Justice and Security (Northern Ireland) Bill

This has been a very good debate which, for the most part, reflects more optimistic times in Northern Ireland. Hopefully, terrorist atrocities will be regarded more and more as a thing of the past. I welcome the fact that my hon. Friend the Member for Blaydon (Mr. Anderson) mentioned the Select Committee visit to Northern Ireland last week, and depicted the scene outside Belfast City hall, where he attended a Christmas fair. He compared it with past scenes, and hon. Members whose constituencies are not in Northern Ireland will recognise the difference that he highlighted. Today, the fact that Gerry Adams and some of his colleagues met the Chief Constable is very welcome. Some would say, ““Not before time””, but others would accept that, until recently, such a meeting would have been almost unthinkable. We must move on, and make sure that, given the increasing confidence, all political parties in Northern Ireland give their unequivocal support to the police and the rule of law. That is the very basis of democracy, and nothing less will do. I can tell the hon. Member for Tewkesbury (Mr. Robertson) that there is no equivocation whatsoever from the Government on that—it is a very clear message. I began by speaking about optimism, but it is the responsibility of Government to deal with the reality of the threats and difficulties that remain, and to make sure, as far as possible, that the people of Northern Ireland are safe, secure and properly protected. I join the hon. Member for South Antrim (Dr. McCrea), who commented not just on terrorism and the threat from paramilitary forces but on the everyday criminality that has wrecked the lives of elderly people in his constituency and other parts of Northern Ireland. That criminal behaviour is beyond contempt, and I join him in condemning it. I apologise for being mirthful when he accused some hon. Members of over-egging their argument. I thought that he was referring to his hon. Friend the Member for East Antrim (Sammy Wilson). From the look on his face, I think the hon. Member for East Antrim thought that he was talking about him. The hon. Members for South Antrim and for East Antrim and the right hon. Member for North Antrim (Rev. Ian Paisley) claimed that we were moving too fast with the Bill. My hon. Friend the Member for Foyle (Mark Durkan) and his colleagues said that we were going too slowly and that we ought to move more quickly in certain respects. The Government must strike the right balance between these different pressures so that we move forward in a way that offers proper protection to the people of Northern Ireland. My right hon. Friend the Secretary of State and the hon. Member for Aylesbury (Mr. Lidington) made it clear that although the Provisional IRA no longer pose a terrorist threat in Northern Ireland, others do. Dissident republicans still pose a threat. That is clear from the IMC report that others have mentioned throughout the afternoon. Loyalist paramilitary forces also still pose a threat, which we must take seriously. However, it would be irresponsible if the Government had nothing more to offer than a renewal of part VII powers for another 12 months, in the expectation that the world would then be wonderful and we need provide nothing else. In the Bill we seek to ensure a proportionate and effective response to the existing danger, which may be there for some time to come. Let me deal with some of the issues that were raised. I join the hon. Member for North Down (Lady Hermon) and the right hon. Member for North Antrim in their comments about the judges and others who have run the Diplock system over many years. Yes, they have faced threats. Yes, they have faced many risks, and it is right that we place on record the appreciation of all of us for what they have done. The hon. Lady and the right hon. Gentleman are right—the quality of justice delivered by the Diplock courts by and large has been of a very high order. That point needs to be made. In the Bill we seek to replace the Diplock court system and the present presumption for judge-alone trials for certain types of offence with a presumption for trial by jury, albeit, as hon. Members noted in the debate, with the provision for judge-alone trials following a statutory test that reflects both the circumstances of the offence and the risk to justice. It is worth spending a little time considering that two-part test. In the first part, one or more of four conditions must be met: the defendant is connected with a proscribed organisation, the offence is committed on behalf of a proscribed organisation, a proscribed organisation has attempted to prejudice the investigation or the prosecution of a particular offence, or the case involves religious or political hostility. One or more of those conditions must be met, and the Director of Public Prosecutions must be satisfied that there is a risk that the administration of justice might be impaired. Both parts of that test must be satisfied before the DPP can make a decision and issue a certificate. The hon. Member for North Down asked me about a particular case and whether the provisions of the Bill would allow a certificate to be made in that case. She will appreciate, of course, that