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Justice and Security (Northern Ireland) Bill

Volume 691: debated on Wednesday 2 May 2007

Read a third time.

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

1: Clause 7, page 5, line 33, at end insert “(including, in particular, exceptional circumstances relating to lack of jurisdiction or error of law)”

The noble and learned Lord said: My Lords, we return to Clause 7, as I indicated we would with the leave of the House, and I rise to move Amendment No. 1, to which the noble Lord, Lord Lester of Herne Hill, has added his name. I express my gratitude to noble Lords for their constructive discussions on the clause both inside and outside the House.

At earlier stages and in discussions outside, I explained the various reasons that prompted us to include Clause 7 and perhaps I may remind the House of them. We were conscious of the need to prevent disclosure of sensitive information that could put lives at risk. Three of the four conditions in the test for whether there will be a trial without a jury relate to paramilitary groups. That means that the case for non-jury trial will often involve sensitive intelligence material that raises national security issues.

If that material were exposed in open court, it would pose serious risks: such information could come out into the public domain; sources could become compromised, putting lives at risk; and in some cases it may not even be possible to admit that intelligence on a particular thing exists because, where there is a small circle of knowledge, it may be possible to identify a particular individual as the person who has passed that intelligence on. Techniques used for gathering intelligence in national security and serious crime cases could become compromised and so, too, could ongoing police investigations. Those are the reasons why it would be difficult, dangerous and undesirable to disclose such information openly.

We therefore want to avoid sharing that material in open court in any challenge and so avoid opportunistic attempts to frustrate the judicial process by using judicial review as an attempt to force disclosure of material in the hope—as happens in some cases—that by doing so the prosecution will be forced to stop a case or deal with it in a way that is not in the best interests of justice because it cannot afford to respond to a requirement to disclose the material.

However, it has never been the Government’s intention to oust judicial review of the director’s decision by the courts in appropriate cases. We have taken the view, as did the Court of Appeal in the case of Shuker, that it would likely be exceptional to do so. I am encouraged to think that there is now a substantial measure of agreement with that point of view within the House; indeed, all main opposition parties agree with it.

Paragraph 1.37 of the fifth report of the Joint Committee on Human Rights states:

“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 law will still be available”.

The amendment seeks to offer some comfort to noble Lords by confirming that challenge on these grounds will be possible, provided that it meets the threshold of exceptional circumstances. It will obviously be for the courts to decide whether that threshold is met in any case. I want to make it clear that this does not mean that lack of jurisdiction or error of law will be exceptional circumstances in every case; that would be a matter for the courts to decide based on the arguments put to them. However, in the hope and belief that this amendment will find favour across the House, I beg to move.

My Lords, as the noble and learned Lord the Attorney-General indicated, I put my name to the amendment. I would like first to say how grateful I am to him for having seen me, among others, to discuss the reasons for it. The Joint Committee on Human Rights, on which I serve, will, I am sure, be very glad that the matter has been clarified in this way. I entirely agree with what he has said about the need to avoid opportunistic judicial reviews going into the merits of the kind of cases that he describes.

I welcomed the fact that in Grand Committee the noble and learned Lord said—and I am not sure that one knew about this before—that he would not have approved of an ouster clause of the kind that was to be found in the Asylum and Immigration Bill. I am sure that that approach shows a proper respect for the rule of law. Like him, we believe that the courts of Northern Ireland have exercised their discretion in this and other areas admirably well.

The advantage of the amendment is that it makes it quite clear that judicial review will be exceptional but will be fully available in cases involving not only dishonesty or bad faith. The reference to “exceptional circumstances” includes, as indeed one would expect, cases where there is a lack of jurisdiction or other significant error of law. For that reason, I very much support the amendment, and I am sure that the noble and learned Lord is right to say that there will be widespread support for it.

My Lords, I, too, thank the noble and learned Lord the Attorney-General for bringing forward the amendment. The fact that the amendment has come before us at Third Reading of this fairly short Bill is a reflection of the thought, the work and the debate and discussion in this Chamber and, very much more so perhaps, outside.

