Clause 48 - Powers of inspectors

Justice (Northern Ireland) Bill – in a Public Bill Committee am 10:15 am ar 7 Chwefror 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs) 10:15, 7 Chwefror 2002

I beg to move amendment No. 191 page 27, line 42, at end insert—

'(ba) any person to state, to the best of his knowledge and belief, where any such document is to be found, or'.

I enjoy the exercise because I do not get it in any other shape or form, Mr. Conway.

The chief inspector of criminal justice should be able to require three things during an inspection: first, that documents be produced, which is covered in subsection (2)(a); secondly, that such documents be explained, which is covered in subsection (2)(b); and, thirdly, that a person be required to state where documents are to be found, subject to

''the best of his knowledge and belief'', so that the bland wording of subsection (2)(c) is clarified. The three steps for the documents produced are identification, explanation and information as to where they are to be found, to the best of a person's knowledge or belief. Thus there are three steps and three requirements.

I took a useful example from the Competition Act 1998, in which inspectors who seek to detect breaches of European Union competition rules have those three clear requirements when carrying out an inspection. A chief inspector of criminal justice should have powers equal to those of an inspector who seeks to find out whether competition rules have been breached.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

Perhaps I should have anticipated that I would need to consider the Competition Act 1998 to prepare myself for the debate, but unfortunately I did not. Perhaps, since the 1998 Act was drafted—

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

No. Since the 1998 Act was drafted, those who draft legislation —they provide an excellent service—might have taken the view that what the hon. Lady referred to as a ''bland provision'' is broad enough to cover the exact circumstances that she expects. I do not know whether that is the case, but I can speculate.

We could argue about the interpretation of the clause and what the words ''such document'' in the amendment refer to. By using that expression, the amendment could be seen as referring to the word ''document'' in subsection (2)(b). Those would be pedantic arguments, as the hon. Lady has made the reason behind the amendment clear.

My response to the mischief that the hon. Lady seeks to tackle is that the phrase

''that other information be provided'' covers the eventuality to which she refers and others. If it is appropriate for an inspector to know where such a document may be found, that is merely ''other information'' that they may require, and they have the power to ask for it in the broad terms of the clause.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

I cannot speak for my hon. Friend the Member for North Down, but it seems to me that the amendment would be appropriate in circumstances such as those that we have heard about in the recent Victoria Climbie inquiry. In that case, the local authority might have done its best to produce documents, but was not able to do so until they happened to turn up in a filing cabinet.

The amendment is useful, because it entitles the inspector to ask ''any person''. The Minister will correct me if I am wrong, but I guess that the powers of the inspector in the rest of this part of the Bill relate to the authority rather than to any person within or outside it. If an individual had left the employment of the authority, the amendment would permit that person to be asked. The other provisions of this part of the Bill suggest that the power is in relation to the authority rather than to a person who might have left the authority.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup 10:30, 7 Chwefror 2002

Order. While the Minister reflects on that, may I say that although the hon. Gentleman was making a perfectly valid observation, it would have been better made as a proper contribution to the debate. Interventions should be specific; I will call hon. Members to make their contributions in the fullness of time.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

Without wishing to contravene your instructions, Mr. Conway, subsection (1) provides that the powers relate to ''any premises''. I can see no such restriction elsewhere in the clause, but we may come back to the question on clause stand part.

I am seeking to address the argument put forward by the hon. Member for North Down. I have exhausted the arguments that I marshalled in anticipation of this debate, although I may find some hidden away in the Competition Act. I hope that she is persuaded by the arguments that I have put before her thus far.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

The Minister exhausted his arguments fairly abruptly in response to the hon. Member for North Down. If I may, I shall stretch them further, although I do not intend to repeat myself when we debate the other amendments to the clause. Indeed, I think that the amendments should be taken together. I rather prefer the work done by the hon. Lady in putting together this collection of amendments, and I urge the Minister to consider them carefully.

