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Justice and Security (Northern Ireland) Bill

Volume 691: debated on Monday 23 April 2007

Report received.

Clause 1 [Issue of certificate]:

1: Clause 1, page 1, line 8, leave out “suspects” and insert “is satisfied”

The noble Baroness said: My Lords, we had quite a lengthy debate in Committee about who should issue a certificate for a non-jury trial. There was some desire to see judicial involvement in the process, but there was also discussion about whether the Attorney-General might be a more appropriate person than the Director of Public Prosecutions to take such a decision. We decided not to revisit that issue, but we do want to revisit the criteria that the DPP could use for issuing a certificate to conduct a trial without jury. Although we very much welcome the later government amendments on the length of time for which those provisions will be in place, we want to be satisfied that the power of the DPP is not too wide in the mean time.

During Committee, concern was expressed that the threshold that the DPP must meet is too low in judging whether to issue a certificate for a non-jury trial. He need merely “suspect” that any of the stipulated conditions is met and be “satisfied” that there is therefore “a risk” that the administration of justice might be impaired. That is a much lower test than that set out in Section 44 of the Criminal Justice Act 2003, which applies to England and Wales as well as Northern Ireland. The 2003 Act states that there must be evidence of a real and present danger that jury tampering would take place and that the likelihood of such tampering is so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. The requirement in the Bill is therefore considerably lower than that in the 2003 Act.

We have enormous sympathy with the Government's position. Of course, we do not want to set the bar so high that trials are put at risk. However, as there was concern in Committee, we felt bound to return to the issue to ask the Government one last time whether they are confident that they have set the threshold at the right level.

Amendment No. 1 changes the threshold for the first part of the test from “suspects” to “is satisfied”. Concern was expressed in Committee that “suspects” was too low a threshold. Amendment No. 2 changes the threshold for the second part of the test from a “risk” to the administration of justice to “that it is reasonable to believe” that the administration of justice would be impaired by a trial by jury.

In Committee, the noble and learned Lord, Lord Mayhew, used the phrase “reasonable forseeability” as the standard that the DPP should reach before issuing a certificate—that is, that it is reasonably foreseeable that the administration of justice would be impaired. We have tried to build on that suggestion in Amendment No. 2.

As I said, we do not want to put trials in Northern Ireland at risk. However, we want clear assurance that the DPP needs to believe that there is a particular degree of certainty in his decisions when issuing certificates for non-jury trials. I beg to move.

My Lords, I shall be very brief and perhaps a little general. We supported this amendment in Committee but, before I go any further, I should like to thank the noble and learned Lord the Attorney-General for the private consultation that we have had and for the time that he has put in to try to get, to put it simply, the right answer and the right balance in the Bill.

This Report stage is short, neat and succinct. It reflects the Committee stage and the work of the Attorney-General and his team. I have spoken to a number of people outside the House, including Lord Carswell, the Lord Chief Justice, Sir Anthony Campbell, a High Court judge, Sir Hugh Orde, the chief of police and so have taken a lot of temperatures and soundings in the Province. With a few exceptions, we probably have a balance that is as near right as it can get, particularly bearing in mind the sunset clause being introduced by the Government later today. Hopefully my own proposal for a sunset provision on something different will be accepted as well.

Where we are at the moment is extremely difficult. The scene and social set-up in Northern Ireland is not the same as in England. It is smaller and more inward-looking with a history that has left many communities in fear and feeling uncertain about what is happening. They have been threatened and bullied by various gangs for many years. What we have to do is make sure that, if necessary, the PSNI can bring charges and get convictions without a jury because the Government must, above all things, be able to defend jurors and not put their lives or families at risk.

My Lords, I am grateful to the noble Baroness, Lady Harris, and the noble Lord, Lord Glentoran. I am also grateful to all those—I see in their places the noble Lord, Lord Trimble, the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Avebury—who participated in what I thought was a very constructive discussion in Grand Committee. I also thank all those with whom I have had conversations since and for the great care taken by the noble Lord, Lord Glentoran, in investigating from his own point of view how to get this right in Northern Ireland. He and the noble Baroness are absolutely correct to say that we have to try to get the right balance in these matters. I have never suggested that it is straightforward, but we are of the view that, unfortunate though it may be, it is a fact that the position in Northern Ireland remains, and may remain for some time, one where there needs to be a different test for avoiding jury intimidation and things of that sort from the one that would apply in England and Wales. That is why the noble Baroness was right to point out that the test for England and Wales is tougher to satisfy than the test in this Bill, but that is deliberately so for the reasons which have been explained.

The fundamental question put by the noble Baroness is whether the Government are of the view that they have set the balance at the right level. I committed to reflect on a number of suggestions helpfully made in Grand Committee. That has been done and the conclusions were set out in a letter from my noble friend Lord Rooker, copied to all Members who participated in the earlier debates. The short answer essentially is yes, we do believe that we have the balance right, and I shall explain why, but it is correct also to make the point highlighted by the noble Lord, Lord Glentoran, that if the House accepts the proposed sunset or time-limiting clause shortly to be moved by my noble friend Lord Rooker, it will provide an opportunity to see how the test has operated when the House considers a report that no doubt it will want to see on the operation of the Act.

Although we debated them in Committee, I want to make one or two points. First, I think it is now the view of the House, and I appreciate it, that we can have confidence in the scrupulous way in which the current Director of Public Prosecutions for Northern Ireland has discharged his duties. His tenure in office has required him to consider some of the most difficult cases, and in Grand Committee the noble and learned Lord, Lord Mayhew of Twysden, was good enough to make that point based on his own experience. Many of the cases dealt with by the DPP are complex, and confidence in the prosecution service is in no small measure due to the way in which he has scrupulously fulfilled those responsibilities. I have no doubt that he will take exactly the same rigorous and conscientious approach to the new duties that the Bill will impose on him.

The concern has been whether by setting the barrier too high one would put too high a burden before these provisions can be operated. As I explained in Grand Committee, one has to look at the effect of striking the balance in the wrong place. If we put the barrier too high, the risk is that cases which ought to be dealt with under the special provisions in the Bill will not be dealt with in that way. The risk is that there will not be a fair trial because there may be jury or witness intimidation—jury intimidation, particularly. Worse than that, there is a risk that juries might be subjected to violence, which we want to avoid.

