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Mr. Heath: Is not the difficulty the huge elevation in tariff that is possible by applying the terrorist tag to an offence that would otherwise be relatively minor? That is the difficulty, and why those tasked as the finders of fact should be involved.
Tom Brake: As the Minister said, my hon. Friend played a key part in Committee. His intervention is helpful in supporting our case for the amendment and clarifying the reasons for it.
I do not want to pursue the debate further. We support the clause as a whole and would like to see it amended in the way that is proposed. We support Government amendments Nos. 60 and 9, which we welcome. Again, they are evidence that the Committee stage has delivered positive changes to the Bill. Should the larger number of amendments at the end of this group be pushed to a vote, we would be inclined to support them.
Notwithstanding the interventions from a number of hon. and learned Gentlemen, there is an important principle here. As my hon. Friend the Member for Somerton and Frome (Mr. Heath) said, we think that the additional tariff for terrorist offences would warrant the passing of amendment No. 112, which we will seek to press to a vote.
Mark Durkan: The Minister spoke on Government amendment No. 60 and said that the non-jury court provisions in Northern Ireland were not, according to his notes, the Diplock courts. There have been changes in the past couple of years. The House passed legislation to do away with the emergency provisions in Northern Ireland in 2006 and then provided the Justice and Security (Northern Ireland) Act 2007 to bring back a number of those emergency provisions, including non-jury trials, essentially continuing the Diplock courts. They might have been on a different basis, but they were non-jury courts none the less.
The Minister referred to the fact that under the 2007 Act the DPP for Northern Ireland will issue a certificate deeming that there will be a non-jury trial. That certificate is not challengeable in a court or by a court. None of that is changed by the Government’s amendment. As the Minister said, the DPP has four grounds to use for a certificate and does not have to declare any of those grounds on the certificate. No one has any way of challenging it, judicially reviewing it or anything else. The person concerned, their lawyers, the general public and everybody else will not know which of the four conditions the DPP decided was satisfied and therefore warranted a non-jury trial.
The first condition arises if the accused is a member of a proscribed organisation or has at any time been a member of an organisation that was at any time proscribed. The DPP will make that judgment and nobody will know where it has come from, on what information it is based or even what the organisation might be. Condition two is that
“the offence or any of the offences was committed on behalf of a proscribed organisation”
“organisation was otherwise involved with, or assisted in, the carrying out of the offence”.
Again, nobody will know any of the details. Condition three is that
“an attempt has been made to prejudice the investigation”.
Of course, there is the issue of whether someone is an associate of a member of a proscribed organisation, too. None of the conditions is changed by the removal of the fourth condition by the Government’s amendment. The fourth condition is that
“the offence...was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility”.
In so far as the amendment reduces the grounds on which the highly arbitrary certificates can be issued, we welcome it as a departure from the norm in Northern Ireland. It will mean that the DPP will no longer be able to issue such a certificate to demand a non-jury trial simply because the crime has been religiously or politically motivated.
That is a small, welcome improvement, but it does not take away from the fact that we still have continuity when it comes to Diplock courts. The Minister might say that his notes say they are not Diplock courts, but we cannot believe that they are not when they are non-jury trials determined for unchallengeable reasons. The certificates do not have to state any grounds or any evidence. Indeed, when the 2007 Act was being passed, the then Secretary of State, the right hon. Member for Neath (Mr. Hain), told us that the DPP could act simply on the basis of information given to him by the intelligence services. He even said that the DPP could simply say to the judge—the judge might want to ask in advance, and could be told privately—that it was based on certain information, but that nothing could be said or asked in court.
