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Public Bill Committee Debates

Draft Terrorism (Northern Ireland) Act 2006 (Transitional Provisions and Savings) Order 2007

The Committee consisted of the following Members:

Chairman: Mr. David Wilshire
Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
Clarke, Mr. Charles (Norwich, South) (Lab)
Coffey, Ann (Stockport) (Lab)
Durkan, Mark (Foyle) (SDLP)
Ennis, Jeff (Barnsley, East and Mexborough) (Lab)
Evennett, Mr. David (Bexleyheath and Crayford) (Con)
Goggins, Paul (Minister of State, Northern Ireland Office)
Jones, Mr. Kevan (North Durham) (Lab)
Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
Lilley, Mr. Peter (Hitchin and Harpenden) (Con)
Main, Anne (St. Albans) (Con)
Marris, Rob (Wolverhampton, South-West) (Lab)
Mates, Mr. Michael (East Hampshire) (Con)
Morley, Mr. Elliot (Scunthorpe) (Lab)
Owen, Albert (Ynys Môn) (Lab)
Robertson, Mr. Laurence (Tewkesbury) (Con)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Simpson, David (Upper Bann) (DUP)
Singh, Mr. Marsha (Bradford, West) (Lab)
Southworth, Helen (Warrington, South) (Lab)
Whitehead, Dr. Alan (Southampton, Test) (Lab)
Glenn McKee, Committee Clerk
† attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Chaytor, Mr. David (Bury, North) (Lab)

Twelfth Delegated Legislation Committee

Monday 16 July 2007

[Mr. David Wilshire in the Chair]

Draft Terrorism (Northern Ireland) Act 2006 (Transitional Provisions and Savings) Order 2007

4.30 pm
The Minister of State, Northern Ireland Office (Paul Goggins): I beg to move,
That the Committee has considered the draft Terrorism (Northern Ireland) Act 2006 (Transitional Provisions and Savings) Order 2007.
On 1 August 2005 the then Secretary of State for Northern Ireland, my right hon. Friend the Member for Neath (Mr. Hain), announced a programme of security normalisation culminating in the repeal of part VII of the Terrorism Act 2000. Normalisation has been marked by many significant changes in Northern Ireland. For example, unthinkable as it would have been at any point in the past 35 years, just a few days ago, on 25 June, troops left the Bessbrook Mill base in South Armagh. Indeed, the 106 military sites that once existed in Northern Ireland will soon be reduced to 10, which will be used to accommodate a peacetime garrison of no more than 5,000 troops. Those troops will, of course, be available to support operations around the world. At such an important time it is worth remembering that, at the height of the troubles in the 1970s, there were more than 27,000 troops in Northern Ireland. We have come some considerable way from an active deployment of 27,000 troops to a garrison force of 5,000.
A further sign of the fundamental improvement that has taken place is that fact that last Thursday, for the second consecutive year, no troops were to be seen on the streets of Belfast during the 12 July parades. Those developments are welcome and demonstrate the Government’s continuing commitment to their normalisation obligations.
However, as the House accepted during its consideration of the Justice and Security (Northern Ireland) Act 2007, there remains in Northern Ireland a residual terrorist threat that has to be dealt with. That is why we have made provision for judge-only trials when they remain essential and given the necessary powers to the police and the Army to carry out arrests and conduct searches. The new provisions will come into force on 1 August. It is essential that we move from one regime to another in an orderly and effective way so that, for example, existing Diplock trials can be concluded and ongoing claims for compensation under part VII of the 2000 Act can be dealt with. The order will ensure that.
Section 4 of the Terrorism (Northern Ireland) Act 2006 enables the Secretary of State to make transitional or saving provisions in connection with the expiry of any part of the part VII provisions. There are some transitional provisions in section 113 of the 2000 Act, but they are themselves temporary and, without the order, will expire on 31 July. That is why I am bringing forward the provisions in the order.
