Justice and Security (Northern Ireland) Bill

I will return to that point later, but it is clear that the Secretary of State presumes that the powers being exercised by the Secretary of State would not be devolved. That is making quite an assumption. The parties in Northern Ireland that will be discussing questions of the devolution of justice and policing might have a very different attitude about whether those powers should be reserved for the Secretary of State or devolved. If a devolved Minister of justice is simply to be someone who lobbies the Secretary of State in the exercise of all sorts of sweeping reserved powers, it creates a very different picture of the devolution of justice and policing than some parties want to entertain or believed the Good Friday agreement promised. The question of whether the Army would be amenable to scrutiny or investigation by the police ombudsman in respect of its future powers is even more urgent when it comes to MI5. The Government tell us that the British Army has been reduced in size in the north, but they are proposing to expand the presence of MI5 there with an enhanced and enlarged role after October 2007. I hope that the Army will be pretty much confined to base, but it is quite clear that MI5 could be active across the north. Where accountability lies for MI5 is an issue that my hon. Friends will be addressing later in the debate. They will point out that only people who believe that they are subject to MI5 surveillance can bring complaints against the organisation. Victims who feel that they have been let down by MI5 incompetence or inactivity cannot bring any complaint. In any event, complaints to the investigatory powers tribunal go nowhere: not one has been upheld to date and no reasons have ever been given. The Bill compounds the culture of unaccountability of the intelligence services. As has been pointed out, it gives the Human Rights Commission welcome investigatory powers, but it is explicit that those powers are virtually non-existent when it comes to anything to do with intelligence services. Proposed new section 69B(5), inserted by clause 14, even explicitly prohibits the Human Rights Commission from investigating whether an intelligence service has acted"““in a way which is incompatible with… human rights””." All that highlights an accountability gap, which will be created by the Government’s proposals to expand MI5’s role. The fact remains that where there is no accountability, we get incompetence and the withholding of information, as is quite clear in the Omagh case, where it took MI5 seven and a half years to pass on a warning about a bomb that went on to kill 29 people. The Government cannot let that pass. Currently, the Police Service of Northern Ireland has primacy for national security and the police ombudsman has investigated complaints involving national security again and again without difficulty—and the sky has not fallen in. If MI5 is to take over primacy for national security—we believe that it should not—there should at least be the same accountability and challenge in respect of how those functions are managed. That means giving the police ombudsman the power to investigate complaints against MI5, which we will propose as an amendment in Committee. In relation to Army powers, let us be very clear as well that just appointing another kind of reviewer, similar to the one for military complaints dealt with in clause 39, lacks rigour and will not command public confidence. Trying to achieve something in the same style for MI5 will not meet our point. We are making serious points and we have serious reservations about proposals that have huge implications for whether or not we have the Patten vision of policing. I want to be clear that this issue should not be used by Sinn Fein as an excuse not to deal with policing. The Government’s proposed role for MI5 is no excuse for Sinn Fein refusing to urge people to pass information to the police about the rape of a teenage girl. Equally, questions in and around the devolution of justice is no excuse for Sinn Fein to delay its decision either—especially when, as the right hon. Member for Torfaen (Mr. Murphy) said and the Secretary of State confirmed, significant powers have already been devolved from the Secretary of State and the Northern Ireland Office to the Policing Board. That happened when the Policing Board was established and we saw the practice of those powers on decisions about the tenure of the previous Chief Constable and the appointment of the new Chief Constable. The NIO and the then Secretary of State were trying to control and influence those decisions and had to be reminded that they no longer had those powers. I can understand why Sinn Fein may want to pretend that some significant devolution has not already taken place and I also understand how it is trying to use the outstanding question of the transfer of ministerial powers as its big excuse for not having moved on policing to date. None of those matters should be used as an excuse for not moving now on the foot of the commitments given and received in the context of the negotiations at St. Andrews. There is an awful lot of dishonesty in and around the question of the devolution of justice. The fact is that parties, whether it be Sinn Fein or the DUP, have to know full well that a devolved Minister of justice is not going to be lifting the phone to senior police officers to say, ““Set my people free”” or ““I want you to go and arrest those people””. A devolved Minister will simply not have that sort of function or role. The parties are deliberately exaggerating what is involved in that respect. It is time that we demystified the issue. I hope that the discussions in the programme for government sub-committee can de-clutter and remove a lot of the confusion and exaggeration on this whole issue. The test will be whether the parties want to remove a lot of the misapprehension. Sinn Fein is still relying on the excuse that, in the absence of the devolution of justice and policing, it cannot offer support for policing. It says that we have to ensure that policing in Northern Ireland is free from British control and that the test of that will be devolution. I have to say to the Secretary of State—I will now clarify for him my points about the implications of the Bill for devolution of justice and policing—that the legislation could well give those in Sinn Fein cause or excuse to say that there is a bigger remnant of British control regarding the future conduct of security, justice and policing in Northern Ireland than it had anticipated or envisaged. That is why I say that the Bill is pregnant with implications and potential complications. I assume that the Director of Public Prosecutions will be appointed by the devolved interest in future, but he may be influenced, on the Secretary of State’s own indications, by national security considerations, which are, of course, outwith the devolved interest. The Government are very clear about that. In those circumstances, a devolved Minister of justice and a devolved Assembly could find themselves compromised and embarrassed by what is happening or not happening. They might have to say, ““Yes, I am the Minister of justice and, yes, we appoint these people, but we have absolutely no say and the Secretary of State’s reserved powers are used. All I can do is lobby the Secretary of State about how someone we appoint actually conducts their role.”” That is not a satisfactory situation and it is certainly not the picture of the devolution of justice and policing that we have in mind. I do not believe that it is the picture of the devolution of justice and policing that Sinn Fein has in mind either.