Setting the test a little too low could mean that a case is dealt with under the special system under the Bill rather than by a jury; I believe that everyone is agreed that that would be a fair trial, albeit a trial by judge alone. No one has challenged that proposition; everyone has agreed. The history of the Diplock courts in Northern Ireland shows that the judges have conducted themselves with conspicuous fairness in the trials which they have conducted without a jury.

We are concerned that the amendments would risk setting the test too high. We believe that we have struck the right balance and that we ought to keep it, very much for the reasons that the noble Lord, Lord Glentoran, gave. However, we will have an opportunity to see how the legislation has operated if the House accepts the proposal for a sunset clause. On that basis, I invite the noble Baroness to accept the Government’s assurance and withdraw the amendment.

My Lords, I am most grateful to the noble and learned Lord the Attorney-General. We would never criticise what the DPP has done in the past; indeed, quite the reverse, as the noble and learned Lord said. The DPP has been excellent in dealing with very difficult cases. We recognise how difficult it must be for the Government to get the balance right and understand how the test must be just right. We recognise all the difficult work all the judges in Northern Ireland have had to do, especially the Diplock court judges. With the assurances that the noble and learned Lord has given and with the knowledge that there will be a sunset clause, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 7 [Limitation on challenge of issue of certificate]:

3: Clause 7, page 5, line 27, leave out “exceptional circumstances” and insert “lack of jurisdiction”

The noble Lord said: My Lords, this amendment is in the name of my noble friend Lord Lester of Herne Hill, with whose permission I move it. We have already dealt with the issues arising on Clause 7 in Grand Committee, so I need summarise them only very briefly.

The clause prevents the ordinary courts entertaining challenges to the DPP’s decision under Clause 1 to certify that a trial is to be conducted without a jury. As the Bill stands, the certificate can be questioned only on grounds of dishonesty, bad faith or other exceptional circumstances, and we relied on the report of the Joint Committee on Human Rights on the Bill to argue that the Government had misread the Shuker judgment on which the clause was said to be based and that Parliament had consistently set its face against statutory ouster clauses. We had the powerful support of the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Trimble, who cited the observation by the Lord Chief Justice, Sir Brian Kerr, in the Shuker case that,

“further grounds of judicial review challenge may be deemed appropriate”.

However, he added that it would not be,

“helpful, or even possible, to predict what those grounds might be”.—[Official Report, 19/3/07; col. GC 128.]

The noble and learned Lord the Attorney-General explained that the main reason for the clause was that, in issuing the certificate, the DPP would almost always have relied on sensitive human intelligence which he could not reveal but which would certainly be demanded by the defence if a challenge to the DPP’s decision was allowed.

The noble and learned Lord also disputed the JCHR’s reading of the Shuker judgment and drew attention to the quotation, in paragraph 17, by the Lord Chief Justice of a sentence from the judgment of the noble and learned Lord, Lord Steyn, in the case of Kebilene, where the words “exceptional circumstance” were used. That, he told the Grand Committee, was the language that had been picked up for the purpose of this clause.

The first of these arguments was already known to the JCHR; it dealt with it explicitly in paragraph 1.34 of the report. The gist of it was recited in Grand Committee, so I do not need to go over it again. The JCHR welcomed the amendments tabled by the Government following the debates in another place, but it pointed out that the High Court of Northern Ireland had taken on board the sensitivity of the information on which the DPP's decision was based and had still rejected it as an argument for ousting the jurisdiction of the court.

The Kebilene case was not germane to this debate, because the decision of the DPP there was not to deny a jury trial but to consent to criminal proceedings before a jury. Incidentally, the words attributed by the Lord Chief Justice to the noble and learned Lord, Lord Steyn, were in fact those ofMr Pannick of counsel. The Lord Chief Justice, followed by the JCHR and the noble and learned Lord the Attorney-General, left out seven crucial words at the beginning of the quotation. The noble and learned Lord, Lord Steyn, said that Mr Pannick had contended that,

“there is a common law principle that”—

I emphasise those words—

“absent dishonesty or mala fides or some other wholly exceptional circumstance, the High Court will as a matter of discretion not entertain judicial review proceedings of a decision to prosecute”.

I therefore suggest to the noble and learned Lord that it is inappropriate to use those words as a model in this context, reading across from a common law principle applying to a decision to prosecute to a statutory rule applying to a decision to deny jury trial. In any case, the noble and learned Lord, Lord Steyn, specifically disclaimed the application of this principle to the Kebilene case. The paragraph in that judgment, following the one just quoted, begins:

“For my part, I would not wish to base my decision on these observations”.

Whether the analogical force of Section 29(3) of the Supreme Court Act 1981, which prohibits an application for judicial review of the decision of the Crown Court judge to refuse to hold a prosecution to be an abuse of process by reason of an alleged breach of the convention, extends to the matter under review, as it did in Kebilene, I would not have the temerity to say, but I would like to hear it argued.

No doubt these matters have been covered in the discussions since Grand Committee between my noble friend Lord Lester and the Attorney-General. As I understand it, they were moving towards a compromise under which the clause would be retained but the grounds on which judicial review could be sought would be widened. My noble friend has suggested “other lack of jurisdiction” instead of “other exceptional circumstances”, and we believe that this amendment would bring the clause more into line with accepted judicial principles. It takes full account of the Attorney-General's concerns, which are shared by my noble friends, about the unique circumstances of Northern Ireland, where non-jury trials may still be needed for some time to come and it is undesirable to open the reasons for certifying a case to examination because it would compromise the security of human intelligence.

I fully understand that the Attorney-General may not have had sufficient time to consider this proposal since it appeared on the Marshalled List, but I hope that he will indicate this afternoon that discussions with my noble friend are still in progress and that he is hopeful that a mutually acceptable form of words can be agreed. I beg to move.