The measures in it have been developed following extensive consultation with the Police Service of Northern Ireland, the Public Prosecution Service, the Ministry of Defence, the Attorney-General’s office and the Northern Ireland Court Service. Their input has been invaluable, and I am grateful to all of them for their advice.
It may help members of the Committee if I explained some of the main elements of the order and why they are necessary. It preserves arrangements in respect of defendants granted bail for a scheduled offence under section 67 of the 2000 Act on or before 31 July 2007. That will ensure that those defendants will be under a continuing duty to surrender to the custody of a court and comply with any bail conditions, and that the provisions on absconding and the power to arrest without warrant for breach of bail conditions will continue to apply. Those transitional arrangements will apply to any person granted bail in respect of a scheduled offence before 31 July. For example, if a person is charged with armed robbery, which is a scheduled offence, they will be able to apply to the High Court for bail only while part VII of the 2000 Act is in force—that is, before 31 July. Once that High Court bail is granted, it will last for the duration of the case, even after part VII ceases to have effect.
The order preserves the existing transitional provisions in the 2000 Act on Diplock trials in progress. If these arrangements were not put in place, trials could collapse, and guilty defendants could walk free from court. It may interest members of the Committee to know that 26 Diplock trials are currently in progress, and the provisions will ensure that they can all be completed. Once they are completed, however, there will be no more Diplock trials in Northern Ireland.
The order maintains the unfettered right of appeal from the Diplock court where it is not necessary first to seek leave to appeal. That means that individuals convicted by a Diplock court will still benefit from the provision, even if they lodge their appeal after the repeal of part VII. As I am sure that the Committee will agree, that is an important safeguard.
The order preserves police and military powers in relation to operations that may be in progress at the end of 31 July. For example, if a search is in progress when part VII is repealed, the police will be able to continue it until it is completed. Equally, if evidence has been seized under part VII powers, it can be kept to support any subsequent prosecution.
The order also preserves obligations on the police and the military to make records of actions taken under part VII. The compensation scheme is also preserved so that claims relating to events up to the end of 31 July can be dealt with and compensation can be paid.
The order enables the independent assessor of military complaints procedures to make a final report covering the period up to the end of 31 July 2007. The military will remain under a duty to provide him with the information necessary for his reports. I am sure that every member of the Committee will want to place on record our appreciation of the work of Jim McDonald, who has undertaken the role of independent assessor for the past 10 years.
Sections 107 to 111 of the 2000 Act can continue to apply in respect of Diplock trials in progress or of individuals convicted before 31 July 2007.
Finally, the order makes savings for physical security measures in Northern Ireland, including road closures and land requisitions. I have conducted an audit of such measures to satisfy myself that only those that are necessary on security grounds will remain in place. I am pleased to tell the Committee that it has been possible to remove a number of security measures. For example, much of the land requisitioned for Crossmaglen police station has been handed back to the landowners. Shore road at Ballykinler Army base has been opened, and there are plans to open Lower Chichester street in front of the royal courts of justice to buses. We all look forward to a day when there is no longer a need for barriers between communities, and I assure the Committee that I will authorise the use of physical security measures only as a last resort, when it is absolutely necessary to protect life and property.
Although the provisions in the order will keep existing arrangements in place, I intend to look at each security measure individually and to make fresh authorisations for any measures that need to be continued. That will be done on the basis of new security advice from the Police Service of Northern Ireland and the new powers in the Justice and Security Act 2007. I will undertake that work as soon as possible and keep all the measures under regular review thereafter to ensure that they are not retained for any longer than necessary.
Tremendous progress has been made in Northern Ireland over the past few years, bringing us ever closer to the reality of a strong democratic society. St. Andrews, the events of 26 March and 8 May, and even today’s picture of the new Prime Minister standing alongside members of the Northern Ireland Executive underpin that progress and make peace and prosperity the norm. However, it is necessary to deal with the threat that remains, and I hope that members of the Committee will agree that the transitional provisions and savings in the order are proportionate and necessary, and I commend it to the Committee.
