If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
1: Before Clause 1 , insert the following new Clause—
“Presumption of right to jury trial
Subject to the provisions of this Act, the defendant has the right to trial with a jury.”
The noble Lord said: This amendment is based on observations by the Joint Committee on Human Rights on the first of the three significant human rights issues which it has raised in connection with this Bill—that is, the boundary between jury and non-jury trials in Northern Ireland. The Joint Committee acknowledges the need to protect juries against intimidation and thus to provide trial without a jury in cases where there is a risk of jury tampering or perverse verdicts. The question it addresses, which is now for your Lordships to decide, is where precisely the dividing line falls in the context of our commitment to security normalisation in Northern Ireland.
Under the new system, which the Bill provides, of non-jury trials replacing the Diplock courts in Northern Ireland, the presumption will be for jury trial, subject to the power of the Director of Public Prosecutions for Northern Ireland to issue a certificate that trial is to be conducted without a jury. It is that presumption that we would like to see ahead of the exceptions which confront the reader in Clause 1. The Bill plunges straight into the powers exercisable by the DPP if he suspects that any one of a number of conditions is met and is satisfied that, because of this, there is a risk that there might not be a fair trial if it were to be conducted without a jury.
Just how exceptional a non-jury trial will be after these provisions come into force, which I understand will be in July, remains to be seen. The police have intelligence of only 11 cases since 1999 in which jury tampering has been reported. Ministers say that there is anecdotal evidence of other cases; they know of one where a trial collapsed as a result of jury tampering. They conclude that intimidation is therefore still a significant problem in Northern Ireland, despite the recent improvements in the security situation, and poses a significant risk to the ability of the criminal justice system to deliver fair trials in certain cases.
What is not to be found in the JCHR report is any assessment of the extent to which the Government believe that with the other measures for jury protection and, one hopes, the diminishing influence of the paramilitaries and their criminal associates, the proportion of non-jury trials can be expected also to decline. It would be useful to hear from the Minister about the Government’s prognosis in that regard. To what extent do they believe that the DPP will still need to exercise the powers in Clause 1 following the normalisation of the situation in Northern Ireland, which we hope is about to occur?
In any case, from the point of view of this amendment, we need to look to the future, establishing the benchmark we shall attain as a result of the return to normality. Whatever exceptions there may be, which will be agreed in later discussions, the presumption in favour of jury trial is a fundamental component of that normality and needs to be declared on the face of the Bill. I beg to move.
As I rise to speak on this Bill for the first time, let me say that I will be dealing with Clauses 1 to 12. Although I know that my noble friend Lord Rooker will have made himself available to talk to any Peers who wish to do so, should there be any issue on this part of the Bill that any Member of the Committee thinks it would be helpful to have a word with me about outside the Committee, I shall be happy to do so.
Amendment No. 1 seeks to put on the face of the Bill a statement creating a right for all defendants to be tried in Northern Ireland, except where the provisions of the Bill apply. I hope that he and the noble Lord, Lord Lester, will forgive me for saying that the effect of that statement would be to enable jury trials in all cases except where a certificate had been given under Clause 1. That would mean that even defendants in the magistrates’ court in Northern Ireland, which deals with nearly all criminal cases without a jury, would be able to opt for jury trial and it would not be possible to apply for non-jury trial under either the Criminal Justice Act 2003 or the Domestic Violence, Crime and Victims Act 2004—which applies to another exceptional category of case.
In fact there is a more fundamental objection, which is that the amendment is unnecessary. As the noble Lord, Lord Avebury, confirmed in moving the amendment, regardless of whether the amendment is made, the presumption will be for jury trial in all indictable offences in Northern Ireland—for the first time in 35 years—when the Diplock courts system comes to an end on 31 July of this year. Non-jury trial will be the exception and will arise only within the strict requirements of the Bill or the other provisions to which I have drawn attention.
The noble Lord asked about the number of cases that could be affected. It is not easy to give a definitive answer or firm predictions. He rightly referred to a number of cases since 1999 where jury tampering has been reported. But it is important to bear in mind that those cases have been reported in the context of the current system in which Diplock trials exist. In all cases where a Diplock trial would have been ordered there would not have been any question of jury tampering because there would not have been a jury. So I do not think that one could draw from that figure a conclusion on the numbers. The number of cases dealt with by Diplock trial has been declining.
It is worth emphasising the key point, which I understood was common ground, that although the factors that led to the establishment of the Diplock system may have reduced, they still exist; and the risk of those factors, including intimidation of juries, remains enhanced in Northern Ireland compared with other parts of the United Kingdom, as the noble Lord, Lord Carlile, stated in his independent report.
I understand the view of the noble Lord, Lord Avebury. The presumption will be reversed by the Bill, or at least there will be a presumption for jury trial unless there are special circumstances, and the Government have made clear their intention to return to jury trial in serious criminal cases as soon as the security situation allows. However, what fundamentally lies behind the Bill is that we need to be sure that the justice system can provide fair trials in good time, in line with Article 6 of the European Convention on Human Rights, which means that there will be cases in which, in order to have a fair trial, it will be necessary to do it without a jury.
The important point that will run throughout my remarks on this part of the Bill is that the European convention, and therefore the Human Rights Act, guarantees a right to a fair trial, not a right to a jury trial. I know that the noble Lord cannot do anything other than withdraw the amendment today, but I hope that he will reflect and not bring it back.
We will reflect on what the Minister said, but I am disappointed that he begins with a drafting point, which is the last refuge of Ministers who cannot think of a substantive reply to an amendment. It is still a great pity that we cannot open the Bill with a declaration that in future jury trials will be the norm, and that the exceptions that are provided now in Clause 1 are indeed exceptions. It would have been beneficial to establish the intent of the Government—not just of the Government, but of all parties in Northern Ireland and in your Lordships’ House—that that should be the situation, and that it should be made plain in the Bill. As the noble and learned Lord says, we have no option but to accept his explanation for the time being. I will discuss this with my noble friend and we will see what further action we will take, if necessary, on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [Issue of certificate]:
2: Clause 1 , page 1, line 5, leave out “Director of Public Prosecutions” and insert “Attorney General”
The noble Lord said: I must say by way of introduction that I am at a bit of a loss to understand the grouping of amendments at this stage. I am happy to speak to Amendment No. 2. Amendment No. 13 has been tabled by the noble Lord, Lord Smith of Clifton, and the noble Baroness, Lady Harris of Richmond, and it does not seem to lie terribly well with Amendment No. 2. My Amendment No. 49, which is a new clause, was drafted on the assumption that some of the amendments following this group would have been discussed—and, indeed, on the assumption that one of them would have been agreed to, which I am sure will happen when we reach that amendment; at least, I hope it does. However, I shall try to cope with the situation we have.
Amendment No. 2 is quite simple: it substitutes the Attorney-General for the Director of Public Prosecutions. I am very glad to see that the noble and learned Lord is here to reply to this, and I hope he will appreciate that I am anxious to continue his role in this respect. I seriously believe that it is inappropriate that the Director of Public Prosecutions should himself be able to determine the mode of trial. That is the basic problem here. The Bill as drafted gives the DPP the power to issue a certificate, which then determines the mode of trial. It is inappropriate that that should be in the hands of the prosecuting authority. It is much better that someone else who is not simply a prosecutor but is also charged with considering the public responsibilities generally and the public interest should be the person who issues the certificate.
It was suggested in the debate on Second Reading that that power should rest with the judges, but I could well imagine that the judges themselves would not want to have that. They too might feel a certain conflict of interest, as they would be the parties who were then going to determine the case, or at least decide it, if it went down the non-jury route. That leaves one with the Attorney-General.
I should add that when I drafted this amendment, I deliberately used the wording “Attorney General for Northern Ireland”, but I notice the Clerks dropped the phrase “for Northern Ireland”. At the moment, of course, the Attorney-General for England and Wales discharges the functions of the Attorney-General for Northern Ireland, but that might change, and I thought one should provide for that. But the substance of the amendment is intended at least to get a more independent element into the choice of whether there will be a non-jury trial.
The issues raised by my Amendment No. 49 are much more general. Clause 1 of the Bill provides for a non-jury trial in a number of cases. Various conditions have to be satisfied, and those conditions relate mainly, although not solely, to proscribed organisations. On the other hand there is the Criminal Justice Act 2003, which also provides for juries to be dispensed with, but the circumstances in the Criminal Justice Act are very narrow; they relate simply to evidence of a real and present danger that jury tampering would take place. The relevant section, Section 44 of the Criminal Justice Act 2003, applies to Northern Ireland. So we have two different bases on which there can be non-jury trials: one where there is a proscribed organisation and other cases, which are limited to jury tampering; whereas in proscribed organisation cases, it is broader.
What also concerned me was that the criteria differ. Under the proscribed organisation provision in Clause 1, for a certificate to be issued, the director—or, if I were to have my way, the Attorney-General—must be,
“satisfied that in view of this there is a risk that the administration of justice might be impaired”.
In the Criminal Justice Act 2003, we are dealing with, if anything, a more stringent test. The judge must be satisfied of various conditions, including that there is a,
“real and present danger that jury tampering would take place”,
“the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury”.
It is that final phrase in the 2003 Act on which I am focusing, whereas the equivalent provision in the clause is,
“a risk that the administration of justice might be impaired”.
Both those provisions will be operating in Northern Ireland, but they operate two quite different standards. There is a very strong case to assimilate their criteria. I have drafted Amendment No. 49 to take what might be the novel way of assimilating the general provision to the Northern Ireland provision. It might be argued that we should assimilate them the other way, but I rather suspected that if I tried to assimilate Clause 1 to the same standard as applies in the 2003 Act, I would be told that it was wholly unrealistic to put the bar so high in Northern Ireland. So rather than raise the bar in Northern Ireland to the English standard, I suggest that we lower the English bar to the Northern Ireland standard.
This is one United Kingdom; the same criteria and principles should apply throughout it in broad terms. Even if the Attorney-General is not attracted to my particular solution, there is a general issue with both the provisions being on the statute book. There is a contradiction between the two and it must be resolved one way or the other. I shall listen to what is said on that point with great interest. I beg to move.
I speak to Amendment No. 13 in the group. At Second Reading, we spoke about our concern at the Director of Public Prosecutions deciding the mode of trial. We very much believe that there should be some form of judicial involvement in the mode of trial decision. During Committee in another place, my honourable friend the Member for Montgomeryshire proposed that the prosecution should apply to the court for a certificate to be issued for a non-jury trial. Therefore, the decision on mode of trial would rest with the court.
In other legislation that provides for non-jury trial, it is the court that ultimately decides whether the trial is to be conducted with or without a jury. That is the case under the Criminal Justice Act 2003. Under Section 44 of that Act, the prosecution may apply to the court for a trial to be conducted without a jury if there is a danger of jury tampering. As that provision extends to Northern Ireland, it would make sense for the same type of procedure to apply in all circumstances where it may be necessary to conduct a trial without jury. Therefore, we have a great deal of sympathy for the amendment in the name of the noble Lord, Lord Trimble.
However, the Minister in another place argued that the DPP would be privy to information that the police or national security agencies had brought to bear and that by having a judicial system, it would mean that a range of information would have to be exposed to the other party in a way that could be cross-examined. We reflected on the Government’s arguments and sought to address them. We then came back on Report with the amendment now tabled in my name and that of my noble friend Lord Smith of Clifton. Our preference is still for there to be some form of judicial control over the mode of trial.
Amendment No. 13 proposes that the DPP would still issue the initial certificate for a trial without jury as, under the Bill, this needs to be lodged with the court before the arraignment. We therefore presume that at some stage before the arraignment, the defendant would become aware that a certificate had been issued. At that point, the defendant could make written representations to the judge. On the basis of those representations and any written evidence provided to the judge by the DPP, the judge would then either accept or reject the certificate. There would still be a judicial element in determining the mode of trial, but with no risk of the names of witnesses or informants becoming known.
We would like the Government to look at this again. By placing the decision on the mode of trial in the hands of the DPP, they are going much further than was provided for by the 2003 Act. The provisions of that Act are supposed to deal with the intimidation of jurors, so why are the extra provisions in the Bill necessary? Why is it appropriate to have the court deciding the mode of trial in some circumstances, but not in others? Taking such decisions should not place an undue burden on the judiciary as the number of non-jury trials in Northern Ireland has fallen from 354 in 1987 to 49 in 2005.
I rise to support the second amendment. This is an important matter because trial by jury has always been regarded as a particularly precious right, no less in Northern Ireland than in England and Wales, and for all I know in Scotland too. A few moments ago the noble and learned Lord the Attorney-General distinguished between the right to jury trial and the right to a fair trial, and I think most people would regard it as their understanding of their primary rights in our constitutional law that they are entitled to a jury trial save where Parliament has intervened to restrict that right in the light of special circumstances or criteria. It has to be said rather ruefully that since the present emergency revived in 1969, those special circumstances have impinged very painfully and urgently on everyone in Northern Ireland. It was because of those circumstances that, in his report published in 1973, Lord Diplock made the recommendations with which we are all now very familiar.
The norm has been that quite a wide swathe of offences should not attract the right to trial by jury, the reason being that they are commonly associated with terrorism—to use an umbrella word. The arrangement has been that the Attorney-General of the day—I thought that it was the Attorney-General for Northern Ireland, which I regarded myself as being, as well as the Attorney-General for England and Wales—was able to certify them out. I repeatedly came under considerable pressure when I was Attorney-General, as well as when I was Secretary of State, to reverse that arrangement, so that the provisions of the present Bill should be substituted for what I have just described, save that it was not a case of a certificate issued by the DPP. I always resisted that because it is important for the status of the Attorney-General and the standing of his office that, where he is given a discretionary power to intervene, it should be on the side of upholding the liberties of the subject, not restricting them. It is not becoming—in fact, it is rather dangerous—that the Attorney-General should have been empowered to remove the right of trial by jury from a defendant.
The arrangement here is that the Director of Public Prosecutions shall certify with that consequence. There is a separate point here. I cannot think it right that an official, however distinguished and however impartial—and there can be none more deserving of each of those tributes than the present incumbent—should be vested with such power. He is not accountable to Parliament. We have had that debate quite recently in this House and a very large number of your Lordships thought that somebody with powers in this field should be accountable to Parliament. The Attorney-General, of course, is—as the present incumbent of that office has good reason to know. He has frequently recounted the number of occasions on which he has recently appeared before Parliament, answered letters and so forth. That is an important additional point.
In Northern Ireland, the director is subject to being directed by the Attorney-General. I will be corrected if I am wrong about that, but I always understood that to be the case, although I never sought to avail myself of that power. The noble Lord, Lord Rooker, in answering the debate on Second Reading, said that a good reason for making the change in the Bill was that the Attorney-General was a Westminster Minister and that it was not appropriate that a Westminster Minister should have the say-so in a matter of this importance in Northern Ireland. The fact that the Attorney-General can direct the Director of Public Prosecutions goes in some ways against that point. So I shall be very interested to hear what the noble and learned Lord the Attorney-General has to say in answer both to this amendment and to the other two that have been spoken to.
I support my noble and learned friend Lord Mayhew. I am delighted that he, with his expertise, is here to support and advise us. It goes without saying that these Benches are of the same opinion as he. We have concerns about the Director of Public Prosecutions being the decision maker in this process. In the other place my honourable friend made a different proposal—that it should be the Lord Chief Justice. That was not accepted and ultimately withdrawn.
