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1.24 pm

The Secretary of State for Northern Ireland (Mr. Peter Hain): I beg to move, That the Bill be now read a Second time.

Three weeks ago, Royal Assent was given to legislation that cleared the way for the restoration of locally accountable, democratic, power-sharing government in Northern Ireland. As the House knows, the Government are firmly committed to the aim of devolving policing and justice powers to the Assembly, as envisaged in the Good Friday agreement. Since 1998, considerable progress has been made in creating the conditions that will make that goal possible. The legislation passed by the House earlier this year provided a framework for that, and it put in place a process to ensure that devolution can take place only with support across the communities of Northern Ireland. It is right that there should be such support.

I understand the concerns of the Democratic Unionist party, and I have articulated in debates in the House the fact that the circumstances must be right. I know, too, that all the parties, including the DUP, support the principle of devolution. The Government have a responsibility to make sure that devolution can take place quickly when the Assembly requests it. We set a timetable for May 2008 in the St. Andrews Agreement, and I have asked my officials in the Northern Ireland Office to press on with the necessary preparatory work, including the appropriate Orders in Council, to ensure that we achieve that.

It has been a long and difficult road to reach that point, but all sides have shown determination and commitment to take Northern Ireland forward, and I commend them on doing so. I have no doubt that any remaining obstacles can be negotiated before journey’s end at Parliament Buildings on 26 March next year. When we reach that point, the kind of politics that we in the House and our colleagues in Wales and Scotland take for granted will increasingly become the order of the day in Northern Ireland, which is as it should be.
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The “normal” will then cease to be remarkable. The Bill helps Northern Ireland further along the road to normality. In the crucial areas of justice and security, it reflects the very significant progress that has been made and which has been well documented in this House, even in the 18 months or so that I have had the privilege of speaking at the Dispatch Box as Secretary of State for Northern Ireland.

Mr. David Heath (Somerton and Frome) (LD): I am not an expert in Northern Ireland affairs, but I noted the right hon. Gentleman’s reference to normalisation. May I direct his attention to clause 7, which is an ouster clause of the most pernicious kind? We have rejected outright such a provision for jurisdictions in England and Wales, and it appears to contradict the recommendations of my noble Friend Lord Carlile of Berriew. Will the Secretary of State comment on that?

Mr. Hain: I am happy to do so, although I was about to deal with the meat of the Bill. Clause 7 is an ouster clause—there is no doubt about that—that effectively prevents challenges to decisions by the Director of Public Prosecutions. It restricts challenges to his decisions to circumstances in which there has been bad faith or other exceptional circumstances. That puts the case law on reviews of the Attorney-General’s decision not to deschedule in Diplock cases on a statutory footing. It derives from the Shuker case, which confirmed that the procedure for determining the mode of trial for the accused is not suitable for the full panoply of judicial review. Cases could be reviewed on grounds such as bad faith and dishonesty. It is not a change from the current position—in any event, the DPP’s decision is about the mode of trial, and the defendant will receive at least as fair a trial without a jury as with one, so they will not suffer any detriment. As I shall make clear, the intention is to move to jury trials as the norm. Juryless trials will be the exception, unlike the so-called Diplock arrangements, whereby juryless trials are the norm.

Lady Hermon (North Down) (UUP): The Secretary of State began by referring to the timetable for the devolution of policing and justice in Northern Ireland. He tried to persuade the DUP that the 2008 timetable is right—I am not sure that it is, but I will come to that later—but does he not accept the fact that there is an inherent contradiction? He is aiming for normalisation, but the Bill, which I hope we will scrutinise carefully this afternoon, extends the opportunities for non-jury trials, and does not decrease them, as he suggested.

Mr. Hain: No, I do not agree with the hon. Lady. It is not often that I have to disagree with her. The measures proposed in the Bill, which I shall describe shortly, are the right ones for the right time, given the progress towards normalisation and the need to complete the process of normalisation.

