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“a heavy involvement in crime”,
and described the Ulster Volunteer Force as “active, violent and ruthless”.
It is in the context set out by the IMC that the House must assess the need for changes in the law and the continuing need for certain extraordinary procedures in our criminal justice system. I believe that the Bill marks a significant shift away from the emergency powers legislation which Parliament, under successive Governments, has renewed for many years—indeed, for several decades.
Mr. Hain: Following the questions raised about the Northern Ireland Human Rights Commission, I can tell the House that I have just received some ex cathedra information in order to, as it were, revise my memory. The commission supported the principle of retaining access to some form of non-jury trial. It did, it is fair to say, favour the use of the Criminal Justice Act 2003. However, as I have already explained, we do not think that that is the right approach given the circumstances in Northern Ireland. I hope that that satisfies the hon. Member for North Down (Lady Hermon), and that she now feels able to march into the Lobby to support us on this matter.
Mr. Lidington: The Bill departs from the emergency powers legislation and the powers now embodied in part VII of the Terrorism Act 2000. I welcome the fact that such a move is now possible. I accept, too, the Government’s argument that although we all want a presumption in favour of trial by jury in criminal cases, there remains a need for judge-only trials to counter the risk of intimidation and subversion of the jury system by very well-organised paramilitary groups.
Although we will be able to pursue various questions and points of concern in Committee and on Report, I will now specify some of the issues that we will wish to press during those later stages. In an earlier intervention, I mentioned my concern about the fact that the certification power in the Bill is given to the
Director of Public Prosecutions alone, without any form of judicial scrutiny. That differs from the arrangements that the Government introduced in the 2003 Act, which requires the prosecution to apply to a judge for approval of a non-jury trial.
The arrangements in the Bill also bring into question the role and status of the DPP. That point was made by Lord Carlile’s predecessor as independent reviewer, Mr. John Rowe, who argued in one of his reports, in respect of the Attorney-General’s power concerning certification or scheduling in or out of offences:
“The Attorney-General’s decision to certify opens the door to jury trial. In the reverse direction he would be denying jury trial, and that is inappropriate for the officer who has the conduct of all criminal prosecutions. It is also inappropriate for the officer who is indeed, in the words of a former Attorney General, Lord Mayhew of Twysden, ‘constitutionally the guardian of the public interest’.”
Although the Bill refers to the DPP rather than to the Attorney-General in person, I think that the same concerns apply to the unchecked exercise of these powers by the DPP as Mr. Rowe considered to apply to the exercise of such powers by the Attorney-General.
Lembit Öpik: Is it not self-evident that the principle must apply as much to Northern Ireland as it does to the rest of the United Kingdom, and that there is no security benefit whatsoever in trying to ascribe different regulations to different parts of the country?
Mr. Lidington: Wherever possible, the same rules should apply in every part of the United Kingdom. Obviously in Committee we shall be able to hear in more detail the Government’s argument that the terrorist or paramilitary threat in Northern Ireland is so different in nature from the terrorist threat in Great Britain that different powers are needed there.
Responding to interventions, the Secretary of State argued that the Government’s chief reason for giving the certification power to the Director of Public Prosecutions alone was that there would otherwise be a serious risk that very sensitive intelligence information might be given to people who would misuse it, and who might act in the interests of criminal and paramilitary groups. In Committee we shall want to probe that Government argument, and to do so by reference to the arrangements made by the Government to safeguard such information in other circumstances. Commenting on the Government’s proposals, Lord Carlile of Berriew argued that a procedure should be adopted similar to that used by the Special Immigration Appeals Commission.
Sammy Wilson (East Antrim) (DUP): The Superintendents Association of Northern Ireland raised this issue during the consultation. Given the way in which, in the past, lawyers have sought to gain disclosure of why certain decisions were made, and of the intelligence bases on which they were made, there is a real threat not just that trials could collapse, but that informants could be exposed. Does the hon. Gentleman accept that?
Mr. Lidington:
I completely accept the hon. Gentleman’s point that terrorist and paramilitary
groups will seek access to such information, and that if they acquire it they will use it for evil purposes. I question whether the Government are right to say that it is impossible to construct a procedure that provides both adequate safeguards and some scrutiny of the decision of the Director of Public Prosecutions. On that, we need not look only at immigration legislation. I remind the Secretary of State that in the Terrorism Act 2000 the appeals procedure against the proscription of an organisation specifically empowers the special tribunal set up to hear that appeal to deny the appellant or the appellant’s representatives access to the information on which the decision to proscribe was made. At the very least, that precedent needs to be looked at in Committee.