4.39 pm
Mr. Laurence Robertson (Tewkesbury) (Con): May I also welcome you to the Committee, Mr. Wilshire? I am grateful to the Minister for going through the order in such detail and for giving us the background to it. As far as I can make out, it is very technical, and I thank his officials for going through it with me before the Committee.
The Minister is right to highlight how much Northern Ireland has changed and how far we have moved towards normality, but he will acknowledge that it is unsatisfactory that we still have to have certain measures in place. The Diplock courts will be retained, although they have no place in a mature democracy. We still have a 50:50 recruitment policy, even though the IRA has said that it supports policing, and, again, that has no place in a mature democracy. Only last week we voted—I personally did not—to continue the lack of openness with regards political donations, which again is to be regretted. But the Minister is right to say that we have come an awful long way, and he gave many details of how that has happened.
The Minister helpfully went through the areas covered by the order; bail, search powers, specified organisations, and trials. It is a technical order and we have no problem with it so I do not intend to drag the Committee proceedings out. But may I ask one question about trials? At what point does the order kick in? Is it on arrest, on charge, or when the certificate is presented by the district policing partnership? On reading the order, I am not sure at what point its provisions would kick in. With only that one question, I am happy to support the order.
4.41 pm
Mr. Alistair Carmichael (Orkney and Shetland) (LD): I, too, welcome you to the Chair, Mr. Wilshire.
As someone who has returned to dealing with Northern Ireland business in the House after an absence of two years, I am already struck by the apparent change that there has been in that time, and others have also mentioned that. It is a change that is almost universally for the good. As the hon. Member for Tewkesbury has said, there remain some abnormalities in Northern Ireland, and it is a recognition of reality to say that. Our view is that the order is highly technical and so there is nothing to which we take exception. I invite the Minister to accept that ultimately the removal of special provisions from things such as police recruitment, Diplock trials and other technical matters relating to bail and search petitions will add a momentum to the process of change. We are obviously supportive of today’s measure, but that should not be taken as an indication that we are anything other than keen to see a return in Northern Ireland to the same rules that are enjoyed by us on this side of the water.
4.42 pm
David Simpson (Upper Bann) (DUP): May I also welcome you to the Chair, Mr. Wilshire?
I would like to take this opportunity to reiterate my party’s position on the continuing provision for non-jury trials to take place in Northern Ireland. As hon. Members have already said, progress has been made in Northern Ireland and anyone looking in would be surprised by how much progress has been made.
We have had recent developments and, in his opening comments, the Minister referred to Crossmaglen where the community has recently demanded that the PSNI take on antisocial behaviour and petty crimes in the south Armagh area. That is very welcome as such developments are steps forward; they are only steps forward, but are steps forward none the less. As such, they most definitely represent an improving law and order situation in Northern Ireland, which is largely due to the successful completion of Operation Banner that was put in place to counter IRA terrorism. That success was summed up by security chiefs to the effect that by 1980 almost all of the military structures that eventually defeated the Provisional IRA were in place. It achieved its desired end state and that allowed a political process to be established without unacceptable levels of intimidation. Security force operations suppressed the violence to a level with which the population could live and with which the Royal Ulster Constabulary and later the PSNI could cope.
The violence was reduced to an extent that made it clear to the provisional IRA that it would not win through violence. That is a major achievement and one with which the security forces from all three services, with the Army in the lead, should be entirely satisfied. There can be no doubt that the people of the United Kingdom owe a great debt to the members of all armed forces and civilian police services who did so much to bring the terrorism to a standstill, and forced those involved to pursue a political road against their own dogma in the teeth of their own propaganda.
