Justice and Security (Northern Ireland) Bill

I thank the hon. Lady for her intervention, which gives me the opportunity to respond—although not as blastingly as she did—that the UN principles state that where there is no national organisation, as there is not in the situation we are discussing, the rights and privileges of such a commission should extend to regional commissions. The UN has been supportive of investigatory powers being given to the Northern Ireland Human Rights Commission. Often, what the Government give with one hand they claw back with the other, and that is what is really happening in the Bill before us. For example, and as Members have said, the commission can use its investigatory powers only in respect of matters arising after 1 January 2008. It cannot access any information or documents before that date, even if they are relevant to situations arising after that date. So it will be years before the commission can carry out proper investigations and get a full picture of that which it is investigating. It seems that six years of waiting for these powers is not long enough. In practice, under the terms of clause 19, it could well be another four or five years before the commission can carry out proper investigations. Even then, the Bill provides for huge exceptions to the commission’s powers. Extraordinarily—there has already been much debate about this—it is expressly prohibited from considering whether any of the intelligence services have acted in any way that is incompatible with human rights. Under the terms of proposed new section 69B(5), which clause 14 would insert into the Northern Ireland Act 1998, the commission is prohibited from dealing with any other matters concerning human rights, and the intelligence services. We need to be clear about this: it is not merely that the commission will not have the power to demand to speak to MI5 officials or to see their documents; it has no right to ask for such information. So in this regard, it will actually have fewer powers than it already has. The commission can, however, investigate other human rights abuses, and in the course of those investigations, it might find that it needs access to intelligence material. It can ask, but there is absolutely no chance of getting such access. As the Secretary of State said in his introductory remarks, it can take the matter to the Investigatory Powers Tribunal, but it will not succeed. The commission has to prove not only that the releasing to it of such information would not damage national security, but that the refusal to release that information was irrational and that no reasonable intelligence agency would behave in that way. That is what proposed new section 69B(2)(d) really means, because that is the standard that applies to judicial reviews. This is all the more worrying at a time when the Government want substantially to expand MI5’s role in Northern Ireland. At the moment, the Police Service of Northern Ireland has primacy in respect of national security, and the police ombudsman has the power to investigate complaints about its handling of these matters. Such accountability has helped enormously in building confidence in the new PSNI and the new beginning to policing. Time and again, the police ombudsman’s office has investigated complaints that have gone to the heart of national security, such as the Omagh case, which is currently at trial, and ““Stormontgate””. We have yet to hear anybody, including the Government, complain about the Ombudsman’s involvement. Nobody has come out publicly even to attempt to argue that this is a bad thing, so why introduce a measure preventing the ombudsman from pursuing those lines of inquiry? The right hon. Member for Torfaen (Mr. Murphy) mentioned Osama bin Laden, and in that regard there is a peculiar anomaly, which I have mentioned before. A terrorist who is aware that the intelligence service is monitoring him has the right to make a complaint to the Investigatory Powers Tribunal. However, a person who is unaware that they are being monitored, and who is perhaps suffering an injustice through that process, has no rights whatsoever. That point emerged strongly during the Omagh trial, which my hon. Friend the Member for Foyle mentioned. It took seven and a half years for that to be exposed, which is not acceptable. The Bill raises many issues that could be politically damaging to the process that is taking place, without embracing fully the need for a full human rights scenario in Northern Ireland. I think that all hon. Members will agree that we were able to build a police service that has inspired cross-community confidence. We need to do the same for the investigatory powers of the commission, especially in terms of MI5, because what is possible now will not be possible after the passing of this legislation. The Bill contains many good provisions, which we will support, but I ask the Government to consider the remarks made by my hon. Friends and other hon. Members today and the proceedings in Committee, and take on board some of the practical problems, the solution of which could enhance the ability of the community to move forward from the dark days of the past three decades.