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2.42 pm

Lembit Öpik (Montgomeryshire) (LD): I first wish to put briefly on record my utter frustration that once again Northern Ireland legislation is being considered at the same time as Welsh business. The Secretary of State for Wales has had to leave because he has other responsibilities, and I have to hold the fort—in onerous fashion—all on my own. This scheduling also deprives the Welsh Grand Committee of two of the finest Members of Parliament from Wales—if modesty permits me to say so on my own behalf. The right hon. Member for Torfaen (Mr. Murphy) has failed to intervene to correct me on his behalf. The business managers need to show more respect for the Welsh and Northern Irish Members of Parliament and public.

Sir Patrick Cormack: While I have sympathy with the point that the hon. Gentleman makes, the Government have now on three separate occasions scheduled Northern Ireland business to clash with the Northern Ireland Affairs Committee, and we have had to abandon our sittings.

Lembit Öpik: That simply serves to prove that the business managers do not seem to care about Northern Ireland legislation and allowing us to address it properly. It is a real Hobson’s choice making the decisions about which business to attend and I hope that this is the last occasion on which the business managers treat us with such disrespect.

We also need to put on record our appreciation of the work by Lord Carlile of Berriew, who has made a substantial contribution to the debate. He is one of the finest contributors to these matters and, incidentally, comes from one of the finest constituencies in the country—Montgomeryshire. We appreciate his efforts.

The Liberal Democrats generally welcome the Bill. It contains much that we support and we welcome announcements by the Government that they will repeal the temporary provisions in part 7 of the Terrorism Act 2000 relating to Northern Ireland. That is a significant step forward and some credit is due to the Northern Ireland Office for being true to its word and attempting to normalise the legislation that pertains to citizens of Northern Ireland.

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We are also pleased to see at least a professed move away from the Diplock court system. Instead of the presumption being that terrorist cases in Northern Ireland should be tried without a jury—and may be tried with a jury only if the DPP deschedules a case—it will be reversed and a case will have to be tried with a jury unless he issues a certificate stating that it must take place without one.

We have criticised the Government in the past for not moving swiftly on that matter. Indeed, while we welcome the move away from the presumption of non-jury trial, we question whether the new provisions go far enough. There is some cross-party concern that the Government have attempted to remove Diplock courts with one hand but replace them with something similar with the other. In essence, the Bill could do much more to ensure that jury trial becomes the norm in Northern Ireland rather than the exception.

I am sure that the issue will occupy us considerably in Committee. For a start, we are concerned by the language used in the Bill in relation to the issue of certificates. Clause 1 sets the bar very low. For example, it states that the DPP

Those are terrible words to use in legislation. It does not say how big the risk must be. Should it be greater than 50 per cent. or will a 5 per cent. risk be sufficient? The DPP need only suspect something, which is a very low test—indeed, it is a lower test than the balance of probabilities. So in clause 1 we already see a construction of words that makes it easy for the DPP to decide that a jury trial is inappropriate.

The Bill also puts considerable onus on the DPP—one person—to make the decisions. That is one of the reasons why we are so concerned about later sections of the Bill. Not only will the DPP have to make momentous judgments about risk, but there is no safety catch or double check.

The conditions in clause 1 are equally woolly. Clause 1(3) states:

It is not clear what that means. If one looks at subsection 10, the definition of “associate” includes

That is a very broad use of language and open to interpretation. Who could be considered to be a friend of mine? I would imagine that everyone in the Chamber would consider themselves to be in that privileged category —[ Interruption. ] Well, some may choose to exempt themselves. The DPP, however, may not be able to take the risk. For example, the right hon. Member for North Antrim (Rev. Ian Paisley) might be at some religious convention in Belfast and, during a break, bump into the Bishop of Southwark in the bar. The bishop says to him, “You’re my best mate ever.” The DPP happens to overhear that, but a fight ensues. Does that mean that the right hon. Member has to be considered a friend of the Bishop of Southwark and therefore qualifies under this condition?

An even greater concern involves the Prime Minister. There can be no doubt that he has consorted with
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Gerry Adams on many occasions and is, at the very least, an associate of his. Gerry Adams has clearly been a member of a proscribed organisation—

Mark Durkan: He’d probably qualify as a friend.