Despite those developments there are, unfortunately, elements within mainstream republicanism that have yet to come to terms with the realities of life. I think of one councillor in Strabane who was asked recently to call on the people to go to the police with information and declined to do so. Further, he declined to state that he would go to the police if he had information. Regrettably, there are also still elements of society with the desire and capability to inflict death and destruction. Clearly, there are also many who would be only too keen to intimidate jurors. We oppose efforts to amend the justice system that originate as a political bargaining chip in any negotiating process.
The Government may have given commitment to other parties to press ahead with so-called normalisation measures. However, that should not be done too hastily, particularly when the environment does not warrant the change. In our view, it was unnecessary to alter the provisions in section 7 of the Terrorism Act 2000 in relation to Northern Ireland. However, given that those provisions will cease to have effect from the end of this month, it is important to have other measures in place instead. We support the continuation of discretionary powers for trials to be conducted without a jury in Northern Ireland. Other new provisions were also instituted in the Justice and Security (Northern Ireland) Act 2007.
When troubles-related cases come before the courts, there is a danger of perverse verdicts from juries. After all, it takes only three jurors to acquit, and that makes the danger of jury intimidation all the more serious. That must sit in the context of, for example, a poll in the aftermath of the December 2004 Northern Bank robbery in which an extraordinary number of republicans did not consider the robbery to be a crime. Furthermore, senior representatives of Sinn Fein argued for many years that actions by the IRA were not crimes either. Indeed, their current position is that the IRA’s campaign was entirely legitimate. The influence of paramilitaries still exists and jurors would be under no illusions about that.
In a study entitled “The Jury System in Contemporary Ireland: In the Shadow of a Troubled Past” the authors discuss the potential to move away from non-jury trials, but conclude that
“while paramilitary organisations continue to operate, there are likely to continue to be certain cases which have a paramilitary connection where the risks of juror intimidation may be as great as they ever were.”
Of course, that will still be the case for years after paramilitaries have been active. Cases will be brought many years later and discretionary powers will be needed.
Finally, my party welcomes the increased protection for jurors, such as their being screened off from the public gallery and being provided with police protection and separate accommodation. There is no doubt that the cloud of terrorism will continue to hang over Northern Ireland for many years. Consequently, it is only sensible to take special measures that maximise the likelihood that justice will be served.
4.49 pm
Mark Durkan (Foyle) (SDLP): Like other hon. Members, I welcome you to the Chair, Mr. Wilshire. The Minister might address a number of points, such as the basic question of the provision made in the Terrorism (Northern Ireland) Act 2006 whereby the part 7 powers would remain in force until 31 July this year, and their wholesale extension until July 2008 if prevailing circumstances persuaded the Government that that were needed. Will the Minister confirm that this order means that the Government are not going for such wholesale extension of the part 7 provisions, and that they are making more limited transitional arrangements in respect of anomalies that might arise because of the warping of dates, which occurs when some cases proceed to prosecution on trial and when other legislation comes into force?
Secondly, can the Minister revisit his statement that after the current cohort of Diplock trials, there will be no more such trials in Northern Ireland? After all, the Justice and Security (Northern Ireland) Act 2007, which Parliament passed earlier this year, essentially provides for the continuation of Diplock courts in the form of no-jury trials, simply on the say-so of the Director of Public Prosecutions, who can issue certificates that cannot seriously be challenged in, or even by, a court. In many ways, we have a continuation of Diplock—or the son, or daughter, of Diplock.
On the powers that will continue on a transitional basis under the order, will the Minister acknowledge that provision is made for the Chief Constable, for instance, to keep a record of the exercise of any of those emergency powers by constables? However, under the terms of the 2007 Act, that principle will still not apply to the exercise of such powers by members of the armed forces. That anomaly needs to be addressed. The British Army is exercising emergency powers, supposedly in support of the civil authority. Given that a record is to be kept of the exercising of those powers by constables acting as part of the civil power itself, it is somewhat odd that no record is to be kept of the potentially controversial and even more exceptional exercise of those powers by British soldiers. Will the Minister take steps to address that anomaly, so that controversies and confusion do not arise in future from the exercise of those powers—or their alleged exercise—and the lack of apparent accountability on anyone’s part for what happened and why?
