Justice and Security (Northern Ireland) Bill

My Lords, I will get this point out of the way before I start: I have no intention of participating in the elections in Northern Ireland. Nobody spoke to me about it; I just happen to have been told yesterday that the DUP were launching their manifesto in Belfast today, hence their names were not on the speakers’ list. That may or may not be acceptable, but it is a fact. I am not critical one way or the other. I am not going to get involved in the Northern Ireland elections. There have been attempts to seduce me into this previously but I am not going down that road. People can speak for themselves, inside or outside this House. I promise not to speak for too long, but I hope to answer as many points as I can today because it will make Grand Committee more meaningful. Commitments have been given—bearing in mind that I had an idea of what some noble Lords would say—to try to put responses on record. That is important, but I will be time-limited in what I say. I am very grateful to everyone who has spoken for their points. This is a very important Bill. The changes we put on the statute book must reflect the changes in Northern Ireland in recent years. I will not bandy around too many statistics, but the impression of those outside of jury and non-jury trials in Northern Ireland is important. Over the past five years less than 6 per cent of all Crown Court cases have been tried without a jury under the Diplock system. The vast majority of criminal cases are tried in the magistrates’ court without a jury. The majority of Crown Court cases relate to fraud, rape, burglary, mugging, et cetera. The average number of cases dealt with using the Diplock system over the past five years is 64 a year; the provisional figure for 2006 was 61. In 2005 it was 49. This is very important. Obviously, non-jury trial is different, but nobody has claimed—the noble Lord, Lord Trimble is right about miscarriages of justice—that it is not a fair system. We are not talking about hundreds of cases each year but less than 6 per cent of Crown Court cases and an average of 64 per year. I fully accept, as the noble Baroness, Lady Park of Monmouth, said, rebuilding—or creating—that trust is the key to success. We want everyone to come to the table and share the success of Northern Ireland so that every participant feels that they have got some success out of it. That requires trust. It is true that the trust is not there in every party. A network of trust must be built, and it will be built through the experience of working together and governing Northern Ireland. There is no question about that. No one is saying that things are perfect at the moment. I will check the Slugger O’Toole website, which I am not familiar with. Notwithstanding what I am going to say in some detail to the noble Lord, Lord Lester, I will ensure that I read not only the substantial briefing that I have on the matter but the relevant paragraphs of the judgment to which he referred. Nothing in the Bill or in what we have said or done implies any lack of confidence in the judiciary. On behalf of the Government and the House, I pay tribute to the efforts of the judiciary over the past30 years. People have done an incredibly brave job in the circumstances. Indeed, as the noble Lord, Lord Glentoran, has said, 302 members of the police service have lost their lives, as have hundreds of other people. This has been a terrible tragedy. We are in a new position in Northern Ireland, and we must operate differently, but it is absolutely true that we must be mindful of the past. I am not a poker player, and I am not going to get involved in those aspects, but there have been negotiations. I have not been party to them, but we have got to where we are today: on the threshold of the restoration of devolved government in Northern Ireland. Elections will be held in two weeks from this Thursday, and will be followed, I hope, by the resumption of a power-sharing Executive on Monday 26 March. That is not far away. We will know in five short weeks or so whether it has worked. We do not have a plan B, although I freely admit that in the next few days—I do not know when; perhaps it will be next week or the week after—I will come before the House with an order to extend direct rule beyond 26 March. I must do so because of the six-monthly restoration order. I have no choice. It must be done like that because of the way in which Easter falls and because of the recess of the House, but it in no way undermines plan A, which is devolution. plan B is a generation missed. That is what we are saying. The noble Baroness, Lady Park, asked whether we would consider repealing the legislation in two years. The arrangements in the Bill which we mentioned are focused on the future and designed for Northern Ireland this century. The police and military powers can be repealed if they are no longer required. We believe that non-jury trials will wither on the vine over a period of years, although we cannot be prescriptive about that. As for other measures, the Northern Ireland Human Rights Commission powers and private security are all permanent and very positive developments. I have no doubt that we will return to these issues in time. I mentioned Gerry Kelly’s attendance at the conference only yesterday, as did others, but I am reluctant to bandy about quotations or add to what others have said. There has been a change in the climate and in Sinn Fein’s attitudes towards policing, to the point where it has met that test and surmounted that hurdle, and neither I nor the Government seek to erect any further hurdles. I fully accept that the proof of the pudding will be what happens