Lady Hermon (North Down, UUP)

I beg to move amendment No. 253, in clause 5, page 4, leave out lines 22 to 28 and insert

‘any proceedings already commenced for—

(a)an offence to which this Act applies, or

(b)an offence committed before 10th April 1998 in connection with such an offence,

are to be suspended until the application is determined.’.

Nicholas Winterton (Macclesfield, Conservative)

With this it will be convenient to discuss the following amendments: No. 259, in clause 5, page 4, line 23, leave out from ‘applies’ to end of line 25 and insert

‘which would be certified within the meaning of section 3(7), were the application granted,’.

No. 122, in clause 5, page 4, line 27, leave out paragraph (b).

No. 123, in clause 5, page 4, line 29, leave out subsection (2).

No. 255, in clause 5, page 4, line 31, at end insert—

‘(2A)Where proceedings are suspended by virtue of subsection (1)(b) the court shall not consider the fact of suspension in determining whether or not to grant bail.’.

No. 256, in clause 5, page 4, line 31, at end insert—

‘(2A)Where proceedings are suspended by virtue of subsection (1)(b) and any custody time limit applies, that time limit shall also be suspended until the application is determined.’.

No. 124, in clause 5, page 4, leave out lines 33 and 34.

Lady Hermon (North Down, UUP)

What a hornet’s nest clause 5 is. The amendments in my name are amendments Nos. 253, 255 and 256. Clause 5 as it stands is curious. Subsection (1) states:

“Where a person applies for a certificate of eligibility ... no proceedings may be commenced for ... an offence to which this Act applies; or ... an offence committed before 10th April 1998”

until the application for the certificate of eligibility has been determined. Goodness knows how long that will take. At present, subsection (1) guarantees that a person who may be guilty of terrible crimes never has to put their foot through the door of a court.

The purpose of amendment No. 253 is to ensure that proceedings must at least have commenced. The applicant—the person who is guilty of the most terrible of crimes—must at least have darkened the door of a court to make a court appearance. The amendment would omit lines 22 to 28. The clause would instead read that

“any proceedings already commenced ... are to be suspended until the application is determined.”

The effect of the amendment would be to oblige the applicant, who will get an amnesty for committing the worst of crimes, to step into court and allow us to see his or her face.

This morning, the Minister was asked to reflect on the intrinsic contradiction in clause 3. Why do the Government prefer to give beneficial and preferential treatment to those who are on the run compared with those in the security forces? The Minister was at pains in the early stages in Committee to emphasise what a difficult decision that had been to take, but, on balance, he was convinced that police officers should also be included in this ghastly piece of legislation.

The Minister, when pushed, indicated to the Committee that it was his understanding that members of the security forces would be granted bail and would not have to linger at Her Majesty’s pleasure in prison. However, if the Minister and other Committee members care to turn their attention to subsection (2), it states:

“Where proceedings are adjourned by virtue of subsection (1)(b)”—

in other words, where an application has been made—

“the court has the same powers to remand the person (in custody or on bail) as it has in the case of an adjournment for any other reason.”

That is the Crown court or other criminal courts in Northern Ireland, not a special tribunal or the certification commissioner.

Therefore, the Minister’s assurance to the Committee this morning is not consistent with clause 5(1)(b) and subsection (2), which expressly preserve the right of the Crown court—the ordinary criminal court—to remand members of the security forces in custody. I urge the Minister to provide much better   clarification by accepting my amendment to ensure that the wording does not give OTRs preferential treatment, either accidentally or on purpose.

Amendment No. 255 would ensure that the ordinary courts in Northern Ireland—not this awful parallel system that we are building here—would not take into account the suspension of proceedings when determining whether to grant bail.

The decision to grant bail should be determined on the seriousness of the offences that the applicant is alleged to have committed. The fact that the applicant is seeking to benefit from an amnesty should not sway the court and should not be taken into account when the Crown court is deciding whether to remand an individual to custody or to grant bail. That covers amendment No. 255.

