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Justice and Security (Northern Ireland) Bill

Volume 689: debated on Tuesday 20 February 2007

My Lords, I beg to move that this Bill be now read a second time.

The Bill is set in the context of huge progress in Northern Ireland. The Sinn Fein ard fheis secured support for policing and justice; that certainly was a momentous moment. Support for policing is now in place. We have already seen the practical benefits on the ground, with Sinn Fein encouraging republicans to talk to the police. Indeed, I understand that, yesterday, Gerry Kelly attended and participated in a conference organised by the police in Northern Ireland. The latest Independent Monitoring Commission report confirmed the Provisional IRA’s commitment to an exclusively political path.

We find ourselves on the brink of restoring the power-sharing institutions, with the previously inconceivable prospect of Sinn Fein and the Democratic Unionist Party sitting down together in government.

Everyone knows that elections will be held on 7 March; that is only just over two weeks away. We fully expect that power-sharing will follow by the deadline of 26 March. That date will not change. If it is not met, the chance will be lost for a generation. We therefore expect—and, I think, can demand—Northern Ireland politicians to continue to show the leadership that they have indeed shown up to this point. This Bill is part of the positive process of change.

The security situation in Northern Ireland has changed beyond recognition. Just last week, the Armed Forces started demolishing the last watchtower in south Armagh. Watchtowers are coming down and, as anyone who visits Northern Ireland will see, new offices and apartment buildings are going up all over the place. Ever more ambitious building projects are announced in Belfast. There is a peace dividend.

This Bill is about reflecting those changes that people have seen to their everyday lives. What was appropriate for the 1970s is not appropriate today. The Bill therefore provides for a return, for the first time in nearly 40 years, to the presumption of trial by jury. As in the rest of the United Kingdom, jury trial in Northern Ireland will be the norm.

However, despite this progress and optimism, there remains a threat that is particular to Northern Ireland. Some people remain wedded to the conflict of the past. A small number—they are a small number—of paramilitaries in the form of dissident republicans, and some loyalists, continue to blight communities. They clearly resent the success that has been achieved in Northern Ireland and want to undermine democracy, progress and the stability that comes from them. In the face of this threat, the safety and security of the people of Northern Ireland will always be the overwhelming priority for the Government. Given the chance, some people in Northern Ireland would seek to intimidate juries and therefore escape justice. For these reasons, the Bill provides for 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.

As in England and Wales, guidelines restricting the exercise of the prosecution’s right of stand-by and the exercise of jury checks will ensure that there remains equality of arms. Other juror protection measures will be pursued administratively. These include better routine checks to identify disqualified jurors and making better use of screening of jurors from the public gallery. However, we recognise that these measures on their own are not sufficient to ensure that justice is done. The Bill therefore provides for a new system of non-jury trial, for use in a small number of exceptional cases. The Director of Public Prosecutions will be able to issue a certificate for non-jury trial, having taken the decision against a two-part statutory test. Importantly, the second part of that test states that there must be a risk to the administration of justice.

We hope that the new system will see a continued reduction in the number of non-jury trials. We recognise that there is a legitimate public interest in this issue, so an annual statement on the number of non-jury trials in Northern Ireland under the new system will be made to Parliament. The system of non-jury trial will complement the Criminal Justice Act 2003. If a case does not meet the test in the Bill, which is focused on the particular circumstances of Northern Ireland, it will still be possible to apply to the court for a non-jury trial under that Act.

The summer of 2006 was the most peaceful marching season for many years. Recognising increasing normalisation, the Armed Forces will take a different role in Northern Ireland from 1 August this year. 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 its 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. To provide this support, the military needs some limited statutory powers, as Northern Ireland remains a unique operating environment. Therefore, powers of entry, search, arrest and seizure, necessary for the military to carry out its role effectively, are included in the Bill. Without them, a soldier would have no more powers than the man in the street.

It is necessary also to provide additional powers to the police in recognition of the different operational circumstances in which they work compared to the police in England and Wales. We have sought to ensure that the powers are the minimum necessary for the police and Army to operate effectively and include appropriate safeguards. An independent reviewer will review operation of the legislation, and his or her reports will be laid before Parliament. Powers no longer necessary may be permanently removed from the statute by virtue of a power in the Bill.

Normalisation means a society that respects human rights; therefore, it continues to be important to provide the Northern Ireland Human Rights Commission with appropriate powers to fulfil its role in protecting and promoting human rights. Following consultation, we have decided to enhance the commission’s powers by providing it with powers to compel evidence, access places of detention and rely on the European Convention on Human Rights when initiating judicial proceedings. The commission already has the power to carry out investigations. A power to compel evidence and access places of detention enhances the effectiveness of these investigations. Giving the commission the power to rely on the European Convention on Human Rights in judicial reviews allows 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. The Bill will ensure that these powers are both used appropriately by the commission and complied with fully by public authorities.

The Northern Ireland Affairs Committee and the Independent Monitoring Commission have highlighted the problems of organised crime in the private security industry in Northern Ireland. The Bill will bring Northern Ireland into line with arrangements in the rest of the United Kingdom. The remit of the Security Industry Authority will be extended to Northern Ireland. This regime will put greater checks on the industry to ensure that those who work within it are properly qualified and fit to do so. This will lead to higher standards in the industry and increase competitiveness for Northern Ireland companies. However, both the Security Industry Authority and private security companies will need time to prepare for the change. 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 problems of criminal activity in the industry as well as paramilitary exploitation.

The Bill includes a further model for devolution of policing and justice in Northern Ireland. The model provides for an elected Minister and deputy Minister and was devised following discussions with the Northern Ireland political parties. It represents, in the Government’s view, the model most likely to achieve broad acceptability among the parties in the event that they prove unable themselves to agree a model. This model can therefore be implemented either by a decision of the Assembly, which would be a preferred choice, or by an Order in Council brought forward by the Secretary of State. This is a precautionary measure to ensure that any failure to agree on a model on the part of the Assembly does not stand as a barrier to further progress towards the May 2008 target for devolution as set out in the St Andrews agreement.

I repeat that this model has been devised and brought forward following discussions with the Northern Ireland political parties. I assure the House that the power is not intended to trump or supersede the will of the Assembly. Our preference is for the Assembly to do it.

There are some other minor but worthwhile changes in the Bill. A number of organisations have been added to the remit of the Chief Inspector of Criminal Justice in Northern Ireland. A technical change is being made to legal aid arrangements to provide maximum flexibility in the granting of publicly funded legal representation. The Bill also enables the renaming of resident magistrates helping to deliver one of the recommendations of the Criminal Justice Review.

To conclude, the Bill marks a staging post on Northern Ireland’s continued transition to normalisation and the journey towards the devolution of policing and justice. It ensures that, while recognising progress, we do not ignore the threat that still exists. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Rooker.)

My Lords, I begin by apologising deeply to the House, and particularly to the Minister, for being late.

I welcome his speech, particularly his last sentence. However, it is a sad pity that whatever games Ministers have played in their youth, poker was not one of them. Sinn Fein/IRA on the other hand, like most terrorist organisations with a culture of communist-style negotiation, is a very good poker player. Why do we always have to make the concessions it wants before it has provided any quid pro quo other than some well publicised but meaningless statements—and only statements of intent? The Government are preparing to relinquish the well-tried Diplock system and substitute a new system of non-jury trial, which is evidently unlikely to be used save in very exceptional circumstances. The sixth report of the Justice Oversight Commission of June 2006 says:

“The eventual future of the so-called Diplock courts was not a matter for the review to consider, nor has that been within the remit of the oversight work”.

I wonder why.

However, fortunately the review says later, in the chapter on juries, that although it noticed the decreasing figure in the number of people tried in Diplock courts and was concerned to maintain confidence in the jury system generally as more cases came to be sent to jury trial, it recommends:

“We think that there are aspects of jury trials that should be reviewed including, inter alia, measures to prevent intimidation of jurors”.

It refers also to the risk of intimidation not only to jurors but to others.

My concern is that those who stand to benefit from any premature weakening of the Diplock system are the paramilitaries, and whether or not Sinn Fein/IRA has a political interest it will always be concerned to protect its sources of money and power in the community, including the purely criminal elements that provide both. It continues to be heavily involved in serious organised crime, and Sinn Fein/IRA in government will make each decision on this issue a political rather than a judicial matter. I therefore urge the Government to delay any new legislation that could be open to manipulation by Sinn Fein/IRA ministers until at least after the Assembly is up and running. If that is not possible, can we leave the way open to revoke it—within the next two years if necessary?

I wait with interest to see what the human rights commission will do with its new powers. I know of no case in which the commission has intervened to protect victims of paramilitary intimidation, but I shall be glad to be proved wrong. The Independent Monitoring Commission has done infinitely more to bring such issues as the widespread victimisation by paramilitaries, leading to exile from the community, into the open. The IMC has consistently exposed that—and I greatly honour the IMC for it—and said that the culture of deference to Sinn Fein/IRA must end. It has attacked the way in which Sinn Fein/IRA uses membership of community restorative justice organs as a means of exerting local influence and continuing to achieve control in “a more respectable guise”. As the IMC says,

“it is essential that paramilitaries are not allowed to operate in this way.”

I hope that will be the effect of this Bill.

My concern is that Sinn Fein/IRA is going to be allowed to get away with no more than some pious phrases. The PIRA leaders have persuaded their rank and file to make polite but noncommittal statements about the police because they also said, more frankly, that they would be able to take over the police and make it their own. They persuaded the Patten commission that the RUC was an enemy because it had very few Catholics in its ranks. Evidently, no one told the commission that that was because the very few Catholic officers and their families lived in fear of their lives and had to move annually to another location. So, the 50:50 rule was introduced and young Catholics came forward to join the new PSNI—a very good thing. The press asked Gerry Adams what Sinn Fein’s attitude would be to these new members of the police. “What it always was”, he replied. The first young graduate was shot and his family’s home burnt down. Sinn Fein/IRA does not accept the law in Northern Ireland.

