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Session 2006 - 07 Publications on the internet General Committee Debates Justice and Security (Northern Ireland) Bill |
Justice and Security (Northern Ireland) Bill |
The Committee consisted of the following Members:Chris
Shaw, Committee
Clerk
†
attended the Committee
Public Bill CommitteeTuesday 16 January 2007(Afternoon)[Sir Nicholas Winterton in the Chair]Justice and Security (Northern Ireland) Bill4.30
pm
Written evidence to be reported to the House for publicationJS(NI)1 Northern
Ireland Human Rights
Commission
The
Chairman:
Before I ask the hon. Member for North Down to
resume her valuable contribution to this important debate, may I
confirm that the Committee has now received evidence on the Bill in a
document called JS(NI)1, which is a Committee-stage briefing from the
Northern Ireland Human Rights Commission relating to clauses 13 to 19?
A copy of this document is available in the room and I hope that all
hon. Members will look at this
evidence.
Clause 1Issue
of
certificate
Amendment
proposed [this day]: No. 24, in
clause 1, page 1, line 5, leave
out ‘may’ and insert
‘shall’.—[Lady
Hermon.]
Question
again proposed, That the amendment be
made.
The
Chairman:
I remind the Committee that with this we are
discussing the following amendments: No. 3, in
clause 1, page 1, line 8, leave
out ‘he suspects’ and insert
‘believes, on the balance of
probabilities,’.
No.
4, in
clause 1, page 1, line 9, leave
out ‘risk’ and insert ‘real and present
danger’.
No. 5,
in
clause 1, page 1, line 9, leave
out ‘administration’ and insert
‘interests’.
No.
6, in
clause 1, page 1, line 10, leave
out ‘might’ and insert
‘would’.
Lady
Hermon (North Down) (UUP): Thank you, Sir
Nicholas. It was nice of you to describe my contribution as valuable to
this Committee, particularly since I was disagreeing, saying,
“No, no and no again” to the Minister’s typically
persuasive and eloquent argument. The Committee will not be persuaded
by his eloquence on this occasion, however, because it is inconceivable
that it could recognise that the conditions outlined in clause 1 would
be met to the satisfaction of the Director of Public Prosecutions and
that he would also be satisfied that, because of those conditions,
there is a risk that the administration of
justice might be impaired. The Minister is trying to persuade us that,
even though he cannot conceive of any instance in which the DPP would
not issue a certificate, he is still not convinced that he should
change the DPP’s discretion, which is indicated by the use of
the word “may” in clause 1(2), into a
duty.
The Minister
eloquently reminded us in this morning’s sitting that we really
have nothing to worry about, because if there is any danger at all of
jury tampering, it will be picked up under the Criminal Justice Act
2003. The Act gained Royal Assent four years ago and I think that he
hinted that section 44 is its key provision, but that came into force
only today or this
week.
The
Parliamentary Under-Secretary of State for Northern Ireland (Paul
Goggins):
I am happy to confirm that it came into force on
8
January.
Lady
Hermon:
It came into force on 8 January, so that is the
time that it has taken the Government, in conjunction with the other
relevant justice agencies, to put the 2003 Act into operation even
though there is the real and present threat of jury
tampering.
Let us look
for a moment at what the Minister is trying to persuade us of. Section
44 of the 2003 Act came into force just a few days ago and has very
limited scope. The Minister, who sits there with an angelic look on his
face, knows well that that is so. It will apply only when the
prosecutor makes an application to the Crown court judge, who must be
satisfied about two conditions that are set out in section 44. It
states:
“The
first condition is that there is evidence of a real and present danger
that jury tampering would take place ... The second condition is
that, notwithstanding any steps (including the provision of police
protection) which might reasonably be taken to prevent jury tampering,
the likelihood”
is such
that there would be a substantial threat to the interests of justice in
the trial if it were conducted with a
jury.
Section 44
applies only to jury tampering. The tests that have to be satisfied are
set at a high level. The provision will be available only in limited
circumstances. However, the Minister has identified the two parts of
clause 1 that must be satisfied and the first is that the DPP must find
at least one of the conditions outlined in the clause. It is a side
issue, but the DPP might be a man or a woman as we would anticipate
that in future all aspects of the judicial system would reflect gender
and ethnicity in Northern Ireland. For the Committee’s
information, there are 10 High Court judges in Northern Ireland, and
not one is female. The positions of Lord Chief Justice and the Director
of Public Prosecutions have never been held by a woman, but that is a
side issue.
The key
issue is that the DPP is satisfied that there is a risk that the
administration of justice might be impaired. In those circumstances, it
is completely illogical that the DPP, he or she, should turn a blind
eye to that significant fact and not make a certificate that there
should be a non-jury trial.
The Minister, by being terribly
persuasive about the virtues of the Criminal Justice Act 2003, is wrong
in giving the impression that there is a seamless system that will pick
up, at the trial stage under the 2003 Act,
those cases in which the DPP has concluded that there is a risk to the
administration of justice. They will not be picked up under the 2003
Act because it sets a very high standard for the judge to come to that
conclusion when the trial has begun.
The definition of risk to the
administration of justice goes much wider than simply jury tapping,
which is the only issue covered by section 44 of the 2003 Act. In those
circumstances, it is consistent with the Minister’s own
arguments that he cannot conceive of an instance when the DPP would not
issue a certificate but the Minister is still not prepared to make it a
duty rather than a discretion.
I would be intrigued if the
Minister would intervene to give the Committee and the Chairman some
examples. I know that Sir Nicholas follows our debates with great
interest and passion as he chaired in his characteristically fair and
kindly manner in difficult circumstances our ghastly sittings on the
proposed measure in respect of on-the-run terrorists not coming before
a court.
I hope that
the Minister will intervene to give examples of cases in which the DPP
would exercise discretion when he knows that there is a risk to the
administration of justice. Why in heaven’s name not make that a
duty? The Minister said that he did not want to be rigid and
inflexible, but I cannot be convinced that he believes, in his heart of
hearts, that it is right that the DPP should turn a blind eye to a risk
to the administration of justice.
Paul
Goggins:
I say, in passing, that although it is a long
time since the Criminal Justice Act 2003 was passed, the hon. Lady,
with her experience, will appreciate that careful preparations with the
appropriate training are needed for the introduction of such important
powers.
I rise not to
give the hon. Lady examples but to repeat what I said earlier: I do not
have any examples to give. I cannot foresee any circumstances in which
the certificate would not be issued when both limbs of the test are
satisfied. I say again that there may be unforeseen circumstances,
which I cannot predict, that may require some discretion by the DPP,
but fundamentally it is a point of principle. In the end, it is for the
DPP to make that decision and we leave it to him, as it is at present,
to use his discretion to make that judgment. I see no circumstances in
which that would happen, but we have to leave it open to the DPP.
