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Issue of certificate

The Parliamentary Under-Secretary of State for Northern Ireland (Paul Goggins): I beg to move amendment No. 32, page 1, line 12, leave out from ‘that’ to end of line 16 and insert

(a) is a member of a proscribed organisation (see subsection (11)), or

(b) has at any time been a member of an organisation that was, at that time, a proscribed organisation.’.

Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss Government amendments Nos. 33 to 35.

Paul Goggins: This group of amendments may turn out to generate a rather less stimulating debate than the previous one, and—who knows?—perhaps a shorter one, dealing as it does with a number of technical but necessary amendments.

Amendments Nos. 32, 33 and 34 deal with drafting and amend the definition of “proscribed organisation” in the Bill. Clause 1(9) currently defines a proscribed organisation in relation to membership only. That is fine for condition 1, which covers membership, but not for conditions 2 and 3, which refer to offences committed or actions carried out on behalf of a proscribed organisation. Having considered this issue very carefully, we feel that there is a small risk—I emphasise that it is
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small—that a defendant might use that slight ambiguity to challenge a certificate that has been issued, simply on the ground that they are not a member of a proscribed organisation. These amendments therefore clarify the situation regarding a potential very small loophole in the legislation.

6.15 pm

As I turn to amendment No. 35, the arrival of the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Lewisham, East (Bridget Prentice) is timely, given that she dealt with these issues in Committee. It is, and has always been, our intention that, following a juror check, the police or officers of the court would be in a position to share relevant information with other people, particularly prosecution counsel—always, of course, in accordance with jury check guidelines. As drafted, subsection (7) of proposed new article 26B would prevent officers of the court or police officers from sharing such information with key people, including prosecution counsel, so we simply want to replace the word “by” with the word “to”, which will make the sharing of such information possible. I am sure that Members will see that that strengthens the protection of the interests of justice.

Amendment agreed to.

Amendment made: No. 33, page 2, line 15, leave out subsection (9). —[Paul Goggins.]

Lembit Öpik: I beg to move amendment No. 9, page 2, line 29, leave out paragraphs (d) and (e) and insert—

‘(d) there is evidence of a significant relationship between A and B.’.

First, I congratulate the Minister on getting two amendments passed in three minutes. Perhaps his colleague the hon. Member for Delyn (Mr. Hanson) could learn from his persuasive powers and his ability to scotch all dissent; that was very impressive.

Amendment No. 9 returns us to an issue that we raised in Committee. We believe that the term “associate” is too broad and should be tightened. How do we determine whether a person is a “friend” or “relative” of another person? These terms are extremely subjective. Two people could be cousins, but they might not have seen each other since childhood. Should a trial be conducted without a jury in such circumstances? Have the terms “friend” or “relative” been used in other legislation in the context of a matter as serious as permitting non-jury trial?

In response to our amendments in Committee, the Minister said that paragraphs (d) and (e) were intended to fill a gap in the explanation of the term “associate”. That is great, but in order to help the Government, we have clarified the position exactly as the Minister intended, taken on board his concern and proposed the wording in amendment No. 9. Its wording remains subjective—the Director of Public Prosecutions will still have to decide whether a relationship is “significant”—but “significant relationship” is a tighter phrase than “friend”. The DPP will also need to have evidence that such a relationship exists.

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This is one occasion when we hope that the Minister will accept that our amendment is true to the principle that he himself outlined, and we look forward to his response.

Paul Goggins: The hon. Gentleman is of course correct—we did discuss this issue in Committee, and he has come back with another valiant attempt. I have considered very carefully his amendment and the arguments that he has put forward. We have said throughout consideration of the Bill that we need to define “associate” in order to cover cases where an individual might be motivated by their close relationship with another person, and the Bill specifies, for example, the relationship of husband and wife.

The example we discussed in Committee was that of a father and son. Say the father was a prominent member of a proscribed organisation and his son was prosecuted for a certain offence. Evidence could be produced that the father intended to bully the jurors to get the son off. We need to ensure that the legislation covers such examples, and I know that the hon. Gentleman accepts that.

