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For me, the provisions of clause 7 are equally objectionable. The Government are even having to suspend the operation of the Human Rights Act to implement the clause, and that is completely unjustifiable. The
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Government have been able to advance no arguments to justify what amounts to an attack on people’s human rights.

We are fundamentally opposed to clause 7, and hope that even at this late stage, the Government will take heed of the human rights objections to it. However, if they insist on retaining it, I give notice that we will vote against the Bill on Third Reading.

Mark Durkan: We are now dealing with one of the most draconian elements in the Bill, and I support what the hon. Member for Argyll and Bute (Mr. Reid) said about amendment No. 15. It would remove clause 7, which prevents any legal challenge whatsoever to the DPP’s decision to issue a certificate to the effect that a defendant should be tried without a jury.

The Bill, unlike the Criminal Justice Act 2003, will not require the DPP to apply in court to have a case tried without a jury, but clause 7 goes further. It allows the DPP alone to decide that a trial should be held without a jury, and it also provides that that decision cannot be challenged by judicial review. That runs contrary to the terms of the Government’s consultation paper for the Bill, in which it was stated that, like other administrative decisions, the DPP’s decision would be judicially reviewable.

That is what the public were told, and what the Government believed was a reasonable and proper administrative model for the provision of non-jury trials. However, the Bill is entirely different. It also runs counter to the recommendations that the Government received from Lord Carlile, who believed that, although the Bill should contain some provisions for non-jury trials, the decision by the DPP should be judicially reviewable.

There are two lessons for those of us who are told that Lord Carlile will be a great reassurance in these matters, as he will be the one reviewing the future role of MI5. First, those of us who do not agree with non-jury trials can question Lord Carlile’s judgment in this matter; and secondly, it is clear that the Government have overturned one of his key conditions—that the DPP’s decision should be judicially reviewable. For both those reasons, therefore, we find it difficult to accept that Lord Carlile will be able to reassure us about the conduct of MI5.

In Committee, the Government said that they were merely trying to use clause 7 to reproduce the result of the Shuker case, when it was stated that courts should be “reluctant to intrude” on any decision made by the DPP to deschedule. This Bill gives the DPP the unchallengeable power to issue a certificate to the effect that a trial should not have a jury. That decision cannot be challenged in court, or even questioned by the court itself. The Secretary of State said in the Second Reading debate of 13 December that a judge might ask the DPP privately about the matter, but that seems rather unusual.

The Government say that clause 7 is intended to deal with the lessons of the Shuker case, but we believe that it goes much further than that. The Shuker case established that courts should be “reluctant to intrude” on the DPP’s decision in respect of non-jury trials, so why are the Government legislating to prevent them even from looking in at the door or the window?
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Government amendments Nos. 29 to 31 represent a slight movement in that respect, allowing the courts to step in when there is bad faith or “other exceptional circumstances”.

However, in circumstances when, as the Minister told us in Committee, there is no information on the certificate—so we shall not know which conditions the DPP felt were satisfied and neither the defendant nor the lawyer will know the grounds on which it was issued—it is hard to know how we could mount a challenge on grounds of dishonesty, bad faith or an error in law. It would be impossible for anyone to mount a significant challenge when no information was given. The change that the Government appear to offer in their amendments is a mere figment.

The Government’s proposals do not go anywhere near far enough. They do not deal with the point made by the hon. Member for Argyll and Bute because they do nothing to mitigate the effect of subsection (3) of clause 7, which derogates from the Human Rights Act and thus from the European convention on human rights. It abandons the basic standards of decency that have been meant to apply throughout Europe for more than 50 years.

It is extraordinary that the Government are doing that in Northern Ireland, when the security situation is improving dramatically. Earlier, Opposition Members said that we needed to look to the future and to take account of al-Qaeda and wider terrorist threats, but they should remember that the Bill’s provisions apply only to proscribed organisations dealing with the affairs of Northern Ireland; they will not extend to al-Qaeda or anyone else. The Government keep telling us how things are improving in Northern Ireland and that there is such great confidence that the previous special provisions are being repealed, so how can they justify such provisions in the Bill? That is why I am proud to argue that clause 7 should be deleted.

Lady Hermon: I have followed the hon. Gentleman’s argument closely, although I think that it would have been more persuasive if he had studied the Government’s amendments, as the issues that he has just raised have been withdrawn. That apart, if the DPP issues a certificate because one of the four conditions is satisfied and there is a risk to the administration of justice, and even though the certificate cannot be challenged on grounds of bad faith, dishonesty or other exceptional circumstances, has the SDLP no confidence that the Northern Ireland judiciary would give the defendant a fair trial? I certainly do not share that lack of confidence in the judiciary.

