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I had the pleasure of listening to the hon. Member for Foyle (Mark Durkan) for three quarters of an hour in a meeting yesterday. He spoke for a similar length of
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time today, but he is always well worth listening to. He made an interesting comment about how although, in one sense, this is the end of the Diplock courts, the Bill puts the system on the books without an end to it. He also spoke interestingly about national security considerations. With respect to the Minister, I do not think that he gave the hon. Member for Foyle an adequate response, although I am sure that he will be able to clarify his position further. While it is important that we support the security services, which have a tremendously difficult job to do, I sometimes worry that when we leave things open and vague, almost anything can be excused as a matter of national security. We saw that happening when the Government attempted to introduce 90-day detention. I would also like a little more clarification on the matter—if not today, perhaps in Committee.

My hon. Friend the Member for South Staffordshire (Sir Patrick Cormack), the Chairman of the Northern Ireland Affairs Committee, made several good points. He asked why the Bill could not have waited until next year so that we could have found out what had happened in Northern Ireland. That view was echoed by several hon. Members, especially those from the Democratic Unionist party. I give my hon. Friend a promise that we will test that matter again in Committee.

Owing to the slightly early start of the wind-ups, the hon. Member for Blaydon (Mr. Anderson) has not yet managed to return to the Chamber. Although he mentioned the fact that we have moved on considerably, he rightly referred to the difficulties that still exist in Northern Ireland.

The right hon. Member for North Antrim (Rev. Ian Paisley) paid a warm tribute to the Diplock judges and the work that they have carried out in difficult circumstances. I think that the whole House would endorse what he said in that respect. He said that he regretted the need to continue to hold some trials without juries, but he stressed that there is a need to do so at the moment. In both an intervention and his speech, he questioned the role of the Northern Ireland Human Rights Commission and the human rights commissioner. He cited a detailed objection to the particular person in that position, but his more general point was to ask whether there is actually a need for the commission and what work it carries out. Again, I will return to that very matter, and the extension of the powers of the commissioner, in Committee.

The hon. Member for South Down (Mr. McGrady) was a little bit more supportive of the human rights commissioner, whereas the hon. Member for East Antrim (Sammy Wilson) spoke of the need, as he saw it, for the Army powers and Diplock courts, but not for the NIHRC. The hon. Member for Belfast, South (Dr. McDonnell) spoke in detail about his concerns on trials conducted without a jury. The hon. Member for South Antrim (Dr. McCrea) spoke in support of the search powers, and he drew attention to concerns about the situation in south Armagh, which I visited not that long ago. I think that he is right that people are concerned about security in that area, and we have to be conscious of that.

The hon. Member for North Down (Lady Hermon) gave quite a long speech. I look forward to sitting in Committee with her, but I hope that her speeches will
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be slightly shorter than the one that she gave today, although she raised some good points. She expressed great concern about giving so much discretion to the DPP. The hon. Member for Upper Bann (David Simpson) raised a number of concerns, particularly about the circumstances in which someone could be arrested in Northern Ireland.

As my hon. Friend the Member for Aylesbury (Mr. Lidington) said at the outset of the debate, we are, in principle, in broad support of the Bill. We have a number of concerns, which I shall raise in Committee, and the main one is about the DPP’s role as regards trials. It is an unsatisfactory situation, but for reasons of which we are all aware, there is trial without jury in Northern Ireland. I question whether it is right for the person responsible for bringing prosecutions to decide the mode of trial. I am not convinced that that is the right way forward but, again, we can consider that in Committee. It causes me concern that we should still be in the same situation. I would be the first to accept that things have moved on, but in talking about trial without jury, we must acknowledge that there is still a serious problem in Northern Ireland. One of the problems is one of the main political parties’ lack of support for not only the police but the whole justice system. The fact that we are considering the Bill, and the fact that there continues to be trial without jury, underlines the problem of that party not signing up fully to law and order.

I was in the Province yesterday and the day before that, and I had a number of discussions with people, including members of Sinn Fein. They made the point that they did not feel that they could get their people fully to support the police unless they were given a date for the devolution of policing and justice. All hon. Members know that, under current legislation, that cannot happen, because the Assembly would have to endorse that, and until Sinn Fein gives support to the police, a number of political parties, particularly the DUP, will not be happy to sit down in government with Sinn Fein. That is a vicious circle—one party will not sit down with Sinn Fein until it endorses policing, but Sinn Fein will not endorse policing until it has a date on which policing is to be devolved. However, that cannot be until the Assembly sits. As I said to the Minister yesterday, we need the Government to break that circle. They should suggest to Sinn Fein that it ought to support the police and the criminal justice system without any hesitation, regardless of any other circumstances.

