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I was disappointed that the Secretary of State, when marking the passing of the Diplock courts, which he facilitated for reasons of political expediency, did not take the opportunity to pay tribute to the courage and bravery of the judiciary in Northern Ireland. Through 30 years of bloody mayhem, the members of the judiciary paid with their lives. Their families also had to experience threats and intimidation. Whether they sat as one judge in a Diplock court or otherwise, the judiciary in Northern Ireland served with impartiality and fearless independence throughout all those years.
It would have been nice if the Secretary of State had paid tribute to its members.
I warmly commend the right hon. Member for North Antrim (Rev. Ian Paisley) and, indeed, the hon. Member for South Antrim (Dr. McCrea)—he said this at the beginning of his long remarks—for paying tribute to the judiciary in Northern Ireland. I appreciate that. I was sorry that when commenting on the idea of having three judges, the hon. Member for Aylesbury (Mr. Lidington) made the flippant, disrespectful and unnecessary remark that, given the context of Northern Ireland, it would have to be one judge from one community, one judge from the other community, and then another judge to be impartial. That has never been an issue in Northern Ireland. All judges, of whatever religion, have served all the community fearlessly and independently.
Mr. Lidington: If the hon. Lady looks at Hansard tomorrow, she will see that I said nothing that was intended to impugn the integrity of any judges in Northern Ireland, who have served the community impartially, as she described. One of my fears about moving to a three-judge system—I have expressed this view before—is that there might be a perception in a divided society, however unfairly, that such a division among the judiciary was the case.
Lady Hermon: As I named the hon. Gentleman, it was right that he should have the opportunity to correct the record, because that was not the impression that he left us with. I welcome that.
I want to make it clear at the outset that I favour retaining Diplock courts for the foreseeable future. As I have told the Minister, I bitterly regret that the Government have conceded, for reasons of political expediency, to end Diplock courts by July 2007.
As the Secretary of State failed to do so, let me refer to the Northern Ireland Office’s own consultation paper on the replacement arrangements for the Diplock court system, published in August 2006. The Secretary of State told us today that things had improved greatly, and mercifully they have. But in its paper the Northern Ireland Office says that even now, in 2006, at least 60 Diplock trials take place each year: one a week. These are not Mickey Mouse cases, but very serious cases involving intimidation and threats.
A number of Members, including the hon. Member for South Staffordshire (Sir Patrick Cormack), Chairman of the Northern Ireland Affairs Committee, referred to the evidence given to the Committee during our inquiry into organised crime. Witnesses made clear repeatedly, in private when they chose to give evidence in private—I do not criticise them for doing that, because in view of the circumstances in which they lived they were perfectly entitled to do so—their feelings about the witness protection scheme. It would require them to uproot themselves from their families and their churches, to uproot their children from their schools, and to live in England, Wales or Scotland. That is not something that many families wish to do, even when intimidated. Apart from the expense, it is too big and traumatic an upheaval.
Given that we still have 60 Diplock court trials per year, it is worrying that the Government have moved so quickly—far too quickly—to end them. The Bill, of
course, puts something in their place. I did not know whether to laugh or cry when I read it, because it is a most curious piece of legislation. On the one hand, the Secretary of State has taken an awful lot of time to persuade the Ulster Unionists—my colleagues back home, but sadly not in the Chamber—
David Simpson (Upper Bann) (DUP): We are still your colleagues.
Lady Hermon: I invite the hon. Gentleman to intervene, and prove that he is a colleague of the Ulster Unionist party.
David Simpson: I am very glad that the hon. Lady has allowed me to intervene, although I did not indicate that I wished to do so. I can assure her that we support the Ulster Unionist party whenever its policies are in line with ours.
Lady Hermon: I am very grateful. On too many occasions in the Chamber I have been heckled with sedentary interventions, and I am delighted that a member of the Democratic Unionist party has risen to make a proper intervention.
As I was saying, I did not know whether to laugh or cry when I read the Bill. The position is very curious. On the one hand, the Government are endeavouring to persuade the Democratic Unionist party and the Ulster Unionist party that things will be so good by 2008 that policing and justice can be devolved. That is the timescale set out in the St Andrews agreement. The hon. Member for Belfast, North (Mr. Dodds)—he is not present, but I am sure that someone will bring this to his attention—has said that he does not expect policing and justice to be devolved in his lifetime. Nevertheless, the Government, and the Secretary of State this afternoon, have repeated the deadline, so the Secretary of State must be confident that the Unionist community will itself be confident that republican criminality is over and republican intimidation is over—that there will be no more such activity on the part of mainstream republicans. In other words, we will have no more Northern banks, no more murders like the grisly, awful murder of Robert McCartney. The Government must be assured of that in order to aim for a deadline of 2008 for the devolution of policing and justice. On the other hand, the Government are at the same time looking in the opposite direction. They have got rid of Diplock courts, but they have replaced them with a great and significant extension of non-jury trials.
