Previous Section Back to Table of Contents Lords Hansard Home Page

I mentioned Gerry Kelly’s attendance at the conference only yesterday, as did others, but I am reluctant to bandy about quotations or add to what others have said. There has been a change in the climate and in Sinn Fein’s attitudes towards policing, to the point where it has met that test and surmounted that hurdle, and neither I nor the Government seek to erect any further hurdles. I fully accept that the proof of the pudding will be what happens on the ground. It will be tested on a case-by-case basis. Those who look at these things day by day will see whether Sinn Fein delivers. The people involved have that responsibility and know that they will be tested. They must pass all those tests. If they do not, we have a problem. It does not help if I say that someone said this and someone else said that. All the quotations are on the record, and they are common currency in Northern Ireland. As I said, the test has been passed, which is why we are where we are now: on the verge of devolved government.

20 Feb 2007 : Column 1053

On criminal activity, I can only refer to what I said in my opening remarks. I quote from the Independent Monitoring Commission’s 13th report, which was published on 30 January this year, in which it said:

We have to test that quotation against the reality.

The noble Baroness, Lady Harris, asked about non-jury trial arrangements in Northern Ireland in respect of the rest of the United Kingdom. We think that Northern Ireland is on the road to normalisation; we are positive about that, but it is not yet the same as the rest of the UK. We fully accept that. The noble Lord, Lord Glentoran, made that abundantly clear and I agree with what he said. There is still a threat from loyalists and dissident republicans, and people live in small, close-knit communities in Northern Ireland. The dispersal of the population is different from that in the rest of the United Kingdom. It is not analogous to England, rural Wales or rural Scotland. Those communities are therefore vulnerable to paramilitary control. One day we hope that it will be as safe as the rest of the United Kingdom; it is not there yet. The Bill is helping us to deal with it on the way.

The noble Baroness asked why we could not have a judicial process like that in the Criminal Justice Act 2003, to which other colleagues referred. We believe that we have designed a system focused on the circumstances in Northern Ireland. An administrative system would enable us to protect the intelligence material that will provide the basis of many of the arguments in favour of non-jury trials. We must also make sure that we can protect the sensitive intelligence material that will form the basis of the arguments of a non-jury trial. In a judicial process we would have to share that with the defence. The only other way to protect it would be by the use of special advocates, but that is not ideal. Special advocates are a scarce resource for use in exceptional circumstances, not routine cases. It seems to us that in this instance an administrative process is desirable.

The Northern Ireland courts in Shuker decided that that type of decision was one on which, par excellence, the court should be reluctant to intrude. That is the point. The noble Lord, Lord Trimble, suggested that the decision be made not by the DPP but maybe by the Attorney-General. We are reluctant to put forward the case that a Minister in London should decide, in effect, the mode of trial. That is what the decision is; it is about the mode of trial. It is not going to be about the fairness of the trial because no one is going to argue about that. We have enough experience in non-jury trials; it is about the mode of trial. I do not think that it would be satisfactory for a Minister in London to do that; the DPP in Northern Ireland is highly respected.

I turn to Clause 7. I will not get into the legalistic points, although no doubt I will in Committee. Ministers do not consider it an ouster clause in the sense of the other legislation, referred to by the noble Lord, Lord Lester, in this House either last year or

20 Feb 2007 : Column 1054

the year before. The clause restricts challenges to the Director of Public Prosecution’s decision to cases where there has been bad faith, dishonesty or other exceptional circumstances. That places the current case law about reviews of the Attorney-General’s decision not to de-schedule in Diplock cases on a statutory footing. That comes from the Shuker case, to which the noble Lord referred. That case confirmed that the procedure for determining the mode of trial of the accused is not a process suitable for the full panoply of judicial review.

A case would be reviewable, however, on grounds such as bad faith or dishonesty. The clause is not a change from the current position. In any event, the DPP’s decision is on the mode of trial. The defendant will receive at least as fair a trial without a jury as with one and he or she will suffer no detriment.

The noble Baroness, Lady Blood, asked why the Human Rights Commission was prevented from looking at the past. I cannot match up all the points. Given the way in which noble Lords raised the issues, it is best if I go through their speeches individually. The restriction at Clause 19 applies only to the new powers to compel evidence. The commission will be able to investigate matters from the past as has been the case for the past eight years.

