Justice and Northern Ireland

I had better not start on the issue of home rule. In Ireland, history is current affairs, but I shall try to keep to more current affairs in relation to these matters. The hon. Gentleman has raised a fair point, however, and I was going to touch on a number of the questions that are still likely to arise. We want to give the public confidence that the devolution of justice and policing is complete and that we are faithfully delivering on Patten and on the political institutions as envisaged by the agreement, but questions will arise about some of the residual matters that have not been fully and properly transferred to the control of the devolved institutions. There are a number of examples. This House passed the Justice and Security (Northern Ireland) Act 2007. Among its controversial provisions is the continuing facility for no-jury courts in Northern Ireland, which was a breach of a previous commitment by this Government to ensure that all the emergency legislation would be repealed. We saw instruments to let those powers go by the wayside, but then we saw a number of those emergency provisions recycled in the 2007 Act—for example, giving the Army powers of search and arrest, which are not subject to the police ombudsman and do not have to be a matter of record for the police, even though any such police powers do have to be a matter of full record. Particularly controversial were the provisions for no-jury trials—not on the basis of the old Diplock system relating to certain scheduled offences, but on the basis of a new system whereby the Director of Public Prosecutions would issue certificates, which could not be challenged in a court, or indeed by a court. The power to change the legislation that provided for the ability to issue those certificates for no-jury trials does not transfer to the Assembly, but remains here in this House. In this scenario, someone might face a charge and the DPP might issue a certificate for a no-jury trial. The DPP's grounds for doing so might be that the person is or was a member of an illegal organisation or is or was a friend, relative or associate of such a person, or that they or an illegal organisation might interfere with the due process of law by intimidating witnesses and so forth. Those are the grounds on which the DPP can issue the certificate, but in issuing it, he specifies no grounds and the person is effectively unable to challenge or question because these decisions are not in any way judicially reviewable. We thus see the possibility of someone faced with such a certificate writing to a devolved Minister to say, "You are the Minister for Justice. My lawyer and I are being told that this is going to a no-jury trial and I have no means of contesting this. You are the Minister of Justice, so how can you stand over this? After all, we are told that everything in Northern Ireland has changed, moved on and gone to normalisation. What is being done about this?" The Justice Minister will say, "I am powerless to do anything about this" and the matter will go before the Assembly committee responsible for dealing with justice matters. It will say the same thing: "Yes, it is happening in our courts; yes, it is a certificate issued by an officer, namely the DPP, who is appointed under devolution and is meant to be working under the authority and auspices of devolution, but this power exists under an entirely ulterior, unaccountable and unquestionable basis". The fact that the Assembly and the Justice Minister are not even in a position to question that gives rise to further questions about the completeness of devolution. Another example is where the Director of Public Prosecutions might be instructed by the Advocate General for Northern Ireland—namely, the Attorney-General in London, who will become the Advocate General for Northern Ireland whenever Northern Ireland gets its own Attorney-General. If trials collapse or are withdrawn on grounds of national security or on the very wide and specious grounds of the "public interest" under the direction of the Advocate General for Northern Ireland, again nobody will be able to question it and the Justice Minister will again be, at best, an idle spectator, left to plead ignorance and impotence as to why. It might be on a matter of public controversy or in a very significant case such as the Denis Donaldson case of a few years ago. When that collapsed, all sorts of parties and all sorts of people were asking all sorts of questions—why has this happened; why do we not know? In how credible a position are the devolved Administration, not only the Justice Minister, going to be if they say, "We don't know; this is not devolved to us; there is nothing we can do. We cannot ask, we cannot be told and even if some of us are told, there is nothing we can say anyway"? That does not square with the vision of accountable devolution to which we all subscribed when we supported the agreement and as we have developed the institutions in the years since then. That is an important issue, which needs to be taken into account when we consider the limitations. When we were involved in the Hillsborough talks, as well as addressing all the other issues relating to the relationship between the Minister and the Executive and making submissions, both written and oral, about various matters including the work of the Executive, we raised questions about the interface between devolved and non-devolved areas. One issue that arises in that context is relevant to the orders, to the associated documents relating to concordats and handling arrangements, and to the annexe on arrangements. A couple of agreements between the British and Irish Governments have been thrown in as well. Parts of those documents, and part of the main order with which we are dealing, impose serious restrictions related to national security on what information can be shared, how