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Lord Carlile offered those views when the Government sought endorsement of the Terrorism Bill on the basis that it was purely a continuing temporary requirement. So far the Government have not relied on anything new
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or different in respect of the proposals in the Bill, which are obviously much more far-reaching than those of the Terrorism Act 2006.

The Bill makes a three-point turn both on the changes that were promised and heralded in the 2006 Act, and on the commitments made by the Government in the joint declaration of 2003. We warmly welcomed the commitment in the joint declaration to abolish emergency laws specific to Northern Ireland.

The Secretary of State says that there are few Diplock courts. There should be none. An outcome should not turn on the opinion of one person, who may have some bias or may misapprehend the facts. In that situation, the accused can quickly become the convicted. Once an injustice has been done, it can be years, or more likely decades, before it is undone. We need only to consider cases such as that of Christy Walsh to understand what can go wrong.

When the Government rightly implemented, in the Terrorism Act 2006, a move away from Diplock, why do we have these attempts to ensure that Diplock can continue in perpetuity, without being subject to renewal provisions or parliamentary scrutiny in future? The Bill recycles provisions that previous legislation was meant to repeal. Clauses 1 to 8 provide for the continuation of Diplock courts, but now on a permanent basis. Clauses 20 to 41 provide key emergency powers for the British Army; for example, to stop and question, to search, to arrest and to enter premises and vehicles. The Government tell us that the Bill normalises Northern Ireland, yet they are giving the Army powers that it has nowhere else.

The Bill institutionalises the Diplock court and the powers of the British Army in the north. They are not temporary powers to be renewed every year; they are permanent and face no test of renewal. The Secretary of State should understand that the Bill will have an impact on the debate about the devolution of justice and policing. Its provisions will certainly have an effect on the implementation in the future of that devolution in practice.

Of course, we realise that the British Army will shortly be down to garrison strength only—at least if we can rely on the Government sticking to that commitment given in the joint declaration and elsewhere. We hope that as our security situation improves, powers will not be used as often as they were. In that context, how can we justify providing permanently for such powers? If the Government press ahead with those powers for the Army, which are supposedly—the Secretary of State tells us—to be used only in support of the police when the Army is called in aid, will the Army face the same accountability as the police in that situation? The police ombudsman has called for that.

Mr. Hain: I do not quite follow my hon. Friend’s point on the devolution arguments, so I would be grateful if he clarified it. I was making the point that when we get devolution of policing and justice and when there is a policing and justice Minister—whether it be from the SDLP, DUP, UUP or whatever—if the Executive made it clear through that Minister that it
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was time for some of the order-making powers provided in clause 40 to lapse, that would obviously weigh powerfully on any Secretary of State’s mind. The devolution of justice and policing is a protection in that respect for the concerns that my hon. Friend is expressing.

Mark Durkan: 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 on 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

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
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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 sub-group of the Programme for Government 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
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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.

Mr. Hain: The hon. Gentleman is putting up an entirely false proposition. As Secretary of State, I cannot challenge the DPP now; nor can my security Minister, the Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins). We do not challenge the DPP. The DPP has an entirely independent role, as has the Chief Constable. With due respect, the hon. Gentleman is making a huge meal of this, and he could make his case more effectively without distorting that position.

Mark Durkan: I thank the Secretary of State for that attempt to clarify. To be very clear to him, I am not making a meal of this. I do not introduce Bills and clauses into the House only to reverse them, pull them, change them and turn them upside down in subsequent Bills, as is happening now. People who make meals of things are chopping and changing legislation; they go one way and then another, and they then double back in some other provision.

I am not suggesting that a devolved Minister of justice should be able to challenge the DPP’s decisions; but as the hon. Member for East Antrim (Sammy Wilson) pointed out earlier, there have been cases where people have wanted to question and to seek more information about what considerations were used by the DPP in deciding, for instance, not to prosecute supposedly in the public interest. The public have a genuine interest in wanting to know what their alleged interest was in that situation. The fact is that, in a devolved situation, a devolved Minister will find himself answering those questions.

The Secretary of State introduced into the debate the fact that the DPP might decide to go for a non-jury trial, as opposed to a jury trial, because of national security considerations. The Bill does not say that national security considerations would motivate or
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justify that decision by the DPP, but the Secretary of State introduced that. Is that an example of what the hon. Member for Montgomeryshire (Lembit Öpik) was talking about earlier when he referred to the danger of mission creep? We have already had condition creep.

Four conditions are set out in the Bill, but we now hear a fifth condition being talked about today. If it is not being legislated for today, it will be legislated for very soon, because that has been the history and the pattern in such legislation. The fact is that people in parties who are looking at either themselves or others holding a devolved ministry or taking part in an Assembly that has devolved powers will want to know where their powers begin and end.

The Parliamentary Under-Secretary of State for Northern Ireland (Paul Goggins): With the Bill, it is important to be very specific about the powers that we are introducing, rather than running away with wider rhetoric. Yes, my right hon. Friend the Secretary of State mentioned national security, but what he means—this is important in these deliberations—is that if a defendant has been charged with a serious offence in certain circumstances described in the Bill and the test is passed and if some specific intelligence about that defendant is a matter of great concern, obviously the DPP should take that into account when making his decision. It is not a wide consideration of national security; it is a specific consideration in relation to that individual.

Mark Durkan: I thank the Minister for that attempt to clarify. I hope that he can point us, either now or in future, to exactly where the Bill makes that very precise clarification. I see it nowhere in the Bill. The hon. Member for Montgomeryshire touched on just how sweeping the conditions are: to exercise the power—to say, “Diplock it will be”—the DPP simply has to decide that there is a risk that the administration of justice might be impaired. There need not be a substantial risk or a serious risk. There is absolutely no test or qualification. There need only be a risk, and no one can test or ask on what that risk is based.