Mark Durkan: The hon. Gentleman has referred to the Secretary of State’s comments about a possible risk to, or compromise of, national security in respect of whether or not a trial goes to a jury. Does the hon. Gentleman recognise that the conditions for issuing the certificate are set out in clause 1(3) to (6) and that nowhere do those conditions refer to issues of national security, nor is the issue of national security referred to in clause 1(2), which deals with
“a risk that the administration of justice might be impaired”?
Mr. Lidington: Again, it would be perfectly proper for Members to explore such matters further in Committee and on Report.
Another issue that is bound to come up as the Bill progresses is the familiar debate about whether a non-jury trial should be held by one judge sitting alone or by three judges. I know that the Liberal Democrats have argued in the past that there should be a three-judge tribunal rather than a singe judge. For our part, we shall approach this matter with an open mind, but I should say that I am predisposed to favour the one-judge solution both because of the small size of the Northern Ireland bench and for fear that, given the circumstances in Northern Ireland, we would inevitably get into a situation in which one judge was seen as coming from one community and a second judge from another, with the third judge supposedly holding the swing vote in any decision. I am sure that we will have ample opportunity to pursue that argument in Committee.
I welcome the clauses giving protection to jurors. They are sensible and we will support them. I also welcome the powers for members of the armed forces acting, as the Secretary of State said, in support of the police and at the invitation by authorisation of the Chief Constable.
I welcome, too, the extension of the regulation of the private security industry to Northern Ireland, and I am glad that the Government have acted swiftly on the recommendation of the Northern Ireland Affairs Committee that the review of private security industry legislation be completed swiftly. However, I question whether the Security Industry Authority is fully equipped for the challenge of dealing with paramilitary organisations. If we look at the Select Committee report on Northern Ireland, we see that it heard evidence that licensees were frequently pressured by paramilitaries to employ particular people as door supervisors, that some local councils in Northern
Ireland operated no form of registration at all, and that even in Belfast, where police checks had to be done it was still left up to the licensee to decide whether the results of such a check should lead to somebody being barred from employment. So the onus of that, and therefore the risk of standing up to the paramilitary organisations, was left with the individual licence holder. When the Bill is enacted, the SIA will have to confront some powerful, very well established and utterly ruthless criminal interests in Northern Ireland. I hope that when the Minister responds to the debate he can assure the House that the SIA will be up to that challenging task.
Lady Hermon: I am grateful to the hon. Gentleman for giving way, as he always does. I want to get something clear in my mind, as I am slightly confused. Non-jury trials were introduced and extended to Northern Ireland in the Criminal Justice Act 2003, to which the hon. Gentleman has regularly referred, yet I understand that his colleagues voted against that. I also understand that he and his colleagues also recently voted against the extension to Northern Ireland of non-jury trials in fraud cases. Therefore, why are he and his colleagues in favour of non-jury trials in respect of this Bill?
Mr. Lidington: I am sorry for the hon. Lady’s confusion, but if she looks at the Hansard report of the recent debates on the proposal for non-jury trials in fraud cases, she will see that my colleagues who were speaking for my party on that occasion made it clear that we felt that it was perfectly possible for the judge controlling a fraud trial, and for the advocates speaking on behalf of the parties in such a trial, to simplify their reasoning by using language that a jury could understand. We did not believe the Home Office arguments that a sensibly presented case would somehow be incomprehensible to a jury. The difference between that Bill and this one is that in this one we are looking at proposals that move us a distance away from the current situation, where the system of scheduled offences means that certain offences are assumed automatically to go to non-jury trial unless a decision is taken otherwise. We are also dealing here with a genuine risk that terrorist organisations could subvert the process of criminal justice. The Ulster Unionist party used to support emergency provisions legislation in this House, and I am sorry that the hon. Lady is today apparently changing her party’s line on that.
I want to conclude by making a few remarks on the clauses relating to the Northern Ireland Human Rights Commission. Again, we will want to look at those clauses more closely in Committee. I have seen some of the commission’s initial comments on the Bill, and it is clear that it wants additional powers and that it dislikes the limits imposed by clause 14 in respect of national security and by clause 19 on events before 1 January 2008.
