Order for Second Reading read.
On a point of order, Mr. Speaker. I will not detain the House for long, but you will recall that I raised my objection to the scheduling of Northern Ireland business at the same time as the Welsh Grand Committee. You advised me to pursue the matter through the usual channels, but I have not succeeded in preventing the two pieces of parliamentary business from taking place at the same time. Is there any other channel that I can use to prevent such disrespect to the right hon. Member for Neath (Mr. Hain), who is Secretary of State for Wales and for Northern Ireland, and the rest of us who are obliged to cover both portfolios?
It is not a matter for me, as I told the hon. Gentleman, but for the usual channels. I cannot interfere in the matter.
I beg to move, That the Bill be now read a Second time.
Three weeks ago, Royal Assent was given to legislation that cleared the way for the restoration of locally accountable, democratic, power-sharing government in Northern Ireland. As the House knows, the Government are firmly committed to the aim of devolving policing and justice powers to the Assembly, as envisaged in the Good Friday agreement. Since 1998, considerable progress has been made in creating the conditions that will make that goal possible. The legislation passed by the House earlier this year provided a framework for that, and it put in place a process to ensure that devolution can take place only with support across the communities of Northern Ireland. It is right that there should be such support.
I understand the concerns of the Democratic Unionist party, and I have articulated in debates in the House the fact that the circumstances must be right. I know, too, that all the parties, including the DUP, support the principle of devolution. The Government have a responsibility to make sure that devolution can take place quickly when the Assembly requests it. We set a timetable for May 2008 in the St. Andrews Agreement, and I have asked my officials in the Northern Ireland Office to press on with the necessary preparatory work, including the appropriate Orders in Council, to ensure that we achieve that.
It has been a long and difficult road to reach that point, but all sides have shown determination and commitment to take Northern Ireland forward, and I commend them on doing so. I have no doubt that any remaining obstacles can be negotiated before journey’s end at Parliament Buildings on 26 March next year. When we reach that point, the kind of politics that we in the House and our colleagues in Wales and Scotland take for granted will increasingly become the order of the day in Northern Ireland, which is as it should be. The “normal” will then cease to be remarkable. The Bill helps Northern Ireland further along the road to normality. In the crucial areas of justice and security, it reflects the very significant progress that has been made and which has been well documented in this House, even in the 18 months or so that I have had the privilege of speaking at the Dispatch Box as Secretary of State for Northern Ireland.
I am not an expert in Northern Ireland affairs, but I noted the right hon. Gentleman’s reference to normalisation. May I direct his attention to clause 7, which is an ouster clause of the most pernicious kind? We have rejected outright such a provision for jurisdictions in England and Wales, and it appears to contradict the recommendations of my noble Friend Lord Carlile of Berriew. Will the Secretary of State comment on that?
I am happy to do so, although I was about to deal with the meat of the Bill. Clause 7 is an ouster clause—there is no doubt about that—that effectively prevents challenges to decisions by the Director of Public Prosecutions. It restricts challenges to his decisions to circumstances in which there has been bad faith or other exceptional circumstances. That puts the case law on reviews of the Attorney-General’s decision not to deschedule in Diplock cases on a statutory footing. It derives from the Shuker case, which confirmed that the procedure for determining the mode of trial for the accused is not suitable for the full panoply of judicial review. Cases could be reviewed on grounds such as bad faith and dishonesty. It is not a change from the current position—in any event, 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. As I shall make clear, the intention is to move to jury trials as the norm. Juryless trials will be the exception, unlike the so-called Diplock arrangements, whereby juryless trials are the norm.
The Secretary of State began by referring to the timetable for the devolution of policing and justice in Northern Ireland. He tried to persuade the DUP that the 2008 timetable is right—I am not sure that it is, but I will come to that later—but does he not accept the fact that there is an inherent contradiction? He is aiming for normalisation, but the Bill, which I hope we will scrutinise carefully this afternoon, extends the opportunities for non-jury trials, and does not decrease them, as he suggested.
No, I do not agree with the hon. Lady. It is not often that I have to disagree with her. The measures proposed in the Bill, which I shall describe shortly, are the right ones for the right time, given the progress towards normalisation and the need to complete the process of normalisation.
The Bill puts in place arrangements that are designed for the Northern Ireland of the 21st century, not the Northern Ireland of the 1970s. Trial by jury is one of the cornerstones of the criminal justice system, but for many years it was simply not possible for all cases in Northern Ireland to be tried before a jury because Northern Ireland was in the midst of the nightmare of paramilitary terror on a massive scale. Non-jury trial was therefore a necessity in those circumstances.
Northern Ireland has now moved forward enough to enable a return to a presumption for jury trial in all cases, even those that would currently be heard before a Diplock court. However, I recognise that, although circumstances have undoubtedly changed significantly for the better, even in recent months, and the paramilitary threat is greatly reduced, it has not gone away completely.
Dissident republicans who seek to undermine democracy and destroy the prospect of devolved government under the St. Andrews legislation and the St. Andrews agreement are still there, and they are still threatening peace and progress to the extent that they can. They are isolated, they are small, they are marginalised, but they are potentially dangerous, as we have seen.
Loyalist paramilitaries are still active and have yet to decommission their weapons. Organised crime is a real problem which we are working hard to tackle, and there are those—thankfully declining in numbers but nevertheless there—who still want to retain a hold on their communities through fear and intimidation. For these reasons, there is still a risk of perverse verdicts, either by intimidation or by “stacking” a jury to influence its decision. We intend to minimise that risk by reforming the jury system.
In his move towards a presumption for jury trials, will the Secretary of State take account of the recent report from the Northern Ireland Affairs Committee, which indicated that there is indeed a considerable degree of intimidation going on, not just by paramilitary-related groups, but by other criminal groups, and directed not just at business people, but right across the communities in Northern Ireland?
We are dealing with extortion and those other serious crimes through the Organised Crime Task Force. The hon. Gentleman is right to say that especially in relation to organised crime, that is still an issue. There have been only—one might say “only”—six cases of known jury intimidation in the past five years, and he and I know well that that figure could be significantly higher. That is why there is the option of a juryless trial after a recommendation by the Director of Public Prosecutions, acting perhaps on intelligence or other information provided by the police or the security service, for example. After the Bill receives Royal Assent, the DPP can go to a judge and say, “The norm of a jury trial should be suspended in this case and provision should be made for one without a jury.”
Again, I am grateful to the Secretary of State. I know that his wife was involved in a car accident recently, and my colleagues and, I am sure, the entire House, wish her well, particularly before Christmas. We may have our arguments, but I wish his family a very enjoyable Christmas, which I know may well be spent in Northern Ireland.
Before he welcomes the Bill and tries to persuade the House to agree to it without a vote, may I remind the right hon. Gentleman that there is already on the statute book the Criminal Justice Act 2003, passed three years ago in the House, which allows for non-jury trials in Northern Ireland? Rarely does mainland legislation extend to Northern Ireland—we seem to have separate bits of legislation these days—but that Act extends to Northern Ireland and allows for non-jury trials where there is a real and present danger of jury tampering. Will the Secretary of State enlighten the House about why it has never been used—never been activated by the DPP? Why should we have any confidence that the DPP will exercise his discretion any differently in relation to the Bill before us?
I thank the hon. Lady for her remarks about Elizabeth, who is getting better. Yes, I will be spending Christmas in Northern Ireland and the hon. Lady might guess where that might be, although I am not supposed to say where I am at any time.
Yes, the non-jury provisions in the 2003 Act will still be implemented in Northern Ireland. The hon. Lady is right. Our proposed new system of non-jury trial will apply only in the restricted set of circumstances prescribed in terms of the statutory test. The ability of the Director of Public Prosecutions to make a certificate ends at arraignment, so if jury tampering becomes evident after the arraignment has taken place, the DPP cannot intervene. The 2003 Act covers the other cases, including those where jury tampering becomes apparent after the case has started. The jury tampering provisions will be implemented in Northern Ireland early in January—in a few weeks.
The Bill puts in place a number of measures, including juror anonymity and restrictions on the disclosure of personal information about jurors. It also abolishes the defendant’s right to peremptory challenge, bringing Northern Ireland into line with England and Wales. To balance this, the Attorney-General will issue guidelines restricting the exercise of the prosecution’s right of stand-by and the exercise of jury checks. We will also be pursuing other juror protection measures administratively. These include better routine checks to identify disqualified jurors, making separate accommodation for jurors available, and making better use of screening of jurors from the public gallery.
The Secretary of State is aware of the important work of the historical inquiries team, which is looking at the unsolved murders arising out of the troubles in Northern Ireland—thousands of unsolved murders. Will the provisions of the Bill apply to those cases, if the inquiry team is able to produce sufficient evidence to warrant prosecutions, given the criteria set out in the Bill for non-jury trials?
Yes, on the assumption that any such cases are brought after the Bill’s procedures have been implemented, of course that will apply. In some of the examples to which the hon. Gentleman referred, the DPP may well be able to go to the judge and say, “I think a trial without a jury is appropriate in these cases.”
The changes introduced by the Bill will help to reduce the risks to jurors, but even with these reforms, there will still be cases where there are paramilitary and community-based pressures on a jury that could lead to a perverse verdict. I accept that there may be exceptional cases which cannot be tried before a jury. However, we will take a radically different approach to how these cases will be managed.
The decision to move to a non-jury trial will be made by the Director of Public Prosecutions for Northern Ireland in future. He or she will be required to apply a defined statutory test that is based not on the offence itself, but on the circumstances in which it was committed. Crucially, non-jury trial will be possible only where there is a risk to the administration of justice.
There has been a downward trend in the number of Diplock trials over recent years, and we want to get to a point where there are no cases at all that must be heard without a jury. However, I am sure that the House will understand that it would not be appropriate to remove that option entirely, even in the current improved conditions in Northern Ireland.
Considerable progress has already been made in normalising the security profile in Northern Ireland, as the Independent Monitoring Commission has reported. Towers and observation posts in south Armagh have been demolished, troops are being withdrawn from police stations in Northern Ireland, military bases and installations in Northern Ireland are being closed, most routine patrolling by the military has ceased, troop levels are at an all-time low, and not a soldier was on the streets on 12 July, for the first time in almost 40 years. However, there is still more to do.
I have two concerns about the ouster clause. First, merely allowing it to be in the Bill will lead almost inescapably to mission creep, whereby it is used more and more to return to the very thing that we are trying to get away from. Secondly, and even more importantly, what guarantee can the Minister give us that putting an ouster clause into Northern Ireland legislation will not be used as a precedent for introducing it in the rest of the UK, knowing as we do that the Government have tried to do exactly that in the past?
I understand the hon. Gentleman’s concern, and it is appropriate for him to raise it. He will have a chance to pursue it in Committee, and no doubt he will. As he knows better than I do, Northern Ireland has a very different set of circumstances—that is why these provisions are tailor-made for its particular history and for its current emergence from conflict and the circumstances in which that is occurring. Organised crime committed by ex-paramilitaries or, indeed, still active paramilitaries, is a particularly serious problem.
I shall of course return to it in Committee, but I must press the Minister. What assurance can he give that the inclusion of an ouster clause in Northern Ireland legislation will not be used as a precedent for including it in British legislation, knowing as we do that the Government have tried to do this before? They were defeated on it by reviews that took place a couple of years ago, yet they seem to think that it is still acceptable in special cases in Northern Ireland.
A whole range of provisions will apply in Northern Ireland that are not immediately translatable back across the water to Great Britain. That is simply the reality of the history of Northern Ireland. I think that that deals with the hon. Gentleman’s point.
Why have not the Government provided in the Bill the safeguard that exists in the Criminal Justice Act 2003, which requires the prosecution to apply to a judge to agree that a case should go to non-jury trial? Why could not that procedure have been adopted in this case?
I did consider that, as my officials and ministerial colleagues know. My initial instinct was to see whether something similar to the provision in the 2003 Act could be applied. However, because of the need to handle intelligence and highly sensitive national security information, the DPP was prescribed the role of going before a judge in private to make the case that is necessary in the circumstances.
Perhaps I could come to the right hon. Gentleman’s aid by saying that it was the unanimous, if reluctant, view of the Northern Ireland Affairs Committee that something like this was necessary.
I am grateful to the hon. Gentleman, who questioned me closely on this matter and wondered whether there might be a role for the Attorney-General in this respect. It is unusual for Select Committees to support Governments unanimously, and I am especially grateful for that.
The right hon. Gentleman must not go too far. The Committee was not unanimous in every particular, as I shall make plain in my speech, but it was unanimous on the general principle that there should be provision for non-jury trials, as it was on organised crime in its report in the summer.
I was thinking as I said it that I was being a bit provocative to the hon. Gentleman, and indeed I was.
From 1 August next year, the military will take on a fundamentally different role in Northern Ireland. Routine military support to the police will cease. However, the military will remain available for certain specialised tasks in support of the civil authorities, consistent with their role in the rest of the United Kingdom—for example, in the conduct of search and rescue operations. Additionally, while the armed forces are not responsible for maintaining national security in the UK, they provide focused support in this area to the civil authorities. As envisaged by the Patten report, the police will be able to call on military support for public order situations if they require it. It will be for the Chief Constable of the Police Service of Northern Ireland to decide if he needs support of this kind.
The military will need some statutory powers; without them, a soldier would have no more powers than the average citizen. The Bill provides those powers. It creates powers of entry, search, arrest and seizure necessary for the military to carry out its role effectively. Some of those powers also extend to the police, as is set out in the Bill.
Those powers in respect of the military were previously contained in part 7 of the Terrorism Act 2000. The British Government made a commitment to repeal those provisions in the joint declaration of 2003. In effect, the Bill recycles the powers that they had previously committed to repeal.
I remind my hon. Friend that just eight of the 48 provisions in the previous legislation—the part 7 powers—have been transported into this Bill. Forty of them—the vast majority—have been lapsed, appropriately and rightly.
The powers are necessary to deal with a number of different circumstances. They will help in managing parades, road closures, and dealing with extreme public order incidents such as what happened at the Whiterock parade last year, which mercifully was not repeated this year. They may be used in dealing with organised crime and will be essential in combating loyalist and dissident republican terrorism, which is still with us. Let me give some practical examples. The stop and search powers may be used to search people for weapons around a parade or a sports event where it is anticipated that there might be trouble, to deal effectively with bomb threats by allowing police to cordon off the area and providing appropriate powers of access if the device is on private property, to search premises ahead of VIP visits, and to allow the police or the Army to chase criminals across private land without breaching trespass laws. Those of us who were briefed by the Chief Constable after the Whiterock parade last year will know that these powers are necessary. We saw the horrifying attacks on soldiers and police officers by loyalist gunmen and the steps that the police and the Army had to take to try to deal with that situation, including going through premises and on to nearby premises.
This is a matter of concern to everyone in the House. In talking about normalisation, if we are asking people to live normal lives, we have to ask the police to do the same. I am worried that if the police have these powers and do not use them properly, we may end up giving people who will not recognise the police a stick to beat us over the head with.
I note my hon. Friend’s general point, which is well made. The fact is, however, that the PSNI is now the most accountable and regulated force in the world, with the Policing Board, the district policing partnerships and the police ombudsman, who is, appropriately, not known for her reticence in these matters. Apart from political oversight by this House and, in future, by a devolved Executive and Assembly, the structures of the Policing Board and the other arrangements provide important safeguards.
The Secretary of State rehearsed a list of powers attributed to the Army—entry, arrest, stopping without suspicion, and so on—that are not within the ambit of or under the control of the PSNI. That potentially creates a hugely difficult political situation in Northern Ireland, particularly as the actions of the Army are not, and will not be, subject to the same investigation and scrutiny as those of the PSNI. They are not subject to the ombudsman’s office or to several other authorities that currently have the power to investigate activity by the PSNI if necessary. That route will not be available, or at least not to the same extent, where it is deemed that the Army may be at fault.
Again, I understand the point that my hon. Friend legitimately raises. During this summer’s marching season, and especially on 12 July, the Army was not involved, which is testimony to the work that has been done on the ground and to the dialogue and negotiation promoted between people who had never talked to each other before, including between the loyal orders and his party, which is fantastic progress. The object is not to have the Army involved at all. When it is involved, however, it will be involved in support of the police, under the accountability arrangements that I described earlier, and only in support of the police. In performing that role, however, it might have to make arrests and conduct searches. We must provide for circumstances such as those that occurred at Whiterock. If those circumstances occur at all in future in Northern Ireland, I think that they will be very isolated, as the past year has shown. However, the possibility is still there. Additionally, while the armed forces are not responsible for maintaining national security in the United Kingdom, they do provide focused support to the civil authorities.
Northern Ireland continues to be a challenging operating environment for the police and the Army, not least because the risk of terrorism from dissident republicans, loyalists and international groups remains real. Therefore, aspects of military support in Northern Ireland, including explosive ordnance disposal work, will remain different from that in the rest of the United Kingdom for the time being.
I am satisfied that the powers in the Bill are the minimum necessary, rather than the maximum necessary. We considered that extremely carefully, partly to address the points made by my hon. Friend the Member for Foyle (Mark Durkan) and his colleagues. The powers have been developed by considering the role of the police and military in the future, not by looking back at the past. Appropriate safeguards have been put in place, which will give some comfort to members of the SDLP and others in Northern Ireland. The safeguards ensure that the use of the powers will be reviewed each year, and that the Secretary of State will be able to repeal the powers by order, under clause 40, when they are no longer needed. As we make increasing progress towards normalisation, therefore, the option of lapsing the powers by order will be available, without the need for fresh primary legislation.
To assure those of us with concerns, the Secretary of State has simply offered the lapsing of powers. However, the Bill essentially makes permanent provisions that were on an emergency basis and subject to renewal. When the Terrorism (Northern Ireland) Bill was debated in October 2005, the Secretary of State said:
“Provisions have been on a temporary footing since 1973, but have been necessary to tackle the security situation. They were never intended to be permanent, and we have always remained committed to their ultimate removal, once the security situation allowed.”—[Official Report, 31 October 2005; Vol. 438, c. 628.]
What has changed?
As I have described, 40 of the provisions will lapse under the Bill. That is a big change, in tandem with the normalisation that has occurred. In addition, as I just explained, I decided to insert clause 40—of course, I decided to insert all the clauses myself—as I was particularly concerned about that matter. I know that the hon. Gentleman and his party will share that concern. There will be a provision to lapse the powers by order, as and when circumstances require. In relation to devolution of policing and justice, the Executive will have an influence and be able to say to the Secretary of State that it is time for such powers to be lapsed, if it so judges.
Why do we not therefore have a provision to renew powers, as we do in lots of other Northern Ireland legislation, whereby, if nothing else happens, the powers fall?
We have now got to the point at which we need legislation that marches in parallel with normalisation. The constant renewal process is not what we want. We want to put in place a long-term framework for the future, which—at the risk of repeating myself too much—contains the power to lapse by order certain provisions when they no longer seem relevant or have become outdated.
The Secretary of State referred to approaches that the Executive might make to the Secretary of State after policing and justice has been devolved. Is not he making huge presumptions about what the scope of the devolved powers and functions will be? Does not he recognise that the Bill is pregnant with implications and potential complications in relation to devolution of justice and policing?
I am not sure whether it is pregnant, but I understand my hon. Friend’s point. If he considers the Bill in the round, he will see that its different provisions, from the presumption for jury trial to replace Diplock arrangements, to the significant reduction and modernisation of police and Army powers and other matters covered, are appropriate for Northern Ireland today and, I believe, in the future, as they are designed to be.
Both the Northern Ireland Affairs Committee, chaired by the hon. Member for South Staffordshire (Sir Patrick Cormack), and the Independent Monitoring Commission have highlighted the problem of organised crime in the private security industry in Northern Ireland. The current regulatory scheme in Northern Ireland is focused on paramilitary organisations, and is designed to prevent private security firms from being used as a front for criminal activity by terrorists. Companies offering manned guarding services are granted a licence provided that a proscribed organisation will not benefit. The provisions in the Bill will bring arrangements in Northern Ireland into line with those in the rest of the United Kingdom.
I am now slightly confused about the Secretary of State’s position on the ouster clause, as he has just said that the Bill is for Northern Ireland in the long term. In relation to clause 7, however, he said that the special security circumstances of Northern Ireland were the reason for the provision. Is he saying that he expects the circumstances that justify clause 7 to exist in the long term?
I am saying that the provision is necessary because we cannot, in the foreseeable future, envisage a situation in which we would not want to keep the option for the Director of Public Prosecutions to go to a judge and say that it is not safe to have a trial in particular circumstances. I can provide the hon. Gentleman with figures on the massive reduction—from hundreds down to just tens—in the number of Diplock cases over the past 20 years, which shows the scale of the progress. As I said, the provision is for an exceptional and infrequent occurrence, but it must be in the Bill.