My Lords, I thank the noble Lord, Lord Avebury, for his reference to me and our discussions in Grand Committee. However, I remain of the opinion that I expressed then: the clause is unnecessary and the Government would be well advised to leave it out. I am sorry to say that I do not see the amendment tabled by the noble Lord, Lord Lester, as particularly helpful. I suspect that it would narrow the scope for challenge rather than extend it as the noble Lord wishes. From a drafting point of view, it would be much better to insert “lack of jurisdiction” as an additional ground rather than take out “exceptional circumstances”. The one good thing that can be said about the clause is the reference to exceptional circumstances, which gives the judges a door through which they can walk if they think that it is appropriate to do so.

My Lords, I am grateful to both noble Lords and to the noble Lord, Lord Lester. I knew that the noble Lord would not be able to be here today, and I entirely understand.

I should like to get one technical point out of the way. I listened with interest to what the noble Lord, Lord Avebury, said about the Lord Chief Justice of Northern Ireland quoting from the noble and learned Lord, Lord Steyn. I beg to differ with him, however. I have the report with me; on page 371, between letters f and g, the noble and learned Lord, Lord Steyn, says:

“My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review”.

That is the passage quoted by the Lord Chief Justice of Northern Ireland in the Shuker judgment, not an earlier passage that recites what counsel had submitted. Just to be technical about that, I think that what has been said about the Shuker judgment is correct.

Fundamentally, the issue has been how to produce a situation in which, as I explained in Grand Committee, there would not be an undesirable risk that sensitive intelligence information, on which these decisions are generally based, would have to be revealed. The conversations that I have had outside the House have been very helpful in getting a common view as to the significance of that point and how to deal with it. But the noble Lord, Lord Avebury, is right in saying that I am not in a position today, given the time at which the amendment was tabled, to express a concluded view on it. Therefore, if your Lordships are agreeable, I propose that we accept the invitation of the noble Lord, Lord Avebury, that I should continue to discuss the matter with the noble Lord, Lord Lester. Then the matter can be brought back at Third Reading to be decided one way or the other. It is a slightly unusual approach, but I hope that your Lordships will agree.

My Lords, I am most grateful to the noble Lord, Lord Trimble, for his intervention. I was advised, technically, that the words “lack of jurisdiction” included exceptional circumstances and were wider. I specifically questioned that point with those who assisted us in drafting the amendment and was assured that it was so.

I am most grateful to the noble and learned Lord the Attorney-General for his assurance that the matter is not closed and can still be the subject of further discussions between my noble friend and himself.

The words that I quoted from the Kebilene judgment were taken from the text available in the public domain on the British and Irish Legal Information Institute website. I am afraid that the paragraph number is not given, so I cannot argue with the noble and learned Lord about which paragraph I am referring to. However, the material point is in the words that I cited:

“there is a common law principle that”,

which precede the sentence quoted in the Shuker judgment. My argument was the substantive one that you could not read across from the common-law principle to a rule of statute as the drafters of this legislation have attempted to do. However, it may be best to leave that matter for the discussions between my noble friend and the noble and learned Lord. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4: After Clause 8, insert the following new Clause—

“Duration of non-jury trial provisions

(1) Sections 1 to 8 (and Schedule 1) (“the non-jury trial provisions”) shall expire at the end of the period of two years beginning with the day on which section 1 comes into force (“the effective period”).

(2) But the Secretary of State may by order extend, or (on one or more occasions) further extend, the effective period.

(3) An order under subsection (2)—

(a) must be made before the time when the effective period would end but for the making of the order, and(b) shall have the effect of extending, or further extending, that period for the period of two years beginning with that time.(4) The expiry of the non-jury trial provisions shall not affect their application to a trial on indictment in relation to which—

(a) a certificate under section 1 has been issued, and(b) the indictment has been presented,before their expiry.(5) The expiry of section 4 shall not affect the committal of a person for trial in accordance with subsection (3) of that section, or by virtue of subsection (4) or (6) of that section, to the Crown Court sitting in Belfast or elsewhere in a case where the indictment has not been presented before its expiry.

(6) The Secretary of State may by order make any amendments of enactments (including provisions of Northern Ireland legislation) that appear to him to be necessary or expedient in consequence of the expiry of the non-jury trial provisions.

(7) An order under this section—

(a) shall be made by statutory instrument, and(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.”

The noble Lord said: My Lords, I wish to speak also to Amendments Nos. 13, 14 and 15.

This group of amendments provides that the system of non-jury trial in the Bill will expire after two years unless the Secretary of State makes an affirmative resolution order to extend it for a subsequent two-year period. I hesitate to use the shorthand term for what we are doing here but it is more rolling renewal than sunset because each two years is a separate period.

The system of non-jury trial contained in the Bill has always been intended to address the particular circumstances of Northern Ireland, in particular the paramilitary and community-based pressures that jurors in Northern Ireland face. The Government have long made clear their commitment to return to jury trial in all cases in Northern Ireland as soon as the security situation permits. We believe that these amendments will help underline the exceptional nature of the system. The change will also give Parliament the opportunity regularly to debate these important issues. As I said, the system will lapse after two years unless an affirmative order is made. In order to do that a Minister must stand at the Dispatch Box and at least give some semblance of a review and assessment of what has happened in the previous two years.

For the avoidance of doubt and to assist in our deliberations I should mention the relevance of Amendment No. 13, which provides that parts of the new clause extend to England and Wales as well as Northern Ireland. It is necessary because some of the other legislation containing references to the system that will need to be repealed on expiry will be legislation that extends to England and Wales; for example, the non-jury trial system in the Criminal Justice Act 2003. I add that for clarification of this little package of amendments. I beg to move.

My Lords, we welcome these amendments, especially the reassurance that the Government intend these to be simply temporary measures. We are very pleased that the Government have chosen the affirmative process for renewing the provisions, which means that Parliament as a whole will determine their future.

My Lords, the Minister said that a Minister would have to come to the Dispatch Box to offer some semblance of a review. I hope that it would be more than a semblance.

My Lords, I am grateful for the widespread support for the amendments, if not the way in which I spoke to them.

On Question, amendment agreed to.

Clause 14 [Investigations: evidence]:

5: 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: My Lords, we considered this amendment in Grand Committee. I shall briefly explain the reason for it. It relates to Clause 14, which provides for inquiries to be conducted by the Northern Ireland Human Rights Commission and for procedures to regulate the way in which those inquiries have access to material that affects national security. A procedure is established that involves a tribunal established under the Regulation of Investigatory Powers Act, which was passed several years ago. I make no comment about the nature of that procedure but it seems to me a sensible and balanced one, which gives the Human Rights Commission the opportunity to seek to get the material and the tribunal the authority to judge whether it is in the national interest, or contrary to it, for it to be revealed. It seems a sensible provision to protect national security.

