House of Lords
Tuesday, 20 February 2007.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Coventry.
Police: Art and Antiquities Unit
My Lords, operational matters are the responsibility of the commissioner. Under Section 93 of the Police Act 1996, a police authority may accept gifts or loans, including commercial sponsorship, for any activity of the authority or of the police force it maintains. It is for the authority to determine the appropriate terms for the acceptance of such gifts or loans. The control and tasking of officers in sponsored posts remain with the chief officer of the force concerned.
My Lords, I am grateful for that reply. The Minister will be aware of the very fine reputation enjoyed by the Metropolitan Police’s art and antiquities squad; the only specialist art squad in this country, which I believe numbers four officers, compared to 250 in Italy. But is the Minister confident that there is not the risk of a conflict of interest here? I am sure that the police would not invite drug barons to fund a drugs squad, but is there not the serious risk of a situation arising where he who pays the piper calls the tune?
My Lords, I do not believe that there is, because operational control remains with the commissioner, not the sponsors. Like all UK police forces, the Metropolitan Police is open to accept offers of sponsorship and support. So far as I am concerned, this arrangement works perfectly well.
My Lords, can my noble friend confirm that the Metropolitan Police’s Art and Antiquities Unit consists of just four police officers and three civilians—hardly an unaffordable burden on the Home Office budget—and polices upwards of 37,000 people; the second-largest art market in the world? That market is easily made a conduit for fraud, money laundering and the funding of organised crime. Without casting any aspersion on the integrity and competence of the present staff, if it is to be a condition of the continuation of the unit that it raises half its costs in sponsorship, will not this be an open invitation to corruption and, in the real sense of the term, a cop-out?
My Lords, I am grateful for that last line but I do not believe that it will be a cop-out. So far as I understand it, there is no threat to the current staffing levels of the unit. I also understand that, because of the valuable work that is undertaken by special constables, there has already been expansion of the unit’s activities. I do not think that one should have any doubt about the competence of those working in the unit; it is very competent. The Metropolitan Police is in a sense seeking funding so that it can expand the unit’s range of activities.
My Lords, the Minister says that he is very happy with the competence of the unit. I would be surprised if a Minister was unhappy with four people managing the £100 million area of art theft. Will the Minister say whether the 14 special constables plus four full-time staff will be able to deal with the money laundering activities of those who use art for money laundering, and especially those who are importing artefacts from Iraq that have been looted and are being sold on the British market?
My Lords, it is obviously for the commissioner to determine operational priorities, and he believes that he has it about right. There is a desire to expand the unit, and seeking sponsorship to enable that to happen is very important. The unit gets very useful back-up and support from special constables, many of whom come from the sector that is most affected and have knowledge and experience. There is great confidence in this unit, which does a very valuable job.
My Lords, having heard my noble friend Lord Renfrew explain how many policemen are engaged in this activity in Italy, does it not seem absolutely self-evident that the case here should be for more personnel dealing with this extremely serious branch of illegal activity?
My Lords, I return to the point that I have made already. Clearly, the commissioner is very well aware of the problem; indeed, I am sure he could not fail to be otherwise. But this is a matter for his judgment on operational grounds, and that is the best way for us to leave it. I have little doubt that the commissioner will pay very close attention to what noble Lords have said today.
My Lords, is the noble Lord not concerned about the dispersal of police expertise in this area, following the experience of police officers who have been released from the stolen vehicles squad, with the resulting increase in crime in that area? Is he confident that this group of very expert and experienced police officers will remain in place and will be able to prevent the kind of escalation in crime that we are seeing in vehicle crime?
My Lords, I do not believe that this unit will be dispersed. It is the intention of the Metropolitan Police to try to find ways of expanding its range of activity. Although the unit is small in relative number terms, it can draw on, and is part of, the wider activities of the Metropolitan Police, and it works with other police forces using its knowledge and expertise.
My Lords, in the interests of joined-up government, and bearing in mind the Government’s accession in 2002 to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, bearing in mind the sacking of the Baghdad museum in 2003, which led to the passage of the Iraq (United Nations Sanctions) Order 2003, and bearing in mind the passage through this Parliament of the Dealing in Cultural Objects (Offences) Act, does it not seem perverse for the Government at this moment to cut resources, particularly when the departments concerned are aiming to take more measures to stem the illicit trade in cultural objects?
My Lords, I thought that I had made this clear. There is no intention, as I understand it, in the Metropolitan Police service to cut the activity of this unit; far from it. The intention is to seek further support so that the activities of the unit can be expanded, no doubt for the very reasons that the noble Baroness and other noble Lords have given voice to this afternoon. It does a very valuable job, and it has a very good track record. It is greatly respected across the industry, and no doubt the continued support that it enjoys here and in other places will be much welcomed.
Council of Europe: State Immunity
My Lords, we have carefully considered the recommendations made by the secretary-general in the context of his inquiry into extraordinary renditions. However, as stated in the other place on 23 November, the Government believe that domestic legislation and international legal instruments already exist to deal satisfactorily with the concerns that he has raised. The UN Convention on Jurisdictional Immunities of States and their Property was concluded in 2004, after a period of prolonged negotiation. We see no advantage in reopening this issue in a Council of Europe forum.
My Lords, I thank the Minister for her reply. I recognise that this is a complex and sensitive area of law, in that it deals with diplomatic relations between countries. Nevertheless, does the Minister agree that, for several years now, serious human rights crimes have no longer been considered the internal affair of a given country but concern the international community as a whole? Would not, therefore, a review of the rules on immunity, under the aegis of the Council of Europe, be a good thing?
My Lords, the noble Baroness is absolutely right: these are matters of international concern. For that reason we believe that they are best discussed within the forum of the UN. They were last discussed in the UN in 2004, when there was absolutely no consensus on these issues.
My Lords, can my noble friend confirm that the doctrine of state immunity arose from the concept of state sovereignty and that its purpose was to facilitate diplomacy and conflict resolution and so to protect people? Does she accept that it ought not to be used to prevent people from being protected? Does she agree with Kofi Annan that no legal principle, not even sovereignty, should be permitted to shield crimes against humanity?
My Lords, indeed, prevention is absolutely key in these matters, and no law should be used to shield people who have committed atrocities. We hope that perpetrators of serious human rights violations will be tried by courts that have jurisdiction over them, but not every court has jurisdiction over wrongdoing in every part of the world.
My Lords, is the Minister aware that her answers will bring dismay across the Council of Europe? In her Answer, she suggests that the United Nations is the right place to deal with this matter rather than the Council of Europe. Is it not the case that this country is bound by the European Convention on Human Rights, that it is a member of the Council of Europe and that the Secretary-General of the Council of Europe has identified a pressing problem, which is that the exceptions for human rights to state immunity are not sufficiently clear because they do not go beyond torture and deal, for example, with what is euphemistically called enforced disappearance? Would she ask her colleagues to reconsider their position, to support the Secretary-General of the Council of Europe and to ensure that we have a British representative on the ad hoc committee with a view to producing a proper international instrument on that?
