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Lord Bassam of Brighton: Schedule 3 sets out the provision for making pre-trial rulings in the magistrates' court, bringing the new legislation in line with current Crown Court practice. Under Schedule 3 a pre-trial ruling can be made by judges and magistrates at pre-trial hearings in criminal cases that are to be tried summarily in the magistrates' court and will extend to issues of substantive law and admissibility of evidence.
Schedule 3 creates a new power in the magistrates' court aligned to that in the Crown Court to make binding rulings as to questions of law and admissibility at pre-trial hearings. Amendment No. 71 would introduce a right of appeal, as has been carefully explained.
At present, matters of law and evidence are considered during the course of a trial. Procedurally this is a grey area as the lay justices or district judge in a magistrates' court charged with ruling on matters such as the admissibility of evidence must also subsequently determine the guilt or innocence of a defendant and are finders of both fact and law. The impact of the ruling can lead to a trial being adjourned or aborted.
The intention of the schedule is to allow for issues of law and evidence to be identified at an early stage and resolved in advance of the trial. It is an important new power when considered in the light of the new integrated structure of the criminal courts to be created by the Bill and the flexible deployment of the judiciary we are seeking within the new structure.
If the overall sentencing jurisdiction of the magistrates' court is extended as provided for in the Criminal Justice Bill, more serious and potentially complex cases will be retained for summary trial. The power to make binding rulings will be a useful aid to pre-trial preparation and progression.
The Government recognise the importance of ensuring fairness in court proceedings—that goes without saying. That is reflected in the safeguards contained within Schedule 3, which provide for a ruling to be varied or discharged in certain circumstances. There exist also wider avenues of appeal available at the conclusion of proceedings in the magistrates' court, particularly an appeal to the Crown Court against conviction which takes the form of a rehearing of the whole case, as I am sure the Committee will appreciate.
Amendment No. 71A would permit any party to a criminal case to make an interlocutory appeal to the High Court against the making of a binding ruling, such procedure currently being available only at the conclusion of the substantive proceedings.
As with Amendment No. 71, lay justices or district judges charged with ruling on matters such as the admissibility of evidence must subsequently determine
the guilt or innocence of a defendant and again are finders of both fact and law. The impact of the ruling can lead to the trail being adjourned or aborted.Amendment No. 72 proposes a further subsection to new Section 8A, the effect of which would be to require rules of court that may provide for a differently constituted magistrates' court from that which made a binding ruling at a pre-trial hearing to hear the subsequent trial.
At present, a Bench that makes a substantive ruling on an issue of law or admissibility of evidence at the outset of the trial may be required by the rules of natural justice to disqualify itself from hearing the trial. Invariably, this will result in an adjournment with associated inconvenience to all parties involved. The new provisions will allow a different constitution to make such rulings at an earlier stage, meaning that witnesses will not be required to attend court unnecessarily. We argue that the amendment is unnecessary because the common law rules of natural justice would require individual magistrates acting as the tribunal of both fact and law who have heard evidence which they subsequently ruled inadmissible to disqualify themselves from hearing the trial.
The fact that a pre-trial hearing is separate from and does not constitute the start of a summary trial is made clear in the schedule. It is implicit that magistrates' courts, constituted differently or the same, can deal with the separate hearings, providing for the necessary flexibility in each case to be considered individually. Additional rules of court are not needed in these circumstances.
Our position is simple. There should be no appeal until the case is ended. I am not clear, and I am not sure that Members opposite are clear, what would be a suitable alternative and how it might work. I rest my case on that point.
8 p.m.
Baroness Anelay of St Johns: Before the noble Lord, Lord Thomas of Gresford, I expect, begs leave to withdraw his amendment, it may be helpful to make clear that my Amendment No. 72 answers the question posed by the Minister. If one could be sure that the same panel of magistrates did not sit to determine a person's guilt or innocence as sat for the pre-trial hearing, we might be happier. I am grateful to the noble Lord for the attention that he has paid to these issues. Certainly, I shall be looking very carefully at our amendments before we consider bringing them back on Report.
Lord Thomas of Gresford: First, there is no justification for introducing pre-trial hearings into magistrates' court proceedings simply because it happens in the Crown Court. The mode of trial and the division of responsibility is so very different that it is quite impossible to marry the two things together just to tidy up the procedures.
