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13 Dec 2006 : Column 900

Mr. Eddie McGrady (South Down) (SDLP): The Secretary of State rehearsed a list of powers attributed to the Army—entry, arrest, stopping without suspicion, and so on—that are not within the ambit of or under the control of the PSNI. That potentially creates a hugely difficult political situation in Northern Ireland, particularly as the actions of the Army are not, and will not be, subject to the same investigation and scrutiny as those of the PSNI. They are not subject to the ombudsman’s office or to several other authorities that currently have the power to investigate activity by the PSNI if necessary. That route will not be available, or at least not to the same extent, where it is deemed that the Army may be at fault.

Mr. Hain: Again, I understand the point that my hon. Friend legitimately raises. During this summer’s marching season, and especially on 12 July, the Army was not involved, which is testimony to the work that has been done on the ground and to the dialogue and negotiation promoted between people who had never talked to each other before, including between the loyal orders and his party, which is fantastic progress. The object is not to have the Army involved at all. When it is involved, however, it will be involved in support of the police, under the accountability arrangements that I described earlier, and only in support of the police. In performing that role, however, it might have to make arrests and conduct searches. We must provide for circumstances such as those that occurred at Whiterock. If those circumstances occur at all in future in Northern Ireland, I think that they will be very isolated, as the past year has shown. However, the possibility is still there. Additionally, while the armed forces are not responsible for maintaining national security in the United Kingdom, they do provide focused support to the civil authorities.

Northern Ireland continues to be a challenging operating environment for the police and the Army, not least because the risk of terrorism from dissident republicans, loyalists and international groups remains real. Therefore, aspects of military support in Northern Ireland, including explosive ordnance disposal work, will remain different from that in the rest of the United Kingdom for the time being.

I am satisfied that the powers in the Bill are the minimum necessary, rather than the maximum necessary. We considered that extremely carefully, partly to address the points made by my hon. Friend the Member for Foyle (Mark Durkan) and his colleagues. The powers have been developed by considering the role of the police and military in the future, not by looking back at the past. Appropriate safeguards have been put in place, which will give some comfort to members of the SDLP and others in Northern Ireland. The safeguards ensure that the use of the powers will be reviewed each year, and that the Secretary of State will be able to repeal the powers by order, under clause 40, when they are no longer needed. As we make increasing progress towards normalisation, therefore, the option of lapsing the powers by order will be available, without the need for fresh primary legislation.

Mark Durkan: To assure those of us with concerns, the Secretary of State has simply offered the lapsing of powers. However, the Bill essentially makes permanent
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provisions that were on an emergency basis and subject to renewal. When the Terrorism (Northern Ireland) Bill was debated in October 2005, the Secretary of State said:

What has changed?

Mr. Hain: As I have described, 40 of the provisions will lapse under the Bill. That is a big change, in tandem with the normalisation that has occurred. In addition, as I just explained, I decided to insert clause 40—of course, I decided to insert all the clauses myself—as I was particularly concerned about that matter. I know that the hon. Gentleman and his party will share that concern. There will be a provision to lapse the powers by order, as and when circumstances require. In relation to devolution of policing and justice, the Executive will have an influence and be able to say to the Secretary of State that it is time for such powers to be lapsed, if it so judges.

Lembit Öpik: Why do we not therefore have a provision to renew powers, as we do in lots of other Northern Ireland legislation, whereby, if nothing else happens, the powers fall?

Mr. Hain: We have now got to the point at which we need legislation that marches in parallel with normalisation. The constant renewal process is not what we want. We want to put in place a long-term framework for the future, which—at the risk of repeating myself too much—contains the power to lapse by order certain provisions when they no longer seem relevant or have become outdated.

Mark Durkan: The Secretary of State referred to approaches that the Executive might make to the Secretary of State after policing and justice has been devolved. Is not he making huge presumptions about what the scope of the devolved powers and functions will be? Does not he recognise that the Bill is pregnant with implications and potential complications in relation to devolution of justice and policing?

Mr. Hain: I am not sure whether it is pregnant, but I understand my hon. Friend’s point. If he considers the Bill in the round, he will see that its different provisions, from the presumption for jury trial to replace Diplock arrangements, to the significant reduction and modernisation of police and Army powers and other matters covered, are appropriate for Northern Ireland today and, I believe, in the future, as they are designed to be.

Both the Northern Ireland Affairs Committee, chaired by the hon. Member for South Staffordshire (Sir Patrick Cormack), and the Independent Monitoring Commission have highlighted the problem of organised crime in the private security industry in Northern Ireland. The current regulatory scheme in Northern Ireland is focused on paramilitary organisations, and is designed to prevent private security firms from being used as a front for criminal activity by terrorists. Companies offering manned
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guarding services are granted a licence provided that a proscribed organisation will not benefit. The provisions in the Bill will bring arrangements in Northern Ireland into line with those in the rest of the United Kingdom.

