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Clause 7


Limitation on challenge of issue of certificate

Amendments made: No. 29, page 5, line 26, after ‘decision’ insert ‘or purported decision’.

No. 30, line 28, at end insert ‘, except on the grounds of—

(a) dishonesty,

(b) bad faith, or

(c) other exceptional circumstances.’.

No. 31, line 29, leave out subsections (2) and (3) and insert—

‘(2) Subsection (1) is subject to section 7(1) of the Human Rights Act 1998 (c. 42) (claim that public authority has infringed Convention right).’.— [Mr. Roy.]

Clause 9


Restrictions on disclosure of juror information

Amendment made: No. 35, page 8, line 1, leave out ‘by’ and insert ‘to’.— [Mr. Roy.]

Clause 14


Investigations: evidence

Mr. Eddie McGrady (South Down) (SDLP): I beg to move amendment No. 17, page 11, leave out lines 12 and 13.

Madam Deputy Speaker: With this, it will be convenient to discuss the following amendments:

No. 18, page 11, leave out lines 22 to 27.

No. 19, line 44, at end insert


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No. 20, page 12, line 1, leave out ‘not’.

No. 21, leave out from beginning of line 4 to end of line 16 on page 13.

No. 22, in clause 15, page 14, leave out lines 10 to 35.

No. 23, page 14, line 43, at end insert

Mr. McGrady: The amendments would ensure that the Northern Ireland Human Rights Commission can carry out its functions properly, with due process and an ability to penetrate some of the darker matters that might arise during its investigations.

On Second Reading, the Secretary of State stated that

the Bill

However, hon. Members who received a briefing from the Northern Ireland Human Rights Commission know that it sets out the Commission’s actual attitude and position. It states:

My colleagues and I tabled the amendments to try to tackle that problem.

Amendment No. 17 deals with a simple concern. Clause 14 inserts a new section 69A into the Northern Ireland Act 1998. The amendment would prevent the Commission from compelling someone to give information that would be unlawfully disclosed

We disagree with that restriction. Although it is found in the Equality Act 2006, which covers England and Wales, it has no Northern Ireland equivalent. For example, such a restriction is not found in the Fair Employment and Treatment (Northern Ireland) Order 1998, so there is no similar restriction on the Equality Commission for Northern Ireland when conducting fair employment investigations. Section 44 of the 1998 Act gives Assembly Committees the power to call persons and papers. The Police (Northern Ireland) Act 2000 and associated legislation does not restrict the Policing Board in such a way in its inquiries. Those are but a few examples to illustrate the premise that such restrictions have no relevance—or should have none—in Northern Ireland.

In all those cases, the key restriction, which is sufficient, is that a person cannot be compelled to produce documents that the High Court could not compel him to produce.

That is more than sufficient to protect the public interest. By going further and preventing the Northern Ireland Human Rights Commission from looking into anything that may not be given out under an enactment we could seriously impede the commission’s investigative powers. Amendment No. 17 was tabled for those reasons.

8 pm

The purpose of amendment No. 18 is to strengthen the investigative powers of the HRC. Proposed new
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section 69A (5) would allow any person who had a notice served on him to produce papers or information or evidence to apply to the court and argue that it was “unnecessary” to do so, or the matter had already been sufficiently investigated or was “unreasonable” or beyond the terms of reference of the investigation.

The HRC is already subject to judicial review and if it is doing something that is unreasonable or irrational, it can successfully be reviewed on those grounds in the same way as any other body with investigative powers in the north can be reviewed. The ability to go to the county court, which is unique to Northern Ireland, is therefore unnecessary. Furthermore, the question of whether the subject is sufficiently investigated is a matter for the commission to resolve with other bodies through agreed memorandums of understanding or protocols. Again, this provision, although it may appear in the Equality Act 2006, is unprecedented in Northern Ireland terms and undesirable in policy terms. Finally, in respect of amendment No. 18, if the NIHRC exceeds its terms of reference, that could also be a matter to be resolved by way of judicial review.

As the Bill stands, the Director of Public Prosecutions cannot be the subject of a notice to hand over documents, information or papers, so amendment No. 20 is designed to address that issue. Given the controversy surrounding the handling of a number of cases by the DPP’s office, it is only right that it can be investigated. There is a precedent for having inquiries into the DPP. For example, the Macpherson inquiry into the killing of Stephen Lawrence was able to investigate the DPP’s office and the inquiry report found that it was essential to examine the DPP’s handling of the case.