Let us look at what we are being asked to agree to. I should preface my remarks by saying that no criticism whatsoever is intended of the present incumbent of the post of Director of Pubic Prosecutions. If I want to have a row with Alastair Frasier, I shall do so in private. What I have to say is not at all a reflection on the current DPP; instead I am taking a long-term view of what we are being asked to approve.
As Members have mentioned, clause 1 states that:
“The Director of Public Prosecutions...may issue a certificate...if—
(a) he suspects that any of the following conditions is met, and
(b) he is satisfied that...there is a risk”
to the administration of justice. So the DPP does not have to have reasonable grounds or even a reasonable suspicion; he just has to suspect that one of four conditions is met, and that that will lead to an erosion of the administration of justice.
The measure makes no mention of national security. I know that the Minister has valiantly tried to defend the Secretary of State, who I think let slip the term “national security”, but that is not mentioned. The first condition that is included is that a person is, or has been,
“a member of a proscribed organisation”,
or that they are “an associate” of a member of such an organisation. The second condition—we must remember that just one of these conditions needs to be met and that they do not all have to be met at the same time—is that
“the offence or any of the offences was committed on behalf of a proscribed organisation”.
“that an attempt has been made to prejudice the investigation or prosecution of the offence”
by someone in a proscribed organisation; I am curious about that condition. The fourth condition is that
“the offence or any of the offences was committed...as a result of, in connection with or in response to religious or political hostility of one person or group of persons”.
I wish the Minister to address condition 3. I am particularly interested in the fact that under clause 8 the conditions will apply to events that occur before the Bill reaches the statute book. Does condition 3—where someone connected with a proscribed organisation has attempted to prejudice an investigation—open the way, rightly in my view, for the prosecution by a non-jury trial of those responsible for the murder of Robert McCartney? In that case there was a deliberate and wilful attempt to clear all forensic evidence from the scene of the crime. As the Bill is retrospective—I refer Members to clause 8(3)—and will apply to offences committed before the Bill is enacted, I would like the Minister to confirm for the record that it gives the DPP the complete discretion to put a case before a non-jury trial if he suspects that there has been an attempt to prejudice the investigation or the prosecution of an offence. I would be fascinated to have that confirmed. That is certainly my interpretation of the proposed legislation, and I will raise no criticism if it is correct.
However, let me move on to the Diplock courts. In an earlier intervention on the subject I confused the hon. Member for East Antrim (Sammy Wilson), although I had better put it on the record that it is very difficult to confuse him. The hon. Member for Foyle (Mark Durkan), and his party colleagues who are not present, made the most dreadful criticism of the Diplock courts. That is appalling, and I wish that they would check the facts.
The facts are that, unlike with other courts in Northern Ireland, the judge in the Diplock courts, who sat alone, had to give stated reasons for his conclusion if it led to a conviction, and he often gave stated reasons if he decided to acquit. Of course, technically, “he” is right, because there are no female High Court judges—or, indeed, a female Lord Chief Justice; that argument I will have with the Minister on another occasion.
The judge in the Diplock courts had to give stated reasons for the conclusions that he came to in every case, and there were unfettered rights of appeal, in that a point of law and a point of fact could be appealed. Therefore, Diplock courts were hugely successful, and if the hon. Member for Foyle and his colleagues care to look at the number of appeals that went to the criminal appeals commission, they will see that they were very few, because the judge was meticulously fair in getting matters correct.
Rev. Ian Paisley: Will the hon. Lady give way?
Rev. Ian Paisley: I am sure that the hon. Lady will agree with me that the statement of the hon. Member for Belfast, South (Dr. McDonnell) that the Diplock courts were responsible for thuggery in police stations was outrageous.
Lady Hermon: I agree entirely with the right hon. Gentleman—it was outrageous, unfair and based on no evidence whatsoever. Perhaps on a later occasion, the hon. Member for Belfast, South (Dr. McDonnell) will take the opportunity to correct that false impression.
As I was saying, I think that I confused—unintentionally—the hon. Member for East Antrim regarding the review and the current checks on the Diplock courts. The Government are asking us to agree to a huge extension of the use of non-jury trials. The DPP has merely to suspect that one of the four conditions that I mentioned earlier is satisfied, and that there is a risk of an infringement of the administration of justice. The only circumstances in which a court of any description—be it the House of Lords, which is the highest court in the land, or, I suspect, the European Court of Justice—may get involved are outlined in clause 7. This is extraordinary. It states:
“No court may entertain proceedings for questioning (whether by way of judicial review or otherwise) any decision of the Director of Public Prosecutions for Northern Ireland in relation to the issue of a certificate under section 1.”
The phrase in brackets is very interesting, because I suspect that the intention is to oust the jurisdiction of the European Court of Justice in Strasbourg, and certainly of the House of Lords here in London, which is absolutely unacceptable. The only two grounds that are permitted are mentioned in clause 7(2):
“Subsection (1) prevents a court, in particular, from entertaining proceedings to determine whether a decision or purported decision of the Director (without dishonesty or bad faith)”—
those are the only two grounds—
“was a nullity by reason of lack of jurisdiction or error of law.”
