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The Minister refers to the view of the Lord Chief Justice for Northern Ireland, but he is not giving advice but deciding a case. He is speaking judicially. It is quite different to say on the one hand that the Lord Chief Justice may no longer decide the standard of review, but must have regard to a parliamentary statute, while on the other saying that the Lord Chief Justices own view is that there should be some restraint by the judges. Those are totally
different matters. What the Minister is proposing fundamentally violates the rule of law.
Paul Goggins: I do not accept the hon. Gentlemans analysis. In the end it is for us to decide what test should be applied and who should apply it. He will know from the Government amendments that we have to some degree revised our view about the scope in which an appeal can take place. That is us taking a measured political decision. Yes, we are taking advice of the opinion through a judgment of the Lord Chief Justice, but applying our own political judgment at the same time. That is a matter for us. I do not accept the hon. Gentlemans analysis of our proposal.
Mark Durkan: My hon. Friend said in response to the hon. Member for Tewkesbury (Mr. Robertson) that it is for the House to decide who takes the decision in the future. Will he answer a question that he could not answer in Committee? Who will be deciding in the future whenever justice and policing are devolved? Will the Assembly have the power to amend the legislation, or will it be this House and the Secretary of State?
Paul Goggins: The answer is the same as it was in Committee. These are matters that have to be worked out. It is not possible to say precisely on this day how such decisions will be made and what the legislative position will be. These are matters that, as he knows, have to be further discussed. The most important thing is that the DPP in Northern Ireland remains a completely independent figure, making these decisions completely unhindered and uninfluenced.
Paul Goggins: I give way to the hon. Member for Cambridge (David Howarth) in the hope that we will finally agree whether we agree or disagree on this, then I will give way to the hon. Member for Lancaster and Wyre (Mr. Wallace).
David Howarth: This might have to be my final intervention on this because we have reached the ultimate point. The Minister seems to think that the rule of law and the sovereignty of Parliament are one and the same thing. If he goes ahead with this ouster clause, this will be an historic moment because he might well find that the judiciary thinks the opposite.
Paul Goggins: I do not accept that this is an ouster clause, and I do not accept the hon. Gentlemans argument. There are limited grounds for appeal; they are grounds that we are widening through a proposition that we are making in our amendments this evening. He will have his own judgment about that. In the end Parliament will decide and will set the legislation.
Mr. Wallace: If the DPP is making the decision whether to go for a jury or not, and is also the prosecuting body, how confident is the Minister that any conviction will be safe in the future, given that they are not separate?
Paul Goggins: I place confidence in the DPP because of his experience and because he is dealing with similar kinds of judgments. As the hon. Member for East Antrim pointed out, the DPP is already experienced in making decisions about mode of trial in relation to the serious cases that go before Diplock courts and in other cases as well. He is experienced in doing that and has my confidence so to continue doing.
The hon. Member for Argyll and Bute invited me to comment on amendment No. 5, which clearly displays further thought in relation to this matter, and some might describe it as quite a clever wheeze. Amendment No. 5 proposes keeping clause 7 and giving the trial judge a role in deciding whether to accept the DPPs certificate for non-jury trial. In other words, it would introduce an automatic judicial review in every single case. It is not a question whether there should be a facility for judicial review; the proposition is that there should be a judicial review in every case. There is the potential to become even more embroiled in the judicial process, because the trial judge would have to give reasons. [ Interruption.] The hon. Member for Cambridge keeps making comments from a sedentary position. If he wants to intervene, I will happily give way.
Paul Goggins: I cannot say that I am delighted to have given way to the hon. Gentleman. However, he and I have debated such issues over the course of many Bills, and it is a pleasure to debate with him again this evening. If the DPP were to decide not to publish the list of reasons for issuing the certificate, no doubt there would be other grounds for judicial review. Amendment No. 5 would lead to an automatic judicial review in every case and create the potential for further judicial reviews. As we have said, we need to limit the grounds for judicial review in order to protect justice by making sure that jurors are not intimidated and that some of the most dangerous and serious criminals in Northern Ireland get a fair trial without any possibility of the administration of justice being impaired.
Mr. Bone: I congratulate the Government on introducing legislation that they hope will never have to be used. The progress that has been made in having normality in Northern Ireland will mean that those courts will not need to sit as the years go on.
Paul Goggins: I am grateful to the hon. Gentleman for making that point. The hon. Member for Somerton and Frome (Mr. Heath) has said that he did this reluctantly, but he has deployed the argument that this is the thin end of the wedge. My argument is that the provision reflects the specific circumstances in Northern Ireland. It is based on the very high standard of justice through the Diplock courts, and nobody should question the quality of justice. The legislation will apply only to Northern Ireland, and it will wither on the vine as the risk reduces from those people who pose the kind of threat that we are seeking to deal with. This is not the thin edge of the wedge; this is a specific set of decision-making processes that reflects the circumstances in Northern Ireland.
