Justice and Security (Northern Ireland) Bill

I too am of the view that we would be better leaving out Clause 7. The matter came up on Second Reading when, in reply to the debate, the noble Lord, Lord Rooker, said that the clause, "““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””." He said later: "““The clause is not a change from the current position””.—[Official Report, 20/2/07; col. 1054.]" Let me quote from what appears to me to be the relevant part of the Shuker case. The Lord Chief Justice, Sir Brian Kerr, said in his judgment: "““The exercise involved in deciding whether offences should be de-scheduled is in some respects akin to the decision whether to prosecute…This is par excellence a procedure on which the courts should be reluctant to intrude. It is, moreover, a task that has been entrusted by Parliament to the Attorney General and while this will not in all cases render judicial review impermissible, it signifies a further reason for reticence…It must be made clear that while we have concluded that judicial review is not available to challenge the decision of the Attorney in the present cases, we do not consider that this will be excluded in every circumstance. AsMr Morgan has said, such a decision would be reviewable on the ground of bad faith. Depending on the circumstances of other cases that might arise, further grounds of judicial review challenge may be deemed appropriate but we do not consider that it would be helpful, or even possible, to predict what those grounds might be””." That is the Shuker judgment. The noble Lord, Lord Rooker, said that Clause 7 puts the Shuker judgment on a statutory basis, but I am not altogether sure that it does. The clause allows the issue to be raised in three cases, "““dishonesty, bad faith, or other exceptional circumstances””." That is similar to what is in Shuker, but I am not sure that it is exactly the same. The use of ““exceptional”” before ““circumstances”” does not appear in the passage of the judgment that I mentioned. The three cases of, "““dishonesty, bad faith, or other exceptional circumstances””," will be read as defining other circumstances quite narrowly, or at least as indicating that they should be regarded as exceptional. The Lord Chief Justice did not use the relevant word. He said: "““Depending on the circumstances of other cases … further grounds … may be deemed appropriate””." He said ““appropriate””, not exceptional. Therefore, I am concerned about whether Clause 7 accurately represents the Shuker case. I am not sure that it does. However, if the Government are satisfied with the Shuker case and believe that they have put it on a statutory basis here, that implies that they are content with the Shuker judgment. If that is the case, why not leave the Shuker judgment as it is? It is restrained in its approach. There is no reason to doubt, is there, that the judiciary will be appropriately restrained in these circumstances? The Lord Chief Justice says that the courts should be reluctant to intrude and refers to a reason for reticence. There is no reason to doubt that the courts will be reticent or reluctant to intrude, so is there any ground for suspecting that the judges will exercise the possibility of judicial review in a way that frustrates the working of this legislation? I think not. Shuker indicates that the judges are properly cautious and that we can rely on them to be cautious in the future. Leaving the provision as it is in the Shuker case means that we would provide for unforeseen circumstances. The difficulty with trying to embody something in legislation is that of anticipating in advance all the circumstances that might arise. While the Government have tried to cover that by including the phrase ““other exceptional circumstances””, the use of ““exceptional”” in that context worries me. From the point of view of doing justice in these cases, we would do much better to leave this matter to the courts to consider. If the courts make a mistake, under our system it is open to Parliament to change the law. However, in this situation it would be better and wiser to leave the matter to the courts, relying on the good sense that we see represented in Shuker, rather than try to render it now in concrete and perhaps make a mistake in so doing.