Mark Durkan: It is not the SDLP that is trying to restrict the role of a judge, but the legislation. The Bill would restrict the right of a judge even to question the issue of a certificate. It would ensure that the certificate could not be challenged or even questioned in court or by the court. Will the hon. Lady take this opportunity to tell me how a defendant or their lawyer can mount a judicial review on grounds of dishonesty, bad faith or error in law when the certificate contains no information? How can they challenge the grounds when no information is given? An impossible position will be created for defendants and an invidious one for the courts.

I think much better of the Northern Ireland judiciary than to believe that they should be put in a position
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whereby the DPP alone can say, “I’m issuing a certificate and that’s that”, especially as the Secretary of State told the House on 13 December 2006 that the DPP might be acting simply on advice and information received from the security services. The Secretary of State volunteered that information—he was not asked or challenged to do so. When he was asked to explain what the impairment of the administration of justice meant, he said that the DPP might be acting on information from the security services that national security or intelligence sources could be compromised.

6.45 pm

Lady Hermon: I am delighted with the hon. Gentleman’s flowery reply to a question that I did not ask, but could he give me a direct answer? Does the SDLP have confidence that the Northern Ireland judiciary can act impartially and are fully competent to deal with a case in a non-jury trial?

Mark Durkan: We have confidence that the judiciary can deal with applications for non-jury trials where that is provided for in measures such as the Criminal Justice Act 2003. It is the people who support the Government on clause 7 who believe that courts cannot be trusted with that role, and that only the DPP can be trusted to make a judgment in such matters. To give the DPP unique and overriding powers of judgment, above, beyond and immune from the court, is extremely peculiar. Surely, that turns on its head the proper relationship between the prosecution and the court in its determinations.

The hon. Lady says that the Government’s amendments deal with the issue, so I give her another chance to tell me how a defendant or lawyer could mount a judicial review that had even a chance of success on grounds of dishonesty or bad faith when there was no information that they could challenge. How could someone mount a successful challenge with no information? How could they claim that there was bad faith, dishonesty or an error in law when they had no way of knowing the grounds for the certificate and the courts were allowed no way of finding out? That is what the legislation proposes and it is wrong. Courts in Northern Ireland want better than to administer law in that way. They do not want to be fettered and overridden by a DPP who is entirely unaccountable and unchallengeable.

Mr. Laurence Robertson: I shall speak briefly in support of the amendment moved by the hon. Member for Argyll and Bute (Mr. Reid) about who decides on the mode of trial. We discussed the matter at great length in Committee, so I shall not detain the House for too long.

I am not certain which amendment, if any, the hon. Gentleman intends to press to a vote, but we share his concern about the DPP deciding the mode of trial. As the DPP is responsible for the prosecution it does not seem fair or right that he should decide how the trial is conducted, especially as there are only limited means to challenge the decision.

I do not support the hon. Gentleman in his attempt to remove clause 7, as the Government have made a genuine attempt to address the concerns raised in Committee, and I am grateful to the Minister for that.
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However, I am still uncomfortable about the fact that the DPP, who is responsible for prosecuting, can take a decision about how the court should be run.

Mr. David Heath (Somerton and Frome) (LD): As I said when I raised clause 7 on Second Reading, it is rare for me to intervene in Northern Ireland business and I do so with some deference, because I am no expert on Northern Irish affairs. However, the provision could have a much wider application and raises a significant point of law, which is familiar to many Members. I speak with some passion on the subject having been a member of the Standing Committees on the Criminal Justice Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and a member of the Public Bill Committee on the Fraud (Trials without a Jury) Bill, which is still before the House.

A clear pattern is emerging from Government legislation in this field: their deep distrust of juries and their distrust of the judiciary if there is any capacity whatever to remove the judiciary from a decision that the Government feel is better taken by the Administration. This ouster clause—it is an ouster clause—is still significant. I note that the Government amendments—this point was raised by the hon. Member for North Down (Lady Hermon)—clearly retreat on elements of what was originally proposed, which is welcome. I am pleased that that has happened. The Government have extended the circumstances in which a review can take place to include “exceptional circumstances”. Those circumstances are undefined, but at least some provision is made. They have reintroduced the Human Rights Act 1998 provisions, so that there is no derogation any more in relation to clause 1 falling outside the scope, by statute, of the provisions of the human rights legislation. That is important.

