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Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2011

Volume 729: debated on Monday 4 July 2011

Motion to Approve

Moved by

That the draft order laid before the House on 5 April be approved.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments

My Lords, I beg to move that the House does approve the draft Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2011. This order further extends for two years the period during which trials without jury can take place in certain circumstances in Northern Ireland. Without this order, the system allowing for non-jury trials would lapse on 31 July this year. I propose that it be extended for a further two years.

Non-jury trials take place in very limited circumstances, where the Director of Public Prosecutions issues a certificate. The DPP can issue a certificate only if one or more of four statutory conditions, which are laid out in Section 1 of the Act, are met. Furthermore the DPP must be satisfied there is a risk that the administration of justice might be impaired if a jury trial were to be held.

The four conditions relate to the circumstances of the offence and the defendant. Condition one is that the defendant is, or is an associate of, a member of a proscribed organisation. Condition two is that the offence was committed on behalf of a proscribed organisation or a proscribed organisation was involved. Condition three is that an attempt has been made by or on behalf of a proscribed organisation to prejudice the investigation or prosecution. Condition four is that the offence was committed as a result of, or in connection with, religious or political hostility.

This system, which focuses on risk, is very different from the Diplock court system, which preceded the current non-jury trial provisions. The default position under the Diplock system was that all scheduled offences would be tried by a judge alone. Now, under the Justice and Security (Northern Ireland) Act 2007, there is a clear presumption that jury trial will take place in all cases. Certificates are issued only when absolutely necessary in the interests of the administration of justice and where the particular statutory tests are met.

Of course, we all want to get to the point where trials for all indictable offences in Northern Ireland are heard by a jury and there is no need for these provisions. As noble Lords will no doubt be aware, there has been significant progress in Northern Ireland towards normalisation. This culminated in the devolution of policing and justice powers to the local Administration in April of last year. The local elections in May were the first in a generation to be fought on bread and butter issues. Northern Ireland has come a long way.

Sadly, despite this progress, there remains a serious threat from a small but dangerous minority who have no mandate but who are determined to drag Northern Ireland back into the past. The House will recall the horrific murder of the young PSNI Constable Ronan Kerr on 2 April this year. People and political leaders from across Ireland, both north and south, were joined in their condemnation of PC Kerr’s appalling murder. However, the terrorists have shown disregard for the community’s resolve and continue to engage in acts of terrorism. On 8 April, terrorists abandoned a vehicle containing a 500-pound bomb close to Newry, putting at risk the lives of police officers and members of the public. There have also been a number of other security alerts over recent weeks. On Saturday 25 June, the Gardai discovered improvised mortar components and a substantial quantity of fertiliser in County Louth. The total number of attacks in 2011 on national security targets currently stands at 14. There were 40 such attacks in 2010. The PSNI continues to disrupt those intent on causing harm to the community and so far this year has made 101 arrests in connection with terrorist activity. The disturbances that took place in East Belfast last month show that, unfortunately, paramilitary influence remains an issue in both communities in Northern Ireland.

It is against the backdrop of this severe threat that the Government seek to renew the non-jury trial provisions. The threat brings a serious risk that jurors appointed in criminal trials could be subject to pressure and intimidation by terrorist or paramilitary organisations. There is also the associated risk of perverse acquittals, where jurors may be coerced into returning a not guilty verdict.

In reaching a decision on whether to seek the renewal of the provisions, the Secretary of State consulted a number of individuals and organisations on the need for non-jury trials. They included the noble Lord, Lord Carlile of Berriew, the independent reviewer of national security arrangements in Northern Ireland, who concluded that the threat from terrorism and the risk of disruption of trials remain live and recommended that for the time being non-jury trials should continue to be available. The chief constable of the PSNI and the Attorney-General, in his capacity as Advocate-General for Northern Ireland, also agreed that in view of the current circumstances a further two-year extension should be sought.

The number of non-jury trials in Northern Ireland—

The Minister has just given us the views of various people. Were representations and expressions of view given by persons, organisations or political parties in Northern Ireland? What was the balance in those representations in favour of continuing with non-jury trials or otherwise?

