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It would appear that the Director of Public Prosecutions can issue a certificate if he simply “suspects” that there is a “risk” that the administration of justice “might” be impaired. “Suspects” is a low level of test, much lower than the test on the balance of probabilities. Jury trial ought to be the norm rather than the exception in Northern Ireland. I see that the Secretary of State for Northern Ireland, at Second Reading in the other
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- “the DPP’s decision is about the mode of trial, and the defendant will receive at least as fair a trial without a jury as with one, so they will not suffer any detriment”.—[Official Report, Commons, 13/12/06; col. 894.]
I beg to disagree. Even if the so-called juryless trials will not be the norm, we are trying to establish through this Bill that Northern Ireland justice will mirror that of the rest of the United Kingdom. I do not know of anywhere else where these rules prevail. I thought we understood that trial by jury was the norm. In the same debate the SDLP Member, Mark Durkan, stated:
“The Secretary of State says that there are few Diplock courts. There should be none. An outcome should not turn on the opinion of one person, who may have some bias or may misapprehend the facts. In that situation, the accused can quickly become the convicted. Once an injustice has been done, it can be years, or more likely decades, before it is undone. We need only to consider cases such as that of Christy Walsh to understand what can go wrong”.—[Official Report, Commons, 13/12/06; col. 919.]
He made a very powerful point, with which I have much sympathy. There most definitely needs to be some form of judicial involvement in this matter. I hope that, in Committee, we will consider this. We are particularly concerned about the contents of Clause 7, to which we are completely opposed. To have no provision for appeal against a decision in a trial held without a jury is completely unacceptable. It is a clear attack on a person’s human rights and we will be seeking to remove this.
Although it is not particularly relevant now, as changes have been made, something similar came up in the Asylum and Immigration (Treatment of Claimants, etc.) Bill in 2004. At the time the Joint Committee on Human Rights issued a damning report on the provision, which stated that the committee regarded the restriction proposed in the Bill,
- “as being inherently objectionable as an attack on an important element of the scheme for protecting Convention rights in the United Kingdom”.
For me, the provisions of this clause are equally objectionable.
Another of our concerns is that the language of the Bill is unhelpful. As in my earlier remarks about “suspects,” “risk” and “might,” so the term “associate,” used in Clause 1 (3)(b), and its definition in subsection (10), could mean almost anybody. It is defined as a friend or a relative, but that description is open to wide interpretation and we should find other ways of expressing more clearly what “associate” means.
Other areas of the Bill test the Government’s commitment to human rights, especially around the culture of unaccountability, which surrounds the security forces in Northern Ireland, especially MI5, whose role appears to be enhanced by this Bill. The Police Service of Northern Ireland, not MI5, should be the primary mover in security matters. Where is the normalcy in that? It may be that I am being naïve on this point; perhaps Dr Reid wants to pilot this role for MI5 in Northern Ireland, prior to introducing it in the rest of the United Kingdom. It would not be the first time that policy changes trailed in Northern Ireland have later been imported into Great Britain.
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If the PSNI remains the lead agency, as I strongly believe it should, the police ombudsman would continue to be able to look into any complaints and issue a report in the same way she normally does. I have not heard any serious complaints about how she has undertaken her role to date. Indeed, quite the opposite; it would give the people of Northern Ireland an assurance that any complaints they had about justice or security would be dealt with appropriately. On the other hand, who keeps an eye on what MI5 is doing in Northern Ireland? I simply ask the question.
We agree with the Government that there is still a case for putting special measures in place to protect the identity of jurors in Northern Ireland. Clauses 13 to 19 provide for the extension of the powers of the Northern Ireland Human Rights Commission, which we welcome. Some time ago, the commission identified a need for it to be able to compel evidence and to enter places of detention, and we are glad that it now has these powers. We will, however, table amendments in Committee to probe how best the provisions can be used most effectively for the benefit of the communities in Northern Ireland. For example, Clause 15 would allow the commission to enter a place of detention only during, and for the purpose of, a formal time-bound investigation, established under Section 69(8) of the 1998 Act. For any other purpose, however serious or urgent, the commission would need to secure the permission of the relevant authorities. Such restrictions could hamper the effectiveness of the commission to carry out its statutory responsibilities.