However, we are now in a sort of quandary. I seem to remember—I am not sure; perhaps the Attorney-General will be able to enlighten me—that, a year or so back, we passed legislation defining who would ultimately be Attorney-General for Northern Ireland and how he or she would be appointed. I know that the Attorney-General is carrying out that role but, once we have devolution, the legislation will quickly change that. A description from the Attorney-General about the sort of person and the sort of role he will be playing would be helpful in this debate. From memory, I believe that he will not be a Member of Parliament either in Stormont or here, and he may not be a member of a political party. So if the Attorney-General for Northern Ireland will be making these decisions, we will need a little more clarity on those points.
Secondly, my party would like to feel that we will be able one day to carry out the due processes of law in Northern Ireland without having to resort to trials without jury. We accept the current need for trials without jury; we simply hope that the day they can be dispensed with is not too far off.
I have listened with great care to the noble Lord, Lord Trimble, who speaks with considerable experience, the noble and learned Lord, Lord Mayhew, whose experience is particularly pertinent, the noble Baroness, and the noble Lord opposite. I want to reflect on all that has been said but perhaps I may indicate the issues as I see them at the moment. I am sorry that the noble Lord, Lord Trimble, found the grouping of the amendments unhelpful; I am not sure that it will ultimately be unhelpful in identifying the issues, three of which have been identified in the important contributions made today. First, if there is to be a decision maker from outside the judiciary, should it be the DPP or the Attorney-General? Secondly, should the decision maker be one of those persons or the judiciary in some way? Thirdly, what is the relationship between the provisions in the 2003 Act—which apply to England and Wales as well; I do not think it applies to Scotland but I may be wrong about that—and the provisions proposed in the Bill? Those are all important questions.
I am very appreciative of the way in which the noble Baroness spoke to the amendment and recognised the problems that arise particularly in Northern Ireland when a decision must be made on jury versus non-jury trial. I do not dissent at all from what the noble and learned Lord, Lord Mayhew, said about the desirability of jury trial or—as I think I made clear—what the noble Lord, Lord Glentoran, said about where we hope to get to eventually. At the moment the position in Northern Ireland is different from that in the rest of the United Kingdom. Northern Ireland has made huge progress but the fact remains that—as the quote I gave a few moments ago from the report of the noble Lord, Lord Carlile, demonstrates—potential problems of intimidation remain more enhanced in Northern Ireland than they do in the rest of the United Kingdom.
One can see the difficulty, which the noble Baroness helpfully identified, when one looks at the conditions proposed in the Bill. Three of the four conditions relate to paramilitary groups. That means that the case for non-jury trial will often involve sensitive intelligence material, which will raise difficult issues; it will involve sensitive intelligence material about a person’s relationship or membership of a paramilitary group. So often that derives from human intelligence sources who are able to identify the person as having that relationship or such groups as being involved in the alleged crime. If the material in those circumstances is deployed in open court to explain why a non-jury trial is desired, it can create a risk that that sensitive intelligence information will come out into the public domain. It is not simply a question of wanting to keep things secret; there are very considerable risks in such exposure.
If the information comes from a human source, and I am advised by the Chief Constable that it often does, the identity of that human source may well be identified. There is often only a small group of people who could be the source of the information. No one who knows anything about even recent events in Northern Ireland would be in any doubt that such risks often include risk to the life of a particular person. That is the difficulty about revealing human sources. There may also be difficulties about revealing the techniques used for gathering intelligence as part of the process of explaining why a non-jury trial is appropriate in a particular case as it may prejudice the capacity of the law enforcement and intelligence agencies to tackle these serious threats.
That was why, after considerable consideration of the alternative models, the Government came to the view that some form of administrative process rather than a process of producing that evidence in open court was desirable. One can imagine what the consequences otherwise would be. As I said, the purpose behind these provisions—like the purpose behind the Diplock provisions—is to enable fair trials to take place removed from intimidation. If even three jury members are subject to intimidation or in fear of intimidation, they may not feel themselves able objectively to apply their judgment to the evidence in the case but to decide on different grounds. That is not in accordance with the public interest. Having a contested judicial process leads to the danger that that material will have to be exposed. It would have to be shared with the defence, as that is commonly the way in which we deal with contested matters in open court.
There may be other ways of dealing with it. The difficulty with the proposal in the amendment tabled by the noble Baroness, to give the trial judge a role in deciding whether he is prepared to accept the DPP’s certificate, is that it seems to amount to a sort of automatic judicial review of the DPP’s decision. I do not know on what basis the judge is to accept or reject other than by requiring the DPP to produce his reasons and intelligence and asking the defendant for his point of view on that. It would turn into exactly the sort of hearing in open court, with the material being disclosed to the defendant in open court, that we are concerned about. That is my problem with that proposal.
I turn to the second question: if it is an executive or administrative decision rather than a judicial one, should it be the Attorney-General or the DPP? I hope that the noble Lord, Lord Trimble, when responding to what I have said, will feel able to say which he has in mind. Which Attorney-General does he have in mind? At the moment—I entirely agree with the noble and learned Lord, Lord Mayhew—I regard myself as the Attorney-General for Northern Ireland; for the purposes of all statutes that impose duties or responsibilities on that person, I am he. That will change when there is full devolution, when there will be a locally appointed Attorney-General. I say to the noble Lord, Lord Glentoran, that the Attorney-General is not a member of the Assembly.
The relationship of supervision with the DPP will be different from the relationship which the Attorney-General presently has with the DPP. It will be a locally appointed person. I think that one is then faced with the possibility of two choices, and I invite the noble Lord, Lord Trimble, to indicate which he has in mind: the Attorney-General for Northern Ireland, who would become the locally appointed Attorney-General at the moment of full devolution; or it could be—and there will be another law officer—the Advocate General for Northern Ireland. The Advocate General for Northern Ireland, created by the Act as well, will be the same person as the Attorney-General for England and Wales. That is the person who presently has the experience of dealing with these matters, but I think—and this was very much part of the Government’s thinking—that that would lead to the concern that a Westminster politician, one who did not even any longer hold the title of Attorney-General, would be responsible for making these decisions. That perhaps leaves the alternative that the Attorney-General for Northern Ireland will be in a different position from the one that I am in and the one that the noble and learned Lord, Lord Mayhew, was in. Because we do not know who such a person will be, I do not know whether the police will have any difficulties in sharing the sensitive intelligence information that they have as freely as they do with me and the present DPP. I invite the noble Lord to consider that.
I entirely understand the points made by the noble and learned Lord, Lord Mayhew, about the desirability of accountability. I believe in that very strongly and therefore understand why he places such emphasis on it. However, we have had to consider the advantages and disadvantages of different approaches.
As regards the relationship between the 2003 Act and these provisions, they are intended to deal with somewhat different things. The 2003 Act deals with a specific category of jury tampering. Were it not for the fact that Northern Ireland is different from England and Wales in the way I have indicated, one might have thought that it was appropriate simply to have the 2003 Act apply across the board. However, I do not believe—nor, I think, do law enforcement agencies in Northern Ireland—that the 2003 Act would do the trick on its own. There need to be greater protections. The hurdles in the 2003 Act are too high for Northern Ireland. The 2003 Act is appropriate for a judicial determination because the issues which fall to be considered are not generally intelligence information. They generally concern whether there is evidence that a case has collapsed as a result of jury intimidation or whether there has been jury tampering. That would normally arise as a result of direct evidence being given. That explains the differences between the two measures.
Even though I see the logic of the position taken by the noble Lord, Lord Trimble, I have great concerns about trying to bring the two tests together. Northern Ireland is different from England and Wales and will need a different test. I should be very cautious and hesitant about seeking to amend through this Bill a provision in relation to England and Wales which was enacted after great debate during the passage of the Criminal Justice Act 2003.
I hope that I have responded to the questions asked. I have tried to explain why we have lit upon the present system. I shall continue to reflect on the points made but I look forward to hearing what the noble Lord, Lord Trimble, will say about the point I raised, if he feels able to discuss it today.
I thank the noble and learned Lord the Attorney-General for his comments. He invited me to make a choice but I may need to take a little more time in order to do so. However, I shall make some observations on the matter. A noble Lord mentioned a sentence of the noble Lord, Lord Rooker, when he replied to the debate on Second Reading, which had slipped my memory. However, it raises a general issue, which, to a certain extent, came up in the Attorney-General’s reply. The noble Lord, Lord Rooker, said on Second Reading:
“We are reluctant to put forward the case that a Minister in London should decide, in effect, the mode of trial”.—[Official Report, 20/2/07; col. 1053.]—
that is, in Northern Ireland. But, as the Committee knows, that is precisely what has happened for the past 34 years. Since 1973, a Minister here has decided that. Furthermore, that Minister is accountable. That latter point is in itself very important.
As I said, the Attorney-General for Northern Ireland and I drafted this provision with the present situation in mind. Even if devolution occurs on 26 March, as the Government hope, the Attorney-General here will continue to make the relevant decision. What should happen with policing and justice matters after devolution, if they are devolved—that “if” still has to be underlined—is a matter on which I should like to think further as serious problems arise on that issue.
But you know, there was one thing that the Attorney-General said towards the end with reference to my Amendment No. 49, when he came out with that famous phrase, “Northern Ireland is different”. Different where? It is not. There is organised crime in England and Wales, perhaps even on a larger scale than in Northern Ireland. There are paramilitary organisations in England and Wales.
The retiring head of the Security Service said a few months ago that there were 1,200 suspects, persons who might be likely to commit terrorist offences who were being observed of whom the service was aware. The noble and learned Lord, Lord Mayhew, may want to intervene on me on this, but 1,200 is several times the total number of persons on active service in the Provisional IRA at any one time. So to say that Northern Ireland is different is wrong. No, it is not. The problems exist here too. They may perhaps not yet have fully worked their way through into the mind of the Government, although they are aware of the terrorist threat here and aware that it is as great if not greater than any threat in Northern Ireland. It may yet have produced the same toll of incidents and fatalities, but there is a long way to go on that. It is not right as a matter of fact to proceed on the basis that we are dealing with two different situations in England and Wales and in Northern Ireland; and it is not right as a matter of principle to say that we shall treat the two on a completely different basis.
We will want to come back to that again. I will reflect on what has been said, especially the question posed to me by the Attorney-General, and hope that we can explore the matter a little more later. I apologise for not being able to give a clear answer at the moment, but I would not want to reply off-the-cuff without having considered the matter further.
I am still very much of the view that it is highly desirable to have the decision on the mode of trial out of the hands of the prosecutor and exercised by someone who is not only accountable but more independent than the prosecutor may be. We cannot press this at the moment; all we can do is debate it; so we will have to leave it there unless there is something that the Attorney-General wants to say.
I am grateful to the noble Lord. I just want to make this very clear. If he or any Member of the Committee who has spoken would find it helpful to discuss this with me before the next stage of the Bill, I would be very happy to do so. I recognise that these are tricky issues. I may then have a further debate with the noble Lord about why I think that we are justified in taking the view that Northern Ireland and England and Wales are not directly comparable. I shall not take up the Committee’s time by doing that now, but I offer to meet noble Lords to discuss the issue if that is helpful.
3: Clause 1, page 1, line 8, leave out “suspects” and insert “is satisfied”
The noble Lord said: With this, I shall discuss Amendments Nos. 6 and 9. The Bill gives the DPP for Northern Ireland the power to issue a certificate that a trial on indictment is to be conducted without a jury if he “suspects” that any one of four conditions enumerated in subsections (3) to (6) is satisfied. Amendment No. 3 requires him to be “satisfied” and not merely to suspect that one of the conditions exists. For example, the first condition is that the defendant is an associate of a person who is or has at any time been a member of a proscribed organisation. Later, the term associate is defined to include a friend or a relative, as well as a spouse or former spouse, civil partner, former civil partner, cohabiting partner or former cohabiting partner.
A proscribed organisation is defined to include an organisation that was proscribed at the time of the person’s membership of that organisation, although it may not be at the time when the matter comes to be considered. When the JCHR asked the Government for their justification for conferring these extremely wide powers on the DPP, it was told that there had been cases of intimidation to secure acquittals of close friends or family members of terrorists. I ask the noble and learned Lord to consider that the word “close” was used in the Government’s explanation, which is a different matter from any old friend or relative, as the Bill has it.
As the NIHRC observed, “friend” is a very subjective term and “relative” is totally open-ended, giving the DPP, in theory, a sweeping power to prevent jury trials and to create the risk of a potential breach of Article 14 of the ECHR, in conjunction with Article 6.1, by making it possible to deny a person the right to trial by jury because he was born into a family, one of whose members had at some time or other broken a particular law. For condition 1 to be triggered, the DPP does not have to do more than suspect that such a relationship exists. Amendment No. 3 would require him to be satisfied that the relationship exists.
Amendment No. 6 would raise the test of whether the administration of justice might be impaired if the trial were to be conducted without a jury from “risk” to “substantial risk”. As the JCHR points out, and we have already heard from the noble Lord, Lord Trimble, about this, in England and Wales the test in Section 44 of the Criminal Justice Act 2003 is that there has to be evidence of a real and present danger that jury-tampering would take place, and that the likelihood that such tampering is so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. That provision, we understand, has already come into force and applies in Northern Ireland, as the Minister in another place, Paul Goggins, explained in Standing Committee in another place on 16 January.
As we have already heard, there are two different mechanisms that apply in Northern Ireland through which non-jury trials will be possible. In so far as it is possible, I agree that we should try to align the two so that they do not come into conflict with one another. The use of the word “substantial” in Clause 1(2)(b) would therefore move the two procedures so that they were more closely aligned with one another—although not entirely, because the situations are still different, as we have just heard. Presumably the ultimate objective of the Government in the very long term, as the noble Lord, Lord Trimble, has already outlined, would be for the special arrangements in Northern Ireland to be dropped altogether, leaving the Criminal Justice Act to operate uniformly in both jurisdictions. The term “substantial risk” is of course widely used in many contexts in the statutes, and would not present any difficulty of interpretation in the courts.
Amendment No. 9 follows the JCHR recommendation in paragraph 1.27 that the DPP should be satisfied that other, less restrictive measures will not present the risk of impairment of the administration of justice. It may be that in answer to this the noble and learned Lord will say that the DPP would obviously think about the possibility as a matter of course, as he would do about all the circumstances that affect the risk. We would argue that, for certainty, that needs to be spelt out in the Bill. I beg to move.
If Amendment No. 3 is agreed to, I cannot call Amendment No. 4 because it will be pre-empted.
I have added my name to this amendment. The amendments in this group place further safeguards on when the DPP can issue a certificate. We support the principle here. They make the judgment of whether there is a risk to justice more objective; they raise the bar from a risk to a substantial risk, and require the DPP to consider other means of addressing that risk before issuing a certificate. We still have grave doubts about the appropriateness of the DPP issuing a certificate. These amendments go some way to ensuring that the natural partiality of his post will not influence his decision. The relevant conditions that must be met for a certificate to be issued should be clear and the DPP should be able to show that they have been met objectively.
I shall speak to Amendments Nos. 4, 5, 7 and 8 in the group which are intended to tighten up the criteria that the DPP could use for issuing a certificate to conduct a trial without a jury. At the moment the bar is set very low in the Bill, so that the DPP may issue a certificate if he,
“suspects … there is a risk that the administration of justice might be impaired”.