The Bill puts in place arrangements that are designed for the Northern Ireland of the 21st century, not the Northern Ireland of the 1970s. Trial by jury is one of the cornerstones of the criminal justice system, but for many years it was simply not possible for all cases in Northern Ireland to be tried before a jury because
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Northern Ireland was in the midst of the nightmare of paramilitary terror on a massive scale. Non-jury trial was therefore a necessity in those circumstances.

Northern Ireland has now moved forward enough to enable a return to a presumption for jury trial in all cases, even those that would currently be heard before a Diplock court. However, I recognise that, although circumstances have undoubtedly changed significantly for the better, even in recent months, and the paramilitary threat is greatly reduced, it has not gone away completely.

Dissident republicans who seek to undermine democracy and destroy the prospect of devolved government under the St. Andrews legislation and the St. Andrews agreement are still there, and they are still threatening peace and progress to the extent that they can. They are isolated, they are small, they are marginalised, but they are potentially dangerous, as we have seen.

Loyalist paramilitaries are still active and have yet to decommission their weapons. Organised crime is a real problem which we are working hard to tackle, and there are those—thankfully declining in numbers but nevertheless there—who still want to retain a hold on their communities through fear and intimidation. For these reasons, there is still a risk of perverse verdicts, either by intimidation or by “stacking” a jury to influence its decision. We intend to minimise that risk by reforming the jury system.

Mr. Gregory Campbell (East Londonderry) (DUP): In his move towards a presumption for jury trials, will the Secretary of State take account of the recent report from the Northern Ireland Affairs Committee, which indicated that there is indeed a considerable degree of intimidation going on, not just by paramilitary-related groups, but by other criminal groups, and directed not just at business people, but right across the communities in Northern Ireland?

Mr. Hain: We are dealing with extortion and those other serious crimes through the Organised Crime Task Force. The hon. Gentleman is right to say that especially in relation to organised crime, that is still an issue. There have been only—one might say “only”—six cases of known jury intimidation in the past five years, and he and I know well that that figure could be significantly higher. That is why there is the option of a juryless trial after a recommendation by the Director of Public Prosecutions, acting perhaps on intelligence or other information provided by the police or the security service, for example. After the Bill receives Royal Assent, the DPP can go to a judge and say, “The norm of a jury trial should be suspended in this case and provision should be made for one without a jury.”

Lady Hermon: Again, I am grateful to the Secretary of State. I know that his wife was involved in a car accident recently, and my colleagues and, I am sure, the entire House, wish her well, particularly before Christmas. We may have our arguments, but I wish his family a very enjoyable Christmas, which I know may well be spent in Northern Ireland.

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Before he welcomes the Bill and tries to persuade the House to agree to it without a vote, may I remind the right hon. Gentleman that there is already on the statute book the Criminal Justice Act 2003, passed three years ago in the House, which allows for non-jury trials in Northern Ireland? Rarely does mainland legislation extend to Northern Ireland—we seem to have separate bits of legislation these days—but that Act extends to Northern Ireland and allows for non-jury trials where there is a real and present danger of jury tampering. Will the Secretary of State enlighten the House about why it has never been used—never been activated by the DPP? Why should we have any confidence that the DPP will exercise his discretion any differently in relation to the Bill before us?

Mr. Hain: I thank the hon. Lady for her remarks about Elizabeth, who is getting better. Yes, I will be spending Christmas in Northern Ireland and the hon. Lady might guess where that might be, although I am not supposed to say where I am at any time.

Yes, the non-jury provisions in the 2003 Act will still be implemented in Northern Ireland. The hon. Lady is right. Our proposed new system of non-jury trial will apply only in the restricted set of circumstances prescribed in terms of the statutory test. The ability of the Director of Public Prosecutions to make a certificate ends at arraignment, so if jury tampering becomes evident after the arraignment has taken place, the DPP cannot intervene. The 2003 Act covers the other cases, including those where jury tampering becomes apparent after the case has started. The jury tampering provisions will be implemented in Northern Ireland early in January—in a few weeks.

