Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): I welcome Lisa Boal, with whom you are all familiar. Lisa is with us fairly frequently now. Hello, Lisa.

Ms Lisa Boal (Department of Justice): Hi.

The Chairperson (Ms Bunting): Lisa is the head of Police and Criminal Evidence (Northern Ireland) Order 1989 policy and legislation branch. I also welcome Denise Bloomer. Denise, thank you for being with us. Is this your first time at the Committee?

Ms Denise Bloomer (Department of Justice): Yes.

The Chairperson (Ms Bunting): You are very welcome. We are nice, I promise.

Ms Bloomer: It is as if I am doing my GCSEs. [Laughter.]

The Chairperson (Ms Bunting): Famous last words. Right. Denise is also from the PACE policy and legislation branch. Ladies, you are very welcome. Thank you very much for taking the time to be here. You know that we have queries around this. My intention is to allow you to make any remarks that you wish to make, and then we will open the floor to members, who still have concerns about the codes. If you want to say anything first of all, I will hand the Floor to you.

Ms Boal: Certainly. Thank you, Chair. We would like to thank the Committee for the opportunity to be here again to discuss the PACE codes.

As the Committee is aware and as the Chair has pointed out, we seek approval for the updates that we propose to the PACE codes. The updates and changes that we propose are the focus of this exercise. We previously had the opportunity to discuss the codes with the Committee on 3 April, and some follow-up questions arose from that session. We responded to the Committee on those, and we hope that the Committee found that response helpful.

We are keen to keep on track and hope to lay the codes by 5 June to make sure that we can bring them into operation by 1 July. It is important that we make sure that the codes are kept up to date and that they reflect legislative changes that have been made to legislation, including counterterror legislation and the National Security Act 2023. It is important to make sure that the codes are up to date to ensure that the appropriate safeguards are in place for people detained in custody. It is also important to ensure that they are there to properly support the effective operation of policing powers.

The Chairperson (Ms Bunting): Sorry, Lisa, will you just go over that again? Why is it important that it is done?

Ms Boal: It is to make sure that the codes remain up to date and to reflect the changes in legislation, particularly counterterror legislation and the National Security Act. It is important to make sure that the codes are up to date and reflect those powers in order to ensure that appropriate safeguards are in place for people detained in custody and to support the police when they deploy those powers.

The Chairperson (Ms Bunting): OK.

Ms Boal: Members will be aware that, since our last session on 3 April, the Supreme Court ruling in the case of For Women Scotland Ltd v Scottish Ministers raised a number of issues around sex and gender and, particularly, the definition of "sex" as it applies to the Equality Act 2010, which applies in England and Wales. The Department awaits guidance from the Equality Commission to help it to consider the potential implications of the ruling on the Department's policies, bearing in mind, of course, that Northern Ireland has its own equality anti-discrimination legislation, so we have to understand more fully the implications of the judgement here. That said, we sought legal advice on any particular implications that the judgement may have on the PACE codes, particularly annex L to PACE code C, which is replicated in codes H and I. As a result of that, it was established that paragraph 3, which was in annex L, would no longer be a correct description of the position and would need to be reviewed.

We are keen to remain on track to get the revised codes in place, in particular to make sure that the updates to code H and the new code I are in place. Bearing in mind that a change is required to that paragraph, we want to take the time to make sure that we get that change right. We will wait to see what the Equality Commission guidance says and what changes, if any, the Home Office may decide to make. We do not want to rush into making the changes; we want to take a bit more time over it. That is why we propose, at this stage, to amend paragraph 3 to read "under review" to give us time to consider what changes may be made, to determine whether any other changes will be required to reflect the Equality Commission guidance and to get a better understanding of the judgement. That is what we propose to do as an interim measure. We shared the draft with the Committee. I appreciate that that came at quite short notice, but we had our position clarified only this week, and we wanted to make the Committee aware of the change at an early stage to inform its consideration and to keep ourselves on track with getting the codes in place within our intended timescale.

The change that we propose at the moment is an interim measure. We were already planning to do further work on the issue of strip-search once we got the updates in place. The initial focus is on the provisions relating to children and young people, but we will obviously have to look at the implications of the Supreme Court ruling, taking account of the Equality Commission guidance, and to look at that more freely. We want to do that as an exercise in its own right and to engage with stakeholders as part of that. There would then be a period of public consultation. That is the interim position that we have taken on that and the reason why we have approached it in that way.

We are happy to answer any questions that we can from the Committee to help to inform its consideration of the SL1.

The Chairperson (Ms Bunting): Before we launch into a discussion on the issue, I remind folks that, once you start to read the codes — 600 pages is a fair whack to get your heads around — it is easy to get into the weeds of the issues as opposed to focusing on the changes. We need to focus on the changes. I also remind members that this is not our last bite of the cherry with the PACE codes. They will have to be revised again as a result of the Justice Bill. That does not preclude anybody from asking for clarification and so on, but the focus today needs to be on the changes.