My Lords, I well understand the disappointment of the Council of Europe on these issues. As I understand it, the ad hoc committee does not as yet exist, one reason being that no member state has put forward any names. I believe that support for the secretary-general’s report is very slim among member states, so the UK is not alone in its attitude towards these issues and in its feeling they are best discussed and agreed in the United Nations, which now has a responsibility to protect.
My Lords, does my noble friend accept that whereas what she says about support being very slim among the member states in the Council of Europe might be correct, that is not the case among members of the Parliamentary Assembly of the Council of Europe, where parliamentarians from right across the European continent meet and overwhelmingly support the view expressed by Mr Terry Davis, the secretary-general?
My Lords, it is time for the Conservatives.
No, my Lords. Perhaps the United Nations has not been doing enough—the UK Government are pressing it to move much further than it has in Darfur—but resolutions have been passed, discussions are taking place in the Security Council and there is action in Darfur thanks to the UN’s actions.
My Lords, does the Minister agree that, while getting improvement in the laws from the United Nations must be the ultimate objective, an agreement in the Council of Europe would increase pressure on the United Nations to accept laws that reduce immunity?
My Lords, can we make it clear that the principles underlying the Council of Europe’s report are ones that we sign up to? The problem as I understand it is that the ad hoc committee is made up of 46 members, if it is set up, and it is split into three sub-committees: on state immunity, air transport and the secret services of existing members. That is a very convoluted way of reaching agreement on something that we are already negotiating or have agreed in the UN convention and some of the other conventions—and, indeed, in our own domestic law. We must emphasise that the principles are right but that it is important to pay some attention to the efficiency of going about reaching agreement.
asked Her Majesty’s Government:
How many post offices and sub-post offices have closed since 1997; and whether they have established a minimum number of offices in rural and suburban areas to reflect the Government’s policy on sustainable local communities.
My Lords, since 1997, 21 Crown post offices have closed, and there has been a net reduction of 4,818 sub-post offices, including the managed closure of 2,486 urban sub-post offices under the urban reinvention programme. The Government’s proposals for the future of the post office network, which I announced in your Lordships’ House on 14 December last, set out access criteria to ensure that communities across the country continue to have nationwide access to post office services.
My Lords, I thank the Minister for that reply. On the point he raises about access, it is said that there will be access to a post office within three miles. Will he confirm that? But it will still be of no help to elderly, vulnerable people living in hamlets where there is a post office under threat of closure. Only yesterday we were told by the Lord Chancellor that this is “a listening Government”. Did the Government listen to the 4 million people who signed a protest last year saying, “Please don’t close these post offices”? It seems that a relentless move is on to close ever more of these post offices; but they are lifelines for some people. Are the Government now putting commercial issues way above social requirements?
Absolutely not, my Lords. Of the 14,300 post offices that exist, only 4,000 are commercially viable. The Government are putting in an investment of £1.7 billion between now and 2011, and we have spent £2 billion supporting the social post office network since 1999. Those are significant funds. I can confirm to the noble Baroness that 99 per cent of the population will be within three miles of the nearest outlet. I also remind her that under the previous Conservative Administration, between 1979-80 and 1995-96, 3,225 post offices were closed.
My Lords, I am sure that the Minister will agree that quality of life is high on the political agenda these days. Everyone is talking about it. The rich are getting richer and the poor seem to be left; quality of life is vastly important. Does he agree that post offices which are at the heart of communities enhance quality of life?
My Lords, does the Minister accept that if the post office network is to be maintained at a level which I know all sides of this House would wish to see, then significant creative thinking will be required by the Government, because this cannot be a question just of subsidy? If it is simply a question of subsidy, then, as I am sure the Minister will accept, there will be significantly more post office closures. Is he aware of the work that, for example, Age Concern has done? It advocates a social enterprise model which will require action not only from his department but from Defra and can provide small grants and specific skills to help to ensure an increase in the post office network.
My Lords, I welcome Age Concern’s work in this area. The Government are making efforts to ensure that, for example, small remote communities are reached by establishing 500 outreach outlets which will include mobile post offices and services in village halls, community centres and pubs.
My Lords, is the Minister aware that the Church of England, along with the Methodist Church and the United Reformed Church, has recently been negotiating with the rural division of the Post Office to seek innovative ways in which church buildings and chapels might host some of the services being displaced by the closure of rural post offices? If he is aware of that—indeed, even if he is not—will he bring his influence to bear on the heritage lobby to ensure that when adaptations of buildings are proposed, it will be lenient in its approach to those proposals? Will he also confirm that when such projects come to fruition, adequate funding is in place to cover the start-up costs?
My Lords, does the Minister agree that rather than just going through this artificial process of establishing a minimum number of post offices, it makes more sense to establish a minimum use for post offices if they are to be kept open? Otherwise it makes a complete mockery of the laws of supply and demand which Members opposite usually worship in every other respect.
My Lords, my noble friend makes a valid point. Post offices have been losing £4 million a week in the past year. An average of 16 people a week use each of the 800 smallest rural post offices, at a cost of £17 per visit. That is clearly not sustainable. We will look at that when we consult on the future of rural sub-post offices.
My Lords, my noble friend chose to ask her Question in National Post Office Week. As we speak, a huge rally is taking place in the Methodist Central Hall. Thousands of people are over there, fighting for their post offices. Does the Minister agree that the local post office is an ideal location for a bit of constructive thinking on how to deliver the range of local and central government services that the general public in this country would expect from a Labour Government?
“We are committed to securing the future of a sustainable Post Office network with a full range of services, including an enhanced Post Office Card account”.
That is the joint statement from the people who are meeting in the Methodist Central Hall. I am happy to endorse it.
Iraq: Destruction of Hercules C130
My Lords, a Hercules C130 on a routine mission was involved in an incident on landing in Maysan on 12 February. The initial investigation suggests that it was struck by an improvised explosive device similar to a roadside bomb. After assessment of the damage, it was concluded that the aircraft could not be recovered without undue risk to personnel so the aircraft was destroyed by UK forces. The current market value of a C130J is in the region of £45 million.
My Lords, I am most grateful to the Minister for a very full and helpful Answer. I am glad that none of the crew aboard the aircraft suffered serious injury. How does he reconcile the very positive statements about the security situation in Maysan province, which we were talking about handing over to the Iraqis, with the fact that we have just destroyed £45 million worth of aircraft and, perhaps more importantly, a key enabling capability with the modern C130J?
My Lords, it is in the nature of the operations that we carry out; I can understand the noble Lord’s point. We need to recognise that Maysan province is relatively peaceful, but relative for Maysan, which has always been rather the wild west within Iraq. We are reviewing closely the security situation in Maysan province. We still believe that it will be possible in the relatively near future—we believe in the spring—to make the transition to the Iraqi security forces in that province. As we have always said, that strategy and its implementation are based on conditions on the ground.