I cannot make a decision on behalf of the Director of Public Prosecutions. It would be for him to decide. But if the Robert McCartney case was prosecuted—came into the court system—it would be open to the DPP to make a certificate if he judged that those conditions applied in that case. The hon. Member for Upper Bann (David Simpson) posed a number of questions and noticed that I was writing—he said ““writing anxiously””, but ““writing furiously”” would probably be a more accurate description. He asked for no spin and I shall try to deal with his questions without giving him any spin. On the example of the placard which relayed a religious sentiment, I do not see how that would be covered by the test that I outlined. I do not see how justice would be impaired by the prosecution of that individual, so if he asks for my judgment, I do not think that in that case the test would be used. The hon. Gentleman took me back to a previous piece of legislation with which I was involved, when he raised the issue of the householder being in a position to defend himself. Of course, any householder can make a proportionate response to the risk as he perceives it at the time. If somebody is posing a serious and significant risk in their home, they can take proportionate action in the face of that. I do not see how the criteria set out in the statutory test has any bearing on that. The hon. Gentleman then asked a series of about eight questions which even my furious handwriting did not keep up with, so I will look carefully at them. I would just say, though, that the judiciary is of course impartial and will make decisions based on the facts, but that is to do with the process of the trial itself rather than the decision about whether a licence is issued. The hon. Gentleman mentioned a specific individual in relation to the rule of law. Let me say this to him and to the whole House. Any person in Northern Ireland who is involved in organised crime or in paramilitary activity should know that every law enforcement agency is after them and on their case, whether it be the Assets Recovery Agency, the Police Service of Northern Ireland or Her Majesty’s Revenue and Customs. Nobody can feel that they can escape the rule of law. I cannot comment on an individual case, but I can give the hon. Gentleman that guarantee. From my role in the organised crime taskforce, I know that there is a tremendous appetite in the law enforcement agencies of Northern Ireland to get on with delivering that. On the test, we must strike the right balance, as my right hon. Friend the Member for Torfaen (Mr. Murphy) emphasised. We must balance the need for justice against the need to protect the human rights of individual citizens. If we set the test too high, the interests of justice will not be served; if we set it too low, many people may be caught whom we do not wish to be caught. As a result, we could see a deteriorating position instead of an improving one. It is essential to set the test at the right level. Let me say to the hon. Member for North Down that we are not approaching this in a naive way. We do not expect that all criminality and paramilitary activity will suddenly come to an end one day when the Bill is enacted, but we must switch gear at some point to change the presumption from a presumption for a jury-less trial to a presumption for a trial by jury. We will need to see this as a transitional period. Our aspiration is that in time the number of cases tried by judge alone will continue to decrease. The hon. Lady rightly pointed out that the Bill needs to fit with other pieces of legislation. We discussed the Criminal Justice Act 2003, which fits neatly with the Bill. Let me cite the example of an individual whom the DPP considers for a certificate based on the test and then decides not to issue one. The case goes to a trial by jury, but then, in the course of that trial, there is evidence of a real and present danger of jury tampering and intimidation. From January—albeit that she may feel that that is a little late—it will be possible to change the mode of trial to judge alone. Taken together, the two provisions will be very helpful The hon. Member for Montgomeryshire (Lembit Öpik) offered us the prospect of many interesting hours of deliberation in Committee, as did hon. Members on both sides of the House. He invited us to discuss who our friends are and how we define them, and to consider clause 7, which has excited many hon. Members. All those matters will be put under scrutiny. We will consider them carefully and advance detailed arguments as to why we think that this is the right approach. At this stage, let me say that the DPP, as a very experienced prosecutor who is used to making decisions about mode of trial, is able to consider intelligence and other information that may be appropriate in judging whether justice was likely to be undermined in a particular case. The hon. Member for South Staffordshire (Sir Patrick Cormack) argued strongly that the Attorney-General should be the person who made that decision. We considered that carefully, but ultimately felt that a Northern Ireland-based person would ensure that justice is brought closer to home, which we all want to see in due course. That was our rationale