Let us consider what has happened, or rather not happened, about the murder of Robert McCartney two years ago. I know that I have said this before, but I am saying it again. I asked Her Majesty’s Government on 10 October 2005 whether the IRA had now, after considerable damage to its position in the US, allowed its people to testify in court and enable the McCartney case to be brought to trial. The IRA had earlier cheerfully offered, publicly, to shoot the offenders themselves and seemed to think that was an entirely normal proceeding in its role as supporters of the law. The Minister replied in a letter to me:

“There is no evidence to suggest that the IRA leadership has issued an instruction to its members and associates to cooperate, although Sinn Fein/IRA has publicly called for those responsible to account for their actions. In the absence of such an instruction, the culture and history of the organization is such that cooperation with the establishment is anathema”.

That was a thoroughly honest reply, and that month the last of the McCartney family moved out of their home because they could no longer bear the intimidation. They have since suffered it again, not once but twice in other communities, and are ostracised because they dared to criticise the IRA. When is that going to change?

Gerry Adams and Martin McGuinness have indeed condemned criminality and said vague and virtuous things about the rule of law. Until they not only allow but require witnesses to testify at a trial on the death of Robert McCartney, recognise that the public now has a 75 per cent level of confidence in the PSNI, and cease to intimidate Catholics who join, nothing will really change. The city of Omagh is also still unable to bring those who were guilty to justice because the IRA refuses to give leave to witnesses to testify in a British court. Northern Ireland is still within the United Kingdom. The IRA continues to inhibit the recruitment of Catholics to the police. It was recently reported that 99 new recruits had resigned over the past year and 76 of those gave as one of their reasons for so doing paramilitary intimidation. What have the PIRA leadership said or done about that?

The trouble is that we are dealing with a political party with the closest possible links with the highly effective criminal organisation it created, making it the richest party by far in elections north and south. It is also a party with a subliminal, but nevertheless real, machine for intimidation and electoral corruption, with an agenda—the unification of the two countries—it is determined to impose, although neither the Northern Irish nor the Irish electorate want it. We have a duty to deliver what the people in both countries clearly said that they wanted at the time of the Belfast agreement: not a united Ireland, but two flourishing and friendly neighbours with many common yet distinct interests.

I have one last deep anxiety. Where is action on the outcome of the Bloody Sunday inquiry addressed in this Bill? We must under no circumstances pass legislation that would leave any legal action on the Saville report to the Assembly. We must face the fact that Sinn Fein/IRA is a very rich party, with a long history of successful ballot-rigging, electoral intimidation and corruption, which could still emerge as the most powerful party in the Assembly after the March elections. It will be so, not because of the will of the people, but because of the corrupt and intimidating tactics it will effortlessly employ.

My Lords, as the Minister said at the outset, enormous changes have taken place in Northern Ireland in the past few years. That is reflected in the region’s vibrant economy. I well remember first visiting, 10 or more years ago, with the Police Negotiating Board. To show how much things have changed, we were not to breathe a word about who we were or why we were there. As I recall, we were a group of social workers visiting Belfast for a conference. Of course, we fooled no one, partly because I was one of only two women in the delegation of around 50 men; it was like that in those days, and has not changed enough in that regard since.

Progress towards devolution, however, has been remarkable. Discounting the inevitable hiccups along the way, we can now see light glimmering through the darkness of those terrible years. The time has come to place the future of Northern Ireland firmly in the hands of its own elected politicians. No one pretends that this transition will be easy or trouble free, but Northern Ireland’s politicians must find the means of working together. Otherwise, as the Minister has reminded us, they face the unhappy prospect of direct rule, over which they will have little influence, for years.

The Bill, in parts, helps to deliver the justice and security measures needed to enable the process of normalisation to continue. While there is much in it that we on these Benches would support, there is also deep concern, especially over the first part of the Bill, dealing with trials on indictment without a jury. My noble friend Lord Lester will be speaking more fully on those matters. We have welcomed the Government’s announcements of the repealing of the temporary provisions of the Terrorism Act 2000 for Northern Ireland, particularly Part VII. That is a great step forward, as is the movement away from the Diplock courts system, as far as it goes. However, I ask the Minister why the DPP alone for Northern Ireland can issue a certificate for a trial on indictment to be conducted without a jury.

It would appear that the Director of Public Prosecutions can issue a certificate if he simply “suspects” that there is a “risk” that the administration of justice “might” be impaired. “Suspects” is a low level of test, much lower than the test on the balance of probabilities. Jury trial ought to be the norm rather than the exception in Northern Ireland. I see that the Secretary of State for Northern Ireland, at Second Reading in the other place, appeared to find nothing wrong with a defendant facing a trial without a jury. He said that,

“the DPP’s decision is about the mode of trial, and the defendant will receive at least as fair a trial without a jury as with one, so they will not suffer any detriment”.—[Official Report, Commons, 13/12/06; col. 894.]

I beg to disagree. Even if the so-called juryless trials will not be the norm, we are trying to establish through this Bill that Northern Ireland justice will mirror that of the rest of the United Kingdom. I do not know of anywhere else where these rules prevail. I thought we understood that trial by jury was the norm. In the same debate the SDLP Member, Mark Durkan, stated:

“The Secretary of State says that there are few Diplock courts. There should be none. An outcome should not turn on the opinion of one person, who may have some bias or may misapprehend the facts. In that situation, the accused can quickly become the convicted. Once an injustice has been done, it can be years, or more likely decades, before it is undone. We need only to consider cases such as that of Christy Walsh to understand what can go wrong”.—[Official Report, Commons, 13/12/06; col. 919.]

He made a very powerful point, with which I have much sympathy. There most definitely needs to be some form of judicial involvement in this matter. I hope that, in Committee, we will consider this. We are particularly concerned about the contents of Clause 7, to which we are completely opposed. To have no provision for appeal against a decision in a trial held without a jury is completely unacceptable. It is a clear attack on a person’s human rights and we will be seeking to remove this.

Although it is not particularly relevant now, as changes have been made, something similar came up in the Asylum and Immigration (Treatment of Claimants, etc.) Bill in 2004. At the time the Joint Committee on Human Rights issued a damning report on the provision, which stated that the committee regarded the restriction proposed in the Bill,

“as being inherently objectionable as an attack on an important element of the scheme for protecting Convention rights in the United Kingdom”.

For me, the provisions of this clause are equally objectionable.

Another of our concerns is that the language of the Bill is unhelpful. As in my earlier remarks about “suspects,” “risk” and “might,” so the term “associate,” used in Clause 1 (3)(b), and its definition in subsection (10), could mean almost anybody. It is defined as a friend or a relative, but that description is open to wide interpretation and we should find other ways of expressing more clearly what “associate” means.

Other areas of the Bill test the Government’s commitment to human rights, especially around the culture of unaccountability, which surrounds the security forces in Northern Ireland, especially MI5, whose role appears to be enhanced by this Bill. The Police Service of Northern Ireland, not MI5, should be the primary mover in security matters. Where is the normalcy in that? It may be that I am being naïve on this point; perhaps Dr Reid wants to pilot this role for MI5 in Northern Ireland, prior to introducing it in the rest of the United Kingdom. It would not be the first time that policy changes trailed in Northern Ireland have later been imported into Great Britain.

If the PSNI remains the lead agency, as I strongly believe it should, the police ombudsman would continue to be able to look into any complaints and issue a report in the same way she normally does. I have not heard any serious complaints about how she has undertaken her role to date. Indeed, quite the opposite; it would give the people of Northern Ireland an assurance that any complaints they had about justice or security would be dealt with appropriately. On the other hand, who keeps an eye on what MI5 is doing in Northern Ireland? I simply ask the question.

We agree with the Government that there is still a case for putting special measures in place to protect the identity of jurors in Northern Ireland. Clauses 13 to 19 provide for the extension of the powers of the Northern Ireland Human Rights Commission, which we welcome. Some time ago, the commission identified a need for it to be able to compel evidence and to enter places of detention, and we are glad that it now has these powers. We will, however, table amendments in Committee to probe how best the provisions can be used most effectively for the benefit of the communities in Northern Ireland. For example, Clause 15 would allow the commission to enter a place of detention only during, and for the purpose of, a formal time-bound investigation, established under Section 69(8) of the 1998 Act. For any other purpose, however serious or urgent, the commission would need to secure the permission of the relevant authorities. Such restrictions could hamper the effectiveness of the commission to carry out its statutory responsibilities.

Moreover, although the Government’s amendment to Clause 19 in another place on the timing of the implementation of these new powers is a step in the right direction, the clause could still present an obstacle to the commission in carrying out its functions. Even if the commission is to investigate alleged human rights violations arising only after August 2007, it is extremely likely to require access to evidence or documents existing before that date. The commission recently contributed to the exposure of the ill treatment of children and adults in a mental health institution in Northern Ireland. If the commission decided to conduct an effective investigation, it would be imperative to have access to previous records. It seems likely that, in a number of circumstances, the commission would need to investigate properly all the circumstances surrounding a particular matter if it were to do its job properly. It would need to consider evidence from the past. Surely we want the commission to be as effective as possible in its role.

We welcome the changes to the powers of the security forces under Clauses 20 to 41, because these are general public order powers and are not restricted to terrorist offences. Having had the most peaceful marching season last year, when the Army was not deployed at all, as the Minister reminded us at the beginning of the debate, we sincerely hope that these powers will not need to be used in the future. Be that as it may, we would prefer Parliament to be involved in the process of determining whether they will be needed. We shall return to this as well in Committee.

Clause 42 and Schedule 5 are new provisions that were added to the Bill on Report in another place. Liberal Democrats and their Liberal forebears have always been a devolutionist party, and were so long before Labour or the Conservatives. Indeed, the latter remain very ambivalent on this principle. Accordingly, we have supported for many years the principle of devolving policing and justice powers to the Assembly. I know that noble Lords on all sides of the House want the Assembly to be restored, and want local politicians from Northern Ireland taking decisions on the matters that affect the day-to-day lives of their people. We all want the Assembly to take responsibility for policing and justice in Northern Ireland. Perhaps Clause 42, which allows the Assembly more flexibility to decide on the exact construct of a department of justice and policing, is the right way to go about it. However, we want to ensure that the details of the proposal are helpful to the Assembly in deciding the best way to construct such a department. I would like reassurance that this is what the Government have in mind. I hope that the Government will leave it entirely to the Assembly to decide on this crucial matter.

The Bill’s remaining provisions and in particular Clause 46 relating to the regulation of the private security industry in Northern Ireland are to be warmly welcomed. The Security Industry Authority has been extremely successful in its work in England and Wales and will begin to give the people of Northern Ireland the confidence that only people who have passed the exacting test for a certificate to practise within the security industry will be allowed to do so and that proper monitoring of those provisions will be regularly undertaken.