Even if the Minister was correct in saying that amendment No. 191 was otiose because subsection (2)(c) states that ''other information be provided'', it is better that it should appear in the Bill because it would then make clear what power was available to the inspector and what questions he could ask to which he should expect an answer. The Minister may be right about subsection (2)(c), but it is extremely important that the inspector's duties should be transparent and clear to those who are on the receiving end.

I do not want to delay the Committee. I think that the amendment is a careful construction. The hon. Lady and those advising her seek to make the clause stronger and clearer. Considerable work has been done on what defences are available for refusing or failing to supply the information to the inspector. I therefore hope that the Minister will take the amendments as a group and give real consideration to whether or not they would improve the clause. That is certainly my view.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

The hon. Member for Reigate is absolutely right that this series of amendments hangs together. Are we able to take them together?

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Yes. If the hon. Lady is content that we debate all four together, it will facilitate the Committee's progress. Is the Minister content with that?

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

With amendment No. 191, we shall debate the following amendments: No. 192, page 28, line 1, leave out 'commits' and insert 'is guilty of'.

No. 273, in page 28, line 2, leave out 'without reasonable excuse'.

No. 191, in page 28, line 5, at end insert—

'(3A) If a person is charged with an offence under subsection (3) in respect of a requirement to produce a document under subsection (3), it is a defence to prove—

(a) that the document was not in his possession or under his control; and

(b) that it was not reasonably practicable for him to comply with the requirement.

(3B) If a person is charged with an offence under subsection (3) in respect of a requirement—

(a) to provide information,

(b) to provide an explanation of a document, or

(c) to state where a document is to be found,

it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.'.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I appreciate the Committee's co-operation.

Amendment No. 192 is a probing amendment. Subsection (3) refers to a person who commits an offence, while subsection (4) refers to

''A person guilty of an offence''.

Is there intended to be any difference between the terminology? I suspect not.

The more important amendments that I tabled relate to the offences. When I first read the clause, I was struck by the fact that insufficient weight had been given to the seriousness of the offence of obstructing the inspector in the process of inspecting any of the organisations listed in clause 46(1).

It occurs to me that I have grouped all the amendments together now—I have begun to discuss amendment No. 195. Well, it seemed like a good idea at the time.—[Laughter.]

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Order. To help the hon. Lady, to whom we are being a little unfair in driving her so forcefully, I think we should deal with amendments Nos. 191 to 194 first before we discuss amendment No. 195, with which she may like to debate amendments Nos. 196 and 197. I hope that helps her—it certainly helps me.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

Amendment No. 195 shows the seriousness with which I view obstruction of the inspector in the course of his duties.

The clause does not deal with intentionally and wilfully destroying or hiding documents when the chief inspector is conducting an inspection. I am especially concerned about the level of punishment that will be meted out to a person guilty of an offence under subsection (3). The Bill is drafted so that a person

''guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.''

I do not pretend to be a criminal lawyer, but I think that the level of fine is equivalent to that meted out to someone convicted on a charge of drunk and disorderly behaviour. Intentionally or recklessly obstructing the inspector in the course of an inspection merits a much more severe punishment.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

It may help the hon. Lady to know that the Education Bill, which received its Third Reading last night, makes it an offence wilfully to obstruct Her Majesty's Inspector of Schools. A person guilty of that offence is liable, on summary conviction, to a fine not exceeding level 4.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Order. Before the hon. Lady responds to that intervention, which was in order, may I point out that we should stick to the first group of amendments rather than wander into a discussion of subsection (4), as we are in danger of doing? We shall come to that under the next group of amendments. Rather than taking a great raft of amendments together so that no one knows where we are, we should confine ourselves to amendments Nos. 191 to 194, if the hon. Lady is happy with that. We shall discuss the standard scale next.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

Am I right to assume that the points that the hon. Lady has just made primarily refer to amendment No. 194, which seeks to stiffen the offences or penalties for obstructing an inspection? Did her point not relate to that amendment, rather than to the group that comes after it?

