. A possible solution would be to hold the relevant part of the proceedings in camera. No doubt the Minister will comment on that too. The conclusion of the standing advisory commission was that the video recording of the police interrogation of terrorist suspects should be put into operation without delay. The commission and the noble Viscount, Lord Colville, have put forward two weighty recommendations. It is the commission's role not to be an irritant to the Government but to deal with such issues in Northern Ireland.

On Second Reading the noble Lord, Lord Belstead, said about video recording: I should not want noble Lords to think that I am simply putting that aside and saying that that has gone. It is a matter which I know noble Lords take seriously. I have listened carefully to what has been said and I should like to give further thought before we come to the next stage of the Bill".—[Official Report, 19/4/91; col. 1696.] The Committee will be interested to hear the Minister's conclusions. It appears that there are clear recommendations and that the balance of advantage is clearly in favour of video recording. It is an idea whose time has come, and in that spirit I beg to move.

Lord Prys-Davies

For the reasons given by the noble Lord, Lord Holme, which I shall not repeat, I support the amendment. Confidence in the conduct of the police towards detainees in police stations would be enhanced immeasurably if the amendment were accepted.

I too wish to refer to paragraph 4.7.2 of the report of the noble Viscount, Lord Colville. A significant element in the paragraph is that in 1989, 238 complaints were classified as "incapable of being completed". The worry is that during the course of a year there should be 238 complaints incapable of being completed. There is considerable public anxiety about a system which yields so many unresolved complaints. That is an issue which must be tackled and we believe that the way indicated in the amendment is the best way to do so.

That point was made during the course of a hearing in Belfast Crown Court on 24th October 1990. The judge made clear the fact that video recordings of interrogations would resolve disputes which came before him. The Minister and the Government must tackle the issue of unresolved complaints. In video recording they have at hand the answer to what happens in the interview room.

I have heard it said that one cannot record what happens as a suspect walks along the corridor. That may be so, but it is no argument for saying that interrogation in the interview room should not be recorded. The important place is the interview room. There is no problem with resources; the noble Viscount, Lord Colville, was satisfied that the amendment could be implemented without great additional expense and without exposing the parties to unnecessary risk. I urge the Minister, whatever his brief, carefully to consider the amendment.

8.15 p.m.

Viscount Brookeborough

I am not happy with the amendment. Members of the Royal Ulster Constabulary who are involved in such matters have expressed good reasons for not wishing the amendment to be agreed to. They are not worried about the number of complaints or the complaints which they would like to clear up and which could be cleared up as a result of videoing proceedings in the interrogation cell. The types of complaint that are made would continue to be made at all stages after arrest. The terrorists and the groups that back them are happy to take up extra time in putting forward complaints to undermine the RUC in its endeavours.

There are two reasons why it is not a good proposal. First, events outside the interrogation room would become a matter for complaint. That has always been the case with terrorists. As soon as one complaint was solved by such a measure there would be another about what happened on the route to the interrogation cell. Complaint would then be made about events in the cell in which the suspect was held initially, and then in the vehicle that brought him there.

The most important reason for not supporting the amendment is that a special relationship is built up between the suspect and the interrogator. In a significant number of cases suspects have given their interrogators a great deal of information. They may have completely turned away from terrorism. However, there would be a problem if the interrogation were videoed. No matter what the suspect might be told about the security of the video, it would exist and be available to the right person who could manage to obtain it. Under those circumstances it is seriously thought that some suspects would not give the information that they might previously have given.

There is no way of proving that belief. However, one must accept that some of the successful security operations in Northern Ireland have not been as a result of luck or arisen out of the blue. They have occurred because people in the terrorist organisations are prepared to supply information under certain circumstances. Statistics relating to successful operations carried out by the security forces in Northern Ireland show that those which were the result of pure chance were very few as compared with those which were the result of sound information. By putting video recorders in interrogation cells we should place in jeopardy a major source of information.

There was such an incident a month ago in Downpatrick and another before Christmas. I do not suggest that they were as a result of information given in an interrogation cell. Nor do I make that suggestion about the incident at Loughgall in which 10 or a dozen policemen were killed. As it happened, in that incident the terrorists were killed, as was one innocent victim. If we agree to video recordings, we shall be denying security forces the possibility of changing the effect of their actions. I cannot support the amendment.

Lord Hylton

This is an important amendment and I regret that we are taking it relatively late in the evening when very few Members of the Committee are present.

Perhaps I may refer to what the noble Viscount, Lord 13rookeborough, said. Is he aware that interrogations regarding scheduled offences now take place i n only two locations, one of which is Castlereagh? I believe that is the principal location now used. I wonder whether he is also aware that all interviews taking place in those two centres are supposed to be monitored on closed-circuit television. Therefore, I cannot believe that the special relationship to which he referred, which may be important, will be hampered by making a permanent recording if it is not at present hampered by a recording which is visible outside the interview room.

Perhaps I may go back in time. There has been serious anxiety about the abuse of questioning, interviewing and the general extraction of information from suspects. That goes back at least as far as internment, which we debated earlier this evening. I believe that that formed some of the background of the report by Lord Gardiner. It was certainly one of the major problems examined by Judge Bennett who reported in 1977 or 1978. Following the acceptance of the Bennett Report by the government of the day, we all hoped that excess use of force, violence and questionable techniques had been stamped out. However, it appears that those practices have not entirely ceased.

The complaints now are that people under interrogation are made to stand for long periods; they are shouted at, often at extremely close quarters; and psychological persuasion is used—for example, threats to a suspect's relatives—accompanied by blows, sometimes to the head, the neck and the ears, all of which can be inflicted without causing permanent injury or injury which will show up on later examination. In my view proper exception is being taken to such actions.

Such practices could be brought under control if every major interview of terrorist suspects was permanently recorded on video. I have contacted at least one defence solicitor and one academic who between them have knowledge of a number of cases. The result of the kind of interviews which we are discussing is that confession evidence often has to be tested again in court in advance of the main hearing—a procedure which I understand is known as voire dire. On some occasions medical evidence will be adduced during that procedure. I believe that a great deal of that could be eliminated, as could the physical violence, by proper video recording of interviews.

Because I was anxious about those matters, in the spring of this year I wrote to a number of noble Lords in Northern Ireland and a number of Members of the other place who live in Northern Ireland asking them whether they would be good enough to visit the Castlereagh interrogation centre. In the event it was possible for only one Member of the House of Commons to ask to visit; namely, Mr. Cecil Walker, the honourable Member for Belfast, North. Perhaps I may observe that he has been a magistrate in Northern Ireland and I do not believe that anyone would describe him as being in any way an extremist.

He wrote to police headquarters asking to be allowed to visit Castlereagh. On behalf of the Chief Constable, a chief superintendent wrote him a letter which stated: It is not force policy to approve general visits to police offices (holding centres) as to do otherwise would most certainly generate further demand and ultimately interfere with their running". I question whether that is the right way in which an elected Member of another place should be treated. It seems to me to indicate an undesirable degree of police reticence. I hope that Members of this Chamber will not be refused visits in a similar manner.

I strongly support the amendment and I hope that the Government will accept it.

Lord Fitt

While giving this amendment my full and unqualified support, I believe it right to state that the presence of the noble Viscount, Lord Brookeborough, has afforded a great deal of knowledge about the affairs of Northern Ireland. It is rare in debates on Northern Ireland to have such a knowledgeable response from the Benches opposite.

The noble Viscount lives in Fermanagh and is in the heat of the situation. He obviously knows policemen. Unfortunately he has known many members of the RUC under the UDR who have been killed. I believe that he brings to this Chamber personal response and knowledge from his community. But the qualifying words are "from his community", although it is right that this Chamber should be aware of what his community thinks about the issues in the Bill.

The noble Viscount said that he knows RUC men and that they oppose the amendment. I know RUC men who would be absolutely in favour of it. The RUC is not a monolithic body. There are over 1,000 Catholics in the RUC. As I said recently, there are more Catholics in the RUC than there are active members of the IRA. I have spoken to those men.

I remember vividly that in 1979 in another place we debated the Bennett Report. At that time we had a Labour Secretary of State for Northern Ireland. The debate took place in either January or February. I wish that I had the Bennett Report to hand so that I could quote from it. Although it said that there should be no condemnation of or reflection on the RUC, it went on to list, I believe, six recommendations. It recommended that suspects should not be beaten up and treated cruelly. That meant it was suspected that that had taken place. Without taking the matter further, it may be the Bennett Report in February 1979 and the atmosphere which then prevailed, which led—I put it no higher—to the defeat of the Labour Government in the following month.

It is a situation about which one is terribly perturbed. I would be the last to deny what the noble Viscount, Lord Brookeborough, said in the Committee tonight. He said that if video cameras were installed it might be impossible to "turn" a terrorist—I believe that is the term used in Northern Ireland. Terrorists have been turned, as we saw in the recent conviction of Danny Morrison only last week, in which an alleged terrorist called Sandy Lynch was turned by the RUC and began to act as a double agent.