This is a Bill of distinct parts; some good, some bad. I look forward to the Committee stage when we hope that some amendments will be agreed, although perhaps my optimism about changing any of the Government’s legislation is but a pipedream.

My Lords, in introducing the Bill the Minister reflected on recent and anticipated developments in Northern Ireland. He reflected first on the moves that republicans have made to support the police and then said that the Government fully expected a resumption of the power-sharing Executive on 26 March. The language he used at that stage was significantly different from the language the Government were using after the meeting at St Andrews, when they said that there were two issues that had to be resolved: Sinn Fein’s approach to policing and the willingness of the Democratic Unionist Party to enter into a power-sharing Executive.

It is to be regretted that those noble Lords who are closely related to the Democratic Unionist Party are not present with us today to give further guidance on the second issue. I hope that the Minister is right in his confidence that the Democratic Unionist Party is ready and willing to enter a power-sharing Executive on 26 March. Some of us may entertain a little scepticism about that, scepticism reinforced not just by experience but by the studied ambiguity of the leadership of the DUP and the not-so-ambiguous attitudes struck by certain individual members of the DUP. However, we shall wait and see what happens.

I know from experience that the Minister will not want to say anything clear on this issue, and I see that he is nodding his head, so I shall leave him to his confident attitude on the matter and its underlying ambiguity. I have a certain sense of déjà-vu about his first point on republican support for the police, because we discussed this issue at great length with republicans in 2003. Had certain circumstances and events occurred more favourably, had the Independent Commission on Decommissioning carried out its remit properly and had the Administration resumed in 2003 as we hoped, I am confident that, within a short period, republicans would have made the move that they have made in recent weeks and months.

As mentioned in the debates, the republicans are and have been playing a game. They knew that support for policing was their last card and they have held it back. They could have put it on the table four years ago, had matters been handled better, but we have had a delay of some four years in seeing it on the table, and I understand the scepticism about the sincerity of republicans on the matter. There is only one way to find out whether they are genuine: to see what happens. However, there are some worrying circumstances.

I was glad that the noble Baroness, Lady Park of Monmouth, mentioned community restorative justice schemes, a matter that should give the House considerable concern. It is regrettable that in the Bill, which covers such a wide range of issues, there is no provision for a legal basis for the operation of such schemes. It is not right that the Government should allow part of the criminal justice system to be contracted out to private people, with no effective legal safeguards for the protection of the human rights of those involved.

As I look at the situation in Northern Ireland, the gravest source of threat to human rights is through the kangaroo courts of paramilitaries, which are now potentially being transmuted into community restorative justice schemes. The silence on that issue from the Government, particularly when we have this opportunity before us, is very concerning.

The noble Baroness also mentioned the McCartney case. I speak from memory—my source on this is the website under the name of Slugger O’Toole; perhaps people should check my source. Slugger O’Toole’s website noted a day or two ago that, among those who had assented to the nomination of a Sinn Fein candidate, one Mr Alex Maskey, were two persons alleged to have been in the pub where Mr McCartney was on the occasion of the assault on him that resulted in his murder and who have not given statements to the police. A number of persons who were there have given statements but, according to Slugger O'Toole, those persons have not. The fact that two persons who were there in the pub who have not co-operated with the police are so close to the Sinn Fein candidate that they signed his nomination paper would not give one any great comfort.

The noble Baroness, Lady Harris of Richmond, made clear her distaste for non-jury trials. I do not share that approach at all. In this debate, it is appropriate that we record our appreciation of the judges in Northern Ireland who, during the past 30 years, have sat in Diplock courts in very difficult circumstances. Despite the difficulties and dangers, they have managed during that time to deliver a good result. That must be said.

No system is perfect. Any form of trial will occasionally result in mistakes being made. Over the years, I have had occasion to associate myself with a campaign to remedy a miscarriage of justice in a Diplock court which was not entirely successful, despite having the case sent to the Court of Appeal twice. Of the four defendants, we got three cleared but not the fourth, so there is still a miscarriage of justice in that respect. There may be other cases with which I am not familiar, but looking back over the past 30 to 40 years to see how Northern Ireland issues have been handled in the courts, the major miscarriages of justice have occurred in jury trials in England. We should reflect on that.

Over the years in Northern Ireland, campaigns have been got up by paramilitaries, sometimes with popular support, about aspects of the legal system. Supergrasses were criticised; interrogation techniques were criticised; but there was no serious campaign for a return to juries. There has been no serious campaign in Northern Ireland over the years for a change to the single-judge Diplock court. Some people—in my view, foolishly—think that the courts would be better with three judges. I think that that is a profound mistake. It is interesting that there has never been any popular support for change to the process.

I am glad to see that the main safeguards that existed in Diplock courts are reproduced in the Bill. Those safeguards are, first, that the judge must produce a written reasoned judgment where he deals with all the circumstances in the case and the evidence that has been presented. That is linked to the second safeguard: that there is an unlimited right of appeal to the Court of Appeal on any ground. That means that the judge knows that his judgment is liable to be thoroughly examined by three judges in the Court of Appeal and picked over by the lawyers looking for any possible flaw in his argument, and that they will be doing that without having had the benefit, as he had, of seeing the witnesses give evidence. That is a very significant safeguard.

Over the years, I have read quite a few judgments given by judges in Diplock courts. The success of the Northern Ireland judiciary in producing good judgments that clearly stand up when examined must be recorded.

The first part of the Bill is rolling over Diplock courts into a new context where there is a shift of emphasis in the decision, in that now the presumption is that there will be a jury trial unless the DPP issues a certificate. There are provisions on the grounds on which certificates might be given. I shall be interested, when we get to look at this more closely, to see the arguments for giving this to the DPP rather than, as heretofore, to the Attorney-General. I think that there would still be some advantage in giving it to the Attorney-General so that there is a person who has a degree of accountability here who could then give a view on the matter. I think that is significant.

I want to focus on one issue regarding the conditions in Clause 1. Three of those conditions make reference to a linkage with a proscribed organisation. In deciding whether to have a non-jury trial, it is obvious that there should be a reference to proscribed organisations; that makes sense. What concerns me is the absence of any reference to serious organised crime. Some paramilitary organisations are now gradually transmuting themselves into organised crime gangs. Most of the organised crime gangs in Northern Ireland have paramilitary linkages—most of them but not all. I am thinking of a report by the Independent Monitoring Commission in 2004, which said that of the most serious organised crime gangs, three quarters have linkages with paramilitary organisations but the other quarter do not. What happens there? The danger of attempting to nobble juries is just as great with organised crime in this context.

The Government might reply that that can be covered under the Criminal Justice Act 2003, which provides for an application for a non-jury trial where there is reason outside the context of terrorism to believe that the jury might be tampered with. However, there are significant differences between the procedure under the Criminal Justice Act 2003 and that in Clause 1. We should bear in mind that we will have some organised criminal gangs in Northern Ireland that, because of a history linking them to paramilitaries, will come under the Bill, whereas others who do not have the history of a linkage with paramilitary gangs will come under the 2003 Act, with radically different procedures. That has not been well thought out and we might want to look at it.

The Minister referred to some of the powers being preserved, primarily for the Army—which term I prefer to the military, but that is another matter—giving rise to the question why, if there are to be reviews of those powers, we are not going to have the familiar reviews of the operation of quasi-terrorist provisions. Over the years we have become accustomed to that; in fact, we have become accustomed not just to annual statements but to annual renewals and votes, so we should have more on that. The Minister might also like to consider whether it would be appropriate to have a sunset clause every five years or so to bring the whole matter back before the House to be periodically considered.

I think that most of the attempts to safeguard jury members are sensible, but I was glad to see paragraph 6 of the Explanatory Notes refer to,

“reforms which it is considered will reduce the risk of juror intimidation and partisan juries”.

I was glad to see that reference to partisan juries. It is too often forgotten that when Diplock reported in 1973, while most of the emphasis was given to juror intimidation, there was also reference to the dangers that flow from partisan juries. It is not something one likes to advertise but it has to be said that in 1973 there was concern among senior officials in the administration of justice that there had been partisan decisions, perverse acquittals and even perverse convictions. Indeed, some might regard some of the miscarriages of justice in jury trials in terrorist cases as coming into that category as well.

That is particularly significant when considering religious or political hostility in subsections (6) and (7) of Clause 1. Subsection (6) relates to an offence that,

“was committed to any extent … as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons”.

That goes into this territory. Part of the reason I mention it is that on this side of the water, as we say, given the terrorist problems that are now developing here, it would be appropriate for someone to think about whether there is a risk of having partisan juries. These situations may develop and if they do so it is better to have thought about them and to have something prepared beforehand rather than have to patch up what has happened afterwards. I shall not say much about the rest of the Bill. I have reservations regarding the Northern Ireland Human Rights Commission, but we can explore those in Committee.

I must say that the Clause 42 provisions for the justice department astonished me. Had I any influence on those in the Northern Ireland Assembly, I would take grave exception to this. As things were originally planned, it was to be left to us in the Assembly to decide how we would structure departments. When active consideration was given to the question of the devolution of policing and justice in 2002 and 2003, we were happy to discuss with others what models would be necessary. Had the Government here started to prescribe models, even if they were just presented as models, I would have deeply resented it. I would also have deeply resented it had the Government taken powers to impose a model, as it were, on the Northern Ireland Assembly. It is getting desperately close to overriding the Assembly itself. The Minister disclaims that intention, but Clause 42 makes it obvious that we are going to see a little bit of spin: the Democratic Unionist Party will be assured that the triple lock has not been overridden and the Government are just bringing this forward for consideration. It will still be up to the party to decide whether to elect a Minister for justice; and of course Sinn Fein will be told, “This is how hard we are pushing on the target date of May 2008. We are taking the power to enable us to put it in place if the Assembly does not agree”. The obvious message underlying it is, “When the time comes we may be prepared to go further and actually impose the devolution”.