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I know that the hon. Member for Montgomeryshire (Lembit Öpik) had the best of intentions in supporting amendments Nos. 194 and 273, but I do not intend to press those amendments. I shall explain why. I tabled the long amendment No. 194 because I wanted to toughen up the offence, or to tease out an explanation of what was meant by ''reasonable excuse.'' However, last night, when I examined that carefully constructed amendment—I am being sarcastic—I noticed that the final line states that

''it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.''

That is tautologous, so I do not want to speak to amendments Nos. 194 and 273. I have spoken to the other amendments in this little bunch. We need to consider the seriousness of intentionally obstructing the inspector during an inspection.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

In attempting to assist the hon. Lady, I managed to harm myself, and I apologise for talking about a later amendment.

I would be interested to hear the Minister's thoughts on the intention behind amendment No. 194, although it seems that the hon. Lady does not intend to press it to a vote. She made a very persuasive point, however, when she said that it would make explicit something that the Bill leaves to the courts to determine. Perhaps the Minister could consider that issue before Report stage.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I have sought in my contributions to this short debate to deal with amendment No. 191, so I shall not return to it.

If I understood the comments that the hon. Member for North Down made in support of amendment No. 192, she seeks to highlight the distinction between subsection (4), which uses the word ''guilty'', and

subsection (3), which uses the phrase ''commits an offence''. She will, however, not be surprised to learn that we made that distinction deliberately.

A person can be sentenced only when he has been found guilty, which is why subsection (4), which deals with sentences, uses the word ''guilty''. Subsection (3), however, describes the constituent elements of an offence, and it will be for the court to determine whether a person is guilty. That is why the phrase ''commits an offence'' is used. I have read numerous statutes in my life, but I have never before picked up on the fact—perhaps it was obvious—that they commonly make such a distinction when describing an offence and the penalty for it. I hope that that reassures the hon. Lady.

As I understand it, the hon. Lady does not want to press amendment No. 194, but it might be possible to deal with some of her concerns in the context of amendment No. 273. Subsection (3) includes the phrase ''without reasonable excuse'' because it does not deal with an absolute offence. When charged, people can offer the defence that they had an excuse based on reason for not preventing something that would otherwise have constituted an offence. The offence set out in the clause is not absolute, unlike some road traffic offences. One is guilty of such an offence if particular circumstances prevail in relation to the state of a motor vehicle, whether or not one could have prevented them. The onus is, therefore, on the person to prevent such circumstances from arising.

The inspector will mostly be seeking the co-operation of civil servants on public bodies, who will have a duty to co-operate. Someone who has an excuse based on reason for being unable to respond to a request for information from the inspector could offer it as a defence. That is why the phrase ''without reasonable excuse'' is included. We do not seek to create an absolute offence or to stipulate that a person is guilty of an offence where information is not passed on, whether or not that is their responsibility.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight 10:45, 7 Chwefror 2002

I would like to go back to the analogy that I used in respect of amendment No. 191. One of the authorities covered by the inspector commits an offence by failing to provide a document without reasonable excuse. That document has been taken home by a former employee of the authority. The authority has a reasonable excuse for not producing the document, because it neither has it nor knows where it is. However, I wonder why the inspector should not be able to go and extract it. That seems to be the weakness of clause 48 in general.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I do not accept that that is a weakness. In his earlier contribution, the hon. Gentleman suggested that the clause was designed to allow the inspector to exercise his powers in relation to authorities but not individuals, when it is clear from the provisions that a person commits the offence. There is anticipation that individuals as well as organisations may be required by the inspector to respond. That is why subsection (3) uses such phraseology.