Although I welcome the fact that the Government have seen fit to chip away at one bit of the provisions for non-jury trial that they belatedly added to the 2007 Act, they do not go far enough. Of course, we have the odd situation whereby as a result of the legislation passed last year—and of this Bill, if it is passed—the DPP for Northern Ireland will be able to insist on non-jury trials on grounds that are completely secret and unchallengeable if a terrorist offence is related to the affairs of Northern Ireland, but if it is a wider terrorist offence, there will be an absolute guarantee of a jury trial. That is an odd anomaly to ask the people of Northern Ireland to accept. If the group is al-Qaeda, a jury trial will be guaranteed. However, it will be a non-jury trial if it is some other group, name and link unstated and unspecified, with no evidence produced in court, with the court not allowed to ask questions and with people left to think the worst—in fact, some hon. Members went so far as to want the 2007 Act to be amended to ensure that a court could draw an inference from the fact that a certificate had been issued. Clearly, Northern Ireland needs even more revision of the 2007 Act than the Government amendment provides. The amendment is a very limited improvement. It is welcome to that degree, but we need to see a lot more.
I am not in any way as hostile to or critical of amendment No. 9. We have a more chequered view of the amendments tabled by the Lib Dems and the Tories. I can see the sense of some of them, but I do not think
that others necessarily add any significant improvement to the Bill. In fact, they might create some technical difficulties.
Mr. Hogg: I want to address three matters. I shall begin with a comment on amendment No. 112, which was tabled by the Liberal Democrats. I agree entirely with my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). Let us take a comparable case, which I cited to the hon. Member for Carshalton and Wallington (Tom Brake), namely one in which there is a plea of guilty in a murder case. The hon. Gentleman will remember that a schedule to the Criminal Justice Act 2003 provides an approach to sentencing with a starting point of 15 years and provides aggravating and mitigating circumstances. It is relatively easy to drive up the tariff, if I may so call it, to 30 years. In other words, there can be a huge variation between the starting point and the end sentence. That rather takes account of the point made by the hon. Member for Somerton and Frome (Mr. Heath).
The disparity can be great, yet on a plea of guilty the issue of whether there are sufficient aggravating factors to drive the minimum sentence up to the high figure of 30 years, for example, is exclusively a matter for the judge. There is no role for a jury in such murder cases. Given that, I find it hard to see why, as a matter of principle, we need a specific provision for the jury in a terrorist case in which there is a guilty plea, when we do not have one for the jury in a murder case. Therefore, I am inclined to think that my hon. and learned Friend the Member for Beaconsfield is entirely right on that point.
7.30 pm
David Howarth (Cambridge) (LD): Does the right hon. and learned Gentleman agree that the point of principle should be decided together, and not simply be a matter of precedent? Is it right in principle that a matter of such importance should be dealt with by the judge and not by the jury, even in the murder case that he described?
Mr. Hogg: The hon. Gentleman says that the point of principle should be determined on its merits and not be simply a matter of precedent, and I entirely agree. That is a perfectly fair comment, but I am not uncomfortable with having the essential decision made by the trial judge. The hon. Gentleman will also know that there are other precedents on which we can draw and that we must have regard to precedents in this area of the law—for instance, the Newton hearings are designed to determine the basis of a plea. We are on a slippery slope: if we adopt the approach advocated by the Liberal Democrats, we would soon find ourselves calling juries in to determine many matters that I believe are properly the province of the judge.
I hope that the Liberal Democrats will understand that I will not be supporting them on this matter.
Mr. Gummer:
Does my right hon. and learned Friend agree that we have come across this problem before, in a rather different form? Legislation on terrorism is at its best when it sits best with all other legislation. Is it being suggested that we should look at how this matter is dealt with in all the other, non-terrorism legislation? It
would be very much better if this Bill were on all fours with all that other legislation, as that is how it will get the legitimacy that it needs so desperately. In that way, it will be possible to justify those of its provisions that differ from other legislation.