There is a case for magistrates having a pre-trial hearing for admissibility of evidence. I can see that. It would be easy to arrange for a second and different
tribunal of magistrates to hear the merits of the case when it is finally heard. It is not entirely straightforward; there are some difficulties. Evidence may be called in front of one set of magistrates. There is no transcript of that, so it could be quite different in the main trial. There are problems.As to other points of law, often it is necessary to establish a factual basis before a point of law can be considered. The Court of Appeal and the Divisional Court do not like dealing with hypothetical situations; they like to deal with facts. Accordingly, any broad question of law may require all the evidence being heard by the tribunal in the first magistrates' court in order to decide the point. However, establishing that factual nexus wastes time. The witnesses must return for the full trial. They will be troubled twice instead of once. Any discrepancies between what they say at the first hearing will be highlighted at the second, in what is supposed to be a summary procedure.
Therefore, I suggest that the Government think very carefully about the matter. Magistrates' courts could hear matters regarding the admissibility of evidence and the voir dire but nothing beyond that. Their proceedings should be kept as a summary trial. With the hope that the Government will rethink the matter, I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 71A to 72 not moved.]
On Question, Whether Schedule 3 shall be agreed to?
Lord Thomas of Gresford: If no amendment is tabled on Report, we on these Benches will oppose Schedule 3 as it stands. Some real thought must go into the practicality, the expense, the double hearings, and so on, that these provisions will allow.
Lord Bassam of Brighton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
Northern Ireland Arms Decommissioning Act 1997 (Amnesty Period) Order 2003
8.4 p.m.
Lord Williams of Mostyn rose to move, That the draft order laid before the House on 20th January be approved.
The noble and learned Lord said: My Lords, the order appoints 26th February 2004 as the date before which the amnesty period identified in a non-statutory decommissioning scheme must end.
The amnesty period, as your Lordships know perfectly well from our discussions in previous years, is the time during which firearms, ammunition and explosives can be decommissioned in accordance with
the scheme. It thereby attracts both amnesty and prohibitions on evidential use and forensic testing of decommissioned articles provided by the Northern Ireland Arms Decommissioning Act 1997.To put the matter at its plainest and simplest, if we wish further acts of decommissioning to continue, which we all do, this is a necessary precondition. I beg to move.
Moved, That the draft order laid before the House on 20th January be approved.—(Lord Williams of Mostyn.)
Lord Glentoran: My Lords, I thank the noble and learned Lord for his introduction to the order. This is a very important occasion. It is one of the occasions that we have in your Lordships' House to look at where we are.
At the outset I want to make clear to the House that the Official Opposition does not oppose this order which extends for a further year the decommissioning regime and the amnesty period as set out in both the 1997 and 2002 Acts. We recognise that the amnesty is, in many respects, a necessary evil if we are ever going to achieve what the Belfast agreement describes as,
- "the complete disarmament of all paramilitary organisations".
Our concern, which we expressed forcefully when the issue was debated in your Lordships' House last year, stems from the provision in the 2002 Act extending the amnesty period for a further five years—effectively providing for a decommissioning amnesty taking us up to 2007. We believe—and our argument remains valid—that that sent out precisely the wrong signal to the paramilitaries at exactly the time when the maximum pressure should have been exerted upon them at long last to fulfil their obligations.
It formed part of a series of unwarranted and one-sided concessions, principally to Sinn Fein/IRA that has regrettably and damagingly been the trademark of government policy for much of the past 12 months. So I wish to place on record again that our preference would have been for a two or three year extension, rather than the full five years, and that we hope that we will not have to wait until 2007 for decommissioning to happen.
The order gives us the opportunity to step back for a moment and consider where we are in Northern Ireland on the issue of arms decommissioning and what has now entered the Northern Ireland lexicon as "acts of completion". It is not an encouraging picture. Over the past year there has been one act of decommissioning by the provisional IRA, carried out in April and verified by the de Chastelain commission. That built on the earlier act in October 2001.
On the loyalist side, nothing has been decommissioned and the prospect of any movement there seems to be further away than ever. Not only that, the IRA broke off all contact with the decommissioning commission last October in response to the suspension of the institutions. Billy Hutchinson, representing the UVF, followed suit on 17th January this year. In addition to the failure to complete
decommissioning, or even to signal the start of a process, there have been serial breaches of the ceasefire and the Belfast agreement by all the main paramilitary organisations.We have had the IRA's adventures with narco-terrorists in the Colombian jungle. We have had the Castlereagh break-in. There has been evidence of targeting individuals and installations. There have been continual beatings, shootings and some cases of murder carried out by both loyalists and republicans. There was the orchestrated street violence—again on both sides—during the summer. And finally, last October, we had the evidence of the Stormontgate spy ring at the heart of government. That is not a very happy picture.
On the loyalist side we have also had the revolting feud between the various factions in the Ulster Defence Association in and around Belfast's Shankill Road. Obviously we all hope that the events of the past week, distasteful as they might have been, will at last bring that particular episode to a close. There obviously needs to be the closest co-operation between the Police Service of Northern Ireland and the Strathclyde police to ensure that the feud does not simply extend to Scotland. God help us all if it does.