My Lord, how many C130 aircraft have been lost since January 2006? Bearing in mind the acute, acknowledged difficulties that the air transport force is having in meeting the requirements in two theatres of war, what steps are Her Majesty’s Government taking to replace the lost C130 aircraft?
My Lords, if my memory is correct, this is the second such C130 aircraft that we have lost; but if that is incorrect, I shall write to the noble and gallant Lord. We have a fleet of 25—now 24, with this loss—C130J aircraft, together with the C17 and the other aircraft in the air transport fleet. We regard that we have the necessary assets and recognise the pressure that the fleet is under. The necessary replacement for the lost aircraft is in transit as we speak, and we believe that we can continue to maintain a full operation in the region as a result.
My Lords, I am satisfied that we are doing absolutely everything to provide all the protection that we can for our helicopters. We have invested upwards of £500 million in force protection across our operations, but we must recognise that those operations are dangerous; they are not risk-free. Despite all the action that we take and the professionalism, skill and bravery of our Armed Forces, they are dangerous operations. However, we are doing everything that we can to ensure the protection of our forces.
My Lords, following up the question of the noble and gallant Lord, Lord Craig, surely it is not good enough for the Minister just to say that we are down from 25 to 24 C130Js. This is an operational cost and it is above the attrition rate that was planned when the aircraft were procured. Should not the contingency fund purchase a replacement aircraft?
My Lords, it was not my intention to give that impression; I appreciate the opportunity to clarify that. It is a fleet of 25, and we have lost another C130J; therefore, following the normal procedure of a board of inquiry into this loss, there would be an application to the Treasury to the reserve under the normal procedure of recuperation for an aircraft lost owing to enemy action.
Bournemouth Borough Council Bill [HL]
Read a second time, and committed to a Select Committee.
Manchester City Council Bill [HL]
Read a second time, and committed to a Select Committee.
Cluster Munitions (Prohibition) Bill [HL]
Read a third time, and passed, and sent to the Commons.
Tribunals, Courts and Enforcement Bill [HL]
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Tribunals, Courts and Enforcement Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 18 [Limits of jurisdiction under section 15(1)]:
1: Clause 18 , page 15, line 3, leave out “3” and insert “4”
The noble and learned Lord said: My Lords, I moved a similar series of amendments on Report. I did not press the amendments on the understanding that there would be further discussions with the noble Baroness in order to meet certain concerns that the Lord Chief Justice had expressed. Such discussions have now taken place, with the result that I have added a new paragraph (b) to the proposed subsection (7A). This, I believe, gives the Lord Chief Justice and the Senior President of Tribunals all the flexibility to which they are entitled, while at the same time preserving the principle that I and others regard as so important. I have confirmed that the Lord Chief Justice is content with the amendment in its present form. That deals with Amendments Nos. 1 and 2.
As to Amendments Nos. 3, 4 and 5 my view is, has been and remains that they are a logical corollary of Amendments Nos. 1 and 2; others take a different view. Since, on any view, they are not a necessary corollary to Amendments Nos. 1 and 2, which can stand perfectly well on their own, I would be willing not to move Amendments Nos. 3, 4 and 5 if the noble Baroness could see her way to accepting Amendments Nos. 1 and 2. If, between now and the time when the Bill reaches the Commons, she can find a way of incorporating the substance of Amendments Nos. 3, 4 and 5 to everyone’s satisfaction then that would obviously be even better. I beg to move.
My Lords, I rise to express satisfaction that there has been such dialogue with the Lord Chief Justice. That appears to have arrived at a conclusion that both combines the objective of ensuring that judicial review is properly conducted in the upper tribunal by those with the authority to do so, and to discharge that extremely important role to complete satisfaction.
It is also satisfactory that the Lord Chief Justice has found an administratively convenient way to seek to give effect to the principle behind the amendments of the noble and learned Lord, Lord Lloyd of Berwick. We supported the noble and learned Lord’s earlier proposals and we are happy to transfer our support to the amendment today. We hope that it enjoys a positive response from the Government.
My Lords, I support Amendments Nos. 1 and 2. Judicial review is a discretionary remedy, in which the powers of the upper tribunal are set out in Clause 12. The exercise of such powers requires judicial expertise, as proposed by these amendments, as a safeguard for due administration.
Statutory provision as judicial review, which this is, in no way alters the essence of the discretion, which goes to the root of the grant of leave and the grant of relief on substantive hearing. There is no entitlement to grant of leave and no entitlement to relief on hearing. This form of judicial relief, taken from the old prerogative writs, has been developed since the last war, which was not so long ago, in a form of administrative law by judge-made decision in the High Court and the Court of Appeal, and will no doubt continue to do so. We are concerned here with a point of law. True, if proportionality arises—which can, but need not, be a point of law—the facts must come into consideration. That is a matter of very expert judicial attention, not to be exercised by anyone other than a High Court judge or a member of the Court of Appeal.
It is not always understood, so I shall say so, that this process is not an appellate process. It is not concerned with the merits, but with what is, in a sense, a technical, procedural question in which this expertise, as proposed in these amendments, is wholly essential.
My Lords, my name is also affixed to Amendments Nos. 1 to 5. Clauses 15 to 21 introduce a remarkable constitutional innovation. For the first time, the power to exercise judicial review jurisdiction has been delegated to a judicial level other than the High Court. That is, as a matter of principle, a remarkable change.
For that reason, the noble and learned Lord, Lord Lloyd of Berwick, and I introduced an amendment on Report requiring that the only judges to sit on the upper tribunal to hear judicial review matters be High Court judges—that is the High Court judges who sit in the Crown Office, now renamed the administrative court, to hear judicial review matters.
We were reluctant to dilute this principle. However, as is his duty, the Lord Chief Justice has pointed out that the volume of business likely to ensue in the upper tribunal in relation to the number of available High Court judges will, inevitably, mean that, in some circumstances, judges other than High Court judges will be required to sit. That is why the amendment has been modified in this way. The Lord Chief Justice is squarely on the face of the Bill and his responsibility is engaged to ensure that those judges, other than High Court judges, who will sit in the upper tribunal to hear judicial review matters, are of appropriate rank and quality.
I should like to underline everything that the noble and learned Lord, Lord Lloyd, has said about his satisfaction with the conclusion that has been reached. I am likewise satisfied.
My Lords, I am extremely grateful to the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Kingsland, not least for the work that they have done today in helping us to reach what I hope will be a very satisfactory conclusion. I am extremely grateful that the noble and learned Lord, Lloyd of Berwick, and the noble Lord, Lord Kingsland, have tabled revised amendments, which incorporate the flexibility that this whole Bill seeks to achieve for tribunals.
Amendments Nos. 1 and 2 retain the noble and learned Lord’s original concept: that judicial review cases transferred to the upper tribunal are to be heard by High Court judges or their equivalent. They also acknowledge that the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland, together with the senior president, can agree on others they consider suitable within the terms just described by the noble Lord, Lord Kingsland.