It will be able to call for information from the past, using the Freedom of Information Act, as it can now. However, in granting those significant new powers, we think that it is right today to direct the use of the new powers towards the investigation of current human rights issues. That is the best way to ensure that the commission makes a positive contribution to the future position of human rights in Northern Ireland. We could be stepping very close to the bounds of retrospective legislation, if we are not careful, and I do not think that anyone wants to go down that road. My noble friend Lady Blood asked about the powers of the Human Rights Commission. They will figure largely, and I should rather deal with them in substantial detail in Grand Committee, where we will have a lot more time.

On deciding the model for the devolved department of justice in the Assembly, to which several colleagues have referred, we do not intend to force anything on the Assembly. That is not the Government's desire. We want it to be done locally. I fully accept some of the points made by the noble Lord, Lord Trimble, regarding his erstwhile colleagues from the unionist family, if I may put it that way—that we will work it, but it is best if it is forced on us. I do not know whether that was what he was saying, but I can fully understand that being the case. Over the years, when I was in the other place, if there was something that we wanted but did not want to call for, if it was forced on us, it was easier to deliver locally. That may or may not be a good thing.

We do not want to force anything on the Assembly, but we would not want to have progress falter over the inability to reach agreement on a specific departmental model. So our strong preference is for the Assembly to agree on the model. Make no question about that. The Assembly should first agree on the model. If it is unable to do so, the model in the Bill has been devised

20 Feb 2007 : Column 1055

after discussion with the Northern Ireland political parties. In the Government's humble view, that represents the best chance of achieving broad acceptance if the Assembly cannot agree on an alternative. If it can agree on an alternative, that is fine.

Of course, that is not necessarily a long-term approach. It has been designed to help the Assembly in the early days of devolution. It will be difficult for the Assembly Members. They will all stand for election and hope to be elected to help to run Northern Ireland. It will not be easy. Since the noble Lord, Lord Trimble, has been in this House, he has given us chapter and verse of the joy and, sometimes, difficulty of taking those decisions. It will not be easy. If we as the Government and as Parliament at Westminster can do anything to make some of those early decisions easier, which can later be amended by the Assembly when trust starts to work and it gels together, that must be a good thing. That is not the Government overriding the legislation for the devolution of policing and criminal justice—far from it.

The noble Lord, Lord Trimble, referred to the fact that Clause 1 refers in three of its limbs—its subsections—to proscribed organisations but not to organised crime. I fully accept the powerful point that he made, but if organised crime is connected with a paramilitary group, the test will be met and a case could be tried without a jury. Because Northern Ireland is changing, where there was not organised crime in the past, it has mutated into a different form. We must deal with that as and when it arises. Our view is that if there is information and intelligence that an organised crime case is connected with a paramilitary group, the test in Clause 1 will be met.

The noble Lord also asked about the opportunity to review the powers annually, or frequently. The Bill provides a power for the Secretary of State to repeal the Armed Forces and police powers by order. Reports of the independent reviewer and the continued monitoring of the use of the powers will provide sufficient transparency concerning the ongoing need for their use. The Secretary of State will seek to ensure that powers remain at the bare minimum necessary for the operational effectiveness of both the police and the Armed Forces by repealing any powers that become unnecessary. So we will repeal any powers that are no longer necessary.

On the primacy of national security, to which the noble Baroness, Lady Harris, referred, the change that we are making will bring Northern Ireland into line with the rest of the United Kingdom and provide a consistent and coordinated response across the UK to the threat from terrorism.

Before I turn to the issue of the Joint Committee, let me deal with an issue that has been referred to by more than one noble Lord—the issue of community-based restorative justice. We note the concerns which have been raised many times in this House and with Ministers about the operation of community-based restorative justice schemes during the two periods of public consultation. It is clear that such schemes will have to comply fully with the rule of law. On 5 February 2007,

20 Feb 2007 : Column 1056

just a week or so ago, the Government published the Protocol for Community-based Restorative Justice Schemes. The protocol establishes a structure that will provide for effective engagement between community-based schemes and the criminal justice system in dealing with low-level offending, which has the police at the centre of the process and includes stringent safeguards to protect the rights of both victims and offenders. The Government have invited expressions of interest from schemes wishing to adopt the protocol and therefore begin the process of seeking formal accreditation. It has always been our position that formal accreditation of these schemes must involve the police at the centre and that the rules must be followed. I suspect that it has taken a lot longer than we initially intended, but that is where we are at the moment. We put that out for consultation only a couple of weeks ago. I hope that I have covered Clause 42. We will certainly go over it in considerable detail in Committee.