The noble Lord, Lord Lester, the noble and learned Lord the Attorney-General, colleagues and I started from three very disparate points but with one objective. Human evidence is still the most essential part in securing convictions against serious criminals in Northern Ireland, but we must have a judicial process that allows juries to be protected and the PSNI to bring intelligent sources into court to give evidence. At the same time, we must be able to protect those sources and those who work consistently in dangerous areas for the cause of justice within the judicial processes and the criminal research set-ups in Northern Ireland.

I am quite happy. I am not a world expert on human rights by any means, but the noble and learned Lord the Attorney-General and the noble Lord, Lord Lester, certainly are. I am content that we have the best arrangement that we can have. It has taken considerable time on everybody’s part to get here. A great deal of brain power and thought has been put into it and, although the amendment is only about half a line, it is significant. I support the amendment.

On Question, amendment agreed to.

2: Before Clause 43, 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) Accredited community restorative justice schemes shall be inspected regularly by the Criminal Justice Inspectorate, which shall report on such inspections to the Secretary of State who shall publish a report.

(3) A report under subsection (2) may make such recommendations as to the conduct of a scheme as the Criminal Justice Inspectorate thinks fit.

(4) If the Criminal Justice Inspectorate considers that a scheme is unsatisfactory or is operating in an unsatisfactory manner, it may recommend to the Secretary of State that it be removed from the register.”

The noble Lord said: My Lords, I return to an issue that was touched on in Committee and on Report; that is, restorative justice schemes. Let me make it clear from the outset that I think that there is a place in the legal system for schemes of this nature. A range of issues can be effective in dealing with this. The concern that I have expressed and wish to repeat today is not against the concept of restorative justice, but a concern about how some such schemes might operate in practice in Northern Ireland.

A general concern prompted the first amendment that I tabled on this subject. When we are dealing with part of the justice system, it is right that there should be a legal basis for it, no matter what the circumstances are. In that system, it is hugely important that people know where they stand, what their rights are and the procedures to which they may be subject. The best way to provide that assurance is by having a legal basis for the procedures. The Northern Ireland Office decided to have guidelines, which it has been consulting on for some time. As a matter of principle, I am not very comfortable with the concept of proceeding by guidelines because they do not give assurance and clarity to those who may be involved in the processes. The NIO has taken that approach and I have modified the amendments that I tabled with that in mind.

I have made a further significant modification to the amendment that we discussed on Report. I was and still am concerned about the involvement in these schemes of former paramilitaries. I know Northern Ireland and the localities well. In some of these localities, one inevitably has to adjust and rub shoulders with the people who are there, who will often have paramilitary associations and backgrounds. Since the Belfast agreement, where paramilitary organisations have ended their campaigns and people have moved to the point of supporting the criminal justice system, there is a different context. None the less, it did not seem to me that that justified completely ignoring all the things that people might have done during those paramilitary campaigns.

From the point of view of trying to make progress, in this new clause I have decided to cut more with the grain of what the Government are proposing. The new clause provides a limited legal framework in requiring the Secretary of State to maintain a register and also providing, as the guidelines do, that the Criminal Justice Inspectorate will regularly inspect these schemes. I have tried to reinforce the position of the Criminal Justice Inspectorate in this context. I have every confidence in Mr Chivers, who heads that inspectorate, but it is desirable in his dealings with the people running these schemes that he is able to point to certain legislative provisions which reinforce his position, give him a right to make reports and recommendations and even to recommend that an organisation be removed from the register. That will strengthen his hand. He and his inspectorate are going to be our mainstay in trying to ensure that these schemes operate in a civilised and humane way.

I hope that the new clause will be just a beginning, as it were, because more is needed in this area to provide a degree of regulation. I tabled this reconsidered amendment in the hope that the Government and the House may be able to look more favourably upon it. I beg to move.

My Lords, I support the amendment. The issue of community-based restorative justice systems is a long-running concern of my party. If Her Majesty’s Government can accept the amendment of the noble Lord, Lord Trimble, to which I have attached my name, as have the noble Lords, Lord Smith of Clifton and Lord Lester, that would put our minds considerably more at ease. The noble Lord, Lord Trimble, pointed out that there is a long way to go yet, but these are new schemes and systems and we shall have to monitor them carefully. Can the Minister give us an idea of what schemes are waiting to go through the protocol to be accepted by the Government? That would be interesting to know. If he can find a way to accept the amendment, that will be a wonderful finish to the Bill.

