Justice and Security (Northern Ireland) Bill
19 March 2007

In a debate on the Justice and Security (Northern Ireland) Bill in the Grand Committee of the House of Lords on 19 March 2007 Lord Trimble moved Amendment No. 23: Clause 14 , page 13, line 6, at end insert— “(7) This section shall also apply to any investigation by the Police Ombudsman for Northern Ireland.””

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: “For the purpose of an investigation under”, the 1998 Act, “the Commission may ... require a person ... to provide information ... to produce documents ... to give oral evidence”.

The provision for protection of national security is contained in new Section 69B and states that where the commission requires a person, “to disclose sensitive information within the meaning of ... the Intelligence Services Act”, that person can disregard that. Similarly, if the information, “might lead to the identification of an ... agent”, that can be disregarded. If it requires disclosure of information, “relating to an intelligence service which would prejudice the interests of national security”, that, too, can be disregarded, as can, “disclosure of information relating to the Police Service of Northern Ireland which would prejudice the interests of national security”.

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, “may apply to the High Court to have a notice,” requiring information to be disclosed, “cancelled on the grounds that the requirement imposed ... is undesirable for reasons of national security”.

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.

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.

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.'

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19 March 2007

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