Mr. Hogg: My right hon. Friend is entirely right, and I should like to make two points in response to what he has said. I am sure he is correct to say that we should try to treat counter-terrorism legislation the same as legislation that covers other serious crime and that, to the extent that we properly can, we should adopt an exceptional process for it. On the other hand, the hon. Member for Cambridge (David Howarth) is right to say that we should be willing to bring the other issues of serious crime into line with counter-terrorism legislation, if the merits of the argument point in that direction. However, my feeling is that that is best left to the judge, and it is for that reason that I shall not follow the Liberal Democrats’ advocacy on the matter.
I want to make two other points, and the first has to do with forfeiture. The House will know that there are very extensive powers of forfeiture in both the 2000 Act and clauses 33, 34 and 37 of this Bill. What standard of proof should the judge require before a forfeiture order is made?
A forfeiture order is a draconian measure. It is appropriate in many cases, but we must make sure that a court is satisfied beyond a reasonable doubt that the relevant criteria set out in legislation are satisfied before such an order is made. In a bid to pre-empt an observation that the Minister may make, I should say that I believe such a requirement should be in the Bill. It may be that the courts will have said in previous decisions that surety is a requirement, but we must say as much in legislation. The Minister will know that there was a case earlier this year in which the issue of aggravating circumstances in murder cases went to the Court of Appeal. That was the level at which it was decided that the judge involved had to be satisfied beyond a reasonable doubt: that decision was needed because the existing legislation did not suffice in that respect.
Mr. Heath: The right hon. and learned Gentleman rightly said that the proposed powers are draconian. The high penalty that forfeiture represents persuades me that the decision that elevates a minor offence to one with a terrorist connection must be taken by a jury. Given what he said earlier, I do not think he agrees with me, but does he accept that that is a point worth considering?
Mr. Hogg: The hon. Gentleman makes a real point that I do not underestimate, and we all have to work out where we stand on the issue. All I can say is that I disagree, but I do not dismiss his argument as nonsense; it is not but, all in all, I prefer to leave such decisions to the judge. On this matter, reasonable-minded Members must agree to disagree and vote accordingly.
My final point featured in Committee as the “McNulty issue”, although I assure you, Madam Deputy Speaker, that we were talking about a wholly fictional character and not the Minister. Our debate had to do with forfeiture that is capable of affecting innocent third parties. The terrorism offences specified in the Bill are quite extensive, and I suggested in Committee that a garage proprietor
had been convicted of one. In my story, the entirely fictional McNulty had lodged his car for repair with that proprietor and, unhappily—but as might easily happen in real life—his vehicle had been used in connection with a terrorism offence. I said that the prosecution authorities in the case sought a forfeiture order, and that Mr. McNulty was naturally very upset because it meant that he would lose his car. My amendments Nos. 20, 92 and 93 would ensure that the court would have to give Mr. McNulty ample opportunity to make representations, and that it would not make a forfeiture order if he could establish that he owned the car and show that such an order would be unjust.
One other short point in respect of forfeiture orders is worthy of note. When such an order is made against a convicted person, the court is directed to have regard to the impact that it will have on that person. Other considerations, such as the value of the forfeiture, must also be taken into account. I am anxious to ensure that the court should also have regard to the interests of any person who might be dependent on the convicted person. I have in mind dependent children, or an innocent dependent spouse. The interests of such persons are easy to disregard, but it is our purpose and duty to try to enshrine in statute law a proper protection for them.
I have set out the three issues to which I wished to draw attention, and I commend them to the House.
Mr. Carmichael: I shall not detain the House long, but I want to say a few words about amendment No. 111, to which my hon. Friend the Member for Carshalton and Wallington (Tom Brake) spoke.
The only objection to the amendment appears to be that, in evidence to the Committee, the Lord Advocate said that she did not feel it was necessary. I have worked with the hon. and learned Member for Beaconsfield (Mr. Grieve) on many Bills, and I have a high regard for him. I listened to him carefully, and I was struck by his apparent willingness to be just a little slapdash. He is famous for dotting i’s and crossing t’s—he often dots i’s and crosses t’s that the rest of us do not know are there to be dotted and crossed—but he was prepared to say earlier that the matter covered by the amendment could be left to convention and existing working relationships.