on the ground. It will be tested on a case-by-case basis. Those who look at these things day by day will see whether Sinn Fein delivers. The people involved have that responsibility and know that they will be tested. They must pass all those tests. If they do not, we have a problem. It does not help if I say that someone said this and someone else said that. All the quotations are on the record, and they are common currency in Northern Ireland. As I said, the test has been passed, which is why we are where we are now: on the verge of devolved government. On criminal activity, I can only refer to what I said in my opening remarks. I quote from the Independent Monitoring Commission’s 13th report, which was published on 30 January this year, in which it said: "““PIRA as an organisation continues not to be involved and there are indications that in response to the leadership the involvement of individual members has declined. Nevertheless, some continue to be engaged in crime, including offences such as smuggling, fuel laundering and tax evasion. Such activity is now contrary to the policy of the organisation””." We have to test that quotation against the reality. The noble Baroness, Lady Harris, asked about non-jury trial arrangements in Northern Ireland in respect of the rest of the United Kingdom. We think that Northern Ireland is on the road to normalisation; we are positive about that, but it is not yet the same as the rest of the UK. We fully accept that. The noble Lord, Lord Glentoran, made that abundantly clear and I agree with what he said. There is still a threat from loyalists and dissident republicans, and people live in small, close-knit communities in Northern Ireland. The dispersal of the population is different from that in the rest of the United Kingdom. It is not analogous to England, rural Wales or rural Scotland. Those communities are therefore vulnerable to paramilitary control. One day we hope that it will be as safe as the rest of the United Kingdom; it is not there yet. The Bill is helping us to deal with it on the way. The noble Baroness asked why we could not have a judicial process like that in the Criminal JusticeAct 2003, to which other colleagues referred. We believe that we have designed a system focused on the circumstances in Northern Ireland. An administrative system would enable us to protect the intelligence material that will provide the basis of many of the arguments in favour of non-jury trials. We must also make sure that we can protect the sensitive intelligence material that will form the basis of the arguments of a non-jury trial. In a judicial process we would have to share that with the defence. The only other way to protect it would be by the use of special advocates, but that is not ideal. Special advocates are a scarce resource for use in exceptional circumstances, not routine cases. It seems to us that in this instance an administrative process is desirable. The Northern Ireland courts in Shuker decided that that type of decision was one on which, par excellence, the court should be reluctant to intrude. That is the point. The noble Lord, Lord Trimble, suggested that the decision be made not by the DPP but maybe by the Attorney-General. We are reluctant to put forward the case that a Minister in London should decide, in effect, the mode of trial. That is what the decision is; it is about the mode of trial. It is not going to be about the fairness of the trial because no one is going to argue about that. We have enough experience in non-jury trials; it is about the mode of trial. I do not think that it would be satisfactory for a Minister in London to do that; the DPP in Northern Ireland is highly respected. I turn to Clause 7. I will not get into the legalistic points, although no doubt I will in Committee. Ministers do not consider it an ouster clause in the sense of the other legislation, referred to by the noble Lord, Lord Lester, in this House either last year or the year before. The clause restricts challenges to the Director of Public Prosecution’s decision to cases where there has been bad faith, dishonesty or other exceptional circumstances. That places the current case law about reviews of the Attorney-General’s decision not to de-schedule in Diplock cases on a statutory footing. That comes from the Shuker case, to which the noble Lord referred. That case confirmed that the procedure for determining the mode of trial of the accused is not a process suitable for the full panoply of judicial review. A case would be reviewable, however, on grounds such as bad faith or dishonesty. The clause is not a change from the current position. In any event, the DPP’s decision is on the mode of trial. The defendant will receive at least as fair a trial without a jury as with one and he or she will suffer no detriment. The noble Baroness, Lady Blood, asked why the Human Rights Commission was prevented from looking at the past. I cannot match up all the points. Given the way in which noble Lords raised the issues, it is best if I go through their speeches individually. The restriction at Clause 19 applies only to the new powers to compel evidence. The commission will be able to investigate matters from the past as has been the case for the past eight years. It will be able to call for information from the past, using the Freedom of Information Act, as it can now. However, in granting those significant new powers, we think that it is right today to direct the use of the new powers towards the investigation of current human rights issues. That is the best way to ensure that the commission makes a positive contribution to the future position of human rights in Northern Ireland. We