There is a strand of thinking among those in the DUP that they would be happy to operate something if it was imposed upon them rather than having to vote for it. I remember DUP members who said of the Belfast agreement that we should never have agreed to it. It would have been all right if it had been imposed on us, then we could have worked it, but somehow it was wrong for us to agree to it. I suspect that the same thing is happening again and we are seeing the beginning of a little ritual dance that will result in that. But I fear that the people of Northern Ireland will not be content with it. In fact, I have grave reservations about whether the people of Northern Ireland are ready for the devolution of policing and justice powers. Certainly their temper in recent times would indicate that they are not. I doubt very much whether things will change so dramatically in just over a year, but that is a matter we can pursue later.

My Lords, I agree with the Minister that the changes in Northern Ireland over the past number of years have been enormous, and I am privileged to follow my noble friend Lord Trimble, who can take a lot of the credit for the changes we have seen. I want to make a number of points, particularly regarding the powers of the Northern Ireland Human Rights Commission, as I believe that this Bill has serious defects in terms of the protection of human rights. In a number of respects the Bill actually diminishes the commission’s current level of independence from the Government and imposes new and onerous obligations. I was pleased to note that, in its recent scrutiny report on the Bill, the Joint Committee on Human Rights also shared my concerns.

A number of relevant clauses have been presented by the Government as a positive response to recommendations made by the commission on improving its powers. However, the Bill offers access and evidential powers in a very limited form, hedging them with exclusions, limitations and procedural obligations and adding little value in the protection of human rights.

There are three issues arising from this part of the Bill for the House to consider: restrictions on the use of evidential powers, including national security exclusions; fettering of access to places of detention; and the time limit on using new powers.

Let us look at the first issue. Clause 14 provides the power to compel evidence and obliges the commission to consider whether the matter that it proposes to investigate has not been investigated sufficiently by another person or agency. Clause 15 makes a similar provision in relation to places of detention. As a result of these restrictions, there is a danger that an agency could block an inspection by the commission on an urgent human rights issue by claiming that a similar investigation had been conducted by a regulatory body previously.

As I understand it, the commission avoids duplication of work with other oversight and regulatory bodies through memoranda of understanding and other protocols. The commission bases its work on the international human rights standards and therefore brings a new perspective to situations, matters and institutions already investigated by bodies with a different focus. The activities of other oversight bodies should not create a ground to object to an investigation by the commission. Clauses 14 and 15 should be amended.

The commission is of course subject to judicial review. It has no desire to remove itself from the legitimate scrutiny of the courts, such as the role of the county court, as proposed in this Bill. It is not apparent that the specific role that the Bill would give the county court would add to the protection of human rights. Notices should not be required to be ratified or overturned at county court level. In particular, the ability of a county court to cancel an order, to prevent or restrict access or to interfere with the terms of reference of an investigation will undoubtedly limit the independence of the commission.

Clause 14 also limits the capacity of the commission to investigate anything connected with national security. That takes no account of the particular circumstances of Northern Ireland as a society emerging from a prolonged conflict, in which human rights issues frequently arose in relation to the activities of the intelligence services and the police in relation to national security matters. For example, the alleged collusion between state agencies and illegal armed groups, as recently reported by the Police Ombudsman, is the sort of issue that a national rights institute ought to be able to address. In practice, this Bill could prevent any disclosure to the commission of information that would be relevant to that matter, whether relating to past, present or future activity.

There is no restriction in the Northern Ireland Act 1998 on the ability of the commission to investigate national security issues. This new provision reduces, rather than enhances, the commission’s powers. The exclusion of intelligence matters is not limited to the application of the proposed powers. Any investigation by the commission, whether or not it seeks to compel evidence, is prohibited from considering any matter concerning human rights in relation to the Security Service, the Secret Intelligence Service and GCHQ.

The commission has stated that it completely accepts that national security must be protected. It accepts the need to protect the capacity of the intelligence services and the police to defend national security within the rule of law. It understands that this may, in certain circumstances, justify a refusal to disclose certain information. Clearly, it is one thing to prevent sensitive information coming into the public domain; it is entirely another thing to prevent questions being raised.

This clause, if retained in the Bill, is bound to diminish not only the commission’s credibility but public confidence in the compliance of the intelligence services with human rights. Although I understand that virtually the same provisions were made in Schedule 2 to the Equality Act 2006 for the Commission for Equality and Human Rights in Britain, I still contend that the particular circumstances of Northern Ireland justify a different approach. Clause 14 should be amended.

On the second major issue in this discussion, Clause 15 allows the commission to enter a place of detention only for the purpose of a formal, time-bound investigation. For any other purpose, however serious or urgent, the commission would need to secure the permission of the relevant authorities.

In my view, the commission needs to have the option of visiting places of detention as a means of fulfilling its statutory functions in relation to legal proceedings, research, investigations and educational activities. For example, it may from time to time be made aware of a particular situation in a prison or holding centre which requires immediate attention and to which the relevant authorities may not wish it to have access. The commission may also wish to review the operation of such a centre without the centre’s staff having the benefit of preparing for the visit, and it should be able to make unannounced inspections. To be effective as a means of discouraging or uncovering human rights violations, the power of access to places of detention should allow for unannounced visits.

The Bill imposes a minimum delay of 15 days’ notice between the commission deciding to investigate and gaining the right of entry. Subsection (5) makes no provision for emergencies and subsection (6) further delays access by allowing for application to the county court. The county court is able not only to prevent or restrict access but to dictate alterations to the terms of reference decided by the commission and communicated by it to all interested parties. I believe that these restrictions on accessing places of detention should be removed from the Bill.

Clause 19 prevents the commission from compelling evidence or accessing a place of detention for the purpose of investigating any matter relating to the period before 1 August 2007. The commission could not, for example, require the production of a document created on or before 31 July 2007, even if it was directly relevant to a recent human rights violation. The effect of the time limit is particularly severe in relation to the gathering of evidence. It is difficult to imagine how any human rights violation could effectively be investigated without looking into events and information from previous years. Therefore, in practice, it is likely that several years would have to elapse before the commission could use the powers to any effect.

The clause creates a notable anomaly in the protection of human rights in Northern Ireland as against other UK jurisdictions. In Great Britain, the existing equality bodies already have powers to compel evidence, and the new Commission for Equality and Human Rights acquires similar powers under the Equality Act 2006. The Scottish Commission for Human Rights Act 2006 contains not only evidence powers but a right of entry to places of detention without any time restriction. Thus in England, Scotland and Wales, the sister bodies of the Northern Ireland Human Rights Commission have, and will have, powers that have no arbitrary time limit. In the Republic of Ireland also, the Irish Human Rights Commission, established in parallel with the Northern Ireland commission as a result of the Belfast agreement, has extensive powers to compel evidence with no such time limit. Members will be aware that the agreement and the corresponding treaty committed the two states to maintaining an equivalent level of protection of human rights in Northern Ireland and the Republic.

The Minister in another place, Paul Goggins, stated at Second Reading:

“It is important that the Commission has powers that focus on the future, so that it takes us forward, deals with the issues of today and tomorrow, and ensures that we have the right conditions in our society”.—[Official Report, Commons, 13/12/06; col. 971.]

He also suggested that the commission was perhaps too busy to look into earlier matters and would be best directing its resources forwards.

I understand from the commission that, as a body guided by the United Nations Paris principles, it wishes to be able to determine for itself how best to direct its energy and its resources after weighing up the human rights importance of a particular matter. It may very well decide that a flagrant breach of human rights in the past is just as deserving of investigation as a possibly less serious breach in the future.

Having regard to the particular circumstances of Northern Ireland as a society emerging from a long period of conflict, this House will want to consider whether the interests of normalisation, confidence-building and conflict resolution are better served by enabling or blocking the investigation of past human rights violations.

Although I welcome the minor concession the Government have made on this issue, bringing forward the timing of the measure by six months, I believe that Clause 19 serves no useful purpose in the protection of human rights and should either be left out or further amended to provide a positive formulation allowing the commission to exercise its powers in relation to matters arising before as well as after the commencement of the new Act.

I urge the Minister to give serious consideration to amending this Bill and to take on board the criticisms made by the Joint Committee on Human Rights and the Northern Ireland Human Rights Commission.

My Lords, it occurs to me that I am what the Good Friday agreement referred to as a cross-border body; because it is 30 years or so since Merlyn Rees appointed me as special adviser to the Standing Advisory Commission on Human Rights in Northern Ireland. Since then, I have had the privilege of appearing in front of the Northern Irish courts on several occasions, and I am a blow-in of 33 years, standing in Cork. I love the whole of Ireland, north and south. I would like to say at the very beginning that I entirely agree with the noble Lord, Lord Trimble, especially on what he said about the courage and integrity of the Northern Ireland judiciary, which needs to be emphasised—not only their bravery but their fearless independence and impartiality.

Although I sit on the Liberal Democrat Benches, I am speaking today as a member of the Joint Committee on Human Rights, and I shall not move a millimetre from its report. It is important that that all-party and beyond-party report should be carefully considered in this House. It could not be considered in the other place because it was published on 12 February, so this is the first opportunity to draw attention to its proposals. The noble Baroness, Lady Blood, has already done so with great force in relation to the powers of the commissioner, which will enable me to be a bit shorter than I otherwise would have been. I also am grateful to officials from the Northern Ireland Office and from the Northern Ireland Human Rights Commission, who have met me and others to discuss the issues. I hope that the Minister will be able to respond to at least some of the concerns in the report in his reply today.

I am more optimistic than my noble friend about the capacity to improve the Bill in Committee. If the Equality Bill was anything to go by, under the leadership of the noble Baroness, Lady Ashton of Upholland, we managed in Committee to make very substantial improvements. I may be considered an idiot, but I believe that the Minister is open-minded and that there will be considerable scope for dealing with some of these points in Committee.

The Joint Committee on Human Rights raised three issues of main concern in its report. First, there was jury and non-jury trials, including the controversial ouster clause. Secondly, there was the powers of the commission, and thirdly there was the additional powers for the police and Army. Regarding juries and non-jury trials, I accept a great deal of what the noble Lord, Lord Trimble, said, but we accept the need for safeguards to protect juries from intimidation and for provision for trial without jury where there is a danger of jury tampering or perverse verdicts. We welcome the Bill’s reinstatement of a presumption in favour of jury trials in Northern Ireland, and we report that any departure from that presumption should be tightly defined and demonstrably related to the general problem of intimidation and sectarianism in Northern Ireland.