I am not quarrelling with that; but if that procedure is thought appropriate for investigations by the Human Rights Commission, why is it not considered appropriate for investigations by other bodies? I am thinking here particularly of the Police Ombudsman for Northern Ireland, but if there were other relevant bodies I would include them on the list as well. It seemed to me in reading this that we have a sensible procedure to protect national security with regard to these inquiries, and surely it ought to apply to other inquiries. If the Government consider it appropriate to protect national security in this context, why is it not considered appropriate to protect national security in an analogous area? That is the question that I put in Committee. The Minister very kindly undertook to bring the matter to the attention of the Secretary of State for Northern Ireland, so that I could have an answer to the question that I posed. I look forward to now getting that answer. I beg to move.

My Lords, I have one question: how do protocols work when the Secretary of State receives a report from the ombudsman? Will the Minister remind us what might happen if the Secretary of State believed that there was something in a report that seriously compromised national security?

My Lords, I asked earlier—I think it was in Committee—when Her Majesty’s Government were going to review the powers and role of the Police Ombudsman for Northern Ireland. Her term ends in September. I think we all accept that she has done an excellent job, by and large, but there are clearly areas where we are very uncomfortable, and I suspect and hope that Her Majesty’s Government have been uncomfortable. We are now wiser, having seen the police ombudsman operating on the scene in Northern Ireland. I sincerely hope that the Government will see the wisdom in reviewing the whole role and set-up and will follow on some of the thinking of my noble friend Lord Trimble.

My Lords, I, too, support the amendment, for reasons that have been stated many times before but are worth saying again. The ombudsman’s report shows that she and her staff have absolutely no understanding of how either military intelligence or police intelligence operate in a time that is virtually war. We are exposed to a number of terrorist threats from various quarters. The IRA, in the past, has had very close connections with a number of the people who are now giving us trouble, and there will still be individuals who will do that. They will be watching with great care any information that is obligingly provided by such things as the ombudsman’s report.

It is extremely important that it should be absolutely certain that the ombudsman can in no way damage our relations with other security services or damage existing operations. I do not impugn her honour; it is just that she does not understand that some of the things that she says could do us great damage. I hope that the greatest care will be taken to limit her activities in this regard, in exactly the same way as everything else, in the interests of national security, which is not a local matter but a national matter.

My Lords, I am most grateful for the way in which the issues have been raised. As the noble Lord, Lord Trimble, said, they were raised in Committee in substantial detail in quite a wide-ranging debate. The amendment attempts to restrict the activities of the Police Ombudsman for Northern Ireland in the same way in which the Human Rights Commission is dealt with in the Bill.

We have listened on more than one occasion to the noble Lord’s concerns—they were rehearsed in Committee and we take them seriously. The issues raised were, as promised, drawn to the attention of the Secretary of State, his advisers and other Ministers. I know that other discussions have taken place on them.

The ombudsman has a clear statutory duty in relation to oversight of the police. That is what she is there for and she has no remit whatever to investigate the activities of the intelligence agencies, nor does she remotely have any connection with oversight of the activities of the security services. It is simple: the ombudsman’s role is, and will remain, properly focused on the police and only the police.

The ombudsman may have access to sensitive information by virtue of statutory powers to oversee the activities of police officers, but that 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. It must maintain public confidence; any reports or comments that knock public confidence are in no one’s interests, least of all those of the ombudsman.

Where the ombudsman has reason, consistent with those powers, to investigate the activities of a police officer, any access by the ombudsman to sensitive information held by the Security Service in the course of that investigation will be permitted in accordance with arrangements agreed between the service and the ombudsman’s office.

The noble Lord has raised serious concerns, and any damage to national security or risk to lives is a matter of grave concern. I can assure him that, should the Secretary of State feel it necessary or appropriate to do so, he will not hesitate to deploy the statutory provisions allowing him to issue guidance to the ombudsman with respect to the disclosure of matters that may be prejudicial to the public interest. Those statutory powers exist, but never have been used, as I said in Committee.

I and the Secretary of State have read the reports and information that the noble Lord, Lord Maginnis, also raised in Committee, and of which I was given copies afterwards. The Secretary of State and the Security Minister have met police officers and representatives of the Northern Ireland Retired Police Officers’ Association. We are listening and will want to consider those issues carefully, particularly those that relate to the disclosure of sensitive information that puts lives at risk. If necessary, the Secretary of State can issue guidance on such matters to the ombudsman.

My Lords, I shall give way gladly, as there is plenty of time, but perhaps I may first answer the question asked by the noble Baroness, Lady Harris, in relation to the receipt of the reports.

If the Secretary of State receives a report from the ombudsman and believes that an issue of national security arises, he will raise that with the ombudsman. If required, the Secretary of State can issue guidance to the ombudsman, who must have regard to that guidance. That is the current legal position. This matter is under active consideration by Ministers and advisers. I am not promising to come back at Third Reading, but these issues that were raised in Committee, and with the Secretary of State outside the House, are being taken extremely seriously.

My Lords, the Minister has just answered the question that I was going to ask as to the statutory effect of guidance from the Secretary of State. It does not sound as if it amounts to more than something that the ombudsman has to take into account. Sometimes it is part of ombudsmen’s jobs to get bits between their teeth. Is guidance sufficient in the important circumstances that we are talking about? That issue must be addressed.

My Lords, the last part of my last answer answered part of what the noble and learned Lord asked: the ombudsman cannot dismiss the Secretary of State’s guidance. He has a statutory duty to have regard to that and he must show that he has taken it into account. I fully accept the noble and learned Lord’s point about ombudsmen. The whole point is that they are independent. However, it is not necessarily the case that you have to prove your independence in order to go beyond the remit.