Finally, on amendment No. 256, there are maximum time limits for keeping the defendant in custody between an application for a certificate and a decision on its completion. The amendment’s purpose is to ensure that the maximum time limits on which a defendant can be remanded in custody are suspended at the same time, so that those maximums would not apply until the application for a certificate of eligibility was determined.

Together, the amendments are important as they would mean a court appearance by all defendants. The very least such people should do before they benefit from the amnesty is put their foot through the door of the court so that we could see their faces before they were granted clearance for the most awful crimes committed in Northern Ireland’s history.

Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

Amendments Nos. 122, 123 and 124 are slightly different from those tabled by the hon. Lady, from whom we have a slightly different view on the matter, although we are happy to discuss it.

We believe that it is wrong for any proceedings that are already going on to be suspended. In some cases, we can see that possibly—I stress that word strongly—there might be a case for not commencing new proceedings as outlined in the clause, but we do not see the case for ending those that have already begun. A great deal of expensive work could already have been done in many cases and we simply see no justification for ending them at such a point.

The hon. Lady made some good points in support of her amendments, but I am concerned about the comparison between clauses 5 and 7. Clause 5 states:

“Where a person applies for a certificate ... no proceedings may be commenced ... any such proceedings already commenced are to be suspended”.

Clause 7 relates to when the certificate is awarded and provides that no further investigations may be made. That is very unsatisfactory. I do not want to speak at length, but I seek from the Minister an explanation of why the clause is drafted in this way.

Lembit Öpik (Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs; Montgomeryshire, Liberal Democrat)

I strongly agree with the intent of amendment No. 253, tabled by the hon. Member for North Down. It is utterly incomprehensible to the   Liberal Democrats why the Government would seek to protect defendants in this process from having to appear in court. The hon. Lady described what she is attempting to do, so we are in no doubt about what the amendment intends to achieve.

I look forward to hearing why the Government do not think it reasonable to expect the defendant to appear in court.

Mark Durkan (Foyle, Social Democratic and Labour Party)

Under the Bill as it stands, once a person applies for a certificate of eligibility, he cannot be prosecuted for any troubles-related pre-Good Friday agreement offences, as clause 1 makes clear. That freedom from prosecution remains until a decision is reached on whether to issue the certificate. As we have stated in relation to other points, such provision is too broad and open to abuse. Someone could apply for a certificate of eligibility for what might be regarded as a more minor pre-Good Friday agreement offence and, as a result, have proceedings against much more serious offences suspended, possibly for months or even years. One has only to look at some examples that my hon. Friend the Member for Belfast, South mentioned earlier to realise that it is not inconceivable that such proceedings could be prolonged for years.

There is no reason why a person should be able to have all proceedings against them stayed for pre-Good Friday agreement offences. The only offences that should, arguably, be stayed, are those for which certification has been sought, and perhaps any ancillary offences deemed to be connected with such specific offences. If anything is to be suspended, that is where the limit should be and that is what our amendment No. 259 is aimed at ensuring.

That amendment refers back to the definition of a certified offence in clause 3(7), which includes connected offences, but excludes other pre-Good Friday agreement offences. Beyond that, a trial judge should decide whether to suspend proceedings. However, there should be nothing to compel the judge to do so. The issue should be truly at the discretion of the court.

I hear what the hon. Member for North Down says about amendment No. 253. I do not believe that it would do all that our amendment No. 259 would do. However, it would limit the scope of clause 5 by ensuring that future proceedings could still be brought and by suspending only existing proceedings. As such, we are willing to support that amendment if the hon. Member for North Down does not give way to our amendment No. 259.

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

Clause 5 is intended to provide that once an individual has applied for a certificate of eligibility, no proceedings, including court proceedings, can be commenced against that person for an offence to which the Bill applies until the application is determined. Under clause 5, “proceedings” refers to legal proceedings, including court proceedings, but does not include investigations or inquiries.