Lisa, thank you for clarifying the issues that you raised around codes C, H and I. I think that there are references to strip-searches in code D as well. We will come on to a conversation about that, no doubt.

Mr Beattie: Thank you very much, Lisa. That was really useful. You focused on the issue of gender and the changes that were included in our tabled pack. When you originally did the PACE — it has been 10 years since it was last renewed, I believe — did you get advice from the Equality Commission for Northern Ireland on what you put down on sex and gender? If so, do you still have a copy of that? Can we see what that guidance was?

Ms Boal: To be honest, I was not in post at the time. I do not know whether we have that on file or access to it

Mr Beattie: OK. It would be useful if you could get that, given that we now await guidance from the Equality Commission for Northern Ireland. I want to know whether we had it in the first place or whether we are waiting for it. Of course, it will just give guidance. My concern, Lisa, is that, in the meantime, we have deleted various parts of that paragraph about the law and gender and sex, but we have not amended any of the follow-on paragraphs, so I am slightly concerned about where police officers will feel that they stand.

Let me give you an example: if a male presenting as a woman is arrested and they do not have to produce a gender recognition certificate, where is the protection for the police if they decide to go one way or the other? At the minute, when I read the PACE codes, they say, "If the person says they are": in other words, if they self-identify. My concern is that, for example, if a male presenting as a female has to be searched, as it stands, a female would have to search that biological male. How do we get some clarity and protections in there right now?

Ms Boal: We are waiting for the Equality Commission guidance to see whether that offers any clarity or guidance. The National Police Chiefs' Council (NPCC) is also working on guidance.

Mr Beattie: Yes, but what do we do in the interim? If that paragraph said, "Under review: the Chief Constable will make operational decisions until guidance has been received" or "until a decision has been made", I could understand it. However, what it basically says is, "We will just put it under review and leave it to the police officers". If the guidance comes back and you change this in a month's time but, in the meantime, the police have done something that is outside that scope, will they be protected? The question really is this, Lisa: we have waited 10 years, so why do we not just wait another three weeks so that we can capture all of the information fully and properly to ensure that the police have the guidance to enable them to perform their role properly?

Ms Boal: The deleted paragraph gave a description of the Gender Recognition Act 2004 that, in light of the judgement, is probably no longer correct. The rest of the annex details the steps that are to be taken to determine whether a person should be treated as a male or a female and points out that those decisions should be recorded. That offers the police a bit of protection, because they would record the basis of their decision and why they had come to that decision. It is reasonable to expect that the police will review their procedures and proceed in the best way possible to preserve the dignity of the person being searched and the dignity and rights of the officers concerned.

Mr Beattie: I kind of get where you are going, Lisa, but it is far more nuanced than that. People may have transitioned; people may be in the middle of transitioning; or people may not be transitioning but are simply cross-dressers. For example, if somebody is in the middle of transitioning and has been living as a woman for, say, just a year, their driving licence may still identify them as male. What will police officers do if, when trying to identify an individual, a driving licence says that they are male but they clearly present as female?

Ms Boal: It will come down to a case-by-case decision based on the situation as it presents itself and the judgement that the police make about the individual as they present to them.

Mr Beattie: The police may make a decision based on what they believe to be right, regardless of what is in front of them. If we bring out new guidance, the "under review" will suddenly come out. If the new guidance is the absolute opposite of what the police have just done, how will they not be liable to somebody taking a legal case against them?

Ms Boal: The police would act on the basis of the guidance as it stands now.

Mr Beattie: But the guidance that underpins it all is under review, Lisa. That is the point that I am making: it is just under review. It is not as if we cannot give interim guidance. The Equality and Human Rights Commission in England and Wales has given interim guidance. Can we not give interim guidance just to ensure that police officers have a working platform from which to operate?

The notes for some of the codes say that the Chief Constable has to bring out operational guidance to reflect what is in front of him. However, what is in front of him is under review. Surely if it just said, "Under review. Operational control has been handed to the Chief Constable to give guidance to his police officers", that would make more sense.

Ms Boal: There is only one paragraph that is under review. The rest of the annex is still there as guidance. That is contained in —.

Mr Beattie: It is, Lisa, and I have read it on a number of occasions. It is so ambiguous, however, because there is nothing underpinning it. The piece that has been deleted is what underpins the rest of it. That is my concern: nothing underpins what is in the annex, so the police have nothing to go back to for reference. That is why it heads up this piece, because it is the underpinning paragraph.

I understand what you say. I do not want to dwell too much on this; I am just laying out my concerns. Due to those concerns, I cannot support the update. I am sure that others may have views on that.

I am sorry for putting you on the spot, Lisa: I did not intend to do that. Thank you very much for your answers.

The Chairperson (Ms Bunting): It is our role to interrogate this, Lisa. Ultimately, this is another form of law that is being set out. I am not clear that "under review" cuts it for us either, to be honest. If the PACE codes have not been reviewed since 2015, that is a 10-year period in which, undoubtedly, there have been updates to the law. Yet, it seems that this is being rushed through instead of just trying to bring it all as one piece.

