Justice and Security (Northern Ireland) Bill

As I said when I raised clause 7 on Second Reading, it is rare for me to intervene in Northern Ireland business and I do so with some deference, because I am no expert on Northern Irish affairs. However, the provision could have a much wider application and raises a significant point of law, which is familiar to many Members. I speak with some passion on the subject having been a member of the Standing Committees on the Criminal Justice Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and a member of the Public Bill Committee on the Fraud (Trials without a Jury) Bill, which is still before the House. A clear pattern is emerging from Government legislation in this field: their deep distrust of juries and their distrust of the judiciary if there is any capacity whatever to remove the judiciary from a decision that the Government feel is better taken by the Administration. This ouster clause—it is an ouster clause—is still significant. I note that the Government amendments—this point was raised by the hon. Member for North Down (Lady Hermon)—clearly retreat on elements of what was originally proposed, which is welcome. I am pleased that that has happened. The Government have extended the circumstances in which a review can take place to include ““exceptional circumstances””. Those circumstances are undefined, but at least some provision is made. They have reintroduced the Human Rights Act 1998 provisions, so that there is no derogation any more in relation to clause 1 falling outside the scope, by statute, of the provisions of the human rights legislation. That is important. My argument on this issue is not a human rights argument; it is a rule of law argument. There is a clear distinction. I have confidence in the judiciary in Northern Ireland, as I have confidence in the judiciary in mainland Britain. I have always argued for judicial oversight of decisions that should be within that purview. First, I have grave doubts that what is proposed in the Bill is consistent with that level of confidence. Secondly, although I deploy the slippery slope, or thin end of the wedge, argument sparingly—because I do not often think that it is helpful to our considerations in the House—I see what is being proposed for Northern Ireland as the clearest possible precedent for trials without a jury elsewhere and for further provisions that will remove the ability to apply for judicial review. My hon. Friend the Member for Argyll and Bute (Mr. Reid) referred to what happened when we were considering an ouster clause on a quite different matter—immigration and asylum claims—in the context of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. He drew attention to what the Joint Committee on Human Rights said. It clearly stated:"““There seemed therefore generally to be no right to challenge a decision of the single-tier Tribunal on the ground that it has acted incompatibly with a person’s Convention rights.””" It continued:"““Ousting the review jurisdiction of the High Court over the executive is a direct challenge to a central element of the rule of law, which includes a principle that people should have access to the ordinary courts to test the legality of decisions of inferior tribunals….""““Apart from the fact that the rule of law is a fundamental principle inherent in international human rights law, it is inherent in the fundamental law of the British constitution. It includes the civil right of everyone within the jurisdiction of the United Kingdom to have unimpeded access to the ordinary courts to test the legality not only of administrative decisions but also of the decisions of inferior tribunals. That is an essential element in the British system of government under law.””"