JUSTICE AND SECURITY (NORTHERN
IRELAND) BILL
1. The Committee is appointed "to examine
the constitutional implications of all public bills coming before
the House; and to keep under review the operation of the constitution".
2. We draw clause 7 of the Justice and Security
(Northern Ireland) Bill to the attention of the House as containing
provisions that seek to limit the jurisdiction of the courts.
We share the concerns expressed by the Joint Committee on Human
Rights in their Fifth Report.[1]
The constitutional dangers of ouster clauses are too well-known
to need lengthy discussion. The rule of law is diminished if an
aggrieved citizen is barred from challenging an allegedly unlawful
decision taken by a public authority. Clause 7 seeks to put onto
the statute book an exclusion that would restrict the grounds
upon which a challenge may be made to a decision by the Director
of Public Prosecutions to issue a certificate requiring a defendant
to be tried by a judge sitting alone rather than with a jury.
3. The clause was significantly modified during
the passage of the bill through the other House. We welcome these
concessions and the willingness of Government to listen to the
criticisms that have been made of the clause. We remain unconvinced,
however, that the clause is either necessary or constitutionally
acceptable. The Government has sought to justify the ouster clause
in two main ways. We do not find these arguments persuasive either
individually or cumulatively.
4. First, it is said that the clause merely puts
onto the statute book what has already been annunciated by the
court in In Re Shuker and Others [2004] NI 367.[2]
In that case the High Court in Northern Ireland considered whether
a decision by the Attorney-General under the existing arrangements
for ordering non-jury trials was subject to judicial review. The
court held that although, in principle, orders for non-jury trials
may be subject to judicial review challenges, "the courts
should be reluctant to intrude". The courts have demonstrated
due deference to executive decisions in this context, consistent
with their constitutional duty to uphold the rule of law. That
being so, Parliament should in our opinion be wary of intervening
to restrict the court's jurisdiction unless there is a compelling
reason to do so. It is one thing for a court, for constitutional
or pragmatic reasons, to recognise the limits of its own jurisdiction;
it is an altogether different thing when the court is deprived
of its jurisdiction by statute.
5. Secondly, the Government says that the ouster
clause necessarily follows on from its policy decision, expressed
in clause 1, that certificates ordering non-jury trials should
be issued "administratively" (by the Director of Public
Prosecutions) rather than judicially (by a senior judge).[3]
We do not accept this. It is the very fact that the initial decision
is made by the Executive branch of government that necessitates
adequate supervision by the judicial branch. In a democracy committed
to the rule of law, trust ought to be placed in the courts to
exercise their judicial review powers appropriately to the circumstances
of each case.
1 Fifth report of Session 2006-07, Legislative Scrutiny:
Third Progress Report (HL 46/HC 303), paragraphs 1.28 to
1.37. Back
2
Explanatory Notes, paragraph 37. Back
3
Paul Goggins MP (Parliamentary Under-Secretary of State at the
Northern Ireland Office), Justice and Security (Northern Ireland)
Bill Committee, Tuesday 16 January 2007, col. 83: "We are
clear that that is coherent and absolutely consistent with our
stance in relation to the statutory test on non-jury trials". Back
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