We need to get the guidance from the Equality Commission and the NPCC. I am also aware that the College of Policing is looking into the issue. It seems to me that, in terms of process, it would be much better to hold and bring forward the thing when it becomes clear. I do not think that any of us anticipate swathes of trans people suddenly being arrested. The issue is this, however: were somebody to be arrested, they need to be clear as to what the ground rules are, as do the police. At this stage, the rules say that the police must not ask somebody whether they have a gender recognition certificate. More than that, then, if there is any doubt, they are to ask the person what their preference is: is that not the idea? After that, there are references to checking whether the person requires menstrual products. Then, there is reference to what the predominant lifestyle may be. At that point, if somebody indicates their preference but the police believe their predominant lifestyle to be different, that puts the police and the person on a collision course.

In all of this, we have to remember that the police are subject to complaints to the ombudsman that can hang over their heads for a long time. The PACE codes need to be clear, and there is no room for "under review". Perhaps you can give us some information today, but you say that you are in discussions and are engaging with the Equality Commission and the NPCC and so on and that you will bring updates. We have not, however, been given any time frame for when those updates may take place. Can you give us some indication of that time frame?

Ms Boal: It is not possible to do so at the minute. We need to see when we get the various pieces of guidance. I do not know how long it will take us to work that through, consider all of the implications and engage with the PSNI and other stakeholders. If we were to bring forward further updates to the codes, we would need to do a public consultation on them. You can see how that could take quite a period of time.

This is difficult for us all. We want to get the updates to the codes through, particularly those related to codes H and I. Other changes are being made across the codes. We are trying to strike a balance between getting those updates in place and taking the time to look at the issue of strip-searches. The paragraph that we were deleting was a description of the purpose of the Gender Recognition Act, but, as the annex explains, it is not lawful to ask a person whether they have a gender recognition certificate. The guidance is about trying to establish whether a person should be treated as male or female for the purposes of the code. That reflects the position at the moment. We are trying to keep something in place while bringing forward updates, where they are required, to ensure that updated safeguards are in place for people in custody. That is the balance that we are trying to strike in all of this.

The Chairperson (Ms Bunting): We completely understand the balance that you are trying to strike, but, for us, the balance is slightly different. We would prefer the process to be different. We also understand that they are not small issues, and we know that you need to work through them. The Supreme Court judgement was a significant judgement, but it seems to me that, in the interim period, the gap is too great and the directions are not sufficiently clear for the PSNI. What right does an officer have to say, "Well, I don't want to conduct that search"?

Ms Boal: As we understand it, that would be an operational matter for the Chief Constable, because, obviously, the officers are under his direction and control, but we understand that, if there was a particular concern, the officer would have the right to object and not carry out the search.

The Chairperson (Ms Bunting): The problem is that, if all of the officers object, the people left are people by whom the person in custody does not wish to be searched. It is not straightforward, and I am not sure that "under review" works for us either.

Mr Bradley: In order to safeguard people in custody and the officers and for clarity, this thing should come back to us as a complete item, not with parts of it marked as being "under review". We cannot accept it in its current form if there are bits of it that are "under review". It is too open-ended. There are too many things that could go wrong by not having clear definitions of how it should be operated.

The Chairperson (Ms Bunting): For everybody concerned.

Mr Bradley: Yes. It is not for any particular person or other; it is for everyone.

The Chairperson (Ms Bunting): Lisa, for us, there is an added risk because of the negative resolution procedure. I think that our preference is to have in here whatever discussions we are going to have with the Department; they do not need to go to the Floor. That is why we were hopeful that the Department would take on board our concerns around the gender issue. Obviously, since we last spoke, there has been the judgement, which is fairly clear.

We have discussed the gender issue enough. Does anybody have anything further on the PACE codes?

Miss Hargey: I sent questions and stuff that, I know, will take a bit of time to respond to. There is some outstanding information from the evidence session that we had a few weeks ago, Lisa. You said that you want to bring in the PACE codes on 1 July. If we wanted to take our time to look at the issues and wait for information to come back, what impact would that have, and what would the Department do in that scenario?

Ms Boal: In that scenario, the codes that are already in place — codes A to H — would remain in place. Those codes do not reflect some of the more recent counterterror powers. For example, section 43B of the Terrorism Act 2000 is not covered in the codes that are currently in place. Code I, which concerns the National Security Act 2023, would also not be in place, so there would be a gap in the codes: the provisions in those codes would not be in place to ensure that those protections were up to date for individuals and to support the police in using those updated powers. There would be a gap that would persist.

Miss Hargey: Can the NIO move on that?

Ms Boal: No.

Miss Hargey: Is that because they are reserved matters?

Ms Boal: Legislation and policy are the responsibility of the Home Office, but the duty is on the Department to publish the codes.

Miss Hargey: The National Security Act became law in 2023. You talked about changes to the Terrorism Act, but that became law in 2000. What has come forward since then pertaining to that Act that has meant that the codes are only being amended now?