There is massive public confidence in the performance of the Police Ombudsman for Northern Ireland, as shown by the results of the survey released last December. I shall not go over all the figures but the vast majority of Catholics and Protestants have massive confidence in the police ombudsman. Indeed, 85 per cent of officers who responded to a separate survey believed that they had been treated fairly by the ombudsman’s office. That does not mean that the system is perfect, but no one would expect 100 per cent satisfaction.

However, issues have been raised during the present period, which is highly sensitive but also very positive, that have caused the Secretary of State to have regard to, and take advice on, this matter. The situation is ongoing. As everyone knows, a new ombudsman will be appointed later this year. I have been told that the advertisement has already appeared, although I have not yet seen it. As and when the appointment takes place, it is very important that the ombudsman knows clearly what job he is expected to do and what the limitations and boundaries are that, none the less, do not fetter his inquiries as a police ombudsman. However, the fact is that he is not the security services ombudsman. Everyone understands that; I cannot spell it out any more.

My Lords, I appreciate that the Minister has said that the matter has been considered carefully, and I hope that regard is given to the point made by the noble and learned Lord, Lord Mayhew. There may be a duty to have regard to guidance but that is not the same as saying that it must be followed, so the safeguard that the Minister is relying on is weak in that respect. It is also weak in respect of the point referred to by the noble Baroness, Lady Harris. When does the Secretary of State find out what is in a report, and will he find out before the press hears it? The report that gave rise to the controversy was circulated among chosen journalists weeks before other people came to hear of it and probably weeks before the Secretary of State came to hear of it, so the safeguard is not particularly effective.

The Minister’s basic point—that the police ombudsman is concerned with inquiries into the police and not into the intelligence services—is a distinction that cannot be drawn in practice, as was revealed by the report that we went through in a little detail in Grand Committee. In dealing with the terrorist situation in Northern Ireland, there was very close co-operation between the police and the intelligence authorities, and I am sure that equally close co-operation is going on today in the United Kingdom in dealing with the current terrorist threat. No clear distinction can be drawn between inquiries into the police and inquiries into intelligence matters. In any event, the same techniques are used by the police in dealing with suspected terrorists as are used by the intelligence authorities.

As the report that we discussed in Grand Committee shows, there is a serious risk of national security matters relating to the intelligence authorities being published. Indeed, I think I am right in saying that the ombudsman has launched an inquiry into the handling of agents within the IRA. A large number of those agents were run not by the police but by other agencies. In announcing the inquiry, reference was made to the code-names of certain agents. I am speaking off the cuff and without checking, but I am sure that at least one of the names related to an informant who was being run not by the police but by another agency. The distinction that the Minister relies on is not being followed in practice.

Whatever may have been thought appropriate at the time, the legislation for the ombudsman has been put in place. The Government now consider that, with regard to inquiries by the Human Rights Commission, there should be this procedure for protecting information relating to national security. The amendment gives the Government the opportunity to be consistent and to apply their procedures for protecting national security in context A to context B, which are exactly analogous.

If the Government or the Northern Ireland Office do not want to take this opportunity of having the same protection for national security in that other field, and if in the coming days, weeks, months, or whenever, there are more reports that compromise national security as the existing one does, the Government and the Northern Ireland Office will be left with no excuse for their dereliction.

My Lords, before the noble Lord sits down, I want to add something. The point he makes on the report is well made. I said that we have met the Northern Ireland Retired Police Officers’ Association. We are listening and will want to consider the issues raised very carefully.

I shall also elaborate on the answer that I gave to the noble and learned Lord, Lord Mayhew. Section 65 of the Police (Northern Ireland) Act 1998 compels the ombudsman to have regard to the Secretary of State’s guidance. The ombudsman is also required to act within the requirements of the European Commission on Human Rights and the Human Rights Act, and to ensure that no lives are put at risk. Guidance could be used to amplify how the European Commission on Human Rights could be applied, which would cover some of the points raised in the report to which we have all been referring but have not named.

My Lords, I thank the Minister for his intervention, which provides more grist to my mill. He repeated that the ombudsman is compelled to have regard, but just have regard, but we shall not argue too much about that.

On the second point on human rights, the report to which we are referring virtually names agents, or uses a letter system. The situation is described in such detail that the press in Northern Ireland had no hesitation in putting names in its report, and it got the right name. We all know that. The Human Rights Act was not observed in that respect.

Again, that shows the weakness of the existing safeguard. There is an alternative safeguard that the Government consider elsewhere—I shall not repeat the point I made. The Government have the opportunity to cover this gap, but if they do not want to take it, they will have to bear the consequences. As it is clearly the desire of the House to go through this matter as rapidly as we can, I shall not press the matter further, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 [Investigations: access to prisons, &c.]:

6: Clause 15, page 14, leave out lines 1 to 3

The noble Baroness said: My Lords, this amendment would ensure that the Northern Ireland Human Rights Commission does not need to give notice of a visit to a place of detention for the purposes of an investigation.

I want to clarify a matter with the Minister, which was referred to in Committee, when he stated, very helpfully, that once the 15-day period was up, the Bill allowed the commission to carry out unannounced and unimpeded multiple visits to the places of detention. However, subsections (1) and (2) of the new inserted Section 69C make it clear that the commission may enter a place of detention “during a specified period”. I take that to mean the period of the investigation. This is of course right and proper. We do not think that it would be appropriate for the commission to enter places of detention outwith the scope of an investigation. However, the notification period will allow a place of detention to be alerted to the fact that there is a particular, time-constrained investigation beginning, and could allow that place to be more prepared for a visit than it might otherwise be, which would not necessarily be to the benefit of the investigation. Will the Minister comment on that?

Will he also tell us why a 15-day period was chosen? As we mentioned in Committee, the Department of Finance and Personnel has to give only 24 hours’ notice before entering establishments under Article 26A of the Rates (Northern Ireland) Order 1977. If the noble Lord is not prepared to give way in removing this subsection altogether, will he perhaps consider returning with an amendment at Third Reading, to shorten the notification period? I beg to move.

My Lords, I begin by reminding the noble Baroness of what I said several times in Committee; that is, that the commission is not an enforcement body. She speaks as though it is but it is not. I must make that clear. If it were an enforcement body, the point that she makes about notice and the timetable would be more valid.