This was a limited consultation in terms of the numbers invited, but all political parties based in Northern Ireland were invited, as well as the Committee on the Administration of Justice and the noble Lord, Lord Carlile. There was not a 100 per cent return in terms of invitations to respond. I am told that not many political parties did in fact respond. Of the 11 responses, nine were that we should continue with these provisions and two took the view that we should not.

The number of non-jury trials in Northern Ireland remains relatively low. So far in 2011, the DPP has issued 12 certificates for non-jury trials. In 2010, 14 certificates were issued. These figures are low but significant and show the ongoing need for non-jury trial. The Government want to see a return to full jury trial in all cases in Northern Ireland as soon as possible. However, given the current severe threat from residual terrorist groups in Northern Ireland and its bearing on criminal trials, the renewal of these provisions for a further two years is the right thing to do. I commend the order to the House.

My Lords, I strongly support the speech of my noble friend. Noble Lords will know that I was chairman of the Northern Ireland Affairs Select Committee for five years before the last general election, and in that capacity conducted inquiries into organised crime, among other things. When we conducted our inquiry into organised crime, it was quite plain that many people were not prepared to give evidence to the Select Committee in public, for fear of intimidation. Things have moved on and it is a very good thing that the majority of trials in Northern Ireland are now trials by jury. However, my noble friend is right to point to the real threat from dissidents, about which both Sir Hugh Orde and his successor have consistently and repeatedly warned us. It is notable that so few responded to the consultation exercise with a negative view.

I will just refer to two particular crimes that my noble friend did not cite: not only the ghastly murder of the police constable this year but also the murder of PC Carroll; there was also the most barbaric murder of Paul Quinn, for which no one has yet been brought to trial. The last inquiry that my committee conducted was into the Omagh bombing and we must remember that nobody has been brought to trial in a criminal court and convicted of that most terrible of all atrocities in Northern Ireland. Against that background, where the most despicable criminals have not yet been brought to trial, largely because of the fear of people giving evidence, it is absolutely essential that the provision in the measure before your Lordships’ House is retained for two years.

There are many noble Lords in this House who know far, far more about Northern Ireland than I do because they come from that glorious part of the United Kingdom. They must feel, as I do, that real progress has been made—all those present tonight contributed to it, and one of the particular contributors was my noble friend Lord Trimble. We are well on the way to normality but we are not there yet. Until we are there—until there is no fear of intimidation—we have to retain this provision. It is right that my noble friend brought the measure before us tonight. It is right that your Lordships’ House should support it. In conclusion, I very much hope that in two years’ time he does not have to come here again and ask for a further extension, but if the circumstances are still as they are today he will have to do so.

My Lords, I support the Motion before the House, albeit with some disappointment, as one who 13 years ago sat beside the noble Lord, Lord Trimble, during negotiations and hoped that we would no longer, and certainly not at this stage, have non-jury trials. However, a number of people in Ireland want to keep alive the distrust that exists between two traditions. Those people do not have—and I say this with some confidence—the sort of grass-roots support that previous terrorist organisations had. None the less they have the ability to kill policemen and civilians. Just recently they have issued a threat against prison officers, saying that they intend to kill prison officers because the “hotel” at Maghaberry is not quite to their liking. The reality is that this, though it may be a last stand, still presents a difficulty and presents huge challenges to the security services and to the community as a whole.

There are certain things that are going for us. I am optimistic—I am never quite sure that I can be as optimistic as some of my noble friends from this side of the water. There is always a threat, always a hiding place, but I think that it is appropriate at this time—and it is not every day that I say this—that I praise the Garda Siochana, whose attitude, under the leadership of the very recently retired Commissioner Fachtna Murphy, has been exemplary. There is no equivocation, there is none of this, “Well, we’ll find the arms dump, but we’ll let the culprits escape”. They have found the culprits, they have taken them to court and convicted them. That has sent a huge and very important message to Northern Ireland that there is no all-Ireland desire to have violence continuing.