Ms Boal: The Terrorism Act 2000 has been amended by more recent legislation.

Ms Bloomer: Section 43B powers in the Terrorism Act were introduced in 2022. We have been trying to get the codes through. We had them ready to go out to consultation, but the National Security Act was then passed so it made sense to add code I to it and bring them forward as a package.

Miss Hargey: I have concerns, which I outlined at our last meeting, on stop-and-search zones. Have those powers been enacted here? Have they been used?

Ms Boal: I do not have that information to hand. We would probably need to ask the police whether those powers have been used.

Miss Hargey: One of the questions that I have put in pertains to code A and articles 10 and 11 of the European Convention on Human Rights. When I asked some of those questions at the meeting on 3 April, Lisa, you said that, at that point, the Department could not answer all the questions relating to code A because it pertained to public order and counterterrorism elements and that you would need to look at that. My concern is the latter. In a letter dated 30 April you gave more information on public order but nothing on national security or counterterrorism with regard to powers on stop-and-search zones being enacted. I would like more information on whether those powers have been used in that scenario and what safeguards have been built in for when they are. I agree completely that we need the codes and a legal framework and safeguards, but they have to be used fairly, lawfully and consistently. I am trying to judge them on those aspects, so I am keen to get that information.

At the meeting on 3 April, I also raised the issue of press freedom. There was correspondence received on that issue, including from the Equality Commission, which wrote back to state that it was keen to work with the Department on that. We have to have a legal framework and safeguards that are fair, lawful and consistent. The Investigatory Powers Tribunal found that the PSNI acted in an unlawful manner and breached human rights. Your response stated that that ventures into the area of national security, but we need to know what the safeguards are if the PSNI act unlawfully in that circumstance. Code B matters have to go before a judge, but are there other circumstances in which the intelligence services can request information? For example, what if the PSNI acted unlawfully in the retrieval of information? On the back of the judgement by the Investigatory Powers Tribunal, has the Department assessed what additional safeguards need to be put in place in relation to the codes?

I am sorry, I know that that is a lot to ask.

Ms Bloomer: The judgement and the investigatory powers are completely separate. That is separate legislation, and there is a separate code of practice for it, so it does not fall under the remit of the PACE codes. Therefore, that would be a matter for the NIO.

Miss Hargey: If it falls to the PSNI to act fairly and lawfully and the tribunal has found that it has not, what are the safeguards?

Ms Bloomer: The original search warrants. That is why we added clarity to make sure that the original search warrants go to the right tier of the judiciary. We worked with the Law Society on some feedback from the consultation about material that is journalistic or legally privileged to make sure that it goes to the right tiers. Those safeguards were put in and clarified in code B.

Miss Hargey: What about the lawfulness and consistency of the police's actions and the balance of rights? If the police say that national security powers have been engaged, their actions do not fall within the remit of code B, so where is the oversight? If you are saying that there was a determination and a separate code of practice, can we see it? Can that be provided?

Ms Bloomer: That is the code of practice for the Investigatory Powers Act 2016, which was published by the NIO or the Home Office.

Miss Hargey: Does that mean that there is no impact on these codes when it comes to lawful or unlawful behaviour of the PSNI?

Ms Bloomer: If the PSNI uses those powers, it abides by the code of practice for them. It is like the Justice and Security Act 2013.

Miss Hargey: We will need to come back to that, because there are still a lot of unanswered questions.

I turn to another issue. At the meeting on 3 April, we requested information about audio and visual recordings. I understand that, in the context of visual recordings, anything that is passed on or retained is used in evidence. There are redactions when it comes to the identification of PSNI officers in certain cases, but there was still a concern about visual recordings of other parties who are in the room, be they legal representatives or appointed persons. If an audio recording is not used in evidence, is it destroyed or kept somewhere on a system? I did not get clarity on that point.

Ms Boal: Whether or not an audio recording is retained is a matter for the police, because they are the data controllers. It is for them to explain how that is handled.

Miss Hargey: Chair, can we ask the PSNI what happens in that scenario?

The Chairperson (Ms Bunting): Do members agree that we do that?

Miss Hargey: More broadly, I am not content. I do not have the answers to all my concerns. We want to get to a point where the appropriate safeguards are in place. I have particular concerns about the amendments to the new code I and code H, which, as you said, pertains to the National Security Act, as well as to the Terrorism Act and subsequent amendments to it. I am concerned about the draconian nature of aspects of those pieces of legislation. I am also concerned by the fact that the legislation is about reserved matters, so the Assembly has had no oversight or scrutiny of them. I am also concerned that, at the evidence session with the Human Rights Commission on 3 April, its representatives said that it had had no input to the drafting of those pieces of legislation or as they moved through Westminster. I have concerns about how the national security powers are applied and the safeguards or oversight of those, because, when we asked questions, we were told that it was a national security matter and it was for others to answer them. I am not satisfied about the protections that exist. I also need more clarity in answer to my questions on the matter.

The Chairperson (Ms Bunting): OK, Deirdre. Thank you. Does anyone have anything further?

