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The risk of intimidation is fairly high. Indeed, some cases have already broken down because of jury
tampering. When the Secretary of State appeared before the Northern Ireland Affairs Committee, we put a case to him in which eight people were involved in a £1 million cigarette heist. When the case went to court, there was evidence of jury tampering, the trial collapsed and the accused walked free. So we already have some warning signals that, even under the present regime, inappropriate cases are sent for jury trials with consequences that benefit only those engaged in criminal activity.
It has already been said today that under the present regime it is possible to move further towards a jury trials system when appropriate. Already, 85 to 90 per cent. of offences are descheduled and can be tried before a jury. Why is the existing mechanism not to be used in the future? The only conclusion to be drawn is the one arrived at by my right hon. Friend the Member for North Antrimthat to a certain extent the proposals are coloured by a political necessity, rather than a legal or security necessity. They must be politically driven, as a mechanism already exists that would allow us to move towards jury trials, as and when that is deemed suitable.
The presumption in favour of jury trials will cause the DPP for Northern Ireland to respond to political pressure and opt for those trials in connection with many more offences, whether or not that is appropriate or safe. The Bill will give extra impetus to those who want to drive the system in that direction.
I know that the SDLP is concerned because decisions by the DPP cannot be challenged, save in very limited circumstances. However, legal teams in Northern Ireland often trawl for disclosure about involvement in a paramilitary group or paramilitary intimidation, and the Superintendents Association of Northern Ireland made it clear in its response to the consultation document that that can prejudice the person who makes such information available. The Government are right not to leave the door to judicial review wide open, as the result in many cases would be that trials would collapseas has happened in the past.
Mr. McGrady: I hear what the hon. Gentleman says about tribunals and judicial review, but should not the decisions to which he refers at least be subject to independent assessment by a senior judge? His agreement or disagreement could then be made known within the system.
Sammy Wilson: Such checks already exist. The DPP for Northern Ireland must make his decisions about whether a case should go to a non-jury court according to a set of criteria. The Secretary of State has pointed out that, although a judge cannot challenge such decisions, he can speak to the DPP if it is clear that one is unsound.
Lady Hermon: May I draw the hon. Gentlemans attention to the fact that clause 7 provides that no court can review a decision by the DPP unless there has been dishonesty or bad faith? The DPPs decision cannot even be nullified
by reason of lack of jurisdiction or error of law.
Sammy Wilson: That might be a difficulty for the hon. Lady and the SDLP, but my party believes that there should be a presumption in favour of non-jury trials anyway, so that is not a big issue for us. The assumption behind many of the complaints aired today is that non-jury trials deliver a lesser standard of justice than jury trials. However, the evidenceat least from our part of the United Kingdomis that many of the miscarriages of justice that have occurred were not in non-jury courts. The headline miscarriage of justice cases occurred in jury courts, so I do not have the same concern as the hon. Lady about the lack of opportunity for people to challenge the decision of the DPP. As there is already a presumption to move to jury trials, and as 85 to 90 per cent. of scheduled offences are already being descheduled so that they can be heard in jury courts, there is sufficient movement in a direction that I believe is dangerous in present circumstances.
As has been pointed out, we are not happy about the proposals to move towards jury trials, but if we must do so, one of the safeguards that we welcome is the fact that at least peremptory challenge has been removed. In Northern Ireland in the past each individual could make 12 peremptory challenges, and one of the people who briefed me on the Bill told me about the old saying that in England when the jury was chosen the trial was ready to begin, but that in Ireland when the jury was chosen the trial was finished.
When someone can challenge jurors without reason, there is a great danger that the jury will be made up only of people they believe will be sympathetic to them. The Chairman of the Northern Ireland Affairs Committee mentioned that in our report we pointed out that one of the big challenges in Northern Ireland in the future would be dealing with criminal gangs. If the system was not changed, there would be a real possibility that in a case involving six gang members, there could be 72 challenges to the jury so that eventually the accused would have a jury that they felt would be sympathetic.