We must ask, though we shall never be told, where the turning took place. Did it take place in the interrogation centre of Castlereagh? Did it take place in a car or in a house? All we know—and I accept the evidence of the RUC—is that the turning of Sandy Lynch and the evidence given in court last week led to the saving of a number of lives in Northern Ireland. However, I do not think we can say that that justifies the practices that have taken place over a number of years in Castlereagh. The turning of that terrorist could have taken place anywhere, not necessarily in Castlereagh.

The acceptance of the amendment would be another weapon in the armoury of the Government against terrorism. I remember as a Member of Parliament the number of people who came to my home—particularly parents, because fathers and mothers see no wrong in what their sons have been doing. They would tell me time after time how their sons had been beaten up in Castlereagh RUC Station. I thought in some cases that it might be true but in the majority of cases I had serious doubts. If a video camera were to be installed and the activities of the police in the interrogation centres were videod, that would lead to the terrorists losing the support within the Catholic community which they now have.

As was said by the noble Viscount, Lord Brookeborough, I am prepared to accept that there may be occasions when a terrorist has turned away from terrorism in the holding centre of Castlereagh, but that does not necessarily have to have taken place in the interviewing room where the noble Lord, Lord Holme of Cheltenham, suggests the camera should be placed. The wording and the placing of the amendment is designed to stop giving propaganda victories to the terrorists. I ask the Government to think seriously before rejecting it.

8.30 p.m.

Viscount Brookeborough

Perhaps I may respond for a moment as my name was mentioned by two noble Lords. First, in case the noble Lord, Lord Fitt, gave the impression that I live in a totally Protestant, totally Loyalist area, perhaps close to a police station, and that I speak only to those people, I should say that I live in a mixed area with a population of slightly over 50 per cent. Roman Catholics and mixed throughout.

Secondly, I feel that the argument of the noble Lord, Lord Hylton, is based on statistics, as invariably it must be. If there was nothing to worry about we should not be debating the subject. However, one accepts that there were 319 complaints and that some of them were unable to be followed up to the ultimate discovery of what had happened. Even accepting that some of them could be followed up, the number in which there was any complaint that was in any way justified was minuscule. I believe I am right in saying that one might have been made by somebody who managed to show a doctor that he had had his hair pulled. With all due respect, he might have pulled it himself or some other person might have done it. It could be something else, I am not too sure. To bring video closed-circuit recording in for those kind of statistics is not justified and I should not like to see it happen.

Lord Belstead

The purpose of the new clause is to require my right honourable friend the Secretary of State to make a code of practice requiring the video recording of interviews with terrorist suspects. The noble Lord, Lord Holme intends that the video record should not be silent—as my noble friend, Lord Colville proposed—but that it should also include sound.

I gave the House an undertaking at Second Reading to give further thought to whether anything more could be done to enhance confidence in police procedures and to protect the rights of suspects in police custody. I shall say something a little later on that I hope will convince noble Lords that the Government take the issue seriously, and are determined that everything possible should be done to enhance confidence in police procedures.

Turning to the purpose of this amendment, which is to require the Secretary of State to introduce video recording, let me start by reiterating that the Government recognise the need for proper and effective safeguards in relation to the police interview process. But we are equally concerned that nothing should be done to jeopardise the effectiveness of the interview process, which remains vital to the police in their efforts to defeat terrorism.

I have to tell the Committee that it is the considered view of senior officers in the Royal Ulster Constabulary with extensive experience in these matters, that knowledge that a permanent record—both visual and sound—was being made of his interview would in itself be sufficient to inhibit the responses of a member of a terrorist organisation. The police fear that the introduction of a visual recording alone would have that effect.

Lord Hylton

Perhaps the noble Lord will give way. Would he confirm that the present standing instruction is that all interviews in the interrogation and holding centres shall be observed by a superior officer on closed circuit television? Is that correct?

Lord Belstead

The noble Lord, Lord Hylton, is absolutely right. However, there is a world of difference between it being known, as it is known, that that situation exists—in other words that there is a monitor being watched by a senior uniformed officer—and knowing that a record is being taken, both visual and in sound, of the interrogation which is taking place inside the room. In a moment I shall add to that.

The police fear that the introduction of video recordings would jeopardise the interview procedure. The fear is not new but was expressed in the findings of the Bennett Committee, to which the noble Lord, Lord Hylton, referred, which came down against the introduction of video recordings. It is worth repeating the words of the Bennett Report: The argument that recording increases the inhibitions of the suspect is perhaps less forceful in relation to video recording than in relation to tape recording, but it does not disappear entirely…The evidence of our police witnesses, and our own impression, is that some suspects need to be allowed certain room for manoeuvre in what story they tell afterwards if they are to be frank with the police at the time when they are interviewed". Noble Lords will know that the terrorist organisations have their own version of summary justice with which to deal afterwards with those whom they suspect of helping the police.

That is the nub of the problem. The Committee should be extremely wary of supporting any measure whose effect seems likely to be to increase the unwillingness of terrorist suspects to co-operate with their police interrogators. Whatever arrangements were to be introduced to facilitate the video recording of interviews, for the reason which I gave just now to the noble Lord, Lord Hylton, the Government believe that its introduction could seriously jeopardise the usefulness of the interview process. It would be known that a recording was being made, and anybody knowing that could well fear the day if the recording were to become known to people in their own organisation.

Following Second Reading and in preparation for this debate, I paid a visit to Castlereagh in Belfast to look at the procedures which currently apply to the detention and treatment of terrorist suspects. I was very impressed by what I saw. In the context of the list of complaints which the noble Lord, Lord Hylton, read out, there is quite a formidable range of safeguards already in place. Those safeguards include the completion of a detailed custody record which must be opened as soon as practicable for each person who is brought to the holding centre. On arrival at the holding centre, arrangements are made for the suspect to be seen by a doctor. The arrangements include detailed provisions relating to interviews, and an accurate record must be kept of each interview. Written interview records must be timed and signed by the maker. In any period of 24 hours, a detained person must be allowed a continuous period of at least eight hours rest free from questioning, travel or any interruption.

In addition, a person's detention must be reviewed periodically by a review officer. I now refer to the point made by the noble Lord, Lord Hylton. All interviews with terrorist suspects are monitored by uniformed officers through closed circuit television. That is the most fundamental safeguard against any physical abuse of the suspect during interview. If a complaint is made by or on behalf of a detained person about his treatment since arrest or if it comes to the notice of any officer that he may have been treated improperly, a report must be made as soon as practicable to an officer of the rank of inspector or above who is not connected with the investigation. If the matter concerns a possible assault or the possibility of the unnecessary or unreasonable use of force, then the medical officer must be called as soon as practicable.

Those are detailed and important safeguards which already exist. Nonetheless, at Second Reading I gave an undertaking to give further thought to whether anything more could be done to enhance confidence in police procedures. I have tabled Amendment No. 41 which we shall shortly come to. It requires the Secretary of State to make a statutory code of practice under the powers in Clause 60 of the Bill, dealing with the detention, treatment, questioning and identification of terrorist suspects. I have already listed a number of the matters that would be contained in such a code. I hope that the Committee will feel that the Government have thought seriously about the issues. We want to see in place effective safeguards for terrorist suspects.

We believe that existing safeguards are extensive, valuable and capable of being made even more effective by being set out on the face of the Bill in what will be, if Amendment No. 41 is agreed to, a statutory code. Our commitment to make such a code is testimony to the seriousness with which we consider the issues. It is a matter which I have thought about and on which I have consulted. I have brought it forward this evening as Amendment No. 41.

However, there is one further matter I wish to allude to. We are talking about something very serious which worries people throughout the United Kingdom. There is one further development which the Government are considering. It relates to the possibility of the appointment of someone to monitor procedures at the holding centres. I stress that this is an idea at a very formative stage. It is possible to envisage a scheme which might have, let us say, a commissioner appointed with a remit to visit the holding centres with access to them at any time of his or her choosing. The primary task of the commissioner would be to ensure that the proper procedures relating to the treatment of terrorist suspects was being followed. Therefore, he would be concerned with such matters as the provisions of the code of practice which the Government are putting forward this evening. For example, there would be continuous supervision of the closed circuit television monitors and to generally ensure that the arrangements for the detention of suspects are satisfactory.

I emphasise that this is a scheme which we are contemplating. The reason we are doing so is because we take the point that there is considerable anxiety throughout the United Kingdom about these matters. Quite frankly, it is conceivable that thoughts along these lines might not only be of value in meeting the worries that have been expressed this evening, but they might be of value to the Royal Ulster Constabulary. So not only is justice done—as I am certain it is being done—but it is also seen to be done. As regards the Government, we need further time to decide whether a practical and workable scheme along these lines is possible. We have to have discussions, and we would wish to have them, with a number of organisations, including the police authority for Northern Ireland, as we seek to develop the idea.

I lay this matter before the Committee this evening as a possibility which I hope it will consider could be of value both in meeting concerns and for the Royal Ulster Constabulary. I have explained at great length the reasons why the Government are opposed to the introduction of video-recorded interviews of terrorist suspects. I hope the Committee will feel that the alternative way forward that I have mapped out may be another way.

8.45 p.m.

