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If the argument the Attorney-General puts is as important as he indicates, that points towards a complete ouster. He is not ousting; he is still enabling applications to the court in these circumstances, the third provision of which, as he pointed out, is not clearly defined. I had doubts about it. I was not altogether comfortable with that third one. But the situation he was worried about—that of people going into court and seeking information that should not otherwise be disclosed—can happen under the clause as he has drafted it. He still enables people to go into court and say, “I want to challenge this on the grounds of some exceptional circumstance” and then in the course of those proceedings try to get at the information that the Attorney-General wishes to protect.

The point that the Attorney-General was making is undermined by the fact that this is not a complete ouster.

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Lord Goldsmith: I did not want to prolong this matter, but I cannot withstand the noble Lord’s stare. I invite him to reflect on this. I made it very clear that I wanted to reflect on what noble Lords have said. I fully recognise that this is an important clause, and I want to consider it. I have also asked noble Lords to consider the problem that exists. It can be said that the clause as it stands has the benefit that the court would say, “We have a clear message from Parliament that it does not expect us to interfere as a matter of course. It expects us only to interfere exceptionally on one of these grounds, and at least you, defendant, have to make out what that ground is rather than simply saying, ‘Well, we need the director to reveal all his information and then we will tell you what the ground is’”. The noble Lord will understand the forensic situation in which one may find oneself in that case. But, as I say, I shall reflect on what has been said.

6.15 pm

Lord Avebury: The noble and learned Lord has very fairly said that he will reflect on all that has been put to him, and he said also earlier that he is prepared to discuss, offline as it were, with noble Lords any points that arise in Grand Committee which remain causes of anxiety. I think this is par excellence one of those issues. It is difficult for us to resolve it across the Floor of the Committee, particularly in the absence of my noble friend Lord Lester who drafted the amendment. I am sure that when he reads our discussion, he will have some strong opinions on the matter and would probably want me to point out before we leave it that although, as the noble and learned Lord has said, the Select Committee welcomed the narrowing of the scope of the clause, it was by no means satisfied that that met the whole of its case. There are issues that it would be useful for us to leave for the moment, but to take up with the noble and learned Lord in his offer to continue our deliberations outside the Chamber before we reach the further stages of the Bill.

Clause 7 agreed to.

Clause 8 [Supplementary]:

[Amendment No. 17 not moved.]

Clause 8 agreed to.

Schedule 1 agreed to.

Clause 9 agreed to.

Schedule 2 agreed to.

[Amendment No. 18 not moved.]

Clauses 10 and 11 agreed to.

Clause 12 [Abolition of peremptory challenge in criminal cases]:

Lord Avebury moved Amendment No. 19:

The noble Lord said: We have come to the question of equality of opportunity for the defence and the prosecution to conduct juror checks, which is discussed in paragraph 138 and following paragraphs in the report of the Joint Committee on Human Rights. Noble Lords will have noticed that I am following

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closely on the text of that report and the recommendations made in it. I hope that, as a general principle, noble Lords would pay close attention to what is said in the report and, indeed, in any other report produced by the JCHR; otherwise, what is the point of having the committee? If the committee scrutinises legislation with the benefit of very distinguished legal authorities who are members of that committee and comes forward with recommendations, it would be fatuous to ignore them or not take them seriously.

Here is a case where I hope that noble Lords will see that there is a strong argument for Amendment No. 19, which concerns the established principle that parties in legal proceedings must have equality of arms to be able to pursue their respective cases.

Clause 12 abolishes the defendant’s right to peremptory challenge. The Government have explained that this should not compromise a defendant’s right to a fair trial because, according to their thinking, the defendant will continue to have the right to challenge any juror for cause. They explain that the reason for abolishing the defendant’s right to peremptory challenge is to limit his ability to pack a jury, thereby reducing the risk of perverse verdicts. I suppose that is based on the assumption that people’s religious beliefs may affect their decisions on a jury.