Having indicated that I am not prepared to accept the amendments tabled by the hon. Member for Argyll and Bute, I want to explain our further thoughts on clause 7 and on some of the arguments that were advanced in Committee, where the provision was subject to intense scrutiny and debate. Members on both sides of the Committee made it clear that there was good sense in tidying up the drafting of clause 7. We have brought together what were previously two separate subsections in subsection (1) to make our intention absolutely clear.
We have also sought to clarify a point made by the hon. Member for Tewkesbury, who asked whether a challenge could be made under section 7(1) of the Human Rights Act 1998. I hope that we have made it clear that that can provide the grounds for a challenge. As I said in Committee, however, the Human Rights Act 1998 does not guarantee a trial by jury; it guarantees a fair trial. The judge-alone system in Northern Ireland guarantees a fair trial.
Mr. Laurence Robertson: I am grateful to the Minister for returning with an amendment, which we are happy to support. Returning to the point made by the hon. Member for Foyle (Mark Durkan), if the certificate does not contain information, how might somebody who wants to appeal against a decision on the grounds listed in the amendment bring that about? The odds would be stacked against them.
Paul Goggins: I do not deny that it would be difficult, but in the first instance it would be for the defendants lawyer to seek leave to appeal the certificate on the grounds of bad faith, dishonesty or other exceptional circumstances. It would be for the judge to decide whether to grant leave for that appeal to take place. If the appeal were granted, a further judge would consider the matter still further. If the judge were to demand to see the reasons, it might be possible, but the judiciary have made it clear that they set a very high test in relation to such cases. I do not deny that it would be difficult, if not impossible, for the list of reasons to be produced, but, again, I say that the point applies to a small number of serious cases in which trial by judge alone in Northern Ireland is still warranted.
Before we move on to the surprise of the evening, where the Minister will reply to something that I have said, will he explain why, given that the front cover of the Bill states that the Bill is compatible with
the obligations of the Human Rights Act 1998, it is necessary to reprint in clause 7 that the provision complies with section 7(1) of the Human Rights Act? And will the Minister identify the exceptional circumstances, over and above bad faith and dishonesty, in which there can be a judicial review?
Paul Goggins: I shall address the issue of exceptional circumstances in a moment. Like all Bills introduced by the Government, the front cover of this Bill states that the Bill is compliant with human rights legislation, which is a guarantee that affects the whole of the Bill. We simply think it important to reaffirm that fact in this particular clause to achieve absolute clarity. Given the debates that we have had and the uncertainty that some may feel was engendered by the original drafting of the clause, this is a belt-and-braces measure to make it absolutely clear that the provision is compliant with the European convention on human rights.
In Committee, the hon. Member for North Down argued persuasively that the original drafting of clause 7 was only a partial reflection of the Shuker judgment, in that it gave grounds for bad faith and dishonesty, but not for the other exceptional circumstances covered in that judgment. We have considered the matter carefully and have decided to amend clause 7 to make it clear that the whole of the Shuker judgment is covered. That was our objective with clause 7, which is clearer now.
We have considered whether we can specify in greater detail the exceptional circumstances. In the end, we have decided to leave that as a matter for judges themselves. In doing so, we have considered the views of the Lord Chief Justice and Lord Justice Campbell, who have said:
We do not consider that it would be helpful, or even possible, to predict what those grounds might be.
We feel content to leave it to the courts to decide what exceptional circumstances might be, rather than prescribing them in this House. I am sure that the test that is applied will be reflected in case law, so people in Northern Ireland will be in no doubt about the level at which that test is set, but we think it right to leave it to them.
I may have persuaded some hon. Membersit should be evident to allthat I listened carefully in Committee. We have moved in a direction that many will welcome, but we have possibly not gone as far as others would have had us go.
Mr. Alan Reid: I accept that the Minister listened to the concerns expressed in Committee and that the Government have moved, but they have not moved far enough. They have introduced the exceptional circumstances clause and amendment No. 31, whereby clause 7 is subject to section 7(1) of the Human Rights Act 1998. Those are steps in the right direction. However, it remains the case that in order to get a judicial review under clause 7, the applicant would have to prove that the DPP had acted dishonestly or in bad faith, which would be extremely difficult. We also have the rather woolly phrase, exceptional circumstances. I feel that there should still be the right to judicial review.
I am disappointed that the Government did not accept amendment No. 5, which would have dealt with the worry about intelligence information being made
public by ensuring that there was no possibility of that happening. We are supposed to be moving towards normalisation in Northern Ireland, and that means a jury trial unless there is a risk of jury-tampering, which is already covered by the Criminal Justice Act 2003. I want to stress that we are in no way criticising the judiciary in Northern Ireland, who undoubtedly conduct fair trials. However, normalisation means that trial before a jury of ones peers should be the normal situation. Yes, there are circumstances in which that may not be the right course of action, but the amendment would have covered those. The taking away of the right to apply for a judicial review where there is no right to trial by jury is a fundamental issue. We shall therefore seek to press amendment No. 15 to a vote.
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