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Bearing in mind that virtually the same provisions were made in Schedule 2 to the Equality Act 2006, the commission would still insist that the particular circumstances of Northern Ireland justified a different approach. It would also point out that the Irish Human Rights Commission did not have that limitation in its statute. Under Section 8(11) of the Human Rights Commission Act 2000, the IHRC cannot demand evidence from a person if that evidence is subject to legal professional privilege. There is, however, no mention in that Act of national security overrides.

Surely a compromise would be to allow the RIPA tribunal to authorise or deny the calling of evidence, but to reject the blanket ban on investigating the intelligence services. At least questions could be asked of the intelligence services, even though there would be no obligation on them to give any answers. I beg to move.



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6.45 pm

Lord Glentoran: The noble Baroness will not be surprised to hear that I disagree with almost everything she has just said. It is absolutely vital that we and the Government recover ourselves in relation to our intelligence services. They must be able to operate in the way they need to to protect us.

In this country, Ireland, and, for that matter, most places in the world, we are all at higher risk from more sophisticated forms of terrorism than we have ever been including the whole of the Cold War. Our intelligence services being unable to work freely and competently through the lines they have for many years will undermine one of the key defences of this country. That simply has to be taken on board.

Baroness Park of Monmouth: When national interests and not just the interests of a part of the United Kingdom are concerned, the national interest has to come first. There is no doubt in my mind that one question always leads to another. If questions are asked, even if they are not answered, they will give pointers to the people who are interested in breaching our security. I feel very strongly that it is absolutely unacceptable to have a body which will be good-hearted and enthusiastic and so on, but which will not necessarily have the faintest idea of the implications of what some of the inquiries it wishes to pursue may lead to. That really cannot be allowed, and I strongly support what the noble Lord has said.

Lord Rooker: It was only towards the end of the remarks of the noble Baroness, Lady Harris, that I took on board that she fully understood what she was asking for—that is, a completely separate arrangement in Great Britain to Northern Ireland. I have to say—and I want to give a decent answer—the issue is just non-negotiable. The position is as in the Bill. It would be quite untenable to have a different arrangement for these issues in Great Britain.

Notwithstanding that, the noble Baroness, answered one of her own questions. She asked, “Where can the human rights aspects of the security services be raised?” She then referred to the fact that RIPA, the Regulation of Investigatory Powers Act 2000, is there to consider, among other things, complaints against the intelligence services, including matters relating to human rights. She answered her own question.

The point is that nobody would argue that it is important that the Northern Ireland Human Rights Commission can carry out effective investigations. No one would argue against that, and it is important that it should not be unnecessarily impeded. However, it is also important that we do not allow individuals or organisations to access or consider material that might jeopardise the interests of national security. Noble Lords have not questioned the exemptions relating to national security material.

Without access to such material, the commission could not provide effective oversight of the intelligence services. That oversight is provided by another body, the Investigatory Powers Tribunal, which was set up by the RIPA 2000.

I repeat the point I made on the previous amendment; this exemption is the same as that which

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applies to the Commission for Equality and Human Rights in Great Britain. As such, if we were to remove the provision, it would create a difference between the ability of Great Britain and Northern Ireland bodies to investigate the intelligence services. We are simply not willing to create such a difference. So, unlike on the first amendment, I cannot promise to take this away and come back having considered it again. The position is simply non-negotiable and I have to be quite clear about that.

Baroness Harris of Richmond: I thank the Minister for his response but he will understand my disappointment with it. I recognise that the same will apply to England and Wales; nevertheless, that does not diminish my suggestion that questions need to be asked if they have human rights implications. That goes across the board, both in England and Wales and in Northern Ireland. Is the Minister really saying that nothing at all can be questioned regarding the security services? That is an extremely dangerous road for us to go down.

While I recognise that it is vital to maintain our national security—I have no intention of trying to lower such terms in any way—there must be an ability to ask questions somewhere. While I will withdraw the amendment at this stage, we may well come back to this matter on Report, probably to get another bashing over the head. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Trimble moved Amendment No. 23:

The noble Lord said: Perhaps I may preface my comments by saying how much I agree with the noble Lord, Lord Rooker, in his response to the previous amendments, and I would like him, as we consider this amendment, to bear in mind what he has just said and to be prepared to follow the logic of his previous contributions.