We may need to return to this matter at some stage, and I would be happy to do so, but at the moment I am not persuaded that there is a problem. I do not have anything further to say about the amendments. We should move on to consider the nature and scale of the penalty, if you will allow that, Mr. Conway.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Order. Before I call the hon. Member for North Down to wind up the debate, I should make it clear that, if she were to seek to withdraw amendment No. 191, and the Committee were to agree, that would not prevent her from pressing any of the other amendments in that group to a Division, if she so wished. I expect her to give an indication of her intentions in her concluding remarks.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I understood that the hon. Lady had said that she did not intend to move amendment No. 194. That is why I structured my remarks in the way that I did. I did not address the matter in detail.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

The trouble with messing around with groups is that it can confuse everyone. The debate formally concerns amendment No. 191, but the other amendments have been grouped with it, so amendment No. 194 has not, technically, been moved. It would have to be formally moved if it were to be pressed to a Division. As far as the Chair is concerned, it has not been moved as such, even though the debate has centred on it.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

Thank you, Mr. Conway. I also thank the Minister.

I recommend, as bedtime reading, the Competition Act 1998. It is a useful way to get to sleep—at least in my experience. To recap, I do not propose to divide the Committee on the amendments. The Minister kindly said that he may return to the matters. I suspect that that was a commitment to do so. We may have difficulties when we re-read this morning's discussions, but he has adequately addressed the issue for my purposes. However, when we discuss the next group of amendments, I shall want to return to the seriousness of obstructing the inspector in the course of his inspections. Therefore, I am happy not to press amendment No. 191 to a Division and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 195, in page 28, line 6, leave out from 'subsection' to end of line 7 and insert

'(3)(a) is liable—

(a) on summary conviction to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to a fine'.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

With this we may also take the following amendments: No. 196, in page 28, line 7, at end insert—

'(4A) A person is guilty of an offence if, having been required to produce a document under subsection (2)—

(a) he intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or

(b) he causes or permits its destruction, disposal, falsification or concealment.'.

No. 197, in page 28, line 7, at end insert—

'(4B) A person guilty of an offence under subsection (4A) above is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.'.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I tabled the amendment so that I might ask the Minister why the offence of intentionally obstructing the chief inspector of criminal justice will attract such trivial punishment. Frustrating the chief inspector should be seen as a serious offence, but that is not reflected in the Bill. The penalty under clause 48(4) is a fine not exceeding level 3 on the standard scale, which is also the statutory maximum punishment for being found drunk and disorderly.

We should not trivialise the seriousness of obstructing or frustrating the chief inspector during his inspections. I believe that falsifying, destroying or concealing information, intentionally or recklessly, should attract a serious penalty. That is why amendment No. 197 proposes that the punishment for such offences should include the option of imprisonment for a term not exceeding two years. I am not suggesting that that term should always be imposed, but that it should be a maximum.

I seek some recognition from the Minister that the matter is serious. We should send out the message that co-operation will always be expected when the chief inspector carries out an inspection of any of the organisations listed in clause 46(1).

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I rise to support the hon. Member for North Down and I look forward to hearing the Minister's remarks about amendment No. 195. I am slightly confused by the language used in the amendment because it differs from that used in amendment No. 197. The hon. Lady's amendments refer to a statutory maximum, but would it be better to refer to level 5, and is that the statutory maximum? I would be grateful if the Minister would assist me on that.

The amendment raises an issue about consistency across the piece, which was illustrated by the earlier intervention of my hon. Friend the Member for Isle of Wight. It seems bizarre that someone who obstructs the investigation of a school inspector should be liable to a level 4 fine, but that someone who obstructs an investigation surrounding the issue of justice should be liable to only a level 3 fine. That appears to be inconsistent, so I should be grateful if the Minister would reflect on the matter and consider whether an amendment should be tabled on Report. In my judgment, a level 5 fine or the statutory maximum, as proposed by the hon. Lady, would be more appropriate.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