Lord Holme of Cheltenham

I am sure that the Committee will be most grateful to the Minister for the extremely positive way in which he has responded to the anxieties expressed at Second Reading and this evening. I hope that I heard him correctly; namely, that the contemplated code of practice that he is bringing forward as Amendment No. 41 will, without prior commitment, deal with all matters that might tend to create better practice in terms of the treatment and interviewing of suspects. The Minister was right to refer to monitoring. If a suspect is monitored and there is a written record of his interview, a great deal of the apprehensions expressed by the noble Viscount, Lord Brookeborough, and by the Minister, might be misplaced. I put it no higher than that.

If there is already a written interview and monitoring, as we know there is, then it is already not a hole-in-the-corner, one-to-one, secret dialogue in which secrets can be exchanged in a particularly confidential way. The procedure is already part of a formal process, as the treatment of suspects should be. We are simply trying to set the best rules that the procedures be carried out in a way which is defensible to the general public and fair to the suspect as well as allowing the police to do their job. If that is done, then I believe that we are getting somewhere. In that spirit, and in looking forward to what the Minister will say in addition when speaking to Amendment No. 41, I withdraw the amendment for the time being but without losing sight of it. I shall watch closely how the Government flesh out the proposal in Amendment No. 41 in future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 45 to 48 agreed to.

Clause 49 [Relevant offences]:

Lord Belstead moved Amendments Nos. 26 and 27: Page 34, line 17, leave out ("and"). Page 34, line 20, at end insert ("and (c) an offence falling within Part IV of that Schedule.").

The noble Lord said: These amendments are consequential upon Amendment No. 1. I beg to move.

On Question, amendments agreed to.

Clause 49, as amended, agreed to.

Clauses 50 to 55 agreed to.

Schedule 4 [Confiscation Orders: Supplementary Provisions]:

Lord Belstead moved Amendment No. 28: Page 60, line 12, leave out from beginning to ("and") in line 14.

The noble Lord said: In moving this amendment I should like to speak also to Amendments Nos. 29 to 35 inclusive.

Amendments Nos. 29 and 35 make a small but important change to the provisions on restraint and charging orders found in Schedule 4. Their effect is to provide that applications for such orders made before a person has been convicted are to be made by an officer of the Royal Ulster Constabulary of at least the rank of superintendent. Applications made after a person has been convicted are to be made by the prosecutor.

Restraint and charging orders are designed to ensure that assets may be frozen so that they are available to meet any confiscation order that may be made. To be effective they will normally have to be made at a very early stage—often before a person is charged by the police. In these circumstances, and having regard to the special circumstances which exist in Northern Ireland, we consider that it would be seen by some: as inappropriate to involve the Director of Public Prosecutions (Northern Ireland) in applications made before a person has been convicted. Involvement at that stage might be used by some to question his independence—none of us would want that result. Amendments Nos. 28 and 30 to 34 are consequential to that decision not to involve the DPP in pre-conviction applications.

It is important to note that these amendments in no way alter the vigorous standards which must be met before any such order is granted by the High Court or, exceptionally, by the Secretary of State. All they do is change the identity of the person applying for the orders, and that only where the application is made before conviction. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 29: Page 60, line 37, leave out ("only on an application by") and insert ("—

1. (i) where it is applied for before the defendant is convicted of the offence, only on the application of an officer of the Royal Ulster Constabulary not below the rank of superintendent; and
2. (ii) otherwise, only on the application of").

Lord Prys-Davies

We support this series of amendments. However, I wonder whether there might be a problem with Amendment No. 29. As I understand it, only the police can apply for a restraint order before conviction. But what is the earliest time when the police can apply for such an order? Further, can they apply for a restraint order before a charge has been preferred? Moreover, what evidence will the police have to give to the court that a charge is to be preferred?

I presume from what the Minister said that there will be no discussions between the police and the DPP. But, as I understand it, there could be a problem. It will be the DPP who decides whether a charge is to be preferred. However, what is the position where the police have asked for a restraint order but a charge is not preferred?

Lord Belstead

As I said when moving Amendment No. 28, in order to be effective the restraint and charging orders (which are designed to ensure that assets may be frozen so that they are available to meet any confiscation order that may be made) must be applied for—and, it is to be hoped, granted—at a very early stage. The noble Lord asked whether the application could be made before a person is charged. The answer is yes. Indeed, often before a person is charged by the police an application will be made, and in those circumstances, and having regard to the special circumstances which exist in Northern Ireland, we considered that it would be inappropriate for the DPP in Northern Ireland to be involved in applications before a person has been convicted, much less charged. Involvement at that stage might be used by some to question the DPP's independence.

As regards the question raised by the noble Lord of whether there would be discussions between the police and the DPP, the answer remains the same as that which I gave earlier this afternoon. In other words, there will not be discussions of that kind. The DPP does not decide whether the RUC shall charge a person. Restraint orders can be made before a charge is laid, but a person who is affected can apply for a variation.

I believe that that last point covers the final question raised by the noble Lord. He asked what would happen if an application is made, the person concerned discharged and the charge not proceeded with. As I understand it, such a person can apply for a variation of the restraint order. Under the circumstances put forward by the noble Lord, Lord Prys-Davies, I believe that that is exactly what the person concerned would do.

Lord Prys-Davies

I thank the Minister for the very full answers he has given to the questions I raised. However, we shall have to consider whether there are any hidden problems in this area. If that proves to be the case, we shall return to the matter at a later stage.

On Question, amendment agreed to.

Lord Belstead moved Amendments Nos. 30 to 35: Page 61, line 17, leave out ("prosecution") and insert ("person by whom an application for a restraint order is made"). Page 61, line 19, leave out ("a restraint order or an application for such") and insert ("the order or the application for"). Page 61, line 21, leave out ("prosecution") and insert ("person by whom an application for a restraint order is made"). Page 61, line 22, leave out ("a restraint order or an application for such") and insert ("the order or the application for"). Page 61, line 26, leave out ("the application of the prosecution") and insert ("an application"). Page 61, line 44, leave out ("only on an application by") and insert ("—

1. (i) where it is applied for before the defendant is convicted of the offence, only on the application of an officer of the Royal Ulster Constabulary not below the rank of superintendent; and
2. (ii) otherwise, only on the application of").

On Question, amendments agreed to.

Lord Belstead moved Amendment No. 36: Page 63, leave out lines 26 to 31 and insert:

("Contravention of restraint order

8A —(1) A person who, without lawful authority or reasonable excuse (the proof of which lies on him), contravenes a restraint order is guilty of an offence and liable—

1. (a) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or a fine or both;
2. (b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(2) Nothing in sub-paragraph (1) above shall be taken to prejudice any power of the High Court to deal with the contravention of a restraint order as a contempt of court.").

The noble Lord said: This amendment is consequential upon Amendment No. 2. I beg to move. On Question, amendment agreed to.

Schedule 4, as amended, agreed to.

Clause 56 agreed to.

Clause 57 [Additional investigation powers]:

Lord Belstead moved Amendment No. 37: Page 41, line 17, leave out from ("Where") to end of line 26 and insert ("a person who has been authorised under subsection (1) above to exercise the powers there mentioned considers that any material may be relevant to the investigation in relation to which the authority was given, Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 (terrorist investigations) shall have effect in relation to the material as if—

1. (a) the references to a constable in paragraphs 2(1), 3(1) and (2) (b), 5(1) and (3), 6(1), 12(2) (b), 14(3) and 15(1);
2. (b) the first of the references to a constable in paragraph 3(6); and
3. (c) the references to a procurator fiscal in paragraphs 12(1) and (6), 13(2), 14(1) and 15(1),

included references to that person; and where (by virtue of this subsection) such a person has made an application for an order under paragraph 3 of that Schedule, the reference in paragraph 4(2) (b) to the constable on whose application the order was made or any constable serving in the same police station shall be construed as referring to that person.").

The noble Lord said: This small technical amendment is necessary to enhance the powers of authorised investigators appointed under Clause 57 of the Bill. Members of the Committee will be aware that these financial investigation provisions were added to the Bill in the other place, and I believe that it is fair to say they have received support both there and in this place.

What is now proposed is that where material has been made available to the police as a result of the various powers in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989, an authorised investigator as well as a constable (or in Scotland a procurator fiscal) should be able to apply for any further order that may be required. Authorised investigators will only be appointed in cases which are of a complex nature. Such cases will often require detailed examination of financial records. It will be from such examinations that the need for orders under Schedule 7 to the Act will arise.

The powers under Schedule 7 are rightly exercised with great care both by the courts and by the Secretary of State. Detailed questions are often asked of the person making the application. It is, I think, clear that where the need for the warrant or order arises out of work carried out by an authorised investigator, he will be the person best able fully to answer such questions. It is right, therefore, that he should be the person to make the application. This proposal in no way alters the rightly strict conditions that must be fulfilled before any order may be granted under Schedule 7. They simply enable an authorised investigator to make application for such orders.

It is also proposed that an authorised investigator should be allowed access to any material which is the subject of an access order. Without it the authorised investigator would have to seek a production order for the material. Adopting that course of action would not only impede the investigation but would also be much more inconvenient to the person holding the material, who would have to hand it over rather than simply allow access to it.

The amendment is a sensible provision. In effect, it will mean that authorised investigators can make applications for such orders themselves rather than having to rely on others, probably unfamiliar with the investigation, to do so on their behalf. The strict safeguards in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 are not altered. I beg to move.