Lady
Hermon:
I am grateful to the Minister for that
intervention, which I invited, because he confirmed, as we believed,
that there are no circumstances that he can at present envisage in
which the DPP would not issue a certificate. We are trying to
clarifying the legislation so that it builds confidence. I entirely
share the Minister’s view that trying to get the balance right
is a matter of caution—he used that word—and that may
build some confidence in the criminal justice system among victims. We
are talking about victims and their
protection.
I
see that the hon. Member for East Antrim is here on time, and very nice
it is to see that. His nickname is “The late Member”.
Both the hon. Gentleman and I have taken evidence in private and heard
that there is real fear among the victims of organised crime,
paramilitary
and ex-paramilitary crime, and intimidation. We should err on the side
of the victim to build confidence in the criminal justice system in
Northern Ireland. That means making it absolutely clear that when the
DPP recognises that there is a threat to the administration of justice
in Northern Ireland, and that one of the conditions set out in clause 1
is satisfied, he will do the right thing by the victim and the criminal
justice system and issue a certificate. That cannot be done under the
Criminal Justice Act 2003, save in very limited
circumstances.
Mark
Durkan (Foyle) (SDLP): Just as the Minister did not give
examples, the hon. Lady did not. There might be cases that cause
concern about the supposed discretion contained in the measures.
Obviously, I oppose clause 1 for the same reason that I do not want any
provision for non-jury courts beyond that contained in the 2003 Act. Is
part of her concern about the DPP having discretion that, under
devolution, he may be influenced by a devolved Minister or a Committee
of the Assembly as to how he uses that
discretion?
Lady
Hermon:
I am grateful to the hon. Gentleman for that
contribution. However, I am not concerned about who might or might not
be a future Justice Minister in Northern Ireland when policing and
justice are devolved. I hope that the Government bear in mind the words
spoken in the Chamber and the assurances that policing and justice
would be devolved to the Assembly only when there is public confidence
in the criminal justice system.
Mr.
Peter Bone (Wellingborough) (Con): We were asked for
examples of when the provisions may cause a problem. Whether or not the
DPP exercises a discretion to go to trial without jury, defence lawyers
would always approach him asking for the decision to be
reversed.
Lady
Hermon:
Again, I am very grateful to the hon. Gentleman
for his helpful intervention, but I will respond first to the
intervention of the hon. Member for Foyle.
My concern
has been propelled by the fact that the Government—quite
rightly—established the Independent Monitoring Commission, and
sometimes it would be good if we paid more attention to the
commission’s reports. I was affected by a paragraph 5.5 in its
third report, published as long ago as November 2004. That paragraph
highlights the staggering influence of criminal gangs in Northern
Ireland and
states:
“The
Northern Ireland Organised Crime Task Force has stated that there are
some 230 organised criminal gangs believed to be operating in Northern
Ireland. We have been advised that about 60 per cent. or some 140 have
paramilitary links and that, of the top 25 criminal gangs involved in
international activities operating in early 2004, 17, some two-thirds,
had paramilitary
associations.”
This is
the key phrase:
“Seldom in the developed
world has this high proportion of the most serious criminals been
associated with groups originating in terrorism, with an organised
structure and discipline, and the experience of planning, learning and
conducting sophisticated clandestine operations, methods of handling
money, and with traditions of extreme
violence.”
4.45
pm
Northern
Ireland has a population of about 1.7 million people. It is a
small jurisdiction. I have not dreamed up the following facts and
figures, and the Ulster Unionist party did not produce them. We have no
time for that—we have time for so little. The Independent
Monitoring Commission produced the report, highlighting that there are
230 organised criminal gangs in Northern Ireland, and that a vast
percentage of them have international connections. They are very
sophisticated and quite ruthless. On ruthless and sophisticated
criminality, it is perfectly logical and legitimate for the Government
to say to the people of Northern Ireland that when they are victims of
paramilitary intimidation or of organised criminal gangs, the criminal
justice system will be on the people’s
side.
The Bill states
that the DPP must
be
“satisfied that
... there is a risk that the administration of justice might be
impaired”.
When the DPP
is satisfied and one of the conditions is met, he should exercise a
duty to issue a certificate that sends the trial to a non-jury court.
It could not be simpler or more logical, and rather than exercise
discretion, it would be the right thing to do in the circumstances. I
rest my case. I am simply not persuaded by the Government’s very
eloquent and very nice arguments, and their approach would just be the
wrong thing to do in the
circumstances.
The
Chairman:
It is only fair to tell the Committee that the
amendments grouped with the lead amendment are totally opposed to it.
If the Liberal Democrats want to press one of their amendments to a
Division, I should be happy to permit
it.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 5, Noes
15.
Division
No.
2
]
AYESNOES
Question
accordingly negatived.
Lembit
Öpik (Montgomeryshire) (LD): On a point of order,
Sir Nicholas. I am grateful for your offer of a vote, but since the
Minister has said that he will consider at least one of the amendments,
we do not feel it necessary to push any of them at this stage. We may
return to them on
Report.
The
Chairman:
I am sure that the Committee and the Minister
are grateful for that explanation from the hon.
Gentleman.
The
amendment relates to a curious part of the clause. Although we were
defeated on the last amendment, we have not given up on our efforts to
improve the Bill. We are here jointly, no matter which party we
represent, to make sure that this is a good Bill for the people of
Northern Ireland.
The
construction of the clause is interesting. Subsection (9) includes a
definition of a proscribed organisation. As we know from our earlier
discussions, the DPP has to be satisfied of two things, including one
of the four conditions outlined in the clause. The first three
conditions make reference to the defendant’s connection to a
proscribed organisation. Condition 1 is that the defendant is a member
or past member of a proscribed organisation. Condition 2 is that the
offence was committed on behalf of a proscribed organisation. Condition
3 is that an attempt has been made on behalf of a proscribed
organisation to prejudice the investigation or prosecution.
Interestingly, the fourth condition makes no reference to a proscribed
organisation. It concerns
“a result of, in connection with
or in response to religious or political hostility of one person or
group of persons towards another person or group of
persons.”
I
have tabled the amendment to give the Minister an opportunity to
explain the construction of the clause and why one of the four
conditions, the last of which makes no reference to a proscribed
organisation, must be satisfied, along with the condition that the DPP
must be satisfied that there is a risk to the administration of
justice. Will the Minister give examples of circumstances in which he
thinks there will be a non-jury trial, not under the 2003 Act but under
this Bill, where there is no connection with a proscribed
organisation?
The
amendment relates specifically to the deletion of subsection (9)(b),
which defines a proscribed organisation. Hon. Members will be familiar
with the definition in the Terrorism Act 2000. Having taken advantage
of modern technology, I have a lengthy, up-to-date list of the all the
organisations proscribed under the Act. I will not name them all;
al-Qaeda is obviously on the list, but some of them have extremely odd
titles. I am sure that the Minister is familiar with them—for
example, the 17 November Revolutionary Organisation is listed. At the
end of the list are the proscribed Irish groups, which include the
Continuity Army Council, the Orange Volunteers, the Red Hand Commando,
the Red Hand Defenders, the Ulster Defence Association, the Ulster
Freedom Fighters and the Ulster Volunteer Force, to name but a
few.