Suspicion is a low test for the Director of Public Prosecutions to employ and is much lower than a test on the balance of probabilities. Amendment No. 4 therefore raises the test from one of “suspects” to,
“believes, on the balance of probabilities”.
This wording would ensure that the DPP must be at least 50 per cent certain that the conditions set out in the Bill are met. Again, Amendment No. 5 tightens the language used in the clause by providing that the DPP must agree that “it is likely” that the administration of justice would be impaired if a jury trial were to be held. Amendment No. 8 is simply a grammatical point. The purpose of these amendments is to ensure that the Government’s aim of a presumption in favour of jury trial is furthered.
If the Government continue to resist the argument that the decision to hold a non-jury trial should have some form of judicial input and persist with the suggestion in the Bill that the DPP should decide on the mode of trial, then in taking that decision the DPP should have to satisfy himself that a higher threshold has been reached before he issues a certificate. This is a very wide power and by instituting a higher but realistic threshold, we believe that it would ensure confidence in the decisions on mode of trial.
Amendment No. 7 again returns to an issue raised in another place on which we would like to probe the Government a little further. The term, “the interests of justice”, is widely used in legislation, but the term, “the administration of justice”, is not quite so well known and thus may conjure up notions of management and something being run efficiently rather than the perhaps less tangible but none the less well understood principle of something being done for the good of justice. This form of language ties in much better with the principle of conducting a fair trial—a fair trial which is seen to be in the interests of justice rather than one being expedited quickly for the sake of time management.
The term, “the interests of justice”, is used in Section 44 of the Criminal Justice Act 2003 and the Minister in the other place agreed to consider the wording and write to my honourable friend the Member for Montgomeryshire on this issue. In that response the Minister stated:
“The phrase ‘interests of justice’ goes somewhat wider than ‘administration of justice’. ‘Administration’ also suggests a connection with the procedures for achieving fairness. I am keen to restrict the application of this system of non-jury trial as far as possible, so I intend to maintain the wording in the Bill”.
Does the Attorney-General recognise that there could be a conflict between the interests of justice and the administration of justice? For example, it could be in the interests of justice for a jury to try a particular case, but because the defendant has a loose association with someone suspected of being at one time a member of a paramilitary organisation, the DPP may suspect that there is a small risk of jury intimidation.
That would mean dismissing the jury and calling a new one to try the case or dismissing the jury and proceeding with a judge-alone trial. He decides that this process could be cumbersome and waste time and that, in the interests of expediency, he should issue a certificate now for a non-jury trial. That may be a slightly tortuous argument; nevertheless, it could happen. Does the noble and learned Lord acknowledge that such a situation could arise? Will he agree to reflect further on the wording of this part of the Bill?
I find these amendments attractive, and I look forward with great interest to hearing what the noble and learned Lord the Attorney-General has to say about them.
I would like to speak briefly about Amendments Nos. 3, 4 and 9. Could the noble and learned Lord tell us whether, and if so in what other recent statutes, the word “suspects” appears in a similar context? One asks oneself what it means. I suppose it must mean, and the courts would hold that it means “suspects on reasonable grounds” or “has reasonable grounds for suspecting”. The word is very loose and I wonder whether it has not been put in with a view to having something to give away in the course of the Bill’s proceedings—not an unknown stratagem, and a very sensible one.
Similarly, the word “risk” really is tempting providence. One can say that there is a risk if something can be foreseen as possible even though it is never near probable. What exactly do the Government have in mind? Has this been used previously in a similar context? That is very important.
Those are the points I wish to make at this stage. I am grateful that the amendments have been explained so lucidly and helpfully and look forward to hearing the response.
I have also put my name to Amendment No. 3. I do not have anything significant to add to the comments that have been made, but thought I should make it clear that I have not resiled from signing the amendment. I still think it is desirable to have the higher standard of being satisfied rather than merely suspecting. I note with interest the comment of the noble and learned Lord, Lord Mayhew, that this may have been designed as a throwaway; that may well be it. There is another point where a wide range of people have put their name to amendments; I recommend that to the Attorney-General as another good throwaway when he reaches that point.
In my experience, no one ever assumes that somebody has resiled from an amendment simply because they do not speak to it when they have signed it. The assumption is the reverse—that they would tell the Committee if they had changed their mind. Otherwise, it would be assumed that they were in total agreement with all that had been said.
This is a series of amendments to raise the threshold in the statutory test. I should like first to consider this in the round. I accept the need for a robust test and to ensure fairness, but fairness needs to be seen in the round as well. Fairness to the defendant is very important, but the wider public also need to be assured that the trial system is fair to them and, therefore, to the prosecution.
The Government believe they have the right balance in the Bill, and the question is what that balance should be. I therefore make a preliminary observation on the consequences if one gets the test wrong. If the test—that is, the hurdle that the DPP must consider and surmount—is set too low, the consequence could be that a case is tried without a jury although the risk to the administration of justice was not sufficient to require that. The defendant on trial would still receive a fair trial, but it would be a trial before a judge sitting without a jury. In all the time I have held this post—nearly six years—I have not heard anyone, including anyone in Northern Ireland, suggest that the trials before the judges in Northern Ireland are in any sense unfair; indeed, if anything, it is quite the contrary as a detailed set of reasons is given at the end of the trial. One never has that with a jury trial, and it can be tested on appeal.
So the worst that could happen—although I want non-jury trials to apply only in a very limited number of cases—is that, if one sets the test too low, the person would be tried before a judge sitting alone and would receive a fair trial. The risk the other way does not come out like that. If one sets the hurdle too high, the risk is that a case will fall to be tried before a jury where there is a risk of jury intimidation or something of that sort. The consequence is—and it has happened in Northern Ireland—that the trial cannot take place or that there is not a just verdict. I emphasise: I want a robust test; I want fairness. But, if anything, the risk of getting this wrong is a risk of setting the hurdle too high for the DPP, or whoever else we may end up with, to make that decision.
If one sets the hurdle too high, it is not just that the trial may be put at risk but individuals may be put at risk as well. Jury intimidation may result in real threats, real intimidation of individuals. We know from work that has been done that intimidation is a serious problem in Northern Ireland. It is exacerbated by the small close-knit communities in which people live. The work done indicates that 7 per cent of victims of crime in Northern Ireland have experienced harassment or intimidation but that only half of all intimidation offences are reported to the police. So there is a real issue to be considered. We would not be having the debate otherwise.
Intimidation can have a devastating effect on individuals subjected to it. It undermines public confidence in the justice system. So, when considering the test, it has been necessary to give careful thought to what the right test should be, to look at the sort of cases where these problems arise and to draft provisions with that in mind. That is not to say that it is not right to reconsider those precise formulations in the light of the important statements made by all those who have participated in this debate. But I want to be sure that all the cases that pose risks of jury tampering or perverse verdicts are capable of being caught within the system. Therefore, I confess to taking a cautious approach with perhaps a lower rather than a higher threshold in the test.
I want to make another important observation, and I hope the noble Baroness, Lady Harris, will forgive me for making the point. In summarising the test, she put together the first and the second limb. I invite noble Lords to bear in mind that there are two limbs which need to be considered before the DPP can give his certificate. Not only must he suspect that one of the conditions is met, he must also be satisfied that in view of this failure, there is a risk that the administration of justice might be impaired. I will return to those individual words in a moment, but I underline that both those requirements need to be met.
In the second limb, what about the words “a risk” that the administration of justice might be impaired? I confess that I am concerned about trying to set that particular test for the reason that for the past 35 years in Northern Ireland there has been non-jury trial in the most serious cases. The consequence is that there is very little evidence of direct jury intimidation or perverse verdicts. If one were to impose on the DPP a requirement, for example, that he should be satisfied that there would be impairment of the trial, it would pose a very high test, and it is quite hard to see on the evidence how that could be satisfied.
[The Sitting was suspended for a Division in the House from 4.41 to 4.51 pm.]
I was explaining why it would be asking too much to expect the Director of Public Prosecutions to be satisfied that there was an impairment to justice given the need to have evidence—of which there is very little—to support such a judgment. He would have to make a judgment in the round, considering a number of different factors that together indicated a risk that the administration of justice might be impaired. It would inevitably be difficult to find information that would meet the higher test proposed by some of these amendments.
I shall refer to the specific points put before I address the final amendment in the group. I was asked by the noble and learned Lord, Lord Mayhew of Twysden, whether I could give other examples of the word “suspects” and, if I recollect rightly, the concept of risk, being used in statute. I cannot do that now, even having had the interval of the Division—what I think is called in another place a short adjournment. However, I shall ensure that we look into that and try to write to the noble and learned Lord about it before Report.
The noble Lord says that with such authority that I am sure he has done it. Therefore, I would not dream of disagreeing with him. I have made it clear that I want to consider everything that has been said on the detailed wording. I am responding to the specific points raised. I shall look at the points that the noble and learned Lord raised and write to him before Report.
Will the noble and learned Lord also consider the phrase “reasonable foreseeability”—if it is reasonably foreseeable? As he will know, that is the test for civil liability. It is a little more sensible than pure risk and not quite so tough as the next one up.
Of course, I will consider that because the noble and learned Lord asks me to do so. However, I come back to the main point. At the end of the day, we need a robust test that will meet the necessity of the case in the particular circumstances of Northern Ireland—that is, not to find that cases where the administration of justice is at risk will be put at risk because the DPP or anyone else is asked to submit the issue to too high a test. There is evidence of cases where intimidation is a risk and where perverse verdicts and intimidation of juries will be a risk. I believe that no one in the Committee or in the House as a whole wants to see cases where justice cannot be done for those reasons, so we need to get the test right.
The noble Baroness, Lady Harris, asked me whether I saw a conflict between the interests of justice and the administration of justice. I do not. I do not think that administration of justice amounts to expediency. I believe it to be an expression that is frequently used in the concept of justice. Only recently I described my own role as one where I have to act to support the administration of justice. I will reflect on quite where the difference between the expressions arises but I am quite confident that a test based on the administration of justice is not a test about expediency.
The final amendment would enable non-jury trial only if the director was satisfied that no other measures would address the risk to the administration of justice. We are focused on reducing the risk to jurors, which is why we are taking forward a number of measures. These include: balloting of jurors by number rather than name; increased use of screening of jurors from the public; separate juror accommodation where possible; and increased protections for juror information, including making it an offence to disclose juror information without lawful authority. The measures will not entirely eliminate the risk of jury tampering; we believe that some form of non-jury trial remains necessary. For example, screening and balloting by number will not prevent jurors being recognised by the defendant or his associates. In a small jurisdiction such as Northern Ireland, the only other measures that could be taken would have such a large impact on the life of the juror and his family, such as relocation, that they go beyond what is a reasonable price to pay for having a sound and safe administration of justice. I cannot accept that amendment, although I would expect whoever the decision maker is—the DPP—to take into account the fact that other measures are available when considering whether there is a risk.
This has been a valuable debate on important issues, and I hope that what I have said has been helpful in explaining the Government’s position.
I expected the noble and learned Lord to reply as he did on Amendment No. 9. The person, whoever it is, will consider what other measures are already in place, such as the ones that the noble and learned Lord described, but there are no additional measures that are not in the Bill that would safely be considered in the context of Northern Ireland. I shall have to accept that he does not even to wish to write in the Bill his assurance that the DPP or the Attorney-General—whoever it may be—will naturally consider whether the safeguards already provided for juries will prove to be adequate.
I am most grateful to the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Trimble, for their support on Amendment No. 3, which proposes strengthening the Bill in regard to the use of the word “suspects”. There is some hope, from the remarks that the noble and learned Lord made, that we could return to this with greater expectation that it would be favourably considered at Report. Certainly there could be cases where the trial is wrongly decided by the jury and a perverse verdict is reached or jury intimidation occurs without the safeguards in the Bill. But if you take that line, of course, we would still have the Diplock courts and we would not be contemplating these changes. As the noble and learned Lord explained, we would not be having this discussion if 7 per cent of witnesses did not experience harassment or intimidation. Well, we would not be having this discussion if we were not heading towards a peace process—a peace settlement—in which we hope these things will be relegated to the distant past.
So there is scope in the Bill for a proper balance to be drawn between the obvious needs of safeguarding the process of justice and giving the DPP excessive powers, which we believe the clause at present contains. In the mean time, in the hope that we can return to this matter on Report and that we shall have a more favourable discussion than we have had now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 to 9 not moved.]
10: Clause 1 , page 1, line 16, and insert “, or
(c) is involved in serious organised crime.”
The noble Lord said: In speaking to Amendment No. 10, I shall speak also to my Amendment No. 11 in the group. These are amendments to conditions 1 and 2 in Clause 1; and I immediately concede that Amendment No. 11 is defectively drafted. I further concede that had I thought to turn the page to contemplate condition 3, I might have tabled an amendment to that, too; but as I am, strictly speaking, moving only Amendment No. 10, I shall concentrate on that and not worry about such minor matters.
It is generally accepted or believed that prior to the outbreak of what we call the Troubles there was no serious organised crime in Northern Ireland. After the formation of paramilitary organisations, or as part of that, all of those organisations became involved in what we loosely call racketeering. They had to raise funds to maintain their activities and they then became involved in what we would now call serious organised crime.
The ending of the paramilitary campaigns and the dying away of the direct bombing campaigns and assassinations left the racketeering that those organisations were involved in more apparent and there is every reason to believe that the racketeering has increased over the past decade—apparently because the Chancellor of the Exchequer continues to make engaging in it highly profitable in certain circumstances and because the people who were involved in paramilitary activities and terrorism now have more time on their hands. There have been comments that some people are racketeers for five days a week and paramilitaries at the weekends; I often prefer to say that a lot of people involved in paramilitarism are “privatising” themselves—in other words, focusing on what might otherwise be regarded as private activity.
Therefore, there is a close relationship between paramilitary organisations and organised crime. At Second Reading, I quoted from a report indicating that, depending on how you counted it, about half or three-quarters of those involved in organised crime had paramilitary connections. Clause 1 provides for non-jury trials in most cases involving a connection with or membership of a proscribed organisation. A significant number of serious organised crime activities will fall within the Act, because those involved in organised crime have a background in or a connection with paramilitary organisations.
Other groups involved in organised crime do not have such a connection, apparently, and will not fall within the Act. The only measure that they will fall within is the provision in the Criminal Justice Act 2003 that we discussed earlier. But organised crime in Northern Ireland has grown largely out of the culture of paramilitary organisations; and organised crime, whether it has a connection with those organisations or not, very much bears the stamp of their operating methods—indeed, broadly in terms of the way in which they operate, there really is not a huge difference between serious organised crime and a paramilitary organisation. They rely on the same techniques such as trying to intimidate jurors and witnesses in much the same way. One wonders whether it is right even to draw a distinction between paramilitary groups and those involved in serious organised crime. The same problems arise and the same methodologies are evident. That is why I have tabled this amendment.
If we do not have an amendment of this kind, we will be left with the unsatisfactory situation we touched on previously: we will have quite different legal regimes dealing with racketeers depending on whether or not those racketeers happen to have a history of or other connection with a paramilitary organisation. That is not a good thing. As well as being undesirable, there is a matter of principle here. This amendment would extend the operation of the Bill and broaden the range of circumstances in which a non-jury trial could take place, because when considering the circumstances in Northern Ireland, one is dealing with the same activity whether it falls within the Bill as presently drafted or as it would if it were to be extended to Amendment No. 10 and related amendments drafted correctly and tabled to address conditions 2 and 3. I beg to move.
