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David Howarth: 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 Justice’s own view is that there should be some restraint by the judges. Those are totally
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different matters. What the Minister is proposing fundamentally violates the rule of law.

Paul Goggins: I do not accept the hon. Gentleman’s 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. Gentleman’s 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.

Mr. Ben Wallace (Lancaster and Wyre) (Con) rose—

David Howarth rose—

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. Gentleman’s 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?

6 Feb 2007 : Column 775

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 DPP’s 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.

Mr. Heath rose—

Paul Goggins: I would rather give way to the hon. Member for Cambridge.

7.30 pm

Mr. Heath: Before the Minister goes too far, he should not demolish the case for the law in England, which is exactly as he has described and which he has said is nonsense.

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 rose—

Paul Goggins: I will happily give way to the hon. Gentleman, who has attended today’s debate and all the debates in Committee and who has provided good value through his interventions.

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.

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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 defendant’s 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.

Turning to the hon. Member for North Down—

Lady Hermon: 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
6 Feb 2007 : Column 777
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 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. Members—it should be evident to all—that 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
6 Feb 2007 : Column 778
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 one’s 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.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7

Limitation on challenge of issue of certificate

Amendment proposed: No. 15, in page 5, line 24, leave out Clause 7.— [Mr. Alan Reid.]

Question put, That the amendment be made:—

The House divided: Ayes 52, Noes 354.
Division No. 043]
[7.42 pm


Alexander, Danny
Baker, Norman
Beith, rh Mr. Alan
Brake, Tom
Breed, Mr. Colin
Brooke, Annette
Browne, Mr. Jeremy
Burt, Lorely
Campbell, rh Sir Menzies
Carmichael, Mr. Alistair
Corbyn, Jeremy
Davey, Mr. Edward
Durkan, Mark
Farron, Tim
Foster, Mr. Don
Gidley, Sandra
Goldsworthy, Julia
Harris, Dr. Evan
Harvey, Nick
Heath, Mr. David
Hemming, John
Holmes, Paul
Horwood, Martin
Howarth, David
Hughes, Simon
Huhne, Chris
James, Mrs. Siân C.
Keetch, Mr. Paul
Lamb, Norman
Laws, Mr. David
MacNeil, Mr. Angus
McDonnell, Dr. Alasdair
McGrady, Mr. Eddie
Mulholland, Greg
Öpik, Lembit
Pugh, Dr. John
Reid, Mr. Alan
Rennie, Willie
Robertson, Angus
Rogerson, Mr. Dan
Rowen, Paul
Russell, Bob
Stunell, Andrew
Swinson, Jo
Teather, Sarah
Webb, Steve
Weir, Mr. Mike
Williams, Mark
Williams, Mr. Roger
Williams, Stephen
Willis, Mr. Phil
Wishart, Pete
Younger-Ross, Richard
Tellers for the Ayes:

Jenny Willott and
Mr. Adrian Sanders

Ainsworth, rh Mr. Bob
Allen, Mr. Graham
Amess, Mr. David
Anderson, Mr. David
Armstrong, rh Hilary
Atkins, Charlotte
Austin, Mr. Ian
Bacon, Mr. Richard
Bailey, Mr. Adrian
Baird, Vera
Baldry, Tony
Balls, Ed
Banks, Gordon
Barlow, Ms Celia