I accepted in Committee that the terms “friend” and “relative” could indicate a close relationship, but they could also reflect a more distant relationship. I contend that we should leave it to the DPP to make a judgment about what is relevant in any given case. To some extent it is a subjective test. We trust the DPP to make the judgment.

The amendment would, at best, simply replicate the provision in the Bill in clause 1(10)(d) and (e). At worst, instead of tightening the definition as the hon. Gentleman intends, it might widen it. I assume that he would not want that.

Mark Durkan: The Minister might recall that when we discussed the issue in Committee we were not sure whether a person might be deemed to be an associate of someone who had been a member of a proscribed organisation in the past if one was, for example, First Minister and the other was Deputy First Minister. Would not the amendment definitely have that effect, because “significant relationship” could include a significant working relationship? It would extend the scope of the provision in exactly the way that the Minister suggests.

Paul Goggins: I was not often able to say as much in Committee, but I am grateful for the support of my hon. Friend the Member for Foyle (Mark Durkan). The amendment could indeed widen the scope of the clause. In a particular case, the fact that someone is somebody else’s cousin may be relevant, but it may not be relevant, and it is up to the DPP to make a judgment.

Sammy Wilson (East Antrim) (DUP) rose—

Paul Goggins: I will happily give way to an assiduous attender of Committee, if not of this afternoon’s debate.

Sammy Wilson: Will the Minister accept that it is not only that a relationship has to be established? The second condition suggests that that relationship must be such that there is a danger of jury tampering or an attempt to interfere with the administration of justice.

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Paul Goggins: I am grateful to the hon. Gentleman for making the point that was to be my final point. He is right that the amendment relates to the first part of the test. The second limb of the test specifies that there has to be a risk that the administration of justice might be impaired. Both elements have to be fulfilled for the DPP to be able to issue a certificate.

The hon. Member for South Antrim (Dr. McCrea) earlier mentioned a part of the debate that was like pulling teeth. I regard my relationship with my dentist as significant, but I would not expect that relationship to be covered by the Bill. We would do best to leave the definition of “friend” and “relative” as set out in the Bill, and I ask the hon. Member for Montgomeryshire (Lembit Öpik) to withdraw his amendment.

Lembit Öpik: Let us take the Minister’s example. Suppose that he was sitting in the dentist’s chair, and the dentist said, “Oh, incidentally, I’m going to be in court tomorrow and I wondered if you could do me a favour.” If the Minister had not yet had his treatment, he would be likely to give the dentist the support that he sought.

An arbitrary list of relationships, such as friend or relative, is missing the point. The only point is whether the relationship is significant in the context of the legislation. The hon. Member for Foyle (Mark Durkan) made an interesting intervention, but he underlined the reason we tabled the amendment. I suggest that the problem is that the Bill misses the point. The DPP still has to decide whether the relationship is significant in the context of the Bill, but as it is drafted he does not have to consider whether the relationship is significant under the rules. If two people are friends or relatives, that is enough to trigger the provision.

Mark Durkan: I shall try to be helpful to the hon. Gentleman, as I was earlier to the Minister. Does he agree that we need to remember that the DPP will make the judgment on the basis of information that no one else will see and will come to conclusions that no one else will know about? None of that information will be declared on the certificate or anywhere else.

Lembit Öpik: The hon. Gentleman and others have made the point that the process could not be less transparent. It is so covered with a cloak of secrecy that it is hard to see how the decision could be contested by those affected by it.

Paul Goggins: I return to the point that I emphasised in my contribution, as did the hon. Member for Foyle. Just establishing that someone is a friend or relative is not sufficient to trigger the certificate. It may be relevant to satisfy part one of the test, but there also has to be a risk of an impairment to the administration of justice. Both conditions have to apply, which makes it a very serious test. A judgment needs to be applied by the DPP in relation to a friend or relative, but a wider judgment must be made about the administration of justice.