Mr Baker: Others have asked questions about it, but I would like help with my understanding code I. Under code I:

Code I states:

How is that human-rights compliant?

The Chairperson (Ms Bunting): Are those two things compatible for a start?

Mr Baker: That is the new code —.

Ms Bloomer: Again, we go back to code H. Those powers come from the Westminster legislation. Westminster will have been through its own scrutiny. I appreciate that the Human Rights Commission said that it had no consultation because it was not a legislative consent motion. That is normal practice when Westminster legislates: MPs debate it; the Committees scrutinise it; and the law is made. We have no role in that.

When we were making the code changes and proposals, we worked closely, and the Human Rights Commission said at its evidence session with you that we worked closely, we engaged with it, we shared early drafts of the codes and we had further engagement with it. We went back and forward, and it was content with the proposed changes.

As I said, we do not have any input into the Westminster legislation. The codes reflect what is in England and Wales and has been in place. Code I has been in place for at least a year, and there has been no challenge to it. The Northern Ireland Human Rights Commission has no concerns about what we propose. That is as much assurance as I can give you.

Mr Baker: If detainees can be held for 96 hours, they must be visited by appropriate healthcare professionals at least once every 24 hours. Can a custody officer overrule that?

Ms Bloomer: I saw that question, and I had a brief look at the codes and the legislation. There is nothing that I can see that means that they can overrule it, but, if there is something in particular that you are aware of, we can look at that in slower time, as we will with all of the questions.

Miss Hargey: You cannot give an answer now that they can or cannot.

Ms Bloomer: Having looked at the stuff, I do not think that they can, but again, if there is something that has been brought to your attention, I am happy for you to share it with us and we can look at it.

Mr Baker: It has been in place in England and Wales: has that happened there?

Ms Bloomer: Not that we are aware of.

Mr Baker: Those are just a couple of examples of the codes.

The Chairperson (Ms Bunting): Can I check with you, because you raised a point there, before I bring Doug in — Doug, I must apologise; I overlooked you. I will bring you in in a second.

Danny, you raised the issue of people being detained in custody and their access to legal representation: can you give us a page for that so that we can look it up?

Mr Baker: I do not have it. It was written.

The Chairperson (Ms Bunting): Was it code I?

Mr Baker: It was under code I, but I do not know where it is in the papers.

Miss Hargey: I have it somewhere here.

Ms Ferguson: Article 59.

The Chairperson (Ms Bunting): Where is it?

Ms Ferguson: Article 59.

The Chairperson (Ms Bunting): Can you read it out again, please? What you said instilled a question in my head.

Mr Baker: An officer of the rank of superintendent or above can delay notification of an arrest and whereabouts for allowing access to legal advice for detainees for up to 48 hours. A person should be able to consult a solicitor before a court hearing. How is that human rights-compliant, if they are denied that? They are being held for 48 hours.

The Chairperson (Ms Bunting): Lisa, there are other parts of the PACE codes, and I appreciate that each code is distinct in its own way. The other codes indicate that you can have legal representation at the earliest opportunity. Is this code different in that regard?

Ms Boal: I do not have the details to do a distinct, side-by-side comparison. We will need to check that more carefully when we see the details of the codes to see whether it is different. I imagine that, if there is a difference, there will be a policy reason for that, but I am not —.

Ms Bloomer: It is in a specific set of circumstances, from memory. It is not across the board. I cannot remember —.

The Chairperson (Ms Bunting): I thought you had read out the first time that you are supposed to get access to legal representation at the earliest opportunity. Those two things could not go together in the one code. That is what I wanted to check, and that is why I was looking for where it is.

Ms Boal: I imagine that, if there is a difference in that code, there will be a particular national security reason that has led to that difference. We have no control over that policy decision.

The Chairperson (Ms Bunting): That is fair enough. I just wanted to understand what was going on there.

Doug, apologies. It is your turn now. I am sorry about that.

Mr Beattie: Thanks, Chair and Lisa. I want to get a bit into the weeds of something, if I can, please. I know how complicated the PACE code is, and sometimes I could not keep up with it, if I am being honest with you. I am really interested in looking at the issue of translation services, food and uncontaminated copies of religious books. I do not know what the latter means: "uncontaminated copies of religious books". Under translation services, it says that the posters on the walls that give information on rights have to be in the main ethnic languages and the main European languages. I ask you to explain that a little better. What do the PACE codes envisage with regard to that? Are we talking about a huge number of posters in different languages in custody suites?

Secondly, I notice that it talks about making sure that detainees are given enough food and water but not about specifics like halal food or vegetarian food. Is there something that says that the food must meet religious conformities or anything like that? That is a raft of questions.

