New Clause 2

Justice and Security (Northern Ireland) Bill – in a Public Bill Committee at 3:45 pm on 18th January 2007.

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Complaints and misconduct relating to the Security Service in Northern Ireland

‘(1) In the Police (Northern Ireland) Act 1998 (c. 32)—

(a) after section 60ZA insert—

“60ZB The Security Service

(1) An agreement for the establishment in relation to members of the staff of the Security Service of procedures corresponding or similar to any of those established by virtue of this Part may, with the approval of the Secretary of State, be made between the Ombudsman and the Security Service.

(2) Where no such procedures are in force in relation to the Security Service, the Secretary of State may by order establish such procedures.

(3) An agreement under this section may at any time be varied or terminated with the approval of the Secretary of State.

(4) Before making an order under this section the Secretary of State shall consult—

(a) the Ombudsman; and

(b) the Security Service.

(5) Nothing in any other statutory provision shall prevent the Security Service from carrying into effect procedures established by virtue of this section.

(6) No such procedures shall have effect in relation to anything done by a member of the staff of the Security Service outside Northern Ireland or in relation to terrorism not connected to Northern Ireland.”; and

(b) in section 61(5) (reports), at the end of paragraph (c) insert “; and

(d) if the report concerns the Security Service, to the Security Service.”.’.—[Mark Durkan.]

Brought up, and read the First time.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

I beg to move, That the clause be read a Second time.

I should explain to hon. Members that we modelled the new clause on section 55 of the Serious Organised Crime and Police Act 2005, which gives the office of  the Police Ombudsman for Northern Ireland relevant powers over Serious Organised Crime Agency staff in Northern Ireland. At present, as per Patten, the Police Service of Northern Ireland has primacy in matters of national security, and the police ombudsman has the power to investigate complaints regarding its handling of such matters. That accountability has helped enormously to build confidence in the new beginning for policing.

Again and again, the police ombudsman has investigated complaints that have gone to the heart of national security, concerning issues such as the Omagh investigation and Stormontgate, and the Government have yet to raise any serious complaint. No one has even attempted publicly to argue that it has been a bad thing. The sky has not fallen because the police ombudsman’s office has had that reach into activities and information relating to national security; far from it, because the office’s function has been one of the pillars of confidence in the new beginning for policing.

On Monday, the truth will emerge again with the police ombudsman’s report into the murder of Raymond McCord. It is widely expected that the report will show, among other things, that an RUC informer murdered again and again—Catholics, Protestants, civilians, paramilitaries and even a minister of religion—and that it was allowed to go on. That is the reality of what has happened in Northern Ireland—collusion and complicity. If the matter had involved MI5 work, we might not have found out about it, and if it were to happen in future under the Government’s proposed regime, we would not find out about it. Under current plans, MI5 will deal with much of the work related to domestic terrorism.

A lie is being sold, and some foolish people have bought it, that MI5’s role in the future of Northern Ireland—its expanded headquarters and its new recruits—is all about international terrorism. The reality is that a large part of MI5’s work in Northern Ireland will still concern domestic terrorism. The Minister’s comments in Committee on Tuesday reflected that, because he recognised that the issues dealt with in the Bill’s earlier clauses touched on not only criminal justice but national security. He was equally explicit then that non-jury courts would relate only to domestic terrorism and Northern Irish paramilitaries specifically, not international terrorism. It is clear that MI5 will continue to play a significant role in that area.

It is proposed that primacy in national security will move in October from the Police Service of Northern Ireland to MI5. If national security functions have not been impaired or compromised in any way by the police ombudsman’s power to pursue information in investigations relating to national security, including information in the hands of MI5, what is the argument for saying that there is a risk in allowing that to continue, if primacy shifts?

It is clear that the shift of primacy and the bogus separation sold to Sinn Fein in the Prime Minister’s statement is about separating the work of MI5 from the scrutiny and challenge of the police ombudsman’s office. No one with possible cause for concern or complaint about the work of MI5 in the future will be able to go to the police ombudsman, whereas they can do that now. It is clear that under Government  proposals the police ombudsman will not be able to investigate what MI5 does in Northern Ireland, which clearly shows that there will be a loss of accountability.