for making that choice. Various discussions have taken place about whether the process should be judicial, and whether it is right for the DPP to have such a role. The hon. Member for Montgomeryshire asked whether having three judges was a possibility. We fear that that would slow down the process of justice, which, as Members have commented, is already too slow. The hon. Member for Aylesbury asked whether SIAC could be used in relation to such cases. The problem with SIAC is the use of special advocates. Once a special advocate has seen the intelligence, he can no longer act for the individual whom he has been representing. Indeed, the more people who see the intelligence and information, the greater the risk of some of that spilling out. We have considered those matters carefully in coming to our conclusion. We will no doubt have a further opportunity to debate such issues in Committee. In addition to reiterating the tribute to those who have run the Diplock system over many years, we should remember two things. First, we should point to the reduction in the number of cases dealt with under the Diplock system since the 1980s: from 354 cases in 1987 to 49 in 2005. We would all welcome that, as it represents fewer trials by judge alone, and it must reflect improving circumstances: the hon. Member for North Down is right that over recent years the average number of cases per year has been 60, but in the most recent year the number was 49. Secondly, we regard that as a positive step. It is not an overnight complete change with no more criminality and no more cases to which the system might apply. However, it changes the presumption away from judge alone to trial by jury, and that is welcome. It was pleasing to see the general welcome in the Chamber for the measures on jury reform. Those will be effective in reducing intimidation and promoting confidence, both in the criminal justice system more widely and in juries and individual jurors. The provisions will grant greater anonymity to jurors and restrict access to personal details, which is welcome. In addition, stronger checks will be introduced with regard to criminal records and, in serious cases, other information that might be pertinent. Having that greater confidence will enable us to remove peremptory challenge, which was removed in England and Wales some time ago. That has been recommended by the Northern Ireland Human Rights Commission, and we concur that the time is right, albeit with other provisions in place, to give greater confidence to the jury. Quite a lot of lively discussion was engendered on the Human Rights Commission. I pay tribute again to my right hon. Friend the Member for Torfaen, as we are finally delivering on the commitment that he made as Secretary of State for Northern Ireland, providing access to places of detention and a power to compel evidence. Of course, that does not give a new mandate to the Human Rights Commission, but it does provide greater powers that allow it to exercise its function more effectively. Considerable consultation has taken place; we have not just produced the proposal out of thin air. Hon. Members and others have been able to contribute to that consultation, and we are moving the provisions into line with those in Great Britain, which now has the Commission for Equality and Human Rights. Many of the provisions in the Bill are similar to those in the Equality Act 2006, which provided for that new commission. No replacement or duplication will be made of other bodies or organisations. All oversight bodies have an important responsibility, when they set out on an inquiry or investigation, to consider the remit of other bodies and to ensure no unnecessary duplication of role. If a serious and pressing investigation is to be carried out, other agencies will take precedence. Cases of serious allegations of brutality or even worse are matters for the police. It is not for the commission to get in ahead of them in such circumstances. The police would take precedence. If there is, regrettably, a death in prison custody, it would be for the prisons ombudsman to deal with that first, in line with his obligations. However, it is right to have some restrictions. It is fair that the commission gives 14 days’ notice of its intention to enter places of detention. It is also right to ensure that evidence cannot be compelled if it compromises national security. That is not peculiar to Northern Ireland. The same provision is in the Equality Act 2006 and applies throughout the rest of the United Kingdom. The hon. Member for Montgomeryshire and my hon. Friend the Member for Foyle mentioned the start date for the commission’s new powers. As they said, that will be 1 January 2008. There is an argument about whether the powers should be retrospective or forward looking. In my relatively new role in the Northern Ireland Office, I have been struck by just how much of the oversight arrangements are focused on the past. It is important that the commission has powers that focus on the future, so that it takes us forward, deals with the issues as of today and tomorrow, and ensures that we have the right conditions in our society. The measures are entirely defendable and should come into effect after 1 January 2008.