For somebody who has been involved in security and Northern Ireland affairs for as long as I have, there is always the temptation to say that we did it better when it was more difficult. I simply hope that our police service, the Police Service of Northern Ireland, does not slip into a comfort zone which assists people who are dissident IRA and a number of other people who would embark on loyalist violence again—I have never, I hope, been someone who looked purely at one side of the community, or the threat to one side of the community. There is a necessity now for a common-sense approach, a need to ensure that fewer people are put under pressure. I am talking now about juries and I think that the Minister is very wise in what he has suggested this evening; that we have to protect not only those who would be targets of the potential terrorists but those who would become targets as members of a jury. Indeed, as recently as this week we have seen prison officers being highlighted for targeting.

I should not sit down without saying something that I hope will be heard by all the authorities in Northern Ireland, particularly the Northern Ireland Office. I have said one or two kind things, I am going to say one or two unkind things—perhaps one unkind thing—and that is that the degree of communication at the moment is not satisfactory. I hope that the Minister will take that message away. There are those of us sitting in this House who have many years of experience and whose advice is never sought. More than that, I feel that sometimes our advice is avoided.

With that, I simply say that I support—like the previous speaker, I hope that in two years’ time, I will not have to support it again—the continuation of the non-jury trials at this stage.

My Lords, I did not intend to come into this debate, but the noble Lord, Lord Maginnis, said two things that worry me. He suggested that the PSNI is getting complacent. I do not believe that to be true. It is under threat continuously. He and I have met widows in recent times. That is not right. For four or five years now, I have worked with the Secretary of State and no one is more diligent or more energetic than my right honourable friend Owen Paterson. The communication is very free and ongoing, and Owen does not hide anything from anyone. He tells it as it is. If the noble Lord does not like the way in which it is coming out, that is different. But it is the way it is.

My Lords, I am grateful to my noble friend for outlining the background to the order. I should like to pick up one or two of the comments. Like other noble Lords, of course I regret the fact that it is necessary for this order to come forward again. Perhaps, particularly today, noble Lords might expect me to say that such a thing should not be necessary. In the final IMC report published today, we have said again that it is time for peace process institutions to pass into history and for the proper administration of politics and the rule of law to take place under Northern Ireland authority by Northern Ireland elected representatives.

I and my colleagues very much stand by that but it does not necessarily mean that the particular process to which we are referring today should be set to the side immediately. I want to take that a little further. It is clear that there are those in Northern Ireland on the republican side—we sometimes call them dissident republicans—who simply are not persuaded that political arguments should not be made through threat or actual use of violence. They continue to believe that. For a very long time there have been people who have taken that view in Ireland, north and south as well as elsewhere.

As the noble Lord, Lord Maginnis of Drumglass, said, it is also clear that there are those in the loyalist community who continue to use violence. With regard to them, I see little evidence that there is any political agenda at all. It is very much about self-aggrandisement and crime. In some cases it is a kind of incipient attack on the police and the historic inquiries team, because some of them simply do not want their past crimes to catch up with them. They want to foment violence, trouble and sectarianism within their own loyalist community.

My difficulty, and I think my noble friend will agree, is that despite the fact that the previous Government indicated that a more substantial process would take place, the consultation was very limited. It seems to me that, the next time round, there needs to be a much more substantial consultation at a much earlier stage. Over the past number of years the majority of people—and I say this from my experience in the IMC—have been increasingly prepared to come forward to give evidence and material, to participate in juries and so on. However, I am not wholly sure that we will get to a place in the next two years, or perhaps even a little longer than that, when there will be no fear and no reason for fear in the community.

It seems to me that there is something fundamentally unsatisfactory about telling ourselves that in two years it will be fine; in two more years it will be fine; and in another two years it will be fine. We know how long the provisional can stay and that it can become rather permanent. I do not think that that is satisfactory. I wonder whether the notion of non-jury trials is such that they will have to be with us for quite some time. They are not for widespread use—we are talking about only a dozen or perhaps two dozen individuals over a period of 12 months. However, it is still a significant number.

I come back to a matter that I and colleagues in the Alliance Party have spoken about in the past—that in such non-jury trials a number of judges might sit together, not on the basis of a two-year order but perhaps on a longer-term basis in circumstances where it proved necessary. We have seen such circumstances in the Megrahi trial, for example, which was a three-judge court, with appeal to a five-judge court.