could be stepping very close to the bounds of retrospective legislation, if we are not careful, and I do not think that anyone wants to go down that road. My noble friend Lady Blood asked about the powers of the Human Rights Commission. They will figure largely, and I should rather deal with them in substantial detail in Grand Committee, where we will have a lot more time. On deciding the model for the devolved department of justice in the Assembly, to which several colleagues have referred, we do not intend to force anything on the Assembly. That is not the Government's desire. We want it to be done locally. I fully accept some of the points made by the noble Lord, Lord Trimble, regarding his erstwhile colleagues from the unionist family, if I may put it that way—that we will work it, but it is best if it is forced on us. I do not know whether that was what he was saying, but I can fully understand that being the case. Over the years, when I was in the other place, if there was something that we wanted but did not want to call for, if it was forced on us, it was easier to deliver locally. That may or may not be a good thing. We do not want to force anything on the Assembly, but we would not want to have progress falter over the inability to reach agreement on a specific departmental model. So our strong preference is for the Assembly to agree on the model. Make no question about that. The Assembly should first agree on the model. If it is unable to do so, the model in the Bill has been devised after discussion with the Northern Ireland political parties. In the Government's humble view, that represents the best chance of achieving broad acceptance if the Assembly cannot agree on an alternative. If it can agree on an alternative, that is fine. Of course, that is not necessarily a long-term approach. It has been designed to help the Assembly in the early days of devolution. It will be difficult for the Assembly Members. They will all stand for election and hope to be elected to help to run Northern Ireland. It will not be easy. Since the noble Lord, Lord Trimble, has been in this House, he has given us chapter and verse of the joy and, sometimes, difficulty of taking those decisions. It will not be easy. If we as the Government and as Parliament at Westminster can do anything to make some of those early decisions easier, which can later be amended by the Assembly when trust starts to work and it gels together, that must be a good thing. That is not the Government overriding the legislation for the devolution of policing and criminal justice—far from it. The noble Lord, Lord Trimble, referred to the fact that Clause 1 refers in three of its limbs—its subsections—to proscribed organisations but not to organised crime. I fully accept the powerful point that he made, but if organised crime is connected with a paramilitary group, the test will be met and a case could be tried without a jury. Because Northern Ireland is changing, where there was not organised crime in the past, it has mutated into a different form. We must deal with that as and when it arises. Our view is that if there is information and intelligence that an organised crime case is connected with a paramilitary group, the test in Clause 1 will be met. The noble Lord also asked about the opportunity to review the powers annually, or frequently. The Bill provides a power for the Secretary of State to repeal the Armed Forces and police powers by order. Reports of the independent reviewer and the continued monitoring of the use of the powers will provide sufficient transparency concerning the ongoing need for their use. The Secretary of State will seek to ensure that powers remain at the bare minimum necessary for the operational effectiveness of both the police and the Armed Forces by repealing any powers that become unnecessary. So we will repeal any powers that are no longer necessary. On the primacy of national security, to which the noble Baroness, Lady Harris, referred, the change that we are making will bring Northern Ireland into line with the rest of the United Kingdom and provide a consistent and coordinated response across the UK to the threat from terrorism. Before I turn to the issue of the Joint Committee, let me deal with an issue that has been referred to by more than one noble Lord—the issue of community-based restorative justice. We note the concerns which have been raised many times in this House and with Ministers about the operation of community-based restorative justice schemes during the two periods of public consultation. It is clear that such schemes will have to comply fully with the rule of law. On 5 February 2007, just a week or so ago, the Government published the Protocol for Community-based Restorative Justice Schemes. The protocol establishes a structure that will provide for effective engagement between community-based schemes and the criminal justice system in dealing with low-level offending, which has the police at the centre of the process and includes stringent safeguards to protect the rights of both victims and offenders. The Government have invited expressions of interest from schemes wishing to adopt the protocol and therefore begin the process of seeking formal accreditation. It has always been our position that formal accreditation of these schemes must involve the police at the centre and that the rules must be followed. I suspect that it has taken a lot longer than we initially intended, but that is where we are at the moment. We put that out for consultation only a couple of weeks ago. I hope that I have covered Clause 42. We will certainly go over it in considerable detail in Committee. I turn now to the speech of the