My Lords, this is my first opportunity to congratulate the noble Lord, Lord Trimble, on his membership of Her Majesty’s Official Opposition. I supported him in previous debates on the issue and am glad to add my name to the amendment. The key question is: what will best protect and strengthen community justice and the rule of law? The fact that the schemes are voluntary, community-based and address low-level criminal activity does not change the powerful influence that they will have on communities and the public role they undertake. That is especially relevant in the context of Northern Ireland, where, as the noble Lord, Lord Rooker, himself noted, the threat of instability and potential for paramilitary involvement is very real. The Government acknowledged that community-based restorative justice schemes should not be allowed to devolve into autonomous policing units. However, their view is that the NIO’s protocol provides sufficient safeguards against abuse. We disagree, which is why we seek a statutory safeguard of a modest kind. The type of intermediary role played by these schemes constitutes a public activity that ought to be seen to be fair and impartial. Anything less threatens to compromise the justice that the community seeks to achieve.

The regulation of community-based restorative justice schemes is not a symptom of suspicion, nor do I ignore the contribution of the NIO protocol. Rather, the amendment moved by the noble Lord, Lord Trimble, will ensure that the rule of law is not undermined and that the schemes are born of and exist subject to the rule of law. The noble Lord, Lord Rooker, has previously expressed concern that the work of the schemes, which engages the statutory sector, is limited to mediating, reparative interventions between the perpetrators and the victims of low-level crime in the local community. Even if, as he suggests, such work forms a small proportion of a scheme’s activities, it must still be subject to the rule of law and protected against the abuse of power. The rule of law requires that these schemes are grounded in a legal basis, so that they do not suffer from the vice of informality with all the dangers that that implies. Although the NIO protocol may give guidance, it is not a statutory instrument. The amendment injects legal certainty into this area without falling into the trap of legalism or excessive regulation. It prescribes that accredited community-based restorative justice schemes are subject to inspection by the Criminal Justice Inspectorate, as he explained. Where the inspectorate deems it fit, it may recommend to the Secretary of state that the scheme be removed from the public register.

The rule of law also requires that there are prescribed criteria for the scheme, so that this form of justice is administered independently and impartially. That is the bare minimum one would want of any public service, whether it is exercised by government or community-based schemes. That applies even more in the divisive atmosphere from which Northern Ireland is emerging. Obliging the Secretary of State to maintain a public register of accredited schemes would ensure that they operate according to the principles of fairness and transparency required of any body addressing crime, even so-called low level offences.

There must be adequate safeguards against abuse of the procedures. Whether a republican, unionist or any other political interest group is involved and whatever their associations in the past, those principles transcend party and community. They apply now with particular force in Northern Ireland, which has moved from a period of the grave undermining of the rule of law to what we hope will be a healthy democracy, based on the rule of law.

It should not be left to members of the public to complain about lawlessness within the schemes, as suggested by the Minister in previous discussions; lawlessness should be prevented from the outset. The rule of law requires that of all bodies exercising a public function. It is particularly relevant in a society where paramilitaries continue to have an influence. The structures of the rule of law exist precisely to prevent the type of intimidation and coercion that the noble Lord, Lord Trimble, has described in previous debates.

The amendment puts in place a bare minimum of safeguards. We need to look realistically at the practical consequences of omitting these safeguards, which include the undermining of justice, the inculcation of fear and the perpetuation of instability. I submit that community-based restorative justice schemes should complement law enforcement and not turn into alternative and non-accountable systems of justice. Unless the role of such schemes is formalised and their activities subjected to public scrutiny, there is a real risk that community-based restorative justice schemes will undermine the rule of law. I very much hope that the Minister will be able to accept this important amendment.

My Lords, in recent years, I have spent a certain amount of time meeting and discussing their activities with those running community-based restorative justice on both sides of the divide in Belfast. It seems to me that they have had some success in reducing the incidence of punishment beatings, which we all know have taken place and may still be taking place.