I turn now to the speech of the noble Lord, Lord Lester. I am grateful for all the speeches, all of which have been wholly positive and very helpful to those who will advise me in Committee on how to deal with the pressure points. As for safeguards against decisions of the Director of Public Prosecutions, the argument is that the discretion may be exercised arbitrarily. The DPP is a trusted figure in Northern Ireland. He has conducted himself in an exemplary manner in taking decisions in some of the most difficult criminal cases in the history of Northern Ireland. We have confidence in his decision-making. He will be required to apply the test in the Bill—it is a stringent one—in making any decision for a non-jury trial. That decision will be challengeable, albeit in limited circumstances, and it will be for the courts to decide whether a challenge is possible based on the circumstances of each case. As I have said before, the DPP’s decision is between two different modes of trial; it is not about the outcome of the case. Guilt or innocence will be determined at the trial.

The Joint Committee on Human Rights says that allowing non-jury trial for associates of members of proscribed organisations is too broad a provision. We genuinely note concerns about that. However, we are trying to deal with a situation where a terrorist might use their contacts and a position of influence to secure the acquittal of a relative or close friend. Many of the cases where it is alleged that jury intimidation has occurred have involved actions on behalf of the defendant by an associate rather than direct actions by the defendant themselves. That is borne out by the Northern Ireland Crime Survey 2003-04, which reported that intimidation of victims does not always come from the defendant themselves. The Joint Committee has accepted in principle the need for a non-jury trial where there is a danger of jury-tampering or perverse verdicts. Such a risk exists in relation to associates. The DPP will be able to issue a certificate for non-jury trial where he is satisfied that there might be a risk to the administration of justice. This will help to ensure that there is non-jury trial only where it is needed. There will be exceptional cases. We accept that the terms “friend” and “relative” are broad; this is deliberate. The DPP will take into account the quality of the relationship when

20 Feb 2007 : Column 1057

forming a view about the potential risk to the administration of justice. For example, one could be estranged from one’s parents but very close to a second cousin.

To have a test that did not permit non-jury trial in the circumstances that I outlined involving potential tampering by associates could put jurors and their families at risk of intimidation and could lead to an unfair trial. That is the risk, and it is completely unacceptable. The whole point is that we want the trial to be fair. We would prefer that it was with a jury. The presumption is for jury trials; that is our starting point. But in the most exceptional circumstances, where there is a risk of the trial not being fair because of interference with the administration of justice, we would go with the DPP’s decision for a non-jury trial.

The DPP would need to be satisfied that other measures are inadequate before issuing a certificate for a non-jury trial—a point which was raised by the committee. The Bill contains a number of measures designed to reduce the risk and fear of jury intimidation. Other juror protection measures that do not require legislative change, such as increased use of screens from the public parts of courtrooms, are planned. However, we recognise that in exceptional circumstances these measures will not be able fully to address the problem of juror intimidation. For example, the screening and balloting of jurors by number rather than by name will not prevent jurors being recognised by the defendant or while entering and leaving the court building. In a small jurisdiction such as Northern Ireland, the only other measures that could be taken, such as relocation, would have such a large impact on the life of the juror and his or her family that it is too high a price to pay. It is important to recognise that the jury reforms will be available for all cases, not just those where intimidation is considered possible.

On the question of whether the decision of the DPP should be a judicial one—a point raised by the noble Lord, Lord Glentoran, who said that it should be the decision of the Lord Chief Justice—we think that the DPP is in the best position to assess the risk. The decision will be akin to the decision on whether to prosecute; it is that kind of judgment. On a scale of decision-making, it is more akin to the decision to prosecute. We do not believe that it is a decision to be taken by the Lord Chief Justice for Northern Ireland or by judges. The DPP already makes decisions about mode of trial in Northern Ireland and the provision will sit well within that. We believe that we have designed a system that focuses on the particular circumstances of Northern Ireland. An administrative system will enable us to protect the intelligence material that will provide the basis of many of the arguments in favour of a non-jury trial. In a judicial process we would have to share that material with the defence. As I said, the only other way to protect this material would be by the use of special advocates, and that is not ideal. In the case of Shuker, the Northern Ireland courts themselves decided that this type of decision is one that, par excellence, the courts should be reluctant to intrude into. As I said, I will go into that in greater detail in Committee. And as I said to the noble Lord, I will read the judgment itself.

