Justice and Security (Northern Ireland) Bill

moved Amendment No. 43: 43: Schedule 3, page 37, line 29, leave out ““four”” and insert ““two”” The noble Lord said: The amendment concerns powers of detention during the search of premises. The Bill provides the police or members of the Armed Forces with the power to enter and search premises to ascertain if there are munitions or wireless apparatus there unlawfully, where there is a reasonable suspicion that such items are present. The Bill gives the officer carrying out such a search the power to require a person to remain on the premises for up to four hours, extendable to 8 hours in total, if he reasonably believes it necessary, to carry out the search or prevent it being frustrated. The Explanatory Notes acknowledge that this power could be used in such a way as to engage Article 5 of the European Convention on Human Rights, because the requirement to remain on the premises could in theory last for up to 8 hours. However, the Explanatory Notes state that, in practice, individuals would be allowed to leave the premises or move around them subject to some restrictions and for a much shorter time, and that guidance will be issued to police and the Armed Forces on the appropriate use of this power so as to ensure that these powers are not exercised in a way that engages Article 5. That acknowledgement of guidance is useful in the context of our earlier debate. Requiring a person to remain on premises for up to eight hours during the conduct of a search of those premises is clearly capable of amounting to a deprivation of liberty for the purposes of Article 5. The committee therefore asked the Minister which of the enumerated exceptions to the right to liberty in Article 5 the Government relies on in cases where the exercise of the power amounts to a deprivation of liberty. In his response, the Minister acknowledges that the power could clearly be applied in ways and for a duration which would engage Article 5, and argues that the deprivation of liberty in such a case would be within the scope of Article 5(1)(b)—that is, in order to secure the fulfilment of an obligation prescribed by law. That is because—applying the reasoning of the noble and learned Lord, Lord Bingham of Cornhill, in Gillan—it is an offence to obstruct or frustrate a search of the premises, and any detention is therefore to secure effective fulfilment of that obligation. The Joint Committee accepts that this appears to be the effect of the comments of the noble and learned Lord, Lord Bingham, in Gillan. However, as the committee commented in its recent report on the Offender Management Bill, it finds this to be a circular argument of potentially alarming breadth, and doubts whether the same view would be taken by the European Court of Human Rights. In the committee’s view, the exception to the right to liberty in Article 5(1)(b) has been given a very narrow scope by that court, to cover only those situations where a person is detained to compel him to fulfil a pre-existing, specific and concrete obligation which he has until then failed to satisfy. We doubt that it covers deprivation of liberty for the purposes of a search, where the only obligation prescribed by law is the obligation to co-operate with the search. We therefore doubt whether detention for up to eight hours during a search of premises is compatible with the right to liberty in Article 5 of the convention. That is a criticism, with respect, of a decision of our own courts, and a suggestion that that view would not be taken by the Strasbourg court. The committee has also frequently commented that conferring a power of this width, capable of interfering with the right to liberty, and leaving it to as yet unpublished guidance to regulate the use of that power so as to avoid incompatibility, is not satisfactory because it deprives the committee and Parliament of the opportunity to subject the scope of the power to the careful scrutiny its subject matter demands. We asked the Minister whether he would make a draft of the guidance available, and welcome his indication that he intends to make a draft of the guidance available during the passage of the Bill. It would be most helpful if that could be done for the previous issue as well as this one. I am not suggesting that the guidance would take statutory form, but it would at least be helpful for parliamentary scrutiny of this important Bill. I beg to move.