The Prime Minister’s statement last week sought to tell us that there will be no diminution in police accountability in Northern Ireland, which will be true of PNSI accountability. It is true that the PSNI will be no less accountable to the ombudsman, so the assertion in the Prime Minister’s statement is technically true. However, what if someone were to say, “Well, what about intelligence policing in Northern Ireland? Will that be less accountable under the new arrangements or not?”? The fact is that it will be less accountable. To that extent, the line in the Prime Minister’s statement is misleading and calculatedly misleading, as are some other things in his statement, such as that the police officers who will interact with MI5 will be “PSNI headquarters staff”. That might sound the same as saying that they will be based at PSNI headquarters, but it does not mean that. They might be PSNI headquarters staff, but there is no guarantee that they will be based in PSNI headquarters. Again, people who say that there will be no co-location and that they have persuaded the Government of that are either buying a lie or selling one.

The structures that are supposed to hold MI5 to account are, quite simply, useless. Only people who believe that they were subject to MI5 surveillance and attention can bring complaints against MI5 through the investigatory powers tribunal. Do not just take my word for that, because it is stated on the tribunal’s own website. The investigatory powers tribunal is pretty clear about who can and cannot bring a complaint, and it is only those who have been the subject of attention from MI5.

We therefore face the ludicrous situation in which Osama bin Laden can complain about MI5, but the Omagh families in Northern Ireland, who were let down by MI5, cannot complain, even though MI5 did not bother to pass on a bomb warning about Omagh for seven and a half years. It is bad enough that people who may be victims of MI5’s negligence or abuse of power cannot bring complaints, but even if they were able to bring complaints, do complaints to the tribunal go anywhere? The tribunal investigated 380 complaints from its foundation in 2000 until 31 December 2004. How many of those complaints were upheld? Not one. How many reasons were ever given? Not one. That is not accountability, and it is certainly not accountability in terms of the Northern Ireland standards that are now needed as per the Patten report and the Patten vision. Hon. Members might be happy enough to have that level of accountability for themselves, but MI5 will not play as concentrated and sensitive a role in their constituencies as it will in mine.

Photo of Laurence Robertson Laurence Robertson Shadow Minister (Northern Ireland)

The hon. Gentleman is touching on a very important subject. I looked, and continue to look, very closely at the Omagh situation. Does he not feel that something as important as what one might describe as the overseeing of the security services should be done on a national basis—a United Kingdom basis? He may well have a point that it is necessary, because it is possible for people to get away with anything on the basis of “Oh, it’s national security.” I am uncomfortable with that as well,  because almost anything can be excused, but does he not think that the matter should be tackled more on a UK basis?

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

I thank the hon. Gentleman for that point. I certainly have no case against it, but obviously I am trying to deal with the Northern Ireland-specific situation. MI5 will be given a distinctively different role in Northern Ireland from what it has had before. It is being given big new headquarters and an enhanced and enlarged role. Staff are being recruited, and it is deliberately recruiting people with special branch experience. We are particularly concerned about whether that is a means of creating some sort of “continuity” special branch. Remember, people in the old RUC special branch were involved in some of the worst aspects of collusion or complicity, which involved allowing things to happen when interventions by other officers might have prevented them.

We are trying to deal with Northern Ireland-specific issues. It is understood that MI5 will have a role in Northern Ireland in respect of not only international terrorism, but what is called domestic terrorism. The Minister’s arguments the other day were consistent with that. We want to make sure that the police ombudsman has the same reach in respect of those intelligence policing activities as it has on Northern Ireland citizens to deal with Northern Ireland affairs, and that that is not diminished.

Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Education) 4:00 pm, 18th January 2007

Once again, the hon. Gentleman is making a case for extended powers for one of the SDLP’s favourite institutions—the police ombudsman. The Chief Constable has publicly insisted that his demand that all human intelligence sources be handled by the PSNI in Northern Ireland has been met. Does the hon. Gentleman not accept that his scenario could not exist, as the police ombudsman will have the powers to review PSNI officers, and human intelligence sources will be handled by them?

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

The hon. Gentleman needs to look at other sources; the assurance on which he relies is not the only statement on the issue. The picture is not as straightforward as he suggests. In respect of sources that will be handled by the PSNI, remember that the key issue is primacy.