it can be shared, and where competence and control lie. The Minister of State, who will reply to the debate, has heard me speak about these issues many times both publicly and privately, and he knows that the SDLP has had profound misgivings for many years. As a party that was totally committed to the Patten vision of policing, we were committed to the idea that the lead on intelligence policing in Northern Ireland should rest with the Police Service of Northern Ireland. That is what Patten recommended. He recognised that there would be national security issues that would have to be reported to the Secretary of State or a successor Minister, but he made clear his belief that, because of the history and experience of policing in Northern Ireland, the PSNI should take the lead. That, of course, changed. The Government announced their intention a number of years ago, and got away with confirming the change during the St Andrews negotiations on the basis of the Blair-Adams document. The document conceded that MI5 would have a remit in Northern Ireland, that it would take the lead in intelligence policing, and that issues relating to intelligence policing would thenceforth be immune from any scrutiny following an investigation by the Police Ombudsman for Northern Ireland, which had not been the case previously. That was significant in the context of, for instance, the investigation by the ombudsman of the handling of the Omagh bombing. All those changes have made an important difference in terms of scrutiny and accountability. A family in my constituency recently lost a son, partner, nephew and brother to members of the Real IRA, who murdered him. They left him stripped to his underwear with his hands taped behind his back, having shot him twice in the head. It was a very chilling old Provo execution-style killing. The family, of course, totally repudiate and condemn the Real IRA for what it has done and said, but they have also raised very serious questions about the experience to which the man had been subjected at the hands of MI5 agents who were active in and around Derry. This is not some fanciful notion that I have conjured up about the possibility of concerns in the future. These are not theoretical concerns, but real concerns. That man's partner told me in her grief at the wake that she had written a letter which she had not yet posted before he died. The letter, addressed to the Minister of State, expressed her concern about what was happening to her partner—the harassment to which he was being subjected, and the offers that were made to him. Mobile phones were thrown into his car, and he was told "Ring Justin—Justin will be in touch with you soon." She has said to me, as has Mr. Doherty's uncle and father, that it was not just people who were comporting themselves as MI5 agents who were doing this; they are saying that members of the PSNI, or people appearing in PSNI uniform, also were stating to them that they knew that this was going on and were giving advice to contact "Justin" and saying that he would be in touch. This raises fundamental concerns about whether or not policing will be transacted and conducted in the light of all the Patten principles and all the Patten promises, so we still have deep reservations about this dangerous twilight zone that exists in relation to the interface between national security, the regional policing interest and the full accountability of devolution. Many of us saw the old Peter Sellers Clouseau movies. In one of them—I cannot remember which one—Clouseau approaches a man who is sitting with a dog and asks, "Does your dog bite?" The man replies, "No, my dog doesn't bite", so Clouseau goes to pat the dog, which then nearly bites his arm off. Clouseau says, "I thought you told me that your dog did not bite", to which the man replies, "That is not my dog." I do not believe that those of us who believe in the devolution of justice and policing and who want it to be clear and complete can fall for that excuse, so where we have reservations that devolution is not clean enough or complete enough we have the right to state that here today. The Secretary of State also talked about these arrangements inspiring confidence. The steps that we are taking reflect much wider and growing confidence, but there are limitations to the extent to which some of the arrangements, in themselves, inspire confidence. I am thinking in particular about one for which this House has legislated and which has continued to be defended in Northern Ireland by the two main parties: the curious sunset clause that exists in relation to the new Justice Department that will be created as a result of these orders and the other instruments that have been passed elsewhere. That sunset clause tells us that unless there is an agreement to continue with the arrangement currently envisaged of electing a Minister by virtue of cross-community support, rather than appointing a Minister under the d'Hondt system as per the agreement, and to renew it beyond 2012 or replace it with something else, the Justice Department will dissolve in May 2012. That is provided for in legislation passed by this House last year. We are talking about these steps inspiring confidence, so why do we not have enough confidence to do away with that accident—the breakdown and collapse—waiting to happen which is represented by that sunset clause? If people believe that this agreement represents—I shall use the Prime Minister's words—an""end to decades of strife"" and guarantees stability, why do we need a sunset clause that represents an invitation to huge instability? That danger does not just lie in May 2012, when the sunset clause would apply; the difficulty could kick in earlier. The sunset clause obviously relates to the fact that the Democratic Unionist party was determined to have a veto at all times on the appointment of a Justice Minister. Sinn