David Howarth (Cambridge) (LD): I am now slightly confused about the Secretary of State’s position on the ouster clause, as he has just said that the Bill is for Northern Ireland in the long term. In relation to clause 7, however, he said that the special security circumstances of Northern Ireland were the reason for the provision. Is he saying that he expects the circumstances that justify clause 7 to exist in the long term?

Mr. Hain: I am saying that the provision is necessary because we cannot, in the foreseeable future, envisage a situation in which we would not want to keep the option for the Director of Public Prosecutions to go to a judge and say that it is not safe to have a trial in particular circumstances. I can provide the hon. Gentleman with figures on the massive reduction—from hundreds down to just tens—in the number of Diplock cases over the past 20 years, which shows the scale of the progress. As I said, the provision is for an exceptional and infrequent occurrence, but it must be in the Bill.

David Howarth: The Secretary of State referred to the circumstances in which the DPP would go to a judge, which, I think, would be acceptable to those on both sides of the House. As I read clause 1, however, the DPP does not have to go to a judge; he issues a certificate, hands it to the judge, and that is the end of the matter.

Mr. Hain: The hon. Gentleman is accurate, but the DPP must put the matter before a judge. If the judge took the view that the action was unreasonable, he would obviously have an argument with the DPP.

Mark Durkan: Will the Secretary of State consider what he was just saying? The fact is that the power will lie with the DPP to issue the certificate. He will decide to do so simply on the basis that there is a risk—not a likely or substantial risk, but just a risk—that the administration of justice might be impaired were a jury trial to be held. Once the DPP has issued that certificate, it cannot be questioned and challenged in the court, by the court or anywhere else.

Mr. Hain: Of course that is the case, but it strikes the right balance—

Mark Durkan: There is no balance.

Mr. Hain: There is balance. Otherwise, as I explained, there would be a risk to national security with the possibility of intelligence getting into the wrong hands. I repeat: the Bill is designed to ensure that juryless trials are the exception and hardly ever occur. We have looked at the process extremely carefully and taken advice from the Chief Constable and others involved in law enforcement, and the approach that we have taken seems to be the best one. It strikes the right balance between meeting the hon. Gentleman’s concerns and the overriding importance
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of ensuring that the administration of justice in Northern Ireland is not contaminated by jury intimidation, which it has often been in the past.

Mark Durkan: The Secretary of State’s point adds to our concerns rather than takes away from them. He suggested that the DPP would use the powers not just because of a risk to the administration of justice, but because of a risk to national security. Has the Secretary of State let the cat out of the bag? Is not that the real reason for the Government’s three-point turn?

Mr. Hain: We have had pregnancies and three-point turns; I do not know what we will have next. I have a lot of respect for my hon. Friend on this and other issues, but that is not what I was saying. My point was that if the DPP judges that there is a risk to the safe administration of justice because of information that he has received, the source of which is a matter for national security in terms of intelligence and so on, he is entitled to go to the judge and say, “This is a certificate for a juryless trial.” I am not trying to suggest anything else, anything more or anything less than that.

David Howarth: Will the Secretary of State give way?

Mr. Hain: Will we get rid of you after this?

David Howarth: Not for ever.

The Secretary of State implied that the trial judge could reject the certificate if it was unreasonable, which would be a sensible compromise, but that is not what the Bill does. Clause 2 simply says that the DPP will lodge the certificate with the court. There is no opportunity for the certificate to be rejected by the court. If there were—this is something for the Standing Committee to consider—it would be a wholly different matter.

Mr. Hain: Yes, it would be a wholly different matter, as I said. I considered that carefully and discussed it with those who would be involved in it, including the Chief Constable and his senior officers, and I am sure that we are taking the right approach in the circumstances in Northern Ireland. The hon. Gentleman is correct: the Bill is clear that the DPP essentially takes the decision and issues the certificate, but he must have good grounds for that. The judge may want to ask him privately about the decision. The alternative of effectively having a contested application for a certificate, with the defence and the prosecution coming into the picture, and the judge effectively being the determining agency, was examined. We considered it carefully, but it is a big risk in the circumstances, which is why we have opted for this provision. I repeat, however, that it is due to be focused on a very small number of cases, which will become increasingly infrequent over the years, and that is its purpose.

The remit of the Security Industry Authority will be extended to Northern Ireland. The regime will put greater checks on the industry to ensure that all those who work within it are properly qualified and fit to do so. The potential benefits are immense: better public
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safety, less crime, higher standards in the industry and increased competitiveness for Northern Ireland companies. However, it will take some time to put the arrangements in place. Both the Security Industry Authority and private security companies will need time to prepare. That is why the Bill also contains an interim regulatory regime to bridge the gap between the current arrangements and the future. The interim scheme builds on the current arrangements. It is designed to bear down on the problem of criminal activity in the industry as well as paramilitary exploitation.