Mark Durkan: On the subject of Sinn Fein saying that it cannot give support to the police if it does not have a date for the devolution of justice and policing, did the hon. Gentleman notice that a Sinn Fein Teachta Dala recently joined a policing committee in Dublin, but would not agree that people should give information to gardai, for instance about the Omagh bombing? I also point out that, in the south of Ireland, there was of course a transfer of justice and policing powers in 1922.

Mr. Robertson: The hon. Gentleman makes a very good point. Support for the police must not be conditional. Anyone who lives in the United Kingdom ought to support the police and the criminal justice
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system for their own good, regardless of whether or not they are in government. The Government have a difficult task, as they have to break that vicious circle. The clock is ticking, because they have set yet another deadline. Soon, the House will rise for the Christmas recess—and I wish every hon. Member a happy Christmas—but the clock will continue to tick in that period as we approach the deadline. The constitutional parties in Northern Ireland quite reasonably want not just words from members of Sinn Fein but action, such as the handing over of evidence to the police when crimes are committed. Sinn Fein should support the police and the criminal justice system in every way.

I am concerned about the continuation of trials without jury, which are against the principle of law, but we have to hold them because of the unusual circumstances in Northern Ireland that still apply. There is violent paramilitary activity, and continued criminal activity, as we heard. The Northern Ireland Affairs Committee produced a report on the issue, which we debated in great detail only last week. We identified several areas where organised criminal activity has increased significantly. While that activity continues, the full return to normality that we all wish to see in Northern Ireland cannot take place. I give a cautious welcome to the Bill, and we will not seek to divide the House. I shall conclude my brief speech, but I warn the Minister that I will make longer contributions in Committee to see whether we can improve the Bill. There are concerns about the measure, but we accept that, basically, it takes us in the right direction.

6.27 pm

The Parliamentary Under-Secretary of State for Northern Ireland (Paul Goggins): This has been a very good debate which, for the most part, reflects more optimistic times in Northern Ireland. Hopefully, terrorist atrocities will be regarded more and more as a thing of the past. I welcome the fact that my hon. Friend the Member for Blaydon (Mr. Anderson) mentioned the Select Committee visit to Northern Ireland last week, and depicted the scene outside Belfast City hall, where he attended a Christmas fair. He compared it with past scenes, and hon. Members whose constituencies are not in Northern Ireland will recognise the difference that he highlighted. Today, the fact that Gerry Adams and some of his colleagues met the Chief Constable is very welcome. Some would say, “Not before time,” but others would accept that, until recently, such a meeting would have been almost unthinkable.

We must move on, and make sure that, given the increasing confidence, all political parties in Northern Ireland give their unequivocal support to the police and the rule of law. That is the very basis of democracy, and nothing less will do. I can tell the hon. Member for Tewkesbury (Mr. Robertson) that there is no equivocation whatsoever from the Government on that—it is a very clear message. I began by speaking about optimism, but it is the responsibility of Government to deal with the reality of the threats and difficulties that remain, and to make sure, as far as possible, that the people of Northern Ireland are safe, secure and properly protected. I join the hon. Member for South Antrim (Dr. McCrea), who commented not
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just on terrorism and the threat from paramilitary forces but on the everyday criminality that has wrecked the lives of elderly people in his constituency and other parts of Northern Ireland. That criminal behaviour is beyond contempt, and I join him in condemning it. I apologise for being mirthful when he accused some hon. Members of over-egging their argument. I thought that he was referring to his hon. Friend the Member for East Antrim (Sammy Wilson). From the look on his face, I think the hon. Member for East Antrim thought that he was talking about him.

The hon. Members for South Antrim and for East Antrim and the right hon. Member for North Antrim (Rev. Ian Paisley) claimed that we were moving too fast with the Bill. My hon. Friend the Member for Foyle (Mark Durkan) and his colleagues said that we were going too slowly and that we ought to move more quickly in certain respects. The Government must strike the right balance between these different pressures so that we move forward in a way that offers proper protection to the people of Northern Ireland.

