Justice and Security (Northern Ireland) Bill

The date of May 2008 is in the St. Andrew’s agreement. We accept the date and we want to give it real meaning. It is an issue, because unless we create more certainty around it, uncertainty and confusion will grow around Sinn Fein’s position on policing. The process can do without that. More confidence would be created if we had certainty about a date for devolution of justice and policing, which would allow or force Sinn Fein to commence its full involvement in policing. That could create more confidence, and we would then have achieved agreement and sufficient confidence before May 2008 to ensure that there is agreement in the Assembly. The purpose of our clause is to ensure that parties have every incentive and we have the best circumstances before May 2008. New clause 4 deals with another matter of deep concern to the SDLP. In 2005, the Government announced that primacy in intelligence policing in Northern Ireland would pass from the PSNI to MI5. That is due to happen in October and it was re-confirmed, as the Minister suggested, in a discussion paper on the devolution of justice launched last February. The Government argue that after the devolution of justice a devolved Minister for justice from a particular party could not receive briefings on subversive activity. Nobody is really arguing for that. The issue of who gets intelligence information—the devolved Minister for justice or the Secretary of State, if it is to do with national security—is a separate issue from that of who has primary responsibility for gathering the intelligence. The SDLP argues that the PSNI should continue to have primacy in intelligence gathering, including on subversive activity, as provided by Patten. The Government want to give it to MI5. Patten envisaged that on matters of national security the Chief Constable would report not to the devolved Minister for justice but to the Secretary of State. We accepted that, but Patten also envisaged that the Chief Constable would do the reporting, not MI5. The Government’s proposals are a departure from Patten. I shall explain why the change is so wrong. First, the PSNI has undergone the Patten reforms, whereas MI5 has not. We cannot ask how many people work for MI5, including how many of them are Catholics or Protestants. It will not tell us. We are not allowed to know anything about the organisation, but we are asked to have confidence in it. It is not only nationalists who should have a basic problem with that. The enlarged role for MI5 could destabilise the new beginning to policing. Secondly, organised crime and subversive activity have gone hand in hand in Northern Ireland, which is why one organisation—the PSNI—should be in the lead when it comes to monitoring and tackling them. Giving any of that responsibility to MI5 carries the huge risk that it will do what it and the RUC’s special branch did in the past—hog intelligence for its own reasons and not share it with the police officers responsible for combating and pursuing those crimes and for initiating prosecutions. As a result of that, the guilty got away with murder and other crimes, so we have cause to be concerned about the implications of passing that responsibility to MI5. The House need look only at what happened with the Omagh bombing: it took MI5 seven years to pass on a warning, which the PSNI received only last year. Thirdly, many welcome changes in matters such as informer handling and intelligence sharing in the PSNI have stemmed from the Patten report and the Stevens report into collusion, and from the Omagh report and the review subsequently commissioned by the Northern Ireland Policing Board. Taking away primacy in intelligence policing undermines those successful and important changes. Indeed, no one has any idea whether the safeguards recommended by the Police Ombudsman for Northern Ireland in her very significant McCord report will apply equally to MI5. The Chief Constable has said that they will apply to the PSNI, and that is welcome, but will that still be the case when the change to primacy in intelligence policing is introduced? There is a clear danger of the guarantees and protections in Patten being diminished or eroded. Fourthly, the PSNI is accountable to the Policing Board and the police ombudsman for any human rights abuses perpetrated by its officers. There are structures that ensure that nationalists, Unionists and everyone else may have growing confidence that concerns or complaints about the PSNI will be dealt with, but that is not the case with MI5. The Government have continually resisted calls for MI5 officers in the north to be subject to the police ombudsman. Fifthly, the Patten report made it explicit that"““the police service must remain equipped to detect and deal with terrorist activity, and for this they will need good intelligence capability.””" That key recommendation will be undermined or compromised if MI5 takes over primacy in intelligence policing. Again, the Omagh bombing gives an example of what can go wrong. Sam Kincaid has told the Omagh families that MI5 had intelligence that there was going to be an attack on Omagh, but that it did not pass it on. When pressed on the matter, Chief Constable Hugh Orde said MI5 held nothing back from the investigation into the bombing, but he did not deny Sam Kincaid’s allegation that MI5 did not pass on information before the bombing. We can expect such problems to arise more often if MI5 takes primacy in intelligence gathering, and the potential consequences are serious. The question of MI5’s future in Northern Ireland has implications for the conduct of the devolution of justice and policing. The British Government will determine what is meant by the phrase ““national security”” and the scope of the work done by the intelligence services, so the role given to MI5 could grow. Moreover, if it has primacy in intelligence policing, its work will be outside the purview of the devolved Administration and Assembly. In the Second Reading debate on 13 December 2006, the Secretary of State told us that the Bill would give the Director of Public Prosecutions powers to issue certificates to ensure that there would be no jury trials, and that he could do so on the basis of information from the security services—MI5. The Bill also includes provisions that would permanently recycle special powers for the police and the Army that were previously only temporary during the worst of the troubles. The legislation will remain under the control of the House and the Secretary of State; it will not be controlled by the devolved Assembly. A devolved Minister for justice could receive representations from defendants facing trial in courts funded and administered by the court service that serves the devolved Ministry stating that they had not been allowed a jury trial and had been given no reasons why. The devolved Minister would be a mere spectator in a hopeless and helpless situation. He would be unable to amend or restrict the special powers of the police—although we do not say that the Minister should interfere in the exercise of police powers; unlike others, we do not believe that Ministers should boss the police. Politicians should not boss the police and we must ensure that policing in Northern Ireland is not seen as the accessory of partisan controls or interests. That is why the Patten controls are important. However, we do not want devolved Ministers, a devolved Assembly and its Committee left in a completely hopeless and powerless state, while significant activities that impinge on policing and justice, and which they have no power to amend, advise or question, take place beyond their control. That raises fundamental credibility issues about the future of the devolution of justice and policing. That is not what the Social Democratic and Labour party means by the devolution and justice and policing, and I should be surprised if it is what Sinn Fein means when it says that it wants to ensure that there is no lingering British control or interference in relation to justice and policing. The Bill and other measures proposed by the Government, including MI5, provide for just such ongoing control by the ““securocrats”” and other interests.