The Bill gives the Director of Public Prosecutions the power to issue a certificate stating that a trial is to be conducted without a jury if the DPP suspects that specified conditions are met and if there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. The committee is concerned with the width of the DPP’s power to certify. He may do so, for example, if the defendant is or at any time has been a member of a proscribed organisation, or is an “associate” of such a person.

The committee accepts the possible need for a departure from a presumption of jury trial where the defendant is or has been a member of a proscribed organisation. Like the Northern Ireland Human Rights Commission, we are concerned about the extension of this to “associates” of such people. The breadth of that power gives rise to a risk that the power to certify may be used arbitrarily and in a way that may discriminate unfairly against friends or relatives of members or former members of proscribed or formerly proscribed organisations. It is the kind of problem that arose in a case in which I was involved in Strasbourg called Tinnelly and McElduff v United Kingdom, involving blacklisting. We therefore recommend that the Bill be amended to remove the reference to “associates”. We also recommend by way of safeguards against arbitrariness that the DPP should be required to be satisfied that other less restrictive measures will not prevent jury tampering, and that the Bill should provide for judicial control.

As regards the ouster clause, Clause 7 purports to exclude the jurisdiction of the ordinary courts to entertain challenges to the DPP's decision to issue a certificate, including challenges to the legality of the decision. Although Clause 7 has been revised and is now subject to the Human Rights Act, in our view it still conflicts with Section 7 of the Human Rights Act, by which proceedings can be brought claiming that a public authority has infringed a convention right. The ouster clause raises the significant issue of the restriction of the right of access to courts, recognised as fundamental both to the common law and in the scheme of the convention by the European Court of Human Rights.

The Bill as it stands would permit a legal challenge only on grounds of bad faith or dishonesty or for what are called “other exceptional circumstances”, and not because the DPP had no jurisdiction at all to deal with the matter or had committed a serious error in law. For example, if the DPP issued a certificate on the basis that someone belonged to an organisation which had in fact never been proscribed, it would be impossible to challenge the decision in court. The Government claim that they are merely putting on a statutory footing the current case law about challenging the Attorney-General’s decision whether to approve a case as fit for trial by jury under the current framework of the Diplock courts.

We explain in our report that a careful reading of the decision of the High Court of Northern Ireland in the Shuker case shows that the ouster clause in the Bill is identical to the argument made by the Attorney-General and rejected by the High Court in that case. We expressed our regret that we find the explanation given in the Explanatory Notes and by the Minister in his letter to the committee to be disingenuous—we do not normally use language as strong as that—and we point out that Clause 7(1) and (2) attempt to put into statutory form the very argument which was made by the Attorney-General and rejected by the High Court of Northern Ireland in Shuker. We also point out that Clause 7(2) goes far beyond what the High Court actually held in Shuker, which ruled out judicial review of such decisions on grounds of procedural unfairness and explicitly left open the possibility of judicial review being available on other grounds in circumstances of future cases.

I know that the noble Lord, Lord Rooker, is not a lawyer, but I also know that he is as capable as any lawyer of understanding the judgments of the Northern Irish courts. If the Minister could read paragraphs 25 to 27 of the judgment of the Lord Chief Justice for Northern Ireland, Sir Brian Kerr, and the Lord Justice of Appeal in Northern Ireland, Sir Anthony Campbell, he will find that the Government can well trust the courts of Northern Ireland to be extremely careful not to use judicial review to excess. In the judgment, they go out of their way to say, “Let’s be pragmatic; let’s look at each case on its merits; let’s not say we have no jurisdiction to have judicial review; let’s exercise it only rarely, but we are by no means prepared to be fettered”.

The advice in Clause 7(2) shows a lack of confidence by the Government in the judges of Northern Ireland, who can well be left to deal with the problem on a case-by-case analysis. Clause 7(2), as my noble friend said, raises similar rule-of-law concerns to the previous attempt by the Government to include a similar ouster clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill. There are good reasons why courts on judicial review should exercise restraint, as the courts in Northern Ireland have explained, but that does not justify a wide-ranging ouster of judicial review. It should be for the court to decide, in the circumstances of a particular case, whether the DPP has demonstrated that the issue raised cannot be determined by the court without disclosing information whose disclosure would harm the public interest. If the Minister reads the actual judgment, he will appreciate the force of what the committee has said.

We welcome the Government’s amendment in narrowing the scope of this clause, but we hope that the Government and this House will agree that the rule of law requires no less than the deletion of Clause 7 as it stands. The reference to “other exceptional circumstances” is too vague.

The next issue we raise is the need for equal opportunity for the defence and the prosecution in conducting juror checks. We conclude in paragraph 1.46 of our report that, to avoid a breach of the principle of equality of arms, it would be necessary either to retain the defence’s equivalent right of peremptory challenge or for the Crown to be prepared to disclose enough of the gist of the information obtained to support a challenge to a juror for cause. In other words, there must be a level playing field. We believe that a challenge for cause is capable of including a challenge on the basis that the juror is a security risk, susceptible to improper approaches or liable to be influenced in arriving at a verdict for political or sectarian reasons. What is sauce for the goose should be sauce for the gander in that matter.

As regards the powers of the Northern Ireland Human Rights Commission, we welcome Clause 13, which enables the commission to institute or intervene in human rights legal proceedings. That is the same as the position under the Equality Act for the Commissioner for Equality and Human Rights. This will enhance the commission's effectiveness in promoting and protecting human rights. However, we share the Northern Ireland commission’s concerns about three matters, to which the noble Baroness, Lady Blood, referred in some detail. The first involves restrictions on the use of the commission's evidential powers, including national security; the second involves fettering of access to places of detention; and the third involves the time limit on using the new powers.

We agree with the Northern Ireland commission that it should not be prevented from investigating a matter on the ground that it has already been sufficiently investigated by someone else; we also agree that there should be no blanket ban preventing the commission from raising questions about the intelligence services in its investigations. In the Northern Ireland context, such a limitation would be a severe blow to the commission's credibility and effectiveness.

As regards the fettering of access to places of detention, we also agree with the commission that the restrictions imposed by the Bill are too onerous to enable it to carry out its statutory responsibilities effectively. The commission points out that the importance of monitoring the strategic management of national security issues has been highlighted by the Police Ombudsman in her recent investigation into allegations of collusion between the police and their informants. The fetters proposed in the Bill make it very doubtful whether the commission could form part of the UK's national preventive mechanism under the Optional Protocol to the Convention Against Torture. That is a matter on which the Government have not responded to the Joint Committee on Human Rights, although we asked it to do so. It would be a serious matter if the fetters prevented this commission from being able to play a part in that national preventive mechanism. There may be a misunderstanding among officials in this regard. Reference has been made to many other ways of inspecting—for example, by the director of the Prison Service, by the National Audit Office or by others—but, with respect, that is not really the point. The role of a national human rights institution in monitoring the human rights of prisoners and the associated regime is distinct from and complementary to an individual complaints mechanism such as the prison ombudsman or Her Majesty’s Chief Inspector of Prisons. The matter can be dealt with, as the noble Baroness indicated, by protocols or memoranda of understanding, to avoid overlap. Again, that is an example of a completely unnecessary bureaucratic obstacle, which I suggest should be removed.

The noble Baroness, Lady Blood, has already dealt with the time limit on using new powers; there are no such limits with respect to the CEHR or the Scottish Human Rights Commissioner or any other oversight body in Northern Ireland. We, like her, recommend that Clause 19 should be deleted.

Finally, I turn to the additional powers for the police and the military. The Bill gives them the power when on duty to stop a person “for so long as is necessary” to question him to ascertain his identity and movements. Members of the Armed Forces are also given a power to stop a person “for so long as is necessary” to question him to ascertain what he knows about a recent explosion or other recent incident endangering life, or about a person killed or injured in a recent explosion or incident. Bearing in mind that the member of the Armed Forces making the arrest must suspect that the person arrested has committed, was committing or was about to commit an offence, the JCHR believes that the arresting officer should be required at least to inform the detainee of the facts that are the foundation of the decision to detain and to ask whether he admits or denies the allegations. That should be an elementary requirement. It would reduce the risk of findings of incompatibility with Article 5.2 of the European convention in particular cases and avoid unnecessary litigation by lawyers such as me.

We comment also on the breadth of the power of entry of premises and recommend that it should be expressed in objective terms, such as where the police officer or member of the armed services reasonably considers it necessary. That would reduce the risk of the power being found to be incompatible with Article 8 of the convention. We also recommend that there should be an equivalent requirement of authorisation by a senior officer where the power is exercised by a member of the Armed Forces.

The Bill provides the police and Armed Forces with a power to enter and search premises to ascertain whether there are munitions unlawfully on the premises or wireless apparatus on premises where there is a reasonable suspicion that such items are present. It gives the officer who is carrying out such a search the power to require a person to remain on the premises for up to four hours, extendable to eight hours in total if he reasonably believes it necessary to carry out the search or prevent it being frustrated. We explain our reasons for doubting whether detention for up to eight hours during a search of premises is compatible with the right to liberty in Article 5 of the convention. However, we welcome the Minister’s indication to us that he intends to make available a draft of the guidance on the use of these powers during the passage of the Bill.

We hope the Minister will reply to these concerns and indicate at what stage we will be provided with the draft of the guidance. We look forward, perhaps in Grand Committee, to being able to pursue these matters in a spirit of optimism and constructive assistance.

My Lords, this has been a valuable debate. We lack one set of opinions, to which the noble Lord, Lord Trimble, drew attention, due to the absence of our DUP colleagues. I hope that this is because they are away electioneering rather than because they want to keep their cards close to their chest and take it right up to the wire.

I hope that I will not have to be as pessimistic as the noble Baroness, Lady Park. As the noble Lord, Lord Trimble, said, we must wait and see how Sinn Fein’s attitude to policing unfolds in practice as well as in words. However, I agree with her that it is disconcerting that of the 99 Roman Catholic recruits to the PSNI 76 have resigned. That rate of attrition is not acceptable.

My noble friend Lady Harris was absolutely right to draw attention, as did other noble Lords, to non-jury trials and the role of the Director of Public Prosecutions. We believe that this should be undertaken by a member of the judiciary. Others did not mention this, but there remains the question which I hope the Minister will address; namely, the accountability of MI5 in Northern Ireland. Under these proposals, it appears that it will remain the lead agent as opposed to the Police Service of Northern Ireland.