In the past, the argument made by the judicial authorities in Northern Ireland when there were a very large number of cases was that it was completely impossible as the number of judges required would make it completely impractical. There was some force in that argument. However, where we are talking about a very small number of cases it does not seem unreasonable to believe that the judiciary in Northern Ireland might be able to sustain the numbers required. In theory the Diplock courts were unsatisfactory; in practice complaints about justice during the Troubles were more about perverse outcomes such as the Birmingham Six and the Guildford Four, which were jury trials, rather than the actions of judges in Northern Ireland. It says a great deal about the calibre of the judges in Northern Ireland over many years that there were not an enormous number of complaints. In principle it was not satisfactory but in practice there was relatively little complaint.

I want to make sure that I understand what the noble Lord is saying. Is he saying that instead of coming back in two years’ time for another renewal, which in theory could go on indefinitely, we move to a transition proposal? As Dr Johnson said, there is nothing as permanent as the temporary. In other words, would this become a transition period rather than simply coming back in two years for renewal? Was the noble Lord saying that his proposal for multi-judge courts would be a transition to where we would all want to be with jury trials?

As ever the noble Lord is alert and well ahead of the argument. There is a case that, rather than waiting for two years, when we would have little opportunity but possibly a modest consultation and a repeat of the order, perhaps after only one year there could be a much more serious consultation process that would look at the question of whether a more substantial change might be made. For example, a more permanent arrangement which had three judges sitting in such non-jury cases might be considered. I say “after only one year” because quite clearly it would require substantial primary legislation that would require serious consultation and thought. However, I feel that it would not be good for us to get into a position where every two years we repeated this because we could not think it through properly. It is much better to come back for a proper consultation, not with just 11 returns but with a more substantial debate which gave time for proper primary legislation. I fear—from my own experience and I rather suspect that of other noble Lords with experience in Northern Ireland—that those on the loyalist side and the republican side who may be prepared to threaten juries and otherwise use threats and intimidation may not disappear in two years or four years or six years. Some of the cases of violence in the last little while will take quite a while through the process.

To some extent I considerably disagree with the noble Lord’s proposition. I understand where he is coming from but I feel that psychologically to impose a permanent trial system without judges, a Diplock court system, is admitting defeat. I am still an optimist, even now. I still think that we will be able to get back to proper democracy and judicial processes. I cannot go along with the idea that we set up this non-jury system of trials for as long as we want. The other thing I like about the present system is that it reflects the state of play in Northern Ireland because the heart of the state of play on one side is financial and on the alternative side it is terrorism and criminality and the way the judicial processes are working. It is very important that this should come back to your Lordships’ House and to the other place once every two years.

I am grateful to my noble friend for intervening, but in a sense he is already engaging in the process that I was suggesting. I was not suggesting that we immediately jump to that suggestion or any other, but rather that we should engage in a proper process of debate and consultation rather than the more than modest consultation that there was. The noble Lord, Lord Maginnis, has a point when he talks about consultation and communication. If there is a proper consultation over a reasonable period, the concerns of the noble Lord, Lord Glentoran, can be engaged with, rather than living in hope that everything will be fine, when all our experience, sadly, is that it has taken a lot longer to get where we want to go than we could ever have imagined.

My Lords, I offer reluctant but strong support to the noble Lord, Lord Shutt. It may or may not be a comfort to him to know that he stands in a long line of Liberal Ministers, going back to Mr Gladstone in the 19th century, who have been perplexed by the problems created by the Irish tradition of political violence for the legal system, particularly for the process of jury trials. There was a serious argument in the 19th century that such cases should be taken out of Ireland and tried in Liverpool; serious writers argued that that was a way of preserving jury trial. More generally, it was perceived that the inability to have proper legal procedures in cases involving political violence was pointing up a fundamental crisis in Ireland—the failure of the attempt to combine colonialism and democracy—and that this created a context in which terrorism existed.

What is striking about the situation in Northern Ireland now, though, is that by any standards we have a legitimate democratic system. In the most recent Assembly elections, 107 out of 108 Members of that Assembly were fully elected by the people of Northern Ireland and are full supporters of the political arrangements that are in place. In a referendum, the people of Ireland as a whole showed that they support those political arrangements. We now know that it is too sweeping a judgment to say that terrorism arises simply from a denial of democracy, because we have now established a legitimate and democratic system and we still have these problems with democracy and a situation where it would yet be unwise to return to jury trials in terrorism-related cases. I take very seriously the advice from the noble Lord, Lord Carlile, in particular, which the Minister mentioned in his introductory remarks.