The Secretary of State referred to the circumstances in which the DPP would go to a judge, which, I think, would be acceptable to those on both sides of the House. As I read clause 1, however, the DPP does not have to go to a judge; he issues a certificate, hands it to the judge, and that is the end of the matter.
The hon. Gentleman is accurate, but the DPP must put the matter before a judge. If the judge took the view that the action was unreasonable, he would obviously have an argument with the DPP.
Will the Secretary of State consider what he was just saying? The fact is that the power will lie with the DPP to issue the certificate. He will decide to do so simply on the basis that there is a risk—not a likely or substantial risk, but just a risk—that the administration of justice might be impaired were a jury trial to be held. Once the DPP has issued that certificate, it cannot be questioned and challenged in the court, by the court or anywhere else.
Of course that is the case, but it strikes the right balance—
There is no balance.
There is balance. Otherwise, as I explained, there would be a risk to national security with the possibility of intelligence getting into the wrong hands. I repeat: the Bill is designed to ensure that juryless trials are the exception and hardly ever occur. We have looked at the process extremely carefully and taken advice from the Chief Constable and others involved in law enforcement, and the approach that we have taken seems to be the best one. It strikes the right balance between meeting the hon. Gentleman’s concerns and the overriding importance of ensuring that the administration of justice in Northern Ireland is not contaminated by jury intimidation, which it has often been in the past.
The Secretary of State’s point adds to our concerns rather than takes away from them. He suggested that the DPP would use the powers not just because of a risk to the administration of justice, but because of a risk to national security. Has the Secretary of State let the cat out of the bag? Is not that the real reason for the Government’s three-point turn?
We have had pregnancies and three-point turns; I do not know what we will have next. I have a lot of respect for my hon. Friend on this and other issues, but that is not what I was saying. My point was that if the DPP judges that there is a risk to the safe administration of justice because of information that he has received, the source of which is a matter for national security in terms of intelligence and so on, he is entitled to go to the judge and say, “This is a certificate for a juryless trial.” I am not trying to suggest anything else, anything more or anything less than that.
Will the Secretary of State give way?
Will we get rid of you after this?
Not for ever.
The Secretary of State implied that the trial judge could reject the certificate if it was unreasonable, which would be a sensible compromise, but that is not what the Bill does. Clause 2 simply says that the DPP will lodge the certificate with the court. There is no opportunity for the certificate to be rejected by the court. If there were—this is something for the Standing Committee to consider—it would be a wholly different matter.
Yes, it would be a wholly different matter, as I said. I considered that carefully and discussed it with those who would be involved in it, including the Chief Constable and his senior officers, and I am sure that we are taking the right approach in the circumstances in Northern Ireland. The hon. Gentleman is correct: the Bill is clear that the DPP essentially takes the decision and issues the certificate, but he must have good grounds for that. The judge may want to ask him privately about the decision. The alternative of effectively having a contested application for a certificate, with the defence and the prosecution coming into the picture, and the judge effectively being the determining agency, was examined. We considered it carefully, but it is a big risk in the circumstances, which is why we have opted for this provision. I repeat, however, that it is due to be focused on a very small number of cases, which will become increasingly infrequent over the years, and that is its purpose.
The remit of the Security Industry Authority will be extended to Northern Ireland. The regime will put greater checks on the industry to ensure that all those who work within it are properly qualified and fit to do so. The potential benefits are immense: better public safety, less crime, higher standards in the industry and increased competitiveness for Northern Ireland companies. However, it will take some time to put the arrangements in place. Both the Security Industry Authority and private security companies will need time to prepare. That is why the Bill also contains an interim regulatory regime to bridge the gap between the current arrangements and the future. The interim scheme builds on the current arrangements. It is designed to bear down on the problem of criminal activity in the industry as well as paramilitary exploitation.
Human rights underpin the Government’s view of a modern society based on opportunity and fairness for all. The Northern Ireland Human Rights Commission plays a major role in protecting and promoting human rights in Northern Ireland, and it is right that it has the powers necessary to carry out its duties effectively. Following consultation on the powers of the commission, the Government believe that they should be extended. The Bill is being used to grant the commission the power to compel evidence, to access places of detention and to rely on the European convention on human rights when initiating judicial proceedings. The commission already has the power to carry out investigations. Granting it the powers to compel evidence and to access places of detention will ensure that it can conduct investigations more effectively, as it has asked to do.
Is there not a problem with the Human Rights Commission in so far as there is still a concern within the Unionist community that its membership is not broadly reflective of the wider community? If the Secretary of State is going to give it additional powers, does he not need to address that confidence issue by broadening the commission’s membership to make it more accurately reflect the community that it serves?
I am aware of the position of the hon. Gentleman’s party on that, because the right hon. Member for North Antrim (Rev. Ian Paisley) and his colleagues have made that point to me repeatedly. On the other hand, I have talked to Unionist members of the commission, or those who align themselves with Unionism, and they are satisfied that it is conducting its activities fairly and impartially. Despite the initial reservations expressed about the commission’s leadership, everybody has now accepted that that has settled down and is working well. We should welcome its work, allow it to get on with its job and empower it, through the extra provisions, to do its job even better.
As the Secretary of State has praised in the warmest of terms the Northern Ireland Human Rights Commission and said that it plays a major role, what major role did it play in responding to the extension of non-jury trials? What was its response to the Bill?
As I said, it is my responsibility to introduce the Bill, but the commission has welcomed the additional powers that it provides. It asked for them and I am providing them, so of course it is pleased.
Giving the commission the power to rely on the European convention on human rights in judicial reviews will allow it to bring important test cases to clarify points of law in situations when it would not be appropriate for an individual victim to do so. I guess that those will mostly be class actions. The provision will ensure that the powers are used appropriately by the commission and complied with fully by public authorities.
The Secretary of State said that the Human Rights Commission has welcomed the extra powers. Does he recognise that many of us advocated those extra powers from day one? Indeed, that was reflected in the powers given to the Irish Human Rights Commission, which was also set up because of the Good Friday agreement. Is he really telling the House that the Northern Ireland Human Rights Commission is happy with the qualifications and limitations on the exercise of the extra functions that the Bill imposes?
I am glad that my hon. Friend is pleased that we are doing something that he advocated a long time ago. The commission is broadly pleased with what we are doing because it asked us to do those things. He should be charitable about that and support us.
I thank the Secretary of State for giving way, but had he answered my question I would not have had to intervene again. Will he give a direct response? What was the response of the Northern Ireland Human Rights Commission to the extension of non-jury trials, as set out in the Bill?
I have no recollection of any formal representations on the matter. I am not saying that that they were or were not made; it is simply that I have no recollection of them. The commission’s main concerns were about its own role, and about provision being made for it to do its job more effectively. That is what we are doing, and I assume the hon. Lady supports us.
I am also using the Bill to make some other minor but worthwhile changes. For example, organisations are being added to the remit of the Chief Inspector of Criminal Justice in Northern Ireland. That will increase transparency and confidence in the operation of the criminal justice system. A technical change is being made to legal aid arrangements to give resident magistrates maximum flexibility in the grant of publicly funded legal representation. The Bill will also make possible the renaming of resident magistrates, helping to deliver one of the recommendations of the criminal justice review.
The Government will not take any chances with safety and security. The combination of these changes will ensure that we can provide justice and security for all the people of Northern Ireland as we continue the transition to a normal society. I commend the Bill to the House.
I think that the whole House welcomes the improvements in the security situation in Northern Ireland, which have made it possible for the Government to present the Bill today. The most recent summary was in the Independent Monitoring Commission’s 12th report in October this year. It stated that the commission no longer believed that the Provisional IRA was engaged in terrorism, and also stated:
“We do not believe that PIRA is undertaking terrorist-type training”.
The commission argued that the Provisional IRA had disbanded some of its key military structures, and that there had been a further erosion of its capacity to return to violence were it ever to wish to do so.
However, the IMC went on to identify continuing threats from other terrorist groups, which in my view do justify the retention of certain special powers for the limited circumstances described by the Secretary of State. It concluded that the Real IRA
“remains active and dangerous and that it continues to seek to sustain its position as a terrorist organisation.”
It also concluded that the Continuity IRA
“remains an active and dangerous threat”.
As for the loyalists, anyone who thumbs through the pages of the main Northern Ireland newspapers knows that their campaigns of criminal violence continue. The IMC stated that the UDA was still involved in violence and had
“a heavy involvement in crime”,
and described the Ulster Volunteer Force as “active, violent and ruthless”.
It is in the context set out by the IMC that the House must assess the need for changes in the law and the continuing need for certain extraordinary procedures in our criminal justice system. I believe that the Bill marks a significant shift away from the emergency powers legislation which Parliament, under successive Governments, has renewed for many years—indeed, for several decades.
Following the questions raised about the Northern Ireland Human Rights Commission, I can tell the House that I have just received some ex cathedra information in order to, as it were, revise my memory. The commission supported the principle of retaining access to some form of non-jury trial. It did, it is fair to say, favour the use of the Criminal Justice Act 2003. However, as I have already explained, we do not think that that is the right approach given the circumstances in Northern Ireland. I hope that that satisfies the hon. Member for North Down (Lady Hermon), and that she now feels able to march into the Lobby to support us on this matter.
The Bill departs from the emergency powers legislation and the powers now embodied in part VII of the Terrorism Act 2000. I welcome the fact that such a move is now possible. I accept, too, the Government’s argument that although we all want a presumption in favour of trial by jury in criminal cases, there remains a need for judge-only trials to counter the risk of intimidation and subversion of the jury system by very well-organised paramilitary groups.
Although we will be able to pursue various questions and points of concern in Committee and on Report, I will now specify some of the issues that we will wish to press during those later stages. In an earlier intervention, I mentioned my concern about the fact that the certification power in the Bill is given to the Director of Public Prosecutions alone, without any form of judicial scrutiny. That differs from the arrangements that the Government introduced in the 2003 Act, which requires the prosecution to apply to a judge for approval of a non-jury trial.
The arrangements in the Bill also bring into question the role and status of the DPP. That point was made by Lord Carlile’s predecessor as independent reviewer, Mr. John Rowe, who argued in one of his reports, in respect of the Attorney-General’s power concerning certification or scheduling in or out of offences:
“The Attorney-General’s decision to certify opens the door to jury trial. In the reverse direction he would be denying jury trial, and that is inappropriate for the officer who has the conduct of all criminal prosecutions. It is also inappropriate for the officer who is indeed, in the words of a former Attorney General, Lord Mayhew of Twysden, ‘constitutionally the guardian of the public interest’.”
Although the Bill refers to the DPP rather than to the Attorney-General in person, I think that the same concerns apply to the unchecked exercise of these powers by the DPP as Mr. Rowe considered to apply to the exercise of such powers by the Attorney-General.
Is it not self-evident that the principle must apply as much to Northern Ireland as it does to the rest of the United Kingdom, and that there is no security benefit whatsoever in trying to ascribe different regulations to different parts of the country?
Wherever possible, the same rules should apply in every part of the United Kingdom. Obviously in Committee we shall be able to hear in more detail the Government’s argument that the terrorist or paramilitary threat in Northern Ireland is so different in nature from the terrorist threat in Great Britain that different powers are needed there.
Responding to interventions, the Secretary of State argued that the Government’s chief reason for giving the certification power to the Director of Public Prosecutions alone was that there would otherwise be a serious risk that very sensitive intelligence information might be given to people who would misuse it, and who might act in the interests of criminal and paramilitary groups. In Committee we shall want to probe that Government argument, and to do so by reference to the arrangements made by the Government to safeguard such information in other circumstances. Commenting on the Government’s proposals, Lord Carlile of Berriew argued that a procedure should be adopted similar to that used by the Special Immigration Appeals Commission.
The Superintendents Association of Northern Ireland raised this issue during the consultation. Given the way in which, in the past, lawyers have sought to gain disclosure of why certain decisions were made, and of the intelligence bases on which they were made, there is a real threat not just that trials could collapse, but that informants could be exposed. Does the hon. Gentleman accept that?
I completely accept the hon. Gentleman’s point that terrorist and paramilitary groups will seek access to such information, and that if they acquire it they will use it for evil purposes. I question whether the Government are right to say that it is impossible to construct a procedure that provides both adequate safeguards and some scrutiny of the decision of the Director of Public Prosecutions. On that, we need not look only at immigration legislation. I remind the Secretary of State that in the Terrorism Act 2000 the appeals procedure against the proscription of an organisation specifically empowers the special tribunal set up to hear that appeal to deny the appellant or the appellant’s representatives access to the information on which the decision to proscribe was made. At the very least, that precedent needs to be looked at in Committee.
The hon. Gentleman has referred to the Secretary of State’s comments about a possible risk to, or compromise of, national security in respect of whether or not a trial goes to a jury. Does the hon. Gentleman recognise that the conditions for issuing the certificate are set out in clause 1(3) to (6) and that nowhere do those conditions refer to issues of national security, nor is the issue of national security referred to in clause 1(2), which deals with
“a risk that the administration of justice might be impaired”?
Again, it would be perfectly proper for Members to explore such matters further in Committee and on Report.
Another issue that is bound to come up as the Bill progresses is the familiar debate about whether a non-jury trial should be held by one judge sitting alone or by three judges. I know that the Liberal Democrats have argued in the past that there should be a three-judge tribunal rather than a singe judge. For our part, we shall approach this matter with an open mind, but I should say that I am predisposed to favour the one-judge solution both because of the small size of the Northern Ireland bench and for fear that, given the circumstances in Northern Ireland, we would inevitably get into a situation in which one judge was seen as coming from one community and a second judge from another, with the third judge supposedly holding the swing vote in any decision. I am sure that we will have ample opportunity to pursue that argument in Committee.
I welcome the clauses giving protection to jurors. They are sensible and we will support them. I also welcome the powers for members of the armed forces acting, as the Secretary of State said, in support of the police and at the invitation by authorisation of the Chief Constable.
I welcome, too, the extension of the regulation of the private security industry to Northern Ireland, and I am glad that the Government have acted swiftly on the recommendation of the Northern Ireland Affairs Committee that the review of private security industry legislation be completed swiftly. However, I question whether the Security Industry Authority is fully equipped for the challenge of dealing with paramilitary organisations. If we look at the Select Committee report on Northern Ireland, we see that it heard evidence that licensees were frequently pressured by paramilitaries to employ particular people as door supervisors, that some local councils in Northern Ireland operated no form of registration at all, and that even in Belfast, where police checks had to be done it was still left up to the licensee to decide whether the results of such a check should lead to somebody being barred from employment. So the onus of that, and therefore the risk of standing up to the paramilitary organisations, was left with the individual licence holder. When the Bill is enacted, the SIA will have to confront some powerful, very well established and utterly ruthless criminal interests in Northern Ireland. I hope that when the Minister responds to the debate he can assure the House that the SIA will be up to that challenging task.
I am grateful to the hon. Gentleman for giving way, as he always does. I want to get something clear in my mind, as I am slightly confused. Non-jury trials were introduced and extended to Northern Ireland in the Criminal Justice Act 2003, to which the hon. Gentleman has regularly referred, yet I understand that his colleagues voted against that. I also understand that he and his colleagues also recently voted against the extension to Northern Ireland of non-jury trials in fraud cases. Therefore, why are he and his colleagues in favour of non-jury trials in respect of this Bill?
I am sorry for the hon. Lady’s confusion, but if she looks at the Hansard report of the recent debates on the proposal for non-jury trials in fraud cases, she will see that my colleagues who were speaking for my party on that occasion made it clear that we felt that it was perfectly possible for the judge controlling a fraud trial, and for the advocates speaking on behalf of the parties in such a trial, to simplify their reasoning by using language that a jury could understand. We did not believe the Home Office arguments that a sensibly presented case would somehow be incomprehensible to a jury. The difference between that Bill and this one is that in this one we are looking at proposals that move us a distance away from the current situation, where the system of scheduled offences means that certain offences are assumed automatically to go to non-jury trial unless a decision is taken otherwise. We are also dealing here with a genuine risk that terrorist organisations could subvert the process of criminal justice. The Ulster Unionist party used to support emergency provisions legislation in this House, and I am sorry that the hon. Lady is today apparently changing her party’s line on that.
I want to conclude by making a few remarks on the clauses relating to the Northern Ireland Human Rights Commission. Again, we will want to look at those clauses more closely in Committee. I have seen some of the commission’s initial comments on the Bill, and it is clear that it wants additional powers and that it dislikes the limits imposed by clause 14 in respect of national security and by clause 19 on events before 1 January 2008.
The point that I want to make to the Government is a bit different: is there not a risk that by enacting these further powers we will end up with different commissions or different independent watchdogs with overlapping and duplicating jurisdictions? For example, the commission says in a number of documents that I have read that one of its chief interests is the plight of children who are detained in custody or immigration centres, but where will the boundary lie between the commission’s interests in that and those of the Northern Ireland Commissioner for Children and Young People? Also, how will Ministers define the respective remits of the commission, of Her Majesty’s inspectorate of prisons and of the Prisoner Ombudsman for Northern Ireland, each of which seems to have an interest in the same set of issues? When we set up independent watchdogs, it is important that we are clear about the responsibilities that they will exercise.
Does the hon. Gentleman not agree that, even within the remit of its current powers, the Northern Ireland Human Rights Commission has failed to recognise that there are boundaries that it should not step over? It passes judgment on whether war is legal, interprets the scope of a Northern Ireland Bill of Rights and is involved with the 11-plus in Northern Ireland. How far does it want to go, and how far will it go if it is not stopped by this House through proper legislation?
The right hon. Gentleman’s comments reinforce the case for having clear definitions of the responsibilities that the NIHRC and other independent watchdogs are expected to exercise.
I want to allow plenty of time for Northern Ireland Members in particular to contribute, so I will conclude by saying that, although we have a number of specific concerns that we will explore further in Committee, the Bill deserves support if there is a Division tonight. I certainly hope for the day when even the reduced powers embodied in this legislation will no longer be needed in Northern Ireland.
I, too, welcome the Bill. I have been following my right hon. Friend the Secretary of State around today—from the Welsh Grand Committee upstairs to here, downstairs, in the Chamber of this House. I suppose that I am what would be known as a parliamentary stalker. I accept the point that the hon. Member for Montgomeryshire (Lembit Öpik) made earlier: we should try to avoid clashes of Northern Ireland and Welsh business if we can, because they do not allow us the right opportunities for debate.
The Bill extends the normalisation of life in Northern Ireland, and when the Belfast agreement was reached and then voted on, it certainly was felt that such issues would eventually be dealt with in exactly the same way as they are in Great Britain. The normalisation of security has been successful, as has the establishment of the Northern Ireland Human Rights Commission and the other commissions, and the changes in the criminal justice system. The Bill hits the right note. It accepts that, as a rule, Diplock courts must come to an end, and I see no reason why they should continue. The view when the agreement was signed was that eventually, normal life would return and there would be no need for them. But I also recognise that, because of jury intimidation, in certain cases trials may well have to be held without a jury—an issue to which I shall return in detail in a moment.
The normalisation of security, policing and criminal justice should of course apply across the board. When we debated Northern Ireland legislation in this Chamber some weeks ago, everybody agreed that the time had come for all political parties in Northern Ireland—particularly Sinn Fein—to accept the policing arrangements as they now are. I hope that my hon. Friend the Minister will touch on that issue when he winds up. It is relevant to our proceedings today, because it reflects a general movement towards the normalisation of events in Northern Ireland. After all, although the Unionist parties did not like many of the changes in policing and the nationalist parties did not like some of them, at the end of the day, the rule of law and the new policing arrangements have been accepted by all except Sinn Fein. I know that that will be a major issue in the months ahead.
I am pleased to see that the NIHRC will be granted extra powers to compel evidence, to access places of detention and to bring judicial proceedings in its own name; indeed, that was the original intention. I was told year after year that none of these things was possible, so I am delighted to see that they now are, and that the NIHRC will be able to get on with its job. However, I accept the point, made by some Opposition Members, that all the commissions in Northern Ireland must have the confidence of all the community of Northern Ireland—whoever they are and whatever background they come from.
I am extremely grateful to the right hon. Gentleman for giving way. Will he reflect on his praise for the NIHRC, particularly given that clause 49 extends certain provisions to England, his beloved Wales, and Scotland, as well as to Northern Ireland? The increased powers of the NIHRC presumably extend to Great Britain. Did the Welsh Affairs Committee get an opportunity to discuss that extension of powers?
No, but the worry always was that extending the powers of the NIHRC would have implications for the rest of the United Kingdom—although not, of course, for the Republic of Ireland, as my hon. Friend the Member for Foyle (Mark Durkan) has already mentioned. That is a difficulty, but everybody accepts that the commissions set up some eight or nine years ago—be it the Equality Commission for Northern Ireland or the NIHRC, for example—are exceptional, in that they relate particularly to the circumstances of Northern Ireland and have taken the accountability of Government to heights beyond other parts of our country. However, I understand the point that the hon. Lady is making.