I am sure that the whole House shares my view that the speech of the noble Lord, Lord Trimble, was measured and constructive. Perhaps I may single out the question of restorative justice, on which other noble Lords have not remarked. We on these Benches have often urged it, but the way in which it seems to be occurring is most unsatisfactory. At the moment, it has more of the characteristics of a kangaroo court than something that can be seen to be properly based on law.

No one would criticise the integrity or courage of the Northern Ireland judiciary over the years in presiding over Diplock courts. In answer to the noble Lord, Lord Trimble, my noble friend Lady Harris did not criticise the judiciary; she was criticising the continuance of non-jury courts, which we on these Benches would want only in the most extraordinary and exceptional circumstances.

The noble Baroness, Lady Blood, made a strong defence of the Northern Ireland Human Rights Commission and, as noted by the noble Lord, Lord Lester, anticipated many of the remarks that he would make. We support the observation made by the noble Baroness, especially with regard to the Bill’s fettering of the commission’s work, a point on which the noble Lord, Lord Lester, also spent time. We shall support any amendments that he is likely to table in Committee.

We welcome the Bill, broadly speaking, but there are specific issues that we look forward to addressing in Committee with a view to improving the Bill still further.

My Lords, first, I apologise to your Lordships and the Minister for being a few seconds late in my place at the beginning of the debate. I was watching the monitor, which was rather slow out of the blocks—not for the first time today. I noted a similar problem at Question Time.

We have had an interesting and broad debate, with a certain amount of repetition, which is to be expected, and which will give the Minister something to think about before the Committee stage. Perhaps I should summarise where we in the Conservative Party are. We are now in the thick of the election campaign for the Northern Ireland Assembly, with polling taking place in a little over three weeks on 7 March. I am sorry that virtually no unionist Peers have been present today, particularly from the DUP, which is the largest party. This is an extremely important Bill and I feel that it was their duty to be here, but they are not. The timetable set out at St Andrews stipulates that the relevant parties—

My Lords, it may be helpful if I say that I know that the Minister had an explanation as to why our colleagues from the DUP could not be here today. It was an acceptable one.

My Lords, I thank the noble Baroness for that appropriate intervention, and I withdraw my remarks concerning colleagues from the DUP.

The Opposition sincerely hope that the 26 March date will be achieved, but we have made it clear, along with others in Northern Ireland, that for devolution to work on a sustainable and durable basis all parties must abide by the same democratic principles. That has to mean support for the police, the courts and the rule of law. We welcome, therefore, the decision taken by Sinn Fein at its special party conference in Dublin at the end of January. I wish to make two points about that.

First, in our view, there was never any justification for not supporting the police. Secondly, we on this side utterly deplore the smears levelled in recent weeks at the Royal Ulster Constabulary and its reputation. We should never forget the professionalism, bravery and sacrifice of the Royal Ulster Constabulary during and in the face of a vicious terrorist campaign that saw 302 officers murdered and many more maimed or injured. Quite simply, without the RUC there would not have been a peace process or the prospect of a better future for all the people of Northern Ireland that we see today. The Royal Ulster Constabulary, and now the PSNI, deserve our thanks and praise for their excellent professionalism and work. For all that, the overwhelming vote by Sinn Fein finally to back the Police Service of Northern Ireland is a welcome step forward. Words are, however, only the start. We now have to judge performance; evidence of actions on the ground demonstrating that the republican movement is matching words and deeds.

There have been some encouraging signs, with Sinn Fein urging people from republican communities in general—and its own supporters in particular—to co-operate in the investigation of certain crimes. There was also the meeting last week between senior members of Sinn Fein and the chief constable, Sir Hugh Orde. But there are still some ambiguities over the types of crime on which Sinn Fein is asking its supporters to co-operate with the police. For example, in his statement on 30 January the Sinn Fein president made distinctions between what he called “civic” and “political” policing. Judging from recent comments by Gerry Kelly, it is still not clear whether mainstream republicans are willing to co-operate with the PSNI in investigating the activities of so-called dissidents. Nor has Sinn Fein indicated that it expects its supporters to co-operate in investigating past crimes.

There cannot be an à la carte approach to supporting the rule of law. Sinn Fein needs to back the police in investigating all crimes—including the murder of Robert McCartney in 2005—and to give active encouragement to people from republican backgrounds to join the police force. We have heard some negative stories about that this afternoon. If this is all forthcoming in the next few weeks, then we believe that unionists would be doing the right thing in committing themselves to entering a power-sharing devolved Administration at Stormont. However, given the lack of trust that exists in Northern Ireland, we do not underestimate the obstacles that must still be overcome, particularly on the future devolution of policing and justice powers to the Assembly.

That leads me to the one part of the Bill over which we have serious concerns—as do other noble Lords, particularly the noble Lord, Lord Trimble. Clause 42 amends the amendment to the Northern Ireland Act 1998 in the Northern Ireland (Miscellaneous Provisions) Act 2006 effectively to give the Secretary of State the power to establish a policing and justice department over the heads of the Executive and the Assembly. That makes a mockery of devolution. For the record, we have never been opposed in principle to the devolution of policing and justice provided that there is sufficient community confidence for it to take place. Surely, the right way to test such community confidence is to leave that matter to the Assembly on a cross-community vote, not to give the Secretary of State the vice-regal power to impose it whether or not the Assembly wants it. That is agreed by one or two other noble Lords. We shall see in Committee.

We hope that these issues can be resolved by the parties once the elections are over. A devolved Government would mark yet another step forward in the transformation of Northern Ireland that has taken place over the past 15 years since John Major, with the help of my noble friend Lord Brooke and my noble and learned friend Lord Mayhew, embarked on the first steps of what was to become the peace process. Today, most people are able to go about their daily lives in a way that was simply unimaginable in the early 1990s. The organisation responsible for most of the killings during the Troubles, the Provisional IRA, has decommissioned its weapons, formally ended its campaign and appears to be committed to a peaceful and democratic future.

In the words of paragraph 2.17 of the Independent Monitoring Commission’s report published on 30 January, which has already been quoted this afternoon:

“The directions from the PIRA leadership to members have remained clear and consistent. Terrorism and violence have been abandoned. Members have been instructed not [to] be involved in paramilitary activities such as weapons procurement, in criminality or in the use of force. The organisation had already moved a very long way, and it has continued to move in the same direction in the three months under review. Instructions from the leadership of this kind reflect the continuing commitment to the strategy of following a political path to which we referred in our previous report and which we are fully satisfied remains firmly in place”.

As a result of all these developments, the Government have been able progressively to proceed with their security normalisation measures. Army bases have been closed; only last week we saw the dismantling of the watchtowers in Crossmaglen. The police are now able to patrol on foot in most parts of Northern Ireland. By the end of July, Operation Banner—the longest continuous active service deployment in the British Army’s history—will come to an end. With that, the Part VII powers of the Terrorism Act 2000, specific to Northern Ireland and intended to be temporary, will be repealed.

The Conservative Party welcomes all this but, for all the progress, we recognise that Northern Ireland still suffers from problems requiring the main measures in the Bill. As the IMC made clear in its most recent report, dissident republicans, Continuity IRA and the Real IRA, who are opposed to the strategy on which Sinn Fein is embarked, remain a potent threat, particularly in areas such as south Armagh and Fermanagh. On RIRA, the IMC referred to heightened levels of activity: an attack on a police vehicle, intimidation, sectarian attacks and incendiary attacks on DIY and other stores. The IMC attributes a number of paramilitary incidents to the Continuity IRA. It is in no doubt that both organisations are seeking to recruit, train and develop new weapons.

Members of the two main loyalist organisations, the UDA and UVF, remain heavily involved in criminal and paramilitary activity. Despite some improvements, the IMC notes that,

“the pace of movement has been slow”.

There are still no indications that loyalist paramilitaries are prepared to decommission their weapons.

In our view, the current levels of paramilitary threat in Northern Ireland more than justify this legislation, particularly the provisions giving additional powers to the Armed Forces and the police, and those relating to juries. While we all want a presumption in favour of trial by jury in criminal cases, we recognise that there will still need to be special provision for non-jury courts in certain circumstances. That is regrettable but necessary. However, we wonder, along with other noble Lords, whether the responsibility for issuing a certificate granting a non-jury trial should be for the Lord Chief Justice rather than the DPP; or, at the very least, whether the DPP ought to be obliged to consult and secure the agreement of the Lord Chief Justice before issuing a certificate. I suggest that we will have more of that in Committee. I note that the Criminal Justice Act 2003 requires the prosecution to apply to a judge for approval of a non-jury trial.

We are also concerned, along with the noble Lords, Lord Trimble and Lord Smith of Clifton, about restorative justice and the systems being proposed. On the regulation of the private security industry, we welcome the fact that Northern Ireland is being brought into line with the rest of the United Kingdom. However, can we have an assurance from the Minister that the Security Industry Authority is fully equipped to meet the challenge posed by paramilitary organisations in Northern Ireland? What assurances can he give us that problems encountered with stewarding at sporting events in England will not occur in Northern Ireland? The Minister nods; he knows what I am talking about.

On the clauses relating to the Northern Ireland Human Rights Commission, we question whether that body needs greater powers. When the commission chooses to involve itself in arguments over, for example, the 11-plus, there is surely more of a need for a clear definition of its responsibilities and the boundaries that it should not cross rather than increasing its scope, as the Bill does. In short—I am afraid that some may not like what I am going to say—we do not agree with much of what has been said on this subject in your Lordships’ House today and we look forward to continuing the debate in Committee. We will want to examine these issues in more detail. For now I reiterate that the Opposition recognise the need for the main provisions contained in the Bill and we shall support its Second Reading.

My Lords, before the noble Lord, Lord Glentoran, sits down, I want him to reconsider whether it is appropriate for him to withdraw his remarks regarding the DUP Members of your Lordships’ House. Does the House find it acceptable that an excuse can be offered to the Minister, who finds it acceptable according to the noble Baroness, Lady Farrington, which was not vouchsafed to the House? I certainly do not. They have three Members; surely at least one of them could have attended. I find it quite uncalled-for that the noble Lord should withdraw his remarks.

My Lords, I was not party to the reason; perhaps I should not have been. On this occasion I trust the judgment of the noble Baroness, Lady Farrington, and the Minister.