As we are now on the Floor of the House, I should point out that, since 2004, some 17 separate bodies have inspected the Northern Ireland prison service. Those are: the Prisoner Ombudsman for Northern Ireland; Criminal Justice Inspection Northern Ireland, which carried out a thematic inspection; Her Majesty’s Chief Inspector of Prisons, who carried out joint inspections; the Northern Ireland Commissioner for Children and Young People; the Mental Health Commission; the Regulation and Quality Improvement Authority; the Northern Ireland Affairs Committee; the Independent Monitoring Board; the Interception of Communications Commissioner; the Equality Commission for Northern Ireland; the Office of Surveillance Commissioners; the International Committee of the Red Cross; the United Nations Committee against Torture; the Adult Learning Inspectorate; the Health and Safety Executive; the Health Promotion Agency; and, of course, the Northern Ireland Human Rights Commission. Therefore, the idea that—and I am not saying that she was saying this—the prison service is not being inspected does not stand up. I want to reinforce the point that I made before: the Human Rights Commission is not an enforcement body, and the points that she raised about time would have greater validity if it were.

The clause that the noble Baroness seeks to remove allows the public authorities that initial 15-day period during which they can appeal against the terms of reference for an investigation, before the commission can use its new statutory power to access places of detention as part of an investigation. Importantly, as she indicates, the Bill allows the commission to have unimpeded access to places of detention without providing notice of each visit. It is right that such a significant power should be subject to an initial period of consultation with relevant authorities. The issuing of terms of reference and the requirement to allow 15 days to pass during which a public authority can appeal ensures that that consultation takes place. Importantly, as she said, once the 15-day period has passed, or after any appeal begun in that period has ended, access to a place of detention can be restricted only after a court has ruled in favour of a public authority. Therefore, this appeal process cannot be used as a mechanism to prevent investigations and the court can only restrict access if the commission has failed to meet its clear statutory duty as set out in the Bill. In other words, once the 15-day period is over and the consultation has taken place—let us say successfully—it can go in at any time it wants, at the minimum possible notice. Therefore, the issue of the timing of access does not arise.

As I have said, there are already many inspection and oversight bodies in place in Northern Ireland and those 17 separate bodies have looked at the prison service since 2004. We believe that it is right that the commission should be furnished with the power to carry out unannounced and unimpeded visits to places of detention as part of its investigations into human rights issues. That is absolutely clear. There is no qualification whatever on that. As we discussed in Committee, the Human Rights Commission will have the power to carry out unannounced and unimpeded visits to places where people are held in detention—and these are not just prisons—once the initial notice of the terms of reference has taken place. It will not have to give notice; that is there for the future. However, we think that there is a need for public authorities and other roles-of-accountability bodies to be taken into account, as these are public bodies that we are dealing with; it is not as though they are private bodies that nobody knows about.

My Lords, I am grateful to the Minister for that reply. I am aware that the commission is not an enforcement body. However, it has statutory duties and therefore the spirit of its work is recognised, enforceable or not. I am still disappointed that the Government will not move on this issue, but they have probably painted themselves into an obdurate corner in this respect. I would have been happy to reserve our position on this to Third Reading to see whether there was movement, but I do not think there is any likelihood of that. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 [Duration]:

[Amendments Nos. 7 to 9 not moved.]

10: Before Clause 42, insert the following new Clause—

“Community restorative justice schemes

(1) The Secretary of State shall maintain a public register of accredited community restorative justice schemes.

(2) Schemes registered under subsection (1) shall be inspected regularly by the Criminal Justice Inspectorate.

(3) Where the Criminal Justice Inspectorate considers that a scheme registered under subsection (1) is unsatisfactory or operating in an unsatisfactory manner it shall report that scheme to the Secretary of State who shall remove that scheme from the register.

(4) No scheme which involves the participation of persons with convictions for serious criminal offences shall be registered under subsection (1).”

The noble Lord said: My Lords, I return to an important matter that I introduced into discussions in Grand Committee. It concerns community restorative justice schemes, of which there are some in Northern Ireland. I have no animus against the concept of community restorative justice—I think that it has a part to play in the legal system, but it should be integrated into that system. In the operation of restorative justice, care has to be taken to protect the human rights of those involved in it. That is a problem in Northern Ireland, particularly in areas where “community” is a euphemism used to describe not the people who live there but the warlords who control them. That is the danger in this situation.

When I raised the matter in Grand Committee on a proposed new clause somewhat different from that in today’s Marshalled List, my attention was drawn to guidelines issued by the Northern Ireland Office. I have looked at them and recast the clause with them in mind. The guidelines indicated that there would be a concept of an accredited community restorative justice scheme, so I am simply putting on the Secretary of State an obligation to maintain such a register and to do so publicly so that everyone knows what is an accredited scheme.

The guidelines deal with the Criminal Justice Inspectorate inspecting the schemes and I see no reason why that should not be put on a statutory basis. The key provision is in subsection (3) of the amendment, providing that where the inspectorate,

“considers that a scheme registered under subsection (1) is unsatisfactory or operating in an unsatisfactory manner it shall report that scheme to the Secretary of State who shall remove that scheme from the register”.

That is crucial because we have had long experience in Northern Ireland of Secretaries of State who have taken other considerations into account when they should simply have applied the law properly and strictly. We have had experience of Secretaries of State who were reluctant to do things that would annoy certain political groupings, or certain paramilitary groupings, and it is not appropriate that any such consideration should enter into this. I am confident of the integrity of the Criminal Justice Inspectorate, and, consequently, I think that if it can recommend that accreditation should be withdrawn, it should be withdrawn. That will give teeth to the inspectorate’s inspections and will provide it with real authority in dealing with such matters, which will do something to allay concerns across the board in Northern Ireland about how community restorative justice could be abused.

The final subsection in the amendment is simple but important. I have drawn the attention of the House to the fact that the republican community restorative justice schemes are presided over by a man who has two convictions for murder, both arising out of one incident. As far as I am aware, it was the only time he was convicted but I am sure that they were not the only offences he committed. However, this person is heading community restorative justice.