The purpose of the clause is to ensure that when a person has made an application that could enable him to enter the Northern Ireland (Offences) Bill scheme, proceedings are not begun or continued against him so that they might be replaced by proceedings before the special tribunal.

Lady Hermon (North Down, UUP)

I am sorry to interrupt the Minister’s flow, but he has just said something very interesting that contradicts what he said earlier. He said that the person must apply for a certificate of eligibility; he did not say that anyone else could do so on that person’s behalf. Will the Minister confirm that clause 5 can operate only when the person himself or herself applies for a certificate of eligibility—not their solicitor or anyone else in the court acting on their behalf? That is what he has just said and it will appear in Hansard.

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

We are revisiting previous discussions, during which I gave a full explanation of the position on the application for the certificate. I feel, Sir Nicholas, that you would chide me if I went back over previous debates.

Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

In support of the hon. Member for North Down, I should say that the application is mentioned in clause 5, so she is not going over past debates.

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

Under clause 5, and previous clauses, the application for the certificate of eligibility is made. Under previous clauses, we discussed whether the application is made by the person or on behalf of the person, but the application is ultimately made by a person for a certificate. Clause 5 is not in any way contradictory to previous clauses. It states:

“Where a person applies for a certificate of eligibility”,

the following will apply. That is the same situation as previously. During previous discussions, I tried to explain that what matters is the application; whether the individual or someone on their behalf makes it, the application under clause 5 for a certificate of eligibility is made in exactly the same way. I see no contradiction between the two, but I am happy to continue to discuss the issue, as I see that hon. Members wish to intervene.

Ben Wallace (Lancaster & Wyre, Conservative)

I am not pursuing that specific point, but I want to follow up the Minister’s point about his definition of proceedings. Does he not need to put that in the Bill? He has given us his assurance, but, having looked through the Bill, I cannot see “proceedings” defined anywhere else. Does “proceedings” already have an accepted definition?

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

My understanding is that it is an accepted definition in terms of what I am putting before the Committee today. In this context, “proceedings” refers to legal proceedings, including court proceedings.

Tobias Ellwood (Bournemouth East, Conservative)

The Minister was unable to tell me roughly how many people would come forward from across the world to participate in the certification process. If he cannot give me a number today, will he   perhaps write to me to tell me how many proceedings have already commenced, but have yet to be concluded?

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

I refer to the hon. Gentleman to points that I made earlier. Whatever our objections to the scheme, if both Houses of Parliament approve it, it is not likely to commence until early to mid-2007. If there are court cases that are likely to take two years to complete, I can answer the hon. Gentleman’s question. I am unable to do so at the moment, however, because the scheme will not commence for some time. He is asking me to offer conjecture on whether any cases being prosecuted through the courts are likely to continue until early to mid-2007 and on whether and how many proceedings will commence between now and when the scheme comes into effect. I will be able to answer the question only at that point and if I am honoured enough to be in this ministerial post in two years.

Lembit Öpik (Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs; Montgomeryshire, Liberal Democrat)

Nobody lasts that long in the Northern Ireland Office. My question concerns an unintended procedural consequence of how the clause is phrased. Clause 5(1) states:

“Where a person applies for a certificate of eligibility—”.

Not so long ago, the Committee was discussing clause 4, which states:

“An application for a certificate of eligibility must be made by or on behalf of the applicant”.

Someone who applies directly might be treated differently from someone on whose behalf an application is made. I know that is not the intent of the Bill, but we have been caught out by this kind of thing in the past. Can the Minister give an assurance that there is no unintended consequence here? I suspect he probably cannot.

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

I hope to assure the hon. Gentleman that there will be no unexpected consequences resulting from the points he has mentioned. I cannot be clearer than I have been both previously with regard to that matter and in discussions on this clause. I hope that that reassures him.

Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

This is a small point, but it could be important. Perhaps there is a drafting error. When the hon. Member for North Down drew the Committee’s attention to the phrase “a person applies”, the Minister explained that that is basically anybody. It cannot be, because clause 5(2) says that

“the court has the same powers to remand the person (in custody or on bail)”.

