Northern Ireland (Offences) Bill

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The Chairman: Before I call the next speaker, I remind the Committee that there are less than three and a half hours to deal with the remaining clauses and schedules. I am confident that succinct contributions from all would be appreciated by the Committee.

Mr. Wallace: Adopting that ethos, I shall be succinct. I ask the Minister for clarification. We have heard about the differences, or similarities, between the special tribunal and a court of law, but will he clarify the rules regarding double jeopardy in the situation that we are discussing, given that the preceding trial, as such, will not be complete, because—

The Chairman: Order. Not on this amendment. That question, I am afraid, is not something that we can deliberate on at this time.

Mr. Robertson: I, too, shall be brief. I support the amendment proposed by my hon. Friend the Member for Lagan Valley (Mr. Donaldson). My hon. Friend the Member for Lancaster and Wyre (Mr. Wallace) made an intervention that the Committee found somewhat humorous, but he made a serious point, which was underlined by my hon. Friend the Member for Lagan Valley. The fact that the Committee found it humorous shows what a ridiculous Bill this is. It is full of inconsistencies and things that will be most offensive to many people in Northern Ireland. The fact that there will not even be a serving judge in charge of the process is typical of the rest of the Bill, and that is very unfortunate.

My hon. Friend the Member for Lagan Valley did not go quite as far as I would have done. I should just say that I have every respect for people who are retired. To draw an analogy, before I came to this House, I used to do quite a lot of charity fundraising, professionally, and it is typical for there to be a chairman of a fundraising appeal. The advice was always that if there was to be a chairman, it should be someone who was still working and had not retired, simply because if they had retired, they would have lost their contacts, which are very useful for fundraising organisations. In the same way, a retired judge will not be up to speed with legal practices.

In my youth, I studied law through a correspondence course, but I was advised not to do it by correspondence, simply because in law, things change so quickly. Having a retired judge in charge of the process is a further insult to the people of Northern Ireland.

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Huw Irranca-Davies: Does the hon. Gentleman accept that there is a marked difference between a judge who retired six or 12 months ago and one who retired 20 years ago, in terms of how up to speed they are? Also, there is the issue, to which I referred earlier, of training and further instruction in the period leading up to the establishment of the special tribunals.

Mr. Robertson: If the hon. Gentleman is asking me whether there is a difference between someone who retired 20 years ago, and someone who retired six months ago, yes, there is. Of course there is a difference, but I still think it is unacceptable to use a judge who retired six months ago.

Mr. Robinson: There is nothing in the Bill that states that the judge will be a recently retired judge. That is left open; it could be somebody who retired 20 years ago. There is also nothing in the legislation that says that they have to be a Northern Ireland judge. If they are not a Northern Ireland judge—and I think that most of those will have enough sense not to wish to take up such a post—we will be bringing in a judge from a different legal jurisdiction.

Mr. Robertson: My hon. Friend makes two very good points. I would go further and say that as far as I can see, there is nothing in the legislation about the retraining aspect either. I would like to say quite a bit more on this issue, but given your call for brevity, Sir Nicholas, I will conclude my remarks now. I very much support the proposal introduced by my hon. Friend the Member for Lagan Valley.

The Chairman: I am about to call the Minister, but before I do so, I say to the hon. Member for Lancaster and Wyre that he raised an important matter, which he sought to get an answer to, but unfortunately it was not relevant to the amendment under discussion, which deals with the appointment of a retired judge.

Mr. Wallace rose—

The Chairman: I do not think that there should be any point of order. However, if the hon. Gentleman wants to come back on this matter, I will use a bit of discretion and flexibility and say that he can do so, because this has been a very good-humoured Committee.

Mr. Wallace: On a point of order, Sir Nicholas. The Minister tells us that it is important to have a special tribunal that is set aside from, but operates similarly to, the court system, and is chaired by a retired judge rather than a serving judge. I was trying to establish the differences involved in that. If we were to have a retired judge, what status would that give the tribunal with regard to dealing with the quality of evidence and the judicial process for double jeopardy? If the Minister can answer that it would make no difference—that if proceedings were suspended, individuals could be subject to trial again—I might be inclined not to support the amendment.

The Chairman: The Minister has heard that point, and I call on him to reply to the debate.

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Mr. Hanson: First, let me respond to the rather flippant comments of the hon. Member for Foyle about whether a High Court judge might as well be a judge from “The X Factor”. Sharon Osbourne has many qualities, as does Louis Walsh, but it is not my recollection that either of them has held high office as a county court judge or a circuit judge in England and Wales. Simon Cowell is known for wearing tight shirts, but I am not sure that he has ever worn a wig and a red coat. However, if any of those three individuals has held high judicial office as a county court judge or a circuit judge in England and Wales, they are free to apply for the position in due course.

A number of the issues that have been raised were covered in the previous debate. I have explained to the Committee how pressures on the judicial system have led us to examine the possibility of a retired court judge being appointed to those posts. County court judges and circuit judges are qualified to hear criminal cases, and to pass sentence up to a maximum life sentence. There is no reason to question the capability of those who have the qualifications listed in paragraph 2(1) of schedule 2. That states that we would seek to have someone who has held high judicial office in the county court or as a circuit judge in England and Wales.