20 Feb 2007 : Column 1058

Lord Lester of Herne Hill: My Lords, I interrupt only to be helpful. I would be grateful if the Minister would consider the following point: if he can give either on judicial review, on the basis of what was said in Shuker, or involve the Lord Chief Justice of Northern Ireland, either of those solutions might be practical. The removal of both gives rise to the problem.

Lord Rooker: My Lords, I accept that; clearly I shall have to come before the Grand Committee briefed to deal with it. This is not a question for decision at Second Reading. These are issues of concern to the Joint Committee and they must be treated seriously. I am being reminded by my noble friend and colleague Lady Farrington that she will hit me if I do not sit down in a moment.

I want to make a further point in response to the noble Lord, Lord Lester. Paragraphs 1.88 and 1.89 of the Joint Committee report suggest that the Bill should require members of the Armed Forces to state reasons for arrest. The Armed Forces power of arrest is limited to four hours. Within that time and as soon as possible the person will be rearrested by a police officer who has been trained to read to the individual their rights and cite what offence they are being arrested for. So I hope that people will be told why they are being arrested. It would not be possible to train members of the Armed Forces to the same standard as a police officer, particularly given that these powers will be used very rarely. Although the Armed Forces currently give a broad description of why they are arresting someone, throwing a petrol bomb for example, it is not necessary or easy to turn this into a statutory obligation. Rearrest within four hours by the police means that the power is human rights compliant. I accept that the noble Lord is worried about cases leading to declarations of incompatibility, but we are confident that that will not happen. The Army has been using similar powers for years without such a declaration. There is a bit of history to this; it is not new.

In the last part of the Joint Committee document, paragraph 1.96 refers to powers to ensure that searches for munitions and transmitters are not disrupted and may not be compliant with Article 5 of the convention, on the right to liberty. These powers normally amount to a restriction of liberty rather than detention. The important distinction was recognised by the House of Lords in recent case law. Where Article 5 of the ECHR is engaged, the power can be justified in terms of seeking to secure the fulfilment of an obligation proscribed by law and to safeguard the public in explosives cases. We intend to provide some further guidance on exercising that power.

It is essential to remember that these powers are necessary to ensure the safety of the officers involved and the public. They will be used in a limited manner and only when necessary. There are other points, and I accept that I have not answered all of them, but they will certainly come to Grand Committee.

I need to answer two points made by the noble Lord, Lord Glentoran, as a courtesy. On whether the Security Industry Authority is equipped to deal with paramilitaries, we are confident that it can meet the

20 Feb 2007 : Column 1059

challenge. Officials are working with the SIA and the police to address the issue. I realise that there have been some administration and bureaucracy issues, with a lot of last-minute applications, which is always the case and can lead to difficulties.

The noble Lord mentioned small venues which are not covered by the Safety of Sports Grounds Act and asked whether they will be burdened with SIA regulation. We do not wish to place unnecessary burdens on smaller sports venues in Northern Ireland, but we are obliged to ensure the safety and security of all citizens in Northern Ireland. Our officials are in discussion with the Department of Culture, Arts and Leisure and the Sports Council for Northern Ireland about the issue. It is a matter that will require further consideration.

As for whether stewards will be covered by the legislation, the Security Industry Authority considers the full range of activities that an individual performs when deciding whether they are to be licensed. For

20 Feb 2007 : Column 1060

example, checking tickets, directing spectators or visitors and providing safety advice are not normally licensable activities. These activities would be licensable only if they were undertaken together with a manned guarding activity. I have lots of brief on definitions of manned guarding activity, but we do not need to go into that now.

I am grateful for the contributions that we have received. I sincerely hope that we will have a successful Grand Committee. There is a fair amount of time between now and the first Grand Committee sitting; I do not have the date but it is a few weeks away. There is enough time for informal discussions and for amendments to be suggested. We are open, as is known, to making officials available to Members to see what they want to achieve, what is possible and whether we can have the necessary debate.

On Question, Bill read a second time, and committed to a Grand Committee.

Next Section Back to Table of Contents Lords Hansard Home Page