I join the Minister in paying tribute to Jim McDonald, the independent assessor of military complaints. Some of us have long believed that the powers of that office were completely inadequate and did not have the robustness and reach of, say, the police ombudsman. Such powers are absolutely necessary, but whatever the constraints on his role, Jim McDonald has always acted, in my experience, in good conscience and with all due diligence and responsiveness.
I join the Minister and others in recognising that we are dealing with a transformed situation in Northern Ireland. We should not be making the number of provisions on continuing emergency powers that the House is making. However, I recognise that this order provides a strange coalition of the abnormal with the abstract, to try to prevent the absurd. If it is a matter of trying to prevent trials from collapsing, and to prevent various legal lacunae from opening up that would get in the way of due process, it is a good thing.
However, the Minister referred to the number of Diplock trials under way and said that the Government did not want any legislative lapse to allow any of those trials to collapse. Unfortunately, that cohort of trials does not include a trial in respect of the murder of Pat Finucane, which means that we now have a travesty on top of a scandal on top of a cover-up on top of a murder. Although of course one wants all the trials that commence before 31 July 2007 to be properly continued, I want to register our profound regret that the prosecution service has determined that no trial—no prosecution—will now take place in respect of the Pat Finucane murder.
As we move forward in Northern Ireland, I hope that this order is among the last legal instruments that have to be discharged in this way by hon. Members in this House, and that we do not see these worrying, anomalous footnotes to the very positive, benign headline political situations. Today, the British-Irish Council has met, and tomorrow the North/South Ministerial Council will meet. The new beginning to policing has now been embraced by everyone, as have the power-sharing institutions and north-south and east-west arrangements.
That is what gives us hope for the future. What is different now from what we had before is not that we have power sharing, political institutions, accountable policing and peace—we do not have all those things for the first time; we have had them for a number of years—but that we have acceptance of all those things by everyone. Nobody is out to bring things down or to bring anyone else down. I hope that as those positive developments take root, we will be able to root out from the statute book any remaining abnormal legal provisions that are a scar on the whole principle of due process.
4.58 pm
The hon. Gentleman referred to the increasingly normal situation in Northern Ireland, which all members of the Committee will rejoice in, but he pointed out that there are what I think the hon. Member for Orkney and Shetland referred to as limited abnormalities. Yes, that is still the case, but even in relation to judge-only trials, we are moving in a more positive direction away from the Diplock system—in which the presumption would always be for a judge-only trial for a serious offence—to a presumption for trial by jury, except in certain cases in which there is a statutory test. Even in that area, where we still have abnormal provision, there are some signs of encouragement.
The hon. Member for Tewkesbury specifically asked when the powers relating to the transitional arrangements for Diplock or judge-only trials kick in. They kick in at the point of indictment—in other words, when the papers are served on the defendant, which is usually a couple of days before a plea is entered. Once we get beyond that stage, that would not be possible.
I welcome the renewed interest of the hon. Member for Orkney and Shetland in Northern Ireland matters. Clearly, he can see the difference now compared with when he previously had such responsibilities, and where we have got to in what is still a relatively short time. I can assure him that we have put provisions in place in the 2007 Act so that, as the situation becomes even more normal, we can drop some of the powers that we currently need. The judge-only trial powers will be subject to renewal on a two-yearly basis. When Parliament feels that the relevant provisions are no longer necessary, there will be no need to vote them through every two years. Indeed, an independent reviewer will be obliged to make reports to the Secretary of State every year, and will be in a position to recommend the removal of any Army and police powers that are no longer considered necessary. Mechanisms are thus in place further to reduce the number of provisions under the 2007 Act.