Fein had at one point conceded that, but when it finally woke up to the permanent veto that it had conceded, it had to claw that back. The best that Sinn Fein could do by way of clawing it back was to put in a limitation by virtue of the sunset clause. This is now already a matter of a little difference and contention between Sinn Fein and the DUP. Even in recent weeks, as the DUP has been selling the Hillsborough agreement, the DUP has been advertising the sunset clause in 2012 and saying, "We will ensure that not only we will have a veto now to prevent someone from Sinn Fein from being appointed Justice Minister, but we will defend and insist on that veto beyond 2012." Meanwhile Sinn Fein is, of course, saying that it will reject and resist that veto in May 2012, and will not agree to any such thing continuing thereafter. The chances are that come the next Assembly election, scheduled for May 2011— although it could be before then, of course—those two parties will set out manifesto claims and calls on these matters. We might find that after that election there is a delay in electing a Justice Minister under the scheme that we have at the minute as they test each other out on those issues. So we could have a Department without a Minister in 2011 and then, of course, we could have a Minister without a Department in May 2012. Those are not just political questions about what sort of crisis there might be in the Assembly and about whether or not we have a Minister. We should remember what it means for the Department to be dissolved. Under one of the orders, the Northern Ireland Court Service, for instance, will be abolished and will become part of the Department of Justice. It will not be a freestanding service in its own right—it will be part of the Department. Of course, the House already has legislation that states that the Department could be dissolved in 2012. Similarly, the Northern Ireland Prison Service is not a separate non-departmental public body or a separate freestanding agency. We call it the Northern Ireland Prison Service, but it is simply a part of the Northern Ireland Office, as is reflected in the orders that we are passing today. Similar facts apply to the Youth Justice Agency and the Compensation Agency. If the Department is dissolved in May 2012, as has been provided for already and as continues to be provided for in legislation, what will happen to all those functions? How are they to be exercised? Although the Secretary of State has said today that there are no outstanding issues that are incapable of resolution, I would say that there are outstanding issues that still need further resolution. Although we have progress today, we need to go further and we need to see more. In spite of all the reservations that I have rehearsed—there are many more that hon. Members will be glad to hear that I shall not rehearse—we, nevertheless, are determined that we must go forward with the devolution of justice and policing. We cannot make perfection a precondition for progress. Too often, politics in Northern Ireland has been marred by people insisting that objectives—often very good objectives—should be turned into preconditions. That has turned out to be a self-frustrating stance. That is not the position that we have taken. In spite of our many reservations about the conduct of the Assembly and of the Executive, we are clear and unambiguous about where we need to go with the devolution of justice and policing. We want to go further. We also want to place on record that, like others, we have our criticisms of how the process has been conducted and managed—of the heavy focus on the positions of Sinn Fein and the DUP and of the complete aberration from the rules of democratic inclusion laid down in the agreement. That has provided for one party and the whole d'Hondt process to be bypassed for the appointment of the Justice Minister. The original Stormont regime in the 1920s interfered with key provisions for proportional representation that were laid down for local government—those were abolished. Then they did away with the provisions for proportional representation in the Stormont Parliament. We have some concern that in this Stormont regime the parties in power have begun to do away with the provisions for proportional inclusion in the Executive. They have come up with a different scheme that allows them to deny parties that are entitled by mandate and to appoint parties that are not on the basis of patronage or other favour. In the old days, that was called gerrymandering. In these days, it is called an historic agreement—indeed, Sinn Fein calls it the best agreement ever. I record that fact not just out of concern for our own party's position or plight, but as a matter of principle. I want to underline that, as regards the concerns that I have outlined about the limitations of devolution, I feel for anyone—of whatever party—who will be the Justice Minister in Northern Ireland and will find themselves coming up against some of those difficulties and challenges. They will find themselves in an invidious position. In dealing with difficulties and challenges such as those that I have outlined and in dealing with the challenges caused—as the Secretary of State has rightly emphasised —by the ongoing nefarious activity of so-called republican dissidents and others, whoever is the Minister responsible for justice and policing will certainly have the support of our party in doing the job of representing the Northern Ireland Administration and the Northern Ireland Assembly in dealing with and coping with those challenges, as we must. Whatever other quibbles or issues we have, I want to make sure that nobody will be able to turn any difficulty or difference between us and anyone else into anything that could be exploited to create any wider instability or to undermine the credibility of the institutions in Northern Ireland.