Debate contribution: Justice Bill: Consideration Stage

Debate contribution by Mrs Naomi Long on 2 June 2026.

MLA

Mrs Naomi Long

Party at the time

Alliance Party

Date

2 June 2026

Type

Debate contribution (made as a minister)

Business

Executive Committee Business

Heading

Justice Bill: Consideration Stage

Assembly identifier

Official Report component 5583954

Read the official Assembly record

Text

I beg to move amendment No 1:

Before turning to the amendments, I take the opportunity to thank the Committee for its support and commitment in completing its scrutiny of the provisions of the Bill and the proposed amendments. I also thank the current and previous Chairs, Deputy Chairs and members for their engagement throughout and for their subsequent support for all the substantive provisions of the Bill at its introduction and their endorsement of amendments that they scrutinised during the Committee Stage. The Committee has tabled a small number of modest amendments, including a regulation-making power to provide for the retention and use of photographs in Part 1 of the Bill that we are to debate shortly. The Committee's other amendments include tweaks to clauses 4, 5 and 6 in Part 2 to include a child's vulnerabilities as a relevant consideration to be taken into account when a decision on whether to release a child on bail or to impose bail conditions is being taken by police or the courts; the inclusion of a review mechanism for the use of live links by police in Part 3; and a consequential amendment to clause 33 to specify a time frame for the commencement of the biometric provisions of Part 1 within five years of Royal Assent. I very much appreciate the Committee's consideration of those issues, and I look forward to debating its amendments at the appropriate point in our proceedings. Before I speak substantively to the nature of the changes to be made in Part 1 in my name, I want to address some of the concerns that, I understand, the Chair of the Committee for Justice may have had regarding the text of the amendments tabled on my behalf by the Office of the Legislative Counsel (OLC) compared with the format provided to the Committee at the start of the Committee Stage for publication as part of its call for evidence. I reassure the Chair and, indeed, the members of the Committee that there have been no substantive changes to my amendments in policy intent or outcome. While the amendments may have been presented differently, reflecting the sequence in which the amendments are made to the Bill and the consequential nature of a number of the amendments of any changes to the text of the provisions, reflects drafting tweaks and technical adjustments to ensure that the amendments work as originally intended. There is no change of policy approach or any new policy content that the Committee has been unsighted on. Committee scrutiny of those amendments is, therefore, unchanged. Again, I express my thanks for the diligence with which it undertook that work. The Bill that I introduced to the Assembly in September 2024 has four key principles: to amend retention periods for biometric material; to make changes to bail and custody arrangements for children and young people; to improve services for victims and witnesses; and to improve the efficiency and effectiveness of aspects of the justice system. Part 1 of the Bill creates a new framework for the retention and destruction of DNA and fingerprints in Northern Ireland. I now want to speak to the amendments tabled in my name in that Part of the Bill. The amendments to Part 1 tabled in my name are as a result of stress-testing the draft legislation with the PSNI, which identified a need for some modifications to the provisions of the Bill at introduction to provide greater clarity in a complex area and to ensure the effective operation of the new framework. I do not intend to labour the detail of each provision in the grouping, which, I am sure, will be a relief to Members, as a number of the amendments are consequential. I can, however, provide this summary of the nature of the amendments. A number of amendments were tabled in respect of schedule 2, beginning with amendment No 108 to replace the term "reported" with "a complaint being laid against the person" in Part VI of the Police and Criminal Evidence (Northern Ireland) Order 1989, which is due to "reported" having different interpretations across the criminal justice system. The amendment, therefore, is designed to provide legislative clarity.