What this episode shows, however, is the nature of much loyalist violence today. It is no longer political. As The Times so accurately put it on Friday, 7th February 2003:
- "It is not about devotion to Crown and country. This is gangsterism in its purest sense—an entirely amoral contest for control over drugs, prostitution and protection money. It is rampant criminality occasionally wrapped in a Union Flag of convenience. It is also, unfortunately, now the dominant local industry".
Those thugs terrorise the communities they purport to defend, inflicting misery and suffering in areas that already suffer some of the worst unemployment and social deprivation in Northern Ireland. So we welcome the arrests that have been made in loyalist areas and the chief constable's publicly stated determination to crack down on violence. I am sure that he has the full support of all noble Lords in achieving that objective.
Regrettably, all of this presents a picture far removed from the one envisaged in the agreement. It is the failure of certain parties to make the unambiguous transition from terror to what the agreement describes as,
- "exclusively peaceful and democratic means"
As we have said on many occasions, we hope the suspension lasts for as short a period as possible. Devolution and the exercise of local power and authority by locally elected and accountable politicians is a far better form of government for Northern Ireland than direct rule will ever be. But those responsible for the current state of affairs should be in no doubt that the obligation rests with them to re-create the conditions in which devolution can be restored and for momentum to be injected back into the political process.
Crucially, that means dealing once and for all with the issue of illegal weapons and explosives in a manner, as the IRA itself put it in its statement of 6th May 2000,
- "designed to maximise public confidence".
The time has passed when we could take the paramilitaries on trust. What matters now is not what they say, but what they do. There has to be a complete end to all forms of paramilitary activity. There has to be decommissioning. And there has to be clear evidence that the organisations are being stood down.
That is clearly what the Prime Minister had in mind when during the referendum campaign he said on 14th May 1998 that there had to be the,
- "progressive abandonment and dismantling of all paramilitary structures".
It is clearly what he had in mind last July when he told the other place that,
- "it is increasingly urgent that it should be clear that paramilitary organisations are not engaged in any preparations for terrorism and that they should be stood down altogether".—[Official Report, Commons, 24/7/02; col. 976.)
It is clearly what he meant when he said in Belfast on 17th October 2002:
- "The fork in the road has finally come . . . We cannot carry on with the IRA half in, half out of this process".
- "It's time for acts of completion".
We on this side of the House agree with all those statements. Nothing less will do. Nearly five years after the Belfast agreement, there can simply be no excuse for political parties maintaining their private armies. It is time for them to go.
That must be the central message of the Prime Minister and the Taoiseach, Mr Ahern, when they meet the parties in Belfast on Wednesday in an attempt to achieve a breakthrough. They must not allow Sinn Fein, in particular, to muddy the waters by introducing a whole raft of secondary issues, as it has done so often before. Illegal arms and the failure of the paramilitaries to fulfil their obligations to decommission have dogged the process for too long. The paramilitaries know what they have to do. They should get on and do it.
In that context we back this order, which extends for a further year the decommissioning and the amnesty on the forensic testing of weapons. We fervently hope that the commission has a busier time this year than it did last and that devolved government can be restored and the agreement finally implemented in full.
8.15 p.m.
Lord Smith of Clifton: My Lords, we on these Benches agree that the order must be extended. As the noble Lord, Lord Glentoran, said, it is vital that we have further acts of decommissioning until it is complete. I agree with much of what he said. But at this time one of the biggest dangers to any further decommissioning is the loyalist mayhem occurring in north and west Belfast. Those acts of mayhem—perhaps this is the intention—will inhibit any further developments on the part of the IRA.
The IRA is unlikely to decommission while such lawlessness continues. Although it is largely occurring within the loyalist community, it gives no confidence that any moment things might not erupt across the communities. It is extremely dangerous and very worrying that that problem exists in the ranks of loyalism. The real problem is that there is no political leadership; there is a political vacuum.
There is political leadership in the case of the republicans—we all believe that Sinn Fein has tremendous influence on the IRA—but one looks in vain for some political influence on the loyalist paramilitaries. We desperately need to repair that by offering some real political leadership at the community level rather than simply wringing our hands at its absence.
Has there been even informal contact between the IRA on the one hand and the loyalist groups on the other with the de Chastelain commission? Is there a complete cut-off, or has there been some informal contact?
We believe that the Act must be continued, as the order provides. We must consider it year by year. I understand that the noble Lord, Lord Glentoran, said that he wanted it extended beyond that period if necessary. We need to take it year by year in the hope that we can focus attention on it.
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