My right hon. Friend the Secretary of State and the hon. Member for Aylesbury (Mr. Lidington) made it clear that although the Provisional IRA no longer pose a terrorist threat in Northern Ireland, others do. Dissident republicans still pose a threat. That is clear from the IMC report that others have mentioned throughout the afternoon. Loyalist paramilitary forces also still pose a threat, which we must take seriously. However, it would be irresponsible if the Government had nothing more to offer than a renewal of part VII powers for another 12 months, in the expectation that the world would then be wonderful and we need provide nothing else. In the Bill we seek to ensure a proportionate and effective response to the existing danger, which may be there for some time to come.

Let me deal with some of the issues that were raised. I join the hon. Member for North Down (Lady Hermon) and the right hon. Member for North Antrim in their comments about the judges and others who have run the Diplock system over many years. Yes, they have faced threats. Yes, they have faced many risks, and it is right that we place on record the appreciation of all of us for what they have done. The hon. Lady and the right hon. Gentleman are right—the quality of justice delivered by the Diplock courts by and large has been of a very high order. That point needs to be made.

In the Bill we seek to replace the Diplock court system and the present presumption for judge-alone trials for certain types of offence with a presumption for trial by jury, albeit, as hon. Members noted in the debate, with the provision for judge-alone trials following a statutory test that reflects both the circumstances of the offence and the risk to justice. It is worth spending a little time considering that two-part test.

In the first part, one or more of four conditions must be met: the defendant is connected with a proscribed organisation, the offence is committed on behalf of a proscribed organisation, a proscribed organisation has attempted to prejudice the investigation or the prosecution of a particular offence, or the case involves religious or political hostility. One or more of those conditions must be met, and the Director of Public
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Prosecutions must be satisfied that there is a risk that the administration of justice might be impaired. Both parts of that test must be satisfied before the DPP can make a decision and issue a certificate.

The hon. Member for North Down asked me about a particular case and whether the provisions of the Bill would allow a certificate to be made in that case. She will appreciate, of course, that I cannot make a decision on behalf of the Director of Public Prosecutions. It would be for him to decide. But if the Robert McCartney case was prosecuted—came into the court system—it would be open to the DPP to make a certificate if he judged that those conditions applied in that case.

The hon. Member for Upper Bann (David Simpson) posed a number of questions and noticed that I was writing—he said “writing anxiously”, but “writing furiously” would probably be a more accurate description. He asked for no spin and I shall try to deal with his questions without giving him any spin. On the example of the placard which relayed a religious sentiment, I do not see how that would be covered by the test that I outlined. I do not see how justice would be impaired by the prosecution of that individual, so if he asks for my judgment, I do not think that in that case the test would be used.

The hon. Gentleman took me back to a previous piece of legislation with which I was involved, when he raised the issue of the householder being in a position to defend himself. Of course, any householder can make a proportionate response to the risk as he perceives it at the time. If somebody is posing a serious and significant risk in their home, they can take proportionate action in the face of that. I do not see how the criteria set out in the statutory test has any bearing on that.

The hon. Gentleman then asked a series of about eight questions which even my furious handwriting did not keep up with, so I will look carefully at them. I would just say, though, that the judiciary is of course impartial and will make decisions based on the facts, but that is to do with the process of the trial itself rather than the decision about whether a licence is issued.

The hon. Gentleman mentioned a specific individual in relation to the rule of law. Let me say this to him and to the whole House. Any person in Northern Ireland who is involved in organised crime or in paramilitary activity should know that every law enforcement agency is after them and on their case, whether it be the Assets Recovery Agency, the Police Service of Northern Ireland or Her Majesty’s Revenue and Customs. Nobody can feel that they can escape the rule of law. I cannot comment on an individual case, but I can give the hon. Gentleman that guarantee. From my role in the organised crime taskforce, I know that there is a tremendous appetite in the law enforcement agencies of Northern Ireland to get on with delivering that.

On the test, we must strike the right balance, as my right hon. Friend the Member for Torfaen (Mr. Murphy) emphasised. We must balance the need for justice against the need to protect the human rights of individual citizens. If we set the test too high, the interests of justice will not be served; if we set it too low, many people may be caught whom we do not wish
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to be caught. As a result, we could see a deteriorating position instead of an improving one. It is essential to set the test at the right level.

Let me say to the hon. Member for North Down that we are not approaching this in a naive way. We do not expect that all criminality and paramilitary activity will suddenly come to an end one day when the Bill is enacted, but we must switch gear at some point to change from a presumption for a jury-less trial to a presumption for a trial by jury. We will need to see this as a transitional period. Our aspiration is that in time the number of cases tried by judge alone will continue to decrease.