Existing references to a person "being charged with an offence" or "informed" that they "will be reported" will be replaced by "being charged with an offence" or "a complaint being laid against the person". Amendment No 22 makes changes to retention periods for DNA and fingerprints held on foot of a community-based restorative justice scheme, because stand-alone community-based restorative justice schemes that are directed by the PPS are considered to be on a level similar to that of a caution. That amendment and associated consequentials will ensure that stand-alone community-based restorative justice schemes attract the same retention period as a caution for adults, which is 75 years or 25 years, and, for someone who is under 18, five years. There are provisions to create grace periods for DNA and fingerprints being held for individuals under investigation. An amendment provides for a 28-day period to ensure that, following the conclusion of an investigation, the PSNI has sufficient time either to lawfully process the deletion of an individual's DNA and fingerprints or to submit an application to the biometrics commissioner for continued retention. Amendment No 8 makes a change relating to applications to the biometrics commissioner to clarify that the DNA and fingerprints of an individual who is arrested but not charged can be retained by the PSNI until the outcome of an application to the biometrics commissioner is known. There are new provisions in amendment No 66 to establish a power to photograph individuals in specified circumstances at a police station, thereby putting photographs on the same footing as DNA and fingerprints. Regarding the powers of the PSNI to recall an individual to a police station for material to be taken, there are powers in amendment No 67 to specify a date of attendance at a police station for the taking of DNA samples, fingerprints and photographs. The aim is to improve the process of making arrangements for requiring an individual to attend a police station for their material to be taken and to reduce the likelihood of an individual attending the station when custody staff are not available to facilitate the taking of that material. Amendment No 111 makes changes relating to informed warnings and restorative cautions that will clarify that any reference to a caution in Part VI of PACE NI is to be interpreted as including an informed warning or restorative caution. Provisions in new article 53B in amendment No 17 will mean that existing references to cautions in articles 61, 63 and 64A are no longer required, so there are amendments to remove those redundant references. Finally, there are regulation-making powers to require that any future regulations to accommodate changes in the terminology used for informed warnings or restorative cautions or that deal with transitional arrangements for DNA and fingerprints must follow the draft affirmative procedure. I turn to the amendments that I mentioned at the outset that the Committee for Justice has tabled for inclusion in Part 1 of the Bill. The Committee's first amendment, No 40, creates an enabling power to allow the inclusion of photographs and other emerging technology in the definition of "biometric material" under the retention provisions in Part 1. A second amendment, No 104, on commencement of the new DNA retention framework, which is consequential to clause 33, would require the Department to bring the new retention framework in Part 1 into force within five years of Royal Assent. While I am generally content to accept both amendments in principle, there may be technical issues with the drafting of the provisions that require remedial action to ensure that they operate as intended and do not present any unintended consequences. I will now speak to the many amendments to Part 1 tabled by Ms Emma Sheerin, Ms Aoife Finnegan and Ms Ciara Ferguson. While the intention behind amendment No 5 is not entirely clear, it appears to relate to article 63I, which deals with charges left on the books. In certain criminal cases, the PPS may invite the court not to proceed with a charge but, instead, to have it left on the books. I consider it both reasonable and proportionate to apply a time-limited retention period in those circumstances, given that proceedings may be recommenced. The Department's consultation in 2020 included an initial proposal for a standard 12-month retention period. However, several respondents questioned whether 12 months would be sufficient. On the basis of the evidence available to the Department, a decision was made to amend the original proposal to a three-year retention period for qualifying offences and 12 months for non-qualifying offences, thereby ensuring a differentiated and proportionate approach. I am satisfied that that remains appropriate.