On Question, amendment agreed to.

Clause 57, as amended, agreed to.

9 p.m.

Schedule 5 [Authorised Investigators]

Lord Belstead moved Amendment No. 38: Page 74, line 41, at end insert:

("Code of practice

7 —(1) The Secretary of State shall make a code of practice in connection with the exercise by authorised investigators of the powers conferred by this Schedule.

(2)When the Secretary of State proposes to issue the code of practice under this paragraph he shall prepare and publish a draft of the code, shall consider any representations made to him about the draft and may modify the draft accordingly.

(3)The Secretary of State shall lay before both Houses of Parliament a draft of the code of practice prepared by him under this paragraph; and when he has laid the draft of the code before both Houses he may bring the code into operation by an order made by him.

(4)An order bringing the code of practice into operation may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code.

(5)The Secretary of State may from time to time revise the whole or any part of the code of practice issued by him under this paragraph and issue the code as revised; and the foregoing provisions of this paragraph shall apply (with appropriate modifications) to such a revised code as they apply to the first issue of the code.

(6)A failure on the part of an authorised investigator to comply with any provision of a code of practice issued under this paragraph shall not of itself render him liable to any criminal or civil proceedings.

(7)In all criminal and civil proceedings such a code shall be admissible in evidence; and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

(8)In this paragraph "criminal proceedings" includes proceedings before a court-martial constituted under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 or a disciplinary court constituted under section 50 of the said Act of 1957 and proceedings before the Courts-Martial Appeal Court.

S.I. 1989/1341 (N.I. 12)

(9)Nothing in paragraph (8) of Article 66 of the Police and Criminal Evidence (Northern Ireland) Order 1989 or subsection (9) of section 67 of the Police and Criminal Evidence Act 1984 shall require authorised investigators to have regard in exercising the powers conferred by this Schedule to any provision of a code under that Order or that Act.").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 46. These amendments place a duty on the Secretary of State to make a code of practice in connection with the exercise by authorised investigators of the powers conferred by Schedule 5 to the Bill.

The powers conferred by Schedule 5 are far reaching and we consider it right that the way in which they are exercised should be regulated by a code. That will act as a safeguard both for those who are subject to the use of the powers and also to the authorised investigators who are to exercise the powers. The detailed provisions in the code are set out in Amendment No. 38 and follow closely the provisions of the code for police powers in Clause 60 of the Bill. It is provided, for example, that the code shall be published in draft, that the Secretary of State shall consider any representations he receives and that the code shall be laid in draft before both Houses before any order is made. The code will be admissible in evidence in both civil and criminal proceedings.

Amendment No. 46 provides that an order bringing such a code into operation shall be subject to the negative resolution procedure. I hope the Committee may feel that this is a significant safeguard. I beg to move.

Lord Renton

I should like to support my noble friend on this amendment. I am sure that the noble Lord, Lord Prys-Davies, would agree that from the technical point of view it is a well-conceived form of code of practice that is to be introduced here. The original code of practice applicable to our law came in as long ago as 1930, when the Road Traffic Act of that year made it possible for there to be a Highway Code.Everyone understood that the Highway Code was guidance to motorists and that a breach of the Highway Code did not in itself constitute an offence. However, when an offence under the substantive law was committed it was permissible to refer to theHighway Code and a factor to be taken into account in considering liability was whether the Highway Code had been observed.

That excellent pattern has in fairly recent years sometimes been varied with somewhat uncertain legal effect. In this respect, if I may say so, my noble friend has got it right. He has followed the well-established formula. It is to be found in sub-paragraphs (6) and (7). I need not read them out; they are there for all to see. This is the best way to do it. I am very glad that the Government have not fallen into the trap of trying to make the code of practice an indirect form of secondary legislation. I support the amendment.

Lord Prys-Davies

From these Benches and for the reasons which have been canvassed by the noble Lord, Lord Renton, we are pleased to welcome the amendment. This is a considerable improvement and we welcome it.

Lord Belstead

I am grateful to the noble Lord, Lord Prys-Davies, and my noble friend Lord Renton. The House has trained an eagle eye on codes of practice over the past year. I am glad that in this case the code passes muster so far as concerns my noble friend Lord Renton.

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

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

Lord Prys-Davies moved Amendment No. 39: Page 41 line 42, after ("Act") insert ("as may be necessary for the effective implementation of those provisions").

The noble Lord said: Clause 58(1) states that the Secretary of State may make additional regulations for promoting the preservation of peace and the maintenance of order. Our amendment would limit the scope of those regulations to such matters as may be necessary for the implementation of the provisions which are already contained in the Bill.

The regulation-making power contained in subsection (1) is extremely wide ranging. Subsection (2) does not add anything to our understanding of what the Secretary of State may do with this power. For the subsection to provide that the regulations may make orders for such purposes as may be specified in the regulations tells us nothing. Our concern about this clause is deepened when we read in subsection (3) that the regulations may create new criminal offences punishable by a fine or up to six months' imprisonment. The clause extends considerably the scope of the emergency Bill.

Our anxieties are further deepened when we read in Clause 66(4) that the regulations made under the clause will not be subject to parliamentary approval. As I understand it, we shall not even have the opportunity of hearing the Minister explaining the rules or have an opportunity to criticise them. They will not even be subject to the negative procedure. That is a complete derogation of power from Parliament to the Secretary of State. The least we can do is to seek to confine the scope of the regulations to such matters: as may be necessary for the effective implementation of the Bill's provisions. I concede that that may be an inadequate response. I hope that the Minister will have regard to our anxieties. I beg to move.

Lord Hylton

Will the Minister tell us what is meant by the phrase: for promoting the preservation of the peace and the maintenance of order"? If Clause 34 had been deleted, would Clause 58 give the Secretary of State the power to make provisions and regulations concerning detention?

Lord Holme of Cheltenham

We should be astounded at the moderation of the amendment because the clause, as it stands, gives the Secretary of State a blank cheque to introduce in the future whatever regulations and orders he decides without, as the noble Lord, Lord Prys-Davies, said any parliamentary point of reference. The provision was a constitutional monster when it was in the original 1978 Act, as I acknowledge it was, but it has been significantly worsened by the introduction of subsection (2) which appears to authorise the making of regulations for whatever purpose the Secretary of State decides to include in the regulation being made.

I urge the Minister to consider whether that ballooning power should be in some way tethered to the purposes of the Act.

Lord Belstead

Clause 58 allows the Secretary of State to make regulations for promoting the preservation of the peace and the maintenance of order. The noble Lord, Lord Hylton, has asked me what that means. I shall try to return to that point. As my noble friend Lord Colville said, the regulation-making power allows the Secretary of State to respond rapidly to public order developments, and, as such, is an essential feature of the emergency provisions legislation. I must notch up that point first, because the Committee has made a certain amount of criticism. My noble friend was clear that the regulation-making powers are an essential feature of the emergency provisions legislation.

At present, the regulations made under the existing power, including those establishing vehicle control zones in Northern Ireland, have a security purpose that is well understood and is generally uncontroversial. My noble friend Lord Colville records in paragraph 16.3 of his report that he received no representations opposed to the view that the regulation-making power should remain in its general form. He comments on the utility of possessing a power which can be rapidly deployed in the public order sphere and goes on to say: Since any offence against the Regulations is only summary no great impact on liberties, which are reasonably exercised, is involved. I recommend the continuation of this arrangement. Any regulations made under Clause 58 will continue to be subject to the affirmative resolution procedure in both Houses. I was a little surprised to hear the noble Lord, Lord Prys-Davies, say that there was no affirmative or negative resolution power. In addition, any regulations made under this power are susceptible to judicial review. Those are important safeguards on the operation of the provision.

The amendment would limit the ability of the Secretary of State to respond rapidly to developments in the public order sphere. It would also, we believe, serve to create uncertainty about the precise scope of the power. Although I accept that the amendment is intended as a safeguard to prevent the misuse of the power, the Government believe that there are already sufficient safeguards against its misuse, and that view is endorsed by my noble friend Lord Colville.

I admit that I have not given a direct answer to the question asked by the noble Lord, Lord Hylton. I do not intend to give him a direct answer this evening because it is for the Secretary of State of the day to decide what he would use the power for. I remind the Committee that the power is subject both to judicial review and also to affirmative resolution. I hope that noble Lords will not press the amendment.

9.15 p.m.

Viscount Colville of Culross

I realise that I am not meant to participate in these matters but there is a point that my noble friend may like to consider before he sits down. The power we are discussing was originally mentioned in the 1978 Act, as the noble Lord, Lord Holme, has reminded us. It appeared in an Act that was very much smaller than the measure we are discussing. It should perfectly properly appear in Part VIII as part of the miscellaneous provisions. Clause 58(1) refers to, ["the foregoing provisions of this Act".] Originally it only referred to what is now contained in Parts I, II, III and IV. It did not apply to Part V because that was not included in the 1978 Act. It did not apply to Part VI because that came about in 1989 and it did not apply to Part VII because that was introduced on Report in another place. I wonder whether one of the solutions to this matter might be to confine the regulation making powers under Clause 58 to the parts of this Bill to which it originally applied.

