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7 pm
Mr. McNulty: I beg to move amendment No. 60, page 20, line 39, at end insert—
‘( ) In section 1 of the Justice and Security (Northern Ireland) Act 2007 (c. 6) (issue of certificate for trial without a jury), after subsection (6) insert—
“(6A) The Director of Public Prosecutions for Northern Ireland may not issue a certificate under subsection (2) if—
(a) the proceedings are taken in Northern Ireland only by virtue of section 28 of the Counter-Terrorism Act 2008, and
(b) it appears to the Director that the only condition that is met is condition 4.”.’.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss the following amendments:
No. 111, page 20, line 39, at end insert—
“(6A) Where this section applies to an offence committed in Scotland, proceedings may only be taken in another part of the United Kingdom following consultation with, and with the consent of, the Lord Advocate.”.
No. 112, in clause 30, page 21, line 14, leave out first ‘court’ and insert ‘jury’.
No. 79, in clause 33, page 22, line 13, after ‘property’, insert ‘in respect of’.
No. 80, page 22, line 14, after ‘which’, insert ‘the court is sure that’.
No. 81, page 22, line 17, leave out ‘had reasonable cause to suspect’ and insert ‘suspected’.
No. 82, page 22, line 22, after ‘which’, insert ‘the court is sure’.
No. 83, page 22, line 24, leave out ‘had reasonable cause to suspect’ and insert ‘suspected’.
No. 84, page 22, line 29, after ‘which’, insert ‘the court is sure’.
No. 85, page 22, line 35, after ‘which’, insert ‘the court is sure’.
No. 86, page 22, line 40, after ‘which’, insert ‘the court is sure’.
No. 87, page 22, line 43, after ‘property’, insert ‘in respect of’.
No. 88, page 23, line 1, after ‘which’, insert ‘the court was sure was’.
No. 89, page 23, line 1, leave out ‘is’.
No. 90, in clause 34, page 23, line 11, after ‘which’, insert ‘the court is sure that’.
No. 20, in clause 35, page 24, line 19, after ‘section’, insert
‘and where the court is satisfied on the balance of probabilities that the person is the owner or otherwise has an interest in anything which otherwise might be subject to forfeiture under that section and considers that it would be unjust to that person to make an order of forfeiture the court shall not make such an order but shall make such other order as seems to the court to be just.’.
No. 91, page 24, line 23, after ‘person’, insert
‘or on any person dependent upon the convicted person’.
No. 92, in clause 37, page 27, line 16, at end insert
‘and where the court is satisfied on the balance of probabilities that the person making the claim is the owner of or otherwise has an interest in anything which otherwise might be subject to forfeiture under this section and considers that it would be unjust to that person to make an order of forfeiture, the court shall not make such an order but shall make such other order as seems to the court to be just.’.
No. 93, page 28, line 2, at end insert
‘and where the court is satisfied on the balance of probabilities that the person making the claim is the owner of or otherwise has an interest in anything which might otherwise be subject to forfeiture under this section and it considers that it would be unjust to that person to make an order of forfeiture the court shall not make such an order but shall make such other order as seems to the court to be just.’.
Mr. McNulty: These amendments relate to three distinct provisions in the Bill: UK-wide jurisdiction, aggravated sentencing and forfeiture. Clause 28 creates UK-wide jurisdiction for terrorism offences. A number of concerns about the clause were raised in Committee, and I hope that the House will agree that Government amendments Nos. 60 and 9 respond to those. It was pointed out fairly in Committee that there was at least potential for the provisions of Clause 28 to mean that an individual could be transferred to the Northern Ireland jurisdiction and fall straight under the non-jury trial provisions there. As I said in Committee, that was never the Bill’s intention on jurisdiction, which is why I undertook to examine the matter further.
Perhaps I may explain some of the background to this matter. The non-jury trial arrangements in the Justice and Security (Northern Ireland) Act 2007 are extremely narrowly drawn, not least in the wake of the peace process, which is happily unfolding. They are designed to deal solely with the residual risks to the administration of justice created by community and paramilitary-based pressures on jurors in Northern Ireland. Sadly, jurors in Northern Ireland remain vulnerable to threats to the safety of themselves and their families, and bribery and blackmail are used to influence jurors to reach particular verdicts. Those issues are exacerbated by the small, close-knit nature of communities in Northern Ireland, and they remain so acute that the special arrangements in the 2007 Act were put in place to ensure that fair trials could be delivered and that the safety of jurors could be protected. There is a presumption for jury trial in all cases, and non-jury trial will be available only in exceptional cases. That is the opposite of the Diplock arrangements, whereby the default was non-jury trial for certain offences. I have been told, nay upbraided, by the Home Office lawyers that I cannot call this Diplock by shorthand and that I must refer to non-jury trial.
A non-jury trial can take place only if the Director of Public Prosecutions for Northern Ireland issues a certificate on the basis that he is satisfied that one or more of the conditions in the legislation is met and, in view of that, there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.
