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Lord Ackner: My Lords, I agree entirely with what my noble and learned friend the former Chief Justice said. I do not believe that what he said--except that it was said more eloquently--differs from what I said in Committee. This situation is a novel one. To deal with novel situations, we usually have to have new techniques.
I can well understand any judge realising that if he has to intervene frequently in front of a jury, he runs the risk of the jury thinking that he is biased against the defendant. I do not know how the two judges referred to handled the cases. It may well be that they did not take advantage of a judge's discretion to ask the jury to retire and then to handle the matter in the retirement.
There is no difficulty in discovering--one should know it before the case starts--what is the nature of the defence, and what are the likely issues. With the jury outside, a sensible conversation can take place with the defendant with the judge saying, "What is it that represents your defence? Tell me what you are seeking to establish." That having been said, back comes the jury, and the cross-examination then begins. If the
There is no danger of the judge being rebuked, or the trial aborting in any way, so long as the judge has acted fairly. He can act both firmly and fairly. I instanced on the previous occasion that the self-same problem has arisen in civil cases where there has been a suggestion that the judge was not entitled to give limited time for cross-examination or limited time for argument. There is not the slightest doubt that in civil matters the judge is entitled to run the case as he thinks appropriate, so long as he acts fairly. That is why one should wait to see what emerges from the Court of Appeal (Criminal Division).
What I suspect is happening--it accounts for the silence--is that that Court of Appeal, very understandably, likes to illustrate what are the correct principles, by having a case or cases brought before it so that it can then link its wisdom to the particular case or cases. While that is being waited for, it would be premature to seek to put forward an amendment as narrow as this. For those reasons, I continue to resist the amendment.
Lord Falconer of Thoroton: My Lords, the amendment, as we are all aware, was provoked originally by the awful cases where rape victims were cross-examined interminably in person by unrepresented defendants. The Government, and the whole House, have repeatedly made clear their determination to ensure that vulnerable witnesses, including rape victims and victims of serious sexual assault, should not have to endure such an experience.
As the House is aware--I mentioned it on the previous occasion and again earlier today--in order to take forward our manifesto commitment to provide greater protection to victims of rape and other serious sexual offences, we established in June last year an interdepartmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system. That group has been specifically asked to consider ways to prevent unrepresented defendants from personally cross-examining victims in rape and serious sexual offence trials. The group met on a number of occasions and had its final meeting on 13th March 1998. The result of its work will be reported to Ministers soon.
The new clause proposed by the noble Baroness provides for a mandatory prohibition on defendants in rape and indecent assault trials personally cross-examining the victim. It makes no provision for arrangements to enable the victim's evidence to be tested. As your Lordships will appreciate, in rape trials in particular it is the victim's evidence which is normally crucial and in the interests of justice it is important that any solution addresses that matter.
Clearly, as many noble Lords said, it is important to balance the needs of the victim and his or her right not to be subjected to this type of treatment with the right of the defendant to a fair trial. The working group has been examining that issue in the broader context of the other measures being considered to provide greater protection to vulnerable or intimidated witnesses.
Obviously, we must take account of our obligations under the European Convention on Human Rights for the reasons given by the noble and learned Lord, Lord Ackner, during our previous debate on the subject. As regards the state of the jurisprudence, the De Oliveira case is about children where the balance might be regarded as being struck differently. There is also a case called Croissant v. Germany, referred to by the noble Lord, Lord Goodhart, when replying to the noble and learned Lord, Lord Ackner. It is not on all fours, but it gives some indication that preventing an unrepresented defendant from cross-examining would be allowed. At this stage, I am not in a position to answer the noble Baroness's question as to whether we say that it would definitely be allowed under the European Convention on Human Rights because further advice will be required. However, there are indications--I go no further than that--that it would be allowed.
Various noble Lords, in particular the noble and learned Lords, Lord Lane and Lord Ackner, pointed out that the matter can be dealt with simply by judges being more robust in their handling of trials by ensuring that there is not oppressive cross-examination by an unrepresented, or any, defendant. I do not believe that one can be so confident that that would be the position, particularly having regard to the fact that the incident reported in the press a few weeks ago was not isolated. I make it clear that this Government remain committed to measures which, consistent with the interests of justice, protect victims of rape or serious sexual offences from direct cross-examination by the defendant.
I am not aware that my right honourable friend in another place has said anything inconsistent with that approach; namely, that that is the aim of the Government and a working party is considering ways in which it might be achieved. My right honourable friend has gone no further than that and I note that the noble Baroness did not refer to any direct quote to the contrary. There is no inconsistency between the position I made clear in Committee and the position I have made clear again today. The matter is under active and urgent consideration and in the light of those assurances I hope that the noble Baroness will withdraw her amendment.