The Northern Ireland Human Rights Commission agrees that the right of peremptory challenge may compromise justice, but it recommends that, in order to reduce the risk of perverse verdicts, both the defendant’s right to peremptory challenge and the Crown’s right to stand-by ought to be removed. That is why we believe this amendment is necessary in order to ensure compatibility with the principle of “equality of arms” implicit in Article 6.1 of the European Convention on Human Rights, that no party must be under procedural disadvantage compared with any other party in litigation.

The JCHR report refers to the guidelines that the Attorney-General proposes and what the contents of those guidelines should be. When the committee reported, the Government said that the policy in relation to the guidelines on jury checks had not yet been settled, but it was anticipated that they would closely reflect those that already apply in England and Wales, a copy of which they provided to the committee. I would be grateful if the Minister could tell us whether those guidelines are available and whether your Lordships might have a copy of them, either now or at any rate before we come back to this question on Report. I beg to move.

Lord Mayhew of Twysden: It is about 14 years since I ceased to be Attorney-General, and in my recollection the right of the Crown to stand-by without cause was abolished in England and Wales a good deal earlier than that. It was anomalous. It has a rather bad effect upon the juror against whom it is applied, because no reason is given. The counsel for the prosecution simply says, “Stand by for the Crown”, whereupon he is asked to stand down, and off he goes, not knowing what on Earth is thought to be the matter with him. Secondly, it is desirable that the same rules shall apply in Northern Ireland as in England and Wales. However, there are, unhappily, still difficulties that are peculiar to Northern

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Ireland, and I can see that it may be impracticable for the Crown to say, when seeking to rely upon a challenge for cause, quite what it is that is the matter—what makes the potential juror an unsuitable member of the jury. Therefore, I am afraid I am not at the moment persuaded that this amendment should be supported. At the cost of some anomaly, there continues to be a justification for this in Northern Ireland.

Lord Goldsmith: I shall respond immediately to the question raised by the noble Lord, Lord Avebury, about whether I have the England and Wales guidelines with me. I have. They were sent to the Joint Committee on Human Rights Committee as well. I hesitate to suggest that it is just possible that they are the guidelines of the noble and learned Lord, Lord Mayhew of Twysden, because they look as if they emanate from about the time when he would have been in office. I may be wrong about that, though, and we will invite him to check that later. I say that without any concern, because they are very good guidelines.

Lord Mayhew of Twysden: Almost certainly mine, then.

Lord Avebury: It seemed to me, from reading the JCHR report, that there were other guidelines, and that those that had already been formulated with regard to England and Wales would not apply here.

Lord Goldsmith: I shall explain the position. I need to set this in context. Clause 12 amends the Juries (Northern Ireland) Order 1996 to abolish the defendant’s right of peremptory challenge. In England and Wales, peremptory challenge was abolished by the Criminal Justice Act 1988. From what has been said so far in the debate, I do not understand that the basic principle that it is right to abolish the right of peremptory challenge is in issue.

The noble Lord’s amendment would remove the Crown’s right to request that a juror be stood-by. As he said, it is based very closely on concerns expressed by the Joint Committee on Human Rights.

If this provision is passed as it stands, I intend to introduce guidelines, broadly comparable to those which have operated in England and Wales since 1988, making clear that the Crown should assert its right to stand-by only on the basis of clearly defined and restrictive criteria; namely, where, in cases involving national security or terrorism which are being tried with a jury—many will not be if the rest of the Bill is passed—an additional jury check reveals information justifying the exercise of stand-by and the Attorney-General personally authorises the exercise of the right of stand-by; or where a person is about to be sworn as a juror who is manifestly unsuitable, and the defence agrees that stand-by would be appropriate. I hope that gives an indication of how the measure will operate. It is broadly comparable to the guidance which operates in England and Wales.

I do not accept that the principle of equality of arms prevents that proposal. As the report of the Joint Committee on Human Rights makes clear, the principle of equality of arms requires that the defendant should

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not be placed at a substantial disadvantage. I do not consider that the proposal to abolish peremptory challenge will place a defendant at a substantial disadvantage or interfere with the overall right to a fair trial. He will continue to enjoy adequate protection through retention of the right to challenge for cause. I do not agree that the proposal to abolish peremptory challenge while retaining stand-by in a very restricted form—that is what the guidelines that I shall issue will do—infringes the equality of arms principle.