As the inspection regime depends on a level of deterrence, it seems sensible to toughen up the consequences of trying to cheat the system. Does the Minister feel that that is something for which he could

find space in the Bill, either now or on Report? The onus is on the Government to explain why they feel that the current penalties are sufficient to achieve the intended deterrent.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

From the conduct of the debate, I gather that Committee members understand how the fine structure is applied across offences. When levels of fines were introduced into the system, they were designed to address the issues of proportionality and recording the seriousness of offences—albeit in broad groupings—that the hon. Member for North Down raised. I am interested in her reference to the offence of being drunk and disorderly. In my experience of representing clients who have been charged with it, that offence is a broad church—it is a bit like breach of the peace in that it covers a wide range of behaviour. Being drunk and disorderly cannot be described as a trivial offence per se, although it might be in certain circumstances. The objective of the amendments is germane to the structure of fines, which is designed to narrow down the opportunity for disparity and disproportionality between fines for different offences. It also makes it easier to increase or move fines, so that it is not necessary to amend a whole range of statutory offences in relation to penalties; that can be done by reference to penalty provisions in relation to standard fines.

In response to the hon. Member for Reigate, I confirm that the phraseology and shape of the amendments are correct. The statutory maximum is level 5, which is £5,000, but that relates only to a summary conviction. There is no statutory maximum in relation to convictions and indictments, so the wording is entirely correct and reflects the penalties available.

The onus is, of course, on the Government to show the argument in relation to proportionality. I pray in aid the fact that the choice of the level of penalty and the decision not to include imprisonment were informed by the penalty that was passed by Parliament in 1998 in relation to a directly analogous set of circumstances, namely obstruction of an inspector of a juvenile justice centre or attendance centre in Northern Ireland. We adopted those penalties in the Bill knowing that they had been considered appropriate in that situation.

I take on board what the hon. Member for Isle of Wight said. As he knows, the Education Bill is not yet law. I also accept the point of the hon. Member for Reigate. I am not pretending that I was aware of it, and I am grateful to him for bringing it to my attention. However, the Bill is not yet law. We may need to revisit these matters, but I do not know whether Parliament will retain that penalty in the measure. I prefer to look for support in fixing penalties at a certain level by referring to existing legislation.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

As the Minister has said in other debates, we are dealing with an environment in Northern Ireland in which there is particular incentive for some organisations to try to pervert the law. In the past, exceptions have been made for the Province in that regard. Does the Minister not feel that this is one

of the occasions on which we might wish to introduce a tougher package of penalties because of the particular situation in Northern Ireland?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 11:00, 7 Chwefror 2002

I accept the hon. Gentleman's reasoning, but not what he said. We are dealing with public agencies and, by and large, with civil servants. I have answered the proportionality question. In doing so, I was informed by a decision, which is no more than three years old, of this Parliament on the level at which such fines should be fixed.

Let me deal now with amendments Nos. 196 and 197. Amendment No. 196 is designed to set out a particular kind of offence. The hon. Member for North Down is concerned that the Bill does not already cover certain behaviour. I can reassure her that subsection (3) already covers it. If a person were to do the sort of things that the hon. Lady envisages, that would constitute a clear, intentional obstruction. If it could be proved, it would lead to that person being convicted of an offence. I do not think that the hon. Lady intended to do more than elicit the reassurance that that sort of behaviour was already covered.

I have already dealt with the issue of the penalty raised by amendment No. 197.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

I am grateful for the Minister's explanation. Just as he is not an expert on the Competition Act 1998, I was not reading the Education Bill last night before I went to bed. However, I would like to refer back to existing education legislation. The Education Bill has just received its Third Reading. The paragraph to which I referred deals with the obstruction of an inspector conducting an inspection of an independent school. Existing legislation already makes it an offence to obstruct an inspector while he is conducting an inspection of a maintained school, and I would be surprised if the fine for that offence was not equivalent to that for the offence that has yet to become law.