The Northern Ireland Act 1998 created the Northern Ireland Human Rights Commission and gave it a power to conduct such investigations as it considered necessary or expedient. Clause 14 provides supplementary material with regard to such investigations by inserting two new sections into the 1998 Act. New Section 69A states:

the 1998 Act,

The provision for protection of national security is contained in new Section 69B and states that where the commission requires a person,

that person can disregard that. Similarly, if the information,

that can be disregarded. If it requires disclosure of information,



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that, too, can be disregarded, as can,

In those circumstances the commission can apply to the tribunal, mentioned by the Minister, established by the Regulation of Investigatory Powers Act, and the tribunal can then look at the matter. To make doubly sure, there is a provision that a person,

requiring information to be disclosed,

All of those provisions are there to govern investigations by the Human Rights Commission, to protect intelligence information and to protect national security. Broadly, in principle, all of those provisions are right and that is why they should apply not just to investigations by the Northern Ireland Human Rights Commission, but to investigations by the Police Ombudsman for Northern Ireland, who is not subject to any of those provisions. These matters are considered to be important to protect national security, but the same protection of national security does not exist with regard to the police ombudsman, and ought to do so.

I can illustrate that simply. The noble Baroness referred to the recent report by the police ombudsman into alleged collusion between the police and loyalist paramilitaries. Recently, my noble friend Lord Maginnis brought over here some very senior members of the Royal Ulster Constabulary, including a former assistant chief constable. We were chatting about the report and I said to him that what really took the biscuit in my mind was the Monaghan case. This is relevant. The Monaghan case involved a police agent in the Ulster Volunteer Force informing the police that the UVF was going to take a car bomb to Monaghan in order to blow up a republican meeting. The agent informed the Special Branch that the explosives were hidden in a dump. The police got hold of the explosives and took them away, doctored them and then replaced them in the dump. The car bomb vehicle was driven into Monaghan. The detonator went off, but the bomb did not.

Because of the absence of some bits of paperwork, the police ombudsman concluded that this was collusion. I said to the former Assistant Chief Constable that it struck me as utterly ridiculous to come to such a conclusion. But he pointed out to me that it was worse than that because the disclosure of the information was highly prejudicial to national security. Initially I did not fully appreciate the problem, but the ACC said that although over the years journalists had written pieces to suggest that that sort of activity went on—that the authorities had been able to doctor weapons and tamper with explosives to make sure that they could not be used, they had never openly disclosed it—only when it was referred to in an official report from the police ombudsman was it then impossible in the future for the Crown to get a public interest immunity certificate to prevent the disclosure of such activity.



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The ACC went on to tell me that if an application is made for a public interest immunity certificate, one of the first questions is, “Has this information ever been disclosed in an official document?”. Until the publication of that report, the authorities could say that it had never been disclosed. It then appeared in the ombudsman’s report. These are matters which should have been kept confidential, but they have been revealed and thus exposed an aspect of the operating methods of the security forces in a way that will prevent the authorities keeping such information out of the public domain. In doing this, what has been undermined is not just an aspect of the reputation of the Police Service of Northern Ireland, but a significant aspect of national security affecting everybody in the United Kingdom.

I had reason to point out in an earlier exchange with the Attorney-General that there is a terrorist problem on a substantial scale in Great Britain, and that we have yet to see the full working-out of it. I am not going to speculate about whether there have already been cases in England where this kind of technique has been used, although I can think of some examples where bombs manufactured by terrorists have failed to explode. Whether it was because of the failure of the people who built the bombs or something analogous to what I have just mentioned took place, I do not know, but I refer to it merely to underline the point here: what was unnecessarily disclosed in that report could undermine national security for the whole of the United Kingdom; it is not something unique to Northern Ireland.