Lembit Öpik: I understand the Minister’s efforts to define the process in a different way, but I suggest that accepting the amendment would be the most effective way to achieve that goal. The Minister has turned his
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face against such common sense, however, and not for the first time the pearls of wisdom that are offered, gratis and pro bono, to the Government are rejected. I lament the Minister’s unwillingness to accept an amendment based on the spirit of the words that he used in Committee—but it is not our intention to divide the House. It is the Minister’s loss, not ours, that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 34, page 2, line 30, at end insert—

‘(11) For the purposes of this section an organisation is a proscribed organisation, in relation to any time, if at that time—

(a) it is (or was) proscribed (within the meaning given by section 11(4) of the Terrorism Act 2000 (c. 11)), and

(b) its activities are (or were) connected with the affairs of Northern Ireland.’.— [Paul Goggins.]

Mr. Alan Reid: I beg to move amendment No. 5, page 2, line 30, at end insert—

‘(11) Where a certificate has been issued under subsection (2), the judge conducting the trial may—

(a) accept the certificate, or

(b) reject the certificate.

(12) When considering the issuing of a certificate under subsection (11), the judge shall take into account any written representations he may receive from the defendant.

(13) If the judge conducting the trial—

(a) accepts the certificate, the trial shall be conducted in accordance with the provisions of this Part;

(b) rejects the certificate, the trial shall be conducted with a jury and the provisions of this Part shall not apply.

(14) In cases where a certificate has been rejected in accordance with subsection (11)(b), the judge conducting the trial shall provide, in writing, his reasons for the rejection to the Director of Public Prosecutions for Northern Ireland.

(15) The Director of Public Prosecutions for Northern Ireland may publish the reasons provided under subsection (14).’.

Madam Deputy Speaker: With this it will be convenient to discuss the following:

Amendment No. 15, page 5, line 24, leave out Clause 7.

Government amendments Nos. 29 to 31.

Mr. Reid: Amendment No. 5 would allow the final decision about whether a trial is to proceed in front of a jury or in front of a judge to be taken by the judge, not by the DPP as the Bill provides. In Committee we tabled amendments to ensure that the decision to issue a certificate for a non-jury trial would be taken by a court, not by the DPP. The Government’s response was that the DPP would be privy to information that the police or national security had brought to bear, and that having an open judicial system would risk information being exposed to the other party, so as to allow for cross-examination, and that could put witnesses or informants at risk.

Our preference is for some form of judicial control over the mode of trial. The decision should not be taken by the DPP on his or her own. However, we have taken the Government’s concerns into account and have therefore tabled amendment No. 5 to allow the final decision to be taken by the judge. The procedure would be for the DPP to make the initial certificate of
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application for a trial without a jury. Under the Bill, that has to be lodged with the court before the arraignment.

The defendant would then be notified that such a certificate had been issued by the DPP, and he would have the opportunity to make written representations to the judge. On the basis of the representations made by the DPP and the defendant, the judge would be able to decide to accept or reject the certificate from the DPP. That would allow a judicial element to come into the determination of the mode of trial, yet there would be no risk of the names of witnesses or informers becoming known. As a result, they would not be subject to intimidation, and I think that that answers the Government’s objections to the proposal.

6.30 pm

Amendment No. 15 would delete clause 7, which prevents the DPP’s decision from being challenged in court unless certain very severe circumstances apply. In the original Bill, only dishonesty and bad faith on the part of the DPP would have allowed his decision to be challenged. To those conditions, Government amendment No 30 in this group adds “other exceptional circumstances”—a fairly vague phrase, but still a very high hurdle. We believe that the hurdles set out in Government amendment No. 30 are far too high for the defendant to negotiate.

We are completely opposed to clause 7. Not only does the Bill contain no provision for an appeal against a decision to hold a trial without a jury, but it expressly prohibits an appeal unless the high hurdles that I have described already can be surmounted. It is completely wrong that the DPP can issue a certificate for a trial to be conducted without a jury when the defendant has no way to make representations to the DPP, or to appeal the decision.

A similar problem arose during the consideration of the Asylum and Immigration (Treatment of Claimants) Bill in 2004. Clause 11 of that Bill inserted a new section 108 into the Nationality, Immigration and Asylum Act 2002, cutting off all appeals to, and judicial review by, the ordinary courts in respect of immigration matters, and excluding habeas corpus applications in immigration cases. At the time, the Joint Committee on Human Rights issued what can only be described as a damning report on that provision. The Committee stated that it regarded the proposed restriction

Despite the Government’s attempts to assuage its concerns, the Committee issued a second report that stated that

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