The conditions are the following: first, that the defendant is a member, or an associate of a member, of a proscribed organisation connected with the affairs of Northern Ireland; secondly, that the offence was committed on behalf of a proscribed organisation connected with the affairs of Northern Ireland; thirdly, that an attempt has been made to prejudice the investigation or prosecution of the offence by, or with the involvement of, a proscribed organisation connected with the affairs of Northern Ireland; and fourthly, that the offence was committed as a result of, in connection with, or in response to religious or political hostility—the serious sectarianism that still prevails, happily only in some small part, in Northern Ireland.
As the House will have noticed, the first three of the conditions are expressly limited to proscribed organisations connected to the affairs of Northern Ireland. Although the fourth condition implicitly refers to Northern Ireland, not least because it is in a Northern Ireland-related Act, it could be interpreted as allowing the transfer of cases to a non-jury trial in Northern Ireland where the terrorism is not connected to the affairs of Northern Ireland.
I appreciate that—rather laboriously—amendment No. 60 would thus ensure that a case could not be transferred to a non-jury trial solely on the basis of that fourth condition. In other words, a prosecution could be transferred from Great Britain to a non-jury trial in Northern Ireland only where it was connected to the activities of a proscribed terrorist organisation in Northern Ireland and where the other conditions set out in the 2007 Act and clause 28 were met. The likelihood of circumstances arising where all those conditions would be met is extremely low, and, as such, I believe that the amendment provides sufficient reassurance that a defendant could not be transferred to Northern Ireland under the jurisdiction provided by clause 28 with the result that he be tried without a jury—the Committee mentioned that—unless his offence was connected with a Northern Ireland terrorist group, in which circumstance we feel that it is appropriate to preserve the DPP for Northern Ireland’s discretion to provide for the trial to take place without a jury under the regime that has been put in place to take account of the particular challenges facing the administration of justice in Northern Ireland.
The non-jury trial system in Northern Ireland is risk-based, which means that only those cases where non-jury trial is necessary to ensure that the administration of justice is not impaired are tried by a judge sitting alone. I thought that the reasons outlined in the Committee’s debate were perfectly fair, and, as I indicated, it was not the Government’s intention to have people presented to a non-jury trial in Northern Ireland, erroneously or otherwise, in that context. The amendment is a laborious if elegant way—that might be a contradiction in terms—to get round that and to ensure that what the Committee did not want to happen does not happen.
Amendment No. 9 arises from the deliberations of the Committee. It proposes to remove subsection (7) of clause 28 to ensure that measures providing UK-wide jurisdiction for terrorist offences cannot have retrospective
application. The Committee was, quite fairly, at pains to express that point. Although we could envisage a cross-border incident occurring before the jurisdiction provisions are implemented, that is unlikely, and if it were to occur there could be separate prosecutions, as at present. I am therefore content to remove the subsection, and I ask hon. Members to support the amendment.
If I may, I shall speak just to the Government amendments. I shall, of course, respond to hon. Members as they propose their own measures. I might, thus, have some time to get rid of this fly, which has been pestering me for the past half an hour.
Mr. Grieve: First, may I say to the Minister, as I said earlier, that I welcome the Government’s important concession in amendment No. 60? He has listened to the concerns that were expressed, and I was happy to accept his assurances in Committee that the purpose of transfer to Northern Ireland was not to enable somebody to be tried there without a jury when the offence was of a nature that would have been tried with a jury here. I am grateful to him for having taken that on board.
I also welcome the fact that the Government have signed up to what was originally our amendment No. 9—it is now Government amendment No. 9—which removes the ability for there to be retrospectivity. I wish the Government had taken the same view on amendment No. 11, on which we voted only a short time ago, because the provision that it addresses is also completely retrospective in its application. At least half the cake is better than no cake at all in terms of removing the most objectionable little bits that surface in pieces of legislation.
I am conscious that the Liberals have tabled amendment No. 111, which seeks to ensure the concurrence of the Lord Advocate in prosecuting decisions. The Lord Advocate’s evidence to the Public Bill Committee made it clear that she did not consider that there was any requirement for concurrence in respect of the Lord Advocate, because she simply did not envisage that, given the conventions and the strength of the relationship between her office and those of the Attorney-General and the DPP, there was any requirement for it. Although I fully understand the Liberal Democrats’ motives for tabling the amendment, the Lord Advocate did not ask for such a provision and I would find it difficult to support something that is not being requested by the independent lawyer in charge of the prosecution service in Scotland.
Mr. Alistair Carmichael (Orkney and Shetland) (LD): I am not without sympathy for that latter point, and it will perhaps have more significance tomorrow than today. The relationship to which the Lord Advocate referred is a dynamic one, and significant changes in it have taken place within the past 12 months. Is it not sensible to make provision for the day when perhaps the relationship is not working, so that it is clear who has the final say?
Mr. Grieve: I understand the point that the hon. Gentleman makes. Perhaps because I am a Conservative, I am a believer in conventions. If a convention appears to work and not to require further amplification, I am loth to interfere. The Government, of course, have been good at interfering with conventions and of throwing them in the dustbin of history, and that is regrettable.