I wonder if the Minister might consider that and, more particularly, whether this level is appropriate for this purpose, bearing in mind the distinction—again, I do not speak from a great deal of knowledge—between a juvenile justice centre, which is perhaps equivalent to a school, and bodies such as the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland, which is more equivalent to a local education authority, though it is larger and considerably more important in the lives of the people of the Province.

For those reasons, I hope that the Minister will find time between now and Report stage to re-examine the level of the fines. There is a good case for doing so.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am anxious not to expand the debate or lengthen it unnecessarily, but I do not want to be seen as misleading the Committee or leaving it with a wrong impression. The debate is interesting and raises questions about how one supervises the proportionality of penalties to offences. All of us could, no doubt, talk at length on the matter. The Government have a duty to keep such matters under

review. I will feed this debate into that process, particularly the observations of the hon. Member for Isle of Wight about the apparent disparity between inspection in education and the Bill's provisions on inspection in the area of criminal justice.

My argument is that recent decisions by Parliament on Northern Ireland are not directly analogous, because if they were we would not need this inspectorate. In analogous circumstances, however, there is a strong argument for proportionality in the Bill. The wider issue must be dealt with in a wider context. I am not giving an undertaking to the Committee that I shall bring the issue back on Report, but there is nothing to stop other Committee members raising it.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I find it disquieting, to put it mildly, that the Minister has read my mind. I was going to ask him whether the phrase, ''intentionally obstructs a person'' in clause 48(3)(b) includes the falsification, destruction or concealment of documents. He pre-empted that by explaining that ''intentionally obstructs'' covers those issues. I am happy with his explanation, which was welcome.

The other issues that concern me are the level of fines and the seriousness of obstructing the chief inspector in the course of an inspection. The Minister gave a helpful and comprehensive explanation of the background to the clause. There is a previous example of an inspection of a juvenile justice centre in Northern Ireland, and I must add it to my reading list.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank the hon. Lady for giving way. I have listened with great interest to the points made by her, the Minister and other members of the Committee. The point that she makes is correct in that these are serious offences that should be dealt with. I am not competent to debate the legal issues, but as a lay person I have a feeling that obstruction in this area is serious, and that it should be treated seriously. I ask the Minister take the matter seriously, as he is doing.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

The hon. Gentleman is correct: we all take the view that it is a serious matter to obstruct a chief inspector carrying out an inspection of any of those listed organisations. However, I must say with knowledge of the jurisprudence of the European Court of Human Rights in Strasbourg that there is a great emphasis on the word ''proportionality'', and the punishment must be proportionate to the offence. I would not want us to rush into a series of cases in which this legislation was struck down on the grounds that it is disproportionate to the seriousness of the offence. I appreciate his intervention, but the proportionality principle is fundamental, and it is recognised in the Bill. The discussion has been useful, and we have extracted a lot of background information from the Minister, which is always helpful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

I should like to pursue the question of whom the inspector is not allowed to inspect. The Minister explained that the Bill in no way restricts the inspector's sphere of operations. I am uneasy with his explanation because, although the Bill does not restrict the inspector's sphere of operations, I wonder how the courts would interpret its provisions if Her Majesty's Inspector of Criminal Justice in Northern Ireland knocked on my door and asked questions about the inspection of the Prison Service. I would be entitled to say that I was not prepared to have him in my house, or answer his questions, and that should be an end to the matter. That is an obvious distinction. Some people associated with the Prison Service in Northern Ireland would feel the same.

Inspectors may feel that they have knowledge pertinent to their inspections, despite the fact that they are no longer, or never were, employed by the Prison Service. For very good reasons, the widow of a former member of the Prison Service may resist being questioned about the activities of her husband in that service, and the way it was being run. In those circumstances, a court would find it hard to say that that individual was automatically subject to the inspector's powers. The inspector may have to go to court to demonstrate that he has those powers. The individual may want to go to court to demonstrate the opposite.