I turn to another interesting issue. All these measures are based on the premise that eventually, policing and justice will be devolved to Northern Ireland. It might be a good idea if the House reflected on the fact that policing and justice in Northern Ireland are already devolved to a large extent. When I was Secretary of State for Northern Ireland, a lot of the decisions about policing were taken not by me or my right hon. Friend the Member for Neath (Mr. Hain), the present Secretary of State, but by the Policing Board, which has done a very good job, so a lot of the detailed arrangements are already devolved. I understand that considerably more need to be devolved before the commitment made all those years ago to the devolution of justice and policing to Northern Ireland is met; however, it is sometimes forgotten that such devolution already exists.
My right hon. Friend makes a very important and telling point that has been made by others, including the leader of the Social Democratic and Labour party. There already is significant devolution of policing; indeed, for operational purposes, it is almost total. When the debate is weighed up and the time comes for the formal powers to be transferred from this Parliament to the Assembly and the Executive, it should be borne in mind that it is not as momentous a thing as some might suppose. I would welcome my right hon. Friend’s comments on that point.
I am grateful to the Secretary of State for that intervention.
The hon. Member for Aylesbury (Mr. Lidington) referred on more than one occasion to the need for the Committee considering the Bill to look in detail at some of the issues that we are examining more generally this afternoon. I am sure that they will also be dealt with in great detail in the other place, where there are many experts on them who will doubtless lend their support to such a debate.
Before I conclude, I want to make two further points. First, the clauses relating to extra powers for the police and the military—my hon. Friend the Member for Foyle touched on the military—need to be looked at in detail. My right hon. Friend the Secretary of State is right to say that a highly sophisticated method of accountability in Northern Ireland—be it the Police Ombudsman for Northern Ireland or the Policing Board—will look after many of those issues. I realise that arrangements are in place regarding who will report to the Secretary of State on issues affecting the military. However, it might be worth while including in the Bill a safeguard or a monitoring system to examine the operation of those clauses as time goes by, or at least to get the Government to agree to having one.
I accept the general view that we do not want to return to a situation where every year, this Parliament deals with these issues, but because we are entering into difficult areas, it is worth while monitoring progress. I say that not just because I was involved in Northern Ireland, but because of my role as Chairman of the Intelligence and Security Committee in dealing with the next and final issue that I want to discuss: the position of the Director of Public Prosecutions on non-jury cases in Northern Ireland. Remember that we are talking about cases that go to trial. I understand that in some instances—for reasons of national security in particular—cases do not end up at trial, but we are talking of cases that will go to non-jury trial. I introduced the 2003 legislation in the full knowledge that at some stage a judge would have a role to play. The Secretary of State and the Government should reflect a little more on the relationship between the DPP and the judiciary. I completely understand the point about national security, the intimidation of juries and the care that needs to be taken with intelligence that leads the DPP to conclude that a trial without jury should be held. However, we always have to balance the issue of security with civil rights and liberties.
It has been argued that Northern Ireland could have a special exemption in terms of jury trials, because of paramilitary activity—which still exists, including through organised crime—but it and the rest of the country face a much bigger threat from al-Qaeda, as the director general of the Security Service reminded us the other day. In Britain, trials can be held in camera and without juries in certain circumstances. However, the judiciary play a role, even to the extent that certain members have to preside in such trials because they are used to dealing with such matters of national security. We have to be careful on that point and I hope that we will have a good debate on it in Committee, to ensure that we hit the right note.
In general, the Government have hit the right note with the Bill, because it will carry Northern Ireland even further down the road to a normal society.
I first wish to put briefly on record my utter frustration that once again Northern Ireland legislation is being considered at the same time as Welsh business. The Secretary of State for Wales has had to leave because he has other responsibilities, and I have to hold the fort—in onerous fashion—all on my own. This scheduling also deprives the Welsh Grand Committee of two of the finest Members of Parliament from Wales—if modesty permits me to say so on my own behalf. The right hon. Member for Torfaen (Mr. Murphy) has failed to intervene to correct me on his behalf. The business managers need to show more respect for the Welsh and Northern Irish Members of Parliament and public.
While I have sympathy with the point that the hon. Gentleman makes, the Government have now on three separate occasions scheduled Northern Ireland business to clash with the Northern Ireland Affairs Committee, and we have had to abandon our sittings.
That simply serves to prove that the business managers do not seem to care about Northern Ireland legislation and allowing us to address it properly. It is a real Hobson’s choice making the decisions about which business to attend and I hope that this is the last occasion on which the business managers treat us with such disrespect.
We also need to put on record our appreciation of the work by Lord Carlile of Berriew, who has made a substantial contribution to the debate. He is one of the finest contributors to these matters and, incidentally, comes from one of the finest constituencies in the country—Montgomeryshire. We appreciate his efforts.
The Liberal Democrats generally welcome the Bill. It contains much that we support and we welcome announcements by the Government that they will repeal the temporary provisions in part 7 of the Terrorism Act 2000 relating to Northern Ireland. That is a significant step forward and some credit is due to the Northern Ireland Office for being true to its word and attempting to normalise the legislation that pertains to citizens of Northern Ireland.
We are also pleased to see at least a professed move away from the Diplock court system. Instead of the presumption being that terrorist cases in Northern Ireland should be tried without a jury—and may be tried with a jury only if the DPP deschedules a case—it will be reversed and a case will have to be tried with a jury unless he issues a certificate stating that it must take place without one.
We have criticised the Government in the past for not moving swiftly on that matter. Indeed, while we welcome the move away from the presumption of non-jury trial, we question whether the new provisions go far enough. There is some cross-party concern that the Government have attempted to remove Diplock courts with one hand but replace them with something similar with the other. In essence, the Bill could do much more to ensure that jury trial becomes the norm in Northern Ireland rather than the exception.
I am sure that the issue will occupy us considerably in Committee. For a start, we are concerned by the language used in the Bill in relation to the issue of certificates. Clause 1 sets the bar very low. For example, it states that the DPP
“may issue a certificate…if…he suspects that…there is a risk that the administration of justice might be impaired”.
Those are terrible words to use in legislation. It does not say how big the risk must be. Should it be greater than 50 per cent. or will a 5 per cent. risk be sufficient? The DPP need only suspect something, which is a very low test—indeed, it is a lower test than the balance of probabilities. So in clause 1 we already see a construction of words that makes it easy for the DPP to decide that a jury trial is inappropriate.
The Bill also puts considerable onus on the DPP—one person—to make the decisions. That is one of the reasons why we are so concerned about later sections of the Bill. Not only will the DPP have to make momentous judgments about risk, but there is no safety catch or double check.
The conditions in clause 1 are equally woolly. Clause 1(3) states:
“Condition 1 is that the defendant…is, or has at any time been, a member of a proscribed organisation…or…is an associate (see subsection 10) of a person who is, or has at any time been, a member of a proscribed organisation.”
It is not clear what that means. If one looks at subsection 10, the definition of “associate” includes
That is a very broad use of language and open to interpretation. Who could be considered to be a friend of mine? I would imagine that everyone in the Chamber would consider themselves to be in that privileged category—[Interruption.] Well, some may choose to exempt themselves. The DPP, however, may not be able to take the risk. For example, the right hon. Member for North Antrim (Rev. Ian Paisley) might be at some religious convention in Belfast and, during a break, bump into the Bishop of Southwark in the bar. The bishop says to him, “You’re my best mate ever.” The DPP happens to overhear that, but a fight ensues. Does that mean that the right hon. Member has to be considered a friend of the Bishop of Southwark and therefore qualifies under this condition?
An even greater concern involves the Prime Minister. There can be no doubt that he has consorted with Gerry Adams on many occasions and is, at the very least, an associate of his. Gerry Adams has clearly been a member of a proscribed organisation—
He’d probably qualify as a friend.
Indeed, but that would mean that if for any reason the Prime Minister was on trial in court in Belfast—perhaps for the Iraq war, although I hesitate to suggest why—he would have to be tried without a jury because he is a friend of someone who has been a member of a proscribed organisation. Those examples show how preposterous the Bill’s vagueness of definition is. Everything that I have mentioned has to be worked out by one person—the DPP for Northern Ireland.
I have concerns about some other matters. For example, condition 4 has an unintended consequence. The Bill states:
“Condition 4 is that the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, or 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 means that racist attacks could qualify for trial without jury, even though they have nothing at all to do with the troubles in Northern Ireland. I accept that clause 1 begins by making it clear that the DPP would have to be satisfied that the administration of justice might be impaired by a jury trial, but condition 4 makes it possible for many people to ensure that they would not be tried before a jury.
Moreover, the condition requires the DPP for Northern Ireland to exclude jury trials in circumstances that manifestly have nothing to do with the specific problems of Northern Ireland. We can investigate the other problems in Committee, but we must be clearer, more focused and less vague about the definitions in clause 1; otherwise, the DPP is almost certain to err on the side of caution and exclude jury trials in circumstances where they should be included.
I hope that the Minister will say why it is the DPP for Northern Ireland who will decide whether a trial is to be conducted with a jury. Would it not be more appropriate for that decision to be taken by a judge? So far in this debate, I have heard no convincing answer to that question. Perhaps the Minister should reflect on the matter, so that we can give it serious treatment in Committee. In the absence of a plausible reason, we risk making the situation over-complicated by stepping outside the mainstream judicial system.
Clause 7 is the most vexing part of the Bill for many people. I stress that I and my party are completely opposed to it. Not only does the Bill contain no provision for an appeal against a decision to be held without a jury, but in fact it expressly prohibits such an appeal. Something similar came up in connection with the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. At the time, the Joint Committee on Human Rights issued a damning report on the provisions, saying that they were
“inherently objectionable as an attack on an important element of the scheme for protecting Convention rights in the United Kingdom.”
For me, clause 7 is equally objectionable, because it is the same clause. Indeed, I urge the House to look at the fourth and fifth reports from the Joint Committee on Human Rights at that time. Seven pages are devoted to the 2004 proposals, with the Committee explaining in considerable detail why it thought that they were unreasonable.
My party will not call for a vote on the Bill today, as we want it to be considered in Committee, but we will not be able to support it on Third Reading if clause 7 is retained. Moreover, the Government should not expect us to accept this objectionable clause, as they have already conceded the point in separate debates on the Floor of the House. My counsel to the Minister is that we should not fight old fights again, and that the Government should walk away from this unnecessary restriction on human rights. They should accept the verdict of independent reports published less than two years ago and realise that the clause creates a pointless hostage to fortune, as no one really believes that the Government would not use it as a precedent to force similar legislation on the rest of the UK.
If the DPP for Northern Ireland had to put an application before a judge, would the hon. Gentleman and his party accept the clause? That condition was included in the similar provision for non-jury trials in the Criminal Justice Act 2003, at a time when jury tampering was a real danger. If the Liberal Democrats would accept that condition now, why did they vote against it then?
I shall write to the hon. Lady with the detailed answer that her question deserves. I assure her that I shall talk to her about the matter at greater length once I and my hon. Friend the Member for Argyll and Bute (Mr. Reid), who is listening to the debate, have had a chance to consider it. However, my biggest concern about clause 7 is that it is an ouster clause that sets a tremendously dangerous precedent for future legislation relating to the whole of the UK.
The hon. Member for Aylesbury (Mr. Lidington) was right to say that, if there is to be trial without a jury, the Liberal Democrats strongly prefer a three-judge system. He highlighted some of the reasons, but that is another matter that can be debated in more detail in Committee. Our preference, of course, is that jury trials should be the default position, as we do not want to provide a wide-open gateway for a return to Diplock courts by another name.
On the Bill’s other provisions, we agree with the Government that there remains a case for putting in place special measures to protect the identity of jurors in Northern Ireland, but we have some questions about the special restrictions detailed in clause 9. For example, how widely do they apply? The Bill does not seem to specify that. How do they compare to jury-protection measures in the rest of the UK? Do the Government envisage that the restrictions will be permanent, or will they be rolled back as Northern Ireland moves closer to normality? I hope that the Minister will be able to respond to some of those questions later today, at least in outline terms.
Clauses 13 to 19 extend the powers of the Northern Ireland Human Rights Commission and are very welcome. Some time ago, the commission said that it needed to be able to compel evidence and enter places of detention. We are very pleased to see that those powers are provided by the Bill, but we will need to table amendments in Committee and ask questions of the Minister to ensure that the provisions are constructed in such a way that they can be used effectively for the benefit of the people of Northern Ireland. The intention behind the clauses is sound, but we need to check that the provisions will be effective.
For example, we are concerned about clause 19, which will prevent the Northern Ireland Human Rights Commission from using its new powers retrospectively to compel evidence. The clause will mean that the commission will have no right to use that power except in relation to
“matters arising, and situations that exist, on or after 1st January 2008.”
In reality, the commission will be unable to investigate anything that has already happened, or which may happen in the next 12 months. Perhaps the Government have good reasons for imposing that restriction: if so, we need to hear them.
We welcome the proposals in clauses 20 to 41 in respect of the powers of the security forces. Those will be general public order powers, no longer restricted to terrorist offences. This year’s marching season was peaceful in nature, and the Secretary of State has said that the Army was not deployed even once. Given that, we hope that there will be very few instances, if any, when the new powers will be used. That causes me to wonder whether we are being a little gold-plated in introducing powers that could turn out to be otiose.
Clause 40 says that the Secretary of State may repeal the powers laid down in clauses 20 to 39. Does the Minister have in mind a time scale for when he hopes that those powers will no longer be necessary—might it be in five years, or 10 years, or two years, for instance? I suspect he will say that it is an open-ended question, which prompts me to make the usual observation, which spokespeople from the Social Democratic and Labour party have already made today: temporary powers tend to become permanent as soon as they have been passed, because the Government are much better at introducing regulations than removing them.
The remaining provisions, in particular the clauses relating to the regulation of the private security industry in Northern Ireland, are also to be welcomed and could provide useful steering points for related UK legislation. The Security Industry Authority has been successful in its work in England and Wales, and we are supportive of the proposal in clause 45 to extend its remit to Northern Ireland. If it works in Northern Ireland, we can be quite sure that the Government’s legislation on that matter is fundamentally sound.
The Liberal Democrats will not be calling a vote today. We want to give the Bill the chance to pass to Committee but, as I said earlier, unless clause 7 is repealed, we shall not be able to support the measure on Third Reading.
The Bill is presented in the name of normalisation, but the reality is that some of its provisions are about normalising the abnormal emergency provisions that were resorted to in the context of the troubles.
During the darkest days of the troubles the rule of law often appeared to be little more than the law of the jungle in disguise. We saw not only paramilitary bombs, murders and atrocities but also arbitrary arrest, internment without trial, collusion and extra-judicial killings. Terrorists comported themselves in paramilitary fashion and people in the military and other security interests acted in ways that amounted to para-terrorism. All that fed into a sense of grievance and despair. It allowed those who headed paramilitary organisations to feign legitimacy and it dragged our society ever deeper into conflict and lawlessness.
In the face of that, the SDLP stood strong for the proper rule of law. For us an essential part of ending the conflict has always been reaching a situation where all of us fully respected human rights and would know that all organs of the state did so, too. That is why we have always opposed emergency laws and sought their removal and repeal.
Happily, nowadays, systematic abuses such as conviction on the basis of confession evidence alone and things such as the supergrass system have ended, but Diplock courts remain unjust. Under the Bill, Diplock courts will remain. People will still be convicted or acquitted by one judge sitting alone, and the decision to try a case in a Diplock court will be taken by the Director of Public Prosecutions, with absolutely no check or challenge available in a court or by a court that is directed to sit as a Diplock court. As I indicated to the Secretary of State earlier, that is a significant change from what the House was told in October 2005 when we were debating the Terrorism Bill. The Secretary of State made it clear that the intention was to end the provisions for scheduled offences by July 2007; they were extendable only until July 2008 and absolutely not beyond that point.
The Bill, however, provides for scheduling in perpetuity—not subject to annual renewal in the House, but permanent. Continuity Diplock is provided for in the legislation. Abnormal arrangements are being normalised. That is the part of the normalisation agenda that the Bill introduces.
When the House was debating the Terrorism Bill in late 2005 and early 2006, the Government put much emphasis on the views of Lord Carlile. We heard, for instance, that he had said:
“In my view the duration of the powers proposed in the Bill is justified on the merits and proportional.”
That was their extension to July 2007, exceptionally to July 2008.
“On the evidence I have seen and heard, I believe that the security situation…justifies the continued scheduling of offences. I regret this very much…I hope that it will no longer be necessary after 2007, as is the inherent hope in the Terrorism (Northern Ireland) Bill…The scheduling system as amended by the Bill”—
the 2005 Bill—
“should continue until what is now the foreseeable end of scheduling.”
Lord Carlile offered those views when the Government sought endorsement of the Terrorism Bill on the basis that it was purely a continuing temporary requirement. So far the Government have not relied on anything new or different in respect of the proposals in the Bill, which are obviously much more far-reaching than those of the Terrorism Act 2006.
The Bill makes a three-point turn both on the changes that were promised and heralded in the 2006 Act, and on the commitments made by the Government in the joint declaration of 2003. We warmly welcomed the commitment in the joint declaration to abolish emergency laws specific to Northern Ireland.
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.
When the Government rightly implemented, in the Terrorism Act 2006, a move away from Diplock, why do we have these attempts to ensure that Diplock can continue in perpetuity, without being subject to renewal provisions or parliamentary scrutiny in future? The Bill recycles provisions that previous legislation was meant to repeal. Clauses 1 to 8 provide for the continuation of Diplock courts, but now on a permanent basis. Clauses 20 to 41 provide key emergency powers for the British Army; for example, to stop and question, to search, to arrest and to enter premises and vehicles. The Government tell us that the Bill normalises Northern Ireland, yet they are giving the Army powers that it has nowhere else.
The Bill institutionalises the Diplock court and the powers of the British Army in the north. They are not temporary powers to be renewed every year; they are permanent and face no test of renewal. The Secretary of State should understand that the Bill will have an impact on the debate about the devolution of justice and policing. Its provisions will certainly have an effect on the implementation in the future of that devolution in practice.
Of course, we realise that the British Army will shortly be down to garrison strength only—at least if we can rely on the Government sticking to that commitment given in the joint declaration and elsewhere. We hope that as our security situation improves, powers will not be used as often as they were. In that context, how can we justify providing permanently for such powers? If the Government press ahead with those powers for the Army, which are supposedly—the Secretary of State tells us—to be used only in support of the police when the Army is called in aid, will the Army face the same accountability as the police in that situation? The police ombudsman has called for that.
I do not quite follow my hon. Friend’s point on the devolution arguments, so I would be grateful if he clarified it. I was making the point that when we get devolution of policing and justice and when there is a policing and justice Minister—whether it be from the SDLP, DUP, UUP or whatever—if the Executive made it clear through that Minister that it was time for some of the order-making powers provided in clause 40 to lapse, that would obviously weigh powerfully on any Secretary of State’s mind. The devolution of justice and policing is a protection in that respect for the concerns that my hon. Friend is expressing.
I will return to that point later, but it is clear that the Secretary of State presumes that the powers being exercised by the Secretary of State would not be devolved. That is making quite an assumption. The parties in Northern Ireland that will be discussing questions of the devolution of justice and policing might have a very different attitude about whether those powers should be reserved for the Secretary of State or devolved. If a devolved Minister of justice is simply to be someone who lobbies the Secretary of State on the exercise of all sorts of sweeping reserved powers, it creates a very different picture of the devolution of justice and policing than some parties want to entertain, or believed the Good Friday agreement promised.
The question of whether the Army would be amenable to scrutiny or investigation by the police ombudsman in respect of its future powers is even more urgent when it comes to MI5. The Government tell us that the British Army has been reduced in size in the north, but they are proposing to expand the presence of MI5 there with an enhanced and enlarged role after October 2007. I hope that the Army will be pretty much confined to base, but it is quite clear that MI5 could be active across the north. Where accountability lies for MI5 is an issue that my hon. Friends will be addressing later in the debate. They will point out that only people who believe that they are subject to MI5 surveillance can bring complaints against the organisation. Victims who feel that they have been let down by MI5 incompetence or inactivity cannot bring any complaint. In any event, complaints to the investigatory powers tribunal go nowhere: not one has been upheld to date and no reasons have ever been given.
The Bill compounds the culture of unaccountability of the intelligence services. As has been pointed out, it gives the Human Rights Commission welcome investigatory powers, but it is explicit that those powers are virtually non-existent when it comes to anything to do with intelligence services. Proposed new section 69B(5), inserted by clause 14, even explicitly prohibits the Human Rights Commission from investigating whether an intelligence service has acted
“in a way which is incompatible with…human rights”.
