I beg to move amendment No. 42, in schedule 2, page 16, line 28, leave out “has held” and insert “holds”.
Many issues that relate to the amendment were covered in the previous debate. I realise that we are making slow progress this morning, so I shall be brief. The amendment deals with the appointment of retired judges to the special tribunal. The provision requires the special tribunal to
“consist of a person who has held high judicial office in Northern Ireland”
The explanatory notes suggest that the person involved should be retired, but it could be argued that a current judge of such standing would fit the description of having held high office. For example, Sir Brian Kerr has held high judicial office since 1994. Will the Minister clarify whether the definition of “has held” high judicial office is exclusively in respect of retired judges? He suggested that in an earlier debate.
We believe that such matters are extremely important. The Minister said that many cases will deal with the charge of murder. Is it appropriate and sufficient to leave such matters to a retired judge? After all, the law evolves all the time. Can we be certain that a retired judge will have followed all the changes in the law and that he will be up with all the precedents that are relevant to the case he is considering?
The hon. Gentleman raises an important issue, but will he seek clarification through the Minister of whether, in the intervening two years between the Bill reaching the statute book and applications for certification and tribunals making progress, the necessary training, instruction and bringing up to date of recently retired judges can be achieved? I feel that they can, but the processes need to be in place to ensure success.
Unfortunately, the Bill does not make it clear that the tribunal will be formed immediately after its passage through Parliament. Will the Minister clarify that? If it is not formed then, when will the retired judges be appointed? In any event, it does not make for sound judgments to have retired judges sitting on special tribunals dealing with such issues.
Given that the Minister made it clear that these cases will not be dealt with in the Crown court, they should at least be heard by sitting judges. It further devalues the entire process that we shall have an entirely special arrangement.
Does the hon. Gentleman accept that some of us who support him on the amendment believe that he has taken the argument a little too far? He is in danger of deluding himself and the rest of us into thinking that we are talking about a serious court and a judge who needs to be up to speed with recent cases and case law. The construct of the legislation will ensure that the special tribunal is immune from any consideration of reality, law and justice. A judge from “The X Factor” or “Strictly Come Dancing” would be as relevant and purposeful as a judge from the courts.
If the hon. Gentleman is as adept and skilful on his feet as he is with his words, perhaps we could enter him for “Strictly Come Dancing”. He would have my full support.
The hon. Gentleman has made a valid point. Perhaps we ought to be questioning not the mental capacity of the judges to deal with these issues, but their physical capacity to lift their arm and apply their rubber stamp to whatever the deemed pronouncements are. When the rest of the Bill is considered—the fact that the police will not be able to arrest, detain or question on-the-runs, or take samples, fingerprints and so on from them—the prospect of securing convictions is pretty minimal.
The Minister has said that the scope of the tribunal goes much beyond the question of OTRs; it includes addressing the issue of cold case review and cases that will emerge from that, which might involve serious crimes, including murder. There is an issue here, which he needs to address. That is why we have tabled amendment No. 42, which would require that the judge who sat on a special tribunal held high judicial office. We believe that current judges should be involved, and there is no reason why the Government could not appoint additional judges.
I do not accept the Minister’s argument that the arrangement is temporary. If he had accepted amendments discussed at earlier sittings, when we sought to limit the lifespan of the tribunal to six or 12months, I might have accepted his argument. Currently, the reality is that the process is open-ended. If a 75-year-old judge were appointed to sit on one of the tribunals—we are talking about things that might happen in five or 10 years—it would beggar belief.
It is not a sufficient defence to argue that the inclusion of the cases in the normal judicial system would clog up the courts and that judges would not be able to cope with the case load. There is no doubt that the number of cases under the anti-terrorism legislation in Northern Ireland and under the Diplock court system has reduced significantly in recent years. If there were to be an upsurge in violence—the Minister says that is unlikely; maybe so—how could the judicial system cope?
