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Where we are at the moment is extremely difficult. The scene and social set-up in Northern Ireland is not the same as in England. It is smaller and more inward-looking with a history that has left many communities in fear and feeling uncertain about what is happening. They have been threatened and bullied by various gangs for many years. What we have to do is make sure that, if necessary, the PSNI can bring charges and get convictions without a jury because the Government must, above all things, be able to defend jurors and not put their lives or families at risk.

The Attorney-General (Lord Goldsmith): My Lords, I am grateful to the noble Baroness, Lady Harris, and the noble Lord, Lord Glentoran. I am also grateful to all those—I see in their places the noble Lord, Lord Trimble, the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Avebury—who participated in what I thought was a very constructive discussion in Grand Committee. I also thank all those with whom I have had conversations since and for the great care taken by the noble Lord, Lord Glentoran,

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in investigating from his own point of view how to get this right in Northern Ireland. He and the noble Baroness are absolutely correct to say that we have to try to get the right balance in these matters. I have never suggested that it is straightforward, but we are of the view that, unfortunate though it may be, it is a fact that the position in Northern Ireland remains, and may remain for some time, one where there needs to be a different test for avoiding jury intimidation and things of that sort from the one that would apply in England and Wales. That is why the noble Baroness was right to point out that the test for England and Wales is tougher to satisfy than the test in this Bill, but that is deliberately so for the reasons which have been explained.

The fundamental question put by the noble Baroness is whether the Government are of the view that they have set the balance at the right level. I committed to reflect on a number of suggestions helpfully made in Grand Committee. That has been done and the conclusions were set out in a letter from my noble friend Lord Rooker, copied to all Members who participated in the earlier debates. The short answer essentially is yes, we do believe that we have the balance right, and I shall explain why, but it is correct also to make the point highlighted by the noble Lord, Lord Glentoran, that if the House accepts the proposed sunset or time-limiting clause shortly to be moved by my noble friend Lord Rooker, it will provide an opportunity to see how the test has operated when the House considers a report that no doubt it will want to see on the operation of the Act.

Although we debated them in Committee, I want to make one or two points. First, I think it is now the view of the House, and I appreciate it, that we can have confidence in the scrupulous way in which the current Director of Public Prosecutions for Northern Ireland has discharged his duties. His tenure in office has required him to consider some of the most difficult cases, and in Grand Committee the noble and learned Lord, Lord Mayhew of Twysden, was good enough to make that point based on his own experience. Many of the cases dealt with by the DPP are complex, and confidence in the prosecution service is in no small measure due to the way in which he has scrupulously fulfilled those responsibilities. I have no doubt that he will take exactly the same rigorous and conscientious approach to the new duties that the Bill will impose on him.

The concern has been whether by setting the barrier too high one would put too high a burden before these provisions can be operated. As I explained in Grand Committee, one has to look at the effect of striking the balance in the wrong place. If we put the barrier too high, the risk is that cases which ought to be dealt with under the special provisions in the Bill will not be dealt with in that way. The risk is that there will not be a fair trial because there may be jury or witness intimidation—jury intimidation, particularly. Worse than that, there is a risk that juries might be subjected to violence, which we want to avoid.

Setting the test a little too low could mean that a case is dealt with under the special system under the Bill rather than by a jury; I believe that everyone is

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agreed that that would be a fair trial, albeit a trial by judge alone. No one has challenged that proposition; everyone has agreed. The history of the Diplock courts in Northern Ireland shows that the judges have conducted themselves with conspicuous fairness in the trials which they have conducted without a jury.

We are concerned that the amendments would risk setting the test too high. We believe that we have struck the right balance and that we ought to keep it, very much for the reasons that the noble Lord, Lord Glentoran, gave. However, we will have an opportunity to see how the legislation has operated if the House accepts the proposal for a sunset clause. On that basis, I invite the noble Baroness to accept the Government’s assurance and withdraw the amendment.

Baroness Harris of Richmond: My Lords, I am most grateful to the noble and learned Lord the Attorney-General. We would never criticise what the DPP has done in the past; indeed, quite the reverse, as the noble and learned Lord said. The DPP has been excellent in dealing with very difficult cases. We recognise how difficult it must be for the Government to get the balance right and understand how the test must be just right. We recognise all the difficult work all the judges in Northern Ireland have had to do, especially the Diplock court judges. With the assurances that the noble and learned Lord has given and with the knowledge that there will be a sunset clause, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 7 [Limitation on challenge of issue of certificate]:

Lord Avebury moved Amendment No. 3:

The noble Lord said: My Lords, this amendment is in the name of my noble friend Lord Lester of Herne Hill, with whose permission I move it. We have already dealt with the issues arising on Clause 7 in Grand Committee, so I need summarise them only very briefly.