Ms Boal: On the posters, I do not think that it envisages a copious number of posters. It is about the area where the custody suite is established. For example, if you knew that there were a high number of people from the Polish community in your area alongside an English-speaking community and you were having a lot of Polish people come through your custody suite, you would probably put up something in Polish. That is just an example; it is not to cast aspersions on Polish people. It is a general requirement but does not get into specifics so that it can be applied as suits a local situation. It is meant to be tailored to the needs of the people whom the police are most likely to deal with in any area. Northern Ireland is probably different from England and Wales because it is a smaller geographical area. The general requirement is there to make sure that people can understand their rights and access information, but it is also about being proportionate and suiting the needs of the area that the custody suite is stationed in.

The codes are not prescriptive on food or standards in order, again, to make it a general requirement to respect people's rights, including their religious rights and that sort of thing, but allow flexibility for that to be applied in the best way possible in a particular situation.

Mr Beattie: Would it be worthwhile having something that simply says, "food that is in line with people's religious rights or other freedoms", or is there no point? Is there any reason to have that?

Ms Boal: The need for it has not been established with us, but we could look into it.

Mr Beattie: No, I am just in the weeds on that.

Lastly, what is an "uncontaminated copy of a religious book"?

Ms Bloomer: I do not profess to be an expert, but I remember from my time in the Courts and Tribunals Service that religious books have to be treated differently and that there are protocols. Some have to be in coverings, and some have to be in bags, so that you do not disrespect the holy book of a particular culture.

Mr Beattie: OK. Good enough. Thank you. As I said, that is in-the-weeds stuff.

The Chairperson (Ms Bunting): Deirdre, and I will then bring in Ciara. Ciara, are you OK with that? I presume that you are OK with giving way to a colleague.

Ms Ferguson: Yes.

Miss Hargey: Two points of clarity on your consultation summary of responses and next steps document of 4 February. You might not have it with you. I have a query about paragraph 4.2.2. One respondent said that code A should be amended in line with the Justice and Security Act 2007 (JSA) as it refers to "wireless apparatus". You said that that recommendation fell:

but that

Has that exercise started, and when is it likely to be completed?

Ms Boal: It has not started yet. We are waiting for the Northern Ireland Office to look at its code of practice. It has not started work on changes to that. We need to wait until that is under way to consider any changes that are needed to the PACE codes.

Miss Hargey: OK, so it is still to be considered in a separate exercise —

Ms Boal: Yes.

Miss Hargey: — but there is no date for that yet. Are the independent reviewer's recommendations for amendments to the codes available?

Ms Boal: Those reports are published on the website.

Miss Hargey: OK. The other wee one is on that as well. It is around the stop-and-search, particularly of young people, especially considering their vulnerabilities. There is a concern around the appropriateness of the facilities in which they are detained. I know that you have given some written responses to that, but I want to highlight the concern. One of the consultation responses said that child-friendly cards and stuff were to be presented. I want to highlight a concern that those were not accessible until January of this year. One of the questions that I have asked is on the number of stop-and-searches over the past four years. I only had the data for 2020-21, and it was 27,000. That is only one year from the past couple of years. It is just to highlight that I am concerned. Are there other issues and gaps pertaining to children and young people or vulnerable people? That made up a good part of the consultation responses regarding the code.

The other wee point of clarity was in your letter of 30 April — I missed it earlier. It talked about the policing of protests being an operational matter and to do with public order. Your letter states:

My understanding is that the role of the police is to police the Parades Commission determinations pertaining to parades and associated protests. It is just a point of clarity on that — where there is a determination, obviously.

Ms Boal: On reflection, that sentence could have been clearer. The role is to facilitate parades in line with determinations.

The Chairperson (Ms Bunting): Ciara, you are up now. I do not know whether I need [Inaudible.]

Ms Ferguson: Half of the points have been covered now. I am trying to be clear in my head about what needs to be asked. I have a few additional questions in relation to the search of premises, code B and article 20(5).

I was reading through last night. I was a bit alarmed to see that the deadline for performing a search warrant is three months. Once you have a search warrant, you have up to three calendar months from the date of issue to entry. Has that always been the case? Why three months? Things can change drastically in three months. Why is there a three-month period? That was one thing that was glaring in that.

I have a few questions around code C, albeit some have been raised, particularly around the up to four days of detention that can happen. The Human Rights Commission raised the issue of the provision of legal advice. The Department responded by saying that the Law Society sends a rota to the PSNI for certain areas and that:

I would like clarity around that. When are they informed of that right? Can they choose their own solicitor, or is there a list available on a rota basis etc? That is at paragraph 11.17A.

The Human Rights Commission also raised the issue of the training of appropriate adults. I have a big concern about that. The Department's response mentioned the PSNI guidance notes that are issued to appropriate adults. Did the Human Rights Commission receive those guidance notes or raise any concerns about them? I assume that a lot of people will ask a family member, for instance, but they might not have undertaken training etc. It is that grey area. You want to ensure the best person who has had training, is best qualified and has had experience in the process relevant to the level of crime and that the appropriate adult has the skills, knowledge and training for that individual. Who gets the training? Who does not get the training? Has there been any undertaking around the training area, particularly around those who use family members, neighbours, close friends etc as their appropriate adult, although they might not be trained in the process that they are undertaking or might be shocked.