I hope that it will be helpful to Members if I point out that the way in which we have phrased paragraph 2 does not preclude a serving judge from serving. The hon. Member for Lagan Valley asked about that. It is entirely possible for a serving judge to serve on the special tribunal. We intend to seek retired judges for that role, for the reasons that I have mentioned; pressures on the existing judicial system mean that we intend to create the possibility of establishing a parallel special tribunal, because the measures that it will deal with will be temporary. However, that does not preclude serving judges from participating. The hon. Gentleman should read the schedule carefully:

    “The Special Tribunal is to consist of a person who has held high judicial office”.

That could mean somebody who is currently serving—someone who still holds high office. It is simply our intention, for the reasons I have mentioned, to ensure that retired judges can deal with this matter.

Questions have been raised about whether, if we chose to appoint a retired judge, that person would be capable of dealing with this matter—whether he or she would be up to speed on current legislation, and have the skills required to deal with complex cases and renewed legislation. The proposed individual who will preside over the special tribunal will, as in any Crown court, have staffing, advice and support on legislative matters. They will have access to all relevant developments and papers as part of normal consideration. I do not think that simply because someone is retired they are not up to speed with the legislation. That support will be provided, and will ensure that that person can deal with matters.

Questions have been raised about the establishment of the tribunal, including when it will be established. I have said previously that should the Bill complete its passage through both Houses of Parliament and receive Royal Assent, that in itself will take us a
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considerable time in this Session to achieve. Once it is achieved, considerable time will be needed to establish the procedure for the certification commissioner and the special tribunal. I have said that the scheme is unlikely to become operational until early to mid-2007 at the earliest, for the reasons that I have outlined, which relate to parliamentary procedure and the basics of establishing the scheme. Without giving a definitive date for the tribunal, I hope that hon. Members on both sides of the House understand that that is our intention. It was clearly expressed before the debate, and has remained our intention in the course of the debate.

I do not want to repeat myself, and I think that I have put on the record in previous debates the reasons why we need schedule 2 in place. I hope that I have satisfied the hon. Member for Lagan Valley at least on the reasons for that, even if I cannot assist him currently. I am looking for my note on double jeopardy, to which I want to refer. The hon. Member for Lancaster and Wyre mentioned double jeopardy, and it was also raised with me in writing by the hon. Member for North Down following Second Reading. I have told her in writing—I hope that she does not mind my sharing the nature of the correspondence with the Committee—that her point is extremely valid and we have to reflect on it.

We are taking legal advice to establish that very point, but I am confident that the position that we have set out to date is valid. But if when we have examined the matter it turns out not to be valid, I have already undertaken to write to the hon. Lady and introduce suitable amendments to ensure that what I have described is the case. On either aspect, the question of double jeopardy will be resolved by the time of consideration on Report. I have already said that to the hon. Lady. We are examining whether any further technical drafting is required to ensure that the Bill dovetails with provisions in other legislation. That is the point that I have mentioned to the hon. Lady, and I hope that it will satisfy her and the hon. Member for Lancaster and Wyre.

Lady Hermon: The Minister did indeed kindly write to me after Second Reading, when I particularly raised this point with the Secretary of State. I must say, however, that his letter was as clear as mud, and he has responded likewise to the Committee, including the hon. Member for Lancaster and Wyre, who raised the issue on a point of order. Could the Minister confirm that any decision taken by the special tribunal will not rule out the possibility that if the special tribunal acquits an individual—does not find them guilty—and there is new and compelling evidence after that, that individual—that criminal, that murderer—will be retried before the proper courts in Northern Ireland? That is the confirmation and clarification that I seek.

Mr. Hanson: As in all matters, as far as is practicable, the rules that apply in a special tribunal will be the same as those that apply in a normal Crown court.

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Mr. Wallace: That leads on to the point that the quality of evidence demanded by a Crown court should also be demanded by a special tribunal. If, for example, as my hon. Friend the Member for Belfast, East said, one of the star witnesses is not present, how can the quality of evidence demanded in a special tribunal be the same as that demanded in a Crown court?

Mr. Hanson: I do not wish to repeat myself, but I hope that hon. Members on both sides of the Committee have recognised that I am reflecting for Report on the question of the star witness not being present. I do not want to go further than that today, but the hon. Member for Lancaster and Wyre will be aware, following our earlier discussions and the new clause proposed by the hon. Member for Belfast, East, that I am reflecting on those matters for Report.

Mr. Wallace: Will the Minister concede that the quality of evidence demanded by a special tribunal is not going to be the same as the quality of evidence required in a court of law?

10.15 am

Mr. Hanson: It is our intention that the same rules should apply. I am reflecting on whether the current proposals meet that intention, and I believe that they do. Following the intervention of the hon. Member for North Down on Second Reading, my team and I are reflecting to ensure that the same rules apply on double jeopardy as on evidence in court. It is our intention that that they will. Following the hon. Lady’s raising that matter on Second Reading, I have undertaken to examine the matter, and we are in the process of doing so. The helpful parliamentary nature of the process means that if our examination should prove that the same rules do not apply, we will be able to table technical amendments to ensure that they do. I hope that that satisfies both the hon. Lady and the hon. Gentleman. I rest my case before the Committee today, commend the schedule to hon. Members, and ask them to reject the amendments.