These amendments would extend even further the circumstances under which the DPP could issue a certificate for a non-jury trial and it is tempting to support them for that reason. While we recognise that there is a strong connection between paramilitary organisations and organised crime in Northern Ireland, we believe that the provisions of Section 44 of the Criminal Justice Act 2003, which has come into force in Northern Ireland, are sufficient to deal with the risk of jury tampering in cases involving organised crime. Those provisions therefore make these amendments redundant and we would not support them if they were pressed at Report.
I support the amendment. A number of sound points have been made. The Attorney-General recently remarked, “What a village we live in. Everybody knows everybody else”. That is absolutely true. The noble Lord, Lord Trimble, has made the point about the relationship between organised crime and paramilitaries and the fact that as paramilitaries fade, organised crime is likely to grow. That has one disadvantage in that it means that this type of trial will probably have to continue. However, the fact is that we have to pay attention to and take into account the changes in paramilitarism and organised crime. Again, I support the amendments.
The amendment illustrates the difficulties in getting this absolutely right. The noble Lord, Lord Trimble, has made a case for having an even wider set of conditions under which non-jury trial could be ordered. He recognises quite rightly that those cases of organised crime which are connected with paramilitary organisations would already be caught by the test. There is no need to extend the definition in the way provided for in his amendment in order to catch those cases. He also rightly identifies the cases that would in practice be caught by the amendment as those cases of organised crime which are unconnected with paramilitary organisations. The question to determine then is whether the same risks to the administration of justice arise in cases of that kind.
The Government’s view has been that such cases do not pose the same risks to the administration of justice. I do not deny that organised crime can give rise to risks to the administration of justice through jury tampering, but they would be met by the provisions of Section 44 of the Criminal Justice Act 2003. I hope that that illustrates that the Government have been looking carefully at where it is right to draw the line. On the amendment, the noble Lords, Lord Trimble and Lord Glentoran, take the view that it would be wise to extend the circumstances whereas the noble Lord, Lord Smith, takes a different view. Maybe that is an indication that we have been looking very carefully to get the position right.
The Northern Ireland Affairs Committee was also supportive of retaining non-jury trial for organised crime cases. That can be put in support of what the noble Lord, Lord Trimble, said. As I understand the report, it was more concerned with potential intimidation of witnesses. I do not believe that non-jury trial affects that issue at all. Sadly, witnesses can be intimidated in both non-jury trials and jury trials. I do not think that its particular focus really takes the matter any further.
For those reasons, although recognising the case that the noble Lord makes, the Government believe that we have put in the right position, having carefully considered which cases really give rise to the sort of risks that would be covered by this extended procedure. I am afraid that I therefore cannot accept the amendment.
The Attorney-General has advanced essentially the same point as the noble Lord, Lord Smith of Clifton; namely, that with regard to organised crime and non-paramilitary activities, the 2003 Act would be adequate. The problem, among other things, is that the 2003 Act sets very high standards for a non-jury trial. Although we are dealing with the same phenomenon, we have a higher standard if there is no paramilitary connection or background and a lower standard if there is a paramilitary connection or background. In addition there is the question of witnesses and/or the problem of perverse verdicts that apply to serious organised crime.
I have listened to what the Attorney-General said. I want to reflect on that and consider whether I want to improve my drafting at a later stage. Consequently, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
12: Clause 1 , page 2, line 22, and insert—
“( ) In determining whether the conditions in subsection (9)(d) or (e) are fulfilled, the Director of Public Prosecutions must consider whether there is evidence of a significant relationship between A and B.”
The noble Baroness said: I rise to move Amendment No. 12, again in the names of my noble friend Lord Smith and myself. We return to the issue raised in another place and about which we spoke at Second Reading. We believe the term “associate” is generally too broad and that it should be tightened. How do we determine whether “a person” is “a friend”, “a relative” or “another person”? These terms are always highly subjective. For instance, two people could be cousins but may not have seen each other since childhood. Should a trial be conducted without a jury in such circumstances? Have the terms “friend” or “relative” been used in any other legislation in relation to something as serious as permitting a non-jury trial?
The issue was raised by the Joint Committee on Human Rights. It said:
“‘Associate’ for the purposes of the first condition is defined to include a ‘friend’ or a relative, as well as spouses or former spouses, civil partners or former civil partners, and co-habiting partners or former partners. A proscribed organisation is defined to include an organisation which was proscribed at the time of a person’s membership of the organisation. The power to certify is therefore extremely wide. This raises questions of compatibility with the right to freedom of association in Article 11 ECHR, the right to respect for private and family life in Article 8 ECHR, and the right not to be discriminated against in the enjoyment of Convention rights in Article 14 ECHR. We therefore asked the Government for a more detailed justification for applying the power to certify to people who are associates of members or former members of proscribed organisations”.
The Government response largely relies on its security assessment. It says that the security assessment that the Government have received is that members of paramilitary groups attempt to intimidate witnesses and jurors in cases where close friends or family members are the defendant in order to secure acquittals, and that former members of paramilitary groups also continue to intimidate their communities and attempt to use this to secure acquittals.
The Government also point out that a connection with a member, or former member, of a paramilitary group would not, on its own, be enough to justify a decision for non-jury trial in a case. The DPP would also need to be satisfied of the risk thereby posed to the administration of justice.
In the Northern Ireland Human Rights Commission’s view, the first condition is extremely problematic. The inclusion of “friend“, which is very subjective, and “relative”, which is very open-ended within the meaning of “associate”, makes the condition extremely broad in scope and so gives the DPP an extremely broad power to prevent a jury trial. The commission also considers that there is a risk of a breach in Article 14 in conjunction with Article 6.1 ECHR, in so far as the Bill makes it possible for a person to be denied a trial by jury on the basis of having been born into a family, one of whose members had at some time broken a particular law.
Colleagues in another place sought to remove paragraphs (d) and (e) in their entirety; however, the Minister argued that without these provisions there would be a large gap in the clause. Therefore, we have sought to tighten up the definition of “friend” and “relative” by ensuring that the DPP must have evidence of a significant relationship between A and B. We are trying to address circumstances whereby second cousins, say, have an extremely close, long-standing friendship which would cause the DPP to suspect that the jury could indeed be at risk from intimidation, and those of first cousins who have never even met each other because of a family rift, therefore making the possibility of jury intimidation minimal. I beg to move.
My noble friend’s remarks reminded me of an occasion a very long time ago when I was a young man living in Derbyshire. I went to dinner with a neighbour and we got on to discussing consanguinity and the relative risks to the offspring of close relatives who were married. My hostess, whom I was sitting next to, said that she had always understood that there was not really much risk with first cousins but that there was a very strong possibility of genetically damaged offspring arising from the union of second cousins. I said, “I don’t know about that, because my father and mother are second cousins”. She said, recovering quickly, “Well, perhaps there’s something wrong with your sister, then”. So my noble friend’s comments on first and second cousins made me wonder where we are going to draw the line. I discovered a couple of years ago that my wife and I were 16th cousins although I am sure that that would not be of any interest to the DPP. Where is the line to be drawn? We need some clarity on the matter.
The issue of friends is indeed subjective. I do not know whether Members of the Committee are familiar with MySpace on the world wide web. You can sign up and then invite somebody to be a friend. Simply by the act of saying that the person is a friend, he or she becomes a friend. It is a very convenient way of extending your contacts on the world wide web, but it would be stretching a point to say that someone who is signed up in that manner would be caught by the provisions of the Bill. That illustrates how difficult and subjective the use of the word “friend” can be in different contexts. My noble friend is quite right; unless we have greater clarity on the use of the terms “relative” and “friend”, and the definition of “associate”, we are giving the DPP an enormously wide power that he should not possess.
I am very grateful in particular for the intervention of the noble Lord, Lord Avebury, because he made my point for me. The fact that someone is a first or second cousin does not tell you the answer to the question. The noble Lord asks: never mind about Derbyshire or Northern Ireland, where do you draw the line? That line is drawn when the second condition is met—when the DPP is satisfied that, in view of the particular condition that has been found, there is a risk that the administration of justice might be impaired.
The noble Baroness, Lady Harris, gave two examples. If there were second cousins who were very close, the DPP might be satisfied that there was a risk that if one of them was on trial, the other would go about the business of intimidating jurors, and that in view of that relationship—albeit the relative was only a second cousin—there would be a relevant risk. In her other example—first cousins who had never spoken because there had been a family rift—the DPP would not take the view that there was a risk due to that relationship. It is important to take fully into account the second condition.
What worries me about putting in a word like “significant” is that one could end up with an artificial definition of what “significant” meant—for example, a “significant” relative is anyone up to a first cousin or second cousin, but not a nephew by marriage—and one could end up with a set of conditions in identifying someone. The real issue that one should consider is whether, in view of the fact that there is a relationship, there is a risk that the administration of justice might be impaired.
I do not believe that the DPP is hell-bent on asking for a non-jury trial in every case in which one of the conditions is met. I am sure that that will not be the position at all and that the DPP will apply the conditions with a great deal of care and attention. I appreciate the fact that the amendment is much more helpful than the one brought forward in another place and recognises that one needs to have some provision in relation to relatives. One does not want to put an unnecessary and possibly artificial burden of definition on this test when the key question will be whether, in view of that, the DPP is satisfied that there is a risk to the administration of justice. I invite the noble Baroness to reflect on that.
I thank the noble and learned Lord for giving me his explanation of how he feels the DPP will know exactly what the strength of the friendship is. I still find it difficult to imagine how he will come to that conclusion and from where he will draw his knowledge. Who is to know who is a close friend, relative or whatever? However, I will reflect on what he has said. We may well come back to this matter with even better suggestions on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Clause 1 agreed to.
Clauses 2 to 6 agreed to.
14: After Clause 6 , insert the following new Clause—
“Challenge of issue of certificate
(1) There shall be a commission, to be known as the Special Appeals Commission.
(2) Where a certificate has been issued under section 1 the defendant may appeal to the Commission.
(3) The Commission shall allow an appeal against the issuing of a certificate under section 1 if it considers that the decision to issue the certificate was flawed when considered in the light of the principles applicable on an application for judicial review.
(4) Where the Commission allows an appeal under this section it may make an order under this subsection.
(5) Where an order is made under subsection (4) the Director of Public Prosecutions for Northern Ireland shall, as soon as is reasonably practicable, withdraw the certificate issued under section 1.
(6) Schedule (The Special Appeals Commission) has effect.”
The noble Lord said: The amendments concern the challenge of the issue of certificate. Overall, we understand the need for the protection of sensitive information. Just as the Shuker judgment said, decisions must be firmly based on the practical implications of permitting judicial review. However, we do not want to restrict judicial review unnecessarily. The right to trial by jury, as has already been said, is a basic principle of UK law and should not be set aside lightly. We continue to have some doubts about the wisdom of a necessarily partisan player such as the DPP making such a decision. The procedure must not be allowed to become more opaque than it is already, if that is indeed where we must end up.
We have tabled two sets of amendments. Amendment No. 16 is a probing amendment extending the possible grounds on which judicial review is based in Clause 7. It would insert two extra grounds: “lack of jurisdiction” and “error of law, or”. The Government have taken the three reasons currently in the Bill from a case mentioned in the Shuker judgment at paragraph 17, R v Director of Public Prosecutions ex parte Kebilene and others (2002), where Lord Steyn said,
“absent dishonesty or mala fides or an exceptional circumstance, the decisions of the Director to consent to the prosecution of applicants is not amenable to judicial review”.
Do the Government not feel that there are other standard reasons where a judicial review might be wise?
My second set of amendments is rather more substantial. They establish the right to an appeal against the decision by means of a special commission. The structure and powers of that commission have been based on the Terrorism Act 2000, which established a similar process to deal with the decision to remove a name from the list of proscribed organisations. The commission will be able to hear sensitive evidence in private, so the decision will be able to be reviewed without risk.
We feel that that procedure would be a valuable safeguard against the use of the certificate. The DPP's decision will often be controversial and this measure will improve public confidence in it while maintaining due regard to the sensitivity of the information. I beg to move.
I have some sympathy with Amendments Nos. 14, 15 and 18, because they are an ingenious way to try to resolve the issue of judicial involvement in the process of deciding on the mode of trial. However, it seems that the noble Lord is taking a sledgehammer to crack a nut. A much simpler approach would be either to ensure that there is judicial involvement in the first place, as we suggested in our Amendment No. 13, or to fully preserve the right to judicial review by getting rid of Clause 7 altogether. Although Amendment No. 16 is obviously welcome in that it extends the grounds for appeal, we would still prefer Clause 7 to be removed altogether.
I regret to say to the noble Lord, Lord Glentoran, that I find myself very much in agreement with the noble Lord, Lord Smith of Clifton, that the simple way of resolving this problem is to remove Clause 7. That is the sum total of the matter. The noble Lord, Lord Glentoran, has been very ingenious in the way he has proceeded, but I suggest that there is a simpler, more straightforward way, and I invite him to join other noble Lords in calling for the deletion of Clause 7 as the most elegant and simplest way to proceed.
The noble Lord’s amendments deal with two connected but separate matters. One, as has just been apparent from the intervention by the noble Lord, Lord Trimble, relates to Clause 7. I shall deal with that first before coming back to Amendment No. 14 and the following amendments, which provide a new potential procedure to deal with DPP certificates.
I anticipate that we will shortly be coming to deal with Clause 7 in more detail, so I will simply say this at this stage: Amendment No. 16, tabled by the noble Lord, Lord Glentoran, would add two further grounds for challenge to Clause 7—lack of jurisdiction and error of law. While I recognise that those are common grounds for judicial review, I am at something of a loss to see how quite they would arise in relation to our provisions in a way that would make them fall outside the guidelines of bad faith, dishonesty and other exceptional circumstances, which are laid down in the clause. Certainly I have difficulty seeing how lack of jurisdiction arises. I am not sure that it would be necessary to put those in, because if a court were of the view that there was an error of law—at least, such an error of law as to vitiate the certificate, as it were—it would regard that as falling within the category of “exceptional circumstances”, which is undefined. The noble Lord may have some particular examples in mind, and at some stage he may want to give me those. I see the noble Lord rising.
The reason those words have been chosen, in an amendment made in another place, was to reflect the way it was dealt with in the Shuker case, but I think we will come back to that in the next group of amendments.
I turn to the substantive proposals in Amendment No. 14 and the connected amendments, namely Amendments Nos. 15 and 18. I recognise why the noble Lord, Lord Glentoran puts them forward, and I recognise that he has appreciated the particular issue with which we have been seeking to wrestle in that the decision about jury or non-jury trial will often depend upon sensitive intelligence information. He appreciates that, for the reasons I explained before, it would be difficult for that material to be shared with the defence or deployed in open court.
I hope the noble Lord also appreciates the concern that without some quite elaborate procedure, or possibly some procedure involving special advocates, the only way of dealing with a case in which it became necessary to disclose sensitive information, so that the issue of jury or non-jury could be dealt with, would be by withdrawing the application to have a non-jury trial. That is what we do not want to find: a situation in which there is intelligence that there is a risk to the administration of justice but it is not possible to reveal that openly, and the end result is that one has to proceed with a trial that may then be imperilled because of intimidation.