It is worth noting that the Lord Advocate is somewhat unusual in that she has survived a regime change in Edinburgh. She has also survived a slight and subtle, but significant, change in her constitutional role.
Given what the Lord Advocate has said so emphatically, I would be loth to interfere. I appreciate the hon. Gentleman’s anxiety, and perhaps I can reassure him by saying that if there were to be a serious difference of view on an issue of the kind we are discussing, it would create a mini constitutional crisis and the House would have to return to the issue. The smooth running of constitutions depends on more than our getting a series of rules right. If an established relationship is so clear and self-confident—at both ends—that no one has ever seen a problem on which there has not been a meeting of minds, I would be loth to interfere with it.
Mr. Carmichael: Can the hon. and learned Gentleman see any disadvantage in adding the proposed words to the Bill?
Mr. Grieve: The disadvantage would be that where a relationship works well without such a requirement—and is therefore seen perhaps as a pillar of the good working of our Union, which I support—I would not wish to see its having to be qualified with even the suggestion that it would require some statutory clarification in certain circumstances. For that reason, I would not support the amendment.
The Liberal Democrats have also tabled amendment No. 112, which would require a jury to determine the issue of terrorist connection. We debated this point extensively in Committee, and I can see the force of the argument. However, as a lawyer, I am mindful that such issues are currently resolved on the voir dire by the judge alone. I shall be interested to hear the Minister’s comments on the point, but I would be hesitant about interfering with that principle just because a case is a terrorist case.
Last, but by no means least, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) has tabled several amendments on forfeiture, which are highly pertinent. He has not had an opportunity to develop those amendments, and I shall finish speaking and let him do so. I hope that the Minister will respond in detail to what he has to say, because the issues are relevant. We need to protect the individual and when passing such legislation we need to ensure that it works fairly.
Tom Brake: I wish to speak in favour of the Liberal Democrat amendments Nos. 111 and 112, and to respond to the other amendments in the group. My hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) has already highlighted the reasons why we tabled amendment No. 111. Elish Angiolini has confirmed that the relationship is a good working relationship and she does not feel that the amendment is necessary, but the relationship is presumably dependent on the different personalities who are in post, and those can change to personalities that might work less well together. That is why we think that it is appropriate to include the need for consultation.
Mr. McNulty: The logic of that argument is that we should also include a presumption that the Attorney-General must afford permission for any offence committed in England and Wales to be transferred elsewhere. Why not include that if one does not trust the relationship?
7.15 pm
Tom Brake: That may be a point that my colleagues in the other place may wish to pursue. However, we are discussing amendment No. 111, which deals specifically with the relationship with the Lord Advocate, which was also discussed in Committee.
Pete Wishart: It is not only the Lord Advocate who is no longer prepared to pursue this amendment. The Law Society of Scotland, which briefed all Scottish Members before Second Reading, thought that it was not appropriate. After listening to the evidence that the Lord Advocate does not think that it is the right approach, does the hon. Gentleman agree that Scottish legal opinion is settled on this issue?
Tom Brake: The hon. Gentleman might be right. We will not press the issue to a vote and, as it is unlikely that we would be able to muster sufficient forces, we could not achieve a change in the law. The issue was raised in Committee and on Second Reading, and it was appropriate for us to raise it by way of an amendment tonight.
According to my speaking notes, we have the support of the official Opposition on amendment No. 112, although the hon. and learned Member for Beaconsfield (Mr. Grieve) said that it was an issue in which he was interested, rather than something for which he expressed his support. It would require a jury to establish whether there was a terrorist connection, rather than a judge. The purpose of the amendment is not to seek to undermine the principle that it is for the judge to determine the sentence. Clauses 30 to 32 deal with evidential questions, not sentencing, and that is why—
Mr. Grieve: The point that I was making was that if there is a plea of guilty to an offence and there is a dispute about the factual basis of the plea—the same principle as someone pleading to an offence, but saying that there is no terrorist connection when the prosecution says that there is—it has historically been resolved by the judge alone. If the hon. Gentleman wants to make a case for departing from that principle in terrorist cases, he must view it in the overall context of how our legal system has resolved that issue generally and whether it would be justified to make an exception in the case of terrorism. I agree that it is an important issue, but I remain unpersuaded.
Tom Brake: The difference in terrorist cases is the aggravating nature of the offence and the penalties that are associated with it—
Mr. Hogg: Precisely that point arises on a plea of guilty to murder, for example. In the Criminal Justice Act 2003, the question of whether there are aggravating or mitigating considerations arises in the same form, and that is a matter for the trial judge on a plea of guilty and never a matter for a jury.
Tom Brake: I am at risk of taking a series of interventions from learned Members who may be better briefed on this subject than I am, but there is still the important principle that terrorist offences are serious by their very nature and attract appropriate sentences. The purpose of the amendment is to ensure that a jury, rather than a judge, takes responsibility for clarifying whether there is a terrorist connection—
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