On Report, the noble and learned Lord, Lord Lloyd of Berwick, tabled amendments which would have permitted only High Court judges or their equivalents to hear applications. The noble and learned Lord did not press the amendments and we agreed to explore further, not least with the Lord Chief Justice, what we might then do. The Lord Chief Justice wrote to me on 7 February and set out his thoughts, copying his letter to the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Kingsland, the noble Lord, Lord Thomas of Gresford, and Lord Justice Carnwath. The Lord Chief Justice was sympathetic to the issues raised, but did not support this amendment, because,
“some cases in the Upper Tribunal will need High Court judges to hear them, and I intend to make such judges available to sit on those cases. However, it is imperative that there is flexibility in relation to the circumstances where cases should be transferred to the upper tribunal, and flexibility as to who they will be heard by”.
That flexibility would be disturbed if the Bill included a provision limiting such cases to High Court judges, regardless of the circumstances of the case. There are some persuasive examples of cases where judges of the upper tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases, for example, have been mentioned in our discussions.
Given that Amendments Nos. 1 and 2 meet the requirements of the Lord Chief Justice, as well as those of the Government, I am pleased to be able to accept them. I am sure that, as the noble and learned Lord has said, as the Bill progresses, we will look again at Amendments Nos. 3 to 5. We will, of course, look at Amendment Nos. 1 and 2 to make sure that we have got this absolutely right. I am delighted to accept Amendments Nos. 1 and 2 and I am grateful to the noble and learned Lord for agreeing not to press Amendments Nos. 3 to 5.
My Lords, I am also grateful to the noble Baroness for the courtesy that she has shown me throughout. I ought, perhaps, to apologise to the House for not repeating the speech I made on Report on the importance of preserving the distinction of the High Court judge. I thought that could be taken as read. Anyway, the point has been underlined, both by the noble Lord, Lord Campbell, and of course, by other speakers.
On Question, amendment agreed to.
2: Clause 18 , page 15, line 21, at end insert—
“(7A) Condition 4 is that the judge presiding at the hearing of the application is either—
(a) a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or (b) such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals.”
On Question, amendment agreed to.
Clause 19 [Transfer of judicial review applications from High Court]:
[Amendments Nos. 3 to 5 not moved.]
Clause 24 [Mediation]:
6: Clause 24, page 21, line 1, leave out “of the First-tier Tribunal or the Upper Tribunal” and insert “appointed under section 40(1)”
The noble Baroness said: My Lords, in moving Amendment No. 6, I shall also speak to Amendments Nos. 7 to 10 and 15. In accepting the amendment tabled on Report by the noble Lord, Lord Goodlad, which restored to the Bill a clause governing mediation, I undertook to table consequential amendments at Third Reading to ensure that what is now Clause 24 fits properly back in. Amendment No. 6 tidies up the terminology to refer to all tribunal staff appointed under Clause 40(1), so that they can act as mediators wherever they work in the Tribunals Service.
Amendment No. 7 deletes Clause 24(6) to (9) to enable some restructuring of the role of ACAS and the payment of fees to mediators. Subsection (6), which requires consultation with ACAS before a practice direction can be made in relation to mediation, has been removed from Clause 24 because ACAS needs to be consulted only in employment cases.
Amendment No. 15 restores to Schedule 8 the provisions extending the mediation principles to the employment tribunals, which were originally included in Schedule 8 to the draft Bill. There are, however, some important differences. In subsection (4), the reference to tribunal staff has been broadened to include all tribunal staff. References to fees have been deleted—I shall explain why shortly—and the definition of “member” has been changed to make it clear that mediation may be carried out by members other than those assigned to the tribunal to hear the particular matter. I should explain that one provision that appears in the new Clause 24 has been omitted from the parallel provisions in Schedule 8. This is the stipulation that tribunal procedure rules or practice directions must be made with regard to the principles that mediation is to take place only by agreement between the parties in dispute, and that the failure of mediation is not to affect the outcome of the proceedings. This is a very deliberate distinction. It is accepted that the employment tribunals should remain outside the new tribunals structure, and that they will retain their own rules and policy priorities in some areas. This is due to their different character and their party versus party nature rather than their administrative nature.
The Department of Trade and Industry is currently undertaking a review of dispute resolution, which is due to report shortly. Against that background, we felt that it would be wrong to put anything in legislation now that might pre-empt the outcome of the review, or to fetter the discretion of the Secretary of State for Trade and Industry in this area. However, I emphasise that the omission of these provisions from Schedule 8 should not be taken to imply that the Government intend to force mediation on parties who are not willing to agree to it; it does not. Anything that the Government might eventually decide to do that changes the current position on mediation in employment tribunals would be subject to parliamentary scrutiny.
We decided to omit from Schedule 8 the provision that the failure of mediation is not to affect the outcome of the proceedings, because it would proscribe the use of an award uplift or reduction. The Department of Trade and Industry regards this as a legitimate tool to encourage settlement, and this is reflected in current arrangements under Section 31 of the Employment Act 2002. Under that provision, an employment tribunal may enhance or reduce an award dependent on the parties’ efforts on completion of the three-stage procedure. Again, we do not want to upset existing arrangements or to pre-empt the results of the review. Noble Lords may have seen an earlier version of the amendment to Schedule 8 in which the distinction between it and Clause 24 was not drawn. I apologise for any confusion that that may have caused.
Amendments Nos. 8 and 10 restructure the provisions on fees. Amendment No. 8 amends Clause 42 to enable the Lord Chancellor to prescribe by order the fees payable in respect of mediation conducted by any tribunal staff. This replaces the two references to fees in Clause 24 and Schedule 8. Amendment No. 10, to Clause 49, ensures that fees payable for mediation are subject to the negative procedure.
On orders setting fees for mediation by staff, the consultation draft of the Bill provided only that the orders be laid before Parliament. The Government believe that the negative procedure provides an appropriate level of control for orders setting the level of such fees, as the House has already accepted the principle that fees may be, but do not have to be, charged.
Finally, Amendment No. 9 was prompted by the mediation amendments and adds the words “a resolution of” after “approved by” to ensure clarity of the desired procedure before the House. I beg to move.
My Lords, I thank the Minister first, for accepting the amendments that I moved on Report with the support of my noble friend Lord Newton of Braintree, my noble and learned friend Lord Lyell of Markyate, the noble Lord, Lord Thomas of Gresford, and my noble friend on the Front Bench. Secondly, I thank her for her explanation of the consequential amendments, which have resulted from her further consultations. I would be happy to support them and thank her for her part in a helpful scrutiny, making this a stronger Bill than it would otherwise have been.
My Lords, as one of my noble friend’s accomplices in this matter I join in thanking the Minister for her positive response. I noticed the difference, to which she has referred, between the new clause inserted on Report and the modification of Schedule 8 proposed today in her amendment. I was going to quiz her about it but she has predicted that someone would, so I will not. Having met those conducting the review of employment tribunal matters only last week, I understand the noble Baroness’s point and think it is a reasonable explanation of the difference.
