Justice and Security (Northern Ireland) Bill

My Lords, I agree with the Minister that the changes in Northern Ireland over the past number of years have been enormous, and I am privileged to follow my noble friend Lord Trimble, who has take a lot of the credit for the changes we have seen. I want to make a number of points, particularly regarding the powers of the Northern Ireland Human Rights Commission, as I believe that this Bill has serious defects in terms of the protection of human rights. In a number of respects the Bill actually diminishes the commission’s current level of independence from the Government and imposesnew and onerous obligations. I was pleased to note that, in its recent scrutiny report on the Bill, theJoint Committee on Human Rights also shared my concerns. A number of relevant clauses have been presented by the Government as a positive response to recommendations made by the commission on improving its powers. However, the Bill offers access and evidential powers in a very limited form, hedging them with exclusions, limitations and procedural obligations and adding little value in the protection of human rights. There are three issues arising from this part of the Bill for the House to consider: restrictions on the use of evidential powers, including national security exclusions; fettering of access to places of detention; and the time limit on using new powers. Let us look at the first issue. Clause 14 provides for the power to compel evidence and obliges the commission to consider whether the matter that it proposes to investigate has not been investigated sufficiently by another person or agency. Clause 15 makes a similar provision in relation to places of detention. As a result of these restrictions, there is a danger that an agency could block an inspection by the commission on an urgent human rights issue by claiming that a similar investigation had been conducted by a regulatory body previously. As I understand it, the commission avoids duplication of work with other oversight and regulatory bodies through Memoranda of Understanding and other protocols. The commission bases its work on the international human rights standards and therefore brings a new perspective to situations, matters and institutions already investigated by bodies with a different focus. The activities of other oversight bodies should not create a ground to object to an investigation by the commission. Clauses 14 and 15 should be amended. The commission is of course subject to judicial review. It has no desire to remove itself from the legitimate scrutiny of the courts, such as the role of the county court, as proposed in this Bill. It is not apparent that the specific role that the Bill would give the county court would add to the protection of human rights. Notices should not be required to be ratified or overturned at county court level. In particular, the ability of a county court to cancel an order, to prevent or restrict access or to interfere with the terms of reference of an investigation will undoubtedly limit the independence of the commission. Clause 14 also limits the capacity of the commission to investigate anything connected with national security. That takes no account of the particular circumstances of Northern Ireland as a society emerging from a prolonged conflict, in which human rights issues frequently arose in relation to the activities of the intelligence services and the police in relation to national security matters. For example, the alleged collusion between state agencies and illegal armed groups, as recently reported by the Police Ombudsman, is the sort of issue that a national rights institute ought to be able to address. In practice, this Bill could prevent any disclosure to the commission of information that would be relevant to that matter, whether relating to past, present or future activity. At present, there is no restriction in the Northern Ireland Act 1998 on the ability of the commission to investigate national security issues. This new provision reduces, rather than enhances, the commission’s powers. The exclusion of intelligence matters is not limited to the application of the proposed powers. Any investigation by the commission, whether or not it seeks to compel evidence, is prohibited from considering any matter concerning human rights in relation to the Security Service, the Secret Intelligence Service and GCHQ. The commission has stated that it completely accepts that national security must be protected. It accepts the need to protect the capacity of the intelligence services and the police to defend national security within the rule of law. It understands that this may, in certain circumstances, justify a refusal to disclose certain information. Clearly, it is one thing to prevent sensitive information coming into the public domain; it is entirely another thing to prevent questions being raised. This clause, if retained in the Bill, is bound to diminish not only the commission’s credibility but public confidence in the compliance of the intelligence services with human rights. Although I understand that virtually the same provisions were made in Schedule 2 to the Equality Act 2006, for the Commission for Equality and Human Rights in Britain, I still contend that the particular circumstances of Northern Ireland justify a different approach. Clause 14 should be amended. On the second major issue in this discussion, Clause 15 allows the commission to enter a place of detention only for the purpose of a formal, time-bound investigation. For any other purpose, however serious or urgent, the commission would need to secure the permission of the relevant authorities. In my view, the commission needs to have the option of visiting places of detention as a means of fulfilling its statutory functions in relation to legal proceedings, research, investigations and educational activities. For example, it may from time to time be made aware of a particular situation in a prison or holding centre which requires immediate attention, and to which the relevant authorities may not wish it to have access. The commission may also wish to review the operation of such a centre without the centre’s staff having the benefit of preparing for the visit, and it should be able to make unannounced inspections. To be effective as a means of discouraging or uncovering human rights violations, the power of access to places of detention should allow for unannounced visits. As drafted, the Bill imposes a minimum delay of15 days’ notice between the commission decidingto investigate and gaining the right of entry.Subsection (5) makes no provision for emergencies and subsection (6) further delays access by allowing for application to the county court. The county court is able not only to prevent or restrict access but to dictate alterations to the terms of reference decided by the commission and communicated by it to all interested parties. I believe that these restrictions on accessing places of detention should be removed from the Bill. Clause 19 prevents the commission from compelling evidence or accessing a place of detention for the purpose of investigating any matter relating to the period before 1 August 2007. The commission could not, for example, require the production of a document created on or before 31 July 2007, even if it was directly relevant to a recent human rights violation. The effect of the time limit is particularly severe in relation to the gathering of evidence. It is difficult to imagine how any human rights violation could effectively be investigated without lookinginto events and information from previous years. Therefore, in practice, it is likely that several years would have to elapse before the commission could use the powers to any effect. The clause creates a notable anomaly in the protection of human rights in Northern Ireland as against other UK jurisdictions. In Great Britain, the existing equality bodies already have powers to compel evidence, and the new Commission for Equality and Human Rights acquires similar powers under the Equality Act 2006. The Scottish Commission for Human Rights Act 2006 contains not only evidence powers but a right of entry to places of detention without any time restriction. Thus in England, Scotland and Wales, the sister bodies of the Northern Ireland Human Rights Commission have, and will have, powers that have no arbitrary time limit. In the Republic of Ireland also, the Irish Human Rights Commission, established in parallel with the Northern Ireland commission as a result of the Belfast agreement, has extensive powers to compel evidence with no such time limit. Members will be aware that the agreement and the corresponding treaty committed the two states to maintaining an equivalent level of protection of human rights in Northern Ireland and the Republic. The Minister in another place, Paul Goggins, stated at Second Reading: "““It is important that the Commission has powers that focus on the future, so that it takes us forward, deals with the issues of today and tomorrow, and ensures that we have the right conditions in our society””.—[Official Report, 13/12/06; col. 971.]" He also suggested that the commission was perhaps too busy to look into earlier matters and would be best directing its resources forwards. I understand from the commission that, as a body guided by the United Nations Paris principles, it wishes to be able to determine for itself how best to direct its energy and its resources after weighing up the human rights importance of a particular matter. It may very well decide that a flagrant breach of human rights in the past is just as deserving of investigation as a possibly less serious breach in the future. Having regard to the particular circumstances of Northern Ireland as a society emerging from a long period of conflict, this House will want to consider whether the interests of normalisation, confidence-building and conflict resolution are better served by enabling or blocking the investigation of past human rights violations. Although I welcome the minor concession the Government have made on this issue, bringing forward the timing of the measure by six months, I believe that Clause 19 serves no useful purpose in the protection of human rights and should either beleft out or further amended to provide a positive formulation allowing the commission to exercise its powers in relation to matters arising before as well as after the commencement of the new Act. I urge the Minister to give serious consideration to amending this Bill and to take on board the criticisms made by the Joint Committee on Human Rights and the Northern Ireland Human Rights Commission.