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Justice and Security (Northern Ireland) Bill (Programme) (No. 2)

Motion made, and Question put forthwith, pursuant to Standing Order No. 83A(7) (Programme motions),

Question agreed to.


10 May 2007 : Column 322

Orders of the Day

Justice and Security (Northern Ireland) Bill

Lords amendments considered.

Clause 7


Limitation on challenge of issue of certificate

Lords amendment: No. 1.

1.6 pm

The Parliamentary Under-Secretary of State for Northern Ireland (Paul Goggins): I beg to move, That this House agrees with the Lords in the said amendment.

I am very conscious of the fact that, as we are deliberating this afternoon, the funeral of George Dawson, Member of the Legislative Assembly, is taking place. Earlier, the hon. Member for South Antrim (Dr. McCrea) referred to the tragic event that occurred this week. We send our condolences to George Dawson’s family, friends and political colleagues, and especially to his wife and two children. Hon. Members will understand that, because of the funeral, several hon. Members who would usually be present cannot be in the House this afternoon.

In our deliberations in both Houses, we have had many discussions about clause 7 and the circumstances in which the Director of Public Prosecution’s decision in favour of non-jury trial should be challengeable. I am sure that hon. Members will be pleased to hear that I do not intend to go through all the arguments again. Suffice it to say that it has been our clear intention to put the case law in Shuker on to the statute book.

We have listened carefully to the concerns that have been expressed, including those in the report of the Joint Committee on Human Rights on the Bill. Paragraph 1.37 states:

The amendment would reassure the Committee by confirming that a challenge on such grounds will be possible, provided that it meets the threshold of “exceptional circumstances”. It will be for the courts to decide whether that threshold is met in any given case. I want to make it clear that that does not mean that lack of jurisdiction or error of law will of themselves constitute exceptional circumstances in every case. That will be a matter for the courts to decide, based on the arguments put to them.

I hope that the further change to the clause provides additional ground for consensus and confidence.

Mr. Laurence Robertson (Tewkesbury) (Con): On behalf of the official Opposition, may I send our condolences to George Dawson’s family and his colleagues in the Democratic Unionist party?

As the Under-Secretary said, we discussed clause 7 at length in Committee and there is no need to drag matters out. I am grateful to the Under-Secretary for taking our comments and those of the Liberal
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Democrats on board. We devised what we thought at the time to be the final solution, but their lordships have considered the matter and added a few more words to our proposal. I hope that that makes the provision as judicial as it can be in the circumstances. We have no objection to the amendment.

Mark Durkan (Foyle) (SDLP): May I take the opportunity to join the Under-Secretary and the hon. Member for Tewkesbury (Mr. Robertson) in recording my condolences to George Dawson’s family? He was a fine and friendly man and I had been looking forward to serving with him in the new Northern Ireland Assembly on the Committee for Enterprise, Trade and Investment.

The Minister has explained the amendment before us, but I hope that he will take the opportunity to explain further how a defendant is meant to mount a challenge, even with the new additional wording, in circumstances where, as he has told us, there will be absolutely no information on the certificate. How is someone judicially to review a certificate in those circumstances? How can that happen when there is no information on the certificate as to what it is that the Director of Public Prosecutions is concerned about or what judgment he has made about whether a person is or was a member of a proscribed organisation or an associate of such a person? If there is no information about what has motivated the DPP’s certificate, how can anyone mount a meaningful challenge?

Lembit Öpik (Montgomeryshire) (LD): I echo the concern, which has been discussed at length in the past, about the complete opaqueness of the process of issuing a certificate. That, as we have already argued, is one of the fundamental flaws of this legislation. I hope that the Minister will provide some further clarification today, but I am not optimistic that, even now, the Government realise the weakness that we are pointing out.

I should have expressed at the start the condolences of the Liberal Democrats to George Dawson’s family. He died of cancer at the very young age of 45. My own brother, as the House knows, died at 37 and I know how difficult it was for my family to deal with that. I am sure that we are all unanimous in understanding the grief that the Dawson family now feels.

The advantage of the amendment is, as the Minister said, that it makes it quite clear that while judicial review will be exceptional, it will be fully available in cases involving matters other than dishonesty or bad faith. The reference to “exceptional circumstances” rightly includes cases where there was a “lack of jurisdiction” or other significant “error of law”. For that reason, it evidently extends the breadth of the clause’s operation, which is welcome, but as I said at the outset and as the hon. Member for Foyle (Mark Durkan) has just pointed out, it still does not overcome one of the fundamental deficiencies of the legislation—the opaqueness of the issuing of a certificate in the first place.