Mr. Donaldson: I have listened carefully to what the Minister has said, and I remain unconvinced by his arguments about the use of retired judges to preside over the special tribunals. We therefore wish to press the matter to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 10, Noes 16.

[Division No. 35]


Burt, Lorely
Donaldson, Mr. Jeffrey M.
Durkan, Mark
Hermon, Lady
Hunt, Mr. Jeremy
McDonnell, Dr Alasdair
Robertson, Mr. Laurence
Robinson, Mr. Peter
Wallace, Mr. Ben
Wilson, Sammy


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Anderson, Mr. David
Banks, Gordon
Brown, Mr. Russell
Coaker, Mr. Vernon
Cooper, Rosie
Foster, Mr. Michael
Hanson, Mr. David
Harris, Mr. Tom
Hendrick, Mr. Mark
Hillier, Meg
Irranca-Davies, Huw
McDonagh, Siobhain
Moon, Mrs. Madeleine
Slaughter, Mr. Andrew
Todd, Mr. Mark
Waltho, Lynda

Question accordingly negatived.

Schedule 2 agreed to.

Clause 9

Entitlement to licence

Sammy Wilson: I beg to move amendment No. 29, in clause 9, page 6, line 20, after ‘possible’, insert—

    ‘, after having served either five years, or one third, of his sentence (whichever is the less),’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 131, in clause 9, page 6, line 24, at end insert—

    ‘(2A)   A person subject to a sentence of life imprisonment is not eligible for a licence under this section until he has served at least two years of his sentence.

    (2B)   A person sentenced to a period of imprisonment of five years or more is not eligible for a licence under this section until he has served at least one year of his sentence.’.

No. 30, in clause 9, page 6, line 28, leave out subsection (4).

No. 132, in clause 9, page 6, line 28, at end insert

    ‘other than a sentence of life imprisonment or one of five years or more.’.

No. 133, in clause 9, page 6, line 31, leave out subsection (5).

No. 134, in clause 9, page 6, line 41, leave out subsection (7).

Sammy Wilson: Those who are convicted through the special tribunal—I do not even like the term “convicted”—may be eligible for a licence, and the only result is that they will be given a licence to walk out of the door. Indeed, they may not even be there to walk out of the door; they will simply have the licence to ensure that they never serve a prison sentence. On Second Reading, even some Government Members suggested that a prison sentence should be served, even for a short time.

Almost all the cases in question will be murder cases. The Minister said that this morning. It is immoral that people will be able to escape serving any time in prison, even though in some cases they are guilty of multiple murder. Not only is the provision totally immoral, it is inconsistent with the terms of the Belfast agreement. We did not agree with the early release scheme in the Belfast agreement, but at least under that, people who had committed crimes had to serve, and did serve, a portion of their sentence.

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Mr. Hanson: How many individuals outside the jurisdiction of Northern Ireland does the hon. Gentleman think would return there if they were facing a prison sentence?

Sammy Wilson: The Minister has also pointed out that the legislation is not only about on-the-runs but about the cold cases review. There are 2,100 unsolved murders.

Mr. Robinson: Did my hon. Friend take, as I did, from what the Minister has just said that it is somehow to the Government’s credit that they are bringing murderers back to Northern Ireland?

Sammy Wilson: Nothing would surprise me about this Bill. Moral judgments have been stood on their head in this Committee. It is inconsistent, even with the Belfast agreement, that murderers who are on the run and those who may appear before the special tribunal as a result of the cold cases review will never serve a day in prison.

The Prime Minister, the Secretary of State and the Minister have all claimed that the Bill deals with an anomaly. All the people that the Belfast agreement covered—those who had committed crimes before 1998—were released from prison. Therefore it would be an anomaly if those who sought to return to Northern Ireland or those who would be taken to court because evidence of a crime had been uncovered were not subject to the same provisions as were made under the Belfast agreement.

The Bill, in fact, creates a further anomaly. Those who were found guilty and served sentences before 1998 spent some time in prison. Those who will benefit from this Bill will spend no time in prison.

Mr. Jeremy Hunt (South-West Surrey) (Con): Does the hon. Gentleman agree that there is yet a further anomaly? The main plank of the Minister’s case has been that terrorists will be charged, convicted and sentenced. In fact, the Police Service of Northern Ireland will have no motivation to waste public money on securing convictions, because it knows that as soon as people are convicted they will be released on licence.

Sammy Wilson: The Chief Constable and the Deputy Chief Constable of the PSNI have already conveyed to the Northern Ireland Policing Board the point that the hon. Gentleman makes. They have indicated that, although the professionalism of the officers who are investigating the cold cases cannot be questioned, there is a morale problem. How hard do officers pursue a case that they know will never lead to someone serving even one day in prison? This is not just a tidying-up exercise. The Bill as it stands will create yet another anomaly.

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.

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Prepared 16 December 2005