Moreover, although the Government’s amendment to Clause 19 in another place on the timing of the implementation of these new powers is a step in the right direction, the clause could still present an obstacle to the commission in carrying out its functions. Even if the commission is to investigate alleged human rights violations arising only after August 2007, it is extremely likely to require access to evidence or documents existing before that date. The commission recently contributed to the exposure of the ill treatment of children and adults in a mental health institution in Northern Ireland. If the commission decided to conduct an effective investigation, it would be imperative to have access to previous records. It seems likely that, in a number of circumstances, the commission would need to investigate properly all the circumstances surrounding a particular matter if it were to do its job properly. It would need to consider evidence from the past. Surely we want the commission to be as effective as possible in its role.
We welcome the changes to the powers of the security forces under Clauses 20 to 41, because these are general public order powers and are not restricted to terrorist offences. Having had the most peaceful marching season last year, when the Army was not deployed at all, as the Minister reminded us at the beginning of the debate, we sincerely hope that these powers will not need to be used in the future. Be that as it may, we would prefer Parliament to be involved in the process of determining whether they will be needed. We shall return to this as well in Committee.
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Clause 42 and Schedule 5 are new provisions that were added to the Bill on Report in another place. Liberal Democrats and their Liberal forebears have always been a devolutionist party, and were so long before Labour or the Conservatives. Indeed, the latter remain very ambivalent on this principle. Accordingly, we have supported for many years the principle of devolving policing and justice powers to the Assembly. I know that noble Lords on all sides of the House want the Assembly to be restored, and want local politicians from Northern Ireland taking decisions on the matters that affect the day-to-day lives of their people. We all want the Assembly to take responsibility for policing and justice in Northern Ireland. Perhaps Clause 42, which allows the Assembly more flexibility to decide on the exact construct of a department of justice and policing, is the right way to go about it. However, we want to ensure that the details of the proposal are helpful to the Assembly in deciding the best way to construct such a department. I would like reassurance that this is what the Government have in mind. I hope that the Government will leave it entirely to the Assembly to decide on this crucial matter.
The Bill’s remaining provisions and in particular Clause 46 relating to the regulation of the private security industry in Northern Ireland are to be warmly welcomed. The Security Industry Authority has been extremely successful in its work in England and Wales and will begin to give the people of Northern Ireland the confidence that only people who have passed the exacting test for a certificate to practise within the security industry will be allowed to do so and that proper monitoring of those provisions will be regularly undertaken.
This is a Bill of distinct parts; some good, some bad. I look forward to the Committee stage when we hope that some amendments will be agreed, although perhaps my optimism about changing any of the Government’s legislation is but a pipedream.
4.40 pm
Lord Trimble: My Lords, in introducing the Bill the Minister reflected on recent and anticipated developments in Northern Ireland. He reflected first on the moves that republicans have made to support the police and then said that the Government fully expected a resumption of the power-sharing Executive on 26 March. The language he used at that stage was significantly different from the language the Government were using after the meeting at St Andrews, when they said that there were two issues that had to be resolved: Sinn Fein’s approach to policing and the willingness of the Democratic Unionist Party to enter into a power-sharing Executive.
It is to be regretted that those noble Lords who are closely related to the Democratic Unionist Party are not present with us today to give further guidance on the second issue. I hope that the Minister is right in his confidence that the Democratic Unionist Party is ready and willing to enter a power-sharing Executive on 26 March. Some of us may entertain a little scepticism about that, scepticism reinforced not just by experience but by the studied ambiguity of the
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I know from experience that the Minister will not want to say anything clear on this issue, and I see that he is nodding his head, so I shall leave him to his confident attitude on the matter and its underlying ambiguity. I have a certain sense of déjà -vu about his first point on republican support for the police, because we discussed this issue at great length with republicans in 2003. Had certain circumstances and events occurred more favourably, had the Independent Commission on Decommissioning carried out its remit properly and had the Administration resumed in 2003 as we hoped, I am confident that, within a short period, republicans would have made the move that they have made in recent weeks and months.
As mentioned in the debates, the republicans are and have been playing a game. They knew that support for policing was their last card and they have held it back. They could have put it on the table four years ago, had matters been handled better, but we have had a delay of some four years in seeing it on the table, and I understand the scepticism about the sincerity of republicans on the matter. There is only one way to find out whether they are genuine: to see what happens. However, there are some worrying circumstances.