The point that I want to make to the Government is a bit different: is there not a risk that by enacting these further powers we will end up with different commissions or different independent watchdogs with overlapping and duplicating jurisdictions? For example, the commission says in a number of documents that I have read that one of its chief
interests is the plight of children who are detained in custody or immigration centres, but where will the boundary lie between the commission’s interests in that and those of the Northern Ireland Commissioner for Children and Young People? Also, how will Ministers define the respective remits of the commission, of Her Majesty’s inspectorate of prisons and of the Prisoner Ombudsman for Northern Ireland, each of which seems to have an interest in the same set of issues? When we set up independent watchdogs, it is important that we are clear about the responsibilities that they will exercise.
Rev. Ian Paisley (North Antrim) (DUP): Does the hon. Gentleman not agree that, even within the remit of its current powers, the Northern Ireland Human Rights Commission has failed to recognise that there are boundaries that it should not step over? It passes judgment on whether war is legal, interprets the scope of a Northern Ireland Bill of Rights and is involved with the 11-plus in Northern Ireland. How far does it want to go, and how far will it go if it is not stopped by this House through proper legislation?
Mr. Lidington: The right hon. Gentleman’s comments reinforce the case for having clear definitions of the responsibilities that the NIHRC and other independent watchdogs are expected to exercise.
I want to allow plenty of time for Northern Ireland Members in particular to contribute, so I will conclude by saying that, although we have a number of specific concerns that we will explore further in Committee, the Bill deserves support if there is a Division tonight. I certainly hope for the day when even the reduced powers embodied in this legislation will no longer be needed in Northern Ireland.
2.31 pm
Mr. Paul Murphy (Torfaen) (Lab): I, too, welcome the Bill. I have been following my right hon. Friend the Secretary of State around today—from the Welsh Grand Committee upstairs to here, downstairs, in the Chamber of this House. I suppose that I am what would be known as a parliamentary stalker. I accept the point that the hon. Member for Montgomeryshire (Lembit Öpik) made earlier: we should try to avoid clashes of Northern Ireland and Welsh business if we can, because they do not allow us the right opportunities for debate.
The Bill extends the normalisation of life in Northern Ireland, and when the Belfast agreement was reached and then voted on, it certainly was felt that such issues would eventually be dealt with in exactly the same way as they are in Great Britain. The normalisation of security has been successful, as has the establishment of the Northern Ireland Human Rights Commission and the other commissions, and the changes in the criminal justice system. The Bill hits the right note. It accepts that, as a rule, Diplock courts must come to an end, and I see no reason why they should continue. The view when the agreement was signed was that eventually, normal life would return and there would be no need for them. But I also recognise that, because of jury intimidation, in certain cases trials may well have to be held without a jury—an issue to which I shall return in detail in a moment.
The normalisation of security, policing and criminal justice should of course apply across the board. When we debated Northern Ireland legislation in this Chamber some weeks ago, everybody agreed that the time had come for all political parties in Northern Ireland—particularly Sinn Fein—to accept the policing arrangements as they now are. I hope that my hon. Friend the Minister will touch on that issue when he winds up. It is relevant to our proceedings today, because it reflects a general movement towards the normalisation of events in Northern Ireland. After all, although the Unionist parties did not like many of the changes in policing and the nationalist parties did not like some of them, at the end of the day, the rule of law and the new policing arrangements have been accepted by all except Sinn Fein. I know that that will be a major issue in the months ahead.
I am pleased to see that the NIHRC will be granted extra powers to compel evidence, to access places of detention and to bring judicial proceedings in its own name; indeed, that was the original intention. I was told year after year that none of these things was possible, so I am delighted to see that they now are, and that the NIHRC will be able to get on with its job. However, I accept the point, made by some Opposition Members, that all the commissions in Northern Ireland must have the confidence of all the community of Northern Ireland—whoever they are and whatever background they come from.
Lady Hermon: I am extremely grateful to the right hon. Gentleman for giving way. Will he reflect on his praise for the NIHRC, particularly given that clause 49 extends certain provisions to England, his beloved Wales, and Scotland, as well as to Northern Ireland? The increased powers of the NIHRC presumably extend to Great Britain. Did the Welsh Affairs Committee get an opportunity to discuss that extension of powers?