Does my hon. Friend accept that these “trials” will be significantly shorter than trials of any other kind? In most cases, we will find that the accused will not be present, so there will be no cross-examination of the star witness.
The Minister has indicated—I could not read his lips that well, although I assume that this is what he meant—that that is a matter that the Government are considering. However, he was quoted this morning on “Good Morning Ulster” on the BBC as saying that while they are reflecting on opposition to the provision, they are not committed to changing the legislation. I am sure my hon. Friend will give way if the Minister wants to clarify the position.
Indeed. That is why I suggest that there might be a question mark over the commitment that the Minister gave to the Committee at a previous sitting.
There is no question mark over the commitment that I gave to the Committee. I said that I will reflect on those matters. The hon. Member for Belfast, East withdrew his amendment on the basis of that assurance. I assure him that I will reflect on those matters when we reach consideration on Report.
We await the Minister’s response on Report with interest.
We have summarised well the points in support of the amendment. I urge the Minister seriously to consider the impact of the farcical nature of the entire special tribunal scenario, which is to be presided over by retired judges. The message that that sends out to the victims of terrorism is, effectively, “You are second class.” Cases involving road traffic accidents or organised crime would go through the normal judicial system.
To pick up on a point made by the hon. Member for Foyle from a sedentary position, it is amazing that the republican movement, in the form of Sinn Fein-IRA, is entering into an agreement to establish what is effectively Diplock mark 2, when it has campaigned for years against Diplock mark 1. It is just another example of the double standards of Sinn Fein-IRA that not only will they deny justice to victims, but they are now signing up to a system of justice that they claim to have opposed for decades. I urge hon. Members of all parties to support the amendment.
Adopting that ethos, I shall be succinct. I ask the Minister for clarification. We have heard about the differences, or similarities, between the special tribunal and a court of law, but will he clarify the rules regarding double jeopardy in the situation that we are discussing, given that the preceding trial, as such, will not be complete, because—
I, too, shall be brief. I support the amendment proposed by my hon. Friend the Member for Lagan Valley (Mr. Donaldson). My hon. Friend the Member for Lancaster and Wyre (Mr. Wallace) made an intervention that the Committee found somewhat humorous, but he made a serious point, which was underlined by my hon. Friend the Member for Lagan Valley. The fact that the Committee found it humorous shows what a ridiculous Bill this is. It is full of inconsistencies and things that will be most offensive to many people in Northern Ireland. The fact that there will not even be a serving judge in charge of the process is typical of the rest of the Bill, and that is very unfortunate.
My hon. Friend the Member for Lagan Valley did not go quite as far as I would have done. I should just say that I have every respect for people who are retired. To draw an analogy, before I came to this House, I used to do quite a lot of charity fundraising, professionally, and it is typical for there to be a chairman of a fundraising appeal. The advice was always that if there was to be a chairman, it should be someone who was still working and had not retired, simply because if they had retired, they would have lost their contacts, which are very useful for fundraising organisations. In the same way, a retired judge will not be up to speed with legal practices.
In my youth, I studied law through a correspondence course, but I was advised not to do it by correspondence, simply because in law, things change so quickly. Having a retired judge in charge of the process is a further insult to the people of Northern Ireland.
Does the hon. Gentleman accept that there is a marked difference between a judge who retired six or 12 months ago and one who retired 20 years ago, in terms of how up to speed they are? Also, there is the issue, to which I referred earlier, of training and further instruction in the period leading up to the establishment of the special tribunals.
If the hon. Gentleman is asking me whether there is a difference between someone who retired 20 years ago, and someone who retired six months ago, yes, there is. Of course there is a difference, but I still think it is unacceptable to use a judge who retired six months ago.
There is nothing in the Bill that states that the judge will be a recently retired judge. That is left open; it could be somebody who retired 20 years ago. There is also nothing in the legislation that says that they have to be a Northern Ireland judge. If they are not a Northern Ireland judge—and I think that most of those will have enough sense not to wish to take up such a post—we will be bringing in a judge from a different legal jurisdiction.