I am concerned—as is the noble Lord, Lord Smith of Clifton, although, I recognise, with a different end result—that the proposal the noble Lord puts forward is a sledgehammer to crack a nut. This is quite a complex and cumbersome procedure that has the potential to add delay into the criminal justice system while these issues are being determined. I said I would not say anything about Shuker, but I am going to break that promise straightaway by making this point: the Court of Appeal in Shuker was saying that it is rarely appropriate for the courts to intrude on to this sort of decision. It is not that it is never appropriate, which is why it is right that there should be circumstances in which they can intrude, but the court itself said it was rarely appropriate to do so, and it is worth reflecting on why that is. It is partly because the DPP is making a decision, not about a substantive issue that is to be determined in a trial, but about the mode of that trial. I repeat that the alternatives are two forms of fair trial, not a form of unfair trial against a form of fair trial.
The consequence of the DPP’s decision will be that, in certain circumstances, a defendant will be diverted to a form of trial that remains every bit as fair, in the general sense, as a jury trial. It is also the case that the DPP—somewhat unusually; it is not the position in England and Wales, but it is so in Northern Ireland—already makes decisions about mode of trial. He decides whether cases can be tried with a jury in the Crown Court or without a jury in the magistrates’ court. In England and Wales that is a decision for the magistrates, but in Northern Ireland it is for the DPP to decide.
I am concerned that the noble Lord is putting forward a cumbersome proposal for dealing with the particular problem; that is the concern I have about accepting that part of his amendments.
I thank the Minister for his response. I accept that the proposal is somewhat cumbersome, but it has highlighted our concerns about who should make this difficult decision. I sense that that debate will go on outside this House for some time. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
Clause 7 [Limitation on challenge of issue of certificate]:
On Question, Whether Clause 7 shall stand part of the Bill?
In the debate on Clause 7 we shall also be discussing Amendment No. 17, which is consequential. For us, Clause 7 is the most objectionable of all the provisions in the Bill. My honourable friends in another place voted against it at Report, and since then the Joint Committee on Human Rights has severely criticised it, for reasons that are set out in some detail in paragraphs 1.28 to 1.37 of its report.
The clause seeks to curtail the jurisdiction of the ordinary courts to entertain challenges to the DPP’s decision to issue a certificate, including challenges to the legality of that decision. As originally drafted, the clause also tried to subject Section 7 of the Human Rights Act—by which proceedings can be brought, claiming that a public authority has infringed a convention right—to a limitation that was set out in the clause. That part of it, at least, has been amended, and we welcomed that improvement.
However, the jurisdiction of the courts is not ousted altogether but is restricted by reference to the grounds on which the issue of a certificate by the DPP may be challenged. A challenge is still possible on grounds of dishonesty or bad faith. It is claimed that such a limitation is not incompatible with a right of access to a court in Article 6.1 of the ECHR because in issuing a certificate, the DPP is not in fact determining a civil right.
This issue is discussed in paragraph 1.30 of the JCHR report. In response to the committee’s request for elaboration of the reasons for the statutory ouster of the court’s jurisdiction to review the legality of a delegated decision, the Government pointed to the Shuker case in which they said that the High Court of Northern Ireland had ruled that,
“the procedure for determining mode of trial of the accused is not a process suitable for the full panoply of judicial review. Judicial review would be possible, however, on grounds such as bad faith, dishonesty, or other exceptional circumstances”.
The Government claimed to be putting the judgment in Shuker on to a statutory footing, but, as they know, on careful reading of the Shuker case, the Joint Committee on Human Rights found that the Government had misread the judgment. What they are doing here is identical with the argument presented by the Attorney-General to the court in that case, and that was expressly rejected by the court. It is acknowledged that the court allows that decisions which are generally subject to judicial review may be exempt from certain grounds of challenge and that the decision in question, which concerned the de-scheduling of offences under the Terrorism Act 2000, was not amenable to judicial review on grounds of procedural unfairness. But the court specifically declared that it would not be helpful, or even possible, to predict what other grounds there might be for precluding judicial review challenges to delegated decisions.
Further, the JCHR draws attention to the inappropriateness, in human rights terms, of sweeping statutory ouster clauses in legislation. It points out that the last time the Government tried this on, during consideration of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, they were forced to withdraw the offending provisions in the face of overwhelming parliamentary opposition. It welcomed the concessions that were made, in particular subjecting the clause to the Human Rights Act, but considered that lack of jurisdiction or error of law should be specifically mentioned as grounds on which judicial review would still be available. Our solution is even simpler: we propose to eliminate the clause altogether, leaving it for the courts to determine, as they have done quite properly in the Shuker case, that there is a small number of cases in which the decision of the Attorney-General—or, under this Bill, the DPP—should not be challengeable.
I too am of the view that we would be better leaving out Clause 7. The matter came up on Second Reading when, in reply to the debate, the noble Lord, Lord Rooker, said that the clause,
“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”.
He said later:
“The clause is not a change from the current position”.—[Official Report, 20/2/07; col. 1054.]
Let me quote from what appears to me to be the relevant part of the Shuker case. The Lord Chief Justice, Sir Brian Kerr, said in his judgment:
“The exercise involved in deciding whether offences should be de-scheduled is in some respects akin to the decision whether to prosecute…This is par excellence a procedure on which the courts should be reluctant to intrude. It is, moreover, a task that has been entrusted by Parliament to the Attorney General and while this will not in all cases render judicial review impermissible, it signifies a further reason for reticence…It must be made clear that while we have concluded that judicial review is not available to challenge the decision of the Attorney in the present cases, we do not consider that this will be excluded in every circumstance. As Mr Morgan has said, such a decision would be reviewable on the ground of bad faith. Depending on the circumstances of other cases that might arise, further grounds of judicial review challenge may be deemed appropriate but we do not consider that it would be helpful, or even possible, to predict what those grounds might be”.
That is the Shuker judgment. The noble Lord, Lord Rooker, said that Clause 7 puts the Shuker judgment on a statutory basis, but I am not altogether sure that it does. The clause allows the issue to be raised in three cases,
“dishonesty, bad faith, or other exceptional circumstances”.
That is similar to what is in Shuker, but I am not sure that it is exactly the same. The use of “exceptional” before “circumstances” does not appear in the passage of the judgment that I mentioned. The three cases of,
“dishonesty, bad faith, or other exceptional circumstances”,
will be read as defining other circumstances quite narrowly, or at least as indicating that they should be regarded as exceptional. The Lord Chief Justice did not use the relevant word. He said:
“Depending on the circumstances of other cases … further grounds … may be deemed appropriate”.
He said “appropriate”, not exceptional.
Therefore, I am concerned about whether Clause 7 accurately represents the Shuker case. I am not sure that it does. However, if the Government are satisfied with the Shuker case and believe that they have put it on a statutory basis here, that implies that they are content with the Shuker judgment. If that is the case, why not leave the Shuker judgment as it is? It is restrained in its approach. There is no reason to doubt, is there, that the judiciary will be appropriately restrained in these circumstances?
The Lord Chief Justice says that the courts should be reluctant to intrude and refers to a reason for reticence. There is no reason to doubt that the courts will be reticent or reluctant to intrude, so is there any ground for suspecting that the judges will exercise the possibility of judicial review in a way that frustrates the working of this legislation? I think not. Shuker indicates that the judges are properly cautious and that we can rely on them to be cautious in the future. Leaving the provision as it is in the Shuker case means that we would provide for unforeseen circumstances. The difficulty with trying to embody something in legislation is that of anticipating in advance all the circumstances that might arise. While the Government have tried to cover that by including the phrase “other exceptional circumstances”, the use of “exceptional” in that context worries me. From the point of view of doing justice in these cases, we would do much better to leave this matter to the courts to consider. If the courts make a mistake, under our system it is open to Parliament to change the law. However, in this situation it would be better and wiser to leave the matter to the courts, relying on the good sense that we see represented in Shuker, rather than try to render it now in concrete and perhaps make a mistake in so doing.
I agree with what has been said. I look forward to hearing what can be put forward against it. The jurisprudence of judicial review has developed over the past 30 or 40 years and has provided us with far and away the most effective curb upon the abuse of Executive power that exists—in my view, far better than any Bill of Rights yet invented. It is one of the ironies of life that Lord Diplock should publicly be associated with the report that led to the curtailing of jury trial whereas he, more than anybody else, was responsible for the genesis of this new jurisprudence of judicial review. Towards the end of his life he said that he regarded it as the greatest achievement of the judiciary in his time.
It would be unwise for the Government to persist with Clause 7. The history of ouster clauses, which try to exclude the jurisprudence of the courts, is not particularly happy. Judges will find a way around them in any case which they consider—to use a legal cliché—to be a proper case. The clause as drafted demonstrates that the Government recognise the need for some provision—a saver clause, perhaps—for other exceptional cases, and that is exactly what judges can be relied upon to give weight to if they consider that the facts of a case warrant it. We have been reminded of the way in which judges have been perfectly sensible about recognising that there are areas of decision which are not sensibly amenable to judicial review, and we should continue to trust them in that. The harm in this clause is that it suggests on the part of the Government a degree of distrust of the judiciary. The whole history of judicial review should go against that. I hope that the Government will give this issue close thought and not be afraid to come back and say that the arguments have persuaded them.
In the light of what has been said, it is plain that we need to consider the points. While we do that, I want to explain to Members of the Committee the considerations which led the Government to bring forward this clause so that, in their turn, those arguments can be considered as well. Three points need to be made: what the problem is, the nature of the DPP’s decision, and what was said by the Court of Appeal in the Shuker case.
We have touched on the problem a number of times during the course of our debates today. The problem is that in most of the cases where the DPP would reach the conclusion that he should issue a certificate, he would be heavily reliant on sensitive intelligence information, more often than not sensitive intelligence information which comes from human sources. One then has to envisage what the situation will be if there is a challenge to that certificate.
I have been a practising lawyer for a very long time and I know that in representing a defendant in those circumstances I would want to say, “I do not accept the decision of the DPP and I want to see the information on which he has based it”. Automatically, I would try to get at that information. Indeed, I might try to do that for two reasons: either because I would want the opportunity of challenging the underlying basis to see whether I could pick holes in it or say that the DPP had been too bullish in deciding that there should be a non-jury trial, or simply because I would know that the likelihood is that the evidence on which the DPP based his decision is information he cannot possibly share with me. The DPP cannot tell me and my client why it is believed that he is associated with a paramilitary organisation because my client will be able to guess that that information comes from a particular associate, and it is likely that only a certain number of associates could be responsible for it. He knows that I cannot share that information.
That is a fact of what happens in other areas such as in criminal trials where people seek to get at what lies behind what is known as personally identifiable information—(PII)—because they want to see whether they can put the prosecution into the position of having to identify an informant. The result is that sometimes the case cannot go ahead at all because the prosecution cannot disclose the sensitive information. In this case it would be that the prosecution cannot continue on the basis that there should be a non-jury trial, because the risk that the DPP was concerned about might come into existence. It is to recognise that risk and seek to minimise it that the Government have looked at who should be making the administrative decision and how far it should be open to regular challenge in the courts.
The second issue is the nature of the decision the DPP is making. As I have also said during these debates, the decision he is making is analogous to other decisions he already makes, such as the mode of trial. He makes the decision already about the mode of trial between the Crown Court with a jury or a trial without a jury in the magistrates’ court. He is also making a decision, as again I have said several times, between one form of fair trial and another. I do not dismiss for a moment the very strong, understandable and justifiable attachment to jury trial, but even without a jury it remains a fair trial.
I understand that those particular considerations were the reasons that led the Court of Appeal in the Shuker case to say that they would approach judicial review with reticence. I turn, then, to that case to explain where the words come from. The noble Lord, Lord Avebury, if I remember correctly, suggested that the argument we are putting forward in the Bill—presented by me, he said; in fact, it was presented on my behalf, but never mind about that—is precisely the argument that was rejected by the Court of Appeal. That is not right. The argument rejected by the court was that there should not be judicial review at all, and that is not what the clause says. It does not argue that there should not be judicial review at all; it recognises that there will be circumstances in which that is legitimate. However, it seeks to reflect in statutory language what we understand the Shuker decision to have been.
There are several passages in the judgment that are relevant. The passage read by the noble Lord, Lord Trimble, is undoubtedly very relevant. As he concluded,
“This is par excellence a procedure on which the courts should be reluctant to intrude”.
In fact the only circumstance the Lord Chief Justice was prepared specifically to countenance was bad faith. He did not even go further than that; as the noble Lord says, he said he did not want to identify what the further cases might be.
There is an earlier passage in the judgment at paragraph 17, which is a quotation—the noble Lord, Lord Glentoran, referred to this in an earlier amendment—from Lord Steyn, who said that,
“absent dishonesty or mala fides”—
that is, bad faith—
“or an exceptional circumstance, the decision of the DPP to consent to the prosecution of the applicants is not amenable to judicial review”.
It is that language that is being picked up in the statutory language. It would be for the courts to determine what were the exceptional circumstances, and that would be fully within their discretion to decide.
The Joint Committee on Human Rights strongly condemned and criticised the earlier version of the clause. The noble Lord, Lord Avebury, referred to paragraphs 1.28 and 1.37. Paragraph 1.28 deals with the original version of this clause. Let me be perfectly frank: I could not have stood here and commended the original version of Clause 7 to Members of the Committee. I would not have been able to do so. However, following those criticisms and, indeed, what was said in another place, amendments were made, including explicitly putting back the reference to the Human Rights Act. It is right that the committee then deals with that in paragraph 1.37 of its report, and what it says there is not in any sense as strong as what it had said about the previous paragraph, nor should it be. It said that it welcomed,
“the narrowing of the scope of this previously sweeping clause … and in particular the subjection of the ouster clause to the Human Rights Act 1998. However, we note that the amendment still does not meet all of our concerns expressed above. A prohibition on judicial review except on grounds of dishonesty, bad faith or ‘other exceptional circumstances’ does not make sufficiently clear in our view that judicial review for lack of jurisdiction or error of law will still be available. In our view the rule of law requires no less”.
I read that as meaning, as did Amendment No. 16 tabled by the noble Lord, Lord Glentoran, that they are concerned with the absence of “error of law” or “lack of jurisdiction”. My question is: is that covered by exceptional circumstance? Indeed, my general question comes back to the point rightly made by the noble Lord, Lord Trimble. Given that the courts have indicated that they see a lack of reticence in the Shuker case, ought Parliament to leave it to them on these rather different clauses in these rather different circumstances; or ought we to send a message as Parliament that although it will remain for them to determine what are the exceptional circumstances, they should exercise reticence in relation to judicial review? I accept that we need to reflect on that, but I invite noble Lords also to reflect on the problem that I identified, which has led us to this position, which is, if we do not somehow send a message and express as Parliament concern about judicial review in the broader sense, we risk very sensitive information that we should not disclose having to be disclosed to determine that judicial review.
None of that is to disagree one jot with what the noble and learned Lord, Lord Mayhew of Twysden, said about the importance of judicial review. I entirely agree with him about that. I might say that the Human Rights Act is also a very important part of holding the Executive to account, but judicial review is certainly important. This is not an ouster clause in the sense advanced in the Asylum and Immigration Bill—which I can now tell your Lordships, given that it was never put to the House, I, too had problems with.
I thank the noble and learned Lord for allowing me to come in. At the end of the day, his argument is that if we do not send that message about restricting judicial review, circumstances may arise in a case where sensitive information which ought not to be put in the public domain gets into the public domain. Surely his concern will be met by an application for a public interest immunity certificate, so it is not necessary.