The point of which the House is not properly seized is that the clause adds a new, radical dimension to that relationship. The existing convention may at some future date simply be insufficient to deal with it. Where there are cross-border elements to the planning or execution of a criminal act, criminal procedure already allows for it to be tried in the most appropriate jurisdiction. That is well established, and it works in criminal courts on both sides of the border, week in and week out. The novelty is that the Bill will for the first time allow a crime that is wholly planned and executed in Scotland to be tried somewhere other than Scotland. The only occasion when that happened was the trial of the Lockerbie bombers. It took place in Holland, which, for the purposes of the trial, was deemed to be Scotland, so the idea did not work. Full account has to be taken of that novelty.
I take the views of the Lord Advocate exceptionally seriously. I hold her in the highest possible regard. As the hon. and learned Member for Beaconsfield pointed out, she has quite remarkably survived regime change. She was originally nominated to her position by a Labour-Liberal Democrat Administration, and was then
nominated for a slightly different position by the incoming Scottish National party Government. It is reasonably well known in some circles that she was my first boss when I was a trainee solicitor. I find it very difficult to take issue with her views. However, having considered the terms of her evidence to the Committee, I do not think that what she said constitutes a barrier to the House agreeing to amendment No. 111, if it were pressed to a Division.
As I said to the hon. and learned Gentleman, the amendment will not create any particular barrier. If it is a codification of an existing convention, there is no harm in having it in the Bill. If the point came when a case was removed from the jurisdiction of the Scottish courts without the consent of the Lord Advocate, it would be not only a constitutional crisis, as one hon. Member said, but too late, because there would be absolutely nothing to stop it happening.
Pete Wishart: I appreciate the hon. Gentleman’s diligence on the issue, but does he not accept that the Lord Advocate is not alone in her opinion? It is shared by the Law Society of Scotland. There is no enthusiasm from the Scottish Government on the issue. It seems that only the hon. Gentleman and his colleagues are hell-bent on pursuing the issue. It really is time to give up.
Mr. Carmichael: My goodness, I never thought I would see the day when the hon. Gentleman became the voice of the Scottish establishment. There is a supreme irony in the fact that although Scottish National party Members are always chuntering and heckling away at the rest of us about how they are the only ones who will stand up for Scotland, now that there is a real challenge to the independence of the Scottish legal system, they are the first to roll over and give in.
We will not press the amendment to a Division, as it is pretty clear that it does not have the support of the House. However, in future it will be seen that we were right. It will be seen that it was the Liberal Democrats who stood four-square with the independence of the Scottish legal system, and that the SNP and the other parties conspired against it with the legal establishment.
Mr. McNulty: May I say, unusually, what a profound displeasure it is to follow the rant of the hon. Member for Orkney and Shetland (Mr. Carmichael)? With the best will in the world, even he does not believe what he said. I stand four-square with the SNP, the Conservative and Unionist parties and all others in saying that he is looking for a bandwagon that simply does not exist. I have a document here that says “Stand up for Scotland”. What a load of nonsense.
Mr. Carmichael: I am absolutely astonished. The right hon. Gentleman’s colleagues from north of the border will be furious to see him giving such support and succour to the Scottish nationalists.
Mr. McNulty:
Okay, pantomime over. That is not the case at all. The hon. Gentleman is looking for an issue that simply is not there. To be fair, the Scottish press sought the same issue. To be absolutely fair, as my noble Friend Baroness Scotland and the Lord Advocate have
said, it is not an issue. They say that not because they get on so well, but because of the absolute responsibilities of their respective offices. The measure is utterly redundant, as will I be if other Members keep knocking Opposition amendments with such guile and eloquence. I need add no more on the subject of the amendment on aggravated sentences, because it has all been said by assorted Opposition Members.
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