Human rights underpin the Government’s view of a modern society based on opportunity and fairness for all. The Northern Ireland Human Rights Commission plays a major role in protecting and promoting human rights in Northern Ireland, and it is right that it has the powers necessary to carry out its duties effectively. Following consultation on the powers of the commission, the Government believe that they should be extended. The Bill is being used to grant the commission the power to compel evidence, to access places of detention and to rely on the European convention on human rights when initiating judicial proceedings. The commission already has the power to carry out investigations. Granting it the powers to compel evidence and to access places of detention will ensure that it can conduct investigations more effectively, as it has asked to do.

Mr. Donaldson: Is there not a problem with the Human Rights Commission in so far as there is still a concern within the Unionist community that its membership is not broadly reflective of the wider community? If the Secretary of State is going to give it additional powers, does he not need to address that confidence issue by broadening the commission’s membership to make it more accurately reflect the community that it serves?

Mr. Hain: I am aware of the position of the hon. Gentleman’s party on that, because the right hon. Member for North Antrim (Rev. Ian Paisley) and his colleagues have made that point to me repeatedly. On the other hand, I have talked to Unionist members of the commission, or those who align themselves with Unionism, and they are satisfied that it is conducting its activities fairly and impartially. Despite the initial reservations expressed about the commission’s leadership, everybody has now accepted that that has settled down and is working well. We should welcome its work, allow it to get on with its job and empower it, through the extra provisions, to do its job even better.

Lady Hermon: As the Secretary of State has praised in the warmest of terms the Northern Ireland Human Rights Commission and said that it plays a major role, what major role did it play in responding to the extension of non-jury trials? What was its response to the Bill?

Mr. Hain: As I said, it is my responsibility to introduce the Bill, but the commission has welcomed the additional powers that it provides. It asked for them and I am providing them, so of course it is pleased.

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Giving the commission the power to rely on the European convention on human rights in judicial reviews will allow it to bring important test cases to clarify points of law in situations when it would not be appropriate for an individual victim to do so. I guess that those will mostly be class actions. The provision will ensure that the powers are used appropriately by the commission and complied with fully by public authorities.

Mark Durkan: The Secretary of State said that the Human Rights Commission has welcomed the extra powers. Does he recognise that many of us advocated those extra powers from day one? Indeed, that was reflected in the powers given to the Irish Human Rights Commission, which was also set up because of the Good Friday agreement. Is he really telling the House that the Northern Ireland Human Rights Commission is happy with the qualifications and limitations on the exercise of the extra functions that the Bill imposes?

Mr. Hain: I am glad that my hon. Friend is pleased that we are doing something that he advocated a long time ago. The commission is broadly pleased with what we are doing because it asked us to do those things. He should be charitable about that and support us.

Lady Hermon: I thank the Secretary of State for giving way, but had he answered my question I would not have had to intervene again. Will he give a direct response? What was the response of the Northern Ireland Human Rights Commission to the extension of non-jury trials, as set out in the Bill?

Mr. Hain: I have no recollection of any formal representations on the matter. I am not saying that that they were or were not made; it is simply that I have no recollection of them. The commission’s main concerns were about its own role, and about provision being made for it to do its job more effectively. That is what we are doing, and I assume the hon. Lady supports us.

I am also using the Bill to make some other minor but worthwhile changes. For example, organisations are being added to the remit of the Chief Inspector of Criminal Justice in Northern Ireland. That will increase transparency and confidence in the operation of the criminal justice system. A technical change is being made to legal aid arrangements to give resident magistrates maximum flexibility in the grant of publicly funded legal representation. The Bill will also make possible the renaming of resident magistrates, helping to deliver one of the recommendations of the criminal justice review.

The Government will not take any chances with safety and security. The combination of these changes will ensure that we can provide justice and security for all the people of Northern Ireland as we continue the transition to a normal society. I commend the Bill to the House.

2.10 pm

Mr. David Lidington (Aylesbury) (Con): I think that the whole House welcomes the improvements in the security situation in Northern Ireland, which have made it possible for the Government to present the Bill today. The most recent summary was in the
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Independent Monitoring Commission’s 12th report in October this year. It stated that the commission no longer believed that the Provisional IRA was engaged in terrorism, and also stated:

The commission argued that the Provisional IRA had disbanded some of its key military structures, and that there had been a further erosion of its capacity to return to violence were it ever to wish to do so.

However, the IMC went on to identify continuing threats from other terrorist groups, which in my view do justify the retention of certain special powers for the limited circumstances described by the Secretary of State. It concluded that the Real IRA

It also concluded that the Continuity IRA

As for the loyalists, anyone who thumbs through the pages of the main Northern Ireland newspapers knows that their campaigns of criminal violence continue. The IMC stated that the UDA was still involved in violence and had

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