There is a problem with that. If I may, I shall just explain why. Public interest immunity—I say this for other readers of this debate—is a procedure under which the prosecution goes to a judge to say, “Please will you relieve us of the obligation of disclosing this information to the defence”. That is only where the prosecution is not seeking to rely on that information. The classic case in which public immunity arises is where the prosecution has unused material, which it is generally under an obligation to disclose if it is relevant, but it wants to say to the judge, “We do not want to disclose this information. We are not seeking to rely on it. We think that, at most, it is of very marginal relevance to the defendant's case. We do not think that it is at all relevant, but we want to be relieved of the obligation”.
PII does not of itself enable one to go to a judge to say, “We want you to rely on this information in reaching your decision but you cannot tell the defence about it. You cannot reach a decision about whether it is right that the DPP has reached his decision, but you cannot tell the defence”. In order to do that, you would need a different procedure which, I think, would have to be some form of statutory procedure under which the court would have some different advocate able to deal with the material—a special advocate. There are difficulties about that procedure, which is why one comes back to the whole question of how it is appropriate to deal with it.
I see the noble Lord, Lord Trimble, looking concerned about what I have said, but let me repeat: PII is not a procedure under which you can say to a judge, “We want to say that this man is guilty of this offence. We have some secret information that we want you to see but he cannot see it”. That we do not do, and rightly. So I do not think that the PII is an answer to that problem and that is why I say that it is necessary to reflect on how one can otherwise deal with this issue.
The noble and learned Lord relied very heavily on the question of how you deal with cases where sensitive intelligence information is relevant to the determination of the issue of the certificate. I refer him to paragraph 1.34 of the report of the Joint Committee on Human Rights, which specifically deals with this question in the context of Clause 7. Where the Attorney-General had explained to the committee that where,
“the decision-making process entailed the application of high policy and was frequently based on sensitive material that could not be disclosed without risk to certain vital public interests”,
that particular question was addressed by the High Court, which held that,
“it was satisfied that the decision of Attorney-General on whether a case should be de-scheduled is not within the exceptional category that is exempt from judicial review, albeit that there are significant constraints on the extent of review that may be undertaken”.
The JCHR was apprised of the argument that the noble and learned Lord is now advancing to the Grand Committee and dealt with it in that paragraph.
If the noble Lord will permit me—paragraph 1.34 deals with the previous version of this clause, which I do not put and would not have supported before your Lordships. The JCHR is saying that the previous version of the clause, which appeared to be, on one reading at least, a complete ouster, represented an argument that was rejected in Shuker—namely that there could be no judicial review at all. I do not say that Shuker states that there cannot be judicial review at all, I say that it has to be, as the extract mentioned by the noble Lord, Lord Trimble, said, considered with reticence—and I have indicated the reasons why. So I do not read paragraph 1.34 as rejecting the argument that there is not a problem in relation to the potential disclosure of sensitive information; the paragraph was dealing with the previous version of the clause, which we accept was not acceptable. That is why the clause has been substantially amended.
I entirely accept what the noble and learned Lord says, but the argument rejected by the High Court of Northern Ireland stands alone and is not to be considered in relation to the clause as it was originally drafted, but is of general importance.
If there is a conflict of opinion about what Shuker actually said—and that seems to be the case, because the noble and learned Lord reiterated that he thinks that the Government have got it right and that the JCHR was wrong in its interpretation of that judgment—why can we not obtain further opinions? Should it be left to your Lordships to have to decide whether or not they accept the opinion of the noble and learned Lord or that they prefer the combined wisdom of the JCHR? Surely it is not satisfactory that we should be left in the position of having to choose between equally eminent and distinguished legal authorities in making up our minds on how to treat this clause. If the noble and learned Lord, Lord Mayhew, is right, that debate may be academic anyway, because he said that the judges have always found a way round the exclusion of their jurisdiction from particular cases.
What we need to find out from the noble and learned Lord before we leave this matter altogether, is whether there are any other ousters in the statute book. We heard only about the attempt by the Government in 2003 regarding the treatment of claimants, which, as the noble and learned Lord acknowledged was a mistake by the Government; he has also acknowledged that the original drafting of this clause was a mistake. So why then is the whole clause not a mistake? Is there any other provision in the statutes where such an ouster clause exists? If not, I suggest to your Lordships that, once we limit the jurisdiction of the courts in this way, we are embarking down a very dangerous road indeed. We think that it would be safest, as the noble Lord, Lord Trimble, recommends, to leave the Shuker judgment as it stands and not to have this clause on the statute book.
Given the way the noble Lord started, I need to respond. He invited me to, and I will do so. I do not accept this is an ouster clause because an ouster clause is one that says a court cannot interfere. It is perfectly right that it is a limitation. There are examples of limitations. I cannot identify them at the moment. The noble Lord makes a perfectly fair point to look at what the other examples are. I will see that that happens after we have completed today’s Committee.
I do not think that this is a question of opinions as to what Shuker means—and I understand that the JCHR was faced with the new clause at very short notice. I do not read paragraph 1.37 of the JCHR report as having made a full analysis of the meaning of the clause as against Shuker. Perhaps that is what it intended. I do not think that is the question. There are questions of policy about the risks involved which the Chamber will need to consider. That is why I have said that I want to reflect precisely on what has been said today. What all noble Lords have said is very important. I also invite noble Lords to reflect on the reasons I have indicated on how we got into this position.
I am being very frank in explaining what the problem is so that nobody is in any doubt about why the Government have put forward this proposal.
The noble and learned Lord lays some weight on the assertion that this is not an ouster clause. Surely, he will acknowledge that it is an ouster provision, and that is what really matters. Clause 7 says the court may not entertain. That means it cannot grant a hearing. It is true that at the end there are three exceptions to that, but it is an ouster provision, is it not?
I do not want to cross swords with the noble and learned Lord on that point. I was trying to distinguish this clause from the clause that was put forward in the other Bill, which would have gone much further, and, indeed, from the way that the previous clause seemed to be going. If the way I have described this offends the noble and learned Lord and he thinks that it is wrong, I certainly do not want to rest on that point; I want to rest on the substance and not on any description of the clause.
I do not want to get too involved in the terminology. I am inclined to agree with the noble and learned Lord the Attorney-General that this is not a complete ouster clause. It ousts in certain circumstances the jurisdiction of the court, but it maintains circumstances where applications can be made to the court. That I think undercuts the argument the Attorney-General was making about the need to ensure that sensitive information is not disclosed.
If the argument the Attorney-General puts is as important as he indicates, that points towards a complete ouster. He is not ousting; he is still enabling applications to the court in these circumstances, the third provision of which, as he pointed out, is not clearly defined. I had doubts about it. I was not altogether comfortable with that third one. But the situation he was worried about—that of people going into court and seeking information that should not otherwise be disclosed—can happen under the clause as he has drafted it. He still enables people to go into court and say, “I want to challenge this on the grounds of some exceptional circumstance” and then in the course of those proceedings try to get at the information that the Attorney-General wishes to protect.
The point that the Attorney-General was making is undermined by the fact that this is not a complete ouster.
I did not want to prolong this matter, but I cannot withstand the noble Lord’s stare. I invite him to reflect on this. I made it very clear that I wanted to reflect on what noble Lords have said. I fully recognise that this is an important clause, and I want to consider it. I have also asked noble Lords to consider the problem that exists. It can be said that the clause as it stands has the benefit that the court would say, “We have a clear message from Parliament that it does not expect us to interfere as a matter of course. It expects us only to interfere exceptionally on one of these grounds, and at least you, defendant, have to make out what that ground is rather than simply saying, ‘Well, we need the director to reveal all his information and then we will tell you what the ground is’”. The noble Lord will understand the forensic situation in which one may find oneself in that case. But, as I say, I shall reflect on what has been said.
The noble and learned Lord has very fairly said that he will reflect on all that has been put to him, and he said also earlier that he is prepared to discuss, offline as it were, with noble Lords any points that arise in Grand Committee which remain causes of anxiety. I think this is par excellence one of those issues. It is difficult for us to resolve it across the Floor of the Committee, particularly in the absence of my noble friend Lord Lester who drafted the amendment. I am sure that when he reads our discussion, he will have some strong opinions on the matter and would probably want me to point out before we leave it that although, as the noble and learned Lord has said, the Select Committee welcomed the narrowing of the scope of the clause, it was by no means satisfied that that met the whole of its case. There are issues that it would be useful for us to leave for the moment, but to take up with the noble and learned Lord in his offer to continue our deliberations outside the Chamber before we reach the further stages of the Bill.
Clause 7 agreed to.
Clause 8 [Supplementary]:
[Amendment No. 17 not moved.]
Clause 8 agreed to.
Schedule 1 agreed to.
Clause 9 agreed to.
Schedule 2 agreed to.
[Amendment No. 18 not moved.]
Clauses 10 and 11 agreed to.
Clause 12 [Abolition of peremptory challenge in criminal cases]:
19: Clause 12 , page 10, line 5, at end insert—
“(6) The Crown’s right of stand-by is abolished.””
The noble Lord said: We have come to the question of equality of opportunity for the defence and the prosecution to conduct juror checks, which is discussed in paragraph 138 and following paragraphs in the report of the Joint Committee on Human Rights. Noble Lords will have noticed that I am following closely on the text of that report and the recommendations made in it. I hope that, as a general principle, noble Lords would pay close attention to what is said in the report and, indeed, in any other report produced by the JCHR; otherwise, what is the point of having the committee? If the committee scrutinises legislation with the benefit of very distinguished legal authorities who are members of that committee and comes forward with recommendations, it would be fatuous to ignore them or not take them seriously.
Here is a case where I hope that noble Lords will see that there is a strong argument for Amendment No. 19, which concerns the established principle that parties in legal proceedings must have equality of arms to be able to pursue their respective cases.
Clause 12 abolishes the defendant’s right to peremptory challenge. The Government have explained that this should not compromise a defendant’s right to a fair trial because, according to their thinking, the defendant will continue to have the right to challenge any juror for cause. They explain that the reason for abolishing the defendant’s right to peremptory challenge is to limit his ability to pack a jury, thereby reducing the risk of perverse verdicts. I suppose that is based on the assumption that people’s religious beliefs may affect their decisions on a jury.
The Northern Ireland Human Rights Commission agrees that the right of peremptory challenge may compromise justice, but it recommends that, in order to reduce the risk of perverse verdicts, both the defendant’s right to peremptory challenge and the Crown’s right to stand-by ought to be removed. That is why we believe this amendment is necessary in order to ensure compatibility with the principle of “equality of arms” implicit in Article 6.1 of the European Convention on Human Rights, that no party must be under procedural disadvantage compared with any other party in litigation.
The JCHR report refers to the guidelines that the Attorney-General proposes and what the contents of those guidelines should be. When the committee reported, the Government said that the policy in relation to the guidelines on jury checks had not yet been settled, but it was anticipated that they would closely reflect those that already apply in England and Wales, a copy of which they provided to the committee. I would be grateful if the Minister could tell us whether those guidelines are available and whether your Lordships might have a copy of them, either now or at any rate before we come back to this question on Report. I beg to move.
It is about 14 years since I ceased to be Attorney-General, and in my recollection the right of the Crown to stand-by without cause was abolished in England and Wales a good deal earlier than that. It was anomalous. It has a rather bad effect upon the juror against whom it is applied, because no reason is given. The counsel for the prosecution simply says, “Stand by for the Crown”, whereupon he is asked to stand down, and off he goes, not knowing what on Earth is thought to be the matter with him. Secondly, it is desirable that the same rules shall apply in Northern Ireland as in England and Wales. However, there are, unhappily, still difficulties that are peculiar to Northern Ireland, and I can see that it may be impracticable for the Crown to say, when seeking to rely upon a challenge for cause, quite what it is that is the matter—what makes the potential juror an unsuitable member of the jury. Therefore, I am afraid I am not at the moment persuaded that this amendment should be supported. At the cost of some anomaly, there continues to be a justification for this in Northern Ireland.
I shall respond immediately to the question raised by the noble Lord, Lord Avebury, about whether I have the England and Wales guidelines with me. I have. They were sent to the Joint Committee on Human Rights Committee as well. I hesitate to suggest that it is just possible that they are the guidelines of the noble and learned Lord, Lord Mayhew of Twysden, because they look as if they emanate from about the time when he would have been in office. I may be wrong about that, though, and we will invite him to check that later. I say that without any concern, because they are very good guidelines.
I shall explain the position. I need to set this in context. Clause 12 amends the Juries (Northern Ireland) Order 1996 to abolish the defendant’s right of peremptory challenge. In England and Wales, peremptory challenge was abolished by the Criminal Justice Act 1988. From what has been said so far in the debate, I do not understand that the basic principle that it is right to abolish the right of peremptory challenge is in issue.
The noble Lord’s amendment would remove the Crown’s right to request that a juror be stood-by. As he said, it is based very closely on concerns expressed by the Joint Committee on Human Rights.
If this provision is passed as it stands, I intend to introduce guidelines, broadly comparable to those which have operated in England and Wales since 1988, making clear that the Crown should assert its right to stand-by only on the basis of clearly defined and restrictive criteria; namely, where, in cases involving national security or terrorism which are being tried with a jury—many will not be if the rest of the Bill is passed—an additional jury check reveals information justifying the exercise of stand-by and the Attorney-General personally authorises the exercise of the right of stand-by; or where a person is about to be sworn as a juror who is manifestly unsuitable, and the defence agrees that stand-by would be appropriate. I hope that gives an indication of how the measure will operate. It is broadly comparable to the guidance which operates in England and Wales.
I do not accept that the principle of equality of arms prevents that proposal. As the report of the Joint Committee on Human Rights makes clear, the principle of equality of arms requires that the defendant should not be placed at a substantial disadvantage. I do not consider that the proposal to abolish peremptory challenge will place a defendant at a substantial disadvantage or interfere with the overall right to a fair trial. He will continue to enjoy adequate protection through retention of the right to challenge for cause. I do not agree that the proposal to abolish peremptory challenge while retaining stand-by in a very restricted form—that is what the guidelines that I shall issue will do—infringes the equality of arms principle.
ECHR jurisprudence establishes that, although the overall fairness of a criminal trial cannot be compromised, limited qualification of the constituent rights within Article 6 can be acceptable if they are proportionate and directed towards a legitimate aim. I believe that making provision for the limited use of stand-by in the way I have indicated is proportionate to the overall objective of ensuring that the trial process is fair and delivers justice for defendants, victims and society at large.
If the noble Lord does not have a copy of the existing guidelines, I shall make sure that he and any other noble Lords are provided with one. I hope that he will accept the explanation I have given; that the exercise of the right to stand-by will be very limited under the guidelines and will be a justifiable measure to retain given the risks in those very few cases where a problem may arise. It may help if I tell the noble Lord that during the past six years that I have been Attorney-General I can recall only two occasions where I have authorised the prosecution to exercise this right. Those cases involved national security or terrorism. That indicates that this is a very restricted right, but one which I believe needs to be retained for those exceptional cases.