The clause prevents the ordinary courts entertaining challenges to the DPP’s decision under Clause 1 to certify that a trial is to be conducted without a jury. As the Bill stands, the certificate can be questioned only on grounds of dishonesty, bad faith or other exceptional circumstances, and we relied on the report of the Joint Committee on Human Rights on the Bill to argue that the Government had misread the Shuker judgment on which the clause was said to be based and that Parliament had consistently set its face against statutory ouster clauses. We had the powerful support of the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Trimble, who cited the observation by the Lord Chief Justice, Sir Brian Kerr, in the Shuker case that,



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However, he added that it would not be,

The noble and learned Lord the Attorney-General explained that the main reason for the clause was that, in issuing the certificate, the DPP would almost always have relied on sensitive human intelligence which he could not reveal but which would certainly be demanded by the defence if a challenge to the DPP’s decision was allowed.

The noble and learned Lord also disputed the JCHR’s reading of the Shuker judgment and drew attention to the quotation, in paragraph 17, by the Lord Chief Justice of a sentence from the judgment of the noble and learned Lord, Lord Steyn, in the case of Kebilene, where the words “exceptional circumstance” were used. That, he told the Grand Committee, was the language that had been picked up for the purpose of this clause.

The first of these arguments was already known to the JCHR; it dealt with it explicitly in paragraph 1.34 of the report. The gist of it was recited in Grand Committee, so I do not need to go over it again. The JCHR welcomed the amendments tabled by the Government following the debates in another place, but it pointed out that the High Court of Northern Ireland had taken on board the sensitivity of the information on which the DPP's decision was based and had still rejected it as an argument for ousting the jurisdiction of the court.

The Kebilene case was not germane to this debate, because the decision of the DPP there was not to deny a jury trial but to consent to criminal proceedings before a jury. Incidentally, the words attributed by the Lord Chief Justice to the noble and learned Lord, Lord Steyn, were in fact those ofMr Pannick of counsel. The Lord Chief Justice, followed by the JCHR and the noble and learned Lord the Attorney-General, left out seven crucial words at the beginning of the quotation. The noble and learned Lord, Lord Steyn, said that Mr Pannick had contended that,

I emphasise those words—

I therefore suggest to the noble and learned Lord that it is inappropriate to use those words as a model in this context, reading across from a common law principle applying to a decision to prosecute to a statutory rule applying to a decision to deny jury trial. In any case, the noble and learned Lord, Lord Steyn, specifically disclaimed the application of this principle to the Kebilene case. The paragraph in that judgment, following the one just quoted, begins:

Whether the analogical force of Section 29(3) of the Supreme Court Act 1981, which prohibits an application for judicial review of the decision of the Crown Court judge to refuse to hold a prosecution to be an abuse of process by reason of an alleged breach

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of the convention, extends to the matter under review, as it did in Kebilene, I would not have the temerity to say, but I would like to hear it argued.

No doubt these matters have been covered in the discussions since Grand Committee between my noble friend Lord Lester and the Attorney-General. As I understand it, they were moving towards a compromise under which the clause would be retained but the grounds on which judicial review could be sought would be widened. My noble friend has suggested “other lack of jurisdiction” instead of “other exceptional circumstances”, and we believe that this amendment would bring the clause more into line with accepted judicial principles. It takes full account of the Attorney-General's concerns, which are shared by my noble friends, about the unique circumstances of Northern Ireland, where non-jury trials may still be needed for some time to come and it is undesirable to open the reasons for certifying a case to examination because it would compromise the security of human intelligence.

I fully understand that the Attorney-General may not have had sufficient time to consider this proposal since it appeared on the Marshalled List, but I hope that he will indicate this afternoon that discussions with my noble friend are still in progress and that he is hopeful that a mutually acceptable form of words can be agreed. I beg to move.

3.30 pm

Lord Trimble: My Lords, I thank the noble Lord, Lord Avebury, for his reference to me and our discussions in Grand Committee. However, I remain of the opinion that I expressed then: the clause is unnecessary and the Government would be well advised to leave it out. I am sorry to say that I do not see the amendment tabled by the noble Lord, Lord Lester, as particularly helpful. I suspect that it would narrow the scope for challenge rather than extend it as the noble Lord wishes. From a drafting point of view, it would be much better to insert “lack of jurisdiction” as an additional ground rather than take out “exceptional circumstances”. The one good thing that can be said about the clause is the reference to exceptional circumstances, which gives the judges a door through which they can walk if they think that it is appropriate to do so.

Lord Goldsmith: My Lords, I am grateful to both noble Lords and to the noble Lord, Lord Lester. I knew that the noble Lord would not be able to be here today, and I entirely understand.