Like other noble Lords, I have one caveat, one doubt. It concerns the process of consultation, which seems to have been meagre in this case. A few months ago the noble Lord, Lord Shutt, came to the House with a piece of legislation that reflected electoral law. There, in fact, the consultation was actually wider. In some ways this is a more important matter, going to the heart of where we have reached now in Northern Ireland.

I fully recognise what the Minister describes when he says that the Northern Ireland Office was not overwhelmed with advice on this matter; for a number of reasons, people want to turn their eyes away from this. It is actually difficult to have a lively consultation on it, and the Minister’s remarks in this respect are entirely reasonable and fair. I wonder, though, whether we should be thinking along the lines suggested by the noble Lord, Lord Alderdice, of having a genuine debate. I am not convinced that he is right about the desirability of three judges as a solution in this context, even in the short term, but that does not matter; there is no question that if you said, “We are consulting about this”, you would provoke a substantive debate and much more lively contributions.

I ask the Minister to consider ways in which we could ensure that the next time that he has to come to this House asking for an extension in this respect, if there is a next time, we will be able to say that we have had a proper public consultation and a genuine element of vigour in the debate that occurred beforehand. For reasons that are not his fault or the fault of the Government, he has not been able to say that, but if we took a different approach there might be a way of having a better debate.

My Lords, I have listened with great care to the debate and it is clear that none of us welcomes the order before us. The Government have informed us, and it has been endorsed by noble Lords, that it has been brought forward because of necessity. The Minister’s comments on that were a wise reflection. We are not in a normal situation and we should never regard it as such. We have to continue to move towards normalisation of the courts and the justice system. The noble Lords, Lord Shutt, Lord Bew and Lord Maginnis, all recognised the enormous progress that has been made in moving towards normalisation in Northern Ireland but we recognise that some parts of the justice apparatus are not yet able to be fully normalised. That has to be the right direction to move towards and one that has our total support.

The key issue of importance in this order is the maintenance of public confidence in this position. Obviously, we will not oppose the order tonight, but I am sure that the Minister is aware that accountability and transparency of decision-making if a case is not to be heard by a jury are extremely important. Each decision must be taken on a case-by-case basis. We certainly agree with the Minister and support the reduction in the time before it will expire from four years to two. I welcome the comments he made at the beginning that there should be a return to jury trial as soon as possible. It is clear from the discussion this evening that no one wants to move towards a rolling extension of such an order every two years. Should a further order be necessary in the future, I hope that the noble Lord will take back to his ministerial colleagues the comments that have been made about consultation and the issues that have arisen. That could play into the comments and concerns that I have about accountability and transparency and ensuring that we maintain public confidence in the system.

I have four points to raise with the Minister that I think will be helpful to noble Lords. He set out some of the reasons why he felt it necessary to extend the order. It would be helpful to have a little more detail on that. That is my issue about public confidence in the judicial system. It is always important and prudent to be as transparent and open with us as he can possibly be but I recognise the difficulty. I understand the Government’s concern, which has been raised by other noble Lords, about jury interference. Is he able to tell us about any other action that the Government are seeking to take to deal with the issue of jury interference because that will help towards looking into the future of reinstating jury trials? Furthermore, as the decision will continue to be made by the DPP, can the Minister say more about the criteria that are used by the DPP when deciding whether or not the case should be heard by a jury? He gave the four criteria at the beginning, but I am interested in the weighting of those criteria and the fact that only one has to be met for the DPP to decide on a non-jury trial.

I wonder whether the Minister has further information about the limited circumstances in which a certificate for a non-jury trial would be provided. If he has not, I am happy for him to write to me about this. Fourteen certificates for non-jury trials were issued in 2010 but 12 have already been issued in 2011, which indicates that there will be a much higher number issued in 2011 than in 2010. We are all aware of high profile cases that have yet to come to trial. If we were to see that increase year on year, the Minister will recognise the significance of that. I am interested in the number of cases considered for jury and non-jury trials. What is the balance between those for which the DPP grants a certificate for a non-jury trial and those that he would not grant a certificate for a non-jury trial? We have to be concerned about the numbers increasing when we are seeking to move towards normalisation of the justice system.