I have one other more general point, on which the answer may be clear to the lawyers who read the provisions but not to me. They seem to be couched in terms of which staff or members of tribunals can carry out mediation or receive fees for it. However, very few staff currently in the system will be trained in, or have experience of, mediation. Outside the tribunal service a significant number of people have experience in and are trained in mediation. If the Minister cannot give me an answer to my question off the cuff, I would like her to write to me. Is it envisaged that it will be possible to use people outside the service to provide mediation? It would seem sensible to at least provide for that opportunity.
My Lords, I am grateful to the noble Lord, Lord Newton of Braintree. I can confirm that it would be possible under the legislation to use those outside the tribunal. I am extremely grateful to the noble Lord, Lord Goodlad, for welcoming these tidying up amendments and recognising the change that I made. I hope that noble Lords will accept the amendments.
On Question, amendment agreed to.
7: Clause 24 , page 21, line 4, leave out subsections (6) to (9)
On Question, amendment agreed to.
Clause 42 [Fees]:
8: Clause 42 , page 33, line 33, at end insert “, and
(e) mediation conducted by staff appointed under section 40(1).”
On Question, amendment agreed to.
Clause 49 [Orders and regulations under Part 1: supplemental and procedural provisions]:
9: Clause 49 , page 37, line 23, after “by” insert “a resolution of”
10: Clause 49 , page 37, line 28, leave out “42(1)” and insert “42(1)(a) to (d)”
On Question, amendments agreed to.
11: After Clause 69 , insert the following new Clause—
Within twelve months of Royal Assent, the Secretary of State shall lay before Parliament regulations to create a specialist regulator of enforcement agents that will—
(a) licence enforcement agents, (b) approve the businesses and organisations that employ them, (c) accredit the professional bodies that represent them, (d) set standards of conduct, (e) monitor performance, (f) investigate complaints, and (g) punish failure to comply with standards of conduct and order redress where appropriate.”
The noble Lord said: My Lords, perhaps I may start by being nice and saying that the Minister and her whole team have been immensely helpful in dealing with bailiff regulation since the Bill first appeared. I am grateful to them for their time and effort. However, I think that they have taken a severe wrong turning in trying to cobble together a regulator out of the Security Industry Authority and various other bits of legislation that they happen to have lying around. It will be extremely difficult to get it right and it will require a lot of perseverance and diplomacy to make it happen at all. The noble Baroness has those characteristics; I hope that she remains in her place for long enough to do it.
The Government have chosen to go for a mix of Security Industry Authority and existing DCA powers to try between them to provide for a regulator that will come up to scratch in regulating bailiffs. It will clearly take a long while to get there. Today I am aiming, not to impose on the noble Baroness my own idea of what a regulator should be—I hope that this is a fight that will carry on into the Commons and that they might do that—but to obtain from the Government a commitment to see the matter through to the end. Where we are now is where we began in 1992 when it first became apparent that bailiffs were misbehaving in their enforcement of poll-tax debts. That misbehaviour has carried on unabated; indeed, it has been exacerbated because so many more aspects of our lives are now frequently attended to by bailiffs, notably congestion charges and other incidental taxes on motorists. The more time passes and the more fixed penalties are invented to avoid lengthy procedures for our police force, the more bailiffs will come into the necessary matter of enforcement at the end of the day. From the many people who have written to me, I know that it is enormously important that that serial and compounded injustice is brought to an end in a way that preserves the revenue of the Government and their various offshoots and preserves the principle that those who are owed money should pay it. It is crucial to get that right.
My amendment sets out the principal matters on which I am looking for a commitment—I emphasise the word “commitment”. We all hope that we will go in the same direction; but I want a commitment. Paragraphs (a) and (b) are self-explanatory: not only are we looking for the individual bailiff to be regulated but also the people who control bailiffs; otherwise it is too easy to maintain the fiction that people are running a reputable bailiff business but allow individual bailiffs to misbehave below that. It must bite on those such as Equita, a subsidiary of Capita, which is a very reputable company. They must realise that they must behave.
It must involve setting standards of conduct which have consequences for a bailiff. It must be known both to the bailiff and to the people whom they are dealing with what standards of conduct are expected. That must be made evident at the beginning of the process, as the High Court bailiffs do now. The first part of the transaction is that the debtor is handed a leaflet or leaflets explaining the procedure and their rights, so that everything is clear from the outset and we do not have the licensed deception that we have at present.
The regulator must monitor performance. It must be an active regulator, but not an overbearing one. One or two of the smaller bailiffs have written to me to say that they really do not want a body that will charge them immense fees just for the pleasure of investigating them. I hope that the process will result in an industry that largely behaves; none the less, there must be monitoring.
My Lords, I shall be satisfied whichever direction the Government take on that, so long as it is understood that the regulator has that ability. As the noble Lord says, or implies, monitoring without a complaint tends to evolve into monitoring for its own sake.
When I take my daughter to nursery school, I have to sign her in and out morning and evening. Why? No one will use that register. It is just a bit of monitoring that Ofsted has put there for the sake of it. I would like to avoid that. If complaint-related monitoring is the way to do that, that seems a reasonable course for the Government to take.
However, I do not want a regulator that sits there believing that mischiefs are taking place but thinks that it can do nothing until someone complains, because that is another mischief. If it has to wait until there is an active complaint, rather than saying, “No, this is going the wrong way. The reputation of the industry is being damaged even if we do not have an individual complaint”, that would be a mischief also. How can one tell? This creature does not yet exist. I hope that it will be well regulated and perform better than the SIA in its early days. However, it has to be able to investigate complaints; otherwise it will have no teeth at all. If someone approaches a regulator saying that a bailiff has misbehaved and it can do nothing about it, then the regulator will have no effect.
I want a commitment from the Government to an investigatory power and practice which is open and which goes beyond that which the SIA has chosen to exercise. The SIA does not tell those who have complained what the results of its actions have been, which seems entirely inappropriate in the case of bailiffs. At the end of the day, it must have the ability to exact fines or the cessation of licences in a way which hurts a serious business enough for it to sit up and take notice.
On the other hand, I would not like to see bailiffs regulated in the way that teachers are regulated. If teachers have a complaint made against them, they are suspended and can spend one or two years sitting around waiting for adjudication. I do not think that is necessary in the case of bailiffs, except in extreme cases. Generally, if you are trusted to be a bailiff in the first place, you are trusted to continue in the business until you are found to have done wrong. I am looking for something not heavy-handed but which has real force and where the big boys in the business—who are always going to carry most of the business because they will have the big local authority and government contracts—will want to behave and will regulate themselves because the consequence of not doing so could be to lose the business altogether.
If I can have not comfort but commitment from the Government that they will see this through, I will be content to withdraw the amendment. For now, I beg to move.
My Lords, we have seen considerable movement in this sphere of regulation and enforcement during the debates on this Bill and so far they have been in a positive direction. At an earlier stage the Minister said that there was no lack of will on the part of the Government to do something about regulation but there was some uncertainty about the mode of doing it most effectively.