Ms Boal: It is expected that the appropriate adult will be the person's parent or guardian. Some people feel better with somebody whom they know and who knows them, someone who can understand and relate to them and knows what their needs are and how best to support them. There is that personal relationship aspect to the role of the appropriate adult. The PSNI has guidance notes for the person who is coming in to act as the appropriate adult. Where it is not possible for the parent or guardian to perform that role, the Department has in place a contract for the Northern Ireland appropriate adult scheme. If the parent or guardian is not able to come for any reason, it provides the services of an appropriate adult to support the young person when they are in custody. The providers of the scheme carry out training for people who act as an appropriate adult under that scheme.

Ms Bloomer: The PSNI has published on its website guidance notes and assistance on what to expect if you are asked to take on the role of an appropriate adult. That is on the website.

Ms Ferguson: It is on the website, so I assume that, if a son, nephew or whoever asked me to be an appropriate adult, prior to my attendance, I would get access to the guidance notes and time to read those.

Ms Boal: Yes.

Ms Bloomer: Yes. The National Appropriate Adult Network has made a really useful video, which is on its website, about what to expect.

Ms Ferguson: I have a few additional questions. The Human Rights Commission highlighted the need for guidance notes on rights and entitlements to be attached to each code. The British Home Office has provided guidance in England and Wales. Will the Department do the same by providing guidance for each code and take up the Human Rights Commission's offer on drawing them up?

Ms Boal: We discussed that offline with the Human Rights Commission. Those notes on rights and entitlements are available; Denise has a copy to hand. The police publish them and have them available in custody suites. It is not the Department but the police who publish those. They are available.

Ms Bloomer: They are printed off in the custody suite and given to the detained person.

Ms Ferguson: It would be useful to get copies of those, if that is possible.

Ms Boal: The police will have them.

Ms Ferguson: The Human Rights Commission stated in oral evidence that the Department will undertake a review of data protection measures, which was raised by the Information Commissioner's Office (ICO). Has that happened?

Ms Boal: Yes. As part of any policy formulation that touches on the use of information, we are required to do a data protection impact assessment (DPIA) and to consult and engage with the ICO. We have done that throughout the process as we have reviewed the codes. After we completed the consultation, we did a further review of the DPIA. We have engaged with the ICO on the DPIA and got its approval. We have a completed DPIA there. We will probably publish that when we come to publish the outcomes of the consultation.

Ms Ferguson: Can you give us any update now on the outcome of that?

Ms Boal: The ICO identified some issues. We went through the process of completing the impact assessment. There is a significant pro forma that we have to go through, and there is a process there. We submitted that to the ICO, and it came back to us with feedback. We addressed the issues that it raised and provided a response. After we let the ICO see a further updated version, it came back to say that it was content with the responses that we provided.

Ms Ferguson: Can you recall what the key recommendations were? I do not want to put you on the spot.

Ms Boal: To be honest, there was a lot of detail, so I cannot remember it all off the top of my head. There were a number of issues. Some of it went into the detail in the codes, and some of it went more into how it will operate in practice, touching on the responsibility of the PSNI under its data management procedures.

Ms Ferguson: I have a few more, but I might just put them in writing.

The Chairperson (Ms Bunting): If you are going to ask more questions, Ciara, it would be helpful for the Committee to hear them. You work away with the witnesses, and I will be back shortly.

The Deputy Chairperson (Miss Hargey): Ciara, do you want to give the highlights for Committee purposes, and we can follow it up afterwards?

Ms Ferguson: Just one other one, then. The Human Rights Commission also highlighted in oral evidence the need for the officers who are implementing the codes to have human rights considerations built in to their thought processes. Do those officers receive human rights training? If so, what does that training consist of, and how frequent is it?

Ms Boal: You would need to ask the PSNI about the detail of its human rights training. I do not have that information. You would need to explore that with the PSNI to see what information it can provide.

Ms Ferguson: The implementation of it. I am looking to see if I can find this. I have notes everywhere. There was one in relation to — I am trying to find it. Sorry, Chair. I will try to get the full reference to it.

It is about code C, under detention. It is SL11/1, code C. It goes back to the point that questions should not take place other than at a police station or other authorised place of detention. There are more specific conditions about the location of the questioning: the heat, light, ventilation; the suspect must not be compelled to stand; and short breaks for refreshments every two hours. Doctors must be summoned, if there is any sign of physical injury. I am not seeing that doctors should be called if there is any sign of mental health issues, learning disabilities etc. Where does that come in?

Ms Bloomer: That is done at the start by the custody officer when booking someone in. The custody sergeant — the custody officer — will be responsible for assessing the needs and vulnerabilities of each detained person.

Ms Boal: If you had a vulnerable person, that is the point at which you will make the decision on whether an appropriate adult is required.

Ms Ferguson: Right.

Ms Bloomer: At the likes of Musgrave Street and Waterside, there are on-site nurses. I cannot remember the appropriate name for them, but there is nursing. If there is a medical issue or a vulnerability, they can assess it.