I was glad that the noble Baroness, Lady Park of Monmouth, mentioned community restorative justice schemes, a matter that should give the House considerable concern. It is regrettable that in the Bill, which covers such a wide range of issues, there is no provision for a legal basis for the operation of such schemes. It is not right that the Government should allow part of the criminal justice system to be contracted out to private people, with no effective legal safeguards for the protection of the human rights of those involved.
As I look at the situation in Northern Ireland, the gravest source of threat to human rights is through the kangaroo courts of paramilitaries, which are now potentially being transmuted into community restorative justice schemes. The silence on that issue from the Government, particularly when we have this opportunity before us, is very concerning.
The noble Baroness also mentioned the McCartney case. I speak from memory—my source on this is the website under the name of Slugger O’Toole; perhaps people should check my source. Slugger O’Toole’s website noted a day or two ago that, among those who had assented to the nomination of a Sinn Fein candidate, one Mr Alex Maskey, were two persons alleged to have been in the pub where Mr McCartney was on the occasion of the assault on him that resulted in his murder and who have not given statements to the police. A number of persons who were there have given statements but, according to Slugger O'Toole, those persons have not. The fact that two persons who were there in the pub who have not co-operated with the police are so close to the Sinn Fein candidate that they signed his nomination paper would not give one any great comfort.
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The noble Baroness, Lady Harris of Richmond, made clear her distaste for non-jury trials. I do not share that approach at all. In this debate, it is appropriate that we record our appreciation of the judges in Northern Ireland who, during the past 30 years, have sat in Diplock courts in very difficult circumstances. Despite the difficulties and dangers, they have managed during that time to deliver a good result. That must be said.
No system is perfect. Any form of trial will occasionally result in mistakes being made. Over the years, I have had occasion to associate myself with a campaign to remedy a miscarriage of justice in a Diplock court which was not entirely successful, despite having the case sent to the Court of Appeal twice. Of the four defendants, we got three cleared but not the fourth, so there is still a miscarriage of justice in that respect. There may be other cases with which I am not familiar, but looking back over the past 30 to 40 years to see how Northern Ireland issues have been handled in the courts, the major miscarriages of justice have occurred in jury trials in England. We should reflect on that.
Over the years in Northern Ireland, campaigns have been got up by paramilitaries, sometimes with popular support, about aspects of the legal system. Supergrasses were criticised; interrogation techniques were criticised; but there was no serious campaign for a return to juries. There has been no serious campaign in Northern Ireland over the years for a change to the single-judge Diplock court. Some people—in my view, foolishly—think that the courts would be better with three judges. I think that that is a profound mistake. It is interesting that there has never been any popular support for change to the process.
I am glad to see that the main safeguards that existed in Diplock courts are reproduced in the Bill. Those safeguards are, first, that the judge must produce a written reasoned judgment where he deals with all the circumstances in the case and the evidence that has been presented. That is linked to the second safeguard: that there is an unlimited right of appeal to the Court of Appeal on any ground. That means that the judge knows that his judgment is liable to be thoroughly examined by three judges in the Court of Appeal and picked over by the lawyers looking for any possible flaw in his argument, and that they will be doing that without having had the benefit, as he had, of seeing the witnesses give evidence. That is a very significant safeguard.
Over the years, I have read quite a few judgments given by judges in Diplock courts. The success of the Northern Ireland judiciary in producing good judgments that clearly stand up when examined must be recorded.
The first part of the Bill is rolling over Diplock courts into a new context where there is a shift of emphasis in the decision, in that now the presumption is that there will be a jury trial unless the DPP issues a certificate. There are provisions on the grounds on which certificates might be given. I shall be interested, when we get to look at this more closely, to see the arguments for giving this to the DPP rather than, as heretofore, to the Attorney-General. I think that there
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I want to focus on one issue regarding the conditions in Clause 1. Three of those conditions make reference to a linkage with a proscribed organisation. In deciding whether to have a non-jury trial, it is obvious that there should be a reference to proscribed organisations; that makes sense. What concerns me is the absence of any reference to serious organised crime. Some paramilitary organisations are now gradually transmuting themselves into organised crime gangs. Most of the organised crime gangs in Northern Ireland have paramilitary linkages—most of them but not all. I am thinking of a report by the Independent Monitoring Commission in 2004, which said that of the most serious organised crime gangs, three quarters have linkages with paramilitary organisations but the other quarter do not. What happens there? The danger of attempting to nobble juries is just as great with organised crime in this context.