The sole purpose of my intervention behind the noble Lord, Lord Lucas, whose work in this sphere has evoked admiration across the House, is simply to inquire whether the Government intend that the options on which they are consulting should not be confined by the timing for the remaining stages of the Bill, excluding the possibility of including provisions which satisfy the concerns expressed by many consumer bodies, including citizens’ advice, that the SIA is not, through a regulatory process that it might devise, necessarily the best way to proceed.
I hope that the Government will avail themselves of the opportunity to reach a conclusion on matters that have given rise to concern. Before the opportunity for amendment of primary legislation ceases, it may be necessary to take account of the concerns voiced.
My Lords, I am extremely grateful to the noble Lord, Lord Lucas. He has, as the noble Lord, Lord Maclennan of Rogart, said, worked tirelessly on this issue. He has held me to account in many ways and ensured that the Government have moved considerably to address his concerns. I am more than happy to give him as much commitment as I can, not on my own behalf, important though that may be, but on behalf of the Government, because it will be a team effort to bring in this provision. I said when we discussed this issue previously that we plan to lay the regulations by the summer. That is our timetable; it will be an important conclusion.
I hear what the noble Lord, Lord Maclennan of Rogart, says about primary legislation and I understand the desire for it; in a sense it is where I began. However, we believe that we have the legislation in place and that we need to use the regulations in the Private Security Industry Act 2001 to enable us to do this. The noble Lord, Lord Lucas, is also right to say that we must make sure that we get the regulator right, which is what lies behind the proposals of the noble Lord, Lord Maclennan. The regulator must be able to do the job. I have already made that commitment to those in the industry itself, who are of course keen to see this come into being. We will work as closely as we can with the industry to ensure that regulation is robust and proper and that the regulator can carry out its functions.
On the amendment before us, what I cannot commit to is a 12-month timescale because I do not yet know what the timetable will be. However, I can make a commitment to lay the regulations before Parliament. That in itself will give us another opportunity to consider and debate in more detail what is to happen. I hope that what I say now will satisfy the noble Lord and allow him to withdraw his amendment in the recognition that we are planning to do what he seeks to achieve.
Our proposal means that all enforcement agents who are not Crown employees will be licensed by the SIA and that there will be no exceptions. The noble Lord, Lord Lucas, asked on Report whether there might be exceptions for some employees of large companies where a significant proportion of the employees are already licensed. That will not be the case. I should add that licensing will also apply to managers and supervisors in companies directing enforcement activity. Through regulations we want to drive up standards across the industry, in particular by setting strict competencies and conditions for those individuals who apply for a licence. On punishment for failure to comply with standards and redress, as I said on Report, a whole range of offences is set out in the Private Security Industry Act and specifies penalties where any person contravenes a condition of the licence granted to him. The penalty for this is a term of imprisonment not exceeding six months, a fine not exceeding £5,000, or both. The SIA also has the power to revoke or modify licences. These sanctions represent the most serious end of the scale, of course, and I understand that the SIA also uses sanctions such as written warnings and improvement notices as part of its compliance activity. Further details of those are set out in the enforcement policy code of practice.
Along with other regulators, the SIA is considering whether it wishes to take on additional or alternative powers as recommended by Professor Richard Macrory in his independent review of regulatory penalties. I agree with the noble Lord that it is vital for debtors to have access to a workable system for complaints and redress. My officials are committed, as are the Government, to developing appropriate procedures with their colleagues in the SIA and the Home Office as well as with stakeholders across the system. For example, we need to consider what role might be played by alternative dispute resolution in this. For a complaints system to be effective, debtors as well as enforcement agents need to be aware of their rights, particularly in relation to the powers available to agents. I believe the Bill is clearly drafted in this respect, but my department wants to ensure that information about these rights is clear and accessible to the public. This will be achieved through information leaflets and so forth. Finally, although Crown employees will be exempt from regulation, I am committed to ensuring a common set of standards and a common appearance across the enforcement industry.
I hope that the word “commitment” has been used sufficiently often for the noble Lord to feel that I have addressed the concerns he has raised.
My Lords, I will withdraw the amendment. The noble Baroness has continued in her tradition of helpfulness on this and has gone far enough. As I have said, I hope that this argument is raised again in the Commons because it requires to be tested in terms of whether the Government’s chosen route is the right one. Given that this is the way they are going, I wish them every good fortune and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [Judges and other members of the First-tier Tribunal]:
12: Schedule 2 , page 120, line 3, after “Tribunal” insert “by virtue of section 4(1)(d) or”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 13 and 14.
This group of amendments makes minor and consequential changes to Schedules 2 and 3. Amendments Nos. 12 and 13 are technical amendments required as a result of changes made on Report in the way that members of the Asylum and Immigration Tribunal fit into the new tribunals. Noble Lords will recall that amendments to Clauses 4 and 5 were made on Report to clarify which legally qualified members of the Asylum and Immigration Tribunal are to be considered judges of the first-tier tribunal and which are to be considered judges of the upper tribunal. The Government’s intention, which is reflected in the Bill that we published in draft last July, is that only the president or deputy president or a senior immigration judge would sit as a judge of the upper tribunal. All other AIT judges are to be part of the first-tier tribunal only. In the process of redrafting the Bill for introduction in your Lordship’s House, that visible distinction was lost. The amendments tabled on Report restored the distinction. Amendments Nos. 12 and 13 carry through those changes into Schedule 2.
Amendment No. 14 remedies an omission from the Bill by providing for the oath of allegiance and the judicial oath to be taken by a person transferring into the new tribunal structure as a deputy judge of the upper tribunal. In order to cement their status as judges within the new system and the wider administrative justice system, it is intended that the oaths should be taken by all of the tribunal judiciary unless they have already done so as the result of holding an existing judicial office. Provisions in various parts of the Bill apply that requirement to all other judicial office holders. Paragraph 10 of Schedule 3 makes it clear that all deputy judges should take the oath. Amendment No. 14 completes the set by including those transferring in. I beg to move.
On Question, amendment agreed to.
13: Schedule 2, page 120, line 36, after “Tribunal” insert “by virtue of section 4(1)(d) or”
On Question, amendment agreed to.
Schedule 3 [Judges and other members of the Upper Tribunal]:
14: Schedule 3 , page 125, line 24, after “Tribunal” insert “, or
(ii) becomes a deputy judge of the Upper Tribunal as a result of provision under section 31(2),”
On Question, amendment agreed to.
Schedule 8 [Tribunals and Inquiries: consequential and other amendments]:
15: Schedule 8 , page 168, line 8, at end insert—
“After section 7A insert—
(1) Employment tribunal procedure regulations may include provision enabling practice directions to provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings.
(2) The provision that may be included in employment tribunal procedure regulations by virtue of subsection (1) includes provision for enabling practice directions to provide for a member to act as mediator in relation to disputed matters in a case even though the member has been selected to decide matters in the case.
(3) Once a member has begun to act as mediator in relation to a disputed matter in a case that is the subject of proceedings, the member may decide matters in the case only with the consent of the parties.
