Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009

I, too, thank the noble Baroness for introducing this order in her usual clear and precise way. I want also to place on the record my thanks for the meeting yesterday with the Northern Ireland Office. The officials were extremely helpful and we had a useful exchange of views and ideas. However, it is frustrating and disappointing that the Government did not hold a full public consultation on the immensely important extension of this order. The noble Baroness referred to a light-touch review being undertaken. It means that neither this Committee nor anyone else in Parliament can scrutinise the basis on which the Secretary of State has taken the decision to extend these provisions. As we have heard, the primary justification by the UK Government for non-jury trials in Northern Ireland is to avoid paramilitary and community-based pressures on jurors. The Government say that it is difficult to judge the level of juror intimidation in Northern Ireland yet conclude that it remains prevalent, and indeed we have heard the noble Lord explain that. What is happening in Northern Ireland is extremely difficult, but should not be used as an excuse for the police not to look after jurors, although intimidation appears to be a growing problem. However, the Government have failed to provide any substantial evidence to this end. Can the Minister give examples or cite evidence that she may have as opposed to that of the noble Lord, Lord Glentoran? We also cannot tell whether the Secretary of State considered any revisions to the scheme. For example, the United Nations Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, recently raised concerns regarding the use of non-jury trials and the lack of a sufficient appeal mechanism for challenging a decision by the Public Prosecution Service for Northern Ireland to hold a trial in the absence of a jury. The HRC has noted the lack of obligation on the director to provide "objective and reasonable grounds" when applying different rules of criminal procedure, which is contrary to Article 14 of the ICCPR. The right to legal challenge, particularly judicial review, is a basic right that was acknowledged by the Northern Ireland Office in its 2006 consultation paper regarding the replacement of the Diplock courts. It stated that, ""the DPP’s decision will be challengeable by means of judicial review. This will enable defendants to be sure that the decision has been taken properly"." However, the actual legislation permits judicial review only in exceptional circumstances. Was this something the Government considered amending when reviewing the legislation? We are further concerned that by continuing with provisions for non-jury trials in Northern Ireland, the Government are sending the wrong signals to the public. Mr Eddie McGrady, the SDLP MLA for South Down, told the House of Commons General Committee on Delegated Legislation: ""If we want to send the message of the return to normality, this is not the message to send. However the proposal is refined by using the phrase ‘non-jury trials’ … in Northern Ireland, they are seen as the continuation of the Diplock courts and the continuation of the oppressive system of justice"." Northern Ireland is not experiencing an emergency as defined by Article 15 of the ECHR, and to continue to trial provisions in Northern Ireland as if there were an emergency perpetuates a lack of confidence in the rule of law. It may be argued that judges sitting alone can impartially and independently hold trial and therefore non-jury trials are not a breach of the right to a fair trial, but jury trials are inexorably linked to the common law system in legislation, so non-jury trials undermine this principle and weaken public confidence in the justice system and the overall peace process in Northern Ireland. According to the criminal justice review, more than three-quarters of the population of Northern Ireland believes that juries are better at deciding cases in the Crown Court than are judges sitting alone. In the words of the review, jury trials reflect, ""a symbol of normality with all that means for public confidence"." The HRC stated that the Government should carefully consider whether the situation in Northern Ireland warrants judicial procedures that are intrinsically different from the rest of the UK, with a view to abolishing such distinctions. The introduction of jury trials for all cases would be a way to acknowledge and commend the enormous political and social strides that have been made in the past decade, furthering reciprocal confidence between the people and the state. The original legislation provided for special measures to protect jurors. Will the Minister tell us how these are working? Finally, although the Government will have decided to renew the non-jury trial provisions before the acts of decommissioning by loyalist paramilitaries last weekend, which are very welcome, do they not agree that non-jury trials must be looked at in a different context? Will the Minister consider withdrawing the order and replacing it with a provision to extend the provisions for just one year, as proposed by my noble friend Lord Carlile of Berriew? The Merits of Statutory Instruments Committee, in considering the Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009, said under the heading "Who supported the extension, and why?": ""Lord Carlile met and discussed the issues with a wide range of practitioners and stakeholders, including political parties and interested NGOs throughout Northern Ireland. His conclusion, on the basis of the discussions he had, was that the case was made out to extend the provisions for a further year"." That is not quite what the Minister said, although we know that the provisions in the order are for two years. Perhaps she would consider an extension for one year rather than two years, so that both she and the Committee can reflect on the changed circumstances more promptly. The extension under this order is profoundly regrettable.