Paul Goggins: I am grateful for the support of the hon. Member for Tewkesbury (Mr. Robertson), but I fear that other colleagues, including my hon. Friend the Member for Foyle (Mark Durkan), may want to drag
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us back to Second Reading and Committee consideration of the legislation. Where we are at now is that we have achieved a great deal of consensus, including around clause 7, and are coming towards the conclusion of our deliberations. There is a clear test, which is set out in the legislation, and a decision has to be made. We have never hidden from the fact that the decision may rest in particular circumstances on intelligence or other information that is not in the public domain, or that we do not believe that the issuing of the certificate should be the occasion for putting such information into that domain.

The question has been how best to balance the need to keep a certain level of protection of the information, while allowing people in certain circumstances to be able to challenge the issuing of the certificate. We now think that, with this further Lords amendment, the balance is as right as it possibly can be. I am pleased that we were able to achieve a consensus in the other place and I hope that it is maintained here this afternoon. I know that my hon. Friend the Member for Foyle has pursued this issue and I fully understand the reasons why. However, I ask him to understand that what we have sought to do is to provide the necessary balance, including what I accept are narrow grounds for challenge, but grounds for challenge nevertheless.

Mark Durkan: Is the Minister confirming that the certificate issued by the DPP will contain absolutely no information? Will it simply say, “This is a case for a no-jury trial”? Is that all that it will say and is that what someone is supposed to challenge through judicial review?

Paul Goggins: That is all. The certificate will be issued by the DPP and it will not include any of the sort of information to which my hon. Friend refers. He knows that from our earlier discussions. All that we are doing today is further to clarify the grounds on which an appeal can be made. There has been some suggestion that what we are seeking to do here is completely to remove grounds for appeal. We are not seeking that at all, but we are limiting those grounds.

Lembit Öpik rose—

Paul Goggins: I will give way in a few moments, but I fear that, perhaps understandably, colleagues want to take us back to discussions that we have had long since. What we are seeking to do is to express our support as the Government for amendments agreed in the other place after extensive discussion and deliberation both on the Floor of the House and elsewhere, which brings us closer to the balance that we seek to strike between making sure that the grounds are narrow, but none the less there in appropriate cases. I shall give way to the hon. Gentleman and then swiftly bring my remarks to a conclusion.

Lembit Öpik: Let me explain that the reason why the hon. Member for Foyle (Mark Durkan) and I are making this point today is that we both feel that it could well become a problem. We are trying to register our concern now so that, in anticipation of the Government having to change the legislation in future, there will at least be some clarification in the record of today’s debate that some hon. Members were already
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foreseeing a problem. At the end of the day, even with the improvements of the Lords amendment, challenging a certificate will still be down to guesswork and assumption because the certificate provides precious little evidence for how it might be challenged.

1.15 pm

Paul Goggins: The hon. Gentleman speaks for himself and his remarks are on the record.

Initially, clause 7 provided grounds for appeal based on dishonesty and bad faith. Consistent with the Shuker judgment, we have now included other “exceptional circumstances”. In view of the deliberations in the other place, we now confirm that those other exceptional circumstances may include

We have now reached the point where the balance is clear and we have clarified all those points in the Bill. I hope that, as I say, that will give us a greater degree of confidence and consensus.

Peter Bottomley (Worthing, West) (Con): The House has heard the Minister and I do not want to provoke him into answering much of what I am going to say, but I want to make two or three sensible and serious remarks.

First, the likelihood of judicial review happening will, I suspect, be low, particularly if many of the hopes built up over recent months are carried forward, but it remains an important issue. The Government tend to operate to a degree by precedent and, if this goes unchallenged and unremarked, I do not believe that the House will have done its duty. I am glad that some hon. Members have put questions to the Minister and that he has responded to them.

Secondly, it may be possible to think of a parallel, albeit not a direct parallel. I remember being involved in the case of a senior officer of the Metropolitan police who had warrants issued by judges and certificates signed by Ministers saying that a particular person was a very serious threat to national security, providing reasons to grant those warrants. It turned out, however, that the information given to Ministers was completely wrong. Without opening all that up again, I hope that there will be some system whereby afterwards—whether it be immediately afterwards or after the trial or perhaps even some years after that—the information becomes open to review. If and when either judges or Ministers issuing certificates realise that they should not have done so, I hope that they will find some way of saying so.

Finding out what happens at the time is one issue, but trying to pick up the picture later is another. There needs to be some invigilation of the uses of the certificate to exclude review. I happen to believe that there are too many applications for judicial review for too many cases, but there are certainly times when they are important. There are the examples of Clive Stafford Smith’s work on Guantanamo Bay, which has embarrassed other American lawyers, including military defence lawyers; and the work of Gareth Peirce in this country, opening up to judicial supervision cases that would otherwise have gone
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unchallenged. I am sure that the Minister would accept that we have a responsibility to ensure that powers are used properly and limited wherever possible.