By contrast, in Northern Ireland, there were serious allegations of police collusion surrounding the murder of Robert Hamill—and it was every bit as serious, if not more disturbing—yet so far the Government have not agreed that the DPP should be examined, despite the fact that the DPP office played a very important role in the overall handling of the case. Similar issues arise in respect of the first trial of Ulster Defence Association man Billy Stobie, who was found in possession of weapons, but after he threatened to reveal that he was an informer and warned his handlers that a man was about to be murdered using a weapon that he had supplied to the UDA, the charges were dropped without question. That should be investigated. Surely it must be subject to some sort of review. No explanation was ever given to the people involved for that particular decision. I refer, of course, to the murder of Pat Finucane.

Given all those serious questions, it is only right and desirable that the Human Rights Commission should have the powers to investigate the Public Prosecution Service. The commission has needed to act in those controversial cases, but many victims of ordinary crime will feel that their rights have been violated at various times. Giving the HRC the power would be an important reassurance that the Public Prosecution Service has entered a new era of accountability, just as the Police Service of Northern Ireland now has a new dispensation and regime. That is why we propose amendment No. 20.

I will not deal with amendments Nos. 19 or 21, 22 and 23, because I hope that my hon. Friend the Member for Foyle (Mark Durkan) will catch your eye,
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Mr. Deputy Speaker, and deal with those proposals. In general, however, I hope that all our amendments in this group will find some resonance with the Minister. If the Government do not feel able to respond immediately, I believe that these proposals are worthy of further consideration and I like to think that Ministers will take our comments into account, reflect on them and have a further review.

Mark Durkan: I speak in support of my hon. Friend the Member for South Down (Mr. McGrady) on amendment No. 17 and I will also address some of the other amendments in the group.

Amendments Nos. 19 and 23 are designed to ensure that the commission’s investigatory powers are enforceable in reality. If investigative powers are to be meaningful, a key issue is the sanction that can be applied. If the sanction is weak, the investigative powers are consequently and equally weak.

Lady Hermon: Will the hon. Gentleman reflect for a moment on the analogy that the SDLP often draws in order to increase the powers—wrongly, in my view—of the Northern Ireland Human Rights Commission? A parallel is always made with the powers of the Irish human rights commissioner. Does the Irish human rights commissioner have the power, for example, to investigate the Director of Public Prosecutions or to impose penalties and fines for non-co-operation? Are the powers comparable at all, or has the hon. Gentleman and his colleagues just dreamt them up out of the blue?

Mark Durkan: First, I can assure the hon. Lady that we have not just dreamt them up out of the blue. We have made the case for the powers of the NIHRC not just on the basis of the powers of the Irish human rights commission. We have simply refuted other arguments that the hon. Lady has made on the basis that both human rights commissions are sourced in the Good Friday agreement. The hon. Lady has tried to argue in the past that, because the NIHRC was not a national commission, it should not have the same rights. That was our point on that matter. My hon. Friend the Member for South Down and I are trying to present arguments about the powers that we want the HRC to have in respect of the Public Prosecution Service. In our earlier debate, we discussed the powers intended for the DPP, which are not entirely irrelevant.

Lady Hermon: The hon. Gentleman refers to the Belfast agreement, a copy of which I have here with me. Perhaps he will identify which clause, which paragraph, which sentence, which line, which dot or which comma says that the powers of the NIHRC should be extended to investigate the DPP or to impose fines for non-compliance. If he can do so, I will be absolutely staggered and amazed. If he would like to borrow my copy later, he can identify the clause that provides for that.

Mark Durkan: I no longer understand what point the hon. Lady is trying to make. I was refuting a point that she made. She suggested that we had always argued that the NIHRC should have powers absolutely equal to—and, she suggested, only equal to—that of the Irish human rights commission, but we never made
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that argument. All we did was refute other arguments that she had made in the past. She said that the Paris principles should not extend to the NIHRC because it was not national in the sense that the Irish human rights commission was. We made the point that the Irish human rights commission and the Northern Ireland Human Rights Commission are both sourced in the Good Friday agreement. That was our point.

