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Baroness Scotland of Asthal: My Lords, of course the right reverend Prelate is right. At one level, we all share responsibility for the safety of the nation, both as individual citizens and as parliamentarians either in this House or another place.
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However, a special responsibility is vested in the elected Members and the government of this country who are charged with exercising certain responsibilities on behalf of the citizens who have elected them to form that government and therefore to govern. The primary responsibility of the Home Secretary and the Prime Minister is to do that which keeps this nation safe. That is part of the responsibility of the government and the executive.
In a democracy such as ours, it is right that there is a separate, heavy responsibility placed on the judiciary who are upholders of the rule of law and who are there as a check and balance to make sure that the exercise of the executive's discretion is proper, balanced and in accordance with the rule of law. That is their function. That does not mean that the Home Secretary, the Prime Minister or the government can abrogate their responsibility for keeping this nation safe.
Lord Mayhew of Twysden: My Lords, is there not a great danger here to the constitutional standing of judges? As the Minister said, their role is to uphold our liberties. The Government propose to wheel in the judiciary again to draw the constitutional sting that is inherent in these proposals.
As the Minister said, in the case of derogated orders it will be their jurisdiction to substitute their own decision for that of the Minster if they wish. Surely that is deeply dangerous. It is not judicial review. It will be takingor will be perceived as takinga quasi-executive action and, worse than that, one that deprives somebody of his liberty. Does the Minister recognise the real danger to the constitutional standing and the perceived role of judges that is inherent in that?
Baroness Scotland of Asthal: My Lords, we do. The noble and learned Lord, Lord Mayhew, puts his finger on one of the issues in terms of balance. That is why we say that it is important for the Home Secretary who is charged with that responsibility to make a decision. It is a decision that is then scrutinised by the judiciary exercising its proper judicial function about whether that decision was a right and proper one. When the House looks at the stumbling blocks that have been put in the way of the exercise of that decision, it will see the equivalent of four locks. That is why it is correct that the executivein the form of the Home Secretaryshould make the original decision, accept that responsibility that is the government's and his and then and only then should the court exercise its judicial function in checking whether the Home Secretary is right. That is the best way to do that, both constitutionally and practically.
We have listened to the two arguments pulling the other way. In this short debate it has already been strongly said that we should expunge the responsibility on the executive. I hear clearly what the noble and learned Lord says. There will be governments who would be content to hide behind the skirts of the judiciary and say, "It is not our fault. It is the members of the judicial committee of the House of Lords who have so determined that your security should be infringed upon in the way complained of. It is not our fault".
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This Government do not shirk our responsibility. We accept that responsibility is ours and we say that the judiciary should have their proper role for scrutinising that which we have done and that which we have decided.
Lord Morris of Aberavon: My Lords, having regard to the recent views of the appellate committee, are the Government satisfied that the powers sought are proportionate and fall within the tenor of their judgments?
Baroness Scotland of Asthal: My Lords, my noble and learned friend rightly asks that question; we are so satisfied. One of the most taxing and difficult tasks that we have undertaken in the past two months is to come to a resolution that does two things: first, it takes the necessary steps, which we have to take, to keep our country safethat is our overriding criterion; and, secondly, it does that in a way that would enable us to comply with the judgment of the Judicial Committee of the House of Lords, which we accept, as is proper.
Lord Ackner: My Lords, the Minister has very fairly accepted that judicial review is not a process of appeal. It is a procedure to ensure that the Government have not exceeded their jurisdiction. It is a jurisdictional matter and a procedural matter.
When it comes to the derogation orders, the Minister says that the merits of the decision, which cannot be considered on judicial reviewor very rarelythen can be scrutinised. If the merits of the decision can be scrutinised after the Minister has made his decision, why cannot they be considered before the Minister makes his decision? Why cannot the Minister go to the judge and say, "I propose to do this. Is this, on the merits, a right and valid decision"?
Baroness Scotland of Asthal: My Lords, first, for the reasons that I just gave in answer to the noble and learned Lord, Lord Mayhew, and, secondly, because of practicality. It may be that information comes before my right honourable friend the Home Secretary or his counterpart in any future government that clearly demands immediate action. In those circumstances, it would be simply practical and easier for that decision to be made and for it to be very quickly reviewed.
I cannot over-emphasise that we are talking about seven days. As the noble and learned Lord, Lord Ackner, will know, in the administrative court it can be possible for these matters to be brought before the court very quickly, in a period of fewer than seven days, which is the outer limit when the court will be
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obliged to deal with the matter. It involves automatic reference, not an application having to be made by any one party.
The Lord President of the Council (Baroness Amos): My Lords, I would like to repeat a Statement made in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
"I came to the House on 11 January to make a Statement relating to the Northern Bank robbery on 20 December. To recall the background: a highly organised and brutal gang kidnapped the families of two staff from the bank's headquarters in Belfast, threatening them with death unless the individuals co-operated in the execution of the largest robbery ever seen in these islands.
"Since then a major police investigation has been under way. As the House is aware the Chief Constable of Northern Ireland made his conclusion clear that the Provisional IRA was responsible for the robbery. The Prime Minister and I have indicated that we accept the Chief Constable's judgment, which is also shared by the Irish Government and their security advisers. The Chief Constable's statement, seen in the context of other subsequent events, serves to reinforce the extent of the challenge that we all face in working towards peace and stability in Northern Ireland.
"Earlier this month, on 10 February, I laid before the House a copy of a report presented to the British and Irish Governments by the Independent Monitoring Commission. That report, which the commission had elected to produce in addition to its normal twice-yearly reports to the two Governments, concluded that the Northern Bank robbery was planned and undertaken by the Provisional IRA and that this organisation was also responsible for three other major robberies during the course of 2004.