Lord Hylton

I hope that I may probe a little further on this matter. Going back some months and years, changes were made to the right of suspects to remain silent. Changes were also made as regards access to the media by proscribed organisations and persons speaking on their behalf. Were those kind of changes made under the predecessor of this legislation? If not, under what measure were those changes introduced?

Lord Belstead

The regulations cannot go outside the scope of this Bill. The Long Title of the Bill makes it clear what matters are covered. I wish to consider what my noble friend Lord Colville has said. I am grateful to him for his one intervention of the evening.

Lord Prys-Davies

I heard the Minister say that the regulations made under Clause 58 will be subject to affirmative resolution. I wish to draw the Minister's attention to the wording of Clause 66 which deals with orders and regulations. Clause 66 (1) provides that, any power to make orders or regulations … shall be exercisable by statutory instrument". Clause 66 (4) states: Subsection (1) above does not apply to any order under section 25, Schedule 3 or paragraph 6(1) (d) of Schedule 5 or any order under regulations made by virtue of section 58". Unless I am misreading that clause, it appears to me that an order made under Clause 58 will not be subject to affirmative resolution.

Lord Belstead

I am advised that Clause 66(2) provides the answer to the point which the noble Lord has raised. Clause 66(2) (a) states: a draft of the order or regulations has been approved by resolution of each House of Parliament".

Lord Prys-Davies

I am grateful to the Minister for referring me to subsection (2) of Clause 66. I shall consider that subsection. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 agreed to.

Clause 59 agreed to.

Lord Belstead moved Amendment No. 40: After Clause 59, 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—

1. (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;
2. (b) shall receive and investigate any representations concerning those procedures;
1437
3. (c) may investigate the operation of those procedures in relation to any particular complaint or group of complaints;
4. (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
5. (e) may make to the GOC recommendations concerning any inadequacies in those procedures, including inadequacies in the way in which they operate in rotation 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—

1. (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 & all with by him; and
2. (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.").

The noble Lord said: In moving Amendment No. 40 I wish to speak also to Amendment No. 48. During Second Reading on 19th April, I announced that the Government had decided to accept the recommendation of my noble friend Lord Colville 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. The new clause and its associates schedule give effect to our decision.

The new clause would require my right honourable friend the Secretary of State to appoint an independent assessor of military complaints procedures n Northern Ireland. It also outlines the independent assessor's functions in some detail. I shall not explain the details at this hour of the evening except to underline the fact that 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. It is with procedures that the assessor's functions are concerned.

The independent assessor has not been given any role in relation to complaints of criminal misconduct by the armed forces. There is a good reason for that. Allegations of criminal misconduct by the armed forces are and will remain subject to independent investigation by the Royal Ulster Constabulary.

The associated schedule deals with a number of "housekeeping" matters such as the independent assessor's tenure of office, his remuneration, staff and reports. The independent assessor will be required to submit an annual report to the Secretary of State—meaning the Secretary of State for Northern Ireland or the Secretary of State for Defence, "the Secretary of State" being a term of art—on the performance of the independent assessor's functions.

Finally, perhaps I may say a word about the armed forces. As my noble friend Lord Colville reports, in 1989 the army received 282 formal non-criminal complaints; the figure for 1990 was 196. The procedures for handling those complaints constitute the area of activity of the proposed independent assessor. I know that the noble Lord, Lord Prys-Davies, was impressed by those complaints figures, especially when they are set against normal levels of armed forces' activity in the Province. For example, to quote again my noble friend Lord Colville, in 1989 1.2 million vehicles were stopped and checked by the armed forces at vehicle checkpoints in Northern Ireland. In August 1989 alone the West Belfast Battalion performed 2,444 patrols. I stress that those are normal levels of activity in a very difficult situation. Set against them the figures for complaints that I have given are very modest and bear testimony to the professionalism with which the armed forces go about their duties. I know that the Committee will join me in paying an unreserved tribute to the security forces in Northern Ireland, including the Royal Ulster Constabulary, the regular Army, and the Ulster Defence Regiment, for the difficult and dangerous work they do on behalf of the whole community.

Nevertheless, the Government are confident that this new measure to establish the office of independent assessor of armed forces complaints procedures, coming in addition to other improvements in complaints systems introduced in recent years, will be in the public interest. However, we believe that it will be valuable not only to the community but also to the armed forces themselves in helping to retain the confidence and support of all men and women of good will from both traditions in Northern Ireland. I trust that these two amendments will receive the support of the Committee. I beg to move.

Lord Prys-Davies

We on these Benches join the Minister in paying tribute to the armed forces in Northern Ireland. They discharge their duties often in difficult and dangerous conditions.

The amendment is a step forward and is to be welcomed. It is a great improvement on what we now have. However, we feel that the amendment does not go far enough.

The role of the independent assessor will be that of adviser to the GOC. His duties are confined to the five matters set out in subsection (4). He will keep the complaints procedure under review, investigate the operation of the procedure, receive and investigate representations relating to the procedure and make recommendations relating to the procedure to the GOC. However, the clause does not introduce an independent element into the consideration of a complaint. We have been pressing for that independent element to be involved in the consideration of the complaint. That is still missing.

There is another missing element. The assessor may make recommendations to the GOC but there is no specific duty on the GOC to pay due regard to his recommendations. No doubt the Minister will say that he will pay serious regard to the views of the assessor, but one would have thought that that duty should be on the face of the Bill. I also wonder whether there should be a reference in the clause to the need to give publicity to the procedures so that people will know what the complaints procedure is and how they can make a complaint.

In addition, perhaps I may ask whether the assessor's tenure should be longer than three years. Is three years not too short a period? Although we welcome the amendment so far as it goes, it should be strengthened. I hope that the Minister will indicate that he will not close his mind to the need to strengthen it, possibly along the lines that I have suggested.

Lord Hylton

I follow the noble Lord, Lord Prys-Davies, both in his preliminary remarks and in what he said about this being a small step forward. I agree with him about the lack of an independent element in the consideration of a complaint.

Perhaps I may make three points about the manner in which the procedures should work. First, they should be as rapid as possible. That is important when one bears in mind the constant turnover of Army personnel and short-term and long-term battalions. It may be that, by the time the complaint comes to be considered, the soldier has already gone to Germany or somewhere on the other side of the world. Secondly, conciliation is bound to be important, whenever possible bringing together the complainant and the person responsible for answering the complaint. Thirdly, apologies, where the Army or the UDR know that they have slightly overstepped the mark, can probably do more than anything else to put the relationship right or at least to improve it.

Lord Belstead

Both the noble Lords, Lord Prys-Davies and Lord Hylton, made a common point when they expressed criticism of the fact that the independent assessor has no role in the investigation of non-criminal complaints. I was surprised to hear that criticism because the Government have done exactly as my noble friend Lord Colville recommended. I refer noble Lords to paragraph 5.25 of my noble friend's report, where he refers to the appointment of independent outside persons, under a variety of titles, who carry out an audit of the way in which complaints procedures are operating…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 to establish the office of Independent Assessor of Military Complaints Procedures.

On Question, amendment agreed to.

Clause 60 [Codes of practice: police powers]:

Lord Belstead moved Amendment No. 41: Page 42, line 19, leave out from ("State") to ("the") in line 26 and insert ("shall make codes of practice in connection with the detention, treatment, questioning and identification of persons detained under the Prevention of Terrorism (Temporary Provisions) Act 1989 and may make codes of practice in connection with—

1. (a) the exercise by police officers of any power conferred by Part II of this Act or by that Act; and
2. (b)").

The noble Lord said: I explained the background to this amendment in some detail when we debated the new clause tabled by the noble Lord, Lord Holme, to require the Secretary of State to make a code of practice to provide for video recording of interviews with terrorist suspects. As I explained then, we are wholly committed to ensuring that the highest standards apply in the conduct of police interviews with terrorist suspects.

To that end I said that we had decided to make a code of practice under the powers in Clause 60, dealing with the detention, treatment, questioning and identification of terrorist suspects. That is the purpose of the amendment. It would impose a duty on the Secretary of State to make such a code. The amendment would also leave intact the enabling power in relation to the other matters currently specified in Clause 61 as possibilities for codes of practice. I hope that the Committee will feel that a code of that kind will enhance confidence in police procedures and provide further protection for the rights of suspects in police custody. I beg to move.

9.30 p.m.

Viscount Colville of Culross

Perhaps the noble Lord, Lord Prys-Davies, will allow me to intervene for one moment. This is a new point and I do not believe that even the Addison Rules (or whatever it is that binds me) will prevent my making what I hope is a constructive suggestion upon which the noble Lord opposite may wish to comment. My point arises from what my noble friend said about the relevance of the code of practice to the Government's present view that they do not want recording of the video monitor signal in detention centres in Northern Ireland.

The trouble about complaints which do not get cleared up is that by the time they come to be investigated they are stale, and the last thing one is going to get at that stage is any medical evidence. If the code of practice that my noble friend is now suggesting goes into the question of detention under the Prevention of Terrorism (Temporary Provisions) Act, he may wish to look at my last report on the operation of that legislation. I made a particular point of looking at the reviews of detention carried out by senior uniformed officers, which occur in Northern Ireland as they do everywhere else. In that report I gave the example of a review carried out by a police force in Great Britain, at the end of which I should have thought that it would have been quite impossible for the detainee to make a complaint that he had been beaten up or otherwise mishandled by the police in the course of his custody.