In this clause we have a set of provisions to regulate the disclosure of sensitive information. The provisions are reasonably balanced in that with regard to all the circumstances listed in subsection (1) where the person can refuse to disclose information, the matter can be appealed by the commission, it can go to a tribunal under the 2000 Act and be weighed and examined there. There is a desperate need for a similar procedure with regard to the police ombudsman. We have already had one case. I know that my noble friend Lord Maginnis has studied this matter carefully and will be able to give other examples of disclosure by the police ombudsman of sensitive information which should not be in the public domain. Such disclosure is embarrassing not only for the individuals concerned, but is also something that can have an effect on national security.

The Minister said, and I agree with him, that it was desirable as a general rule to have the legal regime that relates to these matters the same in all parts of the United Kingdom. That is right, and it is a principle I myself have advocated. It may be that, when the initial legislation providing for the Police Ombudsman went through, people had not turned their minds to the fact that the ombudsman would not restrict herself to pure policing matters but would start to inquire into matters that touched on intelligence and national security. This gives us the opportunity now, knowing that the Police Ombudsman has uprated, in a way, and has conducted investigations that get into intelligence matters and relate to national security, to have the desirable safeguards with regard to that office that apply to the Northern Ireland Human Rights Commission.



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7 pm

The noble Baroness, Lady Harris of Richmond, who moved the earlier amendments, could easily have used as an argument for saying that the Human Rights Commission should be free to conduct these investigations the fact that there is another body to inquire into intelligence matters and things that affect national security, and it can do so without any restraint whatever. That would have been a powerful matter to adduce in support of her argument. I would turn it around the other way: if, as the Minister said, these restrictions are necessary in the public interest, they ought to be necessary in all circumstances in the public interest when we are dealing with intelligence and national security matters.

This is an argument for consistency and for extending the safeguards that have been put in this legislation, which the Minister supports. He must therefore be prepared to follow the logic of his arguments, and not undermine them by saying, “While it’s very important that the Human Rights Commission can’t look at this, we’ll allow this other body to look at all these matters to its heart’s content”. That position cannot be defended. The Minister needs to reflect seriously on this matter. I beg to move.

Baroness Park of Monmouth: There are two issues here. One is the protection of the operation of the secret services. That is adequately policed, and need not be policed by anyone else. The body mentioned by the Minister exists. The other is the confidence of agents. If agents feel there is any danger that they are going to become an interesting subject in a report, you will not get agents. That will affect not just Northern Ireland but the whole country. Intelligence is indivisible across the United Kingdom, basically. We have to remember that the agent who looks at reports like that is going to go away and say, “I don’t think I will co-operate after all. It is much safer to keep my head down, keep my mouth shut and not do anything”. Please let us remember that too.

Lord Maginnis of Drumglass: I begin by saying to the noble Baroness, Lady Harris, that some of us find it extremely hurtful that people can adjudicate and comment on the events of the past 30 years in Northern Ireland as though somehow they were there and saw our services, our Armed Forces and our police, behaving extremely badly. The reality of those 30 years was that many of us left our homes at night with our wives and children locked in the house, not knowing, bluntly, if they would see us again. Throughout those 30 years the vast majority of people, whether they were footsoldiers, as I was for most of the time, or involved in intelligence work or whatever, acted in a manner that enabled Northern Ireland, despite 3,500 deaths, to operate normally. People went about their work, children went to school, our hospitals operated and normal politics continued. I see in this Room people who have worked hard in Northern Ireland and will understand exactly what I am saying.

That is so important in defining what should fall directly within and outwith the terms of a Bill of this type. As for the idea that somehow we are talking about masses of people in a Balkans region, we are

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talking about Northern Ireland and the United Kingdom, not the Balkans, not a region dominated by someone called Mugabe, we are talking about a region which, despite terrorism, basically operated as a community should operate. That is why I so deeply resent some of the work that has been done. The Minister knows that I have been single-minded during the past three years in my opposition to the Police Ombudsman for Northern Ireland. If I may, I shall give an example of the type of thing that happens.