Other people are being foolish in trying to sell the false notion of separation between MI5 and the PSNI. The hon. Gentleman suggests that all agents would be handled by the PSNI, but the fact is that whoever handles those agents, a lot of them will function according to the MI5 agenda and interest. That further confuses the separation picture as well as the degree of interaction in that handling. If primacy lies with MI5, that has to be a worry.

Contrary to what the hon. Gentleman also suggested, the SDLP is advocating not extension of the police ombudsman’s powers, but retention of the scope of those powers as they currently apply to national  security issues. At present, the police ombudsman can seek information and inquire into the activities of MI5 in so far as they relate to matters of intelligence policing conducted by the PSNI. Matters that can be looked into now will not be able to be examined after primacy switches.

If the system has worked well until now, with no crisis having been created and no public interest having been compromised, why the shift? Some Committee members may ask how the police ombudsman can be able to pursue complaints against the PSNI and its officers and against a UK-wide body. The fact is that the police ombudsman can already investigate actions of staff of UK-wide bodies, such as the Serious Organised Crime Agency. Legislation coming to Parliament will give the Office of the Police Ombudsman for Northern Ireland the power to do likewise for Revenue and Customs staff and immigration staff when their work touches on and reaches into policing matters.

If that is okay for those agencies and is compatible and consistent with Patten, how can it be right to remove the police ombudsman’s powers of scrutiny and accountability in intelligence policing? That goes to the heart of confidence in policing in Northern Ireland and is where the worst abuses lie. Not only people with a political axe to grind but victims have genuine grievances and misgivings about how things were handled and how things that could have been prevented were not.

The new clause is essentially about ensuring that the police ombudsman is still able to perform the function that was envisaged before Patten. We must remember that she was able to do so even then, before we had Patten and before Secretary of State after Secretary of State assured the House that the situation was benign. When there was a much greater threat and more sensitive activity on national security and intelligence, the police ombudsman’s office was entrusted with the powers in question, but now for some reason it will not be. The idea that we can trust MI5 in a new role with diminished accountability does not square with experience in Northern Ireland or with the reality that the Government tell us we should embrace.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Northern Ireland Office

I credit my hon. Friend with one thing: he is consistent and persistent in raising the issue. He has done so for a considerable time now. We disagree and I am sure that we will continue to do so this afternoon, but let us agree on one point: the police ombudsman has done an extremely good job of ensuring that transparency and accountability in Northern Ireland is second to none in the world. There is more scrutiny, accountability and transparency in policing in Northern Ireland than anywhere else. That has been needed to create conditions in which, we hope, the whole community can have confidence in and support the police and the rule of law. Any democratic society requires that.

Despite the answer that he gave to the hon. Member for East Antrim, I am certain that my hon. Friend is seeking to extend the powers of the police ombudsman to scrutiny of the Security Service. The Government do not agree with that. My hon. Friend pointed out that other agencies involved in law enforcement, such as the Serious Organised Crime Agency, will come within the  purview of the police ombudsman. He is right: that is because such bodies are law enforcement agencies.The national security intelligence service is not a law enforcement agency and it would therefore be inappropriate for it to come directly under the ombudsman’s scrutiny.

I know that my hon. Friend does not accept this argument, but I shall put it anyway: there is already scrutiny of and accountability for the securityservice. There are the three groups of commissioners who oversee various elements of covert work in Northern Ireland:—the intelligence commissioner, the interception of communications commissioner andthe surveillance commissioner. There is also the parliamentary Intelligence and Security Committee and the Investigatory Powers Tribunal, on which my hon. Friend went into some detail, which was established in the Regulation of Investigatory Powers Act 2000.

My hon. Friend cited the case of Omagh, as he and his colleagues do regularly, and I echo the comments made by the hon. Member for East Antrim. The allegations that my hon. Friend made this afternoon on the failure to pass on information relating to Omagh have been refuted clearly by the Chief Constable. Our legal advice confirms that the view of the president of the Investigatory Powers Tribunal is that it has appreciable discretion to consider whether to hear and determine complaints against the intelligence and security agencies. It has more discretion than my hon. Friend gives it credit for, including the discretion to consider complaints from people who are not the subject of the surveillance—in other words, third parties can make a complaint. I keep hearing the argument that my hon. Friend has made today and I say to him in absolute sincerity that if people believe that there are grounds for a complaint, he should encourage them to make one, rather than persist with the argument that it is impossible for them to do so. Our legal advice is that it is possible for a third party to make a complaint, and the tribunal is the proper place to do so.