At the moment the problem is that the review machinery tends somewhat to limit the number of questions that the review officer asks of the detainee. It goes into the question of whether the latter should have access to the outside world and to a solicitor but does not ask specifically in terms whether he has any complaints to make since the previous review took place. A review occurs after the first nine hours and then at 12-hour intervals. If at that stage he has any complaint, it will be fresh and it will be possible to discover what interrogations, if any, have taken place and who has been involved in them. There will be an opportunity for the doctor to see him if he does make a complaint, and the whole thing can be dealt with immediately. Indeed, those watching the television monitors would be able to be asked whether they recalled anything at a time when events were fresh in their memories.

Therefore, it seems to me that my noble friend was quite right when he said there could be a substantial contribution to the resolution of this rather long-standing problem if the code of practice built upon the reviews already in place under the Prevention of Terrorism (Temporary Provisions) Act by eliciting a little more information from the detainee about whether or not he has anything to complain about over the past 12-hour period. It would also cover anything that happened outside the interrogation room: for instance, in the corridors or in the cell.

Lord Belstead

I was somewhat at a loss because my noble friend appeared to be addressing the noble Lord, Lord Prys-Davies, although I think that the points he raised were put to the Government. I can confirm that the proposed code of practice will deal with the detention and treatment of persons arrested and detained under Section 14 of the Prevention of Terrorism (Temporary Provisions) Act. I can assure my noble friend that we will take on board the points made in his annual report on the operation of that Act. Those are matters ideally to be dealt with in the proposed code. The noble Lord having suddenly leapt into action behind me, perhaps he will forgive me if I say I do not think I can go any farther this evening.

Lord Prys-Davies

I listened with great interest to the Minister's response to the noble Viscount, Lord Colville. I very much hope that when we see the code of practice it will incorporate the valuable and constructive points made by the noble Viscount. We certainly support the amendment.

I want to ask the Minister one question. The duty under the amendment is mandatory. Why is the duty to make a code of practice under Clause 60(1) (a) (b) (c) discretionary? Is there an anomaly there?

Lord Belstead

We are here making it mandatory that there shall be a code of practice in connection with the detention, treatment, questioning and identification of persons detained under the Prevention of Terrorism (Temporary Provisions) Act 1989. But, as I sought to go out of my way to say, we are leaving intact the rest of the enabling powers in Clause 60 as possibilities for codes of practice.

Lord Prys-Davies

I wonder whether the Minister can explain why the codes of practice which may be made under paragraphs (a) (b) (c) are discretionary? Why should not that be mandatory as well?

Lord Belstead

The effect of the amendment that I have just moved is to do exactly what the noble Lord wishes to be done. We are substituting "shall" for "may". Taat means that the code of practice of which we are speaking will now be mandatory upon my right honourable friend.

On Question, amendment agreed to.

Clause 60, as amended, agreed to.

Clause 61 agreed to.

Lord Prys-Davies moved Amendment No. 42: 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: It has long been clear that the use of lethal force by members of the security forces in dealing with a person suspected of involvement in terrorist activity is one of the most important and emotive aspects of the operation of the emergency powers in Northern Ireland. Yet at no time is it more important for the security forces to be seen to be accountable for their actions than when in situations which involve the use of lethal force.

The Standing Advisory Commission on Human Rights which is the Government's standing advisory commission in Northern Ireland has identified in particular two areas of difficulty. First, there is no specific statutory provision relating to the use of lethal force and the courts have repeatedly refused to give any general guidance as to the meaning of the requirement that the degree of force to be used to prevent a crime or effect an arrest must be reasonable in the circumstances. In Northern Ireland some more detailed guidance is given to soldiers and the police in the so-called yellow card which is issued to them. But the yellow card has no legal significance and in fact is treated as confidential.

The standing advisory commission has therefore recommended that there should be a statutory code of guidance setting out the circumstances in which the use of lethal force is justified. The commission is strengthened in that view by the terms of recent draft principles on the use of force by law enforcement officials, which has been considered by the eighth United Nations congress on the prevention of crime. Indeed, the Minister will know that the standing advisory commission itself produced a draft code.

The second difficulty is that there is no satisfactory way of dealing with cases in which the current rules, as understood through the yellow card, may have been broken. That leads to a great deal of dissatisfaction. It may well be that the general law needs to be reformed. That is referred to in Amendment No. 44.

However, the position could be improved if the Bill were to provide a more satisfactory way of dealing with cases in which the use of lethal force by the security forces in Northern Ireland has been controversial. The Standing Advisory Commission on Human Rights has even urged that the Bill should include provision for a statutory code of conduct, a breach of its terms being a specific offence punishable by a modest maximum term of imprisonment. I hope that I have said enough to explain this important amendment which stems from the standing advisory commission. I beg to move.

Lord Belstead

The law relating to the use of force is set out in Section 3(1) of the Criminal Law (Northern Ireland) Act 1967. It states that: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large". That is the law both in Northern Ireland and England and Wales; it applies equally to those charged with upholding the law and ordinary members of the public.

The first effect of a statutory code of practice on the use of lethal force in dealing with suspected terrorists would be to undermine that position of parity. It would place policemen and soldiers in a different legal position when confronted by a suspected terrorist and when confronted by an armed bank robber. An obvious question which arises is the effect of such a code where a policeman or soldier mistakenly believes that he is dealing with a suspected terrorist but in fact is dealing with a bank robber, or vice versa.

Similarly, one must have concerns about the more general effects of such a code. The new clause proposes, as with the recommendation of the Standing Advisory Commission on Human Rights, that breach of any provision of such a code should constitute a criminal offence, punishable by a maximum of two years' imprisonment. One must question whether it would be right so to legislate for situations in which, by their very nature, lives may be at stake. One must also question whether the effect of such a code would in fact inhibit the use of firearms in circumstances where it would be legitimate and necessary to use firearms for self-protection or the protection of others.

I recognise the strength of feeling on this general issue. The Government also understand the reasons why SACHR recommended that such a code should be introduced in terms of community confidence. However, for the reasons that I have given, we believe that it is a matter which has implications for the general criminal law as a whole and should not therefore be considered simply in the context of emergency legislation.

In a paper sent to my right honourable friend the Secretary of State by the Standing Advisory Commission on Human Rights it said that this may be a subject, best dealt with in a separate statute of more general application". I assure the Committee that we shall continue to consider the concept of a code of practice alongside the other propositions that have been made relating to the general issue of the use of force. However, I ask the Committee not to accept the new clause within the context of this Bill.

Lord Hylton

The Minister knows that I have been concerned about these matters for a good many years. I have discussed them with him personally. I am sorry to say that I do not believe that we made tremendous headway on that occasion.

I believe that we all accept that we wish to see the minimum necessary force used by the security services. That, alas, has not always been possible in the past. I have with me a list of 49 deaths between 1982 and April 1990 in which it is clear, I am afraid, that excessive force was used on a number of occasions.

The Minister has rightly pointed out that there is an interaction between terrorist crimes and ordinary crimes sometimes involving the use of replica weapons. Although the Minister did not mention vehicles, we understand that they are involved in joy-riding offences in which a number of young people have been shot and killed in Northern Ireland.

I welcome the assurance that the matter will be looked at in the context of the entire legislation. I hope that the Minister considers that the code of practice already drafted and submitted by the standing advisory commission has been a helpful step, and that it will be a catalyst to action.

I agree with the Minister's comments about the maximum term of imprisonment provided in subsection (3) of the amendment. That may be insufficient in certain circumstances. I wish to underline the fact that since at least 1982 there has been no judicial inquiry into a disputed killing which would have had the power to subpoena witnesses and to investigate the matter thoroughly. That is a further reinforcement of the need to take action.

Amendment No. 44 provides a defence in particular for a member of the security services who is charged with killing or using excessive force. I have raised the issues previously in this Chamber, as has the noble Lord, Lord Donaldson of Kingsbridge, a former Northern Ireland Minister. There is Australian experience of legislation involving charges less than murder where a person has been killed, usually by a policeman or by military personnel. Professor Tom Hadden of Queen's University has carried out a great deal of work on the subject. I hope that Amendment No. 44 will find more favour with the Government than the amendment which we are now considering.

9.45 p.m.

Viscount Brookeborough

I am not convinced that a code of practice would prevent people in such circumstances being killed. One or two incidents have occurred totally by mistake; for instance, that at Aughnacloy in which someone in a sangar loosed off some rounds and shot a man. However, the predominant number of such cases have been investigated. A charge of murder would have been brought had it been thought that the soldier or the policeman acted in a way in which he should not have acted in any circumstances.

The problem is that when people have been shot in such circumstances the policeman or the soldier had justifiable reason for believing at the time that his life or the lives of other people were at risk. The terms of a code of practice must state, "Should you believe that your life, or someone else's life is at risk, you may open fire". However, where a joy-rider, for instance, is careering down a street in the presence of soldiers or policemen it is difficult to see what else those officers can do. Most certainly they cannot read a code of practice asking whether that looks like a joy-rider.