I thank the Minister for his helpful explanation that has led to a thorough debate on this issue. I hope that he will take away the comments to his colleagues in the department who can reflect on them to see whether improvements can be made, particularly with regard to consultation in future.

My Lords, I thank all noble Lords who have taken part in this debate. I am grateful to the noble Lord, Lord Cormack, for speaking about his experience in the House of Commons of dealing with Northern Ireland matters and I note that he spoke about people’s fears. I am delighted to hear that the noble Lord, Lord Maginnis, is an optimist. That is a good place to be in regard to Northern Ireland. We need more such optimists. I hope that he continues to be an optimist. I am also delighted that he praised the exemplary work done by Garda Siochana. I noted with concern what he had to say about threats to prison officers. I will ensure that that is taken back to the department so that people are aware of it. I am also concerned that he feels that there is a communications problem. The Secretary of State has spoken to Peers about Northern Ireland matters for a number of years, but such a meeting has not taken place for a while. I will draw to the Secretary of State’s attention that it is time we had another. We have said that we would endeavour to hold three such meetings a year. I think that we are not up to scratch on that. I will certainly take that back to the department.

I am delighted that the noble Lord, Lord Glentoran, is also an optimist—what an optimistic day—and that he believes that the police service is not complacent. I am delighted to hear my noble friend Lord Alderdice speaking on the day on which his report—the 26th and final report of the Independent Monitoring Commission—has been produced. I am sure that all noble Lords are very grateful for the work that the noble Lord and his colleagues have carried out over many years in monitoring the willing. Sadly, much of the dissident republican and dissident loyalist violence that we are still talking about is the work of the unwilling. I noted with interest my noble friend’s comments on a possible way forward. I have heard the voices but we will have to make a judgment closer to the time on whether there is a need for a public consultation. Happy would be the day when we could say that we did not need the two-year period. That could happen. It does not have to be a case of two plus two plus two, but we want to take into account the impact and effect of other changes to the criminal justice system which the local Administration is taking forward. At the moment we can extend this provision only for two years. My noble friend suggested that we look at a three-judge system. I will take that option back to colleagues. Obviously, that would constitute a big change but I understand why he has suggested it. We routinely have one judge presiding over a criminal case and if a defendant is not satisfied with a verdict, there are the usual routes of appeal.

In the early days of the Diplock courts, there were more than 300 cases. That figure diminished over time but in the past five years of the present regime there have been 12, 25, 11, 14 and 12 so far this year. However, as the noble Baroness indicated, the figure could now be going higher than the year before and the year before that.

The noble Lord, Lord Bew, indicated his reluctance but said that he strongly supported the extension. We are all reluctant, I am afraid, and wish that we did not have it to do. He gave a comforting reminder of the splendour of the democratic system. Nevertheless, there are those who do not want to participate in what it brings forward. He was concerned about consultation and I shall take his concerns back.

The noble Baroness, Lady Smith, agreed that the order is a necessity. She is concerned about public confidence. However, as I understand it, this is an exceptional system; it is used only in limited circumstances on a case-by-case basis and there is a presumption for jury trial, the opposite of Diplock. The noble Baroness asked about other action. I am not aware of any that I should draw to the attention of noble Lords but, if there is, I shall write to her. After looking at all the papers and all that I have read, I am not certain that there is another initiative of which I am able to speak. However, if there is, I shall drop her a line on that. The noble Baroness referred to other steps. This is now a matter for the devolved Administration and the PSNI. All we can do is support them in their efforts to reduce intimidation.

I like to have figures available but I cannot say, for example, that there were 12 cases in a non-jury setting and 3,000 otherwise; I do not have those kinds of numbers. We shall endeavour to provide the figures—I am sure they must be available—but it is clear that the figure for non-jury trials is very low.

I hope I have dealt with the comments made by noble Lords and that your Lordships will agree to the renewal of the order.

Motion agreed.

Sitting suspended.