I would like the
Minister to explain the reason for subsection 9(b), which curiously
adds the condition that, in addition to the defendant being a member or
a past member of a proscribed organisation under the definition in the
2000 Act, the organisation’s
“activities are (or were at the
time of his membership) connected with the affairs of Northern
Ireland”.
Let me give an
example, which the Minister can address in his
response.
If an
organisation that falls within the definition of a proscribed
organisation were to be responsible for a major bank robbery—I
shall not mention the Northern
bank, which has already been the subject of many jokes—would it
be sufficient that the bank was in Northern Ireland? Would that be
sufficient to meet the test in clause 1(9)(b), under which the
activities of the organisation are
“connected with the affairs of
Northern Ireland”?
What does it mean to
be connected with the affairs of Northern Ireland? Would a bank robbery
qualify, if it took place
there?
Sammy
Wilson (East Antrim) (DUP): Will the hon. Lady accept that
when the Northern Ireland Affairs Committee took evidence on the
criminal activities of proscribed organisations in Northern Ireland, it
heard that those organisations’ activities often go well beyond
the boundaries of Northern Ireland—for example, smuggling drugs
from outside Northern Ireland or taking fuel to other parts of the
United Kingdom? Although those organisations are based in Northern
Ireland, their activities are not exclusively connected with Northern
Ireland; nevertheless, they have the same ability to intimidate jurors,
if the cases are brought to court in Northern
Ireland.
Lady
Hermon:
It is a rare for me to be grateful to the
hon. Gentleman, but I am genuinely grateful to him. He has the dreadful
habit of poking fun at the hon. Member for North Down, but I usually
rise above it. On this occasion, however, he is absolutely right. His
point was mentioned in the 2004 IMC report:
“We understand that
virtually all the most significant 25
gangs”—
those are
the most sophisticated organised criminal
gangs—
“with
international associations referred to above are engaged in smuggling
or in laundering the proceeds of their crimes.”
International organised criminals
certainly do not recognise the border between the Republic of Ireland
and Northern Ireland. In fact, their operations are helped by the
different ways in which both sides have constructed their legislation.
However, that gap has been properly narrowed, and there is much greater
co-operation between the Garda Siochana, the Police Service of Northern
Ireland and the other justice
agencies.
I would
welcome the Minister’s explanation of the curious construction
of subsection (9)(b). Subsections (6) to (8), which concern condition
4, make no mention of proscribed organisations, yet we move on to their
definition in subsection (9). That means that we will have non-jury
trials only if the circumstances meet the narrow phrasing. The good
that we are doing with non-jury trials, which it is necessary to
maintain in Northern Ireland, could be undermined by that phrase, and I
do not see the need to include it in the
Bill.
Mark
Durkan:
Given our earlier discussions, hon. Members will
not be surprised to hear that I oppose the amendment. If it were to be
accepted, those hon. Members representing constituencies on this island
might start to catch on to the concern expressed by the hon. Member for
Montgomeryshire that aspects of the Bill might be rolled out
into UK-wide legislation. The Minister tried to assure hon. Members
earlier that the focus is purely on Northern Ireland and Northern
Ireland-related terrorist or paramilitary organisations. If the
amendment were agreed to, the argument would
be that if the Government are prepared to have non-jury trials for
proscribed organisations that have nothing to do with the Irish
situation in Northern Ireland, surely that would be the precedent for
not having jury trials for those organisations elsewhere in the United
Kingdom.
5
pm
I know that the
hon. Lady is trying to remove an awkward term from the Bill, and of
course the term was in the Northern Ireland (Offences) Bill, too. The
exemptions and certificates that were going to be afforded then were
for any offence committed by anybody in relation to the affairs of
Northern Ireland. I know why the term is questionable for many people,
and I make that point in response to the comments made by the hon.
Member for Montgomeryshire and the Minister. However, my reason for
opposing the amendment is that it still does nothing to do away with
Diplock courts. It does not alter the basic thrust of the Bill, which
is to provide for continuity Diplock
courts.
Paul
Goggins:
As ever, the hon. Member for North Down does the
Committee and the process of consideration a great service by tabling
amendments that allow us to face, debate and explore the issues raised
by the Bill. Sometimes amendments are pushed to a vote and sometimes
they are withdrawn. That is the spirit in which such things should be
done. I have served on a number of Standing Committees with her, on
both home affairs and Northern Ireland affairs, and she always pursues
the issues in the way in which she has this afternoon. We are all
indebted to her for that.
In response to her questions
about why we include a fourth condition in the first limb about
religious or political hostility, we do so because incidents, events
and crimes might reflect the religious and political hostility that
has, I am sad to say, been a feature of Northern Ireland for far too
long, and there could be evidence of that but no evidence that the
perpetrators were involved in a proscribed organisation. The hon. Lady
might say that that is not likely, and perhaps it is not, but if the
Director of Public Prosecutions had evidence that people or a defendant
were involved in political or religious hostility but could not show
that they were members of a proscribed organisation, it would be wrong
if the option of the non-jury trial was prevented in such
circumstances.
Let me
take the example of Whiterock. If there was evidence that a defendant
was involved in the kind of hostility that marked that dreadful event
in Northern Ireland—related as it clearly was to political and
religious hostility—but it was not possible to show that they
were a member of a proscribed organisation, the fourth test in the
first limb would enable the DPP to issue a certificate. Our motivation
is to ensure that all eventualities are covered in relation to the
conflict and criminality with which we are trying to deal, which is the
most serious criminality in Northern Ireland.
We are trying
to limit the power in our provisions in a way that reflects the
particular and ongoing risk in Northern Ireland. The kind of difficulty
that arises from the way in which proscribed organisations—there
are 14 in the list—relate to local communities and the hold that
they have over them would undermine juries and the judicial process. We
seek to deal with that, but
with that alone, and we do not want to extend the provisions beyond the
proscribed organisations that relate to affairs in Northern Ireland. We
do not want to include al-Qaeda and other international terrorist
organisations within the provisions. To answer the hon. Lady’s
sharp question about the Northern Bank, if al-Qaeda had carried out the
Northern Bank raid that would not be covered by the provisions. If one
of the proscribed organisations listed in relation to Northern Ireland
had carried it out, that would be a different matter.
I confirm
that in subsection (9) we are talking about an organisation
“whose activities ... are
connected with the affairs of Northern
Ireland”.