The charge of murder exists at present, and it has been used. There has been a certain amount of disquiet because people have not been convicted because it was thought that at the time the man had been justified in opening fire even if it was discovered subsequently that he had wrongly assessed or misunderstood something happening near him which turned out to be comparatively harmless.

Perhaps I may give an example. A car draws into a road check point and as it is leaving it backfires. A soldier nearby may believe that he has been shot and may stagger backwards. Another man may see that, believe that the passenger in the car has opened fire and shoot him. In those circumstances I do not believe that a code of practice would make any difference. It is inconceivable that it would prevent the man from being killed.

We seem to be trying—and this is rather borne out by the suggestion of the noble Lord, Lord Hylton, as regard the charge of manslaughter in Australia—to find a law by which we can convict the very people whom we have put in place to stop terrorism in Northern Ireland. We are trying to treat them under a different law. Terrorists will not be charged with manslaughter but with murder. Some of our soldiers—many from England—and policemen have been charged with murder. That has caused them considerable stress and strain and has had a severe effect on their families. I do not believe that the right way forward is by use of a code of practice which will tie them to a far greater extent than they are already.

Lord Prys-Davies

I am grateful to the noble Lord, Lord Hylton, for his support on this amendment. I am particularly grateful to the noble Lord, Lord Belstead, for indicating that the Government are at least interested in a code of practice on the use of legal force. The Minister makes the point that if there is to be a development along those lines, it must be part of the general development or reform of the law. I accept that. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 43: After Clause 61, insert the following new clause:

("Amendments to Coroners Rules

The Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 as amended by the Coroners (Practice and Procedure) (Amendment) Rules (Northern Ireland) 1980 are amended as follows—

1. (a) In Rule 9 for subsection (2) there is substituted— "Where a person is suspected of causing the death, or has been charged or is likely to be charged with an offence relating to the death, he shall be compelled to give evidence at the inquest if the coroner directs that such evidence should be given."
2. (b) In Rule 9, subsection (3) is omitted.
3. (c) In Rule 12, the words "or for such longer period as he may think fit" in subsection (1) is omitted.
4. (d) In Rule 12, subsection (2) is omitted.").

The noble Lord said: This amendment refers to coroners courts. So that there is no misunderstanding about its intention, perhaps I may say immediately that paragraphs (a) and (b) have crept into the amendment by mistake. They should not be there. Therefore, I speak only to paragraphs (c) and (d).

The law on inquests is complex and has been the subject of at least two official inquiries in Britain over the past 50 years. Perhaps it is not surprising that an error crept into my amendment. The effect of subsections (c) and (d) would be to require an inquest into a disputed killing by the armed forces or the police to be opened as soon as practical after the death, with the exception of a single 28-day delay which would be permissible on the application of the police on the ground that someone was likely to be charged. If someone was to be charged, Rule 13 of the coroners' rules would come into operation and the opening of the inquest would be delayed until criminal proceedings were complete.

This is clearly a probing amendment on the general issue of long delays in holding inquests into the circumstances of killings in disputed circumstances in Northern Ireland. All too often it is the case in Northern Ireland that several years elapse before an inquest is held into the killing of a terrorist suspect. That long delay fuels the suspicion that the inquest is not being held because the authorities want to keep the lid on the truth.

It will be recalled that the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 prohibited the holding of inquests in specific classes of case. That was the position between 1922 and 1973. In 1988 Amnesty International published statistics about the delay in holding inquests in Northern Ireland between 1982 and 1988. During that period, according to Amnesty International, there were 49 killings by the security forces. By 1988 inquests had only been held into 24 of the deaths, and criminal proceedings taken in respect of five. That left 20 of the killings untouched by an inquiry. I have been unable to trace statistics for the period since 1988. But I have no reason to believe that the figures for the period 1982 to 1988 were exceptional and that I am in any way misleading the Committee.

There is little doubt that long delays are the order of the day in holding inquests into disputed killings. If and when the inquests are held after several years of delay, immense difficulties arise, sometimes in tracing witnesses or tracing documentary testimony. People cannot recall in detail what they saw and heard. There is therefore a risk that the long delay compromises the standards of justice. The issue broadens out to become one of confidence in the administration of justice. Where that happens, that goes to the heart of the problem.

The law on inquests is complex. It is difficult without expert knowledge—which we do not possess—to suggest an amendment that would cure the problems. We believe that it is the right time to get the right answers. I received a helpful letter from Professor Tom Hadden, who is a professor of law at Queen's University Belfast. He suggests that the subject needs to be carefully studied in order to achieve three results. First, inquests into all fatal shootings by members of the security forces should be speeded up so that rumours about the essential facts will be replaced by the best available evidence. Secondly, adequate powers and procedures should be available to the coroner's court in Northern Ireland to ensure that the best available evidence is presented to and tested at the inquest. Thirdly, the rules of procedure and practice should be brought into line with those in Britain.

I summarised the letter sent to me by Professor Hadden. I shall be grateful if the Minister will indicate that he is in general sympathy with the aims that the professor believes to be desirable. I beg to move.

10 p.m.

Lord Belstead

Perhaps I could ask the noble Lord, Lord Prys-Davies, whether I heard him correctly, that anything to do with compellability of witnesses should have been omitted from the face of the Marshalled List.

Lord Prys-Davies

Yes.

Lord Belstead

The new clause seeks only to amend the current rules to the effect that where criminal charges may be brought against the person who caused the death of the deceased, an inquest can only be adjourned for a maximum of 28 days. As the noble Lord knows better than I, it is a general principle both in England and Wales and in Northern Ireland that any inquest must be delayed until after the conclusion of any criminal proceedings brought in connection with the death. The amendment would not be consistent with that practice. It seeks to remove the coroner's discretion to adjourn for longer than 28 days. I should have thought it better for an inquest not to begin until police investigations have been carried out rather than have to adjourn the inquest once charges have been brought or, worse still, have a further inquest.

We are opposed to the amendment because it violates the principle that an inquest should not proceed until the question of criminal proceedings has been determined. There is a very good reason for that principle. Proceedings at a coroner's inquest would be likely to prejudice any subsequent criminal proceedings. The amendment also ignores Rule 11 which provides a general discretion for coroners in Northern Ireland to adjourn inquests. The proposed amendment to Rule 12 would not fetter that general discretion to adjourn in Rule 11. However, there is a more fundamental problem with the amendment. It appears to be based on the misconception that when inquests in Northern Ireland are delayed for considerable periods, they have been adjourned under Rule 12. That is not the case. In Northern Ireland the practice has developed of not commencing an inquest at all in circumstances where the coroner knows that a criminal investigation is proceeding. That practice is different from that in England and Wales where the coroner must start and then adjourn.

While I appreciate that the reason for the noble Lord's amendment is to reduce the delays in holding some inquests—he delivered himself of some trenchant remarks in that respect—we should not forget that unfortunately the unprecedented volume of violent crime in Northern Ireland and the resulting demands on the resources of the RUC and the DPP, inevitably lead to some delay. Nevertheless every effort is made to ensure that inquests are held as quickly as practicable. I shall look with care at what the noble Lord said about the views of Professor Hadden. Although this debate has been interesting it falls a little outside the scope of the Bill. We have dealt with more general legal matters and not so much with the emergency provisions. Nonetheless, I am glad that the noble Lord moved the amendment. Although the noble Lord may considerably disagree with what I have said in reply, I hope that it will have been as useful to him as indeed his speech was to me.

Lord Prys-Davies

I thank the noble Lord for his response. I readily accept that the amendment may be defective. I am sorry if I left the impression that I was not speaking in moderate terms about the amendment. It should not be overlooked that this is an area of extreme sensitivity in Northern Ireland. I did not expect the Government to accept the amendment. A great deal of homework has to be done. I will be encouraged if in due course the Government will give further consideration to this issue which I have sought, possibly inadequately, to identify. I shall not take the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 44: After Clause 61, insert the following new clause:

("Defence against murder

—(1) It shall be a defence for any person charged with murder that he killed in a situation in which it was reasonable for some force to be used in self-defence or in the prevention of crime but that he used excessive force, if at the time of the act he reasonably believed that the force he used was reasonable in the circumstances.

(2) If such a defence is accepted by the court, the defendant may be found guilty of manslaughter".).

The noble Lord said: I move this amendment but not with a great deal of optimism. Nevertheless, the matter has been referred to by the noble Lord, Lord Hylton. It is generally true to say that the law in respect of the use of reasonable force is regarded as unsatisfactory in many quarters. The noble Lord, Lord Belstead, is quite right in saying that in Northern Ireland the law is to be found in Section 3 of the Criminal Law Act 1967. That provision merely states that the force applied to prevent a crime or to effect an arrest must be reasonable in the circumstances. That is the phrase which causes the difficulty.