It is essential to bring that process into line with the rest of the UK. However, it will not stop perverse decisions by juries, especially in areas where there is a strong republican or indeed loyalist influence. Some of the people chosen for the jury might not feel that criminal activity by a paramilitary organisation was all that bad, and that it was one of the things that had to be done to raise funds. Just three people could influence the decision in favour of the accused, so there is great danger of perverse judgments and we must be careful about that.
The hon. Member for Blaydon (Mr. Anderson), who is no longer in the Chamber, and other Members spoke about the powers for the Army to stop, search and arrest people and so on. They were jumping up and down about that, but I have watched operations as a member of the Policing Board and I can tell them that sometimes it is impossibleespecially where the police ask for Army supportto distinguish the roles of the police and Army personnel. When the police and the Army operate together, Army personnel need the same powers of arrest and search as the police require. When they have to deal with a fracas, a riot or public disorder, are the Army personnel supposed to leave it to the
police to make the arrests or to do the stopping and searching? When they are liaising on the ground they need the same powers.
Sammy Wilson: I am saying that where the police and Army are operating together on the ground, the Army personnel need the same powersto stop, search and arrest people and perhaps to search premisesas the police. The investigatory powers of the Army are governed by the Armys own strictures and that is how it should be. Given how the police ombudsmans office has abused its powers in relation to the police, I would certainly not want its powers extended to investigating the Army. I believe that the powers given to the Army in the Bill are essential. On the rare occasions when the Army is called in to help the police, it is essential that it has those powers.
My last point is about the Northern Ireland Human Rights Commission. Here is a body that is totally unproved. I was trying to think of any high-profile cases in which it has been involved during its current life. I gain the impression from speaking to people in Northern Ireland that if they are aware of the NIHRC at all, they are aware only of the infighting that occurred when half the people who served on it dropped out halfway along and refused even to go to the meetings. The chief executive or chairman of the NIHRCwhatever he is calledleft or was put out because of the way in which the commission operated.
The NIHRC sought a role for itself, of course, mostly by overstepping the mark and involving itself in things for which it had no remit. As my right hon. Friend the Member for North Antrim pointed out, it condemned the Iraq war as illegal. Whether it is illegal or not, I do not think that it is a matter for the Northern Ireland Human Rights Commission. Some of us may have views on that issue, but it is certainly not the proper role of the commission to investigate it.
Lady Hermon: I am genuinely grateful to the hon. Gentleman for taking so many interventions. I may be absolutely wrong on this, but I had understood that when the Secretary of State set up the most recent Northern Ireland Human Rights Commission, he wanted to make it more representative of the community, so there is a present serving member who is also a member of the DUP. Is that correct and, if so, does the party have no way of trying to influence him in trying to make the NIHRC more sensible in its judgments?
It would be most bizarre, and we might well come in for some condemnation, if we were seen to be pulling the strings of someone who is supposed to be an independent member of the commission, albeit coming from a particular persuasion. We do not seek to do that, as we do not believe that it would be right, but it does not affect my judgment on the commission. I do not believe that that body has added anything to Northern Ireland or, indeed, provided any additional safeguards. If one
looks at the remit it sought for itself, it seems to have wandered around looking for one, involving itself with things with which it should not be involved. A further worrying aspect is the powers given to it by the Bill.
First, the NIHRC is given powers that are already exercised by other bodies. For example, it is given the power to visit and investigate prisons, but Her Majestys inspectorate of prisons already has that power. What additional work will the commission do? Are we saying that Her Majestys inspectorate of prisons is not doing its job correctly? Are there defects in its remit and, if so, should not the Government address them rather than give another body power to carry out work in respect of prisons?
The other thing, of course, is that when a body, such as the Northern Ireland Human Rights Commission especially a body that wishes to prove itselfis given additional powers, there is always a chance that those powers will be used zealously and, indeed, over-zealously. It is very unfortunate that some Government Members use the example of the police ombudsmans office. One has only to look at its record to see that it has abused its investigatory powers abominably. For example, in my constituency, a raid on a former special branch officers house was carried out. That man was suffering from severe heart problems. He was certainly no threat to society, yet six cars full of investigators rolled up at his house. It was not sufficient to send six cars; the TV stations were rung up, so that they could come to film the raid. Why? So that the police ombudsmans office could be seen to be doing something. That is the problem with giving such bodies, which are looking for a role for themselves, the kind of additional powers proposed. They will use them over-zealously.