My Lords, I will get this point out of the way before I start: I have no intention of participating in the elections in Northern Ireland. Nobody spoke to me about it; I just happen to have been told yesterday that the DUP was launching its manifesto in Belfast today, hence their names were not on the speakers’ list. That may or may not be acceptable, but it is a fact. I am not critical one way or the other. I am not going to get involved in the Northern Ireland elections. There have been attempts to seduce me into this but I am not going down that road. People can speak for themselves, inside or outside this House.

I promise not to speak for too long, but I hope to answer as many points as I can today because it will make Grand Committee more meaningful. Commitments have been given, bearing in mind that I had an idea of what some noble Lords would say, to try to put responses on record. That is important, but I will be time-limited in what I say. I am very grateful to everyone who has spoken for their points. This is a very important Bill. The changes we put on the statute book must reflect the changes in Northern Ireland in recent years.

I will not bandy around too many statistics, but the impression of those outside of jury and non-jury trials in Northern Ireland is important. Over the past five years less than 6 per cent of all Crown Court cases have been tried without a jury under the Diplock system. The vast majority of criminal cases are tried in the magistrates’ court without a jury. The majority of Crown Court cases relate to fraud, rape, burglary, mugging, et cetera. The average number of cases dealt with using the Diplock system over the past five years is 64 a year; the provisional figure for 2006 was 61. In 2005 it was 49. This is very important. Obviously, non-jury trial is different, but nobody has claimed—the noble Lord, Lord Trimble is right about miscarriages of justice—that it is not a fair system. We are not talking about hundreds of cases each year but less than 6 per cent of Crown Court cases and an average of 64 per year.

I fully accept, as the noble Baroness, Lady Park of Monmouth, said, that rebuilding—or creating—that trust is the key to success. We want everyone to come to the table and share the success of Northern Ireland so that every participant feels that they have got some success out of it. That requires trust. It is true that the trust is not there in every party. A network of trust must be built, and it will be built through the experience of working together and governing Northern Ireland. There is no question about that. No one is saying that things are perfect at the moment.

I will check the Slugger O’Toole website, which I am not familiar with. Notwithstanding what I am going to say in some detail to the noble Lord, Lord Lester, I will ensure that I read not only the substantial briefing that I have on the matter but the relevant paragraphs of the judgment to which he referred.

Nothing in the Bill or in what we have said or done implies any lack of confidence in the judiciary. On behalf of the Government and the House, I pay tribute to the efforts of the judiciary over the past 30 years. People have done an incredibly brave job in the circumstances. Indeed, as the noble Lord, Lord Glentoran, has said, 302 members of the police service have lost their lives, as have hundreds of other people. This has been a terrible tragedy. We are in a new position in Northern Ireland, and we must operate differently, but it is absolutely true that we must be mindful of the past. I am not a poker player, and I am not going to get involved in those aspects, but there have been negotiations. I have not been party to them, but we have got to where we are today: on the threshold of the restoration of devolved government in Northern Ireland. Elections will be held in two weeks from this Thursday and will be followed, I hope, by the resumption of a power-sharing Executive on Monday 26 March. That is not far away. We will know in five short weeks or so whether it has worked. We do not have a plan B, although I freely admit that in the next few days—I do not know when; perhaps it will be next week or the week after—I will come before the House with an order to extend direct rule beyond 26 March. I must do so because of the six-monthly restoration order. I have no choice. It must be done like that because of the way in which Easter falls and because of the recess of the House, but it in no way undermines plan A, which is devolution. Plan B is a generation missed. That is what we are saying.

The noble Baroness, Lady Park, asked whether we would consider repealing the legislation in two years. The arrangements in the Bill which we mentioned are focused on the future and designed for Northern Ireland this century. The police and military powers can be repealed if they are no longer required. We believe that non-jury trials will wither on the vine over a period of years, although we cannot be prescriptive about that. As for other measures, the Northern Ireland Human Rights Commission powers and private security are all permanent and very positive developments. I have no doubt that we will return to these issues in time.

I mentioned Gerry Kelly’s attendance at the conference only yesterday, as did others, but I am reluctant to bandy about quotations or add to what others have said. There has been a change in the climate and in Sinn Fein’s attitudes towards policing, to the point where it has met that test and surmounted that hurdle, and neither I nor the Government seek to erect any further hurdles. I fully accept that the proof of the pudding will be what happens on the ground. It will be tested on a case-by-case basis. Those who look at these things day by day will see whether Sinn Fein delivers. The people involved have that responsibility and know that they will be tested. They must pass all those tests. If they do not, we have a problem. It does not help if I say that someone said this and someone else said that. All the quotations are on the record, and they are common currency in Northern Ireland. As I said, the test has been passed, which is why we are where we are now: on the verge of devolved government.

On criminal activity, I can only refer to what I said in my opening remarks. I quote from the Independent Monitoring Commission’s 13th report, which was published on 30 January this year, in which it said:

“PIRA as an organisation continues not to be involved and there are indications that in response to the leadership the involvement of individual members has declined. Nevertheless, some continue to be engaged in crime, including offences such as smuggling, fuel laundering and tax evasion. Such activity is now contrary to the policy of the organisation”.

We have to test that quotation against the reality.

The noble Baroness, Lady Harris, asked about non-jury trial arrangements in Northern Ireland in respect of the rest of the United Kingdom. We think that Northern Ireland is on the road to normalisation; we are positive about that, but it is not yet the same as the rest of the UK. We fully accept that. The noble Lord, Lord Glentoran, made that abundantly clear and I agree with what he said. There is still a threat from loyalists and dissident republicans, and people live in small, close-knit communities in Northern Ireland. The dispersal of the population is different from that in the rest of the United Kingdom. It is not analogous to England, rural Wales or rural Scotland. Those communities are therefore vulnerable to paramilitary control. One day we hope that it will be as safe as the rest of the United Kingdom; it is not there yet. The Bill is helping us to deal with it on the way.

The noble Baroness asked why we could not have a judicial process like that in the Criminal Justice Act 2003, to which other colleagues referred. We believe that we have designed a system focused on the circumstances in Northern Ireland. An administrative system would enable us to protect the intelligence material that will provide the basis of many of the arguments in favour of non-jury trials. We must also make sure that we can protect the sensitive intelligence material that will form the basis of the arguments of a non-jury trial. In a judicial process we would have to share that with the defence. The only other way to protect it would be by the use of special advocates, but that is not ideal. Special advocates are a scarce resource for use in exceptional circumstances, not routine cases. It seems to us that in this instance an administrative process is desirable.

The Northern Ireland courts in Shuker decided that that type of decision was one on which, par excellence, the court should be reluctant to intrude. That is the point. The noble Lord, Lord Trimble, suggested that the decision be made not by the DPP but maybe by the Attorney-General. We are reluctant to put forward the case that a Minister in London should decide, in effect, the mode of trial. That is what the decision is; it is about the mode of trial. It is not going to be about the fairness of the trial because no one is going to argue about that. We have enough experience in non-jury trials; it is about the mode of trial. I do not think that it would be satisfactory for a Minister in London to do that; the DPP in Northern Ireland is highly respected.

I turn to Clause 7. I will not get into the legalistic points, although no doubt I will in Committee. Ministers do not consider it an ouster clause in the sense of the other legislation, referred to by the noble Lord, Lord Lester, in this House either last year or the year before. The clause restricts challenges to the Director of Public Prosecution’s decision to cases where there has been bad faith, dishonesty or other exceptional circumstances. That places the current case law about reviews of the Attorney-General’s decision not to de-schedule in Diplock cases on a statutory footing. That comes from the Shuker case, to which the noble Lord referred. That case confirmed that the procedure for determining the mode of trial of the accused is not a process suitable for the full panoply of judicial review.

A case would be reviewable, however, on grounds such as bad faith or dishonesty. The clause is not a change from the current position. In any event, the DPP’s decision is on the mode of trial. The defendant will receive at least as fair a trial without a jury as with one and he or she will suffer no detriment.

The noble Baroness, Lady Blood, asked why the Human Rights Commission was prevented from looking at the past. I cannot match up all the points. Given the way in which noble Lords raised the issues, it is best if I go through their speeches individually. The restriction at Clause 19 applies only to the new powers to compel evidence. The commission will be able to investigate matters from the past as has been the case for the past eight years.

It will be able to call for information from the past, using the Freedom of Information Act, as it can now. However, in granting those significant new powers, we think that it is right today to direct the use of the new powers towards the investigation of current human rights issues. That is the best way to ensure that the commission makes a positive contribution to the future position of human rights in Northern Ireland. We could be stepping very close to the bounds of retrospective legislation, if we are not careful, and I do not think that anyone wants to go down that road. My noble friend Lady Blood asked about the powers of the Human Rights Commission. They will figure largely, and I should rather deal with them in substantial detail in Grand Committee, where we will have a lot more time.

On deciding the model for the devolved department of justice in the Assembly, to which several colleagues have referred, we do not intend to force anything on the Assembly. That is not the Government's desire. We want it to be done locally. I fully accept some of the points made by the noble Lord, Lord Trimble, regarding his erstwhile colleagues from the unionist family, if I may put it that way—that we will work it, but it is best if it is forced on us. I do not know whether that was what he was saying, but I can fully understand that being the case. Over the years, when I was in the other place, if there was something that we wanted but did not want to call for, if it was forced on us, it was easier to deliver locally. That may or may not be a good thing.

We do not want to force anything on the Assembly, but we would not want to have progress falter over the inability to reach agreement on a specific departmental model. So our strong preference is for the Assembly to agree on the model. Make no question about that. The Assembly should first agree on the model. If it is unable to do so, the model in the Bill has been devised after discussion with the Northern Ireland political parties. In the Government's humble view, that represents the best chance of achieving broad acceptance if the Assembly cannot agree on an alternative. If it can agree on an alternative, that is fine.

Of course, that is not necessarily a long-term approach. It has been designed to help the Assembly in the early days of devolution. It will be difficult for the Assembly Members. They will all stand for election and hope to be elected to help to run Northern Ireland. It will not be easy. Since the noble Lord, Lord Trimble, has been in this House, he has given us chapter and verse of the joy and, sometimes, difficulty of taking those decisions. It will not be easy. If we as the Government and as Parliament at Westminster can do anything to make some of those early decisions easier, which can later be amended by the Assembly when trust starts to work and it gels together, that must be a good thing. That is not the Government overriding the legislation for the devolution of policing and criminal justice—far from it.