"The IMC concluded, on the basis of its own careful scrutiny, that Sinn Fein must bear its share of the responsibility for these incidents. It indicated that, had the Northern Ireland Assembly been sitting, it would have recommended that the full range of measures referred to in the relevant legislation be applied to Sinn Fein, including the exclusion of its Members from holding ministerial office. In the context of suspension, it recommended that I should consider exercising the powers I have to apply financial penalties to Sinn Fein.
"The House will recall that following the IMC's first report in April last year, I issued a direction removing, for a period of 12 months, the block
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financial assistance paid to Assembly parties in respect of both Sinn Fein and the Progressive Unionist Party.
"Having reflected on the IMC's latest report, I have concluded that it would be appropriate for me to issue a further direction removing Sinn Fein's entitlement to this block financial assistance for a further 12-month period, the maximum period permitted under the legislation.
"I am, therefore, minded to make a further direction to come into effect on 29 Aprilthe day after the existing direction expires. Before reaching a final decision, however, I will take into account any representations made to me by Sinn Fein by next Tuesday.
"The commission's report also refers to other public money which Sinn Fein receives, although recommendations on this are outside its remit. In this context, I am conscious that honourable Members on both sides of the House have raised concerns in the past about the payment of financial allowances to the four Sinn Fein Members who decline to take up their seats here.
"I hope that the House will welcome the opportunity to debate, in the near future, a government Motion proposing that these allowances be suspended on a timescale in parallel with the arrangements at Stormont, in recognition of recent events. The debate on that Motion is for another day, but I should emphasise to the House, lest anyone accuse us of denying the extent of Sinn Fein's electoral support, that the measures we are proposing are designed to express the disapproval of all those who are committed to purely democratic politics at the actions of the Provisional IRA. All in this House recognise the degree of support for Sinn Fein, but we also believe that the actions of the republican movement are letting down everyone in Northern Ireland, including Sinn Fein voters.
"There are those who will argue that these financial sanctions are insufficient as a signal of the Government's and Parliament's condemnation of recent events. They may well argue that I should take steps to exclude Sinn Fein from the political process, or from the Assembly, now. I want to deal with those arguments directly, because they are sincerely made and with a strength of feeling that I well understand.
"The Government's ultimate goal remains the achievement of an inclusive power-sharing executive in Northern Ireland. I need not remind the House that the robbery has set back the timescale for achieving
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that. But the reality remains that long-term stability in Northern Ireland will not come about if we focus on exclusion. That objective requires inclusion: dialogue with Sinn Fein must continue in order to see how that long-term goal can be achieved. But I am clear that this must be inclusion on the basis of a complete and demonstrable commitment to non-violence and exclusively peaceful and democratic means, that fundamental principle of the Good Friday agreement, enshrined in the pledge of office.
"Had the robbery occurred while the Assembly was in operation, however, the decision about exclusion would have been very different. It is inconceivable, in my view, that members of Sinn Fein could again hold ministerial office while the issue of paramilitary activity and criminality on the part of the Provisional IRA remained unresolved.
"The suggestion is made in some quarters that I should restore the Assembly and then, if the Assembly failed to take action to exclude Sinn Fein, that I should take action myself using the powers available to me to exclude it. That would be very difficult in the absence of a clear plan which would see the parties in the Assembly come together on a cross-community basis to form a government for Northern Ireland. However, as I said to the House on 11 January, I have not ruled anything in or out, as we continue to assess possible ways forward for achieving greater local political accountability.
"In the mean time, our focus will remain strongly on dealing with the underlying issue of ongoing criminal activity in all its forms. The police investigation into the Northern Bank robbery is the largest undertaken by the PSNI, who are continuing to follow up every lead. This is inevitably an intense and time-consuming process. In parallel with this, I am taking the opportunity to ensure that our arrangements for tackling organised crime remain fit for purpose, and have asked my honourable friend the Member for Dudley South to review the Organised Crime Task Force to see whether, and how, it might be strengthened.
"We continue to have excellent co-operation at both a political and operational level with colleagues from the Republic of Ireland. I met yesterday with Michael McDowell for a regular bilateral, along with the police chiefs from both jurisdictions. At that meeting, I was pleased to see this co-operation further strengthened by the signing, by the Chief Constable and Garda Commissioner, of protocols that facilitate the movement of officers between both forces in terms of personnel exchanges and secondments with policing powers. This development can only serve to strengthen the existing co-operation between the two police services in tackling terrorism and other crime.
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"Whatever our success in tackling criminality and paramilitary activity, however, the fact of the matter is that the commitment to peaceful and democratic means is not one the Government need to make. As we said in the joint declaration of April 2003,
'ongoing paramilitary activity, sectarian violence and criminality masquerading as a political cause are all corrosive of the trust and confidence that are necessary to sustain a durable political process'.
In the present context, as the Prime Minister and the Taoiseach have both indicated, it is for Sinn Fein and the Provisional IRA to do that. They need to step forward and tell us how they will demonstrate their full commitment to the all the principles of the Good Friday agreement, and how they intend to demonstrate to all the parties in the political process, as well as to the people of Northern Ireland, that the kind of behaviour identified in the IMC report is in the past. Financial penalties of the kind I have described today may signify our strong disapproval of what has happened, but they do not of themselves rebuild the trust that is necessary if confidence is to be restored. That is a matter for the republican movement in general, and for Sinn Fein in particular".
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