The Bill puts in place a number of measures, including juror anonymity and restrictions on the disclosure of personal information about jurors. It also abolishes the defendant’s right to peremptory challenge, bringing Northern Ireland into line with England and Wales. To balance this, the Attorney-General will issue guidelines restricting the exercise of the prosecution’s right of stand-by and the exercise of jury checks. We will also be pursuing other juror protection measures administratively. These include better routine checks to identify disqualified jurors, making separate accommodation for jurors available, and making better use of screening of jurors from the public gallery.

Mr. Jeffrey M. Donaldson (Lagan Valley) (DUP): The Secretary of State is aware of the important work of the historical inquiries team, which is looking at the unsolved murders arising out of the troubles in Northern Ireland—thousands of unsolved murders. Will the provisions of the Bill apply to those cases, if the inquiry team is able to produce sufficient evidence to warrant prosecutions, given the criteria set out in the Bill for non-jury trials?

Mr. Hain: Yes, on the assumption that any such cases are brought after the Bill’s procedures have been implemented, of course that will apply. In some of the examples to which the hon. Gentleman referred, the DPP may well be able to go to the judge and say, “I think a trial without a jury is appropriate in these cases.”

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The changes introduced by the Bill will help to reduce the risks to jurors, but even with these reforms, there will still be cases where there are paramilitary and community-based pressures on a jury that could lead to a perverse verdict. I accept that there may be exceptional cases which cannot be tried before a jury. However, we will take a radically different approach to how these cases will be managed.

The decision to move to a non-jury trial will be made by the Director of Public Prosecutions for Northern Ireland in future. He or she will be required to apply a defined statutory test that is based not on the offence itself, but on the circumstances in which it was committed. Crucially, non-jury trial will be possible only where there is a risk to the administration of justice.

There has been a downward trend in the number of Diplock trials over recent years, and we want to get to a point where there are no cases at all that must be heard without a jury. However, I am sure that the House will understand that it would not be appropriate to remove that option entirely, even in the current improved conditions in Northern Ireland.

Considerable progress has already been made in normalising the security profile in Northern Ireland, as the Independent Monitoring Commission has reported. Towers and observation posts in south Armagh have been demolished, troops are being withdrawn from police stations in Northern Ireland, military bases and installations in Northern Ireland are being closed, most routine patrolling by the military has ceased, troop levels are at an all-time low, and not a soldier was on the streets on 12 July, for the first time in almost 40 years. However, there is still more to do.

Lembit Öpik: I have two concerns about the ouster clause. First, merely allowing it to be in the Bill will lead almost inescapably to mission creep, whereby it is used more and more to return to the very thing that we are trying to get away from. Secondly, and even more importantly, what guarantee can the Minister give us that putting an ouster clause into Northern Ireland legislation will not be used as a precedent for introducing it in the rest of the UK, knowing as we do that the Government have tried to do exactly that in the past?

Mr. Hain: I understand the hon. Gentleman’s concern, and it is appropriate for him to raise it. He will have a chance to pursue it in Committee, and no doubt he will. As he knows better than I do, Northern Ireland has a very different set of circumstances—that is why these provisions are tailor-made for its particular history and for its current emergence from conflict and the circumstances in which that is occurring. Organised crime committed by ex-paramilitaries or, indeed, still active paramilitaries, is a particularly serious problem.

Lembit Öpik: I shall of course return to it in Committee, but I must press the Minister. What assurance can he give that the inclusion of an ouster clause in Northern Ireland legislation will not be used as a precedent for including it in British legislation, knowing as we do that the Government have tried to do this before? They were defeated on it by reviews that
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took place a couple of years ago, yet they seem to think that it is still acceptable in special cases in Northern Ireland.

Mr. Hain: A whole range of provisions will apply in Northern Ireland that are not immediately translatable back across the water to Great Britain. That is simply the reality of the history of Northern Ireland. I think that that deals with the hon. Gentleman’s point.

Mr. David Lidington (Aylesbury) (Con): Why have not the Government provided in the Bill the safeguard that exists in the Criminal Justice Act 2003, which requires the prosecution to apply to a judge to agree that a case should go to non-jury trial? Why could not that procedure have been adopted in this case?