That shows a
distinct relationship between the organisation and the affairs of
Northern Ireland. As desirable as it is that the perpetrators of any
al-Qaeda operations are brought to justice, it could not be done on a
certificate issued by the DPP under the Bill’s provisions. Only
those connected with proscribed organisations related to the affairs of
Northern Ireland could be so brought to
trial.
Sammy
Wilson:
Does the Minister accept that increasingly many of
the terrorist organisations based in Northern Ireland are involved in
international criminal activities, according to briefings by both the
police and the Government? Those criminal activities may stretch to
mainland Britain or the Republic of Ireland. If the people responsible
are apprehended in Northern Ireland and there is a danger that they
would seek to intimidate a jury, would the case be required to go to a
jury trial because the activities were not connected to Northern
Ireland? Would a trial be heard in a non-jury court for criminal
activities that take place outside Northern
Ireland?
Paul
Goggins:
My response to the hon. Gentleman continues my
response to the hon. Member for North Down. We do not have evidence of
jury intimidation by members of international terrorist organisations
that have nothing to do with Northern Ireland issues, but we have
evidence of proscribed organisations in Northern Ireland intimidating
juries. Therefore, the provisions will protect juries and justice to
ensure that trials can be conducted properly. We do not have evidence
that international terrorists are intimidating juries in Northern
Ireland so that justice cannot be done. If we had such evidence, we
might look at the situation again. The only evidence we have relates to
Northern Ireland proscribed organisations, and that is why the
legislation focuses on that issue alone.
In the circumstances
highlighted by the hon. Member for East Antrim, in which a proscribed
organisation in Northern Ireland has links with international terrorist
organisations, those matters relating to members of the proscribed
organisation in Northern Ireland could be dealt with under the
provisions of the Bill. Matters relating to members of other
organisations could not.
We are seeking to ensure that
we have a provision for non-jury trials, because that is still
necessary in view of the risks that exist in Northern Ireland. However,
we
want to balance that by trying to focus the powers
as narrowly as possible within the agreement. We need to continue the
provisions in some form for the future.
Mark
Durkan:
I thank the Minister for taking this intervention.
Perhaps he did so because I tried to be helpful earlier.
The measures apply to people
who are, or who may have been, members of proscribed organisations.
Given the Government’s repeated statements of satisfaction, and
the glowing tributes they have paid to the position and stated future
intentions of the IRA and the Provisional IRA, have any assurances been
given that they do not envisage the measures being used against anyone
who was a member of the Provisional
IRA?
Paul
Goggins:
Considering that we have not agreed on anything
in our proceedings, the spirit remains positive, and I thank my hon.
Friend for that.
When
we look at the list of proscribed organisations relating to Northern
Ireland, we see that, interestingly, the Provisional IRA is not on it.
The Irish Republican Army, which covers a number of organisations
including PIRA, the Real IRA and Continuity IRA, is on the list. I
assure my hon. Friend that there is no hidden agreement lurking around.
The IRA remains a proscribed organisation, and there are no plans to
change that.
I hope
that I have helped to clarify the position for the hon. Lady and that
she accepts the argument. We are seeking to ensure that the powers to
have non-jury trials when necessary are limited to circumstances
pertaining to Northern Ireland.
Lady
Hermon:
I am most grateful to the Minister for trying to
explain why the clause is constructed as it is. I take the view that
there is no such thing as a good terrorist or a bad terrorist. There
should not be a distinction between home-grown terrorism in Northern
Ireland or on the island of Ireland and vicious, nasty, murderous
terrorists, such as al-Qaeda. We have seen what they can do. We saw,
not far from here, in London on 7 July the absolute havoc that they can
wreak.
Two al-Qaeda
suspects have been arrested and charged in Belfast. I am sure that the
case is sub judice and so I will not say anything more about it. These
organisations are ruthless and have murderous intent. They have no
compassion for their co-religionists or anyone else in the pursuit of
their political aims. In my book, when we have a lengthy list of
proscribed organisations in the 2000 Act, I do not want the distinction
that we have non-jury trials only for those home-grown terrorists. They
are not better terrorists. Terrorism is terrorism, as far as I am
concerned.
I
appreciate the Minister’s efforts, valiant as ever, to explain
why the clause has been constructed as it has and why it focuses on
home-grown terrorism, but it is just not an argument that I can buy
into. I am sure that he did not mean this, but he said that the whole
provision is to protect juries. With the greatest respect to him, and
he knows that I hold him in the highest esteem, the whole provision is
not just about protecting
juries. It goes much wider than that. The Liberal Democrats alluded to
this when we did not adopt their amendment, although the Minister is
going to consider it. There is a risk that the administration of
justice might be impaired. That is wider than the intimidation of
juries; it means the intimidation of witnesses.
It is difficult to ask people
to come forward and appear in a jury in a small jurisdiction with
international press coverage. We have a lot of press coverage in
Northern Ireland for a hole host of reasons, sometimes the wrong
reasons. We have a lot of media attention. It takes a very courageous
man or woman to step in as a witness in the case of an al-Qaeda
terrorist who has committed atrocious crimes in Northern Ireland or who
has been associated in some other terrorist activity in Northern
Ireland which might affect all of the United Kingdom.
We have an opportunity in this
Bill. As the hon. Member for Foyle said, we do not want to have to come
back to amend it. So let us get it right when we have the chance to do
so. Let us not just legislate for the present. Let us take into account
what the Prime Minister told us at the end of last week: it will take
at least a generation to defeat this kind of international
terrorism.
Paul
Goggins:
The hon. Lady argues passionately about this. I
understand why. She condemns international terrorism as much as the
rest of the Committee, but does she have any evidence that
international terrorist organisations that have no specific interest in
the affairs of Northern Ireland are threatening and intimidating either
witnesses or members of a jury in Northern Ireland? If she does, I
would be pleased to look at it.
Lady
Hermon:
I am obviously grateful to the Minister for that
very awkward intervention. He is entitled to ask that and the answer is
clear. Does everyone come forward to say, “I have been
intimidated.”? Of course they do
not.
Sammy
Wilson:
Whether or not there is evidence of specific
cases, does the hon. Lady agree that if international terrorist groups
are linking themselves in the supply of drugs, smuggled cigarettes and
arms to groups in Northern Ireland which are prepared to intimidate
jurors on behalf of their members, they are equally likely to
intimidate jurors on behalf of their
associates?
5.15
pm
Lady
Hermon:
Again, I am grateful to the hon. Gentleman for
that helpful intervention. He is in sparkling form this afternoon. He
is absolutely right. He sits on the Northern Ireland Policing Board,
which I do not, so he has access to information that I do not see. His
intervention was spot on.