Mr. Murphy: No, but the worry always was that extending the powers of the NIHRC would have implications for the rest of the United Kingdom—although not, of course, for the Republic of Ireland, as my hon. Friend the Member for Foyle (Mark Durkan) has already mentioned. That is a difficulty, but everybody accepts that the commissions set up some eight or nine years ago—be it the Equality Commission for Northern Ireland or the NIHRC, for example—are exceptional, in that they relate particularly to the circumstances of Northern Ireland and have taken the accountability of Government to heights beyond other parts of our country. However, I understand the point that the hon. Lady is making.
I turn to another interesting issue. All these measures are based on the premise that eventually, policing and justice will be devolved to Northern Ireland. It might be a good idea if the House reflected on the fact that policing and justice in Northern Ireland are already devolved to a large extent. When I was Secretary of State for Northern Ireland, a lot of the decisions about policing were taken not by me or my right hon. Friend the Member for Neath (Mr. Hain), the present Secretary of State, but by the Policing Board, which has done a very good job, so a lot of the detailed
arrangements are already devolved. I understand that considerably more need to be devolved before the commitment made all those years ago to the devolution of justice and policing to Northern Ireland is met; however, it is sometimes forgotten that such devolution already exists.
Mr. Hain: My right hon. Friend makes a very important and telling point that has been made by others, including the leader of the Social Democratic and Labour party. There already is significant devolution of policing; indeed, for operational purposes, it is almost total. When the debate is weighed up and the time comes for the formal powers to be transferred from this Parliament to the Assembly and the Executive, it should be borne in mind that it is not as momentous a thing as some might suppose. I would welcome my right hon. Friend’s comments on that point.
Mr. Murphy: I am grateful to the Secretary of State for that intervention.
The hon. Member for Aylesbury (Mr. Lidington) referred on more than one occasion to the need for the Committee considering the Bill to look in detail at some of the issues that we are examining more generally this afternoon. I am sure that they will also be dealt with in great detail in the other place, where there are many experts on them who will doubtless lend their support to such a debate.
Before I conclude, I want to make two further points. First, the clauses relating to extra powers for the police and the military—my hon. Friend the Member for Foyle touched on the military—need to be looked at in detail. My right hon. Friend the Secretary of State is right to say that a highly sophisticated method of accountability in Northern Ireland—be it the Police Ombudsman for Northern Ireland or the Policing Board—will look after many of those issues. I realise that arrangements are in place regarding who will report to the Secretary of State on issues affecting the military. However, it might be worth while including in the Bill a safeguard or a monitoring system to examine the operation of those clauses as time goes by, or at least to get the Government to agree to having one.
I accept the general view that we do not want to return to a situation where every year, this Parliament deals with these issues, but because we are entering into difficult areas, it is worth while monitoring progress. I say that not just because I was involved in Northern Ireland, but because of my role as Chairman of the Intelligence and Security Committee in dealing with the next and final issue that I want to discuss: the position of the Director of Public Prosecutions on non-jury cases in Northern Ireland. Remember that we are talking about cases that go to trial. I understand that in some instances—for reasons of national security in particular—cases do not end up at trial, but we are talking of cases that will go to non-jury trial. I introduced the 2003 legislation in the full knowledge that at some stage a judge would have a role to play. The Secretary of State and the Government should reflect a little more on the relationship between the DPP and the judiciary. I completely understand the point about national security, the intimidation of juries and the care that needs to be taken with intelligence
that leads the DPP to conclude that a trial without jury should be held. However, we always have to balance the issue of security with civil rights and liberties.
It has been argued that Northern Ireland could have a special exemption in terms of jury trials, because of paramilitary activity—which still exists, including through organised crime—but it and the rest of the country face a much bigger threat from al-Qaeda, as the director general of the Security Service reminded us the other day. In Britain, trials can be held in camera and without juries in certain circumstances. However, the judiciary play a role, even to the extent that certain members have to preside in such trials because they are used to dealing with such matters of national security. We have to be careful on that point and I hope that we will have a good debate on it in Committee, to ensure that we hit the right note.
In general, the Government have hit the right note with the Bill, because it will carry Northern Ireland even further down the road to a normal society.
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