My hon. Friend makes two very good points. I would go further and say that as far as I can see, there is nothing in the legislation about the retraining aspect either. I would like to say quite a bit more on this issue, but given your call for brevity, Sir Nicholas, I will conclude my remarks now. I very much support the proposal introduced by my hon. Friend the Member for Lagan Valley.
I am about to call the Minister, but before I do so, I say to the hon. Member for Lancaster and Wyre that he raised an important matter, which he sought to get an answer to, but unfortunately it was not relevant to the amendment under discussion, which deals with the appointment of a retired judge.
I do not think that there should be any point of order. However, if the hon. Gentleman wants to come back on this matter, I will use a bit of discretion and flexibility and say that he can do so, because this has been a very good-humoured Committee.
On a point of order, Sir Nicholas. The Minister tells us that it is important to have a special tribunal that is set aside from, but operates similarly to, the court system, and is chaired by a retired judge rather than a serving judge. I was trying to establish the differences involved in that. If we were to have a retired judge, what status would that give the tribunal with regard to dealing with the quality of evidence and the judicial process for double jeopardy? If the Minister can answer that it would make no difference—that if proceedings were suspended, individuals could be subject to trial again—I might be inclined not to support the amendment.
First, let me respond to the rather flippant comments of the hon. Member for Foyle about whether a High Court judge might as well be a judge from “The X Factor”. Sharon Osbourne has many qualities, as does Louis Walsh, but it is not my recollection that either of them has held high office as a county court judge or a circuit judge in England and Wales. Simon Cowell is known for wearing tight shirts, but I am not sure that he has ever worn a wig and a red coat. However, if any of those three individuals has held high judicial office as a county court judge or a circuit judge in England and Wales, they are free to apply for the position in due course.
A number of the issues that have been raised were covered in the previous debate. I have explained to the Committee how pressures on the judicial system have led us to examine the possibility of a retired court judge being appointed to those posts. County court judges and circuit judges are qualified to hear criminal cases, and to pass sentence up to a maximum life sentence. There is no reason to question the capability of those who have the qualifications listed in paragraph 2(1) of schedule 2. That states that we would seek to have someone who has held high judicial office in the county court or as a circuit judge in England and Wales.
I hope that it will be helpful to Members if I point out that the way in which we have phrased paragraph 2 does not preclude a serving judge from serving. The hon. Member for Lagan Valley asked about that. It is entirely possible for a serving judge to serve on the special tribunal. We intend to seek retired judges for that role, for the reasons that I have mentioned; pressures on the existing judicial system mean that we intend to create the possibility of establishing a parallel special tribunal, because the measures that it will deal with will be temporary. However, that does not preclude serving judges from participating. The hon. Gentleman should read the schedule carefully:
“The Special Tribunal is to consist of a person who has held high judicial office”.
That could mean somebody who is currently serving—someone who still holds high office. It is simply our intention, for the reasons I have mentioned, to ensure that retired judges can deal with this matter.
Questions have been raised about whether, if we chose to appoint a retired judge, that person would be capable of dealing with this matter—whether he or she would be up to speed on current legislation, and have the skills required to deal with complex cases and renewed legislation. The proposed individual who will preside over the special tribunal will, as in any Crown court, have staffing, advice and support on legislative matters. They will have access to all relevant developments and papers as part of normal consideration. I do not think that simply because someone is retired they are not up to speed with the legislation. That support will be provided, and will ensure that that person can deal with matters.
Questions have been raised about the establishment of the tribunal, including when it will be established. I have said previously that should the Bill complete its passage through both Houses of Parliament and receive Royal Assent, that in itself will take us a considerable time in this Session to achieve. Once it is achieved, considerable time will be needed to establish the procedure for the certification commissioner and the special tribunal. I have said that the scheme is unlikely to become operational until early to mid-2007 at the earliest, for the reasons that I have outlined, which relate to parliamentary procedure and the basics of establishing the scheme. Without giving a definitive date for the tribunal, I hope that hon. Members on both sides of the House understand that that is our intention. It was clearly expressed before the debate, and has remained our intention in the course of the debate.