A young policeman is driving a vehicle in Belfast during a riot. The vehicle is seen on television, there are television pictures showing that it mounts a footpath. Sitting at home is the Police Ombudsman for Northern Ireland. She thinks that that is dreadful. The next day, she dispatches her minions to knock on doors in that area to ask if people have complaints. Strangely enough, they have no complaints—I think that they are as fed up with the terrorism as everyone else. Does it stop there? It does not. The Minister will remember giving me a Written Answer in the case to which I allude. The young policeman was brought to court on 29 occasions. The incident was in 2001. It was brought to court the first time in 2003. He was still in court at the end of 2004 and eventually was discharged.

The power of the police ombudsman is such that she was immediately able to dictate to the police commanders that, after he had been found not guilty, they should initiate disciplinary action, which goes on to this day in 2007. What does that do to him? What does that do to his colleagues? What does it do to his family?

Why do I tell that story—because it is not directly associated with the Bill? Simply because the situation gets so much worse when we see, for example, the police ombudsman's report into the case of the sad murder of Lance Bombardier Stephen Restorick. I have a copy of the report here. Here we have a police ombudsman who complains when policemen do not give her the sort of information that she expects. I have just prepared a paper, which I have entitled, The Consequences of Co-Operating with the Police Ombudsman of Northern Ireland. I draw to the Committee's attention the fact that one of the policemen who did go to speak to the police ombudsman in relation to the murder of Lance Bombardier Stephen Restorick is someone whom I know particularly well, someone whom I have worked with for many years. He goes along and says, “I do not want to record anything because what I am telling you is crucial to a security operation”. There is an agreement that that will be the case. Yet, when I open the report at paragraph 4.1.7, what do I find? I find that she interviewed

She might as well have taken that fellow’s name and put it up on a notice board somewhere. But it is worse than that. She then describes in detail his relationship with the TCG and with security agencies—

Lord Trimble: Explain TCG.

Lord Maginnis of Drumglass: The Tasking and Coordinating Group.



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Lord Trimble: Explain what it is.

Lord Maginnis of Drumglass: I will not explain in detail what TCG does, except that it does some of the work that is vital to the collection, collation and handling of intelligence.

Lord Trimble: And it involves the security services.

Lord Maginnis of Drumglass: That is quite right. There is another bit of this. If one turns in the report to paragraph 16.5 to 16.9, it tells us in detail about the Barrett .50 rifle. It tells us exactly what was done about that Barrett rifle and conjectures without any firm information about another Barrett rifle. Where does that information come from? It comes to our police from the FBI or some of the overseas agencies. That is spelt out very clearly.

A Member of the Committee speaking earlier said that it is important to think of Great Britain and Northern Ireland. In the fight against terrorism it is not enough to think about Great Britain and Northern Ireland, one has to think in terms of the various intelligence agencies throughout the world, which were very happy to work with the RUC over those 30 years. My colleagues still visit the headquarters of American intelligence agencies as well as agencies throughout Europe as a consequence of the work we did together.

What we have done, perhaps with the best intention in the world as we were moving from violence to peace, is to rename—I disapproved of it—the RUC as the PSNI, and somebody thought it would be a good idea to have a person with judicial experience to look at complaints. The police ombudsman does not do that. She trawls back and back, and when there is no collateral, opinions are tendered as fact. That is what happens. It does not matter whether it is the report into the McCord case or into the Restorick case. You start off with a concept that somehow the police and the security services worked in an underhand manner in order to undermine society rather than recognising that the work they did saved our society from civil war.

I do not want to keep the Committee but—

Lord Smith of Clifton: Go on.

Lord Avebury: Please do.

7.15 pm

Lord Maginnis of Drumglass: If the Committee is particularly keen to hear from me, I pose this question: if we do not close this loophole in the law as my noble friend proposes, for how long will our allies give us any credibility whatever? How will our police constabularies, whether in London, the West Midlands or wherever, get the better of criminality and terrorism if the intelligence—it is intelligence that they need—is withheld because somebody who totally misunderstands their duty pries into every piece of information available and, as so often happens, puts a totally wrong construction on it?


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