The hon. Lady rightly pointed out that the Bill needs to fit with other pieces of legislation. We discussed the Criminal Justice Act 2003, which fits neatly with the Bill. Let me cite the example of an individual whom the DPP considers for a certificate based on the test and then decides not to issue one. The case goes to a trial by jury, but then, in the course of that trial, there is evidence of a real and present danger of jury tampering and intimidation. From January—albeit that she may feel that that is a little late—it will be possible to change the mode of trial to judge alone. Taken together, the two provisions will be very helpful

The hon. Member for Montgomeryshire (Lembit Öpik) offered us the prospect of many interesting hours of deliberation in Committee, as did hon. Members on both sides of the House. He invited us to discuss who our friends are and how we define them, and to consider clause 7, which has excited many hon. Members. All those matters will be put under scrutiny. We will consider them carefully and advance detailed arguments as to why we think that this is the right approach. At this stage, let me say that the DPP, as a very experienced prosecutor who is used to making decisions about mode of trial, is able to consider intelligence and other information that may be appropriate in judging whether justice is likely to be undermined in a particular case.

The hon. Member for South Staffordshire (Sir Patrick Cormack) argued strongly that the Attorney-General should be the person who made that decision. We considered that carefully, but ultimately felt that a Northern Ireland-based person would ensure that justice was brought closer to home, which we all want to see in due course. That was our rationale for making that choice.

Various discussions have taken place about whether the process should be judicial, and whether it is right for the DPP to have such a role. The hon. Member for Montgomeryshire asked whether having three judges was a possibility. We fear that that would slow down the process of justice, which, as Members have commented, is already too slow. The hon. Member for Aylesbury asked whether the Special Immigration Appeals Commission could be used in relation to such cases. The problem with SIAC is the use of special advocates. Once a special advocate has seen the intelligence, he can no longer act for the individual whom he has been representing. Indeed, the more people who see the intelligence and information, the greater the risk of some of that spilling out. We have considered those matters carefully in coming to our conclusion. We will no doubt have a further opportunity to debate such issues in Committee.

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In addition to reiterating the tribute to those who have run the Diplock system over many years, we should remember two things. First, we should point to the reduction in the number of cases dealt with under the Diplock system since the 1980s: from 354 cases in 1987 to 49 in 2005. We would all welcome that, as it represents fewer trials by judge alone, and it must reflect improving circumstances: the hon. Member for North Down is right to say that over recent years the average number of cases per year has been 60, but in the most recent year the number was 49. Secondly, we regard that as a positive step. It is not an overnight complete change with no more criminality and no more cases to which the system might apply. However, it changes the presumption away from judge alone to trial by jury, and that is welcome.

It was pleasing to see the general welcome in the Chamber for the measures on jury reform. Those will be effective in reducing intimidation and promoting confidence, both in the criminal justice system more widely and in juries and individual jurors. The provisions will grant greater anonymity to jurors and restrict access to personal details, which is welcome. In addition, stronger checks will be introduced with regard to criminal records and, in serious cases, other information that might be pertinent. Having that greater confidence will enable us to remove peremptory challenge, which was removed in England and Wales some time ago. That has been recommended by the Northern Ireland Human Rights Commission, and we concur that the time is right, albeit with other provisions in place, to give greater confidence to the jury.

Quite a lot of lively discussion was engendered on the Human Rights Commission. I pay tribute again to my right hon. Friend the Member for Torfaen, as we are finally delivering on the commitment that he made as Secretary of State for Northern Ireland, providing access to places of detention and a power to compel evidence. Of course, that does not give a new mandate to the Human Rights Commission, but it does provide greater powers that allow it to exercise its function more effectively.

Considerable consultation has taken place; we have not just produced the proposal out of thin air. Hon. Members and others have been able to contribute to that consultation, and we are moving the provisions into line with those in Great Britain, which now has the Commission for Equality and Human Rights. Many of the provisions in the Bill are similar to those in the Equality Act 2006, which provided for that new commission. No replacement or duplication will be made of other bodies or organisations. All oversight bodies have an important responsibility, when they set out on an inquiry or investigation, to consider the remit of other bodies and to ensure that there is no unnecessary duplication of role. If a serious and pressing investigation is to be carried out, other agencies will take precedence. Cases of serious allegations of brutality or even worse are matters for the police. It is not for the commission to get in ahead of them in such circumstances. The police would take precedence. If there is, regrettably, a death in prison custody, it would be for the prisons ombudsman to deal with that first, in line with his obligations.

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