Dr. William McCrea (South Antrim) (DUP): May I say on behalf of my right hon. and hon. Friends that I deeply appreciate the remarks expressed across the House about my friend in the other place, George Dawson? He was an excellent servant of the people, who represented the people well. I know that his family will find comfort in the remarks that have been made.

My colleagues and I accept the provisions in clause 7. They have already been debated in Committee, and we will therefore support the Government on this matter.

Lords amendment agreed to.

After Clause 8

Lords amendment : No. 2.

Paul Goggins: I beg to move, That the House agrees with the Lords in the said amendment.

Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss Lords amendments Nos. 6 to 8.

Paul Goggins: This group of amendments provides that the non-jury trial system in the Bill will expire after two years unless the Secretary of State makes an affirmative resolution order to extend it for subsequent two-year periods. The system contained in the Bill has always been intended to address the particular circumstances of Northern Ireland, especially the paramilitary and community-based pressures that jurors in Northern Ireland face.

Throughout the passage of the Bill, the Government have made clear their commitment to return to jury trial in all cases in Northern Ireland as soon as the security situation permits. Initially, it was our view that the special provisions should be allowed to wither on the vine. We have listened carefully to the debates on this matter, however, and that has given us cause to reflect on our initial view. We have paid attention to the quickening pace of change in Northern Ireland and the move towards more normal circumstances. Such a move has been evidenced by, among other things, Sinn Fein’s commitment to support the police and the rule of law, and by the events earlier this week involving the devolution of power to Northern Ireland.

We also accept that the inclusion of a sunset clause will give greater clarity and certainty, and provide for a continuing role for Parliament in scrutinising the provisions. The amendments will provide for that. The amendments also provide for transitional arrangements for cases that begin under the new provisions to be allowed to come to a conclusion, even though the provisions might have lapsed. They also make a number of minor technical and legislative changes, and I am happy to support them.

Mr. Laurence Robertson: I thank the Minister for listening to the debate on this issue. When we were discussing the matter on Second Reading and in Committee, we were concerned about extending the
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principle of non-jury trials beyond July 2007 because of the improving security situation. The Independent Monitoring Commission had reported favourably on the activity—or lack of activity, as it described it—of the IRA, and Sinn Fein had publicly declared its support for the police and the criminal justice system. We recognised, however, that there was some way to go regarding dissident republicans and loyalist paramilitaries, so we supported the retention of an ability to hold a trial without jury. We welcomed the change of emphasis, however, and the change to a presumption that trials would be held with a jury unless otherwise stated by the Director of Public Prosecutions—although we disputed who should actually make the decision.

I have one further question for the Minister. If these aspects were to be devolved in due course, what would happen? There is talk—although nothing is set in legislation yet—of further devolution in 2008, yet the sunset period in the Bill is for two years. How does the Minister envisage the arrangements working in those circumstances?

Mark Durkan: I, too, welcome the fact that the Minister has reflected further on the provisions to make permanent the option of non-jury trials in Northern Ireland. When the Government introduced the Bill, they said that those provisions were all about normalisation but, in trying to make permanent the temporary, annually renewable provisions relating to the Diplock courts, they were attempting to normalise the abnormal. I welcome the fact that the Government have thought better of permanently providing for a non-jury court option subject to a review by the Secretary of State, and that they have restored the principle that, if this provision is to be extended, it must be renewed by Parliament.

In the present context, I, like the hon. Member for Tewkesbury (Mr. Robertson), find it hard to accept the justification for continuing the provision at all. We had that debate on Second Reading and elsewhere. The Government’s move from introducing legislation last year to end Diplock courts in July this year—or July next year at the latest—to providing permanently for the non-jury option did not seem to rhyme either with the Government’s judgment of the more benign circumstances or with the very positive prospects that we see now. I was always at a loss to understand how special, annually renewable, temporary provisions that were introduced in the vicious heat of the worst violence of the troubles would be necessary as a permanent feature in the cool calm of the current circumstances. I welcome the fact that the Government have reflected further on this matter.

I hope that the Minister will clarify the point raised by the hon. Member for Tewkesbury about whether the Government intend the renewal of the legislation to be devolved to the Assembly. Do they intend the power to continue to reside with the Secretary of State for Northern Ireland and this House, rather than being transferred to a Minister for Justice in the Northern Ireland Assembly?


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