The hon. Member for Upper Bann gave a very upbeat assessment of the increasing commitment to policing and the rule of law from all sections of the community. He made some observations about areas where enthusiasm is perhaps less, but I think that the traffic is all one way, and we can all rejoice in that. The hon. Gentleman commented on Crossmaglen and south Armagh, and the fact that public meetings are taking place between the community and the PSNI; that shows tremendous and welcome progress.
The hon. Gentleman and my hon. Friend the Member for Foyle referred to the number of Diplock trials, and there has been a tremendous reduction. Twenty years ago, in 1987, there were 354 judge-only cases, and in 2006 there were 61. However, a small number still require judge-alone provision, which is why we have put that measure in place. I join the hon. Member for Upper Bann, as I am sure all members of the Committee do, in paying tribute to the police and Army for, throughout all the years of Operation Banner, holding things together when politics was not working. Of course, it is for the politicians to grasp the nettle, and finally each party has done that, which is what has given us the tremendous progress of recent weeks. The hon. Gentleman is right to point out that even with all the progress we have made, there is a residual threat and the potential for juror intimidation. That is why we need the provisions. However, of course, as we move forward, we will be able to drop them.
My hon. Friend the Member for Foyle was gracious, as ever, in explaining to the Committee that he and I tend to disagree, albeit on friendly terms, over the issues in question. He has very strong reasons for arguing against aspects of what the Government are trying to do, but in typically generous fashion he made the most in his speech of the current upbeat assessment of Northern Ireland. Today’s and tomorrow’s events speak for themselves about the progress that has been made. He also joined me in paying a compliment to Jim McDonald, and that was very welcome.
My hon. Friend was right to say that part 7 of the Terrorism Act 2000 could have been renewed, but only for a further year, of course; beyond that, there would have been no provision. The Government have argued throughout that we need a smaller set of powers in connection with judge-only trials and police and Army powers that would be on the statute book for as long as necessary, which would be for more than a year. However, they could be dropped according to the outcome of an annual review in the case of the police and Army powers, and of a bi-annual review in the case of the judge-only provisions.
We knew that we could go only as far as the environment would allow, and the residual threat from dissident republicans, particularly, required the provisions to be in place. We made a choice; but we want to get to absolute normality as quickly as we can, and I look forward to working with my hon. Friend in the pursuit of that goal. The judge-only provisions that he spoke about are still needed. They will be renewed every two years, thereby giving the necessary accountability to Parliament.
My hon. Friend mentioned the limited grounds of appeal that operate. We discussed this issue at length during the passage of the 2007 Act. It is not true to say that there are no grounds of appeal. They are limited because the appeal is against a mode of trial decision, rather than a judicial decision. So the conclusion that we have reached, on advice from the Lord Chief Justice, is that the full panoply of judicial process is not necessary here. Limited grounds of appeal are needed where there has been bad faith or some exceptional circumstances. That is in the legislation.
It is true that, whereas police officers keep a full and detailed written account in all circumstances of the events that take place, there is not the same expectation—or, indeed, the same training provided—in relation to soldiers. However, it would be wrong to conclude that no record is taken. Extensive records are taken of Army activities. The person to ask about that would be Lord Carlile, because he uses the statistical evidence and other information that the Army can provide him with when he reviews terrorism legislation. Of course, the complaints procedure remains in place for anyone who is still unhappy.
I noted my hon. Friend’s remarks towards the end of his speech about Finucane and the fact that the Public Prosecution Service has concluded that there is insufficient evidence to mount a prosecution against the police or anybody from the Army. I note his comments—that is all that I do at this stage. I hope that he accepts that that decision by the Public Prosecution Service, which is made independently of Ministers and the Government, of course, is arrived at openly and properly. With that, I bring my remarks to a conclusion.
Question put and agreed to.
That the Committee has considered the draft Terrorism (Northern Ireland) Act 2006 (Transitional Provisions and Savings) Order 2007.—[Paul Goggins.]
Committee rose at six minutes past Five o’clock.

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