Baroness Anelay of St. Johns: My Lords, I thank all noble Lords who have taken part in this brief debate. I shall not press the matter to a Division tonight. Issues have been raised which we can more suitably explore when we have an opportunity to debate them both on an Unstarred Question and in the criminal justice Bill. The Home Secretary stated unequivocally to The Times that in that Bill the Government would introduce measures of the nature I outlined. The statements which he made to The Times, as opposed to a Statement to this House,
I thank the noble and learned Lord for his courteous reply and for taking us a little further in relation to the European Court of Human Rights. I appreciate his comments and I beg leave to withdraw my amendment.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs) rose to move, That the draft order laid before the House on 2nd March be approved [25th Report from the Joint Committee].
The noble Lord said: My Lords, we have placed copies of a draft decommissioning scheme in the Library and the Printed Paper Office and, I understand, copies have been circulated to various of your Lordships who take a special interest in Northern Ireland affairs. I hope that this will illustrate the practical side of decommissioning and assist your Lordships in discussing the draft order.
I shall first make a few introductory remarks to place what is a rather technical order in context. This Government believe that resolution of the decommissioning issue in a manner satisfactory to all sides is a key part of the process of negotiations.
We wish to see, as part of the ongoing efforts and to build confidence on all sites, the decommissioning of some paramilitary arms as progress is made in political talks. There is no doubt that the ultimate resolution of this issues will need to be addressed in framing the political settlement to which we are now moving ever closer. Of course, this is a matter which is being discussed elsewhere. But decommissioning, and the draft order we are discussing today, is an integral part of the process of negotiations.
That is why successive governments, both here and in the Irish Republic, have co-operated closely over the past two years to put in place arrangements to enable voluntary decommissioning to take place. We have always recognised that decommissioning on the lines envisaged is essentially a voluntary activity. We cannot force people voluntarily to decommission.
The repulsive sectarian attacks we have witnessed recently; the murder of two young men in Poyntzpass on 3rd March and the subsequent murder of one of the suspects for that crime; the no warning mortar attack on Armagh; and most recently another no warning bomb
I pay tribute to the vigilance of the security forces in preventing death and destruction at Armagh and for their work in seeking out those responsible for perpetrating these crimes. There will be no let up in this area. I should also commend the efforts of the Garda Siochana in recent weeks who have had numerous successes in preventing attacks and uncovering terrorist weapons.
The draft amnesty period order fixes the maximum duration of any amnesty period identified in a decommissioning scheme. During an amnesty period, a person who decommissions arms in accordance with a scheme benefits from an amnesty in respect of the offences set out in the schedule to the Northern Ireland Arms Decommissioning Act 1997.
I emphasise that the order does nothing more than set the maximum duration of the statutory amnesty. It is the non-statutory scheme (which spells out the details of how arms are to be decommissioned) which will set the actual dates of the amnesty. We will do so once a paramilitary group has indicated a willingness to disarm. Sadly, no group has yet done so.
The order is needed because the 1997 Act requires any amnesty period to end before 27th February 1998. Without this order we could not presently set up a decommissioning scheme because, though non-statutory, the scheme is required by the 1997 Act to set out the amnesty period.
The effect of the order before us is that any amnesty period identified in a decommissioning scheme must end before 27th February 1999. It is important that the Government be in a position to implement any scheme without delay. That is why we are bringing forward the order now rather than waiting until there is a proposal for actual decommissioning.
The draft scheme circulated to your Lordships shows how decommissioning could take place. It gives effect to proposals for decommissioning schemes made by the Independent International Commission on Decommissioning. This commission is chaired by General John de Chastelain and has Ambassador Donald Johnson and Brigadier Tauno Nieminen as members. I welcome this opportunity to record the Government's appreciation of their work. The effective and efficient manner with which they carried out their remit and the process of consultation engaged in by the commission has resulted in proposals for decommissioning schemes which were endorsed by the participants in the Talks Liaison Sub-Committee and the two Governments.
As was the case at other stages of this process, there has been close and ongoing consultation between the British and Irish Governments. I hope the draft scheme helps to show some of the practicalities behind the short order we are debating.
In conclusion, as stated earlier, decommissioning of the kind envisaged in the arrangements before us today is a voluntary exercise. It is not in the Government's gift to say when decommissioning will occur. As soon as there are indications that a paramilitary organisation
In the meantime the security forces will continue to search out illegal arms and bring before the courts those found in possession of them. We are determined to pursue every option open to us to rid our society of the large quantities of arms concealed in the community and whose presence poses such a threat to stability and public safety.