Mark Durkan: As well as refuting the hon. Gentlemans gross allegations against the police ombudsmans office, I ask him whether he agrees that the fact that he is saying that he cannot think of something that the Northern Ireland Human Rights Commission has done shows that it is not doing the damage that he is suggesting and that it is not behaving in a manifestly untoward, destructive or irresponsible way. The commission responds to complaints. It also responds to Government proposals for legislation and makes a valuable input into proofing and improving those proposals and legislation, including during the time when we had devolution and, I hope, when we have devolution again.
Sammy Wilson: This is the amazing point. Let me just take the last point that the hon. Gentleman made: the commission will have the job of proofing Government policies. I thought that Departments already had to do the job of providing equality-proofing and so on for legislation and other proposals. Are we saying that we not only need Departments to do that jobDepartments very often bring in consultants to do that job on their behalfbut also need to bring in the commission to do more equality-proofing? I am trying to make the point about over-regulation and the problem of looking for roles for bodies when there is not really a role for them.
The point is that, although Departments have that responsibility, they cannot be
relied on to discharge it fairly and competently. That is why they rely on consultants. Even when they rely on consultants, as we saw with the electronic human resources contract, the Department of Finance and Personnel said that it would not even release the evaluation of the equality impact assessment on the very policy of outsourcing until it had already let the contract. That is the proof that the Departments and their consultants cannot be relied on.
Sammy Wilson: I have another difficulty with the hon. Gentleman. I understood that all this equality-proofing stuff came from the Belfast agreement, of which he and the SDLP were partly the authors. If he did not trust Departments to do the job, why on earth was it ever written into the arrangements under the Belfast agreement? [ Interruption. ] I have been fairly generous with the hon. Gentleman, but he was a Minister of a Department. Is he telling meI will let him intervene if he wants to give me an answerthat when his officials carried out equality impact assessments, he was so uncertain of how efficiently they would do it that he would have preferred the NIHRC to come in to double-check their work? Was that the experience of all the other Ministers in his party who were in charge of Departments, which were supposed to undertake the equality-proofing of policies?
Mark Durkan: The hon. Gentleman will recall that the equality screening exercises that the Departments undertook all had to be approved in advance. Their schemes had to be approved by the Equality Commission, and rightly so. There were huge variants in how Departments were prepared to do that and they needed to rely on the advice of a credible third interestnamely, the Equality Commission. As a Minister, I was glad at least to be informed of the advice from the NIHRC, because I was dealing with the Office of Law Reform and some of the law reform measures that we brought forward in the Assembly meant that there was a need for advice from both the NIHRC and the Equality Commission, so that we could get the balance of the law reform right.
Sammy Wilson: I know that the quality of civil servants in Northern Ireland has recently been questioned by a Public Accounts Committee report in the House, but to hear a former Minister in the Northern Ireland Assembly [ Interruption. ] Yes, a former Deputy First Minister. When the hon. Gentleman says that, when it came to equality-proofing proposals, one had to have Department officials, outside consultants, the Equality Commission and the NIHRC, he makes the case for me. The proposals are in danger of adding yet further to the burden of over-governing in Northern Ireland. I know that, when we debated the legislation to set up the Assembly, he complained about the possibility of gridlock because of the vetoes that parties had. If he honestly believes that when a Department decides to introduce a new policy or legislation, officials, consultants, the Equality Commission and the Northern Ireland Human Rights Commission need to look at it, he needs to ask whether he and his party are the ones trying to encourage gridlock in Northern Ireland.
I do not believe that the proposals on the NIHRC are in any way justified. They are not justified on the basis of the historical record of the commission, which has been one of people infighting and achieving very little. They are not required, on the grounds that there are already bodies that have many of the additional powers that are being granted to the commission. Giving regulatory powers to bodies such as the commission will lead to what many people will see asI will describe it kindlyan over-zealous reaction. Some people would say that it is far worse than that and that it is destructive in many ways. For those reasons, we are not happy with those parts of the proposals.