The Government might reply that that can be covered under the Criminal Justice Act 2003, which provides for an application for a non-jury trial where there is reason outside the context of terrorism to believe that the jury might be tampered with. However, there are significant differences between the procedure under the Criminal Justice Act 2003 and that in Clause 1. We should bear in mind that we will have some organised criminal gangs in Northern Ireland that, because of a history linking them to paramilitaries, will come under the Bill, whereas others who do not have the history of a linkage with paramilitary gangs will come under the 2003 Act, with radically different procedures. That has not been well thought out and we might want to look at it.
The Minister referred to some of the powers being preserved, primarily for the Army—which term I prefer to the military, but that is another matter—giving rise to the question why, if there are to be reviews of those powers, we are not going to have the familiar reviews of the operation of quasi-terrorist provisions. Over the years we have become accustomed to that; in fact, we have become accustomed not just to annual statements but to annual renewals and votes, so we should have more on that. The Minister might also like to consider whether it would be appropriate to have a sunset clause every five years or so to bring the whole matter back before the House to be periodically considered.
I think that most of the attempts to safeguard jury members are sensible, but I was glad to see paragraph 6 of the Explanatory Notes refer to,
I was glad to see that reference to partisan juries. It is too often forgotten that when Diplock reported in 1973, while most of the emphasis was given to juror intimidation, there was also reference to the dangers that flow from partisan juries. It is not something one likes to advertise but it has to be said that in 1973 there was concern among senior officials in the administration of justice that there had been partisan
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That is particularly significant when considering religious or political hostility in subsections (6) and (7) of Clause 1. Subsection (6) relates to an offence that,
- “was committed to any extent ... as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons”.
That goes into this territory. Part of the reason I mention it is that on this side of the water, as we say, given the terrorist problems that are now developing here, it would be appropriate for someone to think about whether there is a risk of having partisan juries. These situations may develop and if they do so it is better to have thought about them and to have something prepared beforehand rather than have to patch up what has happened afterwards. I shall not say much about the rest of the Bill. I have reservations regarding the Northern Ireland Human Rights Commission, but we can explore those in Committee.
I must say that the Clause 42 provisions for the justice department astonished me. Had I any influence on those in the Northern Ireland Assembly, I would take grave exception to this. As things were originally planned, it was to be left to us in the Assembly to decide how we would structure departments. When active consideration was given to the question of the devolution of policing and justice in 2002 and 2003, we were happy to discuss with others what models would be necessary. Had the Government here started to prescribe models, even if they were just presented as models, I would have deeply resented it. I would also have deeply resented it had the Government taken powers to impose a model, as it were, on the Northern Ireland Assembly. It is getting desperately close to overriding the Assembly itself. The Minister disclaims that intention, but Clause 42 makes it obvious that we are going to see a little bit of spin: the Democratic Unionist Party will be assured that the triple lock has not been overridden and the Government are just bringing this forward for consideration. It will still be up to the party to decide whether to elect a Minister for justice; and of course Sinn Fein will be told, “This is how hard we are pushing on the target date of May 2008. We are taking the power to enable us to put it in place if the Assembly does not agree”. The obvious message underlying it is, “When the time comes we may be prepared to go further and actually impose the devolution”.
There is a strand of thinking among those in the DUP that they would be happy to operate something if it was imposed upon them rather than having to vote for it. I remember DUP members who said of the Belfast agreement that we should never have agreed to it. It would have been all right if it had been imposed on us, then we could have worked it, but somehow it was wrong for us to agree to it. I suspect that the same thing is happening again and we are seeing the beginning of a little ritual dance that will result in that. But I fear that the people of Northern Ireland will not be content with it. In fact, I have grave
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4.58 pm
Baroness Blood: My Lords, I agree with the Minister that the changes in Northern Ireland over the past number of years have been enormous, and I am privileged to follow my noble friend Lord Trimble, who can take a lot of the credit for the changes we have seen. I want to make a number of points, particularly regarding the powers of the Northern Ireland Human Rights Commission, as I believe that this Bill has serious defects in terms of the protection of human rights. In a number of respects the Bill actually diminishes the commission’s current level of independence from the Government and imposes new and onerous obligations. I was pleased to note that, in its recent scrutiny report on the Bill, the Joint Committee on Human Rights also shared my concerns.
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