The noble Lord, Lord Lester of Herne Hill, mentioned informality. I should have thought that was a good thing when dealing with anti-social behaviour. I also recall that the learned judge from Scotland, who reviewed the whole of the criminal justice system in Northern Ireland, came down firmly in favour of restorative justice generally. He was also prepared to accept the continued existence of community-based restorative justice. I recall that the Independent Monitoring Commission, of which the noble Lord, Lord Alderdice, has been a distinguished member, considered the matter and, on the whole, gave it a clean bill of health. I ask the Government, first, what is supposed to happen if the NIO guidelines are breached, and, secondly, is the amendment really necessary?

My Lords, I am grateful to the noble Lord for bringing back his amendment at this stage. It shows the justification of your Lordships’ procedures and that on Third Reading we can make amendments to Bills, having had good debates at each stage.

The noble Lord said that he amended his amendment to meet government policy. That being the case, on behalf of the Government, I am happy to recommend to the House that the amendment be accepted. I agree with every single word of the noble Lord, Lord Lester of Herne Hill. Contrary to what the noble Lord, Lord Hylton, said, I took the reference to informality to be the informality used by the paramilitaries in their “Nudge, nudge, wink, wink, we are in charge and you can't do anything about it” form of formality, which we do not like. This is designed to stamp that out.

We are satisfied with the present protocol. Our present understanding is that it appears to work. There are 16 community-based restorative justice schemes in Northern Ireland; 14 of those are actively in the process of seeking accreditation. There are two minor schemes—minor only in the sense of the number of cases they deal with, which is a handful—and they have not yet expressed interest in seeking accreditation. They have a very low volume of cases.

We would welcome all such schemes coming forward to seek accreditation. The four Northern Ireland alternatives schemes, as I believe they are known, have expressed an interest in accreditation. The Chief Inspector of Criminal Justice has now inspected each of those schemes and concluded that there are no obstacles to the schemes proceeding to the second stage of accreditation. That has to take place and involves the suitability panel looking at the individual participants. The 10 other community-based restorative justice Ireland schemes have expressed an interest in seeking accreditation and the Chief Inspector of Criminal Justice is preparing to inspect each of those. By and large, that is a big step forward from the past situation.

In some ways, I do not make any claims about this—the informality of the protocol and the consultation on it have assisted people to have the confidence to put their feet in the water. Parliament is right to put the principles of the protocol in the provision. That is what the amendment basically contains. There are two “shalls” and two “mays” in the four sub-paragraphs, so it is important that this is not locked down over-rigidly. However, it makes the central point that Parliament wants it to. I have to say in respect of all amendments that have not been drafted by parliamentary counsel, who naturally run the rule over these few words to make sure that the commas are in the right place, that if any textual amendments need to be done in the other place, naturally we will consult with the noble Lord, Lord Trimble.

In answer to the noble Lord, Lord Hilton’s question about the breach, schemes that do not meet the protocol’s full requirements will be de-accredited and receive no assistance from the statutory sector. In other words, no money comes from these schemes but, once accredited, they can apply to other bona fide organisations. However, no such organisation would be funding any de-accredited scheme. That is the ultimate sanction.

On that basis, and given that this proposal has received good will throughout although it was not added to the Bill, it is another good example of your Lordships’ procedures. We have been able to send our goodwill at this stage, with an important process taking place in Northern Ireland, through our unanimous acceptance of this amendment.

My Lords, I thank the noble Lord, Lord Rooker, for his comments and acceptance of this new clause. I agree with the noble Lord, Lord Lester, that this is a significant step forward to providing a legal underpinning of this provision and trying to do it in such a way that it will not hamper the inspectorate or unduly hamper those who are operating the scheme. I am delighted with this step forward and would like to thank the noble Lord once again.

Regarding textual amendments, after looking at my draft again, I have one in my mind already; others will no doubt occur to noble Lords. I will be happy to see the clause being refined in the way that the noble Lord mentioned.

On Question, amendment agreed to.

My Lords, I beg to move that this Bill do now pass.

Moved accordingly, and on Question, Bill passed, and returned to the Commons with amendments.