Amendment No 11 relates to qualifying offences that are listed in article 53A of PACE NI and that include the most serious violent, sexual and terrorism-related offences. Given their seriousness, I consider the maximum retention period of 75 years to be necessary and proportionate for adults and those under 18. However, it is important to note that the statutory review mechanism will include earlier statutory review points for young people than for adults. That will provide an early opportunity to consider whether it remains necessary and proportionate to retain a person's material. I am therefore satisfied that the current proposals are both proportionate and appropriate. Proposed new article 63JA in amendment No 12 would introduce a three-year retention period for individuals under 18 who are convicted of a qualifying offence and a three-year retention period for those under 18 convicted of a non-qualifying offence, subject to approval by the biometrics commissioner. Those proposals have not, in my view, been sufficiently developed or tested. Moreover, the proposal in amendment No 13 to remove existing articles 63L, 63M and 63O would dismantle the less stringent regime designed specifically for under-18s. I believe that the provisions included in the Bill should be retained as a key component of the framework. They provide an appropriate balance between safeguarding young people's rights, respecting victims and maintaining public safety. As I have previously pointed out, the review mechanism will provide additional safeguards, including shorter time frames for under-18s before mandatory review. Amendment Nos 23 and 24 would remove article 63P, which provides a five-year retention period for diversionary youth conferences and community-based restorative justice schemes. Both are directed by the PPS and represent a step up from community resolution notices (CRNs), with restorative justice schemes broadly equivalent to a caution. It is therefore appropriate that they attract a five-year retention period for under-18s, and I am of the view that the provision should remain. Amendment No 28 would remove article 63Q, which provides a two-year retention period for penalty notices issued to adults under section 60 of the Justice Act (Northern Ireland) 2011. That aligns with the approach in England and Wales and applies to penalty notices issued for a defined set of recordable offences as follows: indecent behaviour, section 9 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968; shoplifting, section 1 of the Theft Act (Northern Ireland) 1969; criminal damage, article 3(1) of the Criminal Damage (Northern Ireland) Order 1977; disorderly behaviour, article 18(1)(a) of the Public Order (Northern Ireland) Order 1987; behaviour likely to cause a breach of the peace, article 18(1)(b) of the Public Order (Northern Ireland) Order 1987; and resisting, obstructing or impeding a constable, section 66(1) of the Police (Northern Ireland) Act 1998. I am satisfied that, on balance, the provision is proportionate and appropriate, and it should stand part of the Bill. Article 63T provides an important safeguard requiring periodic review every five years of material retained for long-running ongoing investigations. That is distinct from the provision in article 63U that requires the review of long-term retained material held on foot of a conviction. The provision at article 63T recognises that some investigations, such as those for unsolved murders, can remain open for some considerable time. However, it provides a safeguard to ensure that an individual's material is not held any longer than is strictly necessary. Amendment No 29 would require the PSNI to notify an individual that they are subject to such a review and then enable an appeal process. That would potentially risk undermining an ongoing investigation and is therefore not appropriate. It is also not appropriate or, indeed, workable for anyone other than the PSNI to carry out such a review. I am satisfied that the current provision appropriately balances safeguarding an individual's rights with operational effectiveness, and it should remain unchanged. The appeals process for a decision arising from a review conducted under article 63U is the next amendment being considered. The proposed amendment seeks to exclude PSNI personnel from determining appeals against a decision to retain material after a review. Under the current proposals, requests for a review will be handled by a designated PSNI team. Where an individual seeks reconsideration, the decision will be reviewed by a different and more senior officer with no prior involvement, ensuring procedural independence. That two-stage process reflects established best practice in, for example, FOI procedures and balances fairness with operational practicality. The PSNI is the data controller and is best placed to make decisions on the necessity of continued retention in the interests of investigating crime and public protection. It is therefore appropriate and, I argue, necessary for the PSNI to have responsibility for the process. In addition to that, individuals may complain to the biometrics commissioner, who can require reconsideration or deletion in cases where retention is unlawful. The Chief Constable will be obliged to comply. I am satisfied that that combination of safeguards for individual rights is sufficiently robust without compromising public safety. Article 63Z contains an enabling power for the biometrics commissioner to issue guidance. As an independent officeholder, it is appropriate that the commissioner determines whether and how such guidance is issued as well as what should be included in the guidance. Making guidance mandatory and prescribing its content, as proposed in amendment No 35, would risk undermining that independence. I do not think that it would be appropriate for my Department to establish an independent office and then direct it, at that level, on how it should exercise its functions. In conclusion, the provisions of Part 1 of the Bill are extensive, complex and intricately interlinked. The amendments that I have just spoken to propose to make isolated changes to individual aspects of a carefully drafted suite of provisions in the Bill. To do that would risk rendering part of the new biometric retention framework inoperable through bad drafting, technical deficiencies and potential unintended consequences. As such, I do not support any of those amendments. Finally in respect of Part 1 of the Bill, Mr Gerry Carroll tabled amendment No 38, which includes provision that individuals should receive written notification whenever their retention period changes as a result of:

"the making, renewal or expiry of a national security determination".

National security determinations (NSDs) can authorise a retention period of up to five years for DNA and fingerprints, where that is necessary and appropriate for national security purposes, and are subject to review by the UK Biometrics Commissioner. The legislative provisions relating to NSDs are set out in the Protection of Freedoms Act 2012 and fall within the responsibility of the UK Government. As such, paragraph 2(c) of article 63C proposed by amendment No 38 would fall outside the legislative competence of the Northern Ireland Assembly. That amendment contains some issues that are within the competence of the Assembly but that would be more appropriately addressed through the updates to PACE code D, which will be subject to public consultation and Committee scrutiny. The revised code will be introduced alongside the new retention framework. I do not, therefore, support amendment No 38. That concludes my opening remarks on the group 1 amendments. I look forward to hearing and responding to the views of Members and hope that it will be a constructive and positive debate. Thank you.

I thank the Chair for giving way. While many of the things that he referenced do not fall to the Department in terms of our ability to influence their timing, I confirm that we concur with the Committee that five years is a reasonable term in which to do that. I also reassure Members that, if it can be done sooner than five years, we will take the opportunity to do that.

2,763 words. Text as published by the Northern Ireland Assembly.

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