The powers are subject to somebody, who would probably work for the institutions described in clause 46 (1)(a) to (j). If one used to be employed by the compensation agency, the inspector would have to prove that he had a good reason for asking questions and demanding papers. In supplying that reason, he may reveal elements of his line of inspection. I am expressing unease; I want the Minister to reflect on that and consider whether it is appropriate to give an inspector broad powers without specifying their extent. The inspector should have those powers. It is right that he could ask a former serving member of one of the institutions what happened to a particular document, for example. However, it would be helpful if that were clearer.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am grateful to the hon. Member for Isle of Wight for allowing us to return to that point, which I thought we would return to in the context of clause stand part. His contributions have been helpful because they have outlined potential circumstances. Every time he gets to his feet, he produces another set of circumstances, as he imagines the possibilities. He demonstrates the futility of trying to anticipate every set of circumstances. The Bill is a substantial document. It would be twice the size if we were to cover every potential circumstance relating to inspections.

The draftsmen, and the Government, intend to provide inspectors with the relevant powers, knowing that they will be subject to the sort of arguments that the hon. Gentleman imagines will take place in extremis on doorsteps or in courts. It is for the courts to interpret the extent of the inspector's powers and functions. That will depend largely on circumstance. It is clear from the context that the premises that are referred to are intended to, and probably will, be

restricted to premises of those in the list of organisations subject to inspection. I do not anticipate that ''premises'' will be interpreted more widely than that, but I can figure a set of circumstances in which premises are no longer occupied by such an organisation, but a store of files has been left there. Common sense tells us that the inspector would not be unreasonable in arguing that his powers extended to those remaining files—in a situation similar to the earlier analogy of the hon. Member for Isle of Wight . It is right to have such flexibility, because we cannot anticipate every circumstance.

Subsection (3), which refers to persons who can commit an offence, was clearly drafted with employees in mind. I will refer to the analogy that the hon. Gentleman used of ex-employees taking documents home. The powers relating to documents are intended to be used for documents and the information therein. We home could get into an interesting argument about whose property the documents are if they are taken by an employee who becomes an ex-employee; he or she may forget to return a briefcase of documents to the agency, or perhaps intended to hold on to it because it contained information that they did want to see the light of day.

The powers clearly relate to the documents and, although I do not ever expect to be instructed by the inspector to argue this, I can easily construct the framework of an argument for the court, and for the doorstep, that says that a power in the Act allows the inspector, or his agent, to have access to documents. Unless criminality or malpractice is being covered up, I do not imagine that anyone will have to go to court. I want to reassure the hon. Gentleman that the framework and the context of the powers are restrictive enough not to have someone going around Northern Ireland with powers over any person. The courts will be sufficiently informed that, to make the appropriate decisions at the margins, there may need to be arguments about how far the powers extend.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight 11:15, 7 Chwefror 2002

I understand that my comments may appear to be fanciful flights of my imagination, but the problem is that situations already arise in the case of, say, the local government ombudsman in England. He is constantly frustrated in the investigations he attempts by the fact that staff have left the local authority and refuse to appear. If the situation is something as insubstantial as that in the Isle of Wight, it is likely to be far more substantial in an allegation brought or an inspection undertaken in Northern Ireland.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The hon. Gentleman is unduly sensitive. His were not flights of fancy, but interesting issues and I was congratulating him on his ability to use his imagination in debate to figure circumstances that could have basis in reality. I understand his analogy, but we cannot cover every eventuality in the Bill. If he knows of a specific eventuality that would not be covered except by statutory provision, I shall be happen to debate it in the context of an amendment. Statute law does not seek to cover every eventuality,

but to create a framework in which a statutory authority works, and powers to allow that authority to carry out inspections to the necessary extent. That is what the clause seeks to do.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

I appreciate the Minister's words, and accept the explanation that, in his view, there is sufficient power.

Question put and agreed to.

Clause 48 ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.