All that highlights an accountability gap, which will be created by the Government’s proposals to expand MI5’s role. The fact remains that where there is no accountability, we get incompetence and the withholding of information, as is quite clear in the Omagh case, where it took MI5 seven and a half years to pass on a warning about a bomb that went on to kill 29 people. The Government cannot let that pass.
Currently, the Police Service of Northern Ireland has primacy for national security and the police ombudsman has investigated complaints involving national security again and again without difficulty—and the sky has not fallen in. If MI5 is to take over primacy for national security—we believe that it should not—there should at least be the same accountability and challenge in respect of how those functions are managed. That means giving the police ombudsman the power to investigate complaints against MI5, which we will propose as an amendment in Committee.
In relation to Army powers, let us be very clear as well that just appointing another kind of reviewer, similar to the one for military complaints dealt with in clause 39, lacks rigour and will not command public confidence. Trying to achieve something in the same style for MI5 will not meet our point.
We are making serious points and we have serious reservations about proposals that have huge implications for whether or not we have the Patten vision of policing. I want to be clear that this issue should not be used by Sinn Fein as an excuse not to deal with policing. The Government’s proposed role for MI5 is no excuse for Sinn Fein refusing to urge people to pass information to the police about the rape of a teenage girl. Equally, questions in and around the devolution of justice is no excuse for Sinn Fein to delay its decision either—especially when, as the right hon. Member for Torfaen (Mr. Murphy) said and the Secretary of State confirmed, significant powers have already been devolved from the Secretary of State and the Northern Ireland Office to the Policing Board. That happened when the Policing Board was established and we saw the practice of those powers on decisions about the tenure of the previous Chief Constable and the appointment of the new Chief Constable. The NIO and the then Secretary of State were trying to control and influence those decisions and had to be reminded that they no longer had those powers.
I can understand why Sinn Fein may want to pretend that some significant devolution has not already taken place, and I also understand how it is trying to use the outstanding question of the transfer of ministerial powers as its big excuse for not having moved on policing to date. None of those matters should be used as an excuse for not moving now on the foot of the commitments given and received in the context of the negotiations at St. Andrews.
There is an awful lot of dishonesty in and around the question of the devolution of justice. The fact is that parties, whether it be Sinn Fein or the DUP, have to know full well that a devolved Minister of justice is not going to be lifting the phone to senior police officers to say, “Set my people free,” or, “I want you to go and arrest those people.” A devolved Minister will simply not have that sort of function or role. The parties are deliberately exaggerating what is involved in that respect. It is time that we demystified the issue. I hope that the discussions in the sub-group of the Programme for Government Committee can de-clutter and remove a lot of the confusion and exaggeration on this whole issue. The test will be whether the parties want to remove a lot of the misapprehension.
Sinn Fein is still relying on the excuse that, in the absence of the devolution of justice and policing, it cannot offer support for policing. It says that we have to ensure that policing in Northern Ireland is free from British control and that the test of that will be devolution. I have to say to the Secretary of State—I will now clarify for him my points about the implications of the Bill for devolution of justice and policing—that the legislation could well give those in Sinn Fein cause or excuse to say that there is a bigger remnant of British control regarding the future conduct of security, justice and policing in Northern Ireland than it had anticipated or envisaged. That is why I say that the Bill is pregnant with implications and potential complications.
I assume that the Director of Public Prosecutions will be appointed by the devolved interest in future, but he may be influenced, on the Secretary of State’s own indications, by national security considerations, which are, of course, outwith the devolved interest. The Government are very clear about that. In those circumstances, a devolved Minister of justice and a devolved Assembly could find themselves compromised and embarrassed by what is happening or not happening. They might have to say, “Yes, I am the Minister of justice and, yes, we appoint these people, but we have absolutely no say and the Secretary of State’s reserved powers are used. All I can do is lobby the Secretary of State about how someone we appoint actually conducts their role.” That is not a satisfactory situation and it is certainly not the picture of the devolution of justice and policing that we have in mind. I do not believe that it is the picture of the devolution of justice and policing that Sinn Fein has in mind either.
The hon. Gentleman is putting up an entirely false proposition. As Secretary of State, I cannot challenge the DPP now; nor can my security Minister, the Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins). We do not challenge the DPP. The DPP has an entirely independent role, as has the Chief Constable. With due respect, the hon. Gentleman is making a huge meal of this, and he could make his case more effectively without distorting that position.
I thank the Secretary of State for that attempt to clarify. To be very clear to him, I am not making a meal of this. I do not introduce Bills and clauses into the House only to reverse them, pull them, change them and turn them upside down in subsequent Bills, as is happening now. People who make meals of things are chopping and changing legislation; they go one way and then another, and they then double back in some other provision.
I am not suggesting that a devolved Minister of justice should be able to challenge the DPP’s decisions; but as the hon. Member for East Antrim (Sammy Wilson) pointed out earlier, there have been cases where people have wanted to question and to seek more information about what considerations were used by the DPP in deciding, for instance, not to prosecute supposedly in the public interest. The public have a genuine interest in wanting to know what their alleged interest was in that situation. The fact is that, in a devolved situation, a devolved Minister will find himself answering those questions.
The Secretary of State introduced into the debate the fact that the DPP might decide to go for a non-jury trial, as opposed to a jury trial, because of national security considerations. The Bill does not say that national security considerations would motivate or justify that decision by the DPP, but the Secretary of State introduced that. Is that an example of what the hon. Member for Montgomeryshire (Lembit Öpik) was talking about earlier when he referred to the danger of mission creep? We have already had condition creep.
Four conditions are set out in the Bill, but we now hear a fifth condition being talked about today. If it is not being legislated for today, it will be legislated for very soon, because that has been the history and the pattern in such legislation. The fact is that people in parties who are looking at either themselves or others holding a devolved ministry or taking part in an Assembly that has devolved powers will want to know where their powers begin and end.
With the Bill, it is important to be very specific about the powers that we are introducing, rather than running away with wider rhetoric. Yes, my right hon. Friend the Secretary of State mentioned national security, but what he means—this is important in these deliberations—is that if a defendant has been charged with a serious offence in certain circumstances described in the Bill and the test is passed and if some specific intelligence about that defendant is a matter of great concern, obviously the DPP should take that into account when making his decision. It is not a wide consideration of national security; it is a specific consideration in relation to that individual.
I thank the Minister for that attempt to clarify. I hope that he can point us, either now or in future, to exactly where the Bill makes that very precise clarification. I see it nowhere in the Bill. The hon. Member for Montgomeryshire touched on just how sweeping the conditions are: to exercise the power—to say, “Diplock it will be”—the DPP simply has to decide that there is a risk that the administration of justice might be impaired. There need not be a substantial risk or a serious risk. There is absolutely no test or qualification. There need only be a risk, and no one can test or ask on what that risk is based.
From what we are hearing from Ministers, it seems that that risk can be based simply on a whisper coming from the intelligence services to say, “This guy is one of ours,” or, “Complications could emerge, so this is what we want done.” That is not a legitimate interpretation of a risk to the administration of justice, so the Secretary of State’s and the Minister’s attempts on the issue give us more cause for concern. Let us remember that they introduced national security in relation to these powers. As I indicated earlier, I believe that they have inadvertently let the cat out of the bag about what is really motivating these powers.
Is the hon. Gentleman not concentrating an awful lot of his time in the debate on, and getting excited about, the subject of a Ministry of policing and justice, when the reality of the devolution of policing and justice, and that ministry is not on the horizon?
The hon. Gentleman makes a point coming from his political angle. I will not be drawn into that debate in relation to the question of the timing of the devolution of justice and policing or anything else. We want it to happen sooner rather than later. We did not agree with the DUP picking up the vetoes on the timing of that question, as it did with the Northern Ireland (Miscellaneous Provisions) Act 2006, which the House passed in May. We believe that, if all parties work properly on these issues, we can remove a lot of the apprehensions.
If we work on the practicalities, we find that the main ministerial powers to be transferred relate to getting the budget for policing—not even setting the budget, because that is done by the Chief Constable and the Policing Board—and to the legislative function involved in providing the criminal and other legislation that is needed for good policing or for the police to perform on behalf of the public. That is the main ministerial function involved. The interesting test then relates to some of the Secretary of State’s powers, to which he has referred—some of them are courtesy of the Bill and others are existing powers—which he is clearly now assuming that he will retain in the context of devolution and that the most a devolved Minister can do is sue to or lobby the Secretary of State in exercising his powers.
Is the hon. Gentleman now telling the House that his policy is to reject the miscellaneous law, and that we should change the 2006 Act to give a freeway for Sinn Fein to get into power?
The right hon. Gentleman knows that when that Bill was being considered in the House we had tabled amendments that would have unpicked the triple lock. Indeed, during consideration of the Northern Ireland (St Andrews Agreement) Bill, which was before the House only a couple of weeks ago, there was not time for us to reach such amendments—not least thanks to how Opposition Members conducted the debate on their own clause. Again, we had tabled amendments to that Bill that would have unlocked the triple lock. We want to enable the devolution of justice and policing to take place, alongside the other devolved powers. We believe that, when we have devolved ministerial powers for justice and policing, it will be the consummation of political change on the one hand and policing change on the other. Devolution will take place in a way that shows that people have confidence both in policing, as it will then be conducted, and in the durability and sustainability of the political structures in Northern Ireland.
Surely, the vast majority of the people of Northern Ireland already have confidence in the police and in the service and protection that they give to the people of Northern Ireland. They deserve our wholehearted support.
The hon. Gentleman knows that our point is that all parties should explicitly give that support, which is why we had no issue with, for example, extending the terms of the ministerial pledge of office to include that very statement. What we are saying to Sinn Fein is that the absence of the devolution of justice and policing to date is no excuse for its not having done what it needs to do in relation to policing. Even the concerns that we have recorded today about MI5 and the residual Diplock provisions in the Bill should not be excuses for Sinn Fein failing to do what it needs to do on policing. They are valid issues and complications for Sinn Fein and ourselves, and hopefully other parties, to pursue in the context of the discussions that we have to have on the devolution of justice and policing. However, they should not of themselves be impediments or excuses for Sinn Fein not doing what it should do to fulfil the democratic norms and to return the confidence that the public, Governments and others have vested in it in this long-running process.
I want to remind the Government that we will table amendments in Committee—not just on the MI5 question, but on the powers of the Human Rights Commission. Although the Secretary of State has said that the powers are extended significantly, we should remember that those extended powers come into play only after 2008. The qualifications and limitations on the exercise of those extra powers are such that they leave one thinking that the Government now spend more time suspecting the people who are on or working for the Human Rights Commission than—
I give way.
Will the hon. Gentleman take some solace and encouragement from the comments of the Secretary of State for Northern Ireland? In response to an intervention about what the judge could do if the judge was not happy with the DPP’s decision to have a non-jury court, he said, “The judge will have an argument with the DPP.” In other words, the Secretary of State himself wants there to be some kind of sanction for the judge, so presumably clause 7 is an oversight.
I thank the hon. Gentleman for that point. He draws attention to the fact that the Secretary of State offered an assurance that completely contradicts the Bill that he is presenting. The Bill is at pains to ensure that there can be no challenge by a judge or anyone else and no check whatsoever on the exercise of the DPP’s powers.
Will the hon. Gentleman clarify his party’s position? He has indicated clearly to the House that his party is not in favour of a continuation of Diplock courts—with which I disagree. He has indicated that he is not one bit pleased with the proposals in the Bill for a continuation of non-jury trials. How exactly would the Social Democratic and Labour party deal with the really serious problem in Northern Ireland of jury intimidation and intimidation of witnesses by loyalist paramilitaries, and dissident republicans, and traditional republicans—members of the Provisional IRA? How does the SDLP suggest that we could deal with that?
The Bill makes some provisions in respect of jurors that we do not take issue with. We see the need to protect jurors. However, when the Government presented the Terrorism Act 2006, they were clear that the circumstances were going to allow Diplock courts to be abolished after, at the latest, July 2008. There is now provision for them to continue as an available option in perpetuity, without being subject to renewal legislation in the House. That is a huge change. That has happened in circumstances in which the Government are telling us that the security situation and the prospects for the future are even better than they were then. However, now we can no longer have those time limits. That is the point that we are making to the Government.
It seems that there are people in government and in other parties who treat the Human Rights Commission as though it were some sort of subversive interest as far as Northern Ireland life is concerned. The Human Rights Commission is tasked with ensuring that people in Northern Ireland have their human rights upheld and respected. Where it has doubts or questions about that, it can have recourse to assistance, and challenges can be made that will support it in that regard. That is about good government, accountability and creating guarantees for the citizens of Northern Ireland that the sort of abuses that were suffered in the past are not going to be repeated in the future. It is a guarantee that no political interest or political power in the future—devolved or otherwise—can set aside people’s human rights considerations and international obligations. Given all the doubts and fears that people in Northern Ireland have, I would have thought that everybody would want the assurance that there is a strong and meaningful human rights body, rather than a token agency.
Given the earlier reservations that Members had about much of the legislation, does it surprise the hon. Gentleman that the Human Rights Commission has no such fears about the impact that the legislation might have on the human rights of people who would be subjected to these regulations?
I thought that I was ending my speech, rather than giving way to the hon. Gentleman. I am not sure that he accurately represents the Human Rights Commission’s position. Indeed, I do not think that the Secretary of State fully and accurately represented its position. However, we will allow the Human Rights Commission to speak for itself. I am prepared to accord it that trust and I hope that other hon. Members will, too.
I will be rather briefer, I hope, than the hon. Member for Foyle (Mark Durkan), although of course he took several lengthy interventions.
I give my broad support to the Bill, but as the Under-Secretary of State for Northern Ireland, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), knows full well, I have reservations about it, some of which members of the Northern Ireland Affairs Committee share. I do not know whether the Committee members share all my reservations because we have not discussed the Bill in great detail. That is my first objection.
There was not the need for hurry on the Bill that the Secretary of State suggested—it could have been introduced next year. I would have preferred it to be introduced after we had seen the Assembly re-established in Northern Ireland and working properly. That could have been done, although the Secretary of State had the right to take the decision that he made. I also would have preferred the Bill to have been subject to pre-legislative scrutiny; many of the points raised in interventions have underlined the wisdom of that course.
I intervened on the Secretary of State to say that there was unanimity in the Committee on the principle of the need, reluctantly, to continue to hold certain trials without juries. Indeed, that was one of the recommendations that were made in our report on organised crime in July. Equally, however, although I was grateful that the Secretary of State and the Attorney-General met the Committee and discussed these matters with us, the Secretary of State knows that I would have preferred the ultimate decision to have rested with the Attorney-General. That is not the same as what others have advocated—that the judge should have the final say—but I believe that the first Law Officer of the Crown would have been an appropriate person. I trust that those points can be debated in greater detail in Committee and put to the test.
Regardless of where we sit in the House, I think that we are all waiting anxiously to find out what will happen in the first two months of next year. I was glad that the hon. Member for Foyle made this point about Sinn Fein: whatever hang-ups or reservations Sinn Fein might have about the devolution of policing and justice, that should not prevent it from signing up to the police aspects now. He made that point unequivocally and I am grateful that he did so.
The hon. Gentleman reaffirms his point. I hope that that message will go to Sinn Fein because it is the one vital step that must be taken before devolution can be restored in Northern Ireland. I do not agree with everything that the Democratic Unionist party or any other party says, but I completely agree with the DUP and the hon. Gentleman that that is the necessary step. Not only is the step necessary, but it must be taken very quickly, because we must be able to see that Sinn Fein truly means what it says.
Last week, the Committee went to Northern Ireland and had the opportunity to hear evidence in public from people who are responsible for community restorative justice schemes. We met some impressive people in Kilcooley, which is in the constituency of the hon. Member for North Down (Lady Hermon). We also met representatives of the CRJ Ireland scheme in Andersonstown in west Belfast. We met extremely nice and well-motivated people in both places, but we saw a significant difference. Northern Ireland Alternatives, which runs the scheme that we saw in the morning and other similar schemes, is unequivocally committed to, and signed up with, the police. The scheme that we saw in the afternoon most emphatically was not, and it is necessary that it should be. When the Chief Constable of the Police Service of Northern Ireland gave evidence to us—it is all on the record—he made it plain that although he would like the schemes to cover the whole of Northern Ireland, they would have to be depoliticised, and would have to work as part of the criminal justice system, with the police. That is essential. It is against that background that we should consider the Bill, which I think is slightly premature.
We must remember that the current, strangely reconstituted Assembly in Northern Ireland will be dissolved on 30 January. After that, there will be no Assembly, and there will be elections on 7 March. There must be movement before 30 January, because we need to hold an election that is conducted after a cleanly fought campaign between parties, all of which are committed to, and signed up to, the rule of law. If that happens, who knows when it might be appropriate to devolve police and justice powers? However, that will not happen until there has been a decent period of time in which to see how people of all parties react, and until it has been seen that the Assembly and the power-sharing Executive are working properly.
There has been a great deal of talk about normalisation in this debate, and we all want Northern Ireland to be a normal, functioning part of the United Kingdom. We should bear in mind the terrible legacy and background of the past 36 years or more—that is the length of time that has passed since the right hon. Member for North Antrim (Rev. Ian Paisley) and I first entered the House in 1970. It has been a difficult time, but there is absolutely no doubt that in the past decade things have improved considerably, for which we are all grateful. However, normalisation has not yet been achieved, and when we in the Northern Ireland Affairs Committee produced our report on organised crime in the summer, we made it plain that there was still many a step to take.
Last week, when the Committee was in Northern Ireland, we had the opportunity to meet and talk to former paramilitaries, from both the so-called loyalist side—I do not like to use the words “loyalist” and “paramilitary” in the same sentence—and the republican nationalist side. I hope that they are sincere and genuine in saying that they have put paramilitary involvement behind them, but we have to put what they say to the test. Until we have done so, there will not be the normality that we all crave for Northern Ireland, to which the Bill hopes to make a contribution.
I promised to be brief, and I have been brief, but I should like to conclude by saying that although I would rather the Bill had been introduced a little later, I will support it. I shall not vote against it, either on Second or Third Reading, and I hope that the hon. Member for Montgomeryshire (Lembit Öpik) will come to realise that there is a difference between Northern Ireland and the rest of the UK. The Government have properly recognised that difference in the Bill, and we hon. Members should recognise it, too.
It is exceedingly generous of the hon. Gentleman to allow me to intervene. Before he completes his contribution and proceeds to support the Bill without any hesitation, may I ask him, as the Member representing South Staffordshire—a constituency in England, obviously—whether he is content for the Northern Ireland Human Rights Commission to have the power to call for someone in his constituency
“(a) to provide information in his possession,
(b) to produce documents in his possession, or
(c) to give oral evidence”?
Is he content with those powers, which will affect his constituency?
We will have to wait to see whether they will affect my constituency or not. I did not say that I supported the Bill unreservedly; the hon. Lady takes my words a step too far. I said that I was content to support it. I am particularly concerned about the provisions on trial without jury, and I have expressed those reservations. I know that some of them are shared by other members of the Select Committee, including the hon. Lady. None the less, I believe that it is necessary to recognise the differences between Northern Ireland and the rest of the UK. The implicit powers in the Bill for the Northern Ireland Human Rights Commission, to which the hon. Lady referred, should certainly be examined carefully in Committee. Given my other commitments, I hope not to serve on the Committee, but I hope to play a part on Report. Like all Bills, this Bill can be improved. If it had received the pre-legislative scrutiny that I proposed, and if the Government had not rushed it, we might not have had all the discussions that have taken place this afternoon. On that note, I shall conclude.
I approach the debate as someone who is interested—too interested, some would say—in Northern Ireland. Even so, I am an outside observer. We are talking about “normalisation”—a horrible word—and how far we have gone down the road to achieve it. Yesterday, some of us were in Northern Ireland for the Northern Ireland Grand Committee, including you, Mr. Deputy Speaker, in your capacity as Chairman. I should like to put on record our thanks for the welcome that we received from the great people of Belfast. I was taken by the fact that there was a Christmas market outside City hall. Germans were trying to sell us sausages, and Italians were trying to sell us sweets and wine. There was a mixture of accents—as for me, English was their second language—and it took me back 15 or 20 years, when the only non-Northern Irish voices that we heard in the streets were those of Cockney or Yorkshire squaddies saying, “Show us your driver’s licence or your passport. Open your car boot. Show us what is in your bag or wallet.” There is a huge difference, because where there were once security posts there are now market stalls—that is the reality of so-called normalisation.