Let me return to the sanctions applicable for failure to co-operate with the HRC when it exercises its investigatory powers. The penalty is merely level 5 on the standard scale, which is just £5,000. In reality, it might be easier for people or bodies simply to pay the fine, and not to bother co-operating with the Human Rights Commission’s investigation.

The Government might well point out that the same rule applies to the UK Commission for Equality and Human Rights, established by the Equality Act 2006, but they will not be surprised to hear that, for the SDLP, that is no justification. That is especially true when the obstruction of an Equality Commission investigation in Northern Ireland under the Fair Employment and Treatment (Northern Ireland) Order 1998 can be treated as contempt. Equally, refusal to co-operate with an inquiry by an Assembly Committee carries a penalty of up to three months in prison. The same applies to inquiries established under the Health and Personal Social Services (Northern Ireland) Order 1972, which sets out the standard terms for any inquiry undertaken by Northern Ireland Departments. The same rule applies to the obstruction of Policing Board inquiries, and we believe that it should also apply to the obstruction of Human Rights Commission investigations. The fact that it will not do so represents a serious omission and a gross disparity.

That is why amendment No. 19 provides for a penalty of up to three months’ imprisonment for obstructing a request for a person to give evidence or to supply information or papers. Equally, it is why amendment No. 23 would provide for a similar penalty for the obstruction of the Human Rights Commission’s powers of entry.

Amendment No. 21 is designed to remove the massive exclusions in the Bill relating to the national security and intelligence services. If the intelligence services or others believe that divulging certain information would prejudice national security, they can refuse to do so. It would then fall to the Human Rights Commission to apply to the Investigatory Powers Tribunal to seek the information—some chance of that actually happening! The tribunal cannot consider the matter on its merits; it can apply only the judicial review standard. We know that the chances of success before the tribunal are absolutely minimal. For instance, of the 380 complaints heard by the tribunal to date under the Regulation of Investigatory Powers Act 2000, not one has succeeded and not once has any reason been given.

No doubt we shall be told that the UK Commission on Equality and Human Rights does not have the power to investigate the security services, but, in the context of Northern Ireland, such a blanket exemption is unacceptable because, as Ministers have told us in Committee and elsewhere, the security services are
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playing a different and very distinct role in Northern Ireland compared with their position in Britain.

This might matter less if the police ombudsman were able to investigate wrongdoing by MI5 officers in Northern Ireland, but the Government absolutely reject that possibility as well, even though the police ombudsman will have powers in respect of other UK agencies including the Serious Organised Crime Agency and—under forthcoming legislation—Revenue and Customs, where its work touches on policing matters. Given that the Government are removing aspects of intelligence policing from the reach of the key powers of the police ombudsman, we believe that it is entirely reasonable that the Human Rights Commission should be given some role in this area. That is why we have also tabled amendment No. 21.

8.15 pm

Lady Hermon: The hon. Gentleman did not understand why I referred to the Belfast agreement in my last intervention. I did so in response to his point that the Human Rights Commission took its powers from the agreement. In the light of the huge extension of powers that he is trying to persuade the House to agree to, I should like to read a brief extract from the agreement to him. It states that the powers of the Northern Ireland Human Rights Commission are to include

Where on earth in the Belfast agreement—which the hon. Gentleman’s party supports—does he see the authority for extending in such a dramatic form the powers of the Northern Ireland Human Rights Commission?

Mark Durkan: The Human Rights Commission was given a wider brief than that, even in the legislation that established it—the Northern Ireland Act 1998—just as that Act provided for many things that went way beyond the wording and detail of the Good Friday agreement. There are many powers and changes in this and other legislation that go well beyond the text and terms of the agreement, some of them for good reasons and some for bad ones. If the hon. Lady is suggesting that nothing can be done unless it can be bound within the strict confines of the wording of the agreement, there would be very little that we could legislate on or amend in the future, including many of her own party’s proposals.

Amendment No. 22 is designed to get rid of petty restrictions on the power of the commission to enter places of detention. As it stands, the Bill provides that the power to enter places of detention cannot be exercised within 15 days of the terms of reference of the investigation being sent to the person running the place of detention. That 15-day restriction period would, of course, give anyone enough time to clean up their act, or to cover up any inactions that might have brought them to the attention of the commission in the first place.


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