The two Governments have, with the invaluable help of the independent commission, played their part in ensuring that all the necessary practical arrangements to enable decommissioning are in place. This order is a vital part of those arrangements. I commend it to the House. I beg to move.
Lord Cope of Berkeley: My Lords, as the Minister has made clear, this is a short, simple order with a limited purpose but about a topic of the very first importance. The decommissioning of weapons is at the core of the peace process. The Secretary of State called it the base line of the peace process not long before she became the Secretary of State. The Minister said this evening that it played a key part in that process. We all agree with that.
Without it, the talks process and, if it is to become one, the peace process will be essentially unstable at best and probably ineffective altogether. It is quite right that the Government, building on the Act which the previous government put before Parliament, should put in place the decommissioning scheme and should pass this order to enable that to happen when the moment comes. I entirely support the tribute which the Minister paid to those who have worked hard to put the scheme into the form in which it now is under General John de Chastelain.
Of course, what is really required is the political will to put it into practice. That can come only from the paramilitaries on both sides. The original idea was that decommissioning should start before the talks began. That was the original proposal. Then we were told that decommissioning would take place during the talks: it would be progressive and would get going during the talks. The talks are in the final stages and we are now told that there has been no decommissioning. This evening, by this order, we are extending the deadline of the proposed amnesty.
The so-called "loyalist" paramilitaries claim to be reactive only. If the PIRA did not exist, they would not exist. I am sure that we all believe that it depends on the settlement that is reached whether that doctrine holds, but as regards decommissioning, the loyalist groups would certainly have even less excuse for having weapons if PIRA did not. The whole purpose is to have a scheme for the mutual decommissioning of all terrorist weapons.
Sinn Fein still pretends that it is separate from PIRA. If one goes along with that for the sake of argument, whether the shooting and the bombings stop depends on PIRA and not Sinn Fein because PIRA has the weapons. The real question in all our minds at the moment is whether PIRA wants peace. Decommissioning is the test of that. To break down the question into its constituent parts: do PIRA bosses want peace and if so, can they deliver it; would their followers follow their lead? Even some token decommissioning would help to answer those questions in the affirmative. As it is, so far we must assume that the answer is no. I wonder sometimes whether the PIRA bosses realise how important even token decommissioning would be, or would have been, at the beginning of the process. Handing in a weapon or two or a pound or two of Semtex would have changed the atmosphere of the talks for the better. It would not have made much practical difference, as we all know, because they are known to have sufficient stocks of weapons in any event. However, it would have improved the atmosphere, but they were not even prepared to make such a gesture.
As it is, far from handing them in, PIRA weapons have been used very recently, as the Minister reminded us, particularly in the recent mortar attack, it seemed, where the technical details of the attack seem consistent only with PIRA weapons having been used. At present we cannot tell whether that attack was the work of a break-away group or some terrorists still under command. But either way, it was a vivid demonstration of the importance of decommissioning.
Like the Minister, I pay tribute to the RUC and the Garda Siochana for the work that they have done in enforced decommissioning; that is, the discovery of arms. That is another very effective way to remove them from the scene.
We are told that the talks process is coming to an end. The Minister said that none of the groups has been prepared so far to commence decommissioning. Can the Minister tell us, because it is a crucial part of our consideration on how the peace process is going, whether the groups are anywhere near being ready to implement it? Have there been any indications within the talks process that decommissioning will be part of any settlement? If it is not, I do not believe that that settlement would be satisfactory to anybody. But at the same time, we have so far had no indication that that is the way that this particular aspect of the talks process is moving.
Lord Thomas of Gresford: My Lords, from these Benches, perhaps I may also express appreciation of the work of the international body--Senator Mitchell, Hari Holkeri and General de Chastelain--who have made a substantial contribution to political progress in the Province. It was their report in 1996 which initiated the approach to decommissioning and in August 1997, as a result of their work, the British and Irish Governments
As noble Lords have said, the purpose of the order is to renew the amnesty period set out in Section 2(2)(b) of the Act. The effect of an amnesty will be the statutory suspension of the criminal law. That is a major step. Such a step must not be taken in the mere hope that the process of decommissioning will take place.
There should be no advance in the suspension of the criminal law until there is a positive move by one or other of the paramilitary organisations. The Act is a framework only as is the draft decommissioning scheme now put forward. The real test will be whether the paramilitary organisations will demonstrate their willingness to get rid of their weapons and dismantle their organisations. I have to say that it is not encouraging that so far we are told that not a single paramilitary organisation has come forward.