(4) Staff appointed under section 40(1) of the Tribunals, Courts and Enforcement Act 2007 (staff for employment and other tribunals) may, subject to their terms of appointment, act as mediators in relation to disputed matters in a case that is the subject of proceedings.
(5) Before making a practice direction that makes provision in relation to mediation, the person making the direction must consult the Advisory, Conciliation and Arbitration Service.
(6) In this section—
“member” means a member of a panel of members of employment tribunals (whether or not a panel of chairmen);
“practice direction” means a direction under section 7A;
“proceedings” means proceedings before an employment tribunal.””
On Question, amendment agreed to.
Schedule 12 [Taking control of goods]:
16: Schedule 12 , page 209, line 31, leave out paragraph 18
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 17 to 20. I shall not trouble the noble Baroness for a detailed reply on why these amendments work or do not. I want to use the opportunity to note two ways in which I think the Government are going wrong in principle in the Bill, to urge them to use the Bill’s progress in the Commons to think further on these matters, and perhaps to urge my colleagues in the Commons to take these matters seriously when they have the chance.
The first issue is the use of force against the person. The Bill authorises regulations that will authorise the use of such force. That is an unnecessary and unhelpful evolution in the relationship between a bailiff and a debtor. I can see some arguments for that in theory but think it is something we will come to regret in practice. It is not the way in which a relationship should exist between a bailiff and a debtor. The use of force generally between the agents of the state and the citizen is something that we need to be very careful of. We have seen how easy it is to tread the wrong side of the line in several recent police cases. They have to exercise immense restraint in these circumstances. It is all too easy for something to go wrong. I do not think that this is a danger that we should introduce into bailiff legislation. Beyond anything else, I do not think it is really necessary. There is only a tiny constituency in the bailiff community that thinks that it might even be of use. I do not think that we should endanger our social arrangements. Once you allow this sort of thing, it has a tendency to become commonplace. I would not like to see that happen.
Secondly, I would like to go back to some arguments we had in Committee and later concerning Semayne’s case and related matters—an Englishman’s home is his castle, or not—and to the basic principle, which I thought had largely been followed, that although a criminal fine derives from a criminal prosecution, the recoupment of a criminal fine is a civil matter. Those principles are transgressed by the idea—which I agree is not new in this Bill but derives from an amendment made in 2004—that criminal fines and certain government debts can allow bailiffs to force entry without a court order. We do not have the history on it yet, but that seems to me something that will turn out to be a step in the wrong direction. It should not be the relationship between a government and the governed that they can break into one’s home without the matter having been carefully considered on an individual basis. If the use of these powers becomes at all commonplace, I believe that it will add—in the way that many practices that we have allowed to grow up do—to the discontent that the citizen feels towards the Government and to the disillusionment with politicians and the political process.
We have to recognise that just because we are the Government and we are owed money it should not give us rights beyond those which accrue to somebody who is owed money in the ordinary way of things. We should not allow ourselves privileges of harm against the citizen that we do not allow other people and which disrupt the relationship and make it seem a more oppressive form of government than I should like to see. We have to be careful about doing damage through little things because it is in little things like this that the damage is done, not through some great big purpose to oppress the citizen. Damage is done through little things that allow the citizen to come off worse in circumstances where they ought to have a better right of justice and be treated better.
I hope that the Government will think again about going down this route and that my noble friends on the Front Bench here and in another place will use this opportunity to set their minds against the measure when they get the chance to reverse it in another Bill, should that be the way in which elections turn out. This is a wrong turning and not a direction in which we should go. In the end it will be harmful to all our interests if we continue down this route. I look forward to the Government’s reply. I beg to move.
My Lords, I speak in support of Amendment No. 19, which seeks to leave out line 33 at page 210. I remind noble Lords whose attention may not necessarily be concentrated on this particular matter that line 32 states:
“A power to use force does not include power to use force against persons”.
Line 33 continues,
“except to the extent that regulations provide that it does”.
Those are slightly weasel words. In supporting Amendment No. 19, I refer to what the noble Baroness said on Report:
“There are no secret instructions. I would be more than happy to talk about how we intend to talk to the industry and share what we will be doing next with noble Lords as far as I can. There is no secrecy on my part; I find that practically impossible. We want to be as clear as we can. The greater clarity comes because we will be as open as possible. I reassure the noble Lord, and trust that he will hold me to that as we progress from legislation to action”.—[Official Report, 31/01/07; col. 272.]
I take the noble Baroness at her word.
The noble Baroness has now been sent a copy of the Magistrates’ Courts Guidance—Search and Entry Powers (Domestic Violence, Crime and Victims Act 2004), which, as I said on Report, has 31 pages, on 15 of which paragraphs have been blacked out. One or two whole pages have been blacked out. They are secret instructions about which she obviously had not been informed. This was sent to the Reverend Paul Nicolson by the Access to Rights Unit at the DCA after he had sought a review of the department’s decision not to tell him when the last resort had been reached that would enable a bailiff to break into domestic property to enforce a fine, who makes that decision and under what circumstances. Secret guidance of this kind is particularly worrying because, although this Government will not implement regulations allowing restraint of debtors by bailiffs unless necessary, any other Government of whatever hue might slip them in without telling anyone, while letting the circumstances of their implementation disappear into the invisible guidance.
The noble Baroness has also been sent a copy of counsel’s opinion on the department’s decision and the invisible guidance by Alan Murdie, a barrister trustee of the Zacchaeus 2000 Trust. It is strange enough that there should be any secret instructions to a bailiff about how to break into a domestic property and seize goods, but it also seems that the grounds for withholding information under the exemptions allowed in the Freedom of Information Act are extremely flimsy. The information is withheld because it would be likely to prejudice the prevention or detection of crime under Section 31(1)(a) of the Freedom of Information Act. Bailiffs enforcing a fine have a court order to collect the money owing. There is nothing in that order that requires them to undertake “Hercule Poirot” activity and the detection of crime. Also, that section of the Freedom of Information Act does not apply in the present context, because enforcement of a fine is a civil matter, not a criminal one. Constitutionally and legally, fine enforcement is the collection of a debt payable to the Crown.
Mr Murdie also says that it is important to note that until 27 March 2006, the law of bailiffs relating to fine enforcement could be established in law with sufficient clarity, and could be discovered by any interested citizen and their representative. Nothing was concealed, and the enforcement of justice was an open matter. He suggests that the Domestic Violence, Crime and Victims Act and this Bill are not compliant with human rights law, in which the actions of the state affecting the citizen must be clear and be capable of being stated with certainty.
He suggests too that there is a public interest in understanding what can be done if bailiffs act in a way, while enforcing a fine, that gives rise to a complaint. Unless citizens and their representatives know what procedures the Government require the bailiff to implement, they cannot know whether they have been kept. There are other points in his opinion, but I will not labour the point any further. I would be grateful if the noble Baroness could shed some light on a very puzzling and rather murky area of her department’s decision-making.