Lembit Öpik: Indeed, but that would mean that if for any reason the Prime Minister was on trial in court in Belfast—perhaps for the Iraq war, although I hesitate to suggest why—he would have to be tried without a jury because he is a friend of someone who has been a member of a proscribed organisation. Those examples show how preposterous the Bill’s vagueness of definition is. Everything that I have mentioned has to be worked out by one person—the DPP for Northern Ireland.

I have concerns about some other matters. For example, condition 4 has an unintended consequence. The Bill states:

That means that racist attacks could qualify for trial without jury, even though they have nothing at all to do with the troubles in Northern Ireland. I accept that clause 1 begins by making it clear that the DPP would have to be satisfied that the administration of justice might be impaired by a jury trial, but condition 4 makes it possible for many people to ensure that they would not be tried before a jury.

Moreover, the condition requires the DPP for Northern Ireland to exclude jury trials in circumstances that manifestly have nothing to do with the specific problems of Northern Ireland. We can investigate the other problems in Committee, but we must be clearer, more focused and less vague about the definitions in clause 1; otherwise, the DPP is almost certain to err on the side of caution and exclude jury trials in circumstances where they should be included.

I hope that the Minister will say why it is the DPP for Northern Ireland who will decide whether a trial is to be conducted with a jury. Would it not be more appropriate for that decision to be taken by a judge? So far in this debate, I have heard no convincing answer to that question. Perhaps the Minister should reflect on the matter, so that we can give it serious treatment in Committee. In the absence of a plausible reason, we risk making the situation over-complicated by stepping outside the mainstream judicial system.

Clause 7 is the most vexing part of the Bill for many people. I stress that I and my party are completely opposed to it. Not only does the Bill contain no provision for an appeal against a decision to be held without a jury, but in fact it expressly prohibits such an appeal. Something similar came up in connection with the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. At the time, the Joint Committee on Human Rights issued a damning report on the provisions, saying that they were

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For me, clause 7 is equally objectionable, because it is the same clause. Indeed, I urge the House to look at the fourth and fifth reports from the Joint Committee on Human Rights at that time. Seven pages are devoted to the 2004 proposals, with the Committee explaining in considerable detail why it thought that they were unreasonable.

My party will not call for a vote on the Bill today, as we want it to be considered in Committee, but we will not be able to support it on Third Reading if clause 7 is retained. Moreover, the Government should not expect us to accept this objectionable clause, as they have already conceded the point in separate debates on the Floor of the House. My counsel to the Minister is that we should not fight old fights again, and that the Government should walk away from this unnecessary restriction on human rights. They should accept the verdict of independent reports published less than two years ago and realise that the clause creates a pointless hostage to fortune, as no one really believes that the Government would not use it as a precedent to force similar legislation on the rest of the UK.

Lady Hermon: If the DPP for Northern Ireland had to put an application before a judge, would the hon. Gentleman and his party accept the clause? That condition was included in the similar provision for non-jury trials in the Criminal Justice Act 2003, at a time when jury tampering was a real danger. If the Liberal Democrats would accept that condition now, why did they vote against it then?

Lembit Öpik: I shall write to the hon. Lady with the detailed answer that her question deserves. I assure her that I shall talk to her about the matter at greater length once I and my hon. Friend the Member for Argyll and Bute (Mr. Reid), who is listening to the debate, have had a chance to consider it. However, my biggest concern about clause 7 is that it is an ouster clause that sets a tremendously dangerous precedent for future legislation relating to the whole of the UK.

The hon. Member for Aylesbury (Mr. Lidington) was right to say that, if there is to be trial without a jury, the Liberal Democrats strongly prefer a three-judge system. He highlighted some of the reasons, but that is another matter that can be debated in more detail in Committee. Our preference, of course, is that jury trials should be the default position, as we do not want to provide a wide-open gateway for a return to Diplock courts by another name.

On the Bill’s other provisions, we agree with the Government that there remains a case for putting in place special measures to protect the identity of jurors in Northern Ireland, but we have some questions about the special restrictions detailed in clause 9. For example, how widely do they apply? The Bill does not seem to specify that. How do they compare to jury-protection measures in the rest of the UK? Do the Government envisage that the restrictions will be permanent, or will they be rolled back as Northern Ireland moves closer to normality? I hope that the Minister will be able to respond to some of those questions later today, at least in outline terms.