We must hope and pray that the ongoing talks succeed. It is possible that the two governments and the active participants may be only weeks away from an historic settlement. Indeed, it will be historic because it will express the will of the vast majority of the people in Northern Ireland to bind up the wounds of what is an unhappy and divided society. Essential to the healing of those wounds is the issue of trust. The paramilitary organisations can express their own consent to a settlement by an act of trust by the surrender of their arms. It is crucial to a successful settlement in Northern Ireland that trust be re-established in the democratic process. As the forum for the resolution of dissension, discord and differences, trust rather than the gun must rule. But will the paramilitary organisations take that step or do they delight not in the building of a united society but in the infliction of death and pain for its own sake? This is an opportunity for those organisations to demonstrate that they mean what they say. They have their ideals before them--whatever they may be and whatever form of society they see--but let it be a democratic society. They should avoid their constant connection with the pain, death and suffering which have been inflicted for so long on the people of Northern Ireland.
Although the draft decommissioning scheme is still in draft, I should like to make one or two comments upon it. The notion of a "contact person" as set out in paragraph 4 of the scheme, and as described in later paragraphs, is commendable. The military structures of most paramilitary groups lend themselves to one individual being directly responsible for the decommissioning. If that should happen, it would help to establish responsibility on that person and his accountability to the commission.
I hope that there will be scope for informal discussions between such a "contact person" and the commission before the machinery of the scheme is set in motion by the giving of formal notice under paragraph 7. The conditions in the scheme are necessarily expressed in rather general terms; for example, paragraph 9 says that the contact person,
The words are mandatory: the contact person "shall provide" information. But although the nature of the information to be provided is illustrated by some specific examples in the scheme, the final expression of those illustrations--namely, that the contact person "shall provide" any other "information" required by the commission--sounds to my mind somewhat heavy handed and may give rise to some suspicion. Informal discussions beforehand will allow clarification and will put an end to any fears which may arise about the information to be provided.
Confidentiality is referred to in paragraph 26 and is to be welcomed. We hope that the need for confidentiality will not hamper the release of good news. Above everything else, what Northern Ireland needs is good news. This legislation must not hinder publication of successes. If a single paramilitary organisation comes forward to start the process that will be a victory. It will not be a victory for one side or the other; it will be a victory for common sense, for agreement and for rational compromise over bigotry and extremism. This legislation must work and must be seen to work. The Government may be assured of wholehearted support from these Benches.
Lord Molyneaux of Killead: My Lords, I am sure that we are all grateful to the Minister for the way that he presented the order this evening. We were sorry that, for understandable reasons, he was not able to be with us on Monday when the Statement on the prison murder was repeated in this House. However, it may console the noble Lord to know that he was very ably represented by the noble Baroness, Lady Farrington, who now sits beside him. In fact, if I were in the noble Lord's position, I would start worrying about job security.
I take some responsibility for the idea of an international decommissioning body because I was leader of the Ulster Unionist Party when we submitted the idea and the proposal on how the process of disarmament and decommissioning should proceed. I suppose that I was personally influenced by my experiences in Europe at the end of the Second World War. The dangers in accepting surrenders were brought home to me most forcibly on that occasion, when my wing commander and I were ordered by the Supreme Commander, General Eisenhower, to impose his conditions on 9,400 Luftwaffe officers and men at an air base at Flensburg near the Danish frontier. One young German pilot, who was obviously very hysterical, stepped out of the surrender queue, drew his pistol and shot directly at the wing commander and myself. Fortunately the shot went between us. The young man was, unfortunately, shot dead by his own commandant,
However, there were problems in a wider sphere. German servicemen were most reluctant to part with their firearms, which they wished to retain for the purpose of defending themselves against the Russians, although the war had in fact ended a few days earlier. Then, dyed-in-the-wool Nazis had their own reasons for defying the conditions of surrender and decommissioning. We also had to cope with various resistance movements in several countries, many of which had, unfortunately, set aside their noble aspirations and were determined to stake out their claims for a position of authority in the post-war world.
The average British and American serviceman was not trained in the arts of diplomacy. So, eventually, a control commission was established. That commission succeeded because the Supreme Commander insisted, first, that disarmament must precede all else; and, secondly, that the disarmament commission be broadly based.
When Ken Maginnis and I put those proposals to the last government, we expected--and still expect--those principles established in 1945 to become the necessary precondition for a lasting peace. In 1945 the Allied governments recognised that peace could not be firmly established until all the warmongers were disarmed. Again, in 1945, decommissioning the mines as opposed to the weapons--for example, of SS divisions--would not really have done much to establish real peace in Europe--neither will it neutralise modern thugs and murderers and prevent them inflicting much suffering on all of us at the moment.
