Justice and Security (Northern Ireland) Bill

Amendment No. 5 would allow the final decision about whether a trial is to proceed in front of a jury or in front of a judge to be taken by the judge, not by the DPP as the Bill provides. In Committee we tabled amendments to ensure that the decision to issue a certificate for a non-jury trial would be taken by a court, not by the DPP. The Government’s response was that the DPP would be privy to information that the police or national security had brought to bear, and that having an open judicial system would risk information being exposed to the other party, so as to allow for cross-examination, and that could put witnesses or informants at risk. Our preference is for some form of judicial control over the mode of trial. The decision should not be taken by the DPP on his or her own. However, we have taken the Government’s concerns into account and have therefore tabled amendment No. 5 to allow the final decision to be taken by the judge. The procedure would be for the DPP to make the initial certificate of application for a trial without a jury. Under the Bill, that has to be lodged with the court before the arraignment. The defendant would then be notified that such a certificate had been issued by the DPP, and he would have the opportunity to make written representations to the judge. On the basis of the representations made by the DPP and the defendant, the judge would be able to decide to accept or reject the certificate from the DPP. That would allow a judicial element to come into the determination of the mode of trial, yet there would be no risk of the names of witnesses or informers becoming known. As a result, they would not be subject to intimidation, and I think that that answers the Government’s objections to the proposal. Amendment No. 15 would delete clause 7, which prevents the DPP’s decision from being challenged in court unless certain very severe circumstances apply. In the original Bill, only dishonesty and bad faith on the part of the DPP would have allowed his decision to be challenged. To those conditions, Government amendment No 30 in this group adds ““other exceptional circumstances””—a fairly vague phrase, but still a very high hurdle. We believe that the hurdles set out in Government amendment No. 30 are far too high for the defendant to negotiate. We are completely opposed to clause 7. Not only does the Bill contain no provision for an appeal against a decision to hold a trial without a jury, but it expressly prohibits an appeal unless the high hurdles that I have described already can be surmounted. It is completely wrong that the DPP can issue a certificate for a trial to be conducted without a jury when the defendant has no way to make representations to the DPP, or to appeal the decision. A similar problem arose during the consideration of the Asylum and Immigration (Treatment of Claimants) Bill in 2004. Clause 11 of that Bill inserted a new section 108 into the Nationality, Immigration and Asylum Act 2002, cutting off all appeals to, and judicial review by, the ordinary courts in respect of immigration matters, and excluding habeas corpus applications in immigration cases. At the time, the Joint Committee on Human Rights issued what can only be described as a damning report on that provision. The Committee stated that it regarded to proposed restriction"““as being inherently objectionable as an attack on an important element of the scheme for protecting Convention rights in the United Kingdom.””" Despite the Government’s attempts to assuage its concerns, the Committee issued a second report that stated that"““it could strongly be argued that the ouster of judicial review of tribunal decisions contemplated by clause 11 has not been justified by any argument advanced by the Government. There is a real danger that this would violate the rule of law in breach of international law, the Human Rights Act 1988, and the fundamental principles of our common law.””" For me, the provisions of clause 7 are equally objectionable. The Government are even having to suspend the operation of the Human Rights Act to implement the clause, and that is completely unjustifiable. The Government have been able to advance no arguments to justify what amounts to an attack on people’s human rights. We are fundamentally opposed to clause 7, and hope that even at this late stage, the Government will take heed of the human rights objections to it. However, if they insist on retaining it, I give notice that we will vote against the Bill on Third Reading.