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Lembit Öpik: That is the point.

Mr. Robertson: Indeed.

A further problem could arise: if one judge was a Protestant and the second a Catholic, how would the third appointment be made?

Mr. Donaldson: From the Alliance party.

Lembit Öpik: Although the Alliance party may require an act of faith, it is not actually a religion.

Mr. Robertson: I cannot possibly respond.
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There could be an argument for considering the background of the judges, but the current system seems to be working reasonably well in practice, although I accept that trial without jury is wholly undesirable. It is acceptable—if that is the right word—only due to the difficulties in Northern Ireland, which unfortunately continue to exist.

The situation is working acceptably partly because it has as a back-stop the automatic right to appeal. Leave to appeal does not have to be sought; there is an automatic right of appeal in the present system, so although I promise the hon. Member for Montgomeryshire that the official Opposition have looked at the new clause and discussed it in great detail, we have decided on balance that we cannot support it.

The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Shaun Woodward): New clause 1 would amend the Terrorism Act 2000 to provide that Diplock courts would in future consist of three judges of the Crown court. The business of the Crown court in Northern Ireland is dealt with by judges of the Court of Appeal, High Court and county court sitting in the Crown court in accordance with directions given by the Lord Chancellor.

Lord Carlile has recommended on several occasions that a three-judge court could be a replacement for Diplock courts. However, I remind the hon. Member for Montgomeryshire (Lembit Öpik) that Lord Carlile draws no firm conclusions and has stated that the decision is one for the Government. Indeed, the proper context is the 2004 report, where he says:

not "would" but "could"—

Crucially, he continues:

Lorely Burt: In Committee, the Minister may recall saying that when considering the necessity for a successor to Diplock the three-judge option might be tried. Why does he feel that we should wait until we are considering the successor to Diplock before looking at that option?

Mr. Woodward: Because, with the respect to the hon. Lady, those matters must be more carefully thought through and not just dealt with by trial and error. Lord Carlile acknowledges that the existing system offers a "high standard of justice". Simply to work on the basis of "Perhaps it might be better" is not an entirely good way to proceed with criminal justice in Northern Ireland.

In his 2003 report, Lord Carlile also acknowledged that there would be resource and training implications if the three-judge approach were adopted. He estimated that 10 additional judges would be required. The
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hon. Member for Montgomeryshire raised questions about the parallel system that we are introducing for on-the-runs, but I suppose that I should say, Mr. Deputy Speaker, that I will not crave your indulgence by talking about that measure in the context of this Bill. Nevertheless, the fact of the matter is that 10 additional judges would cost several million pounds to maintain—the Court Service has produced that cost for us. If proceeding down that route were to produce a better system of criminal justice, of course we should consider it. However, until we know the full costings and are certain that that system of justice would be better, it would be foolish to throw out something at that even Lord Carlile accepts has a high standard of justice.

2 pm

The recruitment and training of the judges would lead to significant financial costs, as would their accommodation and, quite rightly, their security. I am not clear that the proposal represents value for money, especially given that Diplock courts in their current form are due to be repealed under the security normalisation programme in about 18 months, subject to—critically—an enabling environment.

Three-judge courts could create significant problems of delay. The requirement to ensure that the three allocated judges were available for all stages of a trial might lead to delay in the criminal justice system. Unless verdicts were required to be unanimous, which would be different from the current practice in the Court of Appeal, there could be unwelcome and unhelpful speculation about the verdicts and individual views of judges involved in such cases. It is not clear to me that that would increase confidence in the system.

Mr. Dodds: Leaving aside the merits of three-judge courts for one minute, can the Minister help us on the question of costs? Will he tell us how many cases have gone through the Diplock process each year over the past few years so that we can get an idea of the size of the burden on the judicial system that would be created?

Mr. Woodward: If the hon. Gentleman will allow me, I will write to him specifically on that point. Given the analysis that we have seen, we think that the proposal of the hon. Member for Montgomeryshire would be more expensive than the existing system. However, as I said, if it were to lead to a better system of justice in Northern Ireland, it would undoubtedly be the right thing to do, but it is appropriate to consider value for money. What matters is confidence in the judicial system. The concerns are not insurmountable, and we are convinced that we could perhaps consider three-judge courts in the future.

As I said on Second Reading and in Committee, I am already committed to considering what, if any, replacement is needed for Diplock courts so that we can tackle the problems of intimidated jurors in paramilitary-style trials in the future. That is an important issue for the people of Northern Ireland. The future of certain types of criminal trial in Northern Ireland is a matter of significant public interest that merits the maximum possible scrutiny and debate. The Government would like to proceed with as much consensus as possible on any replacement arrangements
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for Diplock courts. Until the detailed inter-agency work that is under way on the issue has been completed, it would not be appropriate to discuss specific proposals or to commit to three-judge courts as a possible way forward.

Dr. William McCrea (South Antrim) (DUP): The Minister says that he wants to consider costs and implications. What is the time scale in which any further proposals might be brought forward?

Mr. Woodward: I might be able to answer the hon. Gentleman's question pretty much immediately. Although detailed proposals should be worked up by next summer, we would like to ensure that we are able to take on board a wide range of views, including those of the hon. Member for Montgomeryshire and representatives of other political parties, before any final decisions are taken. With that in mind, and taking forward the proposals that I made clear in Committee, this morning the Secretary of State wrote to the hon. Member for South Staffordshire (Sir Patrick Cormack), as Chairman of the Northern Ireland Affairs Committee, to make a commitment to pre-legislative scrutiny on any replacement for Diplock. Such scrutiny should facilitate the full debate that I believe the hon. Member for Montgomeryshire would like. It will allow us to take full account of all the issues involved, including costs, security and the question of majority or unanimous verdicts. We must consider those extremely important matters so that we can proceed carefully and appropriately and ensure that any arrangements that replace the present system are better than it, not worse. We look forward to hearing the views of hon. Members on the subject next summer.

Mr. Dodds: I welcome the Minister's commitment to pre-legislative scrutiny. Why is he prepared to adopt that approach on future proposals, but not prepared to accept the suggestion that the much more contentious Bill on amnesty for on-the-runs should receive such scrutiny? That matter was raised in the House by no less a person than the Chairman of the Northern Ireland Affairs Committee, but the Government seem to have set their face against that approach.

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