It is helpful to have on the record what the noble and learned Lord has said about the manner in which he approached the task of issuing the guidelines that are relevant here and their relationship to the existing guidelines in England and Wales. This may be another matter on which we could have a discussion offline, as on the previous debate on whether Clause 7 should stand part. Presumably when the noble and learned Lord says that the principle of equality of arms means only that the parties should not be at a substantial disadvantage to one another, then in exercising the right to apply this clause the Attorney-General would have regard to the question of how far, if at all, the defendant was disadvantaged by the use of the power. If he felt that there was a substantial disadvantage, it would not be exercised. However, these are matters which it will be useful to discuss with my noble friend when he reads what has been said this afternoon. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clause 13 agreed to.
Clause 14 [Investigations: evidence]:
20: Clause 14 , page 11, leave out lines 8 to 11
The noble Lord said: The paragraphs in the report of the Select Committee relevant to this clause are numbered 162 to 164. Clause 14 enables the Northern Ireland Human Rights Commission to issue a notice to a person requiring that person to produce information, documentation or to give oral evidence. Subsection (4) states that the NIHRC may issue this notice only if the matter to which the notice relates has not been investigated sufficiently by some other person. The Government have argued that this safeguard is necessary to ensure that the NIHRC’s powers are exercised appropriately and that the human rights of those who might be placed at risk by the evidence are protected.
It should not be a condition of the commission’s power to procure evidence that no other person has conducted an investigation into the matter in question. It may well be that the matter has been investigated by another person who has a different mandate and focus than the NIHRC would have in its own investigation. So the commission should have the power to investigate a matter and call for evidence where it believes that it is necessary to do so. The JCHR takes the position that the clause should be a requirement and not a substantive condition. I beg to move.
I shall speak to Amendments Nos. 21, 26 and 28 tabled in my name and that of my noble friend Lord Smith of Clifton. Amendment No. 21 is consequential on Amendment No. 20, while Amendments Nos. 26 and 28 employ a similar argument in relation to national security. The new provision prevents the NIHRC considering in an investigation whether an intelligence service has acted or is acting in a way incompatible with a person’s human rights or other matters concerning human rights in relation to an intelligence service. The NIHRC identifies three key issues arising from the provisions of the Bill: 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.
The NIHRC argues that the provision in the Bill enabling the recipient of a notice that the commission may issue requiring the production of evidence to apply to a county court for cancellation of the notice would not add to the protection of human rights, and cites the UN Paris principles in support of its view that national human rights institutions should be able to take action falling within their competence, subject to responsible use of their powers, as determined in this case against the ordinary threshold of judicial review.
I also cite the recent report by the Police Ombudsman for Northern Ireland into allegations of collusion between the police and their informants, which said:
“It is essential that in the arrangements for the future strategic management of national security issues in Northern Ireland, there will be accountability mechanisms which are effective and which are capable of ensuring that what has happened here does not recur”.
These amendments seek to ensure that accountability.
The case made by the noble Lord and the noble Baroness can be seductive, but one has to ask, if a matter has been sufficiently investigated, how come another publicly funded body with finite resources should duplicate the investigation? We are not talking about a cursory glance at the issue; the Bill says that the matter has been “sufficiently investigated”. I am not sure why the commission itself, if it concluded that a matter had been sufficiently investigated, would want to proceed.
The significant new powers we are extending add value to the protection of human rights in Northern Ireland. We do not think that would be achieved by investigating matters in a duplicated fashion, particularly if they have been sufficiently investigated. It is worth noting that the provisions will allow a court to cancel a notice seeking to compel evidence on the grounds that it is unreasonable. We have not invented that for the Bill; it mirrors the provisions in the Equality Act 2006, which established the Commission for Equality and Human Rights in Great Britain. There is a direct, comparable situation here. One has to take account of the special circumstances in Northern Ireland, but, all things being equal, the objective is to make these systems as comparable as possible. That is quite reasonable.
A court could consider whether the fact that a matter had been sufficiently investigated made a further investigation unreasonable. As a result, the amendment would remove the duty on the commission to conclude that a matter had not already been sufficiently investigated, but would not remove the ability of a court to consider that as grounds for appeal against the notice seeking to compel evidence. These are two sides of the coin. As I say, our provision mirrors the Equality Act 2006, which applies to Great Britain. There cannot be a justifiable reason for making it different for Northern Ireland in circumstances where—I emphasise—a matter has been sufficiently investigated in the past by another obviously competent body.
We will discuss what the Minister said with the Northern Ireland Human Rights Commission and we will establish whether it is satisfied with the answer he gave. There may be circumstances that we cannot entirely envisage where it would be necessary for it to pursue investigations of matters that had been thoroughly looked into by someone else. If we cannot identify those at the moment, the best thing we can do is have a word with the NIHRC, and we will come back to the Minister if necessary. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 21 not moved.]
22: Clause 14 , page 12, line 47, leave out from beginning to end of line 2 on page 13
The noble Baroness said: Clause 14 severely limits the capacity of the Northern Ireland Human Rights Commission to investigate anything connected with national security. The proposed new Section 69B takes no real 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 of the police in relation to national security matters.
Northern Ireland has been through terrible times. New Section 69B seems not to recognise those particular circumstances. Many human rights issues arose then—as we have seen from the ombudsman’s report—about the police and collusion. In practice, the Bill could forbid any disclosure to the commission of any relevant information from the past, the present and the future. That simply cannot be right.
At present, there is no restriction in the Northern Ireland Act 1998 on the ability of the commission to investigate national security issues. New Section 69B(5) has the effect of reducing rather than enhancing the commission’s powers. It states that 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 or GCHQ.
It is one thing to prevent sensitive information coming into the public domain. We all accept that there will always be a necessity to protect national security, but it is entirely another thing to prevent questions ever being raised. The scope of this section places virtually every aspect of intelligence activity, whether past, present or future, beyond investigation by a statutory human rights agency. It restricts the scope of any investigation severely and forbids the commission to look into anything concerning human rights in relation to the intelligence services. It runs the risk of diminishing the commission’s credibility.
How can the public feel confidence that the security services are complying with their obligations under human rights legislation? It is at the very point where national security concerns are raised that oversight must be allowed if abuse of the system is not to become an issue if the exercise of power becomes unquestioned. If it becomes unquestioned, it becomes unaccountable and most likely to be taken advantage of. If the commission cannot even consider whether the intelligence services are breaching human rights, it will not have the opportunity to have the question of what evidence it can look at adjudicated by the tribunal established under the Regulation of Investigatory Powers Act 2000.
Bearing in mind that virtually the same provisions were made in Schedule 2 to the Equality Act 2006, the commission would still insist that the particular circumstances of Northern Ireland justified a different approach. It would also point out that the Irish Human Rights Commission did not have that limitation in its statute. Under Section 8(11) of the Human Rights Commission Act 2000, the IHRC cannot demand evidence from a person if that evidence is subject to legal professional privilege. There is, however, no mention in that Act of national security overrides.
Surely a compromise would be to allow the RIPA tribunal to authorise or deny the calling of evidence, but to reject the blanket ban on investigating the intelligence services. At least questions could be asked of the intelligence services, even though there would be no obligation on them to give any answers. I beg to move.
The noble Baroness will not be surprised to hear that I disagree with almost everything she has just said. It is absolutely vital that we and the Government recover ourselves in relation to our intelligence services. They must be able to operate in the way they need to to protect us.
In this country, Ireland, and, for that matter, most places in the world, we are all at higher risk from more sophisticated forms of terrorism than we have ever been including the whole of the Cold War. Our intelligence services being unable to work freely and competently through the lines they have for many years will undermine one of the key defences of this country. That simply has to be taken on board.
When national interests and not just the interests of a part of the United Kingdom are concerned, the national interest has to come first. There is no doubt in my mind that one question always leads to another. If questions are asked, even if they are not answered, they will give pointers to the people who are interested in breaching our security. I feel very strongly that it is absolutely unacceptable to have a body which will be good-hearted and enthusiastic and so on, but which will not necessarily have the faintest idea of the implications of what some of the inquiries it wishes to pursue may lead to. That really cannot be allowed, and I strongly support what the noble Lord has said.
It was only towards the end of the remarks of the noble Baroness, Lady Harris, that I took on board that she fully understood what she was asking for—that is, a completely separate arrangement in Great Britain to Northern Ireland. I have to say—and I want to give a decent answer—the issue is just non-negotiable. The position is as in the Bill. It would be quite untenable to have a different arrangement for these issues in Great Britain.
Notwithstanding that, the noble Baroness, answered one of her own questions. She asked, “Where can the human rights aspects of the security services be raised?” She then referred to the fact that RIPA, the Regulation of Investigatory Powers Act 2000, is there to consider, among other things, complaints against the intelligence services, including matters relating to human rights. She answered her own question.
The point is that nobody would argue that it is important that the Northern Ireland Human Rights Commission can carry out effective investigations. No one would argue against that, and it is important that it should not be unnecessarily impeded. However, it is also important that we do not allow individuals or organisations to access or consider material that might jeopardise the interests of national security. Noble Lords have not questioned the exemptions relating to national security material.
Without access to such material, the commission could not provide effective oversight of the intelligence services. That oversight is provided by another body, the Investigatory Powers Tribunal, which was set up by the RIPA 2000.
I repeat the point I made on the previous amendment; this exemption is the same as that which applies to the Commission for Equality and Human Rights in Great Britain. As such, if we were to remove the provision, it would create a difference between the ability of Great Britain and Northern Ireland bodies to investigate the intelligence services. We are simply not willing to create such a difference. So, unlike on the first amendment, I cannot promise to take this away and come back having considered it again. The position is simply non-negotiable and I have to be quite clear about that.
I thank the Minister for his response but he will understand my disappointment with it. I recognise that the same will apply to England and Wales; nevertheless, that does not diminish my suggestion that questions need to be asked if they have human rights implications. That goes across the board, both in England and Wales and in Northern Ireland. Is the Minister really saying that nothing at all can be questioned regarding the security services? That is an extremely dangerous road for us to go down.
While I recognise that it is vital to maintain our national security—I have no intention of trying to lower such terms in any way—there must be an ability to ask questions somewhere. While I will withdraw the amendment at this stage, we may well come back to this matter on Report, probably to get another bashing over the head. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
23: Clause 14 , page 13, line 6, at end insert—
“(7) This section shall also apply to any investigation by the Police Ombudsman for Northern Ireland.””
The noble Lord said: Perhaps I may preface my comments by saying how much I agree with the noble Lord, Lord Rooker, in his response to the previous amendments, and I would like him, as we consider this amendment, to bear in mind what he has just said and to be prepared to follow the logic of his previous contributions.
The Northern Ireland Act 1998 created the Northern Ireland Human Rights Commission and gave it a power to conduct such investigations as it considered necessary or expedient. Clause 14 provides supplementary material with regard to such investigations by inserting two new sections into the 1998 Act. New Section 69A states:
“For the purpose of an investigation under”,
the 1998 Act,
“the Commission may … require a person … to provide information … to produce documents … to give oral evidence”.
The provision for protection of national security is contained in new Section 69B and states that where the commission requires a person,
“to disclose sensitive information within the meaning of … the Intelligence Services Act”,
that person can disregard that. Similarly, if the information,
“might lead to the identification of an … agent”,
that can be disregarded. If it requires disclosure of information,
“relating to an intelligence service which would prejudice the interests of national security”,
that, too, can be disregarded, as can,
“disclosure of information relating to the Police Service of Northern Ireland which would prejudice the interests of national security”.
In those circumstances the commission can apply to the tribunal, mentioned by the Minister, established by the Regulation of Investigatory Powers Act, and the tribunal can then look at the matter. To make doubly sure, there is a provision that a person,
“may apply to the High Court to have a notice,”
requiring information to be disclosed,
“cancelled on the grounds that the requirement imposed … is undesirable for reasons of national security”.
All of those provisions are there to govern investigations by the Human Rights Commission, to protect intelligence information and to protect national security. Broadly, in principle, all of those provisions are right and that is why they should apply not just to investigations by the Northern Ireland Human Rights Commission, but to investigations by the Police Ombudsman for Northern Ireland, who is not subject to any of those provisions. These matters are considered to be important to protect national security, but the same protection of national security does not exist with regard to the police ombudsman, and ought to do so.
I can illustrate that simply. The noble Baroness referred to the recent report by the police ombudsman into alleged collusion between the police and loyalist paramilitaries. Recently, my noble friend Lord Maginnis brought over here some very senior members of the Royal Ulster Constabulary, including a former assistant chief constable. We were chatting about the report and I said to him that what really took the biscuit in my mind was the Monaghan case. This is relevant. The Monaghan case involved a police agent in the Ulster Volunteer Force informing the police that the UVF was going to take a car bomb to Monaghan in order to blow up a republican meeting. The agent informed the Special Branch that the explosives were hidden in a dump. The police got hold of the explosives and took them away, doctored them and then replaced them in the dump. The car bomb vehicle was driven into Monaghan. The detonator went off, but the bomb did not.
Because of the absence of some bits of paperwork, the police ombudsman concluded that this was collusion. I said to the former Assistant Chief Constable that it struck me as utterly ridiculous to come to such a conclusion. But he pointed out to me that it was worse than that because the disclosure of the information was highly prejudicial to national security. Initially I did not fully appreciate the problem, but the ACC said that although over the years journalists had written pieces to suggest that that sort of activity went on—that the authorities had been able to doctor weapons and tamper with explosives to make sure that they could not be used, they had never openly disclosed it—only when it was referred to in an official report from the police ombudsman was it then impossible in the future for the Crown to get a public interest immunity certificate to prevent the disclosure of such activity.
The ACC went on to tell me that if an application is made for a public interest immunity certificate, one of the first questions is, “Has this information ever been disclosed in an official document?”. Until the publication of that report, the authorities could say that it had never been disclosed. It then appeared in the ombudsman’s report. These are matters which should have been kept confidential, but they have been revealed and thus exposed an aspect of the operating methods of the security forces in a way that will prevent the authorities keeping such information out of the public domain. In doing this, what has been undermined is not just an aspect of the reputation of the Police Service of Northern Ireland, but a significant aspect of national security affecting everybody in the United Kingdom.
I had reason to point out in an earlier exchange with the Attorney-General that there is a terrorist problem on a substantial scale in Great Britain, and that we have yet to see the full working-out of it. I am not going to speculate about whether there have already been cases in England where this kind of technique has been used, although I can think of some examples where bombs manufactured by terrorists have failed to explode. Whether it was because of the failure of the people who built the bombs or something analogous to what I have just mentioned took place, I do not know, but I refer to it merely to underline the point here: what was unnecessarily disclosed in that report could undermine national security for the whole of the United Kingdom; it is not something unique to Northern Ireland.
In this clause we have a set of provisions to regulate the disclosure of sensitive information. The provisions are reasonably balanced in that with regard to all the circumstances listed in subsection (1) where the person can refuse to disclose information, the matter can be appealed by the commission, it can go to a tribunal under the 2000 Act and be weighed and examined there. There is a desperate need for a similar procedure with regard to the police ombudsman. We have already had one case. I know that my noble friend Lord Maginnis has studied this matter carefully and will be able to give other examples of disclosure by the police ombudsman of sensitive information which should not be in the public domain. Such disclosure is embarrassing not only for the individuals concerned, but is also something that can have an effect on national security.