Clauses 13 to 19 extend the powers of the Northern Ireland Human Rights Commission and are very welcome. Some time ago, the commission said that it
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needed to be able to compel evidence and enter places of detention. We are very pleased to see that those powers are provided by the Bill, but we will need to table amendments in Committee and ask questions of the Minister to ensure that the provisions are constructed in such a way that they can be used effectively for the benefit of the people of Northern Ireland. The intention behind the clauses is sound, but we need to check that the provisions will be effective.

For example, we are concerned about clause 19, which will prevent the Northern Ireland Human Rights Commission from using its new powers retrospectively to compel evidence. The clause will mean that the commission will have no right to use that power except in relation to

In reality, the commission will be unable to investigate anything that has already happened, or which may happen in the next 12 months. Perhaps the Government have good reasons for imposing that restriction: if so, we need to hear them.

We welcome the proposals in clauses 20 to 41 in respect of the powers of the security forces. Those will be general public order powers, no longer restricted to terrorist offences. This year’s marching season was peaceful in nature, and the Secretary of State has said that the Army was not deployed even once. Given that, we hope that there will be very few instances, if any, when the new powers will be used. That causes me to wonder whether we are being a little gold-plated in introducing powers that could turn out to be otiose.

Clause 40 says that the Secretary of State may repeal the powers laid down in clauses 20 to 39. Does the Minister have in mind a time scale for when he hopes that those powers will no longer be necessary—might it be in five years, or 10 years, or two years, for instance? I suspect he will say that it is an open-ended question, which prompts me to make the usual observation, which spokespeople from the Social Democratic and Labour party have already made today: temporary powers tend to become permanent as soon as they have been passed, because the Government are much better at introducing regulations than removing them.

The remaining provisions, in particular the clauses relating to the regulation of the private security industry in Northern Ireland, are also to be welcomed and could provide useful steering points for related UK legislation. The Security Industry Authority has been successful in its work in England and Wales, and we are supportive of the proposal in clause 45 to extend its remit to Northern Ireland. If it works in Northern Ireland, we can be quite sure that the Government’s legislation on that matter is fundamentally sound.

The Liberal Democrats will not be calling a vote today. We want to give the Bill the chance to pass to Committee but, as I said earlier, unless clause 7 is repealed, we shall not be able to support the measure on Third Reading.

3.1 pm

Mark Durkan (Foyle) (SDLP): The Bill is presented in the name of normalisation, but the reality is that some of its provisions are about normalising the
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abnormal emergency provisions that were resorted to in the context of the troubles.

During the darkest days of the troubles the rule of law often appeared to be little more than the law of the jungle in disguise. We saw not only paramilitary bombs, murders and atrocities but also arbitrary arrest, internment without trial, collusion and extra-judicial killings. Terrorists comported themselves in paramilitary fashion and people in the military and other security interests acted in ways that amounted to para-terrorism. All that fed into a sense of grievance and despair. It allowed those who headed paramilitary organisations to feign legitimacy and it dragged our society ever deeper into conflict and lawlessness.

In the face of that, the SDLP stood strong for the proper rule of law. For us an essential part of ending the conflict has always been reaching a situation where all of us fully respected human rights and would know that all organs of the state did so, too. That is why we have always opposed emergency laws and sought their removal and repeal.

Happily, nowadays, systematic abuses such as conviction on the basis of confession evidence alone and things such as the supergrass system have ended, but Diplock courts remain unjust. Under the Bill, Diplock courts will remain. People will still be convicted or acquitted by one judge sitting alone, and the decision to try a case in a Diplock court will be taken by the Director of Public Prosecutions, with absolutely no check or challenge available in a court or by a court that is directed to sit as a Diplock court. As I indicated to the Secretary of State earlier, that is a significant change from what the House was told in October 2005 when we were debating the Terrorism Bill. The Secretary of State made it clear that the intention was to end the provisions for scheduled offences by July 2007; they were extendable only until July 2008 and absolutely not beyond that point.

The Bill, however, provides for scheduling in perpetuity—not subject to annual renewal in the House, but permanent. Continuity Diplock is provided for in the legislation. Abnormal arrangements are being normalised. That is the part of the normalisation agenda that the Bill introduces.

When the House was debating the Terrorism Bill in late 2005 and early 2006, the Government put much emphasis on the views of Lord Carlile. We heard, for instance, that he had said:

That was their extension to July 2007, exceptionally to July 2008.

He continued:

the 2005 Bill—

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