ECHR jurisprudence establishes that, although the overall fairness of a criminal trial cannot be compromised, limited qualification of the constituent rights within Article 6 can be acceptable if they are proportionate and directed towards a legitimate aim. I believe that making provision for the limited use of stand-by in the way I have indicated is proportionate to the overall objective of ensuring that the trial process is fair and delivers justice for defendants, victims and society at large.

If the noble Lord does not have a copy of the existing guidelines, I shall make sure that he and any other noble Lords are provided with one. I hope that he will accept the explanation I have given; that the exercise of the right to stand-by will be very limited under the guidelines and will be a justifiable measure to retain given the risks in those very few cases where a problem may arise. It may help if I tell the noble Lord that during the past six years that I have been Attorney-General I can recall only two occasions where I have authorised the prosecution to exercise this right. Those cases involved national security or terrorism. That indicates that this is a very restricted right, but one which I believe needs to be retained for those exceptional cases.

6.30 pm

Lord Avebury: It is helpful to have on the record what the noble and learned Lord has said about the manner in which he approached the task of issuing the guidelines that are relevant here and their relationship to the existing guidelines in England and Wales. This may be another matter on which we could have a discussion offline, as on the previous debate on whether Clause 7 should stand part. Presumably when the noble and learned Lord says that the principle of equality of arms means only that the parties should not be at a substantial disadvantage to one another, then in exercising the right to apply this clause the Attorney-General would have regard to the question of how far, if at all, the defendant was disadvantaged by the use of the power. If he felt that there was a substantial disadvantage, it would not be exercised. However, these are matters which it will be useful to discuss with my noble friend when he reads what has been said this afternoon. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 agreed to.

Clause 14 [Investigations: evidence]:

Lord Avebury moved Amendment No. 20:

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The noble Lord said: The paragraphs in the report of the Select Committee relevant to this clause are numbered 162 to 164. Clause 14 enables the Northern Ireland Human Rights Commission to issue a notice to a person requiring that person to produce information, documentation or to give oral evidence. Subsection (4) states that the NIHRC may issue this notice only if the matter to which the notice relates has not been investigated sufficiently by some other person. The Government have argued that this safeguard is necessary to ensure that the NIHRC’s powers are exercised appropriately and that the human rights of those who might be placed at risk by the evidence are protected.

It should not be a condition of the commission’s power to procure evidence that no other person has conducted an investigation into the matter in question. It may well be that the matter has been investigated by another person who has a different mandate and focus than the NIHRC would have in its own investigation. So the commission should have the power to investigate a matter and call for evidence where it believes that it is necessary to do so. The JCHR takes the position that the clause should be a requirement and not a substantive condition. I beg to move.

Baroness Harris of Richmond: I shall speak to Amendments Nos. 21, 26 and 28 tabled in my name and that of my noble friend Lord Smith of Clifton. Amendment No. 21 is consequential on Amendment No. 20, while Amendments Nos. 26 and 28 employ a similar argument in relation to national security. The new provision prevents the NIHRC considering in an investigation whether an intelligence service has acted or is acting in a way incompatible with a person’s human rights or other matters concerning human rights in relation to an intelligence service. The NIHRC identifies three key issues arising from the provisions of the Bill: restrictions on the use of evidential powers, including national security exclusions, fettering of access to places of detention, and the time limit on using new powers.

The NIHRC argues that the provision in the Bill enabling the recipient of a notice that the commission may issue requiring the production of evidence to apply to a county court for cancellation of the notice would not add to the protection of human rights, and cites the UN Paris principles in support of its view that national human rights institutions should be able to take action falling within their competence, subject to responsible use of their powers, as determined in this case against the ordinary threshold of judicial review.

I also cite the recent report by the Police Ombudsman for Northern Ireland into allegations of collusion between the police and their informants, which said:

These amendments seek to ensure that accountability.