I do not want to repeat myself, and I think that I have put on the record in previous debates the reasons why we need schedule 2 in place. I hope that I have satisfied the hon. Member for Lagan Valley at least on the reasons for that, even if I cannot assist him currently. I am looking for my note on double jeopardy, to which I want to refer. The hon. Member for Lancaster and Wyre mentioned double jeopardy, and it was also raised with me in writing by the hon. Member for North Down following Second Reading. I have told her in writing—I hope that she does not mind my sharing the nature of the correspondence with the Committee—that her point is extremely valid and we have to reflect on it.
We are taking legal advice to establish that very point, but I am confident that the position that we have set out to date is valid. But if when we have examined the matter it turns out not to be valid, I have already undertaken to write to the hon. Lady and introduce suitable amendments to ensure that what I have described is the case. On either aspect, the question of double jeopardy will be resolved by the time of consideration on Report. I have already said that to the hon. Lady. We are examining whether any further technical drafting is required to ensure that the Bill dovetails with provisions in other legislation. That is the point that I have mentioned to the hon. Lady, and I hope that it will satisfy her and the hon. Member for Lancaster and Wyre.
The Minister did indeed kindly write to me after Second Reading, when I particularly raised this point with the Secretary of State. I must say, however, that his letter was as clear as mud, and he has responded likewise to the Committee, including the hon. Member for Lancaster and Wyre, who raised the issue on a point of order. Could the Minister confirm that any decision taken by the special tribunal will not rule out the possibility that if the special tribunal acquits an individual—does not find them guilty—and there is new and compelling evidence after that, that individual—that criminal, that murderer—will be retried before the proper courts in Northern Ireland? That is the confirmation and clarification that I seek.
As in all matters, as far as is practicable, the rules that apply in a special tribunal will be the same as those that apply in a normal Crown court.
That leads on to the point that the quality of evidence demanded by a Crown court should also be demanded by a special tribunal. If, for example, as my hon. Friend the Member for Belfast, East said, one of the star witnesses is not present, how can the quality of evidence demanded in a special tribunal be the same as that demanded in a Crown court?
I do not wish to repeat myself, but I hope that hon. Members on both sides of the Committee have recognised that I am reflecting for Report on the question of the star witness not being present. I do not want to go further than that today, but the hon. Member for Lancaster and Wyre will be aware, following our earlier discussions and the new clause proposed by the hon. Member for Belfast, East, that I am reflecting on those matters for Report.
It is our intention that the same rules should apply. I am reflecting on whether the current proposals meet that intention, and I believe that they do. Following the intervention of the hon. Member for North Down on Second Reading, my team and I are reflecting to ensure that the same rules apply on double jeopardy as on evidence in court. It is our intention that that they will. Following the hon. Lady’s raising that matter on Second Reading, I have undertaken to examine the matter, and we are in the process of doing so. The helpful parliamentary nature of the process means that if our examination should prove that the same rules do not apply, we will be able to table technical amendments to ensure that they do. I hope that that satisfies both the hon. Lady and the hon. Gentleman. I rest my case before the Committee today, commend the schedule to hon. Members, and ask them to reject the amendments.
I have listened carefully to what the Minister has said, and I remain unconvinced by his arguments about the use of retired judges to preside over the special tribunals. We therefore wish to press the matter to a vote.
Division number 35 - 9 yes, 15 no
Voting no: David Anderson, Gordon Banks, Russell Brown, Vernon Coaker, Rosie Cooper, Michael Foster, David Hanson, Tom Harris, Mark Hendrick, Meg Hillier, Huw Irranca-Davies, Siobhain McDonagh, Madeleine Moon, Andrew Slaughter, Mark Todd