Similarly, real democratic structures cannot take root in the absence of disarmament. I believe that there has been general agreement among us on that point this evening. That was also recognised by Mr. John Hume, the leader of the SDLP (the main nationalist party), when he declared that elected representatives cannot sit down with men who have guns on the table, guns under the table and guns outside the door. Therefore decommissioning cannot be what is called loosely a confidence building measure if there is no co-operation nor reciprocity.
If and when decommissioning takes place, there must be progress reports at intervals. I am at one with the noble Lord, Lord Thomas, that confidentiality is important. If there is a perception remaining that the operation is simply bogus, confidence in the ranks of the law-abiding people of Northern Ireland will be nil. If the general public are to have confidence in the scheme, there is everything to gain from the disclosure--as the noble Lord has said--of the amount of hardware and munitions surrendered. I say sincerely that in the next six weeks the Government will have to be clear and honest with the electorate. I should be grateful if the Minister can provide some guidance on this aspect of confidentiality.
I am sorry to have to say that there can be no justification for the current hype about there being an agreement within our grasp. That is the phrase that is tossed around rather unthinkingly. It simply is not true. It may sound good at Washington receptions but realities
It was always the understanding of all of us who supported the talks from the beginning, and it was the clear understanding of all who bravely participated in those talks, that there was an aim to achieve--and the hope that this would be achieved--a lasting settlement. We are now told on the highest authority of Mr. Adams that that is not so. We are told that the talks and a referendum on the outcome are a first phase and simply the beginning of a longer and far more dangerous process. He will no doubt accept and pocket any concessions made during what he calls phase one and then drive on to his subsequent phases using the muscle power of the IRA and/or one of its many subcontractors.
Her Majesty's Government and Parliament may soon be forced by paramilitaries to understand the damaging effect of Mr. Adams's phased strategy, particularly--as noble Lords have said--with no decommissioning in sight and no decommissioning at the conclusion of the current talks in perhaps four to six weeks' time.
I hope that I can bring some cheer to noble Lords when I say sincerely that together our Government and all right thinking people and all of us in Parliament will be wise from this moment to do something to lower expectations and abandon what I have called the high wire act of negotiation, which has never succeeded in all the attempts made during the past 38 or so years, and seldom succeeds anywhere else whether in Israel or some other part of the world. Having, I hope, reduced the temperature by so doing, we can then begin the ongoing progress which will stop the unelected continuing to usurp the role of the elected.
Lord Dubs: My Lords, I thank noble Lords who have contributed to the debate. I shall try to deal with the specific points that have been made. I thank the noble Lord, Lord Cope, for his support for this measure and generally for the positive comments that he made. He asked whether there had been any indications that decommissioning was likely in the near future, or that some of the paramilitaries were about to embark on a decommissioning process. We very much hope that the paramilitary organisations and their counterparts in the talks process will see the benefits of decommissioning. Certainly the Government hope that some decommissioning will take place. However, I must repeat what I said earlier; namely, we cannot force anyone to decommission; we cannot insist. We must leave it to the paramilitary groups voluntarily to decommission their arms. In that way we shall know that those people have truly accepted the democratic path. Sadly, there is no indication that they are willing to do so at the present time.
We have to make the provision of information mandatory because the commission must be satisfied that the "contact person" genuinely wants to decommission. Otherwise there would be the possibility of abuse of the provisions of the 1997 Act, in particular the amnesty and exemption from forensic testing. Therefore the commission must be able to insist on certain information being provided. On the other hand the commission--the noble Lord paid tribute to its members--understands the realities of this all too well. I am confident that in this situation the commission will achieve the right balance between information that it needs and not being too heavy handed or bureaucratic in its approach. I assure the noble Lord that we have confidence in the way the commission will carry out its task and proceed without falling into the trap that he has indicated.
The noble Lord, Lord Molyneaux, indicated that he has experience of decommissioning and knows how it works based upon his responsibilities in the immediate post-war period. I welcome the positive contribution he made to this debate by giving us examples of the difficulties that may arise for the commission. He asked about confidentiality. It is important that information be protected if paramilitary groups are to have confidence that decommissioning will not result in their prosecution. This was one of the recommendations of the Mitchell Report, upon which we have based our approach to decommissioning. However, we must also ensure that verification is made clear and unambiguous. The noble Lord also referred to a comment made by Gerry Adams. A number of participants in the talks have made comments from time to time which have not been all that positive and have given other people doubts as to whether we shall achieve a successful outcome.
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