I said in Committee that if the republicans wanted people to be assured that the schemes they will be running will run on a civilised basis, they could easily have found within their community people of standing who could head them up. However, by choosing someone with such a record, they are making a statement that ought not to be allowed to stand. Regrettably, the Northern Ireland Office’s guidelines are deficient on this matter; they make it clear that persons with criminal records, no matter how heinous, can be involved in these schemes, provided that their offences took place before 10 April. That is making it clear that it is all right if you were involved in terrorism; you can be in these schemes. However, if you have not been involved in terrorism but have committed some minor offence, you cannot be in them. That is not right. I have tabled this amendment as a means of drawing the House’s attention to this matter. We discussed it in Committee and I hope that the Minister has been able to get further advice and can take a more positive view now than he did then. I beg to move.

My Lords, we support the amendment moved by the noble Lord, Lord Trimble, particularly subsection (2) of the new clause, which provides that community restorative justice schemes should work in partnership with the police and Public Prosecution Service.

The problems with the implementation of restorative justice lie in community-based schemes, as the noble Lord so eloquently outlined. Any consideration of the creation or formal recognition of community-based schemes in Northern Ireland must take into account the nature of society there and the continuing role and influence of paramilitaries. Indeed, many of the existing schemes seem to have indirect links to paramilitarism. They employ individuals with terrorist records, as the noble Lord, Lord Trimble, reminded us; they rationalise the role that paramilitaries have in society; and they take referrals from such organisations. The continued and wrongful rejection of the police and criminal justice system in many of those communities must further be noted.

It is important to take into account the comments made by the IMC on the value of properly approved CRJ schemes and the abuses that have been associated with current schemes that operate outside any formal state sanction. A recent IMC report highlighted the dangers of community restorative justice schemes operating without proper guidelines or with weak or ineffective guidelines.

Over the past few years, it is probably fair to say that the Police Service of Northern Ireland has become the most heavily scrutinised and accountable service in the world, so it would be bizarre for policing functions to be devolved to the community with much less rigorous procedures in place. We oppose the recognition by the state of any community-based restorative justice scheme that places or entrenches paramilitary organisations in a position of control in any part of Northern Ireland, thereby subverting the interrelated values of respect for human rights, democracy and the maintenance of the rule of law; allows or places legitimacy on any parallel policing structures to the Police Service of Northern Ireland; or subverts the concept of a single professional police service working for all the people of Northern Ireland. Community restorative justice schemes must be a complement, not an alternative, to the existing policing and criminal justice systems. They require a formal relationship and, as the IMC argued, there can be no place for an alternative or parallel justice system.

My Lords, I support my noble friend’s amendment and what he and the noble Baroness have said. I remind the Minister that in responding to me in Committee on the previous amendment, which I have not moved this time, he said:

“I do not expect to see the remaining threat”—

he was referring to paramilitaries and criminal gangs—

“regress significantly any time soon, although I very much hope that I and the Government are wrong in that assessment”.—[Official Report, 21/3/07; col. GC 232.]

That is the world we live in and we want our citizens to have confidence in the community restorative justice systems. There is no chance that they will even believe that the schemes are realistic, except in certain limited areas, if the amendment is not accepted and they are run, as they are now, by ex-paramilitaries or paramilitaries.

My Lords, for the avoidance of doubt, although the noble Lord has just accurately quoted me on the amendment that he did not move today, if that amendment had been moved, I would have said words to this effect: we have to remember that the environment in Northern Ireland includes an ongoing threat from public order incidents on a different scale from those in the rest of the UK, the specific residual Irish terrorist threat, and the threat posed by paramilitaries moving into organised crime. I do not expect to see the remaining threat regressing significantly any time soon, although we very much hope that we are wrong in that assessment.

I am happy to make that clear. That is the situation we are in. There is a natural suspicion about community restorative justice. There is a natural suspicion among people in parts of England where there are no such difficulties. It is a different concept and we have not understood it. Therefore, when certain bodies and organisations embraced it a bit quickly, you did not have to spend more than five minutes working out how it could be undermined if they said, “Hang on, this is our area and we’ll police this in our way”. That was the unspoken issue. The schemes have all been voluntary and unaccredited. The whole thing has been quite outwith any basis up until the present time.

I hope to be able to reinforce, as I tried to do in Committee, that some of the issues relating to the protocol very much meet the thrust of what is behind the noble Lord’s amendment. The ideas and the concerns behind it would be shared by anybody, hence the discussions that have gone on over the consultations on the protocol.

We believe that the aims of the amendment are largely met in the requirements of the protocol, which was published in February this year, with the role of the Criminal Justice Inspectorate and a panel to determine the suitability of participants clearly defined. It will be the Secretary of State’s responsibility to accredit schemes only after they have demonstrated that they can meet the stringent standards set out in the protocol. That will be maintained and published and kept up to date on the Northern Ireland Office website.

The protocol provides that the Criminal Justice Inspectorate shall conduct regular and random inspections of all accredited schemes and report to the Secretary of State on whether the schemes are maintaining the stringent operating standards set out in the protocol. Where a scheme is failing to meet the required standards, the Secretary of State will take action in relation to the accreditation of individual schemes. But I understand the points made by the noble Lord, Lord Trimble. That is why I emphasise that, where the scheme fails to meet the required standards, the Secretary of State will take action in relation to its accreditation. The protocol makes specific provision for the creation of a suitability panel, comprising representatives of the statutory and voluntary organisations, to determine the suitability of participants seeking to engage in the activities that it governs.

The criteria that the panel will use to determine suitability are set out in the protocol. These specifically provide that any convictions for serious criminal offences after 10 April 1998, or a term of imprisonment within three years prior to being considered by the panel, will render an applicant unsuitable. Convictions prior to 10 April 1998 for serious criminal offences will not in themselves constitute an automatic bar, but will be considered in the round by the suitability panel in making the determination.

I understand exactly the import of my words, but we believe that that is consistent with the Government’s position that those with previous criminal convictions should not be prevented from playing a full role in the community where they can clearly demonstrate that their criminal behaviour is firmly in the past. If they cannot, they will not get through the suitability panel. It is as simple as that. We do not think that they should be ruled out because of the criminal offence in itself; it must be looked at by the panel.

My Lords, before the Minister sits down, I thank him for making that point. What has happened about recruitment to the police? Do not previous terrorist convictions debar people from becoming police officers? What is the difference between that and someone running a community restorative justice scheme, which will involve a certain amount of local policing and matters relating to it? Is there not an inconsistency here?

