Justice and Security (Northern Ireland) Bill

I agree with my hon. Friend—[Interruption.] I am concerned by what is being said from a sedentary position by Ministers on the Treasury Bench. They are saying that this is not an ouster clause, but it transparently is. Whether it is justified or not is a different matter. While I am talking about setting a precedent, let me quote what the Constitutional Affairs Committee said at the time:"““An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial insight of lower Tribunals and executive decisions should be retained. That is particularly true when life and liberty may be at stake.””" We had clear guidance on the importance of ensuring that Executive or tribunal decisions are subject to judicial oversight. My difficulty with clause 7 is not just that it removes the right of review, but that the decision is not even made by a tribunal or a person acting in a quasi-judicial capacity. The decision is made by the Director of Public Prosecutions for Northern Ireland, who is a functionary of the state and part of the process of indictment. That seems particularly abhorrent. We are talking about a person who, in the exercise of their duties, is answerable only to a Minister in government. I stand to be corrected, but I believe that the Attorney-General is responsible for the Director of Public Prosecutions for Northern Ireland as he is for the Director of Public Prosecutions in the United Kingdom as a whole. This is the difficulty: the person who is responsible for prosecution determines the mode of trial, certifies it without giving reasons and then, other than in the most extreme circumstances, is immune from any review by a judicial body at any level—let alone the normal administrative court or High Court decision. I can see—I think—the Government’s reasons for what they are proposing. I can see those reasons on the level of Northern Ireland matters. I question what they are proposing because there is a different process under the Criminal Justice Act 2003 for difficult cases—cases where there is a prospect of interference with the jury process. I question it because there is apparently no impediment to a judge taking that decision in those circumstances. I question it because my understanding is that the Bill is supposed to involve a process of normalisation and it is not normal for the chief prosecutor to decide how a case is going to be heard—whether it is before a jury or a judge-only court. It is not normal for that decision to be made by a functionary of the state, however well qualified and well intentioned that person may be, rather than a judge. That is why I find the proposal so difficult. My hon. Friend the Member for Argyll and Bute has, in amendment No. 5, put forward a proposal that would undoubtedly mitigate the consequences and act within the spirit of what the Government intend. Although I recognise that the Government have drawn back from their original intentions and are trying to improve the Bill, they will have to improve it an awful lot further before it gets to another place—I give them due warning of that—not least because Lord Carlile of Berriew might reiterate his recommendations, which have been ignored, in relation to a right of review. The provision is still objectionable, in terms not just of its consequences for judicial affairs in Northern Ireland, but of its potential to act as a precedent for the whole of English, Welsh, Northern Ireland and Scottish law. That is why I am deeply troubled.