Mr. Hain: I did consider that, as my officials and ministerial colleagues know. My initial instinct was to see whether something similar to the provision in the 2003 Act could be applied. However, because of the need to handle intelligence and highly sensitive national security information, the DPP was prescribed the role of going before a judge in private to make the case that is necessary in the circumstances.

Sir Patrick Cormack (South Staffordshire) (Con): Perhaps I could come to the right hon. Gentleman’s aid by saying that it was the unanimous, if reluctant, view of the Northern Ireland Affairs Committee that something like this was necessary.

Mr. Hain: I am grateful to the hon. Gentleman, who questioned me closely on this matter and wondered whether there might be a role for the Attorney-General in this respect. It is unusual for Select Committees to support Governments unanimously, and I am especially grateful for that.

Sir Patrick Cormack: The right hon. Gentleman must not go too far. The Committee was not unanimous in every particular, as I shall make plain in my speech, but it was unanimous on the general principle that there should be provision for non-jury trials, as it was on organised crime in its report in the summer.

Mr. Hain: I was thinking as I said it that I was being a bit provocative to the hon. Gentleman, and indeed I was.

From 1 August next year, the military will take on a fundamentally different role in Northern Ireland. Routine military support to the police will cease. However, the military will remain available for certain specialised tasks in support of the civil authorities, consistent with their role in the rest of the United Kingdom—for example, in the conduct of search and rescue operations. Additionally, while the armed forces are not responsible for maintaining national security in the UK, they provide focused support in this area to the civil authorities. As envisaged by the Patten report, the police will be able to call on military support for public order situations if they require it. It will be for the Chief Constable of the Police Service of Northern Ireland to decide if he needs support of this kind.

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The military will need some statutory powers; without them, a soldier would have no more powers than the average citizen. The Bill provides those powers. It creates powers of entry, search, arrest and seizure necessary for the military to carry out its role effectively. Some of those powers also extend to the police, as is set out in the Bill.

Mark Durkan (Foyle) (SDLP): Those powers in respect of the military were previously contained in part 7 of the Terrorism Act 2000. The British Government made a commitment to repeal those provisions in the joint declaration of 2003. In effect, the Bill recycles the powers that they had previously committed to repeal.

Mr. Hain: I remind my hon. Friend that just eight of the 48 provisions in the previous legislation—the part 7 powers—have been transported into this Bill. Forty of them—the vast majority—have been lapsed, appropriately and rightly.

The powers are necessary to deal with a number of different circumstances. They will help in managing parades, road closures, and dealing with extreme public order incidents such as what happened at the Whiterock parade last year, which mercifully was not repeated this year. They may be used in dealing with organised crime and will be essential in combating loyalist and dissident republican terrorism, which is still with us. Let me give some practical examples. The stop and search powers may be used to search people for weapons around a parade or a sports event where it is anticipated that there might be trouble, to deal effectively with bomb threats by allowing police to cordon off the area and providing appropriate powers of access if the device is on private property, to search premises ahead of VIP visits, and to allow the police or the Army to chase criminals across private land without breaching trespass laws. Those of us who were briefed by the Chief Constable after the Whiterock parade last year will know that these powers are necessary. We saw the horrifying attacks on soldiers and police officers by loyalist gunmen and the steps that the police and the Army had to take to try to deal with that situation, including going through premises and on to nearby premises.

Mr. David Anderson (Blaydon) (Lab): This is a matter of concern to everyone in the House. In talking about normalisation, if we are asking people to live normal lives, we have to ask the police to do the same. I am worried that if the police have these powers and do not use them properly, we may end up giving people who will not recognise the police a stick to beat us over the head with.

Mr. Hain: I note my hon. Friend’s general point, which is well made. The fact is, however, that the PSNI is now the most accountable and regulated force in the world, with the Policing Board, the district policing partnerships and the police ombudsman, who is, appropriately, not known for her reticence in these matters. Apart from political oversight by this House and, in future, by a devolved Executive and Assembly, the structures of the Policing Board and the other arrangements provide important safeguards.

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