My Lords, to the best of my knowledge we are not talking about police officers or community support officers here. These people are not running a policing system. They may think and try to give the impression that they are, but that is the whole point about getting the schemes accredited. If a scheme is not accredited, people will say, “It is not accredited, therefore it is not bona fide”. That is the issue. At present, there is no accreditation system. It will not be possible for people to say, “We have been accredited to police the system”. I should be happy to take further advice on that, but the point is that these are not police officers; they are not running the system. Of course, there is very close involvement by the police anyway.

On the point about the panel looking at previous criminal records, in addition to the criminal records, the panel will consider any information from the police or other statutory sources that might suggest that an individual with either previous convictions or no convictions was unsuitable. That could be on the grounds of their current involvement in criminality or paramilitary activity; or in circumstances where public safety would be compromised; or where there would be significant adverse impact on public confidence in the process. That is important. It is not for me to spell it out, but if there is not public confidence, the system will collapse. It is as simple as that. No amount of threats, lies or intimidation will keep it going if public confidence is not there.

Schemes will be required to accept the determination of the panel as a condition of their accreditation. The protocol has been subject to two separate comprehensive public consultation exercises with all interested parties, including the political parties and organisations in the statutory, voluntary and community sectors. It was also the subject of a thorough investigation by the Northern Ireland Affairs Select Committee, whose report endorsed the arrangements in the protocol. The committee recognised that there could be constructive opportunities in the schemes for individuals with previous criminal convictions to serve—that is, put something back into—their communities.

The report specifically concluded that the framework for the normal checks, backed up by the suitability panel mechanism, was an appropriately rigorous means to determine suitability and build confidence in the scheme. If schemes are not accredited, that will be quite clear. Schemes that are accredited will want to boast of their accreditation. It will not necessarily bring funds, but the point is that it will give them access to other organisations and funds in other schemes. No one using any of the funding arrangements in Northern Ireland could put money into an unaccredited scheme once the accreditation system was up and running. The auditors would be straight on to them for that.

The panel will, as I said, consist of senior representatives of the Probation Board for Northern Ireland, the Youth Justice Agency of Northern Ireland and the Community Relations Council. The Police Service of Northern Ireland will participate in the panel meetings to present any relevant information relating to individuals under consideration. In other words, we are fairly confident that the general thrust of the noble Lord’s amendment is met by the protocol. It would be quite wrong in some ways to put this system on to a statutory basis when we are dealing with such schemes. There will be plenty of opportunity in this House, in the other place and in the Northern Ireland Affairs Committee—and, indeed, in the Assembly, although this is not a devolved matter—to keep an eye on the schemes that are accredited and on activities that promote community building and trust building in Northern Ireland. No one, we hope, will seek to operate an unaccredited scheme.

My Lords, I thank the Minister for his comments, although I am somewhat disappointed by them. The main thrust of my proposed new clause would be to give the Chief Inspector of Criminal Justice more power in this matter and to remove any possible temptation in the Northern Ireland Office to go soft on certain persons and certain groups. Unfortunately, there is a bit of a history there. It is all very well for the Minister to talk about the guidelines, but the guidelines are made, implemented and policed by the Northern Ireland Office, which is not strong enough or sufficient.

I disagree with the Minister on the suitability issues and the panels to which he referred. Let me make the point even more clearly. When I referred to a person with a couple of convictions running one of these schemes, I was talking about the sort of person who led the lynch mob that killed two Army corporals in west Belfast. At the moment, I see no indication from what the Minister has said or from these procedures that such a person will be considered unsuitable, as that person clearly is. I invite the Minister to think about the matter again and I hope that he, and the Northern Ireland Office, will continue to think about it.

I do not intend to press the matter to a vote today. We will, I hope, get another bite of the cherry. I am very grateful for the support of Members on the Liberal Democrat Benches. I am sure that Members of this House will want to keep a clear eye on this, because it is an area in which the criminal justice system could be corrupted and community activity in certain areas could become vulnerable to the actions of the bully boys, and we do not want that to happen. We want things to be conducted properly, but I am afraid that I have no confidence in the way in which the Northern Ireland Office will handle this matter. As I have indicated, however, I do not want to press the matter to a vote. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 [Northern Ireland department with policing and justice functions]:

11: Clause 42, page 29, line 17, after “section” insert—

“(a) shall be made by statutory instrument; and(b) ”

The noble Lord said: My Lords, I shall speak also to Amendment No. 12. I can be brief. The Secretary of State is required to make an order abolishing the post of Deputy Justice Minister three years after the devolution of policing and justice functions, unless the Assembly is resolved that it be abolished earlier than that, or that it is to be retained beyond that date. As drafted, the Bill makes such an order subject to the negative resolution procedure. However, the Select Committee on Delegated Powers and Regulatory Reform considered the order-making power and observed that the circumstances specified in the Bill in which the Secretary of State shall act are matters of ascertainable fact, not of opinion, and that the timing, too, is preordained. In the consequent absence of any element of discretion for the Secretary of State, the committee argued that the negative procedure was unnecessary and, notwithstanding that this is a Henry VIII power, recommended no parliamentary procedure. We are content to accept the recommendation, and these amendments give effect to it. I beg to move.

On Question, amendment agreed to.

12: Clause 42, page 29, line 21, leave out subsection (9)

On Question, amendment agreed to.

Clause 50 [Extent]:

13: Clause 50, page 32, line 28, at end insert—

“( ) Section (Duration of non-jury trial provisions) (6) and (7) extends to England and Wales and Northern Ireland only.”

14: Clause 50, page 32, line 29, after “Schedule 1” insert “(and sections 8 and (Duration of non-jury trial provisions) (1) to (4) so far as relating to those amendments)”

On Question, amendments agreed to.

Clause 51 [Commencement]:

15: Clause 51, page 32, line 38, at end insert—

“( ) section (Duration of non-jury trial provisions);”

On Question, amendment agreed to.

My Lords, I beg to move that the House do now adjourn during pleasure. In doing so, I suggest that the Question for Short Debate in the name of my noble friend Lord Dubs begin not later than 4.45 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 4.31 to 4.45 pm.]