The noble Viscount, Lord Colville of Culross, has drawn attention to the difficulty in a memorandum to the Select Committee of your Lordships' House on Murder and Life Imprisonment. He argued cogently in that memorandum that legislation was needed to develop the law in this area of great difficulty. I wish to read a few sentences from the memorandum. It appears at page 542 of Volume 2 of the report. The noble Viscount said: Put very shortly (probably too shortly) the law in England, Wales and Northern Ireland is this: if, for example, a soldier shoots and kills someone in circumstances where he says that he thought the other person was about to pull a gun on him but he was mistaken, he can only be convicted of murder (with a mandatory life sentence)"— subject of course as to how the Government will respond to the amendment should it be carried— if his defence is not believed (which many think too harsh) or completely acquitted on the grounds of self-defence (which the victim's family and community tend to think outrageous). There has not developed in this jurisdiction, although it has in others such as Australia, a half-way position whereby an alternative verdict of manslaughter can be reached". He added in the following paragraph: I have to say that reform along the Australian lines has the potential for broader discussion of this area of criminal law. If it led to the adoption of a lawful verdict between the extremes, the change would go some way to satisfying the community after such an incident, and would also be just to member; of the security forces".

I should point out that the Standing Advisory Commission on Human Rights fully endorses the general approach adopted by the noble Viscount, Lord Colville. Indeed, it has pressed for the law to be reformed along the lines of this amendment. It would allow the alternative verdict of manslaughter to be brought in where the authorities had brought a charge of murder in a case where some force was justified and had led to a killing.

I suspect that the Minister will say again that this is a matter which concerns the law in general and not something which should be dealt with or incorporated in this 13ill. Nevertheless, I should be most interested to hear his comments. I beg to move.

Lord Ackner

I should like to add to the enthusiasm expressed, which appeared to be not as noticeable as usual, when the amendment was moved by the noble Lord, Lord Prys-Davies. I was a member of the Select Committee about which he spoke. Members of that committee were not unanimous on everything, but we were unanimous on this: that there should be a new defence to murder, one which would not provide a complete defence but would reduce the charge from murder to manslaughter if the defence was made out.

Not only does the noble Lord have the backing of the Select Committee on Murder and Life Imprisonment; he also has the backing of the Lord Chief Justice. I shall quote from paragraph 88 of the Select Committee's report: If murder is to be reserved for those homicides which are most deserving of stigma, this does not seem to be one of them. The Lord Chief Justice told the Committee that he had always thought it wrong that a person who goes too far in self-defence should be convicted of murder and that, if any difficulties of definition could be overcome, the law should be changed". I rise not only to express my support for a fellow member of the Select Committee but also partially to give vent to the frustration which I have only recently experienced in finding that, when I considered making an amendment to the Criminal Justice Bill currently before this Chamber, the Long Title was not long enough to accommodate what I had in mind. However, if it had been I should have tabled such an amendment. Moreover, I should have done so with the authority of the Lord Chief Justice, to whom I spoke anticipating no such difficulty. I discovered the difficulty when I came to check up on the matter.

I do not see why there is a problem. We have the defence of provocation which reduces murder to manslaughter; but in provocation the defendant has lost his self-control, which is not a very good beginning to any defence in respect of a crime, and he has ex hypothesi acted in a manner which a reasonable person, subject to that provocation, would not follow.

Here, in the instant suggestion, the accused has, bona fide, acted in self-defence. He was defending himself in a situation which justified defending himself. He honestly believed that he was entitled to do what he did. But—and this is the only but—he went beyond the degree of self-defence that he was entitled in the circumstances to use. It is a classic example of mitigating the offence of murder down to manslaughter instead of leaving a person in that situation so much worse off than the man who can establish the defence of provocation and thus land him with the stigma of murder and, subject to the amendment recently passed in this Chamber, hitherto the automatic life sentence.

I would support this amendment, I hope with a little more enthusiasm than perhaps it has been thought fit to do so today.

Viscount Brookeborough

I hesitate to rise in the face of such knowledgeable opinions as we have just heard. However, as I see it—and perhaps I am wrong—what we are saying is that, if a person on security duty in Northern Ireland had at the time what we have all been told and what has been agreed was a justifiable reason for protecting himself and in a split second decided to open fire, a court will find him guilty of something regardless. I find it horrifying and amazing to think that we are contemplating saying to 18 or 19 year-olds in Northern Ireland, "You will do your duty. We know that on certain occasions—and we have trained you for it—you will come across situations where you will have a split second to decide whether your friend was shot or whether it was something backfiring. If it was a shot and he is dead and you do not fire, the terrorist may get away. But if you open fire, we don't find a weapon and he was not shot, even though we believe you did it for the right reasons, you will go down for manslaughter". I find that totally horrifying. I fully accept that where somebody is—

Lord Ackner

What I understood we were seeking to do is to prevent, in the situation which the noble Viscount has described, the unfortunate soldier going down for murder, which is what would happen to him now. The amendment is designed to reduce that charge from murder to manslaughter. No one is suggesting that he should end up with no penalty; but with manslaughter there is a determinate sentence—a period of time which the court thinks is appropriate. The amendment does not, as I understand it, seek to make matters worse; on the contrary, it seeks to make them considerably better.

Viscount Brookeborough

It is my understanding that when a soldier in Northern Ireland has been brought up on such a charge, it has been found that at the time he acted as he justifiably saw fit and that is understood by others, he has been charged with murder and found not guilty. I believe that that charge of murder and the finding of not guilty is much more preferable for somebody whom we put in that situation than to find him guilty then of manslaughter.

Lord Belstead

I recognise that the proposition to which the new clause seeks to give effect is one which has been dealt with twice by my noble friend Lord Colville in his annual reports. It has also been considered by the Select Committee of your Lordships' House on the law relating to life imprisonment and has been advocated by the Standing Advisory Commission on Human Rights in Northern Ireland.

I acknowledge that the primary motivation for a change to the law of this kind relates to the concerns about policemen and soldiers who are involved in shooting incidents where death occurs. But clearly such a change should be to the general criminal law rather than the emergency legislation, since the application of a provision of this kind would not be confined to terrorist situations. Equally, it might be preferable, although not, I accept, essential, that a change of this kind to such a fundamental area of the law should be effected on a UK-wide basis rather than solely within Northern Ireland. It could be regarded as invidious if we appeared to single out for special legislative treatment soldiers and RUC officers, in their anti-terrorist roles.

There are also practical issues to consider. Would we, in introducing a new provision of this kind, be placing the security forces in a serious dilemma when confronted by a situation which demanded a split-second decision? The amendment uses the word "reasonable" in no fewer than three separate places. It may be possible, although it will never be easy, for a court to judge what is reasonable and what is excessive in certain circumstances, and whether, in retrospect and with a full opportunity to consider all the issues, a person's belief was a reasonable belief.

My noble friend Lord Brookeborough put his finger on an important point when he asked how a soldier or policeman, confronted by a situation where urgent action is needed, is to make such a fine judgment. The noble and learned Lord, Lord Ackner, replied quickly to that question and said that the objective of all this is to help the soldier in a situation which could lead to a charge of murder. But is there not a danger that that uncertainty on which my noble friend Lord Brookeborough put his finger might inhibit the use of force where such force was in fact necessary and possibly appropriate to save life or prevent crime?

I should be foolish if I did not recognise that a powerful case has been made out, supported by the noble and learned Lord; but it is a case which it is not appropriate to be dealt with in the emergency provisions legislation, even though the noble and learned Lord might wish to find a home for it having been unable to find one in the Criminal Justice Bill. On that ground alone, I ask the Committee not to accept the amendment. I do so with the assurance that the Government will continue to consider the issues and whether a change to the general law along the lines proposed is desirable.

10.15 p.m.

Lord Prys-Davies

In view of the Minister's response to at least two earlier amendments, I was not optimistic that the Government would respond favourably to this amendment. My pessimism was well-founded. I was grateful to the noble and learned Lord, Lord Ackner, who was a member of the select committee, for his powerful support. The advice he has tendered to the Committee should carry considerable weight with the Government.

I am encouraged to believe that we should do some further work in connection with the amendment and return to it at a later stage, when I hope that I shall be able to fight for it with far more vigour than I did this time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 62 to 65 agreed to.

Clause 66 [Orders and Regulations]:

Lord Belstead moved Amendment No. 45: Page 46, line 13, leave out from ("below") to ("and") in line 14.

The noble Lord said: I shall speak also to Amendment No. 47. The amendments are of a technical nature. They relate to the procedure to be applied to any Order in Council made under the power conferred by paragraph 18(1) (a) of Schedule 4. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 46: Page 46, line 35, after ("4") insert ("or paragraph 7 of Schedule 5").

The noble Lord said: This is a consequential amendment. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Airedale)

Amendment No. 47 has been spoken to. However, before I call it I remind the Committee that there is a misprint on the Marshalled List. In line 1 of the amendment the words "or 18A" should be left out. I now call Amendment No. 47.

Lord Belstead moved Amendment No. 47: Page 46, line 37, at end insert: ("(5A) No Order shall be made under paragraph 18(1) (a) or 18A of Schedule 4 to this Act unless a draft of it has been approved by a resolution of each House of Parliament.").

On Question, amendment agreed to.

Clause 66, as amended, agreed to.

Clauses 67, 68 and 69 agreed to.

Lord Belstead moved Amendment No. 48: Before Schedule 6, insert the following new schedule: