Sammy Wilson (East Antrim, DUP)

I beg to move amendment No. 17, in clause 6, page 4, line 44, leave out ‘may’ and insert ‘shall’.

Nicholas Winterton (Macclesfield, Conservative)

With this it will be convenient to discuss amendment No. 32, in clause 11, page 7, line 14, leave out ‘may’ and insert ‘shall’.

Sammy Wilson (East Antrim, DUP)

The amendment is self-explanatory. The clause provides that if the conditions in which the certificate of eligibility was originally granted are not met, the person’s certificate should be cancelled; however, it also allows for discretion to be exercised by the Secretary of State. We are concerned about that. Given the experience in Northern Ireland of how the Secretary of State has used his discretion in the past, the clause will shake confidence even further.

Let me give an example. One of the early release prisoners was caught many times stirring interfaith violence around Ardoyne. The police presented an unassailable case, according to the Chief Constable, that the terms and conditions of the early release had been broken. The Secretary of State accepted that and put the person—Sean Kelly—in jail, but three weeks later, as a result of political pressure to get a statement from the IRA and following widespread campaigning by Sinn Fein, including slogans written of the walls of Belfast and flags hung out from flats, the Secretary of State suddenly decided that the evidence given by the Chief Constable no longer stood. The Chief Constable continues to make it clear that the terms of the licence were broken, but the Secretary of State, for political reasons, exercised his discretion and decided, despite all the evidence and conditions laid down under the terms of early release, to override the Chief Constable and the evidence offered by the police.

The same potential for discretion exists in the clause, which is disquieting for those who have already had to swallow a massively bitter pill. Furthermore, it sends out a signal to those who might apply for a certificate that it does not matter how they behave, because their political backers will find an opportunity to put pressure on the Secretary of State to ensure that a certificate is not withdrawn, no matter how they behave. There will always be good political reasons that can be advanced to force the Secretary of State’s hand.

Given the Secretary of State’s record and what we know about those who have never repented of their terrorist ways and have never shown any remorse for their terrorism, and who will sneak back to it at every opportunity that they can get, we cannot allow that element of discretion to be left in the Bill. Our amendment removes that element of discretion and states that the Secretary of State must cancel the certificate if the conditions for the certificate have been broken,. That is important. There is no need for such discretion and removing it will ensure better behaviour on the part of those who obtain a certificate. The amendment should be accepted.

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

I support the amendment. I would like to take the Committee back to an earlier discussion that we had about the certification commissioner. We discussed an amendment saying that he “may” issue a certificate, but the Minister said that the term must be “must”. However, we have now reached clause , where the word used is “may”, not “must”, which is rather confusing. I suppose that that is in keeping with the enormous inconsistencies in the Bill, but it is not acceptable.

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

There is an absolute duty on the certification commissioner—a “must” duty—to issue a certificate if the conditions are met in the first place. Why should there not be an absolute duty—a “must” duty—to cancel a certificate if it is discovered that the conditions are not being met? As the hon. Member for East Antrim pointed out, the provision is totally biased in favour of the applicant. We cannot pretend that that sort of discretion in defence of the applicant is provided with the interests of the victims in mind. There has obviously been an oversight—the matter was not thought of when the Bill was being framed. Since this clearly is an error, I hope that the Minister can, in as matter of fact a way as possible, assure us that it will be amended.

Jeremy Hunt (South West Surrey, Conservative)

I strongly support the amendment. A function of law is to mete out justice to wrongdoers, but an equally important function is to deter potential wrongdoers from breaking the law. If a law is to have that deterrent function, there needs to be absolute clarity in the mind of someone who is potentially going to commit an offence as to what will or will not be permissible. If legislation includes a sentence such as,

“The Secretary of State may cancel a person’s certificate”

the effect is to blur that clarity and undermine the deterrent effect of the possible removal of the certificate.

I put it to the Minister that the leeway that the provision gives to the Secretary of State may be wholly unwelcome, because it gives the opportunity for the Secretary of State to be lobbied by organisations by which he or she may not wish to be lobbied. Clarity in the legislation will make it seem fairer—if such a Bill could ever be seen as fair. We need clarity to prevent potential future wrongdoing. We should say clearly that certificates will definitely be cancelled if someone breaks the conditions under which they are issued.

Mark Durkan (Foyle, Social Democratic and Labour Party)

I join other hon. Members in expressing support for the amendment. As with previous amendments, I believe that we should limit the sweeping discretion that is available to the Secretary of State under the Bill. I do not believe that, in the circumstances, the Secretary of State—not just the present Secretary of State—can be trusted with such discretion on such sensitive matters. It seems to me that, given recent events, giving the Secretary of State such powers and responsibility would be something akin to asking Attila the Hun to mind your horse.

The whole history of recent years is one of a blind-eye approach being taken. When Belfast’s infamous dogs on the streets knew who was up to what and who was doing what, the Secretary of State deliberately turned a blind eye, saying that everything was for the wider good of the peace process. However, when honourable, decent democrats ask questions and raise concerns, we find ourselves being lectured to as though we are out to subvert the peace in some other way, or as though we are out to undermine political stability just by wanting democracy to be matched by decency in the context of the pursuit of crime.

I therefore join with other hon. Members in supporting the amendment. If, as the hon. Member for Montgomeryshire said, the legislation is unambiguous about what the certification commissioner must do, there must be equally clear imperatives and absolutes as far as the Secretary of State is concerned. Otherwise, none of the assurances that we have receive here or in the House will mean a thing.

On an earlier clause, the Minister tried to reassure the hon. Gentleman that there would be no unexpected consequences. I believe the Minister. The Bill is designed to ensure that there are no unexpected consequences for anyone in the IRA, Sinn Fein or the loyalist paramilitary groups, anyone acting on behalf of the state, or anyone in the state forces who acts outside their authority. For anyone who has anything to answer for, the Bill ensures that there will be no unexpected consequences. That is why there are absolute covers, why there are absolute limits to the evidence that can be pursued and why there are so many evasions and escape clauses; but it is also why the residual discretion is left to the Secretary of State. Even if all the evidence available to the public suggests that people are up to other activities, and even if other   information emerges, the Secretary of State will still be able to ensure that neither that evidence nor considerations of the public interest or the public good can conspire to get in the way of what the people who planned the legislation want.

The Bill is the product of a pact between Sinn Fein and the Northern Ireland Office—we have moved on from Sinn Fein-IRA to Sinn Fein-NIO. They are inextricably linked in the Bill, in its destiny and in its implementation. Any future Secretary of State with that discretion will be told, “No, you are bound by the terms of a secret deal that was done,” just as the present Secretary of State has been told that he is bound by what was decided in 2001 in Weston Park and in 2003 in Hillsborough. The whole thing goes back to all those seedy side deals done between Sinn Fein and the people negotiating on behalf of the Government. That is why we cannot trust the Secretary of State—any Secretary of State—with that discretion. The discretion will be abused in ways that militate against and offend the legitimate democratic public interest.

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

The Secretary of State’s discretion has been put in place to safeguard against manipulation of the scheme. I recognise what was said under earlier clauses about the certification commissioner, but he has a different function from that of the Secretary of State with regard to this matter. The commissioner will oversee the point of entry to the scheme. The Secretary of State has a stronger function and a wider responsibility to review the scheme in its broadest sense.

Hon. Members can take this at face value or not, but I do not expect the Secretary of State to have use that discretion on many occasions. It is not there to let him play fast and loose with the system or to overturn decisions taken as part of the consideration of this matter. It is there because he may be required to use it to ensure that unfairnesses and other issues are not raised and not perpetuated by the operation of the scheme.

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

I am utterly confused, as other hon. Members must be, by what the Minister tells us. If that is the case under clause 6 with regard to cancelling a person’s certificate, why it is not the case under clause 3 in granting a certificate? Why does the self-same argument not apply?

I am sorry to have had to intervene on the Minister again, but I was giving the Government the benefit of the doubt, assuming he would say that this is a drafting error and that the provisions obviously need to be the same. First, he needs to confirm that it is not a drafting error. Secondly, he needs to explain why it is more important to have discretion in revoking certificates when that is required than in granting them. I am sure that other hon. Members feel the same.

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

I shall explore the points that the hon. Gentleman has made, because the issue is important. The commissioner will oversee entry to the scheme, and the scheme’s entry criteria are the eligibility criteria in clause 3. The Secretary of State has a wider responsibility. He may seek to use his discretion not to   play fast and loose with the system, but to ensure, on occasion, that unfairnesses that might arise further down the line—if I get an opportunity later, I shall explain what they might be—are considered. I do not expect the Secretary of State to use the discretion on many occasions, but it is there because anomalies might arise. I shall explain those if given the chance, although hon. Members want to intervene.

Sammy Wilson (East Antrim, DUP)

The Minister might be about to answer my question. Can he give us examples of instances in which the scheme might be manipulated in such a way that the Secretary of State—to use the Minister’s own terms—would wish to use his discretion?

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

Let me give a particular example. There is an eligibility condition for an individual who in the past supported an organisation that subsequently became specified. That individual would, therefore, now be liable to have his certificate cancelled.

It may be at the Secretary of State’s discretion to consider the situation of that individual and say that, having had the certificate granted and that person having progressed, he is now leading a life that is constructive and that involves participation in the community, and that the cancellation of the certificate is not demanded even though the organisation has subsequently become specified. That could happen.

I accept that the discretion is there for hon. Members to consider, but it has not been inserted to allow the Secretary of State to play fast and loose with the system. It might apply in special circumstances involving an overriding need relating to the potential security of an individual or the future of Northern Ireland. The discretion has to be there for the Secretary of State, but I would not expect it to be used on many occasions.

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

Does the Minister not understand why this is causing so much concern? When somebody applies for a certificate, it has to be given, but we are told that a certificate may be withdrawn. Everything is pointing one way—in the direction of the terrorist. If he is so concerned about an organisation becoming specified after somebody has supported it, why is that in the Bill as a condition?

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

Again, I simply say that the Secretary of State may have that overriding responsibility to consider individuals. I understand that some recent events have given hon. Members cause for concern, so, as it may be difficult to accept my argument, may I pray in aid something said by the hon. Member for Foyle? In Committee last Thursday afternoon, when considering an earlier amendment, he said:

“There are people involved with paramilitary groups whom everybody accepts have cut their links absolutely, and have indeed performed a valuable public service having done so. Such people would be precluded, and it would be wrong if they were targeted.—[Official Report, Standing Committee B, 8 December 2005; c. 160.]

For that very reason, the Secretary of State might have discretion in these matters.

Mark Durkan (Foyle, Social Democratic and Labour Party)

I was speaking about a very specific amendment that would have meant that people who had ever supported such organisations would not be able to benefit from the scheme. The Minister is absolutely stretching things in taking a very particular point that stands up of itself—unlike most of his arguments on various amendments—and quoting it with regard to this situation. It simply does not apply.

If the Minister agrees with what I said last week, he should support what I am saying now. This should not be a matter for the discretion of the Secretary of State.

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

Would the hon. Gentleman want those who have renounced violence, who would have been through the scheme and who were playing effective roles in the community—and, outside their community, were perhaps supporting the ongoing peace process—to be recalled on the basis of activities of an organisation that they perhaps supported in 1975? That is the key question. That is why the Secretary of State will have the discretion to view the wider picture. He may or may not exercise that discretion, but I do not want that discretion removed.

Jeremy Hunt (South West Surrey, Conservative)

I do not think that the Minister’s example is correct. A condition of eligibility for a certificate is that the applicant “does not”—present tense—“support a specified organisation”. Therefore, providing that the person who possesses a certificate no longer supports a specified organisation, an organisation that he had previously supported becoming specified will not render the certificate ineligible.

