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Sir Patrick Cormack: Is it not also true that there has been no expression of contrition or remorse at any stage?

Mr. Lidington: My hon. Friend is right. I believe that if there is to be reconciliation and closure, we should expect that of people who were once active in terrorist groups.

In the face of all that, I have to ask the Government why there is a need for such haste. What is it that Ministers fear will happen if they do not get the Bill through rapidly and in the form in which it has been presented to Parliament? The truth is that we cannot yet be certain that republicans have made a permanent and irreversible move away from violence—but even if we had that certainty, that confidence, I would still have grave concerns about the substance of the Bill.
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The Secretary of State has repeatedly described the procedures embodied in the Bill as a judicial process, but it is a process from which the courts are at all stages deliberately excluded.

Mr. Mark Harper (Forest of Dean) (Con): The Secretary of State mentioned the importance of finding out what happened and making sure that people have some sort of closure, but clause 7, headed "Exemption from arrest etc", makes it clear that if someone has been granted a certificate of eligibility, no power to obtain information about anything that that person has done in connection with the certified offences may be exercised. We will therefore be unable to find out anything about the offences alleged to have been committed by a person who holds a certificate, so the chances of convicting that person and then letting him out on licence, by which the Secretary of State sets great store, are extremely slim.

Mr. Lidington: My hon. Friend makes a compelling point. The process in the Bill is not one known to any court in the United Kingdom. Once a certificate has been granted, the defendant is immune from arrest or detention and the tribunal will have no power to set bail or to impose bail conditions. A terrorist could therefore return to live in the next street or next door to the victim whom he has wronged. The police will have no power to enter premises or to search either people or property and they will have no power to take fingerprints or samples. Even evidence that the perpetrator gives about himself in order to obtain a certificate is, in the Bill, explicitly made inadmissible in any proceedings before the tribunal. In practice, once someone has a certificate, no effective further investigation can take place. As my hon. Friend points out, the rules seem to have been drafted to provide the smallest possible chance that any case before the tribunal will end in a verdict of guilty. That is a travesty of both judicial process and the rule of law.

Mr. John Hayes (South Holland and The Deepings) (Con): My hon. Friend will remember that when the Secretary of State was challenged on that matter by our hon. Friend the Member for Isle of Wight (Mr. Turner), the right hon. Gentleman suggested that the only reason why he was not putting such cases through the courts was that he feared they would jam the courts. He used a logistical argument to justify the difference. Does not that nonsense betray the fact that he has no faith in the courts to deal with the matter because he knows that they would exercise proper and rigorous scrutiny, which he does not want?

Mr. Lidington: My hon. Friend makes a powerful point. I thought that that particular argument advanced by the Secretary of State was astonishingly weak—it suggests to me the extent to which the Government are flailing around in their attempts to justify a measure that, in their hearts, they know is unacceptable.

Mr. Hain: I wish to remind the hon. Gentleman and the House of what I said. The procedures of the special tribunal will mirror those of the Crown court, except in respect of the defendant not having to appear. That is
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the only exception. The same rules of evidence and the same process in other respects of proper Crown court procedure will apply.

Mr. Lidington: I have to tell the Secretary of State that that is not my reading of the Bill, nor that of senior lawyers with whom I have discussed its contents.

Mr. Andrew Turner: If what the Secretary of State says is true, and I have no reason to believe that it is not, why does he not simply allow the courts to operate in the absence of the accused?

Mr. Lidington: I can only speculate. Given that I do not believe that the logistical argument about court business has any weight, I conclude that the reason is to do with pandering to the reluctance of Sinn Fein-IRA to recognise the courts—to recognise British justice and the legitimacy of the courts of the United Kingdom operating in Northern Ireland.

The Secretary of State made great play of the fact that someone who is convicted and sentenced to a period of imprisonment under the special measures would be released only on licence. There is a crucial difference, however, between that provision and the 1998 legislation. In 1998, to be eligible for early release someone had to serve a minimum term. A fixed-term prisoner had to serve at least a third of his sentence before qualifying, and a lifer two-thirds of his expected term. Under the Bill, even if someone commits a serious crime that is unconnected with terrorism—to pluck an example at random, let us take someone who is convicted of a bank robbery—he will not forfeit his licence or have it revoked unless he receives a prison sentence of five years or more. That is a serious gap in the licensing arrangements.

Lady Hermon: Even if the Bill completed its passage through the House and another place, is it not the case that it would not succeed if challenged on the ground that it was not compatible with the European convention on human rights? Its time scale is discriminatory and it does not guarantee an adequate remedy for breaches of the convention.

Mr. Lidington: It is highly likely that if the Bill is enacted—I hope that it will not be—there will be challenges in our own courts, and possibly at Strasbourg, on the ground set out by the hon. Lady.

Mr. Brazier : May I pursue that point and ask my hon. Friend to address the grave matter raised by the right hon. Member for Birkenhead (Mr. Field), who is from the Secretary of State's own ranks and pointed out that the measure will discriminate between terrorist murderers in Northern Ireland and terrorist murderers in the 7/7 bombing?

Mr. Lidington: The Government's arguments on counter-terrorist policy appear less persuasive when they are seen to apply different standards in that fashion.

The other key argument on which the Government have relied is that the Bill will produce closure and provide the equivalent of the Truth and Reconciliation
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Commission in South Africa. I fear that the contrary is the case—if anything, the Bill risks making things worse, and I shall explain why. It does not include a deadline by which a perpetrator must admit what he did to acquire a certificate. It provides no penalty whatever for refusing to tell the whole truth. My understanding of the South African experience is that someone's failure to divulge everything that they had done wrong was in itself an imprisonable offence if other misdeeds subsequently came to light.

Clause 5 explicitly envisages second or subsequent applications for certificates from the same individual. That is grotesque. It means that the terrorist can sit back, waiting to see how much of a case the police have, and can keep the victims dangling in suspense, confident that they have a get-out-of-jail-free card to play whenever the need arises. Nor is there any obligation for the defendant to appear before the tribunal. All he need do is send a letter to the certification commissioner. As was pointed out, he will then be entitled to full legal aid. He never has to turn up in person, and his lawyers can subpoena witnesses, perhaps including victims, and cross-examine them. The defence can seek discovery of sensitive material, and try to embark on fishing expeditions. Not once, however, will the defendant be required to appear.

Mr. Carmichael : Is not the situation even blacker than the hon. Gentleman paints it? If, having undergone that process, the defendant is convicted, for want of a better term, he would probably have cast-iron grounds for appeal, as he was not present to instruct his defence during the trial.

Mr. Lidington: The hon. Gentleman, who is an experienced lawyer, makes a good point, which we look forward to pursuing on Report and in Committee.

The lack of any obligation on the defendant to appear in person is of more than just procedural importance. The Government have consistently said that they have tried to put the interests of victims at the heart of the Bill, but the Bill denies those victims even the symbolic justice of seeing the terrorist who has perpetrated wrongs against them appear in court in person, either to own up publicly to what he has done or to have responsibility imposed on him by the judgment and subsequent sentence of the court. The House should insist that to bring about peace with justice in Northern Ireland, terrorists and paramilitary organisations should bring themselves within the rule of law. The Bill, however, sets aside the rule of law and proper process to implement a back-stairs political deal. Far from bringing about truth and reconciliation, I fear that it will conceal the truth and prolong the bitterness and grief of families who have already endured years of suffering. It is counter-productive and plain wrong.

I hope that the Secretary of State, having listened to what has been said by Members from all parts of the House, may yet pause. I hope that the House will tell him tonight that it wants him to take the Bill back and think again.

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