We have come a long way, but we must consider how far we have travelled on that long road, and whether the proposals in the Bill are necessary. Anyone who visits Northern Ireland will not experience any difficulty travelling around, or in undertaking daily activities such as shopping, eating and drinking. The situation is vastly different, and it is a clear sign that things have changed. We talk about normalisation but, in truth, “normality” in Northern Ireland has probably never meant what it means in the rest of Great Britain. We are looking for a new normality that accepts that we live in a globalised world with global challenges. It says that we can never return to a world in which the use of force and the fear of intimidation are the basis on which our community is built.
The hon. Member for South Staffordshire (Sir Patrick Cormack) chairs the Northern Ireland Affairs Committee in an exemplary way. He is non-partisan, and has tried to provide challenges, both to the Government and to Northern Ireland politicians. I want to look at the things that we discovered in our work on security, and discuss two areas that show the progress that has been made as well as the challenge that we face. First, the Select Committee is conducting an inquiry on tourism. In early October, we went to Northern Ireland, and we have been taking evidence ever since. We saw the quality of the tourism industry that has developed in Northern Ireland, and the fantastic opportunities that are available. People from all over the world visit Northern Ireland and, by spending their money there, provide genuine hope for the future. There is a strong interest in encouraging more people to come, to stay longer and spend more money, so that we can build Northern Ireland into a place that we can all enjoy and of which everyone in the British Isles can be proud and can boast about to the rest of the world.
The other side of normalisation, as the hon. Member for South Staffordshire said, became clear in our work on organised crime. Clearly, such crime takes place in mainland Britain—there is much more than anyone wants—but in Northern Ireland there is a history of paramilitary involvement, and the worry is that people who learned their trade fighting security forces will use those lessons to intimidate ordinary people.
People trying to go about their ordinary day-to-day lives face threats and extortion. People who are trying to build houses and public service institutions are told, “You either do as you are told, or when you come to work tomorrow morning, the building won’t be there. It will be damaged or destroyed.” We took evidence from a gentleman who had to hand over a six-figure sum every year just to keep his buildings intact and his equipment safe. That is not the sort of world that anyone could call normal.
Smuggling of all sorts of products, from oil to soap powder, takes place. The mind-boggling variety and scale of counterfeiting shows the ingenuity of some of the people on that island and undermines the concept of normalisation. At a time when the sad events in Ipswich are to the fore, exploitation in the form of people trafficking, particularly for sex, is increasing in Northern Ireland. These are some of the issues confronting the police and the legal system there. Behind it all is the worry that terror, and the history and impact of terror, are still there. That must be borne in mind as we consider how to take forward the so-called normalisation process.
Last week the Committee had a session with the police in Northern Ireland. They gave us a run-down of what had happened in this year’s marching season, which should gladden all of us in Parliament. For the first time in almost four decades, there was no need to use troops on the streets to police the marching season. That did not happen by accident. The police force, the security forces, political parties from all sides, the Parades Commission and, above all, people on the ground got together and worked out a way of bringing the almost 3,000 marches to a relatively peaceful conclusion.
On the back of that report, we also saw evidence of what happened just 12 months previously at Whiterock, where blast bombs were used, people were clearly shooting at police, and devices were found and dismantled before they could cause further harm. There is evidence of increased activity by dissident republicans, which should worry us all. We want to move from a terror-led past to a respect-driven future, but the path is not easy. The Bill reflects the great progress that has been made on that journey.
The Northern Ireland Affairs Committee met Ministers and the Attorney-General. We expressed our cross-party concern that we had not participated in the pre-legislative scrutiny of the Bill, and we were worried about whether matters should be moving as fast as they are. We recognise that intimidation and, perhaps more important, the fear of intimidation still exist and might prevent people from coming forward. They want to do so but they are frightened that, if they do, they will not receive justice and violence will be visited on them. There are also worries that if people volunteer to sit on juries, they will not be able to do so as we in Great Britain do, and that they would not be picked for jury service in the same free and independent manner as those of us who have done jury service in this country expect to be the norm.
For that reason, most of us have said that we will support the Bill, at least in the short term. We are happy that things are moving forward and that we have come a long way, although we are convinced that there is still a long way to go. The hon. Member for Foyle (Mark Durkan) may not agree, although I agree with him, that through the Bill we are putting in place an abnormal situation. We should all work as hard as possible to remove that abnormality. I know that that is the Government’s intention, but anxiety has been expressed across the House today about whether, once the measure is enshrined, it will ever be removed. Non-jury trials should be seen as the exception, rather than the norm.
Hon. Members have taken a strong position on the extended powers of the Human Rights Commission. I think that it has done a good job in Northern Ireland. We all know that there was a need for it. In the time that I have been involved in Northern Ireland, there has seemed to be a “business” around human rights, and it is good to have one concentrated human rights body doing the work that needs to be done. I welcome the fact that it will be able to get into places of detention and have access to evidence.
I note what the hon. Gentleman says about the work of the Human Rights Commission. Since prisons are already heavily regulated and inspected by inspectors of prisons, prison visitors and so on, what added value will it bring to the prison regime in Northern Ireland?
This debate is about what is and what is not normal. The hon. Gentleman knows better than I do that this is a matter of trust. People from certain areas of Northern Ireland give the commission the trust that they do not give to other bodies. We may not like it, but they say, “I’ve got faith in what these people do.” If it carries out an investigation that backs up the work that other agencies are doing, surely that is in everybody’s interests and is the right way to move forward.
Earlier, I intervened on the Secretary of State about the extra powers for the police and the Army. I share some of the grave concerns that have been expressed. I am particularly worried that people may use this as a political ploy, and say, “You’re moving the goalposts, so we cannot sign up to policing in the way that we believe we should.” I have said on the record that I believe that members of Sinn Fein and any other people who want to involve themselves in democratic processes in this House or in any other democratic part of our society should support the police and the work that they do. They should work with the police irrespective of whether they like them individually or respect what they have allegedly been involved with in the past. If they want to play a part as democratic representatives, they owe it to the people they represent to be involved. I hope that the Bill does not get in the way of that.
The current situation is not normal. If we say to everybody in Northern Ireland, “We want you to act as normally, in every sense, as people in the rest of Great Britain,” we have to say the same to the police and to the Army. The Secretary of State said—I will read his speech in Hansard with great interest—that there are various areas where the police and the Army are not allowed to go under the existing legislation. I would have thought they could already go to all those areas, so why insert these additional powers? I think that “pregnant” was the right term to use. We all know what we end up with when there is pregnancy in an unblessed relationship—I hope that is not so in this case.
My final point concerns the private security industry. As the Northern Ireland Affairs Committee said, it is right and proper to work with people in the industry, who work with everybody from the daft to the deadly. They need to be trained and looked after properly so that they are not exploited, but they also need to be capable of doing the job properly.
I will look with great interest at what emerges in Committee and on Report. I hope that the Bill’s Third Reading will be the start of a really happy new year for everyone in Northern Ireland, and I express that sentiment to everybody in this House today.
When Governments bring in legislation, they often face the criticism that it is too little, too late. On the contrary, I fear that the centrepiece of this legislation represents a move too far and too soon. The record will show that I am no supporter of the Diplock courts. In fact, I served on the Committee of this House that considered the original Bill. I have always believed that it is right, where possible, that an accused be entitled to trial by his peers. When circumstances are not normal, however, severer laws must apply and courts must function in spite of the threats put on them.
I want to pay tribute to the judges who served in the Diplock courts, and to their integrity, faithfulness, honesty and courage. Of course, we should put it on record that some of them paid the supreme price for that. I believe with all my heart that those people did that job in a very difficult day and time, and they should be praised and not blamed. The House brought them into existence, and it should show its gratitude to them.
Those judges also administered the system in a manner that was widely accepted. After the first rows over such courts, it gradually came to be known that they were doing their best under the circumstances to give justice to those who were brought before them. While I do not want judge-only cases to continue beyond what is necessary, I believe that the interests of justice will be better served if they are not prematurely removed. That is my attitude to the Bill. While the Democratic Unionist party can see strong arguments for reform, we do not believe that the environment exists for the change to be made at present.
I remind the House that there is a regulation that can de-schedule many such cases. In fact, 85 to 90 per cent. of scheduled offences are now de-scheduled. Even now, there is no reason why other cases cannot be followed by de-scheduling. We need to keep that in mind. Normalisation in this area can take place of its own accord only when we see that it is time that it should be done.
It should be put on record that, in the original debates, Unionist jurors received the most criticism. They were attacked on both sides of the House on the grounds that they could not be trusted. I never agreed with that. I believe that there are good jurors in both Unionist and nationalist communities who want to see justice done and right prevail. I objected strongly, of course, to the many speeches attacking the moral character of Unionist jurors. I utterly reject such claims.
I believe that the time has come to move away from what will ultimately be a sop to those who do not like justice at all. I am afraid that part of the Bill has a political colour about it, and that an attempt has been made to reach a conclusion by making offers to people. No Government have the right to lower the standard of justice in order to do a political deal.
I welcome very much the statement made in the House today by the leader of the Social Democratic and Labour party about the attitude of his party to policing. I agree that the time has come for the Government to tell Sinn Fein that it must agree to policing. I am not in normal times a supporter of power sharing, and in particular I would not be a supporter of those with whom we are asked to share power, but if in these conditions people have to accept power sharing and do so without trying to renegotiate it—if they bow the knee and say, “Yes, all right. We have to do that”—I expect the other side to adopt the same attitude and respect the police. I welcome what the hon. Member for Blaydon (Mr. Anderson) said about democrats having to accept the honesty in policing.
I am glad that today’s debate is different from the debate 10 years ago. We are pleased that everyone is coming to see that the time has come when justice must be respected, the courts must be respected and the police must be respected. I was glad to hear a notable nationalist, who professed to be a republican, say on the radio, “Nobody but the Police Service of Northern Ireland can help us in our community. We need them there.” When the wave of lawlessness is flowing rapidly and in spate in many places, we need the police. We should give our loyalty to them. That does not mean that we have to believe in the absolute integrity of every police officer or that we do not protest if he is not doing what is right. I am talking about proper respect for the police and obedience to the laws of this country. That needs to be established and reinforced.
Having had the St. Andrews agreement, I trust that the Government will not allow themselves to be dragged into a renegotiation of policing. That has to stand. If there is any attempt to change it, it will be the end. We must be sincere about this and say it: change—tamper with—what was agreed at St. Andrews, based on everyone having to bow the knee and accept the rule of law, and the Government finish all negotiations. That would be a dreadful thing at this time. None of us wants it, but we must remember that it is not our decision; it is the decision of those who have to face up to the problem. They have to face it, and the Government have to force them to face it. The Government cannot have two ways of negotiating, in which they say to Unionists, “You must do this,” and then say to the IRA, “Well, we might be able to dilute that a bit. We might have some way—some form of words—to do that.” It is not a form of words that we want, but real action. The people of Northern Ireland—the nationalist people and the Unionist people—will give their verdict on whether that is done or not. That is what we have to face.
I do not want to detain the House, but it needs to look at the Northern Ireland Human Rights Commission, because it is not really a human rights commission, not the way that it is run today. I suffered from a vicious slander by the current chairwoman of the commission. In a radio broadcast, she accused me of taking a woman who was responsible for security at Stormont and getting my son to hold her until I beat her. That was broadcast all over Northern Ireland. Of course my lawyers moved; of course the BBC had to crawl and give an absolute withdrawal, and the woman had to crawl and make an absolute withdrawal. Let me be perfectly honest: I benefited a little financially. I was not worried about that, however. I was worried about my name. The Bible says that a minister of religion should not be a striker, and I was not going to be a striker.
Then, having lost her seat in the Assembly, the woman was given her position on the Human Rights Commission. We were told by the Government that she was the perfect person for the position. If that had been done on the other side of the camp—if a Unionist had slandered a nationalist or a republican, if that person had gone to court and received a payment and it had been proved that he was in the right, yet the other person had been elevated in that way—I can tell the House that there would have been some riot.
The case has arisen of another person who was appointed to a committee. Action is currently being taken, and I can make no further comment, but I say this to the House: how can the people of Northern Ireland depend on that person to preside over a human rights commission when she herself was not prepared to give a person the human right to go about his lawful business in the Stormont Parliament? I think that she is not fit to do that, and that she should not be there. The sooner the Government remove her from her position and replace her with a neutral person, the better it will be for everyone.
I think that the Human Rights Commission has failed. What will a debate on the legality of war in Iraq do for the ordinary people on the streets of Belfast who are trying to secure their human rights and go about their business? As for Northern Ireland’s involvement in the 11-plus, everyone knows my view on it, but I do not think it is a matter for the Human Rights Commission. There are other matters, too. The commission is always putting its foot in matters that are none of its business. It is time that it was reined in. I make a plea to the Minister: he must rein in the commission, and say, “There is your bailiwick. Yours is not a worldwide, global appointment. You have a job to do for Northern Ireland: get on and do the job for Northern Ireland.”
I hope that in Committee we shall have an opportunity to table amendments, and to debate some aspects of this matter. I trust that today’s debate, when it is reported in Northern Ireland, will prove useful to the people there. I take great encouragement from some of the things said by other speakers, and I believe that there is a way forward. Let us not be dragged backwards; let us take that way forward.
I am glad to follow the right hon. Member for North Antrim (Rev. Ian Paisley). I welcomed what I took to be his total, unqualified commitment to the pursuit of partnership in the administration of Northern Ireland. I hope that that, in conjunction with the commitment of the associated parties, will bear fruit in the near future, and that there will be a true partnership developing trust for all the people.
As for the right hon. Gentleman’s remarks about the Human Rights Commission, I suggest to him that he may be slightly prejudiced because of his adverse—as he sees it—personal relationship with members of the commission. I do not think anyone in the House would deny the necessity of human rights, or the desirability of a commission to deal with that important subject.
My hon. Friend the Member for Foyle (Mark Durkan) strongly articulated many of the problems that my party identifies in this Bill, but that does not mean that there are not also positive things in it. One of the positives is—to follow on from the comments of the right hon. Member for North Antrim—the giving of investigatory powers to the Northern Ireland Human Rights Commission. Had they been in place earlier, there might have been different outcomes in certain matters in times past.
At present, the commission does not have the power to call on persons or to call for papers, or, where it is following a particular line of investigation that requires entry, to have the right to enter. There is nothing unique about such an organisation having such powers. That is laid down in the United Nations Paris principles on human rights—and, after all, a human rights body must have some investigatory powers, or how will it carry out its investigations? If there are no powers to get answers, there is no point in having an investigation, and therefore no point in having a commission. So such powers are essential.
There is also an anomaly in Ireland. The Irish Human Rights Commission has investigatory powers that were also to apply to the Northern Ireland Human Rights Commission, but somehow they did not—they fell off the table, so to speak. In the north, the Equality Commission already has investigatory powers as, obviously, does the police ombudsman, and the children’s commissioner also rightly has powers of entry and inspection. Those are normal and necessary powers for any body to have that protects citizens and carries out investigations on behalf of the community.
We pointed out the failure to give those powers to the human rights commission during the passage through Parliament of the Northern Ireland Act 1998. The Secretary of State at that time gave a commitment that although it did not have those powers, full co-operation would be given to the commission in its investigations. As far as I know, that co-operation did not happen. The commission found itself on occasion refused entry into places of detention when it required to gain entry to pursue complaints that it was investigating.
Will the hon. Gentleman give way?
I shall do so shortly, after I have pursued my point a little further. Also, let me say that the hon. Lady has a most melodious voice and I would like to hear her question, but as I have difficulty hearing because of my personal disability, when she asks her question I request her to blast it at me.
The Secretary of State also said that he would review the commission’s powers in 2000. The commission waited and waited, and now, finally, we are to make some progress in that regard. I shall now give way.
I am most grateful to the hon. Gentleman for giving way. There are many Members in this Chamber whom I would sometimes wish to blast at—they are sitting to my right on the Democratic Unionist party Benches—but the hon. Gentleman is not one of them.
I have a simple inquiry. The Paris principles to which the hon. Gentleman has rightly referred govern national human rights commissions, and therefore they are applicable to the Irish Human Rights Commission, but they are not applicable to a regional human rights commission, which is what the Northern Ireland Human Rights Commission is as Northern Ireland is a region of the United Kingdom.
I thank the hon. Lady for her intervention, which gives me the opportunity to respond—although not as blastingly as she did—that the UN principles state that where there is no national organisation, as there is not in the situation we are discussing, the rights and privileges of such a commission should extend to regional commissions. The UN has been supportive of investigatory powers being given to the Northern Ireland Human Rights Commission.
Often, what the Government give with one hand they claw back with the other, and that is what is really happening in the Bill before us. For example, and as Members have said, the commission can use its investigatory powers only in respect of matters arising after 1 January 2008. It cannot access any information or documents before that date, even if they are relevant to situations arising after that date. So it will be years before the commission can carry out proper investigations and get a full picture of that which it is investigating. It seems that six years of waiting for these powers is not long enough. In practice, under the terms of clause 19, it could well be another four or five years before the commission can carry out proper investigations.
Even then, the Bill provides for huge exceptions to the commission’s powers. Extraordinarily—there has already been much debate about this—it is expressly prohibited from considering whether any of the intelligence services has acted in any way that is incompatible with human rights. Under the terms of proposed new section 69B(5), which clause 14 would insert into the Northern Ireland Act 1998, the commission is prohibited from dealing with any other matters concerning human rights and the intelligence services. We need to be clear about this: it is not merely that the commission will not have the power to demand to speak to MI5 officials or to see their documents; it has no right to ask for such information. So in this regard, it will actually have fewer powers than it already has.
The commission can, however, investigate other human rights abuses, and in the course of those investigations, it might find that it needs access to intelligence material. It can ask, but there is absolutely no chance of getting such access. As the Secretary of State said in his introductory remarks, it can take the matter to the Investigatory Powers Tribunal, but it will not succeed. The commission has to prove not only that the releasing to it of such information would not damage national security, but that the refusal to release that information was irrational and that no reasonable intelligence agency would behave in that way. That is what proposed new section 69B(2)(d) really means, because that is the standard that applies to judicial reviews.
This is all the more worrying at a time when the Government want substantially to expand MI5’s role in Northern Ireland. At the moment, the Police Service of Northern Ireland has primacy in respect of national security, and the police ombudsman has the power to investigate complaints about its handling of these matters. Such accountability has helped enormously in building confidence in the new PSNI and the new beginning to policing. Time and again, the police ombudsman’s office has investigated complaints that have gone to the heart of national security, such as those involving the Omagh case, which is currently at trial, and “Stormontgate”. We have yet to hear anybody, including the Government, complain about the ombudsman’s involvement. Nobody has come out publicly even to attempt to argue that this is a bad thing, so why introduce a measure preventing the commission from pursuing those lines of inquiry?
The right hon. Member for Torfaen (Mr. Murphy) mentioned Osama bin Laden, and in that regard there is a peculiar anomaly, which I have mentioned before. A terrorist who is aware that the intelligence service is monitoring him has the right to make a complaint to the Investigatory Powers Tribunal. However, a person who is unaware that they are being monitored, and who is perhaps suffering an injustice through that process, has no rights whatsoever. That point emerged strongly during the Omagh trial, which my hon. Friend the Member for Foyle mentioned. It took seven and a half years for that to be exposed, which is not acceptable.
The Bill raises many issues that could be politically damaging to the process that is taking place, without embracing fully the need for a full human rights scenario in Northern Ireland. I think that all hon. Members will agree that we were able to build a police service that has inspired cross-community confidence. We need to do the same for the investigatory powers of the commission, especially in terms of MI5, because what is possible now will not be possible after the passing of this legislation.
The Bill contains many good provisions, which we will support, but I ask the Government to consider the remarks made by my hon. Friends and other hon. Members today and the proceedings in Committee, and to take on board some of the practical problems, the solution of which could enhance the ability of the community to move forward from the dark days of the past three decades.
I wish to make it clear, as my right hon. Friend the Member for North Antrim (Rev. Ian Paisley) has done already, that the Bill is unnecessary and could be dangerous to the pursuit of security in Northern Ireland. The situation does not warrant such changes. As the Secretary of State suggested in his speech, the Bill is part of the political process towards normalisation, and many of us believe that that has been driven more by the demands of Sinn Fein than by the situation on the ground.
Reference has already been made to some of reports by the Northern Ireland Affairs Committee, in which it is recognised that the policing situation in Northern Ireland is not yet normal. Indeed, some witnesses were not even prepared to be named when they appeared before a Committee of this House, which does not suggest that people would be happy with a jury system. We must bear in mind the fear of the influence of the paramilitaries that still exists.
Some academic studies have been done on the issue, such as “The Jury System in Contemporary Ireland: In the Shadow of a Troubled Past”, in which the authors discuss the need to move away from the Diplock court system. However, they concluded:
“At the same time, while paramilitary organisations continue to operate, there are likely to continue to be certain cases which have a paramilitary connection where the risks of juror intimidation may be as great as they ever were.”