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

I refer again to my hon. Friend the Member for Foyle. I want to emphasise that there is an additional condition for holding a certificate, rather than for granting a certificate, which is different because of the differences between the legislation on the early releases scheme and this legislation. My hon. Friend talked about that condition last Thursday.

The Secretary of State will have discretion not necessarily to exercise it at all times, but because there may be circumstances in which he, for the wider political benefit of society at large, needs to ensure that individuals who might renounce and who have renounced violence are not penalised on that issue.

Peter Robinson (Belfast East, DUP)

I note that the Minister attempts to rest his case on the second of two conditions, without mentioning the first. Can he please tell the Committee in what circumstances the Secretary of State would not revoke the certificate of someone who had not met the conditions set out in clause 3(3)? Are there any circumstances in which the Secretary of State would allow individuals to hold on to a certificate if they had either wrongly been given that certificate or provided inaccurate information? Surely the Secretary of State must revoke the certificate in those circumstances, whatever might be said about the second set of circumstances.

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

Again, I simply wish to retain in clause 6 discretion for the Secretary of State on these matters. I emphasise that the Secretary of State will not use that discretion fast and loose. He will have the power to use that discretion in the event of needing to consider using it in circumstances that might arise in future.

Peter Robinson (Belfast East, DUP)

I asked the Minister, aided by his officials and all the hon. Members who support him on the Government side, to give me one set of circumstances in which the Secretary of State would be of the view that someone who had not met the conditions in clause 3(3) should be allowed to hold on to a certificate. Just give me one example—anybody.

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

I refer the hon. Gentleman to later clauses. Clause 10 deals with conditions of licence, and subsection (2)(c) states that one condition is

“that no organisation that he has at any time supported becomes a specified organisation after the licence is given.”

That is the condition that the hon. Member for Foyle spoke about on Thursday, and it is the same condition, in general terms, that I am relating to the Committee today. There may be circumstances, on both aspects, in which the Secretary of State retains discretion. I do not anticipate the Secretary of State using that discretion regularly, but we want to retain it because circumstances may arise in which the Secretary of State has a responsibility to look to the wider picture in Northern Ireland, not simply the conditions laid down. The issues that the certification commissioner has to accept in terms of entry to the scheme are very tight, but the Secretary of state must retain discretion on this matter.

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

The Minister has failed to give the single example that the hon. Member for Belfast, East requested. However, in the example that he did give, he suggested that there may be occasions on which the Secretary of State will decide that not fulfilling the second element—regarding the condition on connection with a specified or newly specified organisation—may be relaxed. What is the point of including it at all?

I remind the Minister that he has himself said that the record of this debate might be used to guide a court. He has now given the court some guidance, which is that, sometimes, the second condition may not need to be met. People will say that the hon. Member for Delyn (Mr. Hanson) said it was all right to let them off, and then a judge will say, “Oh, go on then, off you go. It’s fair enough.” That is the difficulty.

The Minister cannot have it both ways, and he has just committed a fatal error when it comes to clause 6(1)(b) because he has just, more or less, negated its meaning.

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

I do not accept that I have because, as I said earlier, the provisions on the certification commissioner and eligibility for the scheme are extremely tight. Under clause 6, the Secretary of State has discretion on this matter, but that discretion will   not be used in a fast and loose way. The Secretary of State has discretion, because there may be circumstances in which he needs to exercise it.

I refer the hon. Gentleman to subsection 2(a) and (b), which states that the Secretary of State must give notice of the cancellation and of the reasons for it, and that he must inform the Director of Public Prosecutions. The reasons for that discretion being exercised will be a matter of public record and will be put to the Director of Public Prosecutions by the Secretary of State.