Sammy Wilson: Perhaps I have misunderstood and I am happy to be corrected, but my understanding is that clause 7 refers simply to people’s ability to appeal against their case being referred to a non-jury court. Given that, as the hon. Lady has rightly said, the standard of justice in such a court has been high, surely there is no disadvantage, whether people go to such a court or to a jury court. What, therefore, is the big issue in this regard?
Lady Hermon: I thank the hon. Gentleman for that intervention. He is absolutely right, in that I have complete confidence in the Diplock system and always have had. What we are talking about here is giving the DPP—I intend no criticism of the present incumbent—the huge discretion to decide whether or not a case goes, on his suspicion, to a non-jury trial. It would be much better if such cases were truly reviewable. In other words, if perchance the DPP went to a party at the Irish embassy and partook of too much intoxicating liquor and made a decision, it could not be challenged under the Bill that we are being asked to approve. It could be challenged only on grounds of dishonesty or bad faith. If the DPP were to be intoxicated—heaven forbid that should ever occur—or make an error of law or fact, the case in question could not be reviewed.
Mark Durkan: Has the hon. Lady been able to find where in the Bill provision is made for the DPP to specify in the certificate which of the four conditions have caused him to issue it? I certainly have not been able to find that provision.
In answer to the question from the hon. Member for East Antrim (Sammy Wilson), someone who is the subject of a certificate might want to protest that none of those conditions applies. They will have no right or opportunity to do so.
Lady Hermon: I appreciate that intervention and the hon. Gentleman is right. Unless my eyesight has deteriorated to an extent that I do not recognise, the Bill contains no provision that obliges the DPP to detail on the certificate the particular cause.
We should bear in mind in all our consideration the fundamental tenet of British justice that every defendant is innocent until proven guilty. I am deeply concerned, therefore, that the explanatory notes accompanying the Bill, and the Secretary of State, in his introductory remarks—I am sorry that he is no longer in his place, but I am sure that he will return for the winding-up speeches—were careful to curtail the extent of the judgment in the Shuker case. The decision in that case, heard in Northern Ireland before the Lord Chief Justice and Lord Justice Campbell in 2004, is quoted in support of clause 7. I am disappointed that the explanatory notes and the Secretary of State did not go further and convey the full import of what was said in that judgment. It is correct that the Lord Chief Justice and Lord Justice Campbell said, in relation to non-jury trials and, specifically, to decisions by the Attorney-General:
“We have concluded that it is not a process which is suitable for the full panoply of judicial review superintendence”.
That conclusion was cited in the explanatory notes and by the Secretary of State today. However, the actual judgment, in paragraph 27, states:
“It must be made clear that while we have concluded that judicial review is not available to challenge a decision of the Attorney in the present cases, we do not consider that this will be excluded in every circumstance.”
“the ground of bad faith.”
Critically, the court also held:
“Depending on the circumstances of other cases that may arise, further grounds of judicial review challenge may be deemed appropriate but we do not consider that it would be helpful, or even possible, to predict what those grounds might be.”
The Shuker judgment made it clear that a decision by the Attorney-General, as it was then, or the DPP as now, could be challenged. The judgment does not limit that challenge to grounds of dishonesty and bad faith.
Sammy Wilson: Would not a real danger arise if the Government were to go down the route that the hon. Lady suggests? For example, if the DPP decided that an offence had been committed on behalf of a proscribed organisation and was thus suitable for judicial review, the defence team could ask how he came by that knowledge. That could result in an informant being revealed, which means that matters of national security would be involved. The Superintendents Association of Northern Ireland made that exact point—that an intelligence source could be prejudiced if there were the option for judicial review.
Lady Hermon: I am enormously grateful for that intervention. I do not always agree with the Superintendents Association, but that interpretation is worthy of consideration. However, the hon. Member for East Belfast—I am sorry, I mean the hon. member for East Antrim; I keep trying to move his constituency.
Sammy Wilson: The hon. Lady is bringing me closer to her!
Lady Hermon: Please, no—definitely not! I will never say East Belfast again! I am quite content that the hon. Gentleman is stuck in East Antrim. It is not far enough away, as far as I am concerned.
The hon. Member for East Antrim must reflect on why I think that there is an inherent contradiction in the Bill. At the beginning of my remarks, I said that the Secretary of State had spent an enormous amount of energy and time persuading the hon. Gentleman, the right hon. Member for North Antrim and their colleagues that all would be well, and that the Unionist community could have every confidence that policing and justice would be devolved in 2008. With this Bill, however, the Government are clearly anticipating that the circumstances then will be such that there will have to be an extension of non-jury trials.
The point that I want to make to the hon. Member for East Antrim and the Superintendents Association has to do with the Criminal Justice Act 2003. As I said when I intervened on the hon. Member for Aylesbury, part 7 of that Act extends to Northern Ireland and allows the prosecution to apply to a Crown Court judge for a trial to be held without a jury if there is a real and present danger of jury tampering.
The 2003 Act defined jury tampering in section 44(6)(c), which states that it would be a danger in cases
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