The Bill is not essential. Much of what it is designed to do could be done under the regime that is in place in Northern Ireland. We should have gone down that routea cautious route, in a society that still has the potential for the judicial process to be corrupted by paramilitaries and criminals. We should approach the matter cautiously, rather than in the political manner that the Government are approaching it.
Dr. Alasdair McDonnell (Belfast, South) (SDLP): I want to be brief and to focus on some of the emergency powers and what they mean. In the 1970s, the Diplock courts were an integral part of the injustice system in Northern Ireland. There is ample evidence to prove that people were abused and beaten in Castlereagh holding stationsomething that I and my colleague, the former Member for West Belfast, Joe Hendron, highlighted time and time again. In many cases, those people were convicted solely on confessions extracted under abuse and pressure. Later, there were virtual show trials in which people were convicted on the word of unreliable accomplices, or supergrasses. I am pleased, as are many in our society, that these abuses are no longer with us, but that does not make a one-judge, no-jury court right or desirable. Such a system leaves far too much hanging on the opinion of one personone judge alonerather than that of the 12 members of the jury who should be in place.
We must ask ourselves why we are legislating to install such a system permanently. At least part VII of the Terrorism Act 2000, which used to provide for the Diplock courts, had to be renewed on a regular basis. The Bill, however, will provide for Diplock courts for good.
Mr. Nigel Dodds (Belfast, North) (DUP): The hon. Gentleman mentions the police interrogation techniques in Castlereagh. Many cases were thrown out of the Diplock courts because the judge ruled that confessions were unreliable. The hon. Gentleman also talked about the supergrass trials. Neither of those things are the responsibility of the Diplock courts or the judges. Those are different matters. Does he accept that he cannot use those arguments against the Diplock court system?
No, I do not. This was just another spoke in the wheel of the flawed system of justice. The problem added to injustice. False confessions were
extracted and fed into the court system. Yes, some cases were thrown out, but others were not.
The Diplock system was once an emergency provision, but the Bill will make it a permanent scar on our justice system, without even the basic safeguard that exists in the Irish Republic, where three judges sit in the special criminal court. The Social Democratic and Labour party believes and hopes that the provisions in the Bill that will protect the identity of jurors will mean that Diplock courts will be used much less frequently. However, it is not enough that we use an unfair system less often. I do not think that we should use one-judge, no-jury courts at all, if they can be avoided in any way. I believe that the time has come when they can be avoided.
We should be worried when we look at the test that will be applied by the Director of Public Prosecutions when determining whether to use a Diplock court, because it is strikingly broad. Clause 1 provides that there can be a trial on indictment without a jury if the DPP decides that there is
a risk that the administration of justice might be impaired ... with a jury,
The conditions are wide open. If, for example, a person was merely a friend or relative of someone who belonged to, or had belonged to, a proscribed organisation, it would be enough to satisfy one of the conditions. That condition could apply to a vast number of people in Northern Ireland. Indeed, it could very well catch several hon. Members.
Worse still, clause 7 provides that no court may question any decision taken by the DPP in relation to the issue of a certificate. The clause even secures a derogation from the Human Rights Act 1998 because of the sweeping nature of that power.
Clauses 20 to 41 provide the Army and others with emergency powers. The provisions are almost identical to sections 81 to 95 of the Terrorism Act 2000. Clauses 1 to 7 are also closely modelled on provisions of that Act. All those sections of the 2000 Act are particular to Northern Ireland, but at the time of the joint declaration of 2003, the Government promised the repeal of counter-terrorist legislation that was particular to Northern Ireland. We thus have a major contradiction. Parliament even legislated to repeal aspects of the 2000 Act through the Terrorism Act 2006. However, it seems that the Government take away one law and slap back another. In the Bill, back from the dead, are key provisions of the Terrorism Act 2000 that are particular to Northern Ireland. Of course, we recognise that some of the provisions of the Terrorism Act 2000 that are particular to Northern Ireland are not reproduced in the legislation, and I want to put that on the record, but the most important elements, such as the provisions on Diplock courts and emergency powers for the Army, are reproducedand this time, they are put in permanently, and will not require renewal. As my hon. Friend the Member for Foyle (Mark Durkan) stated, that is normalising the abnormal.
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