My argument on this issue is not a human rights argument; it is a rule of law argument. There is a clear distinction. I have confidence in the judiciary in Northern Ireland, as I have confidence in the judiciary in mainland Britain. I have always argued for judicial oversight of decisions that should be within that purview. First, I have grave doubts that what is proposed in the Bill is consistent with that level of confidence. Secondly, although I deploy the slippery slope, or thin end of the wedge, argument sparingly—because I do not often think that it is helpful to our considerations in the House—I see what is being proposed for Northern Ireland as the clearest possible precedent for trials without a jury elsewhere and for further provisions that will remove the ability to apply for judicial review.

My hon. Friend the Member for Argyll and Bute (Mr. Reid) referred to what happened when we were considering an ouster clause on a quite different matter—immigration and asylum claims—in the context of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. He drew attention to what the Joint Committee on Human Rights said. It clearly stated:


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It continued:

David Howarth (Cambridge) (LD): Does my hon. Friend accept that the Government are playing with fire? In the Jackson case, three members of the House of Lords clearly said that if the Government continue to put forward ouster clauses, the House of Lords might change its mind about the fundamental doctrine of the sovereignty of Parliament.

Mr. Heath: I agree with my hon. Friend— [ Interruption. ] I am concerned by what is being said from a sedentary position by Ministers on the Treasury Bench. They are saying that this is not an ouster clause, but it transparently is. Whether it is justified or not is a different matter. While I am talking about setting a precedent, let me quote what the Constitutional Affairs Committee said at the time:

We had clear guidance on the importance of ensuring that Executive or tribunal decisions are subject to judicial oversight.

My difficulty with clause 7 is not just that it removes the right of review, but that the decision is not even made by a tribunal or a person acting in a quasi-judicial capacity. The decision is made by the Director of Public Prosecutions for Northern Ireland, who is a functionary of the state and part of the process of indictment. That seems particularly abhorrent. We are talking about a person who, in the exercise of their duties, is answerable only to a Minister in government. I stand to be corrected, but I believe that the Attorney-General is responsible for the Director of Public Prosecutions for Northern Ireland as he is for the Director of Public Prosecutions in the United Kingdom as a whole. This is the difficulty: the person who is responsible for prosecution determines the mode of trial, certifies it without giving reasons and then, other than in the most extreme circumstances, is immune from any review by a judicial body at any level—let alone the normal administrative court or High Court decision.

I can see—I think—the Government’s reasons for what they are proposing. I can see those reasons on the level of Northern Ireland matters. I question what they are proposing because there is a different process under the Criminal Justice Act 2003 for difficult cases—cases where there is a prospect of interference with the jury process. I question it because there is apparently no impediment to a judge taking that decision in those circumstances. I question it because my understanding
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is that the Bill is supposed to involve a process of normalisation and it is not normal for the chief prosecutor to decide how a case is going to be heard—whether it is before a jury or a judge-only court. It is not normal for that decision to be made by a functionary of the state, however well qualified and well intentioned that person may be, rather than a judge. That is why I find the proposal so difficult.

My hon. Friend the Member for Argyll and Bute has, in amendment No. 5, put forward a proposal that would undoubtedly mitigate the consequences and act within the spirit of what the Government intend. Although I recognise that the Government have drawn back from their original intentions and are trying to improve the Bill, they will have to improve it an awful lot further before it gets to another place—I give them due warning of that—not least because Lord Carlile of Berriew might reiterate his recommendations, which have been ignored, in relation to a right of review. The provision is still objectionable, in terms not just of its consequences for judicial affairs in Northern Ireland, but of its potential to act as a precedent for the whole of English, Welsh, Northern Ireland and Scottish law. That is why I am deeply troubled.

Lady Hermon: I draw to the hon. Gentleman’s attention a decision in the High Court in Belfast. The decision was made by the Lord Chief Justice of Northern Ireland and Lord Justice Campbell in 2004—so it is a recent decision—in relation to the Shuker case. It was in connection with Diplock trials and whether a decision to schedule or deschedule an offence was reviewable. The Lord Chief Justice and Lord Justice Campbell ruled that

Those are the words of the senior judiciary in Northern Ireland. Can he reconcile that recent decision with the remarks that he has just made about clause 7?

Mr. Heath: I am grateful to the hon. Lady. That is the basis on which the Government are bringing forward their proposal—I have no doubt about that. I would not argue about having a process that was not the normal process of administrative review, or a special arrangement that recognised the difficulties that were recognised in the Shuker case and elsewhere. That is not my difficulty. I simply have a difficulty with the fact that the Government have decided that because a court was reluctant to intrude—I think that that was the expression used by the judge—it should be impossible for a court to intrude. That is wrong in both law and principle.

7 pm

David Howarth: Is there not a world of difference between a decision of the High Court, which is subject to appeal and to the development of the common law through the courts—the law might change utterly in the future—and a rigid statutory rule passed by Parliament?


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