Where the police ombudsman has reason, consistent with her legal powers, to investigate the activities of a PSNI officer, she will continue to have the same powers as she has now. In that connection, the Security Service and the ombudsman’s office have been working together to agree arrangements governing the ombudsman’s access to sensitive information held by the Security Service. Sometimes, when conducting her own investigations in relation to her own remit, the ombudsman will need access to such sensitive information. It is a matter of record that the Security Service and the ombudsman are discussing arrangements for the sharing of such information and the drawing-up of protocols, which will also involve the Chief Constable. However, that applies only in relation to the investigations that the ombudsman is permitted to carry out, which does not and will not include investigations into staff working for the Security Service.

In addition to the scrutiny bodies that I have outlined, and following the announcement by my right hon. Friend the Prime Minister, Lord Carlile will also carry out annual reviews of the operation of the  arrangements. I should remind the Committee that those arrangements are normal and that it is abnormal for the national security intelligence security to be accountable to the Chief Constable in the way that it is at present. It is normal for such arrangements to be back on a UK-wide basis, and that should be celebrated as part of the return to normality that we all want to see in Northern Ireland. In conducting his investigations, Lord Carlile will consult the Chief Constable, the Policing Board and the police ombudsman, as well as talking to the First Minister and the Deputy First Minister and taking account of their views before reaching his own conclusions. Therefore, in addition to all the oversight that is already in place, there is also the role of Lord Carlile.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I think that we can all agree that Lord Carlile is one of the finest Members of the other place and that he comes from one of the finest constituencies in the land.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

The constituency of Montgomeryshire, for those who are not familiar with Lord Carlile’s Commons history. Although we can all agree that he does exceptional work in his scrutiny role, the Minister will remember, as the hon. Member for Foyle and I said during our discussion of clause 7, that Lord Carlile’s advice has been ignored. Although the Minister highlights the role played by Lord Carlile and others in the scrutiny of the security services, one of our concerns is that the Government may ignore their advice. To some extent, that compromises the case that the Minister is making to try to reassure us.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Northern Ireland Office

I do not agree with that remark. Lord Carlile has established a first-class reputation for his work and makes his recommendations. Although Ministers do not always agree with his conclusions, it is interesting that the Prime Minister was happy with his work and had enough confidence in him to invite him to take on his current role. Indeed, Lord Carlile was happy to accept that role, and I am sure that he will carry it out in his customary style. That will help to underpin the new and normal arrangements for national security intelligence to which we are moving.

To conclude, in addition to the measures that I have outlined, we have indicated that, as far as possible, we will make available to the public a high number of the memorandums of understanding drawn up between the Security Service, the ombudsman and, indeed, the Chief Constable. We have also indicated that we are happy for human rights advisers to the Policing Board to give their views on those memorandums. We are trying to be as open and transparent as possible, but we are not acceding to the request that the ombudsman should have full scrutiny powers over national security intelligence service personnel. In the end, it comes down to the fact that in Northern Ireland we have a police service that is open to greater scrutiny than any other in the world. As I have said, that should give us confidence.

Issues of national security cannot be subject to the same level of transparency as matters of policing. There are reasons why that is so. I am not saying that there should not be any accountability. I have just listed a range of measures by which the Security Service is held to account. As the hon. Member for North Down has reminded us, we face dire threats from international terrorism as well as the remaining dissident threat and other threats. It is important for the security and safety of ordinary people of Northern Ireland that the Security Service can do its job in an accountable way, but in a way that is not suited to the remit of the police ombudsman.

