Justice and Security (Northern Ireland) Bill

In looking at both the amendment and the clause, I ask noble Lords to look at the power within the context of the Bill and Northern Ireland. The military role in Northern Ireland is changing. The end of July will see the end of Operation Banner, which has been running since 1972. There will no longer be routine military support to the police after that period. It is also worth bearing in mind that the Armed Forces’ power of arrest under Part 7 of the Terrorism Act 2000 was used only six times in 2005. I do not have a figure for 2006 yet. Therefore, we expect the use of this power to be similarly sparse. It will be used rarely. When exercising the power of arrest in the circumstances set out in subsection (1) those detained should be informed promptly of the reasons of their detention. Naturally, I understand the reason for the amendment—I make no complaint about that. But the Armed Forces’ power of detention following arrest lasts, as is clearly set out in the clause, for a maximum of four hours within which time the individual would be re-arrested by the police or released. At that point of re-arrest, they would be told the reasons for their arrest by a police officer trained to do so and the provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 would be applicable. In the context of Northern Ireland, in most cases we would expect the re-arrest to be within the one-hour period, but there are instances when the Armed Forces may be operating in a rural area. For example, they may be the first on the scene of an unexploded ordnance and it may take the police longer to reach them. That is why there is a four-hour limit. The Armed Forces will always seek to hand over the individual that they have arrested at the earliest possible opportunity. Case law suggests that while the information on the reasons for detention required by Article 5(2) must be conveyed promptly, it need not be related fully by the arresting officer—a member of the Armed Force—at the time of arrest. Case law also makes clear that whether the content and promptness of the information is sufficient to comply with Article 5(2) should be assessed in each case according to its special features. It also suggests that intervals of a few hours do not fall outside the notions of promptness required by Article 5(2). The power in Clause 21 therefore satisfies the requirement to be told promptly. As I have said, there would be a four-hour maximum. We would expect most of the handful of cases to be dealt with within one hour. Although members of the Armed Forces would currently give some indication as to why they were arresting an individual, a statutory obligation to do so would provide a route to challenge the actions of the Armed Forces. A successful challenge on the grounds of arrest would mean that the arrest and any actions following it—for instance the restraining of an individual—would be deemed illegal. The Armed Forces are not trained in the law to the same level as members of the police force. They will not be using the power anywhere near as regularly as the police, and will be using the powers only for a brief period before the police arrive to re-arrest, or indeed, release the individual. On the rare occasions when they use the power, it is likely to be in a fast-moving and high-pressure situation, where police back-up is quickly forthcoming. In our view it is excessive to place a further burden on the Armed Forces. I shall repeat what I said when I started. The military role in Northern Ireland is changing, and the end of July will see the end of Operation Banner, which has run since 1972. There will no longer be routine military support to the police. The powers of arrest of the Armed Forces in Part 7 of the Terrorism Act were used only six times in 2005, and we expect the use of this power to be similarly sparse. That is the context in which we are dealing with this issue, which is the basis on which I reject the amendment. Naturally it is up to the noble Lord to come back on Report, but that is the background to the reasons why the power is in the Bill, and how we expect it to be used in reality.