Ms Ferguson: We are conscious that that is not in all places; it is in 80%. We are fortunate enough to have it in the Waterside. That stood out for me, but you say that all that happens pre interview, so, when it comes to the code, it is just to ensure that, during the interview, if there is a physical issue, a doctor is called. I assume that, if there is any deterioration mentally or whatever, a nurse is called or the nurse will be present.

Ms Bloomer: It will be the custody nurse, or, if there is not one on site, it will be the force medical officers (FMOs).

Ms Ferguson: That is fine. Thank you.

Ms Bloomer: Can I go back to your question about the solicitors?

Ms Ferguson: Yes.

Ms Bloomer: In the bigger sites like Belfast, there is a duty rota, as I understand it, from the Law Society, but anybody in any custody suite can pick their own solicitor. If they do not know a solicitor, they will be given the equivalent of the old Yellow Pages or whatever to pick from. The Law Society website has specialist sections. If it involves domestic abuse, burglary or whatever — criminal things — there will be solicitors who specialise, and you can select which solicitor you want to contact.

Miss Hargey: On that point about health deterioration, particularly under code I, the Human Rights Commission raised this as well, and the Department said that there is already enough clarity in the codes and the guidance. If somebody's mental health deteriorates and a health professional says that they cannot continue, can a custody officer override that in terms of code I? Is there an appeal mechanism for that? That is obviously the worst-case scenario.

Ms Bloomer: Again, I think that there is maybe —.

Miss Hargey: That is the new code. That is why I ask.

Ms Bloomer: Can we come back to you in writing on that one?

Miss Hargey: Yes. Thank you.

The Chairperson (Ms Bunting): Thanks for that, Deirdre — on a number of fronts.

I have read them all. Does anybody have anything further? No?

Ms Bloomer: I have failed my GCSEs.

The Chairperson (Ms Bunting): To be honest, the question of whether we are content with the proposal for the rule or whether any further information or clarification is required is moot, because it is clear that we require further clarification and information.

Deirdre, you had a list that had gone to officials. Will officials respond directly to the Committee on those issues? That would be helpful.

Ms Boal: Yes.

Miss Hargey: I meant to copy everyone into the email, and I realised at 11.00 pm last night that I had not done that. I apologise to other Committee members. The list of questions can be shared.

Ms Boal: To manage expectations, there were things on the list of questions that are operational issues for the PSNI. We can respond only to the matters covered in the PACE code. There might be some things where we will have to say that you need to explore them directly with the PSNI.

The Chairperson (Ms Bunting): That is fair enough. Lisa. Can you flag those issues up as quickly as possible, so we can send correspondence to the PSNI in tandem? That would be helpful, and then we can get that done. Do Members agree with that?

The Chairperson (Ms Bunting): That is great. Lisa, thank you.

Denise, thank you. I hope it was not too bad for you both. It is not straightforward for us. You will appreciate that this is legislation as much as anything else, and the Committee needs to do its job.

Ms Boal: We will respond to Deirdre's letter. To understand the Committee's position, will the answers have any bearing on the Committee's decision on the rule, or does it want to defer?

The Chairperson (Ms Bunting): The gender issues remain. We are not clear yet, and it depends on the answers. It would be preferable if, when you come back to Deirdre's queries, you came back to the entire Committee so that we can see.

Miss Hargey: Yes.

The Chairperson (Ms Bunting): We cannot pre-empt the decision that will be taken on the basis of the answers to those questions and whether it will satisfy the issues that have been raised. I do not know. The issues around gender remain, but we will see where we are when we get the other answers.

Ms Bloomer: It might be helpful for us if we can answer the questions and satisfy the Committee's questions on the changes to the code that we have been working on. We will not have the answers to the gender questions quickly.

Ms Boal: No, that will take time.

Ms Bloomer: We anticipate that anything on gender will take another public consultation. However, if we can settle the proposed changes to the codes, so that we use the updated codes as the basis for the public consultation, that would be helpful for us, rather than revisiting —.

The Chairperson (Ms Bunting): I understand that you might want to do that, Denise —

Ms Bloomer: But it is a no.

The Chairperson (Ms Bunting): Uh-huh, because it is a political decision the Committee and political parties will take. We can feed that back and have those conversations.

Ms Bloomer: I am not asking for a decision now, but as part of —.

The Chairperson (Ms Bunting): I understand that. It is so that you understand—.

Ms Bloomer: It is us feeding back to understand what our task will be.

The Chairperson (Ms Bunting): Yes. It may well be preferable for you, but, in order for you to have your preference, the Committee would need to agree to something that we will struggle to agree on. We will need to see what comes back and what discussions take place in the interim. It is our preference on all of these things to attain consensus and be constructive, but some of the issues are not small for any of us.

Ms Boal: We appreciate that. It is difficult for us all to work through all this. We are trying to support the Committee as much as we can.

The Chairperson (Ms Bunting): You are. You have been very good and forthright, and that has been appreciated, because they are difficult issues. Thank you very much, ladies.