It is not possible to remand on bail or in custody someone who has just made an application, unless that is the person who has committed the crime.

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

Let us go back to basics on this.

Laurence Robertson (Shadow Minister, Northern Ireland; Tewkesbury, Conservative)

John Major tried.

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

He did try that. I discussed under earlier clauses how an application to the certification commissioner is made. This clause relates to the proceedings being suspended once the application has been made if other proceedings are continuing. To   clarify the point for the hon. Member for Lancaster and Wyre and others, the word “proceedings” is not statutory, but is widely understood as meaning proceedings as in the terms that I have explained to the Committee today. It is not a statutory term, but it is widely understood as relating to proceedings before the court.

Peter Robinson (Belfast East, DUP)

The Minister has not got the point. The point is that under a previous clause the person who might be the subject of the offence does not have to apply him or herself; someone else can apply for them, yet the reference in clause 5 is to the person who applies. That might not be the person who is the accused; it could be someone acting on their behalf.

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

I shall reflect on that, but it is my understanding that provision refers to the person who is eligible for the certificate. If it turns out that my understanding is incorrect, I shall revisit the matter to clarify the position. I hope that my commitment to at the very least reflect on that assuages the hon. Gentleman’s fears. However, I make no commitment to make changes, because I believe that the way that we have phrased the legislation is effective.

Lembit Öpik (Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs; Montgomeryshire, Liberal Democrat)

I wish to say something that will assist the Minister in his reflections; he does not have to respond to it now. It is obvious to me that there must be a difference in meaning between

“Where a person applies for a certificate of eligibility”

and

“An application for a certificate of eligibility must be made by or on behalf of the applicant”

because if they mean the same thing, why use different language?

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

I have said what I said. Hon. Members will understand that. In the cold light of day following this Committee sitting, I will reflect on the points that have been made to make sure that the Government’s intentions have been correctly expressed.

Amendments Nos. 255 and 256 are unnecessary. The decision on granting bail or remanding in custody is not and would not be taken with reference to the suspension of proceedings under the legislation. The hon. Member for North Down has again raised a valid point on whether suspension affects custody time limits. That is another matter that I wish to reflect on outside the Committee. [Interruption.] I am setting a precedent; that must be because of the late hour—late in our proceedings in this sitting—and the fact that the House has adjourned.

Peter Robinson (Belfast East, DUP)

Part-timer.

David Hanson (Minister of State, Northern Ireland Office; Delyn, Labour)

We are in danger of falling into levity, Sir Nicholas.

I will reflect the hon. Lady’s points on custody time limits and write to her. If my reflections lead me to see merit in what she has said, I will consider how to deal with that aspect of the Bill as it progresses.

I hope that I have given adequate assurances, and that I have answered the points raised by hon. Members to their satisfaction.

Lady Hermon (North Down, UUP)

I have listened very carefully to the Minister’s response and I think that when he does reflect on what he has said he will realise that he has dug himself into a deeper hole than he was already in, although he has managed to suggest to the Committee that after reflecting on the wording of the clause he may be prepared to tip over into accepting the fact that amendments need to be made to the Bill.

I was disappointed that the Minister did not clarify an extremely important issue that was raised this morning. He made it clear that his understanding of the legislation was that members of the security forces would not linger at Her Majesty’s pleasure, but would be granted bail, but clause 5(2) clearly suggests that the power remains with the Crown court to remand the person in custody or on bail. There is no way that the Minister can guarantee to fetter the discussion of the courts in relation to members of the security forces or anyone else. I am sorry that the Minister failed to clarify that point when given the opportunity to do so.

As it stands, it is clear that the words in clause 4,

“on behalf of the applicant”

and

“those acting on his behalf”,

have been omitted from clause 5. Whether that is accidental or deliberate, goodness only knows, but surely there should be some consistency in the Bill so that clause 5 does not immediately contradict clause 4, as it does at present. For that reason, I have to press the amendment to a Division.