The noble Lord, Lord Trimble, referred to the fact that Clause 1 refers in three of its limbs—its subsections—to proscribed organisations but not to organised crime. I fully accept the powerful point that he made, but if organised crime is connected with a paramilitary group, the test will be met and a case could be tried without a jury. Because Northern Ireland is changing, where there was not organised crime in the past, it has mutated into a different form. We must deal with that as and when it arises. Our view is that if there is information and intelligence that an organised crime case is connected with a paramilitary group, the test in Clause 1 will be met.

The noble Lord also asked about the opportunity to review the powers annually, or frequently. The Bill provides a power for the Secretary of State to repeal the Armed Forces and police powers by order. Reports of the independent reviewer and the continued monitoring of the use of the powers will provide sufficient transparency concerning the ongoing need for their use. The Secretary of State will seek to ensure that powers remain at the bare minimum necessary for the operational effectiveness of both the police and the Armed Forces by repealing any powers that become unnecessary. So we will repeal any powers that are no longer necessary.

On the primacy of national security, to which the noble Baroness, Lady Harris, referred, the change that we are making will bring Northern Ireland into line with the rest of the United Kingdom and provide a consistent and coordinated response across the UK to the threat from terrorism.

Before I turn to the issue of the Joint Committee, let me deal with an issue that has been referred to by more than one noble Lord—the issue of community-based restorative justice. We note the concerns which have been raised many times in this House and with Ministers about the operation of community-based restorative justice schemes during the two periods of public consultation. It is clear that such schemes will have to comply fully with the rule of law. On 5 February 2007, just a week or so ago, the Government published the Protocol for Community-based Restorative Justice Schemes. The protocol establishes a structure that will provide for effective engagement between community-based schemes and the criminal justice system in dealing with low-level offending, which has the police at the centre of the process and includes stringent safeguards to protect the rights of both victims and offenders. The Government have invited expressions of interest from schemes wishing to adopt the protocol and therefore begin the process of seeking formal accreditation. It has always been our position that formal accreditation of these schemes must involve the police at the centre and that the rules must be followed. I suspect that it has taken a lot longer than we initially intended, but that is where we are at the moment. We put that out for consultation only a couple of weeks ago. I hope that I have covered Clause 42. We will certainly go over it in considerable detail in Committee.

I turn now to the speech of the noble Lord, Lord Lester. I am grateful for all the speeches, all of which have been wholly positive and very helpful to those who will advise me in Committee on how to deal with the pressure points. As for safeguards against decisions of the Director of Public Prosecutions, the argument is that the discretion may be exercised arbitrarily. The DPP is a trusted figure in Northern Ireland. He has conducted himself in an exemplary manner in taking decisions in some of the most difficult criminal cases in the history of Northern Ireland. We have confidence in his decision-making. He will be required to apply the test in the Bill—it is a stringent one—in making any decision for a non-jury trial. That decision will be challengeable, albeit in limited circumstances, and it will be for the courts to decide whether a challenge is possible based on the circumstances of each case. As I have said before, the DPP’s decision is between two different modes of trial; it is not about the outcome of the case. Guilt or innocence will be determined at the trial.

The Joint Committee on Human Rights says that allowing non-jury trial for associates of members of proscribed organisations is too broad a provision. We genuinely note concerns about that. However, we are trying to deal with a situation where a terrorist might use their contacts and a position of influence to secure the acquittal of a relative or close friend. Many of the cases where it is alleged that jury intimidation has occurred have involved actions on behalf of the defendant by an associate rather than direct actions by the defendant themselves. That is borne out by the Northern Ireland Crime Survey 2003-04, which reported that intimidation of victims does not always come from the defendant themselves. The Joint Committee has accepted in principle the need for a non-jury trial where there is a danger of jury-tampering or perverse verdicts. Such a risk exists in relation to associates. The DPP will be able to issue a certificate for non-jury trial where he is satisfied that there might be a risk to the administration of justice. This will help to ensure that there is non-jury trial only where it is needed. There will be exceptional cases. We accept that the terms “friend” and “relative” are broad; this is deliberate. The DPP will take into account the quality of the relationship when forming a view about the potential risk to the administration of justice. For example, one could be estranged from one’s parents but very close to a second cousin.

To have a test that did not permit non-jury trial in the circumstances that I outlined involving potential tampering by associates could put jurors and their families at risk of intimidation and could lead to an unfair trial. That is the risk, and it is completely unacceptable. The whole point is that we want the trial to be fair. We would prefer that it was with a jury. The presumption is for jury trials; that is our starting point. But in the most exceptional circumstances, where there is a risk of the trial not being fair because of interference with the administration of justice, we would go with the DPP’s decision for a non-jury trial.

The DPP would need to be satisfied that other measures are inadequate before issuing a certificate for a non-jury trial—a point which was raised by the committee. The Bill contains a number of measures designed to reduce the risk and fear of jury intimidation. Other juror protection measures that do not require legislative change, such as increased use of screens from the public parts of courtrooms, are planned. However, we recognise that in exceptional circumstances these measures will not be able fully to address the problem of juror intimidation. For example, the screening and balloting of jurors by number rather than by name will not prevent jurors being recognised by the defendant or while entering and leaving the court building. In a small jurisdiction such as Northern Ireland, the only other measures that could be taken, such as relocation, would have such a large impact on the life of the juror and his or her family that it is too high a price to pay. It is important to recognise that the jury reforms will be available for all cases, not just those where intimidation is considered possible.

On the question of whether the decision of the DPP should be a judicial one—a point raised by the noble Lord, Lord Glentoran, who said that it should be the decision of the Lord Chief Justice—we think that the DPP is in the best position to assess the risk. The decision will be akin to the decision on whether to prosecute; it is that kind of judgment. On a scale of decision-making, it is more akin to the decision to prosecute. We do not believe that it is a decision to be taken by the Lord Chief Justice for Northern Ireland or by judges. The DPP already makes decisions about mode of trial in Northern Ireland and the provision will sit well within that. We believe that we have designed a system that focuses on the particular circumstances of Northern Ireland. An administrative system will enable us to protect the intelligence material that will provide the basis of many of the arguments in favour of a non-jury trial. In a judicial process we would have to share that material with the defence. As I said, the only other way to protect this material would be by the use of special advocates, and that is not ideal. In the case of Shuker, the Northern Ireland courts themselves decided that this type of decision is one that, par excellence, the courts should be reluctant to intrude into. As I said, I will go into that in greater detail in Committee. And as I said to the noble Lord, I will read the judgment itself.

My Lords, I interrupt only to be helpful. I would be grateful if the Minister would consider the following point: if he can give either on judicial review, on the basis of what was said in Shuker, or involve the Lord Chief Justice of Northern Ireland, either of those solutions might be practical. The removal of both gives rise to the problem.

My Lords, I accept that; clearly I shall have to come before the Grand Committee briefed to deal with it. This is not a question for decision at Second Reading. These are issues of concern to the Joint Committee and they must be treated seriously. I am being reminded by my noble friend and colleague Lady Farrington that she will hit me if I do not sit down in a moment.

I want to make a further point in response to the noble Lord, Lord Lester. Paragraphs 1.88 and 1.89 of the Joint Committee report suggest that the Bill should require members of the Armed Forces to state reasons for arrest. The Armed Forces power of arrest is limited to four hours. Within that time and as soon as possible the person will be rearrested by a police officer who has been trained to read to the individual their rights and cite what offence they are being arrested for. So I hope that people will be told why they are being arrested. It would not be possible to train members of the Armed Forces to the same standard as a police officer, particularly given that these powers will be used very rarely. Although the Armed Forces currently give a broad description of why they are arresting someone, throwing a petrol bomb for example, it is not necessary or easy to turn this into a statutory obligation. Rearrest within four hours by the police means that the power is human rights compliant. I accept that the noble Lord is worried about cases leading to declarations of incompatibility, but we are confident that that will not happen. The Army has been using similar powers for years without such a declaration. There is a bit of history to this; it is not new.

In the last part of the Joint Committee document, paragraph 1.96 refers to powers to ensure that searches for munitions and transmitters are not disrupted and may not be compliant with Article 5 of the convention, on the right to liberty. These powers normally amount to a restriction of liberty rather than detention. The important distinction was recognised by the House of Lords in recent case law. Where Article 5 of the ECHR is engaged, the power can be justified in terms of seeking to secure the fulfilment of an obligation proscribed by law and to safeguard the public in explosives cases. We intend to provide some further guidance on exercising that power.

It is essential to remember that these powers are necessary to ensure the safety of the officers involved and the public. They will be used in a limited manner and only when necessary. There are other points, and I accept that I have not answered all of them, but they will certainly come to Grand Committee.

I need to answer two points made by the noble Lord, Lord Glentoran, as a courtesy. On whether the Security Industry Authority is equipped to deal with paramilitaries, we are confident that it can meet the challenge. Officials are working with the SIA and the police to address the issue. I realise that there have been some administration and bureaucracy issues, with a lot of last-minute applications, which is always the case and can lead to difficulties.

The noble Lord mentioned small venues which are not covered by the Safety of Sports Grounds Act and asked whether they will be burdened with SIA regulation. We do not wish to place unnecessary burdens on smaller sports venues in Northern Ireland, but we are obliged to ensure the safety and security of all citizens in Northern Ireland. Our officials are in discussion with the Department of Culture, Arts and Leisure and the Sports Council for Northern Ireland about the issue. It is a matter that will require further consideration.

As for whether stewards will be covered by the legislation, the Security Industry Authority considers the full range of activities that an individual performs when deciding whether they are to be licensed. For example, checking tickets, directing spectators or visitors and providing safety advice are not normally licensable activities. These activities would be licensable only if they were undertaken together with a manned guarding activity. I have lots of brief on definitions of manned guarding activity, but we do not need to go into that now.

I am grateful for the contributions that we have received. I sincerely hope that we will have a successful Grand Committee. There is a fair amount of time between now and the first Grand Committee sitting; I do not have the date but it is a few weeks away. There is enough time for informal discussions and for amendments to be suggested. We are open, as is known, to making officials available to Members to see what they want to achieve, what is possible and whether we can have the necessary debate.

On Question, Bill read a second time, and committed to a Grand Committee.

House adjourned at 6.20 pm.