I should like to get one technical point out of the way. I listened with interest to what the noble Lord, Lord Avebury, said about the Lord Chief Justice of Northern Ireland quoting from the noble and learned Lord, Lord Steyn. I beg to differ with him, however. I have the report with me; on page 371, between letters f and g, the noble and learned Lord, Lord Steyn, says:



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That is the passage quoted by the Lord Chief Justice of Northern Ireland in the Shuker judgment, not an earlier passage that recites what counsel had submitted. Just to be technical about that, I think that what has been said about the Shuker judgment is correct.

Fundamentally, the issue has been how to produce a situation in which, as I explained in Grand Committee, there would not be an undesirable risk that sensitive intelligence information, on which these decisions are generally based, would have to be revealed. The conversations that I have had outside the House have been very helpful in getting a common view as to the significance of that point and how to deal with it. But the noble Lord, Lord Avebury, is right in saying that I am not in a position today, given the time at which the amendment was tabled, to express a concluded view on it. Therefore, if your Lordships are agreeable, I propose that we accept the invitation of the noble Lord, Lord Avebury, that I should continue to discuss the matter with the noble Lord, Lord Lester. Then the matter can be brought back at Third Reading to be decided one way or the other. It is a slightly unusual approach, but I hope that your Lordships will agree.

Lord Avebury: My Lords, I am most grateful to the noble Lord, Lord Trimble, for his intervention. I was advised, technically, that the words “lack of jurisdiction” included exceptional circumstances and were wider. I specifically questioned that point with those who assisted us in drafting the amendment and was assured that it was so.

I am most grateful to the noble and learned Lord the Attorney-General for his assurance that the matter is not closed and can still be the subject of further discussions between my noble friend and himself.

The words that I quoted from the Kebilene judgment were taken from the text available in the public domain on the British and Irish Legal Information Institute website. I am afraid that the paragraph number is not given, so I cannot argue with the noble and learned Lord about which paragraph I am referring to. However, the material point is in the words that I cited:

which precede the sentence quoted in the Shuker judgment. My argument was the substantive one that you could not read across from the common-law principle to a rule of statute as the drafters of this legislation have attempted to do. However, it may be best to leave that matter for the discussions between my noble friend and the noble and learned Lord. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rooker moved Amendment No. 4:



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(a) must be made before the time when the effective period would end but for the making of the order, and(b) shall have the effect of extending, or further extending, that period for the period of two years beginning with that time.(a) a certificate under section 1 has been issued, and(b) the indictment has been presented,before their expiry.(a) shall be made by statutory instrument, and(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.”

The noble Lord said: My Lords, I wish to speak also to Amendments Nos. 13, 14 and 15.

This group of amendments provides that the system of non-jury trial in the Bill will expire after two years unless the Secretary of State makes an affirmative resolution order to extend it for a subsequent two-year period. I hesitate to use the shorthand term for what we are doing here but it is more rolling renewal than sunset because each two years is a separate period.

The system of non-jury trial contained in the Bill has always been intended to address the particular circumstances of Northern Ireland, in particular the paramilitary and community-based pressures that jurors in Northern Ireland face. The Government have long made clear their commitment to return to jury trial in all cases in Northern Ireland as soon as the security situation permits. We believe that these amendments will help underline the exceptional nature of the system. The change will also give Parliament the opportunity regularly to debate these important issues. As I said, the system will lapse after two years unless an affirmative order is made. In order to do that a Minister must stand at the Dispatch Box and at least give some semblance of a review and assessment of what has happened in the previous two years.

For the avoidance of doubt and to assist in our deliberations I should mention the relevance of Amendment No. 13, which provides that parts of the new clause extend to England and Wales as well as Northern Ireland. It is necessary because some of the other legislation containing references to the system that will need to be repealed on expiry will be legislation that extends to England and Wales; for example, the non-jury trial system in the Criminal Justice Act 2003. I add that for clarification of this little package of amendments. I beg to move.



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Baroness Harris of Richmond: My Lords, we welcome these amendments, especially the reassurance that the Government intend these to be simply temporary measures. We are very pleased that the Government have chosen the affirmative process for renewing the provisions, which means that Parliament as a whole will determine their future.

Lord Smith of Clifton: My Lords, the Minister said that a Minister would have to come to the Dispatch Box to offer some semblance of a review. I hope that it would be more than a semblance.

Lord Glentoran: My Lords, I support the amendment, as I intimated earlier.

Lord Rooker: My Lords, I am grateful for the widespread support for the amendments, if not the way in which I spoke to them.

On Question, amendment agreed to.

Clause 14 [Investigations: evidence]:

Lord Trimble moved Amendment No. 5:

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