We have evidence, documented by
the IMC, that there are international links with sophisticated criminal
gangs in Northern Ireland. It beggars belief that the Minister is
asking the hon. Member for North Down to identify and to give evidence
of intimidation. I take my hat off to the people who very courageously
come to my constituency surgery on a Friday evening—they
want to sit in the back office and do not want their names mentioned
anywhere at all—to give information about neighbours who will
slit the throat of their own dog to make sure that they are not
awakened and that nobody’s attention is drawn to the fact that
they are shifting drugs late at night. We are talking about utterly
ruthless people. Those who come to me to say that they are prepared to
allow their homes to be used for police surveillance are enormously
courageous. I do not in any way diminish the threat.
In fairness to the people of
Northern Ireland, we should be much more realistic about the future
dangers to the whole of the United Kingdom. That includes Northern
Ireland, which, as I pointed out this morning, can be accessed through
many ports in the Republic of Ireland, through Shannon and through
Dublin. There are no manned borders—we no longer have
checkpoints.
I want
to get this legislation right. The Minister has argued that there
should be a discretion for the DPP. I disagreed, but we all want to get
the legislation right now, so that we do not have to come back later
and amend it to take account of changing circumstances. For goodness
sake, let us allow for flexibility instead of tying the hands of the
DPP. The Minister has managed to argue against himself in the last 15
minutes. He wants us to give the DPP discretion in circumstances that
he cannot identify, but would also tie the hands of the DPP. Let us not
give al-Qaeda or any other hideous proscribed terrorist organisation a
fair wind through Northern Ireland to wreak havoc, and then stand back
wringing our hands in regret when somebody is dead. Let us accept the
amendment today and not argue about it. Accept the amendment and give
flexibility to the DPP. I rest my case.
Question put, That the
amendment be
made:—
The
Committee
divided:
The
Committee divided: Ayes 2, Noes
18.
Division
No.
3
]
AYESNOES
Question
accordingly negatived.
The
Chairman: I say to the hon. Members for North Down and for East
Antrim that I, too, have been on my own on many occasions during my
parliamentary
career.
Lady
Hermon:
I beg to move amendment No. 26, in
clause 1, page 2, line 28, leave
out ‘in an enduring family
relationship,’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 7, in clause 1, page 2, line 29, leave out paragraphs (d)
and
(e).
Lady
Hermon:
I am encouraged to know that you have been on your
own on many occasions, Sir Nicholas. I am most grateful for
the right thinking of the hon. Member for East Antrim—a rare
occasion. I will move on swiftly, before the hon. Member changes his
good mood.
I take my
hat off to whoever drafted this legislation, which is full of all sorts
of idiosyncratic drafting, not least subsection
(10):
“For the
purposes of this section a person (A) is the associate of another
person (B)
if”—
then there is
a definition and we have a number of
choices:
“(a) A is the
spouse or a former spouse of
B,
(b) A is the civil partner or
a former civil partner of B,
(c)
A and B (whether of different sexes or the same sex) live as partners,
or have lived as partners, in an enduring family
relationship,
(d) A is a friend
of B,
or”—
lastly—
“(e)
A is a relative of
B.”
My
amendment would leave out the curious five
words—
“in an
enduring family
relationship”.
I cannot
understand why they have been introduced only in paragraph (c). We need
the Minister to explain the meaning of “an enduring family
relationship”. Does “family” mean that there have
to be children? With regard to paragraph
(a)—
“A is the
spouse or a former spouse of
B”—
it does not
matter that there was not an enduring family relationship, with no
children. With civil partners, it does not have to be an enduring
family relationship. In heaven’s name, why has the phrase only
been introduced in paragraph (c)? It stands out because it is so
unusual and odd in the examples given for the definition of
“associate”. I do not see any rhyme or reason for that
and I would like the Minister to explain in his usual wonderful
style—colourful and imaginative—why “enduring
family relationship” has to be here. Why
“enduring”? Why “family”? Are children
involved? Why are those words not included elsewhere in subsection
(10)?
Mr.
Alan Reid (Argyll and Bute) (LD): Amendment No. 7 would
delete paragraphs (d) and (e), where an associate is defined as a
friend or a relative. The amendment returns to a point that we made on
Second Reading. I believe that the definition of
“associate” is generally too broad and has to be
tightened.
Paragraph
(d) defines an “associate” as “a friend”
and paragraph (e) as “a relative”, but how do we
determine whether a person is a friend or relative of another person?
The terms are open to many differing interpretations. For example, two
people might be cousins but might not have seen each other since
childhood. On the other hand, are we going to include second, third or
fourth cousins? Where do we stop? That is an important issue as to
whether or not a trial is conducted with a jury.
I want the Minister to tell us
whether “friend” or “relative” have been
used in other legislation. Is there a
legal precedent to determine their definition? Unless the Minister can
convince us, the terms are far too vague to be
included.
Mr.
Laurence Robertson (Tewkesbury) (Con): I am following the
hon. Gentleman’s argument. Does he not believe that there is a
distinction between friends and relatives? I understand his point about
third and fourth cousins, but whether someone is a relative can be
determined fairly, which is not necessarily the case with a
friend.
Mr.
Reid:
The hon. Gentleman makes an important
point—relatives and friends are different. The Government should
list relationships that will count, but that would be impossible in the
case of friends. If they do not do that, the wording will be far too
vague.
Sammy
Wilson:
Does the hon. Gentleman accept that although the
terms “friend” and “relative” are fairly
vague, the second condition must also be met? Whatever relationship
exists, there must still be a risk that it will lead to jury tampering
or the intimidation of a
juror.
Mr.
Reid:
I accept that there has to be a risk, but without
definitions of “friend” and “relative” the
wording is far too vague. We should remember that under the clause the
DPP has the absolute right to take decisions and cannot be challenged
by a court. If the DUP—I mean the
DPP—[Interruption.] I hope that it will not be the DUP
that takes the decision. The DPP will take the decision, so we need
clear definitions. As I said, we do not know where the definition of
relative will end. I hope that the Minister will give examples from
other legislation and reassure us that the definitions are
clear.
Mark
Durkan:
For the same reasons as others, I do not support
the amendments, although I have some sympathy with the points made in
support of them. When reading subsection (10) I begin to feel as though
I am at a meeting to put together the bones of a soap opera: A can be
the spouse or former spouse of B, his civil partner, friend, relative
and so on. Those definitions are clearly
wide.
The most
disturbing point that the Minister made was that the certificate will
not indicate the grounds being used to justify it. A defendant will not
know whether they are being sent for a non-jury trial because of a
relative, friend or other reason. No information will be given: neither
the defendant nor the court will know. That will put people in an
impossible
situation.
Lembit
Öpik:
Does the hon. Gentleman agree with the
half-facetious point that since almost everyone I have met in Northern
Ireland, apart from a few Estonians, are relatives or friends of each
other, this is the Government’s back-door way of abolishing jury
trial in Northern Ireland for
ever?
Mark
Durkan:
That could be so. In fact, in many parts of
Northern Ireland the word “friend” is used to mean a
relative. To say that somebody is your friend indicates that they are a
cousin or that there is some family connection. I doubt whether
Ministers were aware of that subtlety of dialect in parts of Northern
Ireland.