Barron, rh Mr. Kevin
Begg, Miss Anne
Bell, Sir Stuart
Bellingham, Mr. Henry
Benton, Mr. Joe
Benyon, Mr. Richard
Betts, Mr. Clive
Blackman, Liz
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
Blunt, Mr. Crispin
Bone, Mr. Peter
Borrow, Mr. David S.
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Browne, rh Des
Bryant, Chris
Buck, Ms Karen
Burnham, Andy
Burns, Mr. Simon
Byers, rh Mr. Stephen
Byrne, Mr. Liam
Caborn, rh Mr. Richard
Cairns, David
Campbell, Mr. Alan
Campbell, Mr. Gregory
Caton, Mr. Martin
Cawsey, Mr. Ian
Challen, Colin
Chapman, Ben
Chaytor, Mr. David
Clark, Greg
Clark, Ms Katy
Clark, Paul
Clarke, rh Mr. Charles
Clarke, rh Mr. Kenneth
Clarke, rh Mr. Tom
Clelland, Mr. David
Clifton-Brown, Mr. Geoffrey
Clwyd, rh Ann
Coaker, Mr. Vernon
Coffey, Ann
Cohen, Harry
Connarty, Michael
Cook, Frank
Cooper, Rosie
Cooper, Yvette
Cousins, Jim
Cox, Mr. Geoffrey
Crausby, Mr. David
Creagh, Mary
Cruddas, Jon
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
Curtis-Thomas, Mrs. Claire
David, Mr. Wayne
Davidson, Mr. Ian
Davies, Philip
Davis, rh David (Haltemprice and Howden)
Dean, Mrs. Janet
Denham, rh Mr. John
Devine, Mr. Jim
Dhanda, Mr. Parmjit
Dismore, Mr. Andrew
Dobbin, Jim
Dobson, rh Frank
Dodds, Mr. Nigel
Donaldson, Mr. Jeffrey M.
Doran, Mr. Frank
Dorrell, rh Mr. Stephen
Dowd, Jim
Duncan Smith, rh Mr. Iain
Dunne, Mr. Philip
Eagle, Angela
Efford, Clive
Ellman, Mrs. Louise
Engel, Natascha
Ennis, Jeff
Fabricant, Michael
Farrelly, Paul
Fisher, Mark
Fitzpatrick, Jim
Flint, Caroline
Flynn, Paul
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Francois, Mr. Mark
Fraser, Mr. Christopher
Gapes, Mike
Gardiner, Barry
George, rh Mr. Bruce
Gerrard, Mr. Neil
Gibson, Dr. Ian
Gilroy, Linda
Godsiff, Mr. Roger
Goggins, Paul
Goodman, Helen
Goodman, Mr. Paul
Goodwill, Mr. Robert
Green, Damian
Griffith, Nia
Grogan, Mr. John
Gwynne, Andrew
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. David
Hamilton, Mr. Fabian
Hammond, Stephen
Hanson, Mr. David
Harper, Mr. Mark
Harris, Mr. Tom
Havard, Mr. Dai
Hayes, Mr. John
Healey, John
Hendrick, Mr. Mark
Hepburn, Mr. Stephen
Heppell, Mr. John
Herbert, Nick
Hermon, Lady
Hesford, Stephen
Hewitt, rh Ms Patricia
Heyes, David
Hill, rh Keith
Hillier, Meg
Hodgson, Mrs. Sharon
Hollobone, Mr. Philip
Hood, Mr. Jimmy
Hopkins, Kelvin
Horam, Mr. John
Howarth, rh Mr. George
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Humble, Mrs. Joan
Hunt, Mr. Jeremy
Hutton, rh Mr. John

Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
Jack, rh Mr. Michael
James, Mrs. Siân C.
Jenkins, Mr. Brian
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Kevan
Jones, Lynne
Jones, Mr. Martyn
Jowell, rh Tessa
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Keeley, Barbara
Keen, Alan
Keen, Ann
Kemp, Mr. Fraser
Kennedy, rh Jane
Khan, Mr. Sadiq
Kidney, Mr. David
Kilfoyle, Mr. Peter
Kirkbride, Miss Julie
Knight, rh Mr. Greg
Knight, Jim
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lammy, Mr. David
Lancaster, Mr. Mark
Laxton, Mr. Bob
Lazarowicz, Mark
Lepper, David
Letwin, rh Mr. Oliver
Levitt, Tom
Lewis, Mr. Ivan
Liddell-Grainger, Mr. Ian
Lilley, rh Mr. Peter
Lloyd, Tony
Love, Mr. Andrew
Lucas, Ian
Mackay, rh Mr. Andrew
Mackinlay, Andrew
Mactaggart, Fiona
Mahmood, Mr. Khalid
Main, Anne
Malik, Mr. Shahid
Marris, Rob
Marsden, Mr. Gordon
Marshall, Mr. David
Marshall-Andrews, Mr. Robert
Martlew, Mr. Eric
Maude, rh Mr. Francis
May, rh Mrs. Theresa
McAvoy, rh Mr. Thomas
McCafferty, Chris
McCarthy, Kerry
McCarthy-Fry, Sarah
McCartney, rh Mr. Ian
McCrea, Dr. William
McDonagh, Siobhain
McFadden, Mr. Pat
McGovern, Mr. Jim
McGuire, Mrs. Anne
McIntosh, Miss Anne
McIsaac, Shona
McLoughlin, rh Mr. Patrick
Meacher, rh Mr. Michael
Meale, Mr. Alan
Merron, Gillian
Michael, rh Alun
Miliband, Edward
Miller, Andrew
Mitchell, Mr. Austin
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
Morgan, Julie
Morley, Mr. Elliot
Mountford, Kali
Mudie, Mr. George
Mullin, Mr. Chris
Munn, Meg
Murphy, Mr. Denis
Murphy, Mr. Jim
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
Olner, Mr. Bill
Osborne, Sandra
Ottaway, Richard
Owen, Albert
Palmer, Dr. Nick
Paterson, Mr. Owen
Pelling, Mr. Andrew
Penrose, John
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Bridget
Prentice, Mr. Gordon
Prescott, rh Mr. John
Primarolo, rh Dawn
Pritchard, Mark
Prosser, Gwyn
Purchase, Mr. Ken
Purnell, James
Randall, Mr. John
Raynsford, rh Mr. Nick
Redwood, rh Mr. John
Reed, Mr. Andy
Reed, Mr. Jamie
Reid, rh John
Riordan, Mrs. Linda
Robathan, Mr. Andrew
Robertson, John
Robertson, Mr. Laurence
Robinson, Mr. Geoffrey
Robinson, Mrs. Iris
Robinson, Mr. Peter
Rooney, Mr. Terry
Roy, Mr. Frank
Ruane, Chris
Russell, Christine
Salter, Martin
Seabeck, Alison
Selous, Andrew
Shapps, Grant
Shaw, Jonathan
Sheridan, Jim
Simon, Mr. Siôn
Simpson, Alan
Simpson, David
Skinner, Mr. Dennis
Slaughter, Mr. Andrew
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, rh Jacqui
Smith, John
Snelgrove, Anne
Soulsby, Sir Peter

Southworth, Helen
Spellar, rh Mr. John
Spicer, Sir Michael
Stanley, rh Sir John
Starkey, Dr. Phyllis
Steen, Mr. Anthony
Stewart, Ian
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Streeter, Mr. Gary
Stringer, Graham
Stuart, Ms Gisela
Stuart, Mr. Graham
Syms, Mr. Robert
Tami, Mark
Taylor, Ms Dari
Taylor, David
Taylor, Mr. Ian
Thomas, Mr. Gareth
Timms, rh Mr. Stephen
Tipping, Paddy
Todd, Mr. Mark
Touhig, rh Mr. Don
Trickett, Jon
Truswell, Mr. Paul
Turner, Dr. Desmond
Turner, Mr. Neil
Twigg, Derek
Tyrie, Mr. Andrew
Vara, Mr. Shailesh
Vaz, rh Keith
Viggers, Peter
Wallace, Mr. Ben
Walley, Joan
Waltho, Lynda
Wareing, Mr. Robert N.
Watkinson, Angela
Watson, Mr. Tom
Watts, Mr. Dave
Whittingdale, Mr. John
Wicks, Malcolm
Willetts, Mr. David
Wills, Mr. Michael
Wilson, Sammy
Winnick, Mr. David
Winterton, Ann
Winterton, rh Ms Rosie
Wood, Mike
Woodward, Mr. Shaun
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Wyatt, Derek
Young, rh Sir George
Tellers for the Noes:

Steve McCabe and
Huw Irranca-Davies
Question accordingly negatived.
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