noble Lord, Lord Lester. I am grateful for all the speeches, all of which have been wholly positive and very helpful to those who will advise me in Committee on how to deal with the pressure points. As for safeguards against decisions of the Director of Public Prosecutions, the argument is that the discretion may be exercised arbitrarily. The DPP is a trusted figure in Northern Ireland. He has conducted himself in an exemplary manner in taking decisions in some of the most difficult criminal cases in the history of Northern Ireland. We have confidence in his decision-making. He will be required to apply the test in the Bill—it is a stringent one—in making any decision for a non-jury trial. That decision will be challengeable, albeit in limited circumstances, and it will be for the courts to decide whether a challenge is possible based on the circumstances of each case. As I have said before, the DPP’s decision is between two different modes of trial; it is not about the outcome of the case. Guilt or innocence will be determined at the trial. The Joint Committee on Human Rights says that allowing non-jury trial for associates of members of proscribed organisations is too broad a provision. We genuinely note concerns about that. However, we are trying to deal with a situation where a terrorist might use their contacts and a position of influence to secure the acquittal of a relative or close friend. Many of the cases where it is alleged that jury intimidation has occurred have involved actions on behalf of the defendant by an associate rather than direct actions by the defendant themselves. That is borne out by the Northern Ireland Crime Survey 2003-04, which reported that intimidation of victims does not always come from the defendant themselves. The Joint Committee has accepted in principle the need for a non-jury trial where there is a danger of jury-tampering or perverse verdicts. Such a risk exists in relation to associates. The DPP will be able to issue a certificate for non-jury trial where he is satisfied that there might be a risk to the administration of justice. This will help to ensure that there is non-jury only trial where it is needed. There will be exceptional cases. We accept that the terms ““friend”” and ““relative”” are broad; this is deliberate. The DPP will take into account the quality of the relationship when forming a view about the potential risk to the administration of justice. For example, one could be estranged from one’s parents but very close to a second cousin. To have a test that did not permit non-jury trial in the circumstances that I outlined involving potential tampering by associates could put jurors and their families at risk of intimidation and could lead to an unfair trial. That is the risk, and it is completely unacceptable. The whole point is that we want the trial to be fair. We would prefer that it was with a jury. The presumption is for jury trials; that is our starting point. But in the most exceptional circumstances, where there is a risk of the trial not being fair because of interference with the administration of justice, we would go with the DPP’s decision for a non-jury trial. The DPP would need to be satisfied that other measures are inadequate before issuing a certificate for a non-jury trial—a point which was raised by the committee. The Bill contains a number of measures designed to reduce the risk and fear of jury intimidation. Other juror protection measures that do not require legislative change, such as increased use of screens from the public parts of courtrooms, are planned. However, we recognise that in exceptional circumstances these measures will not be able fully to address the problem of juror intimidation. For example, the screening and balloting of jurors by number rather than by name will not prevent jurors being recognised by the defendant or while entering and leaving the court building. In a small jurisdiction such as Northern Ireland, the only other measures that could be taken, such as relocation, would have such a large impact on the life of the juror and his or her family that it is too high a price to pay. It is important to recognise that the jury reforms will be available for all cases, not just those where intimidation is considered possible. On the question of whether the decision of the DPP should be a judicial one—a point raised by the noble Lord, Lord Glentoran, who said that it should be the decision of the Lord Chief Justice—we think that the DPP is in the best position to assess the risk. The decision will be akin to the decision on whether to prosecute; it is that kind of judgment. On a scale of decision-making, it is more akin to the decision to prosecute. We do not believe that it is a decision to be taken by the Lord Chief Justice for Northern Ireland or by judges. The DPP already makes decisions about mode of trial in Northern Ireland and the provision will sit well within that. We believe that we have designed a system that focuses on the particular circumstances of Northern Ireland. An administrative system will enable us to protect the intelligence material that will provide the basis of many of the arguments in favour of a non-jury trial. In a judicial process we would have to share that material with the defence. As I said, the only other way to protect this material would be by the use of special advocates, and that is not ideal. In the case of Shuker, the Northern Ireland courts themselves decided that this type of decision is one that, par excellence, the courts should be reluctant to intrude into. As I said, I will go into that in greater detail in Committee. And as I said to the noble Lord, I will read the judgment itself.