The clause and other provisions
in the Bill will mean that people affected by the list in subsection
(10) will not know on what grounds they have been given a non-jury
trial, and they will not be able to say anything. I can imagine that a
defendant might well be puzzled and stressed and want clarification of
what has been said about him.
Many people
in Northern Ireland are related to those who have been members of
proscribed organisations, but have themselves never given those
organisations any support and have views diametrically opposed to
theirs. There may also be many people in senior positions with such
relatives. So although I have a lot of sympathy with the attempt to
restrict the list, the problem is that it does not go far enough,
because I do not think that we should be making the provision for
non-jury trials at all. That is why I would not strongly oppose the
amendments. However, because of my reservations about continuity
Diplock courts, I will not support
them.
5.30
pm
Paul
Goggins:
The hon. Member for North Down has asked why the
provision concerning enduring family relationships in clause 1(10)(c)
has been included. The reason is that we need to say more about the
nature of the partnership. Other subsections refer to the spouse or
former spouse, civil partner or former civil partner, and the nature of
those relationships is defined in legislation, so there should be no
confusion. However, in paragraph (c), we need to define the nature of
the partnership. Business partners could not be included, for
example.
Paul
Goggins:
Because we are defining very precisely what we
mean by partners in an enduring family relationship—people who
share a life together. “Enduring” implies a length of
time. “Family relationship” implies sharing a house and
common facilities, which normally happens in families. We do not intend
the provision to cover business partners, romantic partners or people
who meet up every day of the week at the same time and place to go to
the same pub and carry on the same activities. They will not be caught
by the
provision.
I
say again to the hon. Lady, as gently as I can, that it is important to
ensure that we have the capacity for trials without jury in Northern
Ireland—for all the reasons that we have heard, we want to limit
them for use only when required. The provision explains the meaning of
the term “partnership” in the present circumstances. The
term “enduring family relationship” explains that the
context is a length of time and shared household facilities. Those
matters are defined in statute in relation to spouses and civil
partners, but they are not defined in respect of other
relationships.
Mr.
Robertson:
In that case, I admit to being confused as to
what the Government are trying to achieve. To qualify under this
provision surely means that there is some kind of relationship. As the
hon. Lady has said, what difference does it make whether the
relationship is an enduring family one or one in which the parties live
together? If they live together, could they not qualify to some extent
as friends? That may not necessarily be the case, but given that
paragraphs (d) and (e) are so broad, I should have
thought that they would. The Minister has said that business partners
would not qualify, but surely business partners have pretty much an
everyday
relationship.
Paul
Goggins:
It may well be that in that kind of relationship
the description “friend” would be adequate. What we are
seeking to do in paragraph (c) is to extend what is covered by
paragraphs (a) and (b). Paragraph (a) clarifies that spouses are
covered, and the term spouse is defined in legislation. Paragraph (b)
covers civil partners, which is also a term defined in legislation.
There are other people, however, who live together in enduring family
relationships and who are neither spouses nor civil partners. We simply
wanted to extend the explanation of the provision’s intention by
including an additional paragraph, which seeks to describe people who
share a family relationship over a period of time who may not be
spouses or civil partners but who may have an enduring family
relationship. It could even be that they are friends and that they
qualify in that way, but we do not want there to be the possibility of
omitting them. It is important that such situations are brought to the
attention of the DPP, which is why the provision has been
included.
In looking
for an explanation for paragraph (c), the hon. Gentleman needs to look
at paragraphs (a) and (b), not paragraphs (d) and (e). We are seeking
to fill a small gap in our explanations.
Lembit
Öpik:
In which case, the Minister needs to explain
the definition of “friend” and explain the process by
which the friendship will be proved. He must be aware that, if he is
trying to avoid the risk of corruption, there will be a strong
incentive for people who are friends not to admit
it.
Paul
Goggins:
The hon. Gentleman invites me to move on to my
next point, which I am happy to do, and to respond to the points made
by the hon. Member for Argyll and
Bute.
Mr.
Bone:
If two people are living together as partners, at
what stage do they qualify for an enduring family relationship? Is it
three months, six months or a
year?
Paul
Goggins:
The DPP will have to make that judgment, as he
will have to make a similar qualitative judgment in relation to the
description of “friend” and “relative”.
There is a qualitative judgment to be made, and it will be for the DPP
to make it. We do not seek to prescribe that in absolute terms, as the
hon. Member for Argyll and Bute has suggested that we
might.
If we were to
accept the amendment tabled by the hon. Member for Argyll and Bute, the
only people who would be covered by the provision would be current or
former spouses, civil partners or people living
together
“in an enduring
family
relationship”,
which
would leave a large gap in the provisions. If he feels that the clause
is drawn too widely, there is always the second limb of the test, which
states that there has to be a risk of the administration of justice
being impaired. I remind him that the test in clause 1(10) is not a
casual one and does not stand on its own, but sits alongside the test
regarding administration of
justice.
Under
the hon. Gentleman’s amendment, if evidence were brought to the
DPP’s attention that a major player—a
leading member of a proscribed organisation—was making
preparations to intimidate jurors because his son happened to have been
charged with a serious offence that was about to be heard by a jury in
court, the DPP would not be able to issue a certificate, which would
leave a large gap in our provisions. Although the nature and quality of
the friendship or family relationship, or the length of the enduring
family relationship, is a matter for judgment, it is important that the
DPP can exercise their judgment, otherwise some serious cases could be
missed, certificates might not be given and there could be major
threats to and intimidation of juries and witnesses in Northern
Ireland. We want to avoid that, which is why these provisions are
necessary.
I
invite the hon. Member for Argyll and Bute to withdraw his
amendment.
Lady
Hermon:
I am grateful to the Minister for trying to
explain the drafting of clause 1(10). He has made a good effort, but I
think that we are splitting hairs. For example, in respect of a spouse,
we have no idea how lengthy the marriage will be; we just know that a
box will have been ticked and that the people were married at some
stage. If we are talking about a former spouse, we know only that they
were divorced or separated at some stage. There is no requirement for
consideration of the length of time that the marriage may have
lasted—it does not have to be enduring.
Unfortunately, although the
Minister has acknowledged that the Government were hoping to cover a
relationship, including a house and all the things that would show some
sort of commitment, he did not answer my specific question about
whether that means that there have to be children. The term
“enduring family relationship” implies more than owning a
house, which is the only thing that the Minister has alluded to. We
have given the DPP a major headache in trying to decide who falls into
the categories in subsection
(10).
Paul
Goggins:
As always, I am seeking to clarify the points. It
is not necessary for there to be children within an enduring family
relationship. A family can exist without children, so there may or may
not be children.