Lord Rooker: The case made by the noble Lord and the noble Baroness can be seductive, but one has to ask, if a matter has been sufficiently investigated, how

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come another publicly funded body with finite resources should duplicate the investigation? We are not talking about a cursory glance at the issue; the Bill says that the matter has been “sufficiently investigated”. I am not sure why the commission itself, if it concluded that a matter had been sufficiently investigated, would want to proceed.

The significant new powers we are extending add value to the protection of human rights in Northern Ireland. We do not think that would be achieved by investigating matters in a duplicated fashion, particularly if they have been sufficiently investigated. It is worth noting that the provisions will allow a court to cancel a notice seeking to compel evidence on the grounds that it is unreasonable. We have not invented that for the Bill; it mirrors the provisions in the Equality Act 2006, which established the Commission for Equality and Human Rights in Great Britain. There is a direct, comparable situation here. One has to take account of the special circumstances in Northern Ireland, but, all things being equal, the objective is to make these systems as comparable as possible. That is quite reasonable.

A court could consider whether the fact that a matter had been sufficiently investigated made a further investigation unreasonable. As a result, the amendment would remove the duty on the commission to conclude that a matter had not already been sufficiently investigated, but would not remove the ability of a court to consider that as grounds for appeal against the notice seeking to compel evidence. These are two sides of the coin. As I say, our provision mirrors the Equality Act 2006, which applies to Great Britain. There cannot be a justifiable reason for making it different for Northern Ireland in circumstances where—I emphasise—a matter has been sufficiently investigated in the past by another obviously competent body.

Lord Avebury: We will discuss what the Minister said with the Northern Ireland Human Rights Commission and we will establish whether it is satisfied with the answer he gave. There may be circumstances that we cannot entirely envisage where it would be necessary for it to pursue investigations of matters that had been thoroughly looked into by someone else. If we cannot identify those at the moment, the best thing we can do is have a word with the NIHRC, and we will come back to the Minister if necessary. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

Baroness Harris of Richmond moved Amendment No. 22:

The noble Baroness said: Clause 14 severely limits the capacity of the Northern Ireland Human Rights Commission to investigate anything connected with national security. The proposed new Section 69B takes no real account of the particular circumstances of Northern Ireland as a society emerging from a prolonged conflict in which human rights issues frequently arose in relation to the activities of the intelligence services and of the police in relation to national security matters.

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Northern Ireland has been through terrible times. New Section 69B seems not to recognise those particular circumstances. Many human rights issues arose then—as we have seen from the ombudsman’s report—about the police and collusion. In practice, the Bill could forbid any disclosure to the commission of any relevant information from the past, the present and the future. That simply cannot be right.

At present, there is no restriction in the Northern Ireland Act 1998 on the ability of the commission to investigate national security issues. New Section 69B(5) has the effect of reducing rather than enhancing the commission’s powers. It states that any investigation by the commission, whether or not it seeks to compel evidence, is prohibited from considering any matter concerning human rights in relation to the Security Service, the Secret Intelligence Service or GCHQ.

It is one thing to prevent sensitive information coming into the public domain. We all accept that there will always be a necessity to protect national security, but it is entirely another thing to prevent questions ever being raised. The scope of this section places virtually every aspect of intelligence activity, whether past, present or future, beyond investigation by a statutory human rights agency. It restricts the scope of any investigation severely and forbids the commission to look into anything concerning human rights in relation to the intelligence services. It runs the risk of diminishing the commission’s credibility.

How can the public feel confidence that the security services are complying with their obligations under human rights legislation? It is at the very point where national security concerns are raised that oversight must be allowed if abuse of the system is not to become an issue if the exercise of power becomes unquestioned. If it becomes unquestioned, it becomes unaccountable and most likely to be taken advantage of. If the commission cannot even consider whether the intelligence services are breaching human rights, it will not have the opportunity to have the question of what evidence it can look at adjudicated by the tribunal established under the Regulation of Investigatory Powers Act 2000.

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