Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005

My Lords, I am grateful to the noble Baroness and to the noble Lord for their comments and I will endeavour to deal with the questions that they have raised. I will agree to disagree with the noble Baroness, Lady Harris, on the background to the issues. I also remember the all-night sitting. It was an important debate. I am grateful that, in raising some of the broader issues, the noble Baroness is not saying that what I am bringing forward today is something with which she could fundamentally disagree. I know that the noble Baroness is interested in the issue of enforcement. A breach of the control order would be a criminal offence to be dealt with in the same manner as any other criminal offence. I am not aware of any formal consultation with the Police Service of Northern Ireland, but if the noble Baroness recalls, Section 8 of the Act obliges the Secretary of State to consult with the Chief Constable about whether there is any evidence available that could be used for the purposes of prosecuting the individual in question for a terrorism-related offence. In addition, if the Secretary of State proceeds to make a control order, he must inform the chief constable that he has done so and the chief constable will then be under a duty to ensure that the conduct of the individual in question is kept under review throughout the period during which the control order has effect, with a view to bringing a prosecution for a terrorism-related offence. The noble Baroness also asked whether we had consulted the Northern Ireland Human Rights Commission. Normally, as she knows, we would seek the comments of that commission, but given the exceptional and urgent manner in which the rules were made, I understand that such consultation was not possible in this particular case. The noble Baroness asked me about the special advocates. She will know that the special advocates are currently drawn from the Attorney-General’s panel of senior counsel. It is envisaged that that will remain the case for the foreseeable future, which I hope addresses that particular point. Both the noble Baroness and the noble Lord, Lord Kingsland, raised the question of the delay in the rules being brought before the House. As noble Lords will know, the rules were originally made by the Lord Chancellor in consultation with the Lord Chief Justice of Northern Ireland on 5 April 2005, shortly after the Act received Royal Assent. The rules came into force immediately after being made, but ceased to have effect 40 days thereafter as a result of not having been approved by Parliament within the affirmative resolution period. The reason for the delay was largely because the general election intervened and, as the noble Baroness said, there was a subsequent delay in establishing the membership of the Joint Committee on Statutory Instruments, which must consider the rules before they can be considered by this House. However, the Lord Chancellor used his powers under paragraph 3 (6) of the Schedule to the Act to make the rules again on 26 June 2005 and it is these rules that I now move before the House, this being the earliest opportunity to do so after the Summer Recess. I understand that the Summer Recess does not count for the purposes of the 40 days, in case noble Lords—as I did—added the days up and found that there were too many. The controls were continuous over the period between the first set of rules that were made by the Lord Chancellor having ceased to have effect and the present set of rules coming into operation. The first set of rules ceased to have effect when the requisite 40-day affirmative resolution period expired on 26 June 2005. The present set of rules were made on 26 of June 2005, came into operation on 27 June and, in accordance with Section 4(A) of the Interpretation Act 1978, came into force at the beginning of 27 June 2005, the previous ones having expired at 12 o’clock midnight on 26 June. Consequently, there was no gap in the provision made by the first and the second set of rules. The noble Lord, Lord Kingsland, specifically asked about the disapplication of certain parts of the principal rules. Due to the nature of these proceedings, it was considered that it was appropriate to make some modifications to the application of the principal rules. However, we believe that they are limited to what is considered to be necessary. As the noble Lord, Lord Kingsland, said, Order 1, Rule 1A, the overriding objective, is amended so that it is subject to Order 116A, Rule 2(1). The overriding objective is to enable the courts to deal with cases justly, which includes, among other matters, ensuring that the parties are on an equal footing, dealing with cases in a way that is proportionate, expeditious and fair, and allotting each case an appropriate share of the court’s resources. Although proceedings under the 2005 Act should be subject to the overriding objective, such cases are based on sensitive intelligence material. Of course, it is important to ensure that information is not disclosed contrary to the public interest. Therefore, for that reason, the overriding objective has been modified for the purposes of the new order by placing on the court a duty to ensure that information is not disclosed contrary to the public interest and requiring that the overriding objective be read and given effect in a way that is compatible with that duty. The noble Lord, Lord Kingsland, also asked me about the new Rule 24(2)(c). The intention of that rule is to prevent the court being required to hold a hearing when that would serve no purpose. However, it does not fetter the court’s discretion to hold a hearing in any case in which it considers it appropriate to do so. Moreover, the exercise of that discretion will be subject to the overriding objective to deal with cases justly and, of course, in accordance with the rights protected by the Human Rights Act 1998; in particular Article 6, the right to a fair trial. Finally, the noble Lord asked about special advocates. It will be a matter for the Northern Ireland Supreme Court Rules Committee to make any further amendments to the rules, which will include a list of the functions of special advocates. It will make those rules in the usual way, subject to the requirements of the 1978 Act, by negative resolution procedure. Noble Lords will know that the noble Lord, Lord Carlile, is involved in a review, which I gather will report at the end of this year or the beginning of next, to facilitate his observations becoming part of any further legislation that the Government may wish to take forward. I hope that I have answered all the questions that have been raised. Accordingly, I commend the Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005 to the House. On Question, Motion agreed to.