Lady
Hermon:
That is the answer that I expected the Minister to
give, because, of course, paragraphs (a), (b), (d) and (e) do not
mention family. Paragraphs (a) and (b), in particular, do not mention
having a family or having children. It would have been ludicrously
discriminatory if the provision depended on the presence of children
when people live together as partners, but not in the cases of civil
partnerships and marriages. That would not have been a tenable
position.
I would be
happier if the Minister were to say to the Committee that he and his
officials will reflect on the matter, because I have some difficulty in
deciding whether, for example, paragraph (b) refers to a civil partner
or a former civil partner. Surely that cannot be mutually exclusive of
being a relative or, indeed, a friend, which are categories (d) and
(e).
The list is very
difficult, and we are giving the DPP a difficult
task.
Paul
Goggins:
Let me try to be constructive. There are issues
here which will divide this Committee, because there are issues of
principle and genuine disagreements. In trying to set out a definition,
we are seeking the best and the tightest definition. I discount
proposals, however, that we should leave out relatives and friends,
because I think that they should be included. We are trying to define
the nature of a family relationship. Some of this is already set in
statute, and some of it is not.
I will reflect on our
discussion. If there is a better way of expressing this, I would be
more than happy to come forward with a suggestion. If there is not, the
hon. Lady will at least know on Report that I have thought about
it.
Lady
Hermon:
I want to commend the Minister on the wisdom of
his decision to reflect upon this and to come back to it on Report. I
beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
The
Chairman:
Because clause 1 contains a great deal of the
meat of the legislation, I am prepared to allow what I hope will be a
short stand part debate. Hon. Members may raise matters that we have
not discussed in concentrating on the main issues raised by the clause.
This is, therefore, a clause stand part
debate.
Question proposed, That the clause stand part of the Bill 5.45
pm
Lembit
Öpik:
I am grateful for this opportunity. However,
it will not be constructive if we all simply repeat the arguments that
we have already made. I would like to discuss why I oppose the clause
as it stands.
The
Minister has not taken on board our strategic concerns about not
permitting a judge to be at the heart of the issue of a certificate.
His adherence to an administrative approach is profoundly wrong for the
reasons that we have discussed. Given the debate that we have just had,
it is quite obvious that many of us have the gravest reservations about
what the definitions actually mean. I was only half joking when I said
that it will be difficult to find individuals who do not fall foul of
all the conditions—a large proportion of the Northern Ireland
population is related to itself. In addition, if individuals try to
cheat the system, they are unlikely to volunteer information regarding
their relationship with other people. The Minister must give some
thought to that.
I am
encouraged by Minister’s indication of his willingness to
consider the import of amendments Nos. 3 to 6, and I hope that
he will take on board the points that my hon. Friend the Member for
Argyll and Bute has made about the wording, which is once again vague
and leaves great latitude for interpretation. That latitude is bound to
be taken advantage of by those people who have evil intentions. It
would make it easier for everybody if, on reflection, he chose to make
a few minor modifications, perhaps in line with what the hon. Member
for North Down has
suggested.
I oppose
this clause. We have already discussed the detail of the provisions
involving the DPP and the circumstances in which the non-jury trial
option might be used. We have also touched on the Secretary of
State’s comments on Second Reading that national security and
intelligence matters could be considered in that. I want to share one
of our fundamental concerns with the Committee, which is that the
provisions have implications for how things will work out and be seen
to work out in the devolution of policing and justice. The clause gives
a key role, which is quite controversial, to the DPP to do something
that the Government have assured us would not be provided
for.
The joint
declaration of 2003 made it clear that the emergency provisions were
going to go. The Government amendments to the Terrorism Act 2003 gave
effect to the commitments in the 2003 joint declaration, but now they
have been reversed. When those amendments removed the Diplock courts
and made sure that they would not exist after July 2008, we were also
debating the options for the devolution of justice and
policing.
Anyone
looking at those debates taking place in parallel would see that, with
the arrival of justice and policing devolution, a devolved Minister
would not be in a position to face questions about decisions on the use
of non-jury trials, even though he they might have their own views or
concerns. They would not be in a position to know why such decisions
were taken, because, as the Secretary of State suggested on Second
Reading, the DPP would be taking them on the basis of receiving
information from MI5 or a similar source. The devolved
Minister—a devolved committee in the Assembly might also be
interested or concerned, because no doubt lawyers, defendants and other
people would be writing to it—would be in the difficult position
of having to say that they knew nothing, could know nothing and
potentially could do nothing.
Lady
Hermon:
Will the hon. Gentleman enlighten the Committee:
does he believe in an independent prosecution service? We legislated
for such an independent prosecution service not so long ago in this
House. I greatly admire the independence of the DPP and hate the
thought of a politician being able to call them up and influence their
decision. Do the hon. Gentleman and his colleagues not support the idea
of the independence of DPP within the Public Prosecution
Service?
Mark
Durkan:
I assure the hon. Lady that we absolutely do. I
did not say that any Minister would wish to influence decisions; I said
that they would not be in a position to know why decisions were made or
anything else about them. The fact is that a Minister will inevitably
face questions, whether they are from lawyers, defendants or members of
committees.
If there
is a pattern of non-jury trials and no information is given in the
certificates, people will say that we should at least know on what
grounds people are being referred to a non-jury trial. People will
question the procedure and protest the fact that they cannot know why
the certificates were supposedly issued. Lawyers will protest at
that.
If a devolved
Minister is meant to simply defend the status quo, then they will be is
in a very constrained and difficult situation. That is why we said on
Second
Reading that the Bill is pregnant with implications and complications
for the devolution of justice and policing. Perhaps the Minister will
clarify the plans for the devolution of justice and policing. The
provisions are not renewable but permanent. Will the amendments be
subject to Westminster legislation or can they be altered, amended or
repealed by the devolved Assembly after devolution? Will the Minister
clarify which it is to be? If they are to be amended by the Assembly, I
assume that cross-community support will be needed before they can be
altered.
In
a sense, the Bill means that Diplock courts will be born again just
ahead of the devolution of justice and policing. They will become part
of the suite of devolved justice arrangements, which can be changed
only on the basis of cross-community support. On current form, that
will not happen unless and until the DUP says so. Not only will we have
continuity Diplock courts, but essentially we will have DUP-lock
courts. Again, I ask the Minister whether Sinn Fein fully realises
that. Is Sinn Fein in on it, or has it slept
in?
Mr.
Robertson:
As you rightly say, Sir Nicholas, this clause
is the meat of the Bill and it has been discussed for the best part of
two sittings, as is right, so I shall keep my remarks short. I entirely
understand where the hon. Member for Foyle is coming from. That said, I
support the clause because it at least moves in the right direction. It
shifts the emphasis and makes a presumption for a trial by jury. The
reasons why a trial should not be by jury have to be shown, although I
accept that they do not have to be shown to the defendant.