My Lords, I am grateful to the noble Lord, Lord Lucas, for returning to this issue. Noble Lords will recall that on Report we had a bit of confusion about the power of re-entry and about whether judicial authority should be available in that context. Noble Lords might recall, too, that one of the concerns was that some of the advice agencies were worried that if judicial authority were needed for re-entry to be enabled, that might encourage some bailiffs to take goods on the first visit. I have been looking at that, and we are in discussion with the industry and with the advice services. We have powers in paragraph 13(3) of Schedule 12 and paragraph 24(1) of Schedule 12 that would enable me to look at that through regulations to ensure that we deal with it appropriately when, for example, we are ensuring that we set out the criteria that should be followed the first time that people enter premises, so that it does not become a matter of course that they take goods on that first visit. Also, that would make getting judicial authority for a re-entry as simple and easy as possible, thereby reducing the incentive to take goods on the first visit. I wanted to say that at the beginning, because that was an area that we discussed at length, and I hope that I have tackled that.
I hope that I can give the noble Lord some comfort on Amendment No. 19. I know that he feels very strongly about this, and we have had discussions about the restraining of the debtor and of anyone else who is preventing an enforcement agent from taking control of goods to carry out their lawful duties. I want to reiterate what I said on Report, as it may in some ways help to solve the noble Lord's problem. The regulations made under paragraphs 24(2) and 31(5) of Schedule 12 will be drawn up only after consultation with the advice sector and with the enforcement industry—and that is another commitment. If after such consultation the consensus is that existing powers are sufficient, we will reconsider our position. I shall ensure that the noble Lord knows about that.
However, I do not want to lose the flexibility in the Bill because, although some organisations have been concerned about it, others feel strongly that it is very important to set this out properly so that those who have to use the restraining powers do so properly and appropriately. We need to have that conversation; depending on the outcome, I shall undertake to act appropriately and accordingly and keep the noble Lord informed.
Amendment No. 16, as the noble Lord says, replicates the current law in the Magistrates’ Courts Act 1980, which is inserted by the Domestic Violence, Crimes and Victims Act 2004. The powers target those who have been convicted of a criminal offence, fined and who subsequently refuse to engage with the courts and pay the fine.
It cannot be right that someone who has committed a criminal offence and received a sentence imposed by the courts can evade justice simply by refusing to open the door to an enforcement agent going about his lawful business. For a long time, non-payment of fines has been treated differently from non-payment of civil debts, with imprisonment still being available ultimately as a sanction for fine default. We think it is important to retain the powers set out in Schedule 4A to the Magistrates’ Courts Act 1980 as a key component of the enforcement tools available to those who have responsibility for enforcing criminal fines.
In my earlier comments about how I intend to approach the matter I dealt with Amendments Nos. 17 and 18. I hope that the noble Lord will accept that. I shall not refer to the technicalities of these amendments for the precise reasons mentioned by the noble Lord.
The noble Lord, Lord Beaumont, was kind enough to let me have his speaking note. I am the Minister responsible for freedom of information in the department. As the noble Lord knows, we have, under the Freedom of Information Act, the ability to withhold information, on the ground that sharing guidance to civilian enforcement officers on what to do in specific situations would prejudice the administration of justice. We think that the disclosure of methods used by enforcement agencies could assist defaulters to evade enforcement officers in the execution of their duties. That is why specific paragraphs were withheld. There is a risk that making the guidance more widely available would give an inappropriate advantage to defaulters by giving them an insight into the techniques used by enforcement officers. We are concerned to avoid a situation where our guidance is used by defaulters to avoid enforcement officers and, subsequently, their duty to pay financial penalties.
Of course, fines need to be enforced effectively. Wider publication of the guidance could impinge on the efficiency of the enforcement activity, and on that basis exemptions under Section 31(1)(c) of the FOI Act apply. There is no possibility, which I know the noble Lord is concerned about, of any other Government slipping in or implementing the provisions, as the regulations under paragraphs 24(2) and 31(5) of Schedule 12 are subject to the affirmative resolution procedure. I think that if the Reverend Nicolson, who was in receipt of the letter, is discontent with the responses that he has had so far, he is entitled to pursue the matter with the Information Commissioner, Richard Thomas. I hope that the noble Lord is satisfied with my answers.
My Lords, the best news that I have had today is that the noble Baroness is responsible for freedom of information within the Government. That is not today's subject but it gives me some hope on other matters. I think the noble Baroness has gone as far as she is able to; I would invite her to go further, but I am happy to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 17 to 20 not moved.]
Schedule 13 [Taking control of goods: amendments]:
21: Schedule 13, page 224, line 40, leave out “fine or other”
The noble Baroness said: My Lords, I shall also speak to Amendments Nos. 22 to 29 inclusive. This group of amendments correct minor drafting errors in some of the consequential amendments set out in Schedule 13. They are being laid in an effort to ensure that the consequential amendments regarding taking control of goods in Schedule 13 achieve the desired result. Amendments Nos. 21 and 22 correct consequential amendments to Section 104 of the Criminal Justice Act 1967, paragraph 30 of Schedule 13. Section 104 currently refers to “any sum of money”, whereas paragraph 30 of Schedule 13 incorrectly refers to,
“a fine or other sum”.
The proposed amendments simply correct that.
Amendments Nos. 23, 24, 25, 26 and 27 correct consequential amendments to the Local Government Finance Acts 1988 and 1992—paragraphs 89, 107 and 108 of Schedule 13—making it clear that it is the relevant billing authority and not the Secretary of State who has the right to use the procedure laid down in Schedule 12 to this Bill to recover outstanding sums of non-domestic rates and council tax.
Amendment No. 28 revises the consequential amendment to Section 5 of the Road Traffic (NHS Charges) Act 1999—paragraph 130 of Schedule 13. Paragraph 130 of Schedule 13 makes provision until a repeal comes into force; the repeal is now in force, so the amendment brings the provision up to date.
Amendment No. 29 corrects consequential amendments to Section 78 of the Powers of Criminal Courts (Sentencing) Act 2000—paragraph 133 of Schedule 13. Section 78 currently refers to “a fine” whereas paragraph 133 of Schedule 13 incorrectly refers to a “fine or other sum”. The proposed amendment corrects this. I beg to move.
On Question, amendment agreed to.
22: Schedule 13 , page 225, line 3, leave out “fine or other”
23: Schedule 13 , page 232, line 21, leave out “Secretary of State” and insert “billing authority”
24: Schedule 13 , page 234, line 30, leave out “Secretary of State” and insert “billing authority concerned”
25: Schedule 13 , page 235, line 6, leave out “Secretary of State” and insert “authority concerned”
26: Schedule 13 , page 235, line 12, leave out paragraph (c)
27: Schedule 13 , page 235, line 30, leave out “Secretary of State” and insert “authority concerned”
28: Schedule 13 , page 239, line 37, leave out from “(4)” to “for” in line 38 and insert “(so far as it continues to have effect)”
29: Schedule 13 , page 240, line 17, leave out “or other sum”
On Question, amendments agreed to.
Amendment (privilege) made.
Justice and Security (Northern Ireland) Bill
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, 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 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.