For that reason alone, it is essential that a discretionary power be maintained—although we think that it is too weak—so that all cases do not have to be heard before a jury.
The risk of intimidation is fairly high. Indeed, some cases have already broken down because of jury tampering. When the Secretary of State appeared before the Northern Ireland Affairs Committee, we put a case to him in which eight people were involved in a £1 million cigarette heist. When the case went to court, there was evidence of jury tampering, the trial collapsed and the accused walked free. So we already have some warning signals that, even under the present regime, inappropriate cases are sent for jury trials with consequences that benefit only those engaged in criminal activity.
It has already been said today that under the present regime it is possible to move further towards a jury trials system when appropriate. Already, 85 to 90 per cent. of offences are descheduled and can be tried before a jury. Why is the existing mechanism not to be used in the future? The only conclusion to be drawn is the one arrived at by my right hon. Friend the Member for North Antrim—that to a certain extent the proposals are coloured by a political necessity, rather than a legal or security necessity. They must be politically driven, as a mechanism already exists that would allow us to move towards jury trials, as and when that is deemed suitable.
The presumption in favour of jury trials will cause the DPP for Northern Ireland to respond to political pressure and opt for those trials in connection with many more offences, whether or not that is appropriate or safe. The Bill will give extra impetus to those who want to drive the system in that direction.
I know that the SDLP is concerned because decisions by the DPP cannot be challenged, save in very limited circumstances. However, legal teams in Northern Ireland often trawl for disclosure about involvement in a paramilitary group or paramilitary intimidation, and the Superintendents Association of Northern Ireland made it clear in its response to the consultation document that that can prejudice the person who makes such information available. The Government are right not to leave the door to judicial review wide open, as the result in many cases would be that trials would collapse—as has happened in the past.
I hear what the hon. Gentleman says about tribunals and judicial review, but should not the decisions to which he refers at least be subject to independent assessment by a senior judge? His agreement or disagreement could then be made known within the system.
Such checks already exist. The DPP for Northern Ireland must make his decisions about whether a case should go to a non-jury court according to a set of criteria. The Secretary of State has pointed out that, although a judge cannot challenge such decisions, he can speak to the DPP if it is clear that one is unsound.
May I draw the hon. Gentleman’s attention to the fact that clause 7 provides that no court can review a decision by the DPP unless there has been dishonesty or bad faith? The DPP’s decision cannot even be nullified
“by reason of lack of jurisdiction or error of law”.
Surely to goodness, that provision is too narrow for the DUP to accept?
That might be a difficulty for the hon. Lady and the SDLP, but my party believes that there should be a presumption in favour of non-jury trials anyway, so that is not a big issue for us. The assumption behind many of the complaints aired today is that non-jury trials deliver a lesser standard of justice than jury trials. However, the evidence—at least from our part of the United Kingdom—is that many of the miscarriages of justice that have occurred were not in non-jury courts. The headline miscarriage of justice cases occurred in jury courts, so I do not have the same concern as the hon. Lady about the lack of opportunity for people to challenge the decision of the DPP. As there is already a presumption to move to jury trials, and as 85 to 90 per cent. of scheduled offences are already being descheduled so that they can be heard in jury courts, there is sufficient movement in a direction that I believe is dangerous in present circumstances.
As has been pointed out, we are not happy about the proposals to move towards jury trials, but if we must do so, one of the safeguards that we welcome is the fact that at least peremptory challenge has been removed. In Northern Ireland in the past each individual could make 12 peremptory challenges, and one of the people who briefed me on the Bill told me about the old saying that in England when the jury was chosen the trial was ready to begin, but that in Ireland when the jury was chosen the trial was finished.
When someone can challenge jurors without reason, there is a great danger that the jury will be made up only of people they believe will be sympathetic to them. The Chairman of the Northern Ireland Affairs Committee mentioned that in our report we pointed out that one of the big challenges in Northern Ireland in the future would be dealing with criminal gangs. If the system was not changed, there would be a real possibility that in a case involving six gang members, there could be 72 challenges to the jury so that eventually the accused would have a jury that they felt would be sympathetic.
It is essential to bring that process into line with the rest of the UK. However, it will not stop perverse decisions by juries, especially in areas where there is a strong republican or indeed loyalist influence. Some of the people chosen for the jury might not feel that criminal activity by a paramilitary organisation was all that bad, and that it was one of the things that had to be done to raise funds. Just three people could influence the decision in favour of the accused, so there is great danger of perverse judgments and we must be careful about that.
The hon. Member for Blaydon (Mr. Anderson), who is no longer in the Chamber, and other Members spoke about the powers for the Army to stop, search and arrest people and so on. They were jumping up and down about that, but I have watched operations as a member of the Policing Board and I can tell them that sometimes it is impossible—especially where the police ask for Army support—to distinguish the roles of the police and Army personnel. When the police and the Army operate together, Army personnel need the same powers of arrest and search as the police require. When they have to deal with a fracas, a riot or public disorder, are the Army personnel supposed to leave it to the police to make the arrests or to do the stopping and searching? When they are liaising on the ground they need the same powers.
Is the hon. Gentleman implying that there should be the same investigatory powers for the Army as for the police at present?
I am saying that where the police and Army are operating together on the ground, the Army personnel need the same powers—to stop, search and arrest people and perhaps to search premises—as the police. The investigatory powers of the Army are governed by the Army’s own strictures and that is how it should be. Given how the police ombudsman’s office has abused its powers in relation to the police, I would certainly not want its powers extended to investigating the Army. I believe that the powers given to the Army in the Bill are essential. On the rare occasions when the Army is called in to help the police, it is essential that it has those powers.
My last point is about the Northern Ireland Human Rights Commission. Here is a body that is totally unproved. I was trying to think of any high-profile cases in which it has been involved during its current life. I gain the impression from speaking to people in Northern Ireland that if they are aware of the NIHRC at all, they are aware only of the infighting that occurred when half the people who served on it dropped out halfway along and refused even to go to the meetings. The chief executive or chairman of the NIHRC—whatever he is called—left or was put out because of the way in which the commission operated.
The NIHRC sought a role for itself, of course, mostly by overstepping the mark and involving itself in things for which it had no remit. As my right hon. Friend the Member for North Antrim pointed out, it condemned the Iraq war as illegal. Whether it is illegal or not, I do not think that it is a matter for the Northern Ireland Human Rights Commission. Some of us may have views on that issue, but it is certainly not the proper role of the commission to investigate it.
I am genuinely grateful to the hon. Gentleman for taking so many interventions. I may be absolutely wrong on this, but I had understood that when the Secretary of State set up the most recent Northern Ireland Human Rights Commission, he wanted to make it more representative of the community, so there is a present serving member who is also a member of the DUP. Is that correct and, if so, does the party have no way of trying to influence him in trying to make the NIHRC more sensible in its judgments?
It would be most bizarre, and we might well come in for some condemnation, if we were seen to be pulling the strings of someone who is supposed to be an independent member of the commission, albeit coming from a particular persuasion. We do not seek to do that, as we do not believe that it would be right, but it does not affect my judgment on the commission. I do not believe that that body has added anything to Northern Ireland or, indeed, provided any additional safeguards. If one looks at the remit it sought for itself, it seems to have wandered around looking for one, involving itself with things with which it should not be involved. A further worrying aspect is the powers given to it by the Bill.
First, the NIHRC is given powers that are already exercised by other bodies. For example, it is given the power to visit and investigate prisons, but Her Majesty’s inspectorate of prisons already has that power. What additional work will the commission do? Are we saying that Her Majesty’s inspectorate of prisons is not doing its job correctly? Are there defects in its remit and, if so, should not the Government address them rather than give another body power to carry out work in respect of prisons?
The other thing, of course, is that when a body, such as the Northern Ireland Human Rights Commission— especially a body that wishes to prove itself—is given additional powers, there is always a chance that those powers will be used zealously and, indeed, over-zealously. It is very unfortunate that some Government Members use the example of the police ombudsman’s office. One has only to look at its record to see that it has abused its investigatory powers abominably. For example, in my constituency, a raid on a former special branch officer’s house was carried out. That man was suffering from severe heart problems. He was certainly no threat to society, yet six cars full of investigators rolled up at his house. It was not sufficient to send six cars; the TV stations were rung up, so that they could come to film the raid. Why? So that the police ombudsman’s office could be seen to be doing something. That is the problem with giving such bodies, which are looking for a role for themselves, the kind of additional powers proposed. They will use them over-zealously.
As well as refuting the hon. Gentleman’s gross allegations against the police ombudsman’s office, I ask him whether he agrees that the fact that he is saying that he cannot think of something that the Northern Ireland Human Rights Commission has done shows that it is not doing the damage that he is suggesting and that it is not behaving in a manifestly untoward, destructive or irresponsible way. The commission responds to complaints. It also responds to Government proposals for legislation and makes a valuable input into proofing and improving those proposals and legislation, including during the time when we had devolution and, I hope, when we have devolution again.
This is the amazing point. Let me just take the last point that the hon. Gentleman made: the commission will have the job of proofing Government policies. I thought that Departments already had to do the job of providing equality-proofing and so on for legislation and other proposals. Are we saying that we not only need Departments to do that job—Departments very often bring in consultants to do that job on their behalf—but also need to bring in the commission to do more equality-proofing? I am trying to make the point about over-regulation and the problem of looking for roles for bodies when there is not really a role for them.
The point is that, although Departments have that responsibility, they cannot be relied on to discharge it fairly and competently. That is why they rely on consultants. Even when they rely on consultants, as we saw with the electronic human resources contract, the Department of Finance and Personnel said that it would not even release the evaluation of the equality impact assessment on the very policy of outsourcing until it had already let the contract. That is the proof that the Departments and their consultants cannot be relied on.
I have another difficulty with the hon. Gentleman. I understood that all this equality-proofing stuff came from the Belfast agreement, of which he and the SDLP were partly the authors. If he did not trust Departments to do the job, why on earth was it ever written into the arrangements under the Belfast agreement? [Interruption.] I have been fairly generous with the hon. Gentleman, but he was a Minister of a Department. Is he telling me—I will let him intervene if he wants to give me an answer—that when his officials carried out equality impact assessments, he was so uncertain of how efficiently they would do it that he would have preferred the NIHRC to come in to double-check their work? Was that the experience of all the other Ministers in his party who were in charge of Departments, which were supposed to undertake the equality-proofing of policies?
The hon. Gentleman will recall that the equality screening exercises that the Departments undertook all had to be approved in advance. Their schemes had to be approved by the Equality Commission, and rightly so. There were huge variants in how Departments were prepared to do that and they needed to rely on the advice of a credible third interest—namely, the Equality Commission. As a Minister, I was glad at least to be informed of the advice from the NIHRC, because I was dealing with the Office of Law Reform and some of the law reform measures that we brought forward in the Assembly meant that there was a need for advice from both the NIHRC and the Equality Commission, so that we could get the balance of the law reform right.
I know that the quality of civil servants in Northern Ireland has recently been questioned by a Public Accounts Committee report in the House, but to hear a former Minister in the Northern Ireland Assembly—[Interruption.] Yes, a former Deputy First Minister. When the hon. Gentleman says that, when it came to equality-proofing proposals, one had to have Department officials, outside consultants, the Equality Commission and the NIHRC, he makes the case for me. The proposals are in danger of adding yet further to the burden of over-governing in Northern Ireland. I know that, when we debated the legislation to set up the Assembly, he complained about the possibility of gridlock because of the vetoes that parties had. If he honestly believes that when a Department decides to introduce a new policy or legislation, officials, consultants, the Equality Commission and the Northern Ireland Human Rights Commission need to look at it, he needs to ask whether he and his party are the ones trying to encourage gridlock in Northern Ireland.
I do not believe that the proposals on the NIHRC are in any way justified. They are not justified on the basis of the historical record of the commission, which has been one of people infighting and achieving very little. They are not required, on the grounds that there are already bodies that have many of the additional powers that are being granted to the commission. Giving regulatory powers to bodies such as the commission will lead to what many people will see as—I will describe it kindly—an over-zealous reaction. Some people would say that it is far worse than that and that it is destructive in many ways. For those reasons, we are not happy with those parts of the proposals.
The Bill is not essential. Much of what it is designed to do could be done under the regime that is in place in Northern Ireland. We should have gone down that route—a cautious route, in a society that still has the potential for the judicial process to be corrupted by paramilitaries and criminals. We should approach the matter cautiously, rather than in the political manner that the Government are approaching it.
I want to be brief and to focus on some of the emergency powers and what they mean. In the 1970s, the Diplock courts were an integral part of the injustice system in Northern Ireland. There is ample evidence to prove that people were abused and beaten in Castlereagh holding station—something that I and my colleague, the former Member for West Belfast, Joe Hendron, highlighted time and time again. In many cases, those people were convicted solely on confessions extracted under abuse and pressure. Later, there were virtual show trials in which people were convicted on the word of unreliable accomplices, or supergrasses. I am pleased, as are many in our society, that these abuses are no longer with us, but that does not make a one-judge, no-jury court right or desirable. Such a system leaves far too much hanging on the opinion of one person—one judge alone—rather than that of the 12 members of the jury who should be in place.
We must ask ourselves why we are legislating to install such a system permanently. At least part VII of the Terrorism Act 2000, which used to provide for the Diplock courts, had to be renewed on a regular basis. The Bill, however, will provide for Diplock courts for good.
The hon. Gentleman mentions the police interrogation techniques in Castlereagh. Many cases were thrown out of the Diplock courts because the judge ruled that confessions were unreliable. The hon. Gentleman also talked about the supergrass trials. Neither of those things are the responsibility of the Diplock courts or the judges. Those are different matters. Does he accept that he cannot use those arguments against the Diplock court system?
No, I do not. This was just another spoke in the wheel of the flawed system of justice. The problem added to injustice. False confessions were extracted and fed into the court system. Yes, some cases were thrown out, but others were not.
The Diplock system was once an emergency provision, but the Bill will make it a permanent scar on our justice system, without even the basic safeguard that exists in the Irish Republic, where three judges sit in the special criminal court. The Social Democratic and Labour party believes and hopes that the provisions in the Bill that will protect the identity of jurors will mean that Diplock courts will be used much less frequently. However, it is not enough that we use an unfair system less often. I do not think that we should use one-judge, no-jury courts at all, if they can be avoided in any way. I believe that the time has come when they can be avoided.
We should be worried when we look at the test that will be applied by the Director of Public Prosecutions when determining whether to use a Diplock court, because it is strikingly broad. Clause 1 provides that there can be a trial on indictment without a jury if the DPP decides that there is
“a risk that the administration of justice might be impaired … with a jury”,
or if he suspects that any of the conditions set out in subsections (3) to (6) are met. Only a risk is required under the test; the evidence pointing towards a non-jury trial need not be substantial.
The conditions are wide open. If, for example, a person was merely a friend or relative of someone who belonged to, or had belonged to, a proscribed organisation, it would be enough to satisfy one of the conditions. That condition could apply to a vast number of people in Northern Ireland. Indeed, it could very well catch several hon. Members.
Worse still, clause 7 provides that no court may question any decision taken by the DPP in relation to the issue of a certificate. The clause even secures a derogation from the Human Rights Act 1998 because of the sweeping nature of that power.
Clauses 20 to 41 provide the Army and others with emergency powers. The provisions are almost identical to sections 81 to 95 of the Terrorism Act 2000. Clauses 1 to 7 are also closely modelled on provisions of that Act. All those sections of the 2000 Act are particular to Northern Ireland, but at the time of the joint declaration of 2003, the Government promised the repeal of counter-terrorist legislation that was particular to Northern Ireland. We thus have a major contradiction. Parliament even legislated to repeal aspects of the 2000 Act through the Terrorism Act 2006. However, it seems that the Government take away one law and slap back another. In the Bill, back from the dead, are key provisions of the Terrorism Act 2000 that are particular to Northern Ireland. Of course, we recognise that some of the provisions of the Terrorism Act 2000 that are particular to Northern Ireland are not reproduced in the legislation, and I want to put that on the record, but the most important elements, such as the provisions on Diplock courts and emergency powers for the Army, are reproduced—and this time, they are put in permanently, and will not require renewal. As my hon. Friend the Member for Foyle (Mark Durkan) stated, that is normalising the abnormal.
Before concluding, I want to draw attention to clause 45, which I welcome. It requires private security firms to be licensed in future, and makes it an offence to provide security services without a licence. That has been included to prevent paramilitary control of security services, and we warmly welcome the measure, because clearly there have been attempts by some paramilitary groups to extort money through the use of bogus security companies.
Another area in which the Independent Monitoring Commission has warned of paramilitary control is the field of community restorative justice, which was mentioned earlier by the Chairman of the Northern Ireland Affairs Committee, the hon. Member for South Staffordshire (Sir Patrick Cormack). The SDLP supports community restorative justice in principle, but we believe that there must be a proper system of regulation. One of the safeguards for which we have argued is a requirement on the groups concerned to be licensed and properly regulated, like security firms. Time and again the Government have told us that it would not be possible to put such regulations in place, yet the Bill sets a precedent for security firms in that regard. We would warmly welcome the extension of that precedent to CRJ groups, and the Bill is proof that that would not be impossible.
Let us use that positive precedent to get restorative justice right, and to ensure high standards in that very important work. After all, if licensing is necessary for bouncers and security companies, surely it is important for groups working at the heart of the criminal justice system. I hope that the Government, Ministers and others will reflect on that. For our part, we shall work on the proposals, and will make suggestions in Committee.
I shall be brief. I have listened carefully to the other contributions, including those of the Secretary of State and the spokesman for Her Majesty’s Opposition, the hon. Member for Aylesbury (Mr. Lidington), as well as other Members of all parties. Some of them reacted in a measured fashion, but others have over-egged their opposition to certain measures in the legislation. [Interruption.] If the Under-Secretary of State for Northern Ireland, the hon. Member for Wythenshawe and Sale, East (Paul Goggins) will contain himself, he will find out exactly which hon. Members I am speaking about; the Secretary of State is one of them. I ask him to contain himself a little longer.
Any independent observer, carefully scrutinising the facts about the security situation in Northern Ireland, would acknowledge that there is a justification for retaining resolute powers to protect the law-abiding citizens of the United Kingdom, and especially the people of Northern Ireland. I emphasise that my concern is not for the criminal, but for the law-abiding people of the Province, and those who have endured so many years of intimidation, threats and constant attacks.
In my humble opinion, there is a continuing need for extraordinary procedures. My right hon. Friend the Member for North Antrim (Rev. Ian Paisley) rightly said that the Bill goes too far, too soon, and the Minister should consider that remark carefully. We need to protect the people of Northern Ireland from the continued threat of terrorism and continued intimidation. We agree that we should progressively move towards holding jury trials, but jury trials are not appropriate in all cases. Like my right hon. Friend the Member for North Antrim, I pay tribute to the judges and magistrates in Northern Ireland. We owe a great debt of gratitude to those in our court system, because they provide a signal service to the community under difficult circumstances, and many of them are under constant threat from terrorists from across the community. It ought to be put clearly on the record how much we owe them for carrying out a normal duty under abnormal circumstances. I said that some Members had over-egged their objections to certain parts of the legislation. It is not the first time that the hon. Member for Foyle (Mark Durkan), for example, has done so, and it will not be last.
It was a case of scrambled eggs.
Indeed. We must look at some of the issues that the hon. Member for Foyle brought to our attention, because many of his remarks focused on the magical devolution of policing and justice. He was concerned about the fact that the Minister had the power to do this, that or the other after devolution, and about the impact of measures in the Bill. I intervened on him, and may I remind him, honestly and honourably, that a devolved Ministry for policing and justice is not on the radar, so any date for such a thing is not a reality? Rather than become excited about the issue, he can rest for a considerable period, because all is well, and those responsibilities will remain with the mainland United Kingdom. That should give him great comfort.
The hon. Gentleman objected, too, to the powers given to the British Army to search people. I do not know what kind of world he lives in, because he should know very well that it has had search powers for years. Why should not Her Majesty’s forces exercise responsibility and protect the people of Northern Ireland, if they have been brought in to do so? They have exercised those responsibilities carefully, even though they have been subject to great provocation for many years. We owe a great debt of gratitude to Her Majesty’s forces who have come to the Province and put themselves in harm’s way to ensure that we have as normal a society as possible under the trying circumstances created by the constant threat from the Provisional IRA and other terrorist groups.