I regret to say to my hon. Friend the Member for Foyle that he and I will continue to disagree on the issue. However, I know that he will carry on making his point. He will do so as genuinely and constructively as he can, but we have to part company on the issue.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party 4:15 pm, 18th January 2007

I thank the Minister, at least for his last point. There is not much else for which I can thank him, but I genuinely thank him for what he said. He has made that point privately both to me and others. I hope that he accepts that, in advancing such arguments as we have been doing for a long time, neither I nor any of my colleagues are playing electoral politics. We are not. If the hon. Gentleman does accept that, I hope that he will convey it to the Secretary of State who has accused us of doing precisely that. The right hon. Gentleman has pretended to the BBC that he does not understand our worries or what we said about the Prime Minister’s written statement last week, and says that we are just playing electoral politics. We are not.

Other people might be approaching the matter with an eye to electoral politics, and spinning things for the Sinn Fein leadership and so on. We are not approaching anything to do with policing, justice and the Patten vision with an eye to electoral politics. In terms of electoral politics it has cost us to uphold Patten, implement Patten and take our stand for Patten. We are not playing electoral politics and we have never approached such issues from that standpoint. I hope that the Minister, who genuinely accepts that point, can persuade his right hon. Friend to accept it, too.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Northern Ireland Office

It has been fairly evident from our debates that an election is due in Northern Ireland. Various points have been made sharply with one eye on 7 March. I rejoice in that because it means that we can be confident that there will be an election and restored devolution, something that we all celebrate as and when it happens. I have every confidence that it will.

To underline my comments to my hon. Friend, I repeat that he has been consistent and persistent in raising such issues. He has not just raised them in recent weeks. He has done so over a period of time. I want to put that on the record.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

I think that the Minister is referring to a motivation for the Prime Minister’s written statement last week and the fact that it was signalled in advance to Sinn Fein. The first time that many hon. Members knew that it would be issued was as a result  of the Sinn Fein press release the day before, which purported to say what was in it. That was obviously to do with electoral politics, but not the old axis of Sinn Fein-IRA; it showed the new axis of Sinn Fein-NIO. It was clearly about electoral advancement. When some of us are pre-emptively attacked before a statement is issued courtesy of a Sinn Fein statement, we believe that we have the right to defend ourselves. We also think that we have the right to point out those parts of the Prime Minister’s statement that are pure figment, and those parts that are mere fig leaf in respect of Sinn Fein’s pretences about the issue.

I go back to the substance of the debate. The Minister made a strong point about the role of Lord Carlile. The hon. Member for Montgomeryshire made a valid comment. How can we rest on the subject of the Government’s reliance on the strong role for Lord Carlile when they feel free to dismiss his advice and clear recommendations? He made it clear that if there were to be any retention or renewal of emergency or special powers in Northern Ireland they should be renewed annually, as before, and not made permanent. The Government tell us, “Lord Carlile—that’s good enough,” but those of us who do not agree with his finding that the powers are appropriate are not convinced that he is the right person. When we see that the Government ignore his key caveat that the powers have to be annually renewable, we are left to ask, “If we are not content with his judgment on one point and the Government are not on another, what’s the big deal?”

Let us remember that all that Lord Carlile will dois review. That is no substitute for the police ombudsman’s complaint and investigation role. The Minister also raised the point of the Investigatory Powers Tribunal, suggesting that I should “encourage” people to complain to it. Given the record of how it deals with complaints and the fact that no reason has even been given, I am not sure that the word “encourage” describes how one could convince people to go to the tribunal.

Significantly, the Omagh families have made their case to a number of people about the difficulties that they see. They tried to take their case to the head of MI5, for instance, they wrote and sought meetings, they wrote to Ministers and so on. Nobody has given them the formal advice, “Oh, there’s no point coming to us with this. It’s really a matter for the Investigatory Powers Tribunal.” It is not some misunderstanding on my part that the Investigatory Powers Tribunal deals only with people who have been investigated by MI5, but that is clearly the understanding of the tribunal itself and what is understand by anyone who consults its website.

I am not satisfied that the Minister has answered the points. We are not looking to extend the reach of the police ombudsman in Northern Ireland into what people might call matters of national security. We want to allow the police ombudsman to continue to have a reach into those matters that citizens of Northern Ireland would have cause for concern or complaint about that related to matters relating to Northern Ireland. We are talking about sealing and preserving the role of the police ombudsman that has helped to underpin the new beginning to policing and has not undermined national security.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 2, Noes 15.

Division number 13 Nimrod Review — Statement — New Clause 2

Aye: 2 MPs

No: 15 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.