From what we are hearing from Ministers, it seems that that risk can be based simply on a whisper coming from the intelligence services to say, “This guy is one of ours,” or, “Complications could emerge, so this is what we want done.” That is not a legitimate interpretation of a risk to the administration of justice, so the Secretary of State’s and the Minister’s attempts on the issue give us more cause for concern. Let us remember that they introduced national security in relation to these powers. As I indicated earlier, I believe that they have inadvertently let the cat out of the bag about what is really motivating these powers.

Dr. William McCrea (South Antrim) (DUP): Is the hon. Gentleman not concentrating an awful lot of his time in the debate on, and getting excited about, the subject of a Ministry of policing and justice, when the reality of the devolution of policing and justice, and that ministry is not on the horizon?

Mark Durkan: The hon. Gentleman makes a point coming from his political angle. I will not be drawn into
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that debate in relation to the question of the timing of the devolution of justice and policing or anything else. We want it to happen sooner rather than later. We did not agree with the DUP picking up the vetoes on the timing of that question, as it did with the Northern Ireland (Miscellaneous Provisions) Act 2006, which the House passed in May. We believe that, if all parties work properly on these issues, we can remove a lot of the apprehensions.

If we work on the practicalities, we find that the main ministerial powers to be transferred relate to getting the budget for policing—not even setting the budget, because that is done by the Chief Constable and the Policing Board—and to the legislative function involved in providing the criminal and other legislation that is needed for good policing or for the police to perform on behalf of the public. That is the main ministerial function involved. The interesting test then relates to some of the Secretary of State’s powers, to which he has referred—some of them are courtesy of the Bill and others are existing powers—which he is clearly now assuming that he will retain in the context of devolution and that the most a devolved Minister can do is sue to or lobby the Secretary of State in exercising his powers.

Rev. Ian Paisley: Is the hon. Gentleman now telling the House that his policy is to reject the miscellaneous law, and that we should change the 2006 Act to give a freeway for Sinn Fein to get into power?

Mark Durkan: The right hon. Gentleman knows that when that Bill was being considered in the House we had tabled amendments that would have unpicked the triple lock. Indeed, during consideration of the Northern Ireland (St Andrews Agreement) Bill, which was before the House only a couple of weeks ago, there was not time for us to reach such amendments—not least thanks to how Opposition Members conducted the debate on their own clause. Again, we had tabled amendments to that Bill that would have unlocked the triple lock. We want to enable the devolution of justice and policing to take place, alongside the other devolved powers. We believe that, when we have devolved ministerial powers for justice and policing, it will be the consummation of political change on the one hand and policing change on the other. Devolution will take place in a way that shows that people have confidence both in policing, as it will then be conducted, and in the durability and sustainability of the political structures in Northern Ireland.

Dr. McCrea: Surely, the vast majority of the people of Northern Ireland already have confidence in the police and in the service and protection that they give to the people of Northern Ireland. They deserve our wholehearted support.

Mark Durkan: The hon. Gentleman knows that our point is that all parties should explicitly give that support, which is why we had no issue with, for example, extending the terms of the ministerial pledge of office to include that very statement. What we are saying to Sinn Fein is that the absence of the devolution of justice and policing to date is no excuse for its not having done what it needs to do in relation to policing. Even the concerns that we have recorded
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today about MI5 and the residual Diplock provisions in the Bill should not be excuses for Sinn Fein failing to do what it needs to do on policing. They are valid issues and complications for Sinn Fein and ourselves, and hopefully other parties, to pursue in the context of the discussions that we have to have on the devolution of justice and policing. However, they should not of themselves be impediments or excuses for Sinn Fein not doing what it should do to fulfil the democratic norms and to return the confidence that the public, Governments and others have vested in it in this long-running process.

I want to remind the Government that we will table amendments in Committee—not just on the MI5 question, but on the powers of the Human Rights Commission. Although the Secretary of State has said that the powers are extended significantly, we should remember that those extended powers come into play only after 2008. The qualifications and limitations on the exercise of those extra powers are such that they leave one thinking that the Government now spend more time suspecting the people who are on or working for the Human Rights Commission than—

Lembit Öpik rose—

Mark Durkan: I give way.

Lembit Öpik: Will the hon. Gentleman take some solace and encouragement from the comments of the Secretary of State for Northern Ireland? In response to an intervention about what the judge could do if the judge was not happy with the DPP’s decision to have a non-jury court, he said, “The judge will have an argument with the DPP.” In other words, the Secretary of State himself wants there to be some kind of sanction for the judge, so presumably clause 7 is an oversight.

Mark Durkan: I thank the hon. Gentleman for that point. He draws attention to the fact that the Secretary of State offered an assurance that completely contradicts the Bill that he is presenting. The Bill is at pains to ensure that there can be no challenge by a judge or anyone else and no check whatsoever on the exercise of the DPP’s powers.

Lady Hermon: Will the hon. Gentleman clarify his party’s position? He has indicated clearly to the House that his party is not in favour of a continuation of Diplock courts—with which I disagree. He has indicated that he is not one bit pleased with the proposals in the Bill for a continuation of non-jury trials. How exactly would the Social Democratic and Labour party deal with the really serious problem in Northern Ireland of jury intimidation and intimidation of witnesses by loyalist paramilitaries, and dissident republicans, and traditional republicans—members of the Provisional IRA? How does the SDLP suggest that we could deal with that?

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