The Minister said, and I agree with him, that it was desirable as a general rule to have the legal regime that relates to these matters the same in all parts of the United Kingdom. That is right, and it is a principle I myself have advocated. It may be that, when the initial legislation providing for the Police Ombudsman went through, people had not turned their minds to the fact that the ombudsman would not restrict herself to pure policing matters but would start to inquire into matters that touched on intelligence and national security. This gives us the opportunity now, knowing that the Police Ombudsman has uprated, in a way, and has conducted investigations that get into intelligence matters and relate to national security, to have the desirable safeguards with regard to that office that apply to the Northern Ireland Human Rights Commission.
The noble Baroness, Lady Harris of Richmond, who moved the earlier amendments, could easily have used as an argument for saying that the Human Rights Commission should be free to conduct these investigations the fact that there is another body to inquire into intelligence matters and things that affect national security, and it can do so without any restraint whatever. That would have been a powerful matter to adduce in support of her argument. I would turn it around the other way: if, as the Minister said, these restrictions are necessary in the public interest, they ought to be necessary in all circumstances in the public interest when we are dealing with intelligence and national security matters.
This is an argument for consistency and for extending the safeguards that have been put in this legislation, which the Minister supports. He must therefore be prepared to follow the logic of his arguments, and not undermine them by saying, “While it’s very important that the Human Rights Commission can’t look at this, we’ll allow this other body to look at all these matters to its heart’s content”. That position cannot be defended. The Minister needs to reflect seriously on this matter. I beg to move.
There are two issues here. One is the protection of the operation of the secret services. That is adequately policed, and need not be policed by anyone else. The body mentioned by the Minister exists. The other is the confidence of agents. If agents feel there is any danger that they are going to become an interesting subject in a report, you will not get agents. That will affect not just Northern Ireland but the whole country. Intelligence is indivisible across the United Kingdom, basically. We have to remember that the agent who looks at reports like that is going to go away and say, “I don’t think I will co-operate after all. It is much safer to keep my head down, keep my mouth shut and not do anything”. Please let us remember that too.
I begin by saying to the noble Baroness, Lady Harris, that some of us find it extremely hurtful that people can adjudicate and comment on the events of the past 30 years in Northern Ireland as though somehow they were there and saw our services, our Armed Forces and our police, behaving extremely badly. The reality of those 30 years was that many of us left our homes at night with our wives and children locked in the house, not knowing, bluntly, if they would see us again. Throughout those 30 years the vast majority of people, whether they were footsoldiers, as I was for most of the time, or involved in intelligence work or whatever, acted in a manner that enabled Northern Ireland, despite 3,500 deaths, to operate normally. People went about their work, children went to school, our hospitals operated and normal politics continued. I see in this Room people who have worked hard in Northern Ireland and will understand exactly what I am saying.
That is so important in defining what should fall directly within and outwith the terms of a Bill of this type. As for the idea that somehow we are talking about masses of people in a Balkans region, we are talking about Northern Ireland and the United Kingdom, not the Balkans, not a region dominated by someone called Mugabe, we are talking about a region which, despite terrorism, basically operated as a community should operate. That is why I so deeply resent some of the work that has been done. The Minister knows that I have been single-minded during the past three years in my opposition to the Police Ombudsman for Northern Ireland. If I may, I shall give an example of the type of thing that happens.
A young policeman is driving a vehicle in Belfast during a riot. The vehicle is seen on television, there are television pictures showing that it mounts a footpath. Sitting at home is the Police Ombudsman for Northern Ireland. She thinks that that is dreadful. The next day, she dispatches her minions to knock on doors in that area to ask if people have complaints. Strangely enough, they have no complaints—I think that they are as fed up with the terrorism as everyone else. Does it stop there? It does not. The Minister will remember giving me a Written Answer in the case to which I allude. The young policeman was brought to court on 29 occasions. The incident was in 2001. It was brought to court the first time in 2003. He was still in court at the end of 2004 and eventually was discharged.
The power of the police ombudsman is such that she was immediately able to dictate to the police commanders that, after he had been found not guilty, they should initiate disciplinary action, which goes on to this day in 2007. What does that do to him? What does that do to his colleagues? What does it do to his family?
Why do I tell that story—because it is not directly associated with the Bill? Simply because the situation gets so much worse when we see, for example, the police ombudsman's report into the case of the sad murder of Lance Bombardier Stephen Restorick. I have a copy of the report here. Here we have a police ombudsman who complains when policemen do not give her the sort of information that she expects. I have just prepared a paper, which I have entitled, The Consequences of Co-Operating with the Police Ombudsman of Northern Ireland. I draw to the Committee's attention the fact that one of the policemen who did go to speak to the police ombudsman in relation to the murder of Lance Bombardier Stephen Restorick is someone whom I know particularly well, someone whom I have worked with for many years. He goes along and says, “I do not want to record anything because what I am telling you is crucial to a security operation”. There is an agreement that that will be the case. Yet, when I open the report at paragraph 4.1.7, what do I find? I find that she interviewed
“retired Officer B, Head of South Region Special Branch”.
She might as well have taken that fellow’s name and put it up on a notice board somewhere. But it is worse than that. She then describes in detail his relationship with the TCG and with security agencies—
That is quite right. There is another bit of this. If one turns in the report to paragraph 16.5 to 16.9, it tells us in detail about the Barrett .50 rifle. It tells us exactly what was done about that Barrett rifle and conjectures without any firm information about another Barrett rifle. Where does that information come from? It comes to our police from the FBI or some of the overseas agencies. That is spelt out very clearly.
A Member of the Committee speaking earlier said that it is important to think of Great Britain and Northern Ireland. In the fight against terrorism it is not enough to think about Great Britain and Northern Ireland, one has to think in terms of the various intelligence agencies throughout the world, which were very happy to work with the RUC over those 30 years. My colleagues still visit the headquarters of American intelligence agencies as well as agencies throughout Europe as a consequence of the work we did together.
What we have done, perhaps with the best intention in the world as we were moving from violence to peace, is to rename—I disapproved of it—the RUC as the PSNI, and somebody thought it would be a good idea to have a person with judicial experience to look at complaints. The police ombudsman does not do that. She trawls back and back, and when there is no collateral, opinions are tendered as fact. That is what happens. It does not matter whether it is the report into the McCord case or into the Restorick case. You start off with a concept that somehow the police and the security services worked in an underhand manner in order to undermine society rather than recognising that the work they did saved our society from civil war.
I do not want to keep the Committee but—
If the Committee is particularly keen to hear from me, I pose this question: if we do not close this loophole in the law as my noble friend proposes, for how long will our allies give us any credibility whatever? How will our police constabularies, whether in London, the West Midlands or wherever, get the better of criminality and terrorism if the intelligence—it is intelligence that they need—is withheld because somebody who totally misunderstands their duty pries into every piece of information available and, as so often happens, puts a totally wrong construction on it?
I am hopeful because the noble Baroness, Lady Scotland, said to me last Friday, when I spoke on much the same matter at somewhat less length, that I had raised an interesting point and assured me that it would be given attention. This matter needs to be given attention. We have seen the worst side of inept police ombudsman activity in Northern Ireland. If that spreads throughout the United Kingdom and if the repercussions of it spread across the Atlantic and to European agencies, we are doomed. We shall not have a leg to stand on whether it be a resurgence of Irish republicanism—which I hope will not be the case—al-Qaeda or organised crime. All that will be in huge danger of occurring unless my noble friend’s amendment is accepted. I am happy to say that the Minister and I appear to be on the same side today so I hope that he will listen to what I have said.
I am very grateful for the contributions. We are in Grand Committee and I do not think there is any expectation that I can give anything remotely like a detailed response to all the points made. However, I shall certainly ensure that this debate is read by the Secretary of State so that I am prepared—I am not claiming that I am not prepared—because clearly this issue will be raised on Report.
I do not seek to hide behind the fact that this Bill does not affect the role of the police ombudsman. This is an example of something that I do myself. You look for hooks to hang things on to get issues raised. This Bill is a suitable vehicle to raise the very speeches that we have just heard. I have no complaint about that, but it is not a measure that is central to the police ombudsman’s role. I know nothing about the details but an incredibly plausible case for the amendment was made through the issues raised, notwithstanding what the noble Baroness, Lady Park, said about the thing you could never put your finger on; that is, why the agent never came forward, never spoke or made a report. But the noble Baroness put her finger on the possible consequences where matters are disclosed without any intention to do so. I fully accept that. Again, a plausible case can be made.
The role of the police ombudsman is slightly different. It is worth reminding Members of the Committee that the ombudsman’s powers are set out in Part VII of the Police (Northern Ireland) Act 1998, and broadly speaking we are satisfied that they are appropriate. These include a provision in Section 65(5) for the Police Ombudsman for Northern Ireland,
“to have regard to any guidance given by the Secretary of State with respect to matters relating to the disclosure of which may be prejudicial to the public interest”.
That is a wide provision to cover everything, and national security would certainly be an aspect of public interest. I do not know if any such guidance has been given, but I suspect it has not. But the fact is that the provision is on the statute book.
I may be able to help the Minister on that. It would appear that guidance has not been given. It would also appear that although it was a matter of only hours before the public presentation of the McCord report that copies of it were handed to the Chief Constable and the Secretary of State, the police ombudsman’s office had been trailing the whole issue literally for weeks. The press had it for weeks and told us what was going to be in the report. I have mentioned before that a television programme for Ulster Television produced by Chris Moore was produced within 24 hours. That gives us an idea not only of the folly of the actions of the police ombudsman, but also in line with a Written Answer from the Minister, she breached confidentiality—if not personally, then through her office. I have tabled another Question for Written Answer because I would love to find out how much money she spent on a spin doctor.
We will do our best to answer any questions that come our way. As I have said, the argument for placing what we can call Clause 14-type restrictions on the Police Ombudsman for Northern Ireland might be plausible, but we do not think it is necessary. The remit of the police ombudsman does not extend to the oversight or investigation of the intelligence agencies. The Security Service and the ombudsman’s office are currently working together to agree arrangements for access to sensitive information where it is required.
I want to put a further point on the record, because no doubt we shall come back to this. Section 51 of the Police (Northern Ireland) Act 1998 states that:
“The Ombudsman shall exercise his powers under this Part in such manner and to such extent as appears to him to be best calculated to secure:
(a) the efficiency, effectiveness and independence of the police complaints system; and
(b) the confidence of the public and members of the police force in that system”.
That is the legal duty of the Police Ombudsman for Northern Ireland. The jurisdiction currently extends to the Police Service of Northern Ireland and to operations within Northern Ireland of the Serious and Organised Crime Agency as well as other bodies of constables such as the harbour and airport police. The security and intelligence agencies fall outside the remit of the ombudsman. They are not in the category of a “body of constables” and the ombudsman has no oversight over them whatsoever. The ombudsman’s role is, and will remain, properly focused on the police. However, in so far as the ombudsman may have access to sensitive information by virtue of his or her statutory powers to oversee the activities of police officers, that access is essential to the discharge of the ombudsman’s duties and role in ensuring an efficient and effective police complaints system that commands public confidence.
That may be considered a wholly unsatisfactory response; indeed, I am not claiming that it is satisfactory. But I have tried to emphasise where we consider the boundaries are, I have given pointers in the statutory framework, and I have given a commitment to ensure the Secretary of State will have a full note about the issues raised in this debate before I have to face the House on Report.
I know that the Minister would not wish to misrepresent the situation. The police ombudsman in the Restorick case invited and interviewed members of the intelligence services. They were under no obligation, but one knows how some people feel it is their duty to co-operate with the authorities. The ombudsman interviewed members of the military. It is here in the report—inquiries relating to Operation Poacher, for example. There was an interview with “Officer G”, who was a major in the Army. Whatever may be understood to be the parameters within which the ombudsman works, I assure the Minister that I would not have raised this if it had been a straightforward and uncomplicated case. This is interference that is jeopardising the whole of our national and international security.
I am not going to repeat anything I have said, because what I have said is clearly on the record. One would be stupid not to note the annoyance—although I would probably put it stronger than that if I were outside Parliament—of noble Lords at some of the issues they have given examples of today. They have not come with thoughts, feeling and hunches; they are obviously quoting from reports on specific cases. As I said, I will ensure that the Secretary of State is aware of that. We had not planned for this with this legislation; we are dealing with the extended powers of the Human Rights Commission. The noble Lord, Lord Trimble, was quite right: what might work for one body might not necessarily work for another. However, the general point of principle, which I have made both in this debate and in response to the noble Baroness in the other one, is extremely valued.
It is customary to thank the Minister for his contribution, although I must say at one stage I began to wonder which planet we were on. The Minister said the police ombudsman’s remit does not extend to intelligence, and that she has no role with regard to the intelligence services. Would that that were true.
We have dealt with a terrorist situation in Northern Ireland, and we have that situation in Great Britain today. Although I have no direct knowledge of how things are being organised in Great Britain in dealing with Islamist terrorism, I would be very surprised if the same pattern is not developing in the relationship between the intelligence services and the police services largely along the same lines as the relationship developed between those two services in Northern Ireland. In dealing with terrorism, you end up with an almost seamless web between military intelligence, the Security Service and Special Branch, interfacing with uniformed officers as well. I am drawing the line between saying, “This is police; the ombudsman looks at this”, and, “This is intelligence; the ombudsman doesn’t look at this”. That is not what happens in practice; the one feeds into the other.
Even if it appears to be a purely police operation involving Special Branch and uniformed officers, the methodology adopted can come over from the intelligence services as well. The methodology will run right through it. In the future in Northern Ireland, particularly with regard to these historic inquiries, there may be a stronger dividing line between the police service and the Security Service. I do not know whether it will be possible to do that, but it may happen. But certainly in the historic inquiries, there is not a clear, hard and fast line between intelligence and the police. That is recognised in the Bill and in new Section 69B, which the Bill inserts in the Northern Ireland Act 1998. In dealing with national and security matters, it refers not only to the intelligence services but to the police service. It recognises that aspects of what the police service does will touch on national security.
The provision in new Section 69B is not purely about intelligence; it is about national security. The national security consideration can come into inquiries undertaken by the ombudsman. It will not come into run-of-the-mill police complaints about what the police officer on duty happened to do with regard to a specific situation involving a traffic accident or some other offence, but there will be a range of situations involving national security. If this level of protection for national security is considered appropriate for this agency, then it is equally appropriate for the other agencies.
The Minister was clear at the outset about not being able to explore all these matters; he said that he will do what he can to ensure that the Secretary of State focuses on it. I am very glad that he is clearly placing the responsibility on the Secretary of State. We will see on Report the extent to which the Secretary of State has focused on the matter. But it is not open to the Secretary of State—I hope the Secretary of State reads this—to sit there and say, “Because it is the police ombudsman I’m going to ignore national security considerations”. He might be tempted to say that, but it is not open to him. He does not have a terribly good record, and I am not saying anything about his character because I do not think that that would be appropriate in these circumstances; but I say to the Secretary of State: it is not open to you to ignore national security.
There is evidence both in the McCord case and in the Restorick case that matters appertaining to national security which should not have been published have been published. That is indisputable. There is now a problem which needs to be addressed. In 1998, when the Police (Northern Ireland) Act was being passed and the ombudsman’s office was being created, it may have been thought that the provision on guidance which the Minister quoted was sufficient to cover it, but it is not. It has not worked. The same sort of statutory provisions that are being provided for the Human Rights Commission need to apply to not only its inquiries but all inquiries that touch on national security. However, as the Minister has said he will ensure that this matter is looked at, we shall await the outcome of that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 agreed to.
The Committee stands adjourned until Wednesday.
The Committee adjourned at 7.34 pm.