The Army has been brought in to support the Police Service of Northern Ireland. There was a great furore about Army personnel going out on patrol without the police. If they stopped someone on the road, they could not search them until a policeman arrived. That was quite ridiculous, given the terrorist threat and the abnormal situation, We must acknowledge that we are not yet in a normal situation in the Province. We long for that day—we hope that it will come soon—but there is a constant terrorist threat against the people of Northern Ireland. Terrorism must be put down or crushed in Northern Ireland, because the terrorists have not gone away. Many people want to close their eyes to that fact. I would love to live in an area where liberty and freedom from terrorism are a reality, but I can assure the hon. Member for Foyle that it is very different in the area where I live and in the west of the Province.
If we set aside our obvious differences about the way in which those powers for the Army were exercised in the past, does the hon. Gentleman accept that the Government made a commitment to repeal those powers? It is a fact that previous legislation purported to repeal those powers, and that the Bill effectively restores and recycles some of them? Perhaps it was the hon. Gentleman’s party that persuaded the Government to do that, but it is a reversal of their position.
I thank the hon. Gentleman for his intervention. It is normal that in a society where there is the threat of terrorism, Her Majesty’s forces—the Army and the police—work together in the defence and protection of the community. I do not mind whether it is members of the PSNI or Army personnel who are protecting me and my constituents from the threat of terrorism or from those who are intimidating them. I will not say, “Oh, sorry, I don’t like your face, or your cap, or I don’t like the badge on it.” That is nit-picking. That is why I say that the hon. Gentleman’s objection to the provision is over-egged. He should be more concerned about the reality of the situation.
To respond directly to the hon. Gentleman’s question, I will not answer for what the Government promised him in the past or promised anyone else. I can assure him that promises were made to us too. My paramount consideration is that the measure is in the interest of law-abiding citizens and their safety and protection.
I thank the hon. Gentleman for giving way. He has just said that if the police and the Army are in an exercise, it is nit-picking to make a distinction between who is wearing what cap or what badge, and they should be treated the same. Should not the police ombudsman therefore have the right to investigate either in relation to their conduct in those situations?
Once again, I thank the hon. Gentleman for his intervention. My direct answer is absolutely not. I do not believe the police ombudsman has any right whatsoever to investigate the Army.
Maybe there is one thing that will cheer the hon. Gentleman. What we are learning this afternoon is that the Government break promises to everybody—he is not alone. One can do that for only so long, then one is caught. I will not offer any justification for any promise that was made to the SDLP or to any other party in the House or outside that undermines the security of the people of Northern Ireland and of the constituents whom I represent. The hon. Gentleman should not be over-exercised about the powers of search given to Her Majesty’s forces in the British Army.
The second matter about which the hon. Gentleman has been over-exercised—he has been a little up-tight this afternoon, or perhaps more than a little—is the expanding role of MI5. Is he really suggesting that the sky will fall in if an expanded role is given to MI5 in Northern Ireland?
Does my hon. Friend agree that there is a certain irony that MI5 has taken over security gathering in Northern Ireland, because the SDLP, along with Sinn Fein, were the very people who complained about special branch and who said they could not trust special branch and that it was a force within a force? Now they have finished up with a force outside a force.
I thank my hon. Friend for an excellent intervention. Chickens are coming home to roost. Perhaps the SDLP is beginning to realise what it has brought on its own head. In the interests of fairness and of law and order in Northern Ireland, the expanded role being given to MI5 should not cause any excitement. What the hon. Gentleman said under the Belfast agreement was that we are—and everybody has accepted this—a part of the United Kingdom. He should therefore welcome MI5’s participation, as in other parts of the United Kingdom.
Let me make it clear that the SDLP and Sinn Fein have very different views on intelligence policing. We read the Patten report, which clearly said that there needed to be intelligence policing within the PSNI and within the accountability structures. I agree that Sinn Fein made a mistake in opposing that, because it helped to enable people to create the MI5 agenda.
As for my question about the sky falling in, I was querying whether people are really saying that the sky would fall in if the ombudsman retained her powers to investigate national security-related intelligence policing. She has those powers now, and the sky has not fallen in with their exercise.
I can assure the hon. Gentleman that the sky will not fall in whenever legislation passes that gives MI5 that responsibility, so we can be happy in the knowledge that our heads will be safe. As far as Sinn Fein-IRA is concerned, certain Members might have a closer relationship with MI5 than the hon. Member for Foyle. I hope that my remarks have assured him that all will be well.
The second aspect of the over-egging of the Bill is down to the Government and the Secretary of State. The notes that were passed out from the Secretary of State’s office to his parliamentary colleagues are very helpful, as usual. One his key messages was:
“The security situation in Northern Ireland is improving every day and is transformed from where it was even three or four years ago.”
It is true that we do not have the bombs going off daily, but there are still major problems. The last IMC report—the 12th report, which came out in October 2006—acknowledges that there are major threats against the people of Northern Ireland.
There is genuine concern in the Unionist community that the Government are moving very fast on so-called normalisation without the assurance that people are being protected. I will give an example. We have constantly seen the removal of Army look-out posts along the border, especially in south Armagh, yet the Government know full well that there is an active so-called dissident IRA grouping in that area. The threat from those people has not gone away, but the protection from them has. The Government boast about transformation and the removal of the Army from the streets. What about the Unionist population? What about the people who are feeling vulnerable along the border and living in fear because they believe that the Government are trying to appease Sinn Fein and the IRA movement and have moved this process along without considering their safety?
We are told that the IRA has ended its armed campaign and decommissioned its weapons. We all know that that is not a faithful interpretation of reality. We know that major decommissioning took place, because thankfully my party pressed the Government to press the IRA to move on the issue, but it is wrong to give the impression that it decommissioned all its weapons. The IRA has not ended its armed campaign. We have to test whether this is a genuine transformation with repentance for what it has done or a con trick to see how many more concessions it can get out of the Government. No matter what words are spoken by the IRA, they will not bluff the Democratic Unionist party. There must be delivery, and it will have to be done in the appropriate time to allow the people of Northern Ireland to have confidence that a true transformation is taking place.
In The Irish Times today, I noticed the caption, “Man charged with IRA membership”. I thought that the IRA was supposed to have gone away and that everything was grand. However, the paper states:
“A Dublin man was charged with IRA membership in the Special Criminal Court”.
When was that? Was it months ago? No, it was yesterday. On the same page, I saw the caption, “IRA charge verdict on Friday”. It states:
“The verdict in the trial of a father of 10 accused of IRA membership is due to be delivered on Friday in the Special Criminal Court.”
In one paper today, therefore, two cases are reported of people charged with IRA membership.
When was the last time that our British Government charged people in Northern Ireland with IRA membership? The Irish Republic is charging people, but our Government seem to be not only closing their own eyes but pulling the wool over the eyes of the people of Northern Ireland. The article in The Irish Times today proves that the IRA still exists as an organisation and still has membership. The southern authorities are charging people with IRA membership. One of the people whose case is reported today is remanded and will not know whether he will get out until tomorrow. The Government are over-egging it.
May I point out to the hon. Gentleman that if someone is a member of a dissident republican group—Continuity IRA or Real IRA—the charge that they will face is membership of IRA or Oglaigh Na hEireann?
The paper does not say that. It refers to IRA membership. It will therefore be interesting to see whether that is the case, or whether we will find out that, like the British Government in Northern Ireland, the south is pulling the wool over people’s eyes. We know that the organisation is still in existence, and it must be dismantled for there to be credibility.
That brings me to the issue of the Government making it abundantly clear that Sinn Fein must give unequivocal support, not by words but by deeds, to the security forces. I am delighted that the hon. Member for Foyle has restated—and has done so forcefully in this debate—that there must be no equivocation about support for the Police Service of Northern Ireland. As many Members have acknowledged, that must be a reality and based on evidence, because they know the evidence on many of the outstanding cases.
Organised crime is still a reality in Northern Ireland. I am absolutely disgusted by the attacks on elderly people in the Province. In the past 48 hours, five of my elderly constituents have been attacked and robbed, in Crumlin, Glenavy, Ballinderry and Glengormley. The privacy and sanctity of their homes has been invaded by thugs. The people of Northern Ireland would be cheered up by the introduction of mandatory sentences for those who violate the safety of a person’s home. I do not care whether a thug takes 10p or £1,000 off a person, because he has changed that person’s life for good. There must be mandatory sentences, and the courts need to ensure that they are handed out instead of giving a slap on the wrist to people who destroy so much.
A woman was sitting watching the television with her husband. The thugs removed a window, walked into their home, tied them up in the corner, threatened them and took all the jewellery, some of which had been handed down through generations. That lady is now a zombie. She does not know her husband any more, and yet she was one of the most beautiful ladies in our community who, in fact, was a business lady. It is a tragedy.
People should go and see what these thugs are doing in our community. Many of the thugs have nothing to offer society, and because they cannot get their money from other activities, they destroy the lives of our elderly people. Extortion, money laundering, fuel laundering and intimidation are still going on. We need an honest assessment of what is happening in our society, and we must ensure that our emphasis is on the law abiding, not on the criminal.
Thank you, Mr. Deputy Speaker, for giving me the opportunity to speak in the debate and to bring it back to the subject of the Bill.
I was disappointed that the Secretary of State, when marking the passing of the Diplock courts, which he facilitated for reasons of political expediency, did not take the opportunity to pay tribute to the courage and bravery of the judiciary in Northern Ireland. Through 30 years of bloody mayhem, the members of the judiciary paid with their lives. Their families also had to experience threats and intimidation. Whether they sat as one judge in a Diplock court or otherwise, the judiciary in Northern Ireland served with impartiality and fearless independence throughout all those years. It would have been nice if the Secretary of State had paid tribute to its members.
I warmly commend the right hon. Member for North Antrim (Rev. Ian Paisley) and, indeed, the hon. Member for South Antrim (Dr. McCrea)—he said this at the beginning of his long remarks—for paying tribute to the judiciary in Northern Ireland. I appreciate that. I was sorry that when commenting on the idea of having three judges, the hon. Member for Aylesbury (Mr. Lidington) made the flippant, disrespectful and unnecessary remark that, given the context of Northern Ireland, it would have to be one judge from one community, one judge from the other community, and then another judge to be impartial. That has never been an issue in Northern Ireland. All judges, of whatever religion, have served all the community fearlessly and independently.
If the hon. Lady looks at Hansard tomorrow, she will see that I said nothing that was intended to impugn the integrity of any judges in Northern Ireland, who have served the community impartially, as she described. One of my fears about moving to a three-judge system—I have expressed this view before—is that there might be a perception in a divided society, however unfairly, that such a division among the judiciary was the case.
As I named the hon. Gentleman, it was right that he should have the opportunity to correct the record, because that was not the impression that he left us with. I welcome that.
I want to make it clear at the outset that I favour retaining Diplock courts for the foreseeable future. As I have told the Minister, I bitterly regret that the Government have conceded, for reasons of political expediency, to end Diplock courts by July 2007.
As the Secretary of State failed to do so, let me refer to the Northern Ireland Office’s own consultation paper on the replacement arrangements for the Diplock court system, published in August 2006. The Secretary of State told us today that things had improved greatly, and mercifully they have. But in its paper the Northern Ireland Office says that even now, in 2006, at least 60 Diplock trials take place each year: one a week. These are not Mickey Mouse cases, but very serious cases involving intimidation and threats.
A number of Members, including the hon. Member for South Staffordshire (Sir Patrick Cormack), Chairman of the Northern Ireland Affairs Committee, referred to the evidence given to the Committee during our inquiry into organised crime. Witnesses made clear repeatedly, in private when they chose to give evidence in private—I do not criticise them for doing that, because in view of the circumstances in which they lived they were perfectly entitled to do so—their feelings about the witness protection scheme. It would require them to uproot themselves from their families and their churches, to uproot their children from their schools, and to live in England, Wales or Scotland. That is not something that many families wish to do, even when intimidated. Apart from the expense, it is too big and traumatic an upheaval.
Given that we still have 60 Diplock court trials per year, it is worrying that the Government have moved so quickly—far too quickly—to end them. The Bill, of course, puts something in their place. I did not know whether to laugh or cry when I read it, because it is a most curious piece of legislation. On the one hand, the Secretary of State has taken an awful lot of time to persuade the Ulster Unionists—my colleagues back home, but sadly not in the Chamber—
We are still your colleagues.
I invite the hon. Gentleman to intervene, and prove that he is a colleague of the Ulster Unionist party.
I am very glad that the hon. Lady has allowed me to intervene, although I did not indicate that I wished to do so. I can assure her that we support the Ulster Unionist party whenever its policies are in line with ours.
I am very grateful. On too many occasions in the Chamber I have been heckled with sedentary interventions, and I am delighted that a member of the Democratic Unionist party has risen to make a proper intervention.
As I was saying, I did not know whether to laugh or cry when I read the Bill. The position is very curious. On the one hand, the Government are endeavouring to persuade the Democratic Unionist party and the Ulster Unionist party that things will be so good by 2008 that policing and justice can be devolved. That is the timescale set out in the St Andrews agreement. The hon. Member for Belfast, North (Mr. Dodds)—he is not present, but I am sure that someone will bring this to his attention—has said that he does not expect policing and justice to be devolved in his lifetime. Nevertheless, the Government, and the Secretary of State this afternoon, have repeated the deadline, so the Secretary of State must be confident that the Unionist community will itself be confident that republican criminality is over and republican intimidation is over—that there will be no more such activity on the part of mainstream republicans. In other words, we will have no more Northern banks, no more murders like the grisly, awful murder of Robert McCartney. The Government must be assured of that in order to aim for a deadline of 2008 for the devolution of policing and justice. On the other hand, the Government are at the same time looking in the opposite direction. They have got rid of Diplock courts, but they have replaced them with a great and significant extension of non-jury trials.
Let us look at what we are being asked to agree to. I should preface my remarks by saying that no criticism whatsoever is intended of the present incumbent of the post of Director of Pubic Prosecutions. If I want to have a row with Alastair Frasier, I shall do so in private. What I have to say is not at all a reflection on the current DPP; instead I am taking a long-term view of what we are being asked to approve.
As Members have mentioned, clause 1 states that:
“The Director of Public Prosecutions…may issue a certificate…if—
(a) he suspects that any of the following conditions is met, and
(b) he is satisfied that…there is a risk”
to the administration of justice. So the DPP does not have to have reasonable grounds or even a reasonable suspicion; he just has to suspect that one of four conditions is met, and that that will lead to an erosion of the administration of justice.
The measure makes no mention of national security. I know that the Minister has valiantly tried to defend the Secretary of State, who I think let slip the term “national security”, but that is not mentioned. The first condition that is included is that a person is, or has been,
“a member of a proscribed organisation”,
or that they are “an associate” of a member of such an organisation. The second condition—we must remember that just one of these conditions needs to be met and that they do not all have to be met at the same time—is that
“the offence or any of the offences was committed on behalf of a proscribed organisation”.
The third condition is
“that an attempt has been made to prejudice the investigation or prosecution of the offence”
by someone in a proscribed organisation; I am curious about that condition. The fourth condition is that
“the offence or any of the offences was committed…as a result of, in connection with or in response to religious or political hostility of one person or group of persons”.
I wish the Minister to address condition 3. I am particularly interested in the fact that under clause 8 the conditions will apply to events that occur before the Bill reaches the statute book. Does condition 3—where someone connected with a proscribed organisation has attempted to prejudice an investigation—open the way, rightly in my view, for the prosecution by a non-jury trial of those responsible for the murder of Robert McCartney? In that case there was a deliberate and wilful attempt to clear all forensic evidence from the scene of the crime. As the Bill is retrospective—I refer Members to clause 8(3)—and will apply to offences committed before the Bill is enacted, I would like the Minister to confirm for the record that it gives the DPP the complete discretion to put a case before a non-jury trial if he suspects that there has been an attempt to prejudice the investigation or the prosecution of an offence. I would be fascinated to have that confirmed. That is certainly my interpretation of the proposed legislation, and I will raise no criticism if it is correct.
However, let me move on to the Diplock courts. In an earlier intervention on the subject I confused the hon. Member for East Antrim (Sammy Wilson), although I had better put it on the record that it is very difficult to confuse him. The hon. Member for Foyle (Mark Durkan), and his party colleagues who are not present, made the most dreadful criticism of the Diplock courts. That is appalling, and I wish that they would check the facts.
The facts are that, unlike with other courts in Northern Ireland, the judge in the Diplock courts, who sat alone, had to give stated reasons for his conclusion if it led to a conviction, and he often gave stated reasons if he decided to acquit. Of course, technically, “he” is right, because there are no female High Court judges—or, indeed, a female Lord Chief Justice; that argument I will have with the Minister on another occasion.
The judge in the Diplock courts had to give stated reasons for the conclusions that he came to in every case, and there were unfettered rights of appeal, in that a point of law and a point of fact could be appealed. Therefore, Diplock courts were hugely successful, and if the hon. Member for Foyle and his colleagues care to look at the number of appeals that went to the criminal appeals commission, they will see that they were very few, because the judge was meticulously fair in getting matters correct.
Will the hon. Lady give way?
I am sure that the hon. Lady will agree with me that the statement of the hon. Member for Belfast, South (Dr. McDonnell) that the Diplock courts were responsible for thuggery in police stations was outrageous.
I agree entirely with the right hon. Gentleman—it was outrageous, unfair and based on no evidence whatsoever. Perhaps on a later occasion, the hon. Member for Belfast, South (Dr. McDonnell) will take the opportunity to correct that false impression.
As I was saying, I think that I confused—unintentionally—the hon. Member for East Antrim regarding the review and the current checks on the Diplock courts. The Government are asking us to agree to a huge extension of the use of non-jury trials. The DPP has merely to suspect that one of the four conditions that I mentioned earlier is satisfied, and that there is a risk of an infringement of the administration of justice. The only circumstances in which a court of any description—be it the House of Lords, which is the highest court in the land, or, I suspect, the European Court of Justice—may get involved are outlined in clause 7. This is extraordinary. It states:
“No court may entertain proceedings for questioning (whether by way of judicial review or otherwise) any decision of the Director of Public Prosecutions for Northern Ireland in relation to the issue of a certificate under section 1.”
The phrase in brackets is very interesting, because I suspect that the intention is to oust the jurisdiction of the European Court of Justice in Strasbourg, and certainly of the House of Lords here in London, which is absolutely unacceptable. The only two grounds that are permitted are mentioned in clause 7(2):
“Subsection (1) prevents a court, in particular, from entertaining proceedings to determine whether a decision or purported decision of the Director (without dishonesty or bad faith)”—
those are the only two grounds—
“was a nullity by reason of lack of jurisdiction or error of law.”
Perhaps I have misunderstood and I am happy to be corrected, but my understanding is that clause 7 refers simply to people’s ability to appeal against their case being referred to a non-jury court. Given that, as the hon. Lady has rightly said, the standard of justice in such a court has been high, surely there is no disadvantage, whether people go to such a court or to a jury court. What, therefore, is the big issue in this regard?
I thank the hon. Gentleman for that intervention. He is absolutely right, in that I have complete confidence in the Diplock system and always have had. What we are talking about here is giving the DPP—I intend no criticism of the present incumbent—the huge discretion to decide whether or not a case goes, on his suspicion, to a non-jury trial. It would be much better if such cases were truly reviewable. In other words, if perchance the DPP went to a party at the Irish embassy and partook of too much intoxicating liquor and made a decision, it could not be challenged under the Bill that we are being asked to approve. It could be challenged only on grounds of dishonesty or bad faith. If the DPP were to be intoxicated—heaven forbid that should ever occur—or make an error of law or fact, the case in question could not be reviewed.
Has the hon. Lady been able to find where in the Bill provision is made for the DPP to specify in the certificate which of the four conditions have caused him to issue it? I certainly have not been able to find that provision.
In answer to the question from the hon. Member for East Antrim (Sammy Wilson), someone who is the subject of a certificate might want to protest that none of those conditions applies. They will have no right or opportunity to do so.
I appreciate that intervention and the hon. Gentleman is right. Unless my eyesight has deteriorated to an extent that I do not recognise, the Bill contains no provision that obliges the DPP to detail on the certificate the particular cause.
We should bear in mind in all our consideration the fundamental tenet of British justice that every defendant is innocent until proven guilty. I am deeply concerned, therefore, that the explanatory notes accompanying the Bill, and the Secretary of State, in his introductory remarks—I am sorry that he is no longer in his place, but I am sure that he will return for the winding-up speeches—were careful to curtail the extent of the judgment in the Shuker case. The decision in that case, heard in Northern Ireland before the Lord Chief Justice and Lord Justice Campbell in 2004, is quoted in support of clause 7. I am disappointed that the explanatory notes and the Secretary of State did not go further and convey the full import of what was said in that judgment. It is correct that the Lord Chief Justice and Lord Justice Campbell said, in relation to non-jury trials and, specifically, to decisions by the Attorney-General:
“We have concluded that it is not a process which is suitable for the full panoply of judicial review superintendence”.