I retain my
concern. I listened to the Minister carefully and I think that it
should be a matter for the Lord Chief Justice of Northern Ireland to
decide. I am still concerned that the person who will carry out the
prosecution will decide on the mode of trial and I do not think that
that is correct. However, that is not a strong enough objection to
cause me to vote against the clause.
We discussed subsection (10)
fairly briefly, and a number of interesting points came up. I accept
that it is difficult to determine what an associate is, but with
respect to the Minister the debate showed that there are a number of
holes in the attempt that has been made. He generously offered to go
away and consider it, and I urge him to do so as there are a number of
holes. I cannot see why the words “enduring family
relationship” are used. It is difficult to define a friend. I
cannot see why a business partner should not qualify or why a spouse or
parent should not qualify, too. However, with those few comments I
shall give the clause fairly guarded support, but support nevertheless.
Sammy
Wilson:
Despite the support that I have given to some of
the amendments moved by the hon. Member for North Down, I do not
believe that they are sufficient to cause us to vote against the clause
in its totality. We believe that non-jury courts are essential in some
circumstances in Northern Ireland. The implication in some of the
opposition to the use of non-jury courts is that somehow or other the
justice in non-jury courts is different from or of a lesser standard
than that in a jury court. That was never the purpose of non-jury
courts; the purpose of non-jury courts was to ensure that justice was
done. Justice was done by stopping the interference of those who would
wish to subvert the justice system by intimidating jurors. That
is one of the reasons that I do not have a great
deal of concern about the continued use of non-jury courts. I see them
as a means of ensuring that the integrity of the justice system remains
and is protected, and that people who would have been guilty of
horrific offences are brought to justice.
Lembit
Öpik:
Is not the hon. Gentleman conscious of the
fact that he can achieve that quite straightforwardly by relying on the
Criminal Justice Act 2003? We do not need separate and distinct
legislation for Northern Ireland to achieve that
goal.
Sammy
Wilson:
I do not accept that. Clause 1 quite clearly gives
the scope to the DPP if he is sure that certain conditions have been
met. We have discussed whether those conditions are tightly defined. He
must be satisfied that there is a risk to the administration of
justice. I believe that the safeguards are
sufficient.
I do not
accept the point made by the hon. Member for Foyle that the provisions
will make the devolution of policing and justice more difficult. If
anything, they will probably build in a further safeguard for those
concerned about that devolution and whether community confidence is
sufficient for it to work. Those who would want to question a Minister
about why a case is being taken to a non-jury trial would do so with
one view—to change the outcome. They would be seeking
ministerial interference. In the context of Northern Ireland devolution
and the administration of policing and justice, a situation that allows
even the thought that the administration of justice might be interfered
with in that way would make it more difficult to gain the confidence
required for
devolution.
Mark
Durkan:
First, questions or representations to a
Minister might well come in circumstances where somebody finds
themselves subject to a non-jury trial and they or their legal
representative challenge the decision. It is as much as if to ask,
“How can you be the Minister for this? Is this what you signed
up for? This isn’t what you as Minister promised us would flow
from the Good Friday
agreement.”
Secondly,
Members of the Assembly might want at the end of a given year or longer
period to question the pattern of use of the power, or might have
concerns about the number of times that it has been used, but there is
nowhere particular for those questions to go. The hon. Member for North
Down said earlier that I was trying to fetter or qualify the
independence of the Director of Public Prosecutions, but we heard from
the Secretary of State that the DPP will be influenced by MI5. Elected
politicians will have no way of knowing what is going on and will not
even be allowed to
ask.
Sammy
Wilson:
I note the hon. Gentleman’s remarks,
although I must say as a member of the Northern Ireland Policing Board
that of course Members had questions on many occasions about why the
police had done something or not done something else. When it was
explained that security issues were involved and therefore the police
would not discuss it with the Policing Board, I never noticed SDLP
Members jumping up and down. They accepted that there would be times
when, in the interests of security and the
protection of intelligence sources, such issues
could not be discussed. There is an acceptance that
it is not always possible to discuss devolved issues in public or for
them to be open to public scrutiny.
6
pm
Sammy
Wilson:
I return to the point that I made at the start,
which is that the reason why many would want the Minister to have input
is exactly so he could influence. If that were ever introduced, the
devolution of policing would be made that much more difficult. In his
own remarks the hon. Gentleman indicated that it was a divisive issue
in Northern Ireland and the fact that he said that, were it to be
subject to a cross-community vote it would not get through the
Assembly, shows that it is still a confidence issue. For that reason,
the Bill’s approach is correct and we shall support the
clause.
Mr.
Bone:
There is just one thing that I want the Minister to
make clear. In respect of clause 1, I am concerned about voting for a
massive increase in non-jury trials in Northern Ireland. What does the
Minister estimate will be the difference between the current and future
situations if the measure is
passed?
Paul
Goggins:
When my right hon. Friend the Secretary of State
said in August 2005 that we would repeal part 7 of the Terrorism Act
2000, it was made clear that the issue of non-jury trials would require
further hard thinking and decisions. A considerable amount of work has
been done since then to deal with the issue in the context of a
reducing number of non-jury trials under the Diplock
system—there were 354 in 1987 and 49 in 2005. However, if there
were jury trials in all cases there would still be a serious risk of
jury intimidation and that justice would not be done.
We resolved to find a way of
changing the presumption in favour of trial by jury but ensuring that
in the small number of cases in which it was necessary a non-jury trial
would still be available. We adopted an administrative approach to the
decision making; some hon. Members disagree with that but we believe
that it is right way to go, given the sensitive information that is
often dealt with. The DPP is in a good place and has the right kind of
experience and knowledge to make that
decision.
Clause 1
describes the statutory test and states the conditions in respect of
membership of proscribed organisations and the nature of religious and
political hostility. Subsection (2)(b) describes the crucial second
limb of the test: a risk that the administration of justice might be
impaired.
I agreed to
take away and consider at least two issues raised in the debate and I
will of course look at the whole debate carefully, too. I am prepared
to consider seriously the wording “administration of
justice” and “interests of justice”, as suggested
by the hon. Member for Montgomeryshire, although with no commitment as
to the outcome. I will also look again at the issue of family
relationship to see whether we can find greater common
ground.
My hon.
Friend the Member for Foyle raised the devolution of justice and
policing. I will not widen the debate further from
the exchange between the two hon. Members, but there is considerable
discussion to be
had on that matter. In relation to the Bill, we need
to give the issue some thought because it is a criminal justice matter,
and criminal justice can be devolved, but it also relates to issues of
national security which, as my hon. Friend knows, will not be
devolved.
I want to
think a little more about the matter and I may write to the Committee
outlining our current thinking in order to inform our future
debates.
Question
put:—
The
Committee divided: Ayes 14, Noes
3.
Division
No.
4
]
AYESNOES
Question
accordingly agreed to.
Clause 1 ordered to stand
part of the
Bill.
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