That conclusion was cited in the explanatory notes and by the Secretary of State today. However, the actual judgment, in paragraph 27, states:
“It must be made clear that while we have concluded that judicial review is not available to challenge a decision of the Attorney in the present cases, we do not consider that this will be excluded in every circumstance.”
That includes, for example,
“the ground of bad faith.”
Critically, the court also held:
“Depending on the circumstances of other cases that may arise, further grounds of judicial review challenge may be deemed appropriate but we do not consider that it would be helpful, or even possible, to predict what those grounds might be.”
The Shuker judgment made it clear that a decision by the Attorney-General, as it was then, or the DPP as now, could be challenged. The judgment does not limit that challenge to grounds of dishonesty and bad faith.
Would not a real danger arise if the Government were to go down the route that the hon. Lady suggests? For example, if the DPP decided that an offence had been committed on behalf of a proscribed organisation and was thus suitable for judicial review, the defence team could ask how he came by that knowledge. That could result in an informant being revealed, which means that matters of national security would be involved. The Superintendents Association of Northern Ireland made that exact point—that an intelligence source could be prejudiced if there were the option for judicial review.
I am enormously grateful for that intervention. I do not always agree with the Superintendents Association, but that interpretation is worthy of consideration. However, the hon. Member for East Belfast—I am sorry, I mean the hon. member for East Antrim; I keep trying to move his constituency.
The hon. Lady is bringing me closer to her!
Please, no—definitely not! I will never say East Belfast again! I am quite content that the hon. Gentleman is stuck in East Antrim. It is not far enough away, as far as I am concerned.
The hon. Member for East Antrim must reflect on why I think that there is an inherent contradiction in the Bill. At the beginning of my remarks, I said that the Secretary of State had spent an enormous amount of energy and time persuading the hon. Gentleman, the right hon. Member for North Antrim and their colleagues that all would be well, and that the Unionist community could have every confidence that policing and justice would be devolved in 2008. With this Bill, however, the Government are clearly anticipating that the circumstances then will be such that there will have to be an extension of non-jury trials.
The point that I want to make to the hon. Member for East Antrim and the Superintendents Association has to do with the Criminal Justice Act 2003. As I said when I intervened on the hon. Member for Aylesbury, part 7 of that Act extends to Northern Ireland and allows the prosecution to apply to a Crown Court judge for a trial to be held without a jury if there is a real and present danger of jury tampering.
The 2003 Act defined jury tampering in section 44(6)(c), which states that it would be a danger in cases
“where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial.”
That definition has been available since 2003, when the Liberal Democrats and the Conservatives voted against it. The Northern Ireland Select Committee has taken evidence about jury intimidation, so it is extraordinary that the DPP in Northern Ireland has never activated the provision in the 2003 Act that I have just mentioned.
I know that the Minister cannot account for the DPP’s decisions, as the prosecution is independent. I respect that independence, but the Minister can do the House a courtesy when he winds up the debate by explaining why the 2003 provision has never been used—given that paramilitary intimidation was reported by the Independent Monitoring Commission and by the Northern Ireland Select Committee’s investigation into organised crime. Why in heaven’s name has the DPP never sought to use the powers that have been available since 2003? I am really very concerned about that.
The Bill considerably extends the DPP’s powers. Unlike the 2003 Act, it does not extend the power of judges. Will the DPP ever exercise the new powers, given that the powers contained in the 2003 Act have never been used?
I shall do my best to try to shed some light on the matter. As my right hon. Friend the Secretary of State made clear, the new powers in the Criminal Justice Act to which the hon. Lady refers have not been available to the public prosecutor in Northern Ireland, but they will be available from early January. I hope that the hon. Lady will take heart from the fact that the powers that she has supported—not least in the Select Committee and in many debates in the House—will be available in Northern Ireland and, as I shall explain in the winding up, they should complement the powers in the Bill.
I am most grateful to the Minister. May I paraphrase what he has just indicated to the House? Even though the House extended to Northern Ireland three years ago a provision for non-jury trials where there was intimidation of witnesses, that provision has never actually come into force in Northern Ireland and will not be available until January 2007.
The Minister nods, but I can tell him for free that that is absolutely shameful. In the face of repeated intimidation—as shown in the evidence published by the Northern Ireland Affairs Committee and the degree of intimidation by loyalist as well as republican paramilitaries, whether dissident or not, to which the IMC has testified in report after report—it is shameful that the provision is not in force after three years.
The hon. Lady has strong views on the matter, but she knows from her involvement in the legislation that it was a huge piece of criminal justice reform and that much of it has been introduced in stages over a long period. Some of the provisions have yet to be introduced. We must have capacity in the system to deal with the introduction of new powers. I ask the hon. Lady to consider that.
I am most grateful to the Minister, but is he saying that the office of the DPP did not have enough capacity to activate the powers at a time when it was being expanded significantly? No longer is the Public Prosecution Service confined to Belfast, the capital city of Northern Ireland; it has regional offices west and south of the Bann and, I think, in the constituency of the right hon. Member for North Antrim—that was certainly the intention. There has been a huge increase in the number of staff employed by the DPP, yet the Minister is still trying to convince me that we did not have adequate resources. I am sorry but I am not buying into that argument.
Will the Minister consider another serious issue? The delays that still pertain in the prosecution service in Northern Ireland are a huge embarrassment and an absolute disgrace. When justice is delayed, justice is denied. We can all nod in agreement about that, but it is not words but actions that count. There are huge delays in the prosecution service despite the additional resources in terms of finance and staff. In the winding up, perhaps the Minister will have another think about the excuse that can be offered to the House and, more importantly to the people of Northern Ireland. They deserve better than that. They deserve to be free from paramilitary intimidation, so I should prefer the Minister to give a better reply in his winding-up speech.
There is a contradiction in trying to persuade Unionists that all will be rosy in the garden by 2008.
The hon. Lady should not be surprised by the Secretary of State spinning anything. He spins himself around so much that he does not know whether he is coming or going, so when we were told earlier that he was saying one thing to the hon. Member for Foyle (Mark Durkan) and a different thing to Unionist Members, that seemed par for the course.
I thank the hon. Gentleman for that intervention. I am sure that it is extremely naive of me to think that the Secretary of State meant what he was saying, but in an effort to respect the spirit of good will that prevails at this time of year, I was willing to give him the benefit of the doubt. The difficulty is that when the Secretary of State is, on the one hand, trying to persuade the hon. Gentleman and his colleagues and, indeed, my colleagues that all will be well for devolving policing and justice by 2008, yet on the other hand is extending the provision for non-jury trials, something does not add up. It does not convince me.
Cloud cuckoo land.
Moving swiftly on to the second curious aspect of the Bill, there is another inherent contradiction within it. If I quoted the Secretary of State correctly, his praise for the Northern Ireland Human Rights Commission was warm, lengthy and extensive. I am not here to have a go at the Northern Ireland Human Rights Commission and I believe that one of the best things that the Labour Government ever did was to bring home the European convention on human rights and make it part and parcel of our domestic law. Respect for human rights is something that I and, I hope, my other Unionist colleagues—
The real Unionists!
The alternative Unionists. I hope that they also respect fundamental human rights. It is a curiosity to me that the Bill purports to extend the powers of the NIHRC. I have already mentioned the Secretary of State’s warm and glowing praise for the “major role” of the current commission. The Government have given the impression through the Secretary of State that they pay great attention to respect for human rights. That being the case, may I draw attention to the fact that it takes five pages in the explanatory notes alone to explain about that? There is a heading of “European Convention on Human Rights” on page 25, and the section continues on pages 26, 27, 28 and 29 through to page 30. I have never seen the like before in any explanatory notes, because it takes five pages to justify how the Bill has sailed so close to the wind in terms of compatibility with the European convention on human rights.
On the one hand, the Bill seems to say that it is right to increase the powers of the NIHRC because the Government believe that it is a really important thing to do. On the other hand, the Government have had to justify how what most of the Bill does is compatible—in respect of arrest, detention and the very serious ouster provision in clause 7—with the European convention. I do not think that I have ever seen an ouster clause that makes it so explicit on the face of a Bill that the Human Rights Act 1998 does not apply. I am talking about clause 7: I have not made it up; I am reading it.
As I said, when I read the Bill I did not know whether to laugh or cry. Clause 7(3) says:
“Section 7(1) of the Human Rights Act of 1998… is subject to subsections (1) and (2).”
In other words, the discretion of the Director of Public Prosecutions is beyond challenge: unless there is “dishonesty or bad faith”, it cannot be challenged at all. We have thus made part of our Human Rights Act—I paid tribute to the Labour Government for introducing it in the United Kingdom and extending it to Northern Ireland—subservient to a discretion exercised by the DPP. That is an extraordinary change for the Government now to introduce. In the Minister’s winding-up speech, will he comment on whether the Lord Chancellor or, indeed, the Attorney-General were consulted on that change? What were their views on clause 7, particularly subsection (3)?
Finally, on the increased powers given to the Northern Ireland Human Rights Commission, many Members representing English, Scottish and Welsh constituencies will, like the hon. Member for South Staffordshire, be rather bemused and perhaps concerned when they read the Bill. Most right hon. and hon. Members will be hard pushed to name any individual member of that commission, but, courtesy of the Bill going through this evening—I take it that no one is going to vote against it, but I hope that we can get it changed and improved in Committee—the NIHRC will be able to call for documents and take oral evidence from people within constituencies outside Northern Ireland. If that is the case, perhaps the Government could pay some attention to it before Committee stage, as the Bill provides a clear vehiclefor it.
The Bill makes provision for increased powers for the chief inspector of criminal justice—Kit Chivers, who does a tremendously good job. He is one of my constituents, but apart from that, his office of the criminal justice inspectorate does an enormously good job. The Bill will extend his remit to the Northern Ireland Court Service.
The Minister and his colleagues might well bear something in mind if people are to have confidence in the Northern Ireland Human Rights Commission. One section of the community—the nationalist and republican section, I am sorry to say—has confidence in the commission, but the Minister will be well aware from the comments that have been made by the DUP Members who have spoken at length this evening that that confidence is not shared across the Unionist community. The Minister may well like to take on board the suggestion that, if the commission’s increased powers involve any matter of import in the criminal justice system in determining whether there are abuses of human rights, the chief inspector of criminal justice’s jurisdiction should also be extended to cover the commission.
Before the Minister tells me that the commission is an independent statutory body, I will remind him that the police ombudsman’s office is also an independent statutory body, but it comes within the remit of the chief inspector of criminal justice. Therefore, to be consistent and logical—I know that that is difficult for the Northern Ireland Office, but I wish that it was logical—the inspection format of the chief inspector should be extended to the Northern Ireland Human Rights Commission. With that, I will wish everyone a happy Christmas.
They always leave the best wine to the last.
That was me.
No, but I have been warned to make my speech short and brief, because the Minister will have a lot of responding to do on many questions. I noticed that, whenever the hon. Lady was speaking, paper was flying back and forth from the officials to the Minister. Perhaps, when I have finished, there will be a book full of it, by the time that I get answers to some questions. Again, I want to clarify that I support the hon. Lady, but I emphasise that I will do so as long as her policies are in line with the DUP—the main party in the Province, and I am sure that she would agree with that.
I was in and out of the Chamber, but I have listened to a lot of the comments that have been made on the Bill. Therefore, I should also like to make a number of comments, but I shall try to put them across to the Minister and frame them in question form. Perhaps, when he comes to respond, he will give us some straightforward answers, not the spin that he has been accused of. Some of my colleagues said earlier that he was spinning so much that he got dizzy.
That was said of the Secretary of State.
I thought that my hon. Friend was referring to the security Minister, but perhaps he might yet put a bit of spin on things.
Yes, the hon. Member for Foyle (Mark Durkan) suggests that we might get a bit of spin later.
I will put my comments in the form of some questions, and perhaps we will get some clarity on a number of them. Clause 1(6) and (7) relate to the issuing of certificates stating that a trial is to be conducted without a jury. Subsection (6) refers to offences
“committed to any extent…as a result of, in connection with or in response to religious or political hostility”.
I am sure that the Minister and other hon. Members can remember the case of the late Mr. Harry Hammond, who was arrested and fined for public order offences in 2002, after holding up signs in Bournemouth that said “Stop immorality” and so on. Despite the fact that it was he who was attacked, it turned out that it was he who was prosecuted. If a Christian were to do something similar in Northern Ireland, consistency in law would demand that they too be prosecuted. Therefore, will the Minister confirm that, under the Bill, any Christian doing what the late Mr. Hammond did would be prosecuted under a certificate issued by the DPP, with the result that they would be prosecuted in the same manner as if they were a terrorist?
In the same subsections, the Bill states that not only would this kind of non-jury prosecution occur for those who incited a crime or who were proactive in committing a crime, but that a non-jury trial certificate would also be issued for those who breached the law in responding to or reacting to an attack. Will the Minister confirm what would happen if a resident in south Armagh, for example, were to find his or her home under attack—I can assure him that that still happens from time to time in that area—and were to defend himself or herself and his or her family, and property, from the thugs who sought to do them harm on the grounds of their religion? Will the Minister confirm that, if the person under attack were to breach the law, he would be tried under the same measures as if he were the paramilitary organisation that sought his hurt, and that he would be treated in law like the very terrorist who sought to terrorise him and his family?
Clause 5(4) states:
“No inference may be drawn by the court from the fact that the certificate has been issued in relation to the trial.”
Will the Minister outline exactly how he intends to ensure that that will be the case in practice? What criteria will he put in place to assess that that has been the case? How does he propose to review decisions and judgments passed down by the courts to ensure that no inference has been drawn? Who will be responsible for reviewing the court proceedings to ascertain whether any inference was drawn in contravention of the wording of the Bill and what powers will that person have?
Clause 28 deals with taking possession of land. It states:
“If the Secretary of State considers it necessary for the preservation of the peace or the maintenance of order, he may authorise a person—
(a) to take possession of land or other property”
or cause it to be removed. Would the Minister consider the gentleman called Mr. “Slab” Murphy’s continuing criminal empire in south Armagh to be a threat to the peace of south Armagh? Will he give tonight a categorical and unequivocal pledge that, if the Bill becomes law, he will, within a stated time frame, order the seizure of Mr. Murphy’s land and the destruction of whatever buildings are necessary, including the farm house and barns? After all, those powers are afforded to the Secretary of State in the Bill and if he is not prepared to use them against one of the most notorious and ruthless criminal gang leaders and terrorist godfathers in Northern Ireland, what is the point in his having those powers in the first place?
Finally, paragraph 4(1) and (2) of schedule 3—I can see the Minister writing anxiously; I hope that he is getting all the details—deals with the powers to stop and search people. That was referred to earlier in relation to the Army and the police. Will those measures apply to Members of the Northern Ireland Assembly when they are at Stormont? Given the events of the past, when major spy rings were in operation, and given that it seems that senior members of Sinn Fein/IRA are still working for British intelligence, surely the provisions would be important.
I said at the beginning of my speech that I would be brief. I hope that the Minister has written all my questions down, and I look forward to some straightforward answers.
Yet again, we have had an interesting debate on yet another Northern Ireland Bill. It makes a change to be debating a Northern Ireland measure on the Floor of the House rather than in Committee. Long may that continue, at least until the Assembly is up and running, as we hope that it will be very soon. I will return to that prospect in a few moments.
Let me run through some of the comments made by hon. Members. The right hon. Member for Torfaen (Mr. Murphy) again spoke in a Northern Ireland debate and gave us the benefit of his experience of being Secretary of State for Northern Ireland.
The hon. Member for Montgomeryshire (Lembit Öpik) has also been representing the Liberal Democrats on the Welsh Grand Committee today, so he has done well to be in two places at once. He made detailed comments about the problems that the DPP might face when deciding whether to issue a certificate for certain offences because of the vague guidelines. He also objected, as we do, to the absence of any appeal mechanism. I am sure that we will return in Committee to the good points that he made.
I had the pleasure of listening to the hon. Member for Foyle (Mark Durkan) for three quarters of an hour in a meeting yesterday. He spoke for a similar length of time today, but he is always well worth listening to. He made an interesting comment about how although, in one sense, this is the end of the Diplock courts, the Bill puts the system on the books without an end to it. He also spoke interestingly about national security considerations. With respect to the Minister, I do not think that he gave the hon. Member for Foyle an adequate response, although I am sure that he will be able to clarify his position further. While it is important that we support the security services, which have a tremendously difficult job to do, I sometimes worry that when we leave things open and vague, almost anything can be excused as a matter of national security. We saw that happening when the Government attempted to introduce 90-day detention. I would also like a little more clarification on the matter—if not today, perhaps in Committee.
My hon. Friend the Member for South Staffordshire (Sir Patrick Cormack), the Chairman of the Northern Ireland Affairs Committee, made several good points. He asked why the Bill could not have waited until next year so that we could have found out what had happened in Northern Ireland. That view was echoed by several hon. Members, especially those from the Democratic Unionist party. I give my hon. Friend a promise that we will test that matter again in Committee.
Owing to the slightly early start of the wind-ups, the hon. Member for Blaydon (Mr. Anderson) has not yet managed to return to the Chamber. Although he mentioned the fact that we have moved on considerably, he rightly referred to the difficulties that still exist in Northern Ireland.
The right hon. Member for North Antrim (Rev. Ian Paisley) paid a warm tribute to the Diplock judges and the work that they have carried out in difficult circumstances. I think that the whole House would endorse what he said in that respect. He said that he regretted the need to continue to hold some trials without juries, but he stressed that there is a need to do so at the moment. In both an intervention and his speech, he questioned the role of the Northern Ireland Human Rights Commission and the human rights commissioner. He cited a detailed objection to the particular person in that position, but his more general point was to ask whether there is actually a need for the commission and what work it carries out. Again, I will return to that very matter, and the extension of the powers of the commissioner, in Committee.
The hon. Member for South Down (Mr. McGrady) was a little bit more supportive of the human rights commissioner, whereas the hon. Member for East Antrim (Sammy Wilson) spoke of the need, as he saw it, for the Army powers and Diplock courts, but not for the NIHRC. The hon. Member for Belfast, South (Dr. McDonnell) spoke in detail about his concerns on trials conducted without a jury. The hon. Member for South Antrim (Dr. McCrea) spoke in support of the search powers, and he drew attention to concerns about the situation in south Armagh, which I visited not that long ago. I think that he is right that people are concerned about security in that area, and we have to be conscious of that.
The hon. Member for North Down (Lady Hermon) gave quite a long speech. I look forward to sitting in Committee with her, but I hope that her speeches will be slightly shorter than the one that she gave today, although she raised some good points. She expressed great concern about giving so much discretion to the DPP. The hon. Member for Upper Bann (David Simpson) raised a number of concerns, particularly about the circumstances in which someone could be arrested in Northern Ireland.
As my hon. Friend the Member for Aylesbury (Mr. Lidington) said at the outset of the debate, we are, in principle, in broad support of the Bill. We have a number of concerns, which I shall raise in Committee, and the main one is about the DPP’s role as regards trials. It is an unsatisfactory situation, but for reasons of which we are all aware, there is trial without jury in Northern Ireland. I question whether it is right for the person responsible for bringing prosecutions to decide the mode of trial. I am not convinced that that is the right way forward but, again, we can consider that in Committee. It causes me concern that we should still be in the same situation. I would be the first to accept that things have moved on, but in talking about trial without jury, we must acknowledge that there is still a serious problem in Northern Ireland. One of the problems is one of the main political parties’ lack of support for not only the police but the whole justice system. The fact that we are considering the Bill, and the fact that there continues to be trial without jury, underlines the problem of that party not signing up fully to law and order.
I was in the Province yesterday and the day before that, and I had a number of discussions with people, including members of Sinn Fein. They made the point that they did not feel that they could get their people fully to support the police unless they were given a date for the devolution of policing and justice. All hon. Members know that, under current legislation, that cannot happen, because the Assembly would have to endorse that, and until Sinn Fein gives support to the police, a number of political parties, particularly the DUP, will not be happy to sit down in government with Sinn Fein. That is a vicious circle—one party will not sit down with Sinn Fein until it endorses policing, but Sinn Fein will not endorse policing until it has a date on which policing is to be devolved. However, that cannot be until the Assembly sits. As I said to the Minister yesterday, we need the Government to break that circle. They should suggest to Sinn Fein that it ought to support the police and the criminal justice system without any hesitation, regardless of any other circumstances.
On the subject of Sinn Fein saying that it cannot give support to the police if it does not have a date for the devolution of justice and policing, did the hon. Gentleman notice that a Sinn Fein Teachta Dala recently joined a policing committee in Dublin, but would not agree that people should give information to gardai, for instance about the Omagh bombing? I also point out that, in the south of Ireland, there was of course a transfer of justice and policing powers in 1922.