Jeremy Hunt (South West Surrey, Conservative)

Will the Minister confirm one set of circumstances in which it might be possible that the Secretary of State uses his discretion not to revoke a certificate—someone who was previously a terrorist and who has a certificate then becoming involved in

“the commission, preparation or instigation of an act of terrorism”?

However, Sinn Fein might say that, if that person’s certificate is revoked, it will abandon its so-called permanent ceasefire. Is that an example of a circumstance in which the Secretary of State might decide that it is in the wider public interest not to revoke someone’s certificate?

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

The hon. Gentleman will not expect me to speculate and to give views on what the circumstances might be. I am simply saying to him that there may well be examples, in both areas, in which the Secretary of State wishes to exercise his discretion. I do not expect that to be the norm, but I shall not rule out the possibility that the Secretary of State will need to do that for reasons of a wider picture, over and above the certification eligibility.

Certification eligibility has been included in a very clear way that allows for clear entry to the scheme and clear conditions for the scheme to operate, but there may well be circumstances in which the Secretary of State needs to exercise that discretion. I do not anticipate that happening often, but those circumstances, potentially, exist.

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

I do not know whether the Minister intended to say it, but I want clarification and confirmation of whether he said that the reasons will be made public. Is that correct?

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

Clause 6(2)(a) says that, when the Secretary of State cancels a person’s certificate of eligibility, he must

“give him notice of the cancellation and of the reasons for it”

and

“inform the Director of Public Prosecutions for Northern Ireland.”

There will be a record of that.

Mark Durkan (Foyle, Social Democratic and Labour Party)

Will the Minister read on? The rest of clause 6 makes it clear that the Secretary of State, in cancelling a certificate, can choose to ensure that no reasons are given. Remember, clause 6 talks only about reasons possibly being offered when a certificate is cancelled.

The Minister told us that reasons would be given for the Secretary of State exercising discretion not to cancel a certificate. That is when the Minister said that reasons would be on the public record and that all sorts of people would be notified.

After all, this clause refers to organisations being specified. As we know from the Secretary of State’s exercise of his power of specification, that is entirely at the Secretary of State’s discretion and he was able, through the summer, literally to let the Ulster Volunteer Force away with murder without stating why he would not specify it. It was not as though the UVF denied that it was carrying out the murders; it was boasting that it had done them, and was indeed threatening more. However, for some unstated and unexplained reason, for the wider good of the peace process, there was no move to specify. The Secretary of State never gave reasons, either in public or in private. That would apply with this power as well.

Nicholas Winterton (Macclesfield, Conservative)

Before the Minister replies, may I ask members of the Committee to stick to the two amendments that we are discussing? We are ranging a little far and wide. I confess to anticipating the suspension of the sitting in about five minutes, and I hope that we might conclude the debate by then.

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

Thank you, Sir Nicholas. I shall give way.

Ben Wallace (Lancaster & Wyre, Conservative)

I have listened to both sides of the argument about one example. Apart from a sordid Sinn Fein deal, I can give an example, although I have not done the research on it. The Secretary of State could take advantage of his power to allow an informer to go back into an organisation or to come forward and be relieved in respect of any crimes he may have committed, but still be part of a network, or indeed a community. That is the only example I can think of in which the Secretary of State would use that power.

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

There are a number of potential reasons why the Secretary of State could use his discretion. I will not speculate today on what those reasons might be. I simply say to the Committee that discretion is there—not as the norm, but to enable the Secretary of State to view a particular situation in a special way for, potentially, many of the reasons that the hon. Member for Foyle mentioned earlier.

There are often reasons why the Secretary of State takes a decision and uses his discretion, which are the promotion of the political peace process in the longer term. The Committee can accept that or disagree about it, but, potentially, there are matters in which   the Secretary of State, either acting on an individual basis or for the greater good, will use that discretion, but it will not be the norm. I will leave it to the Committee to reflect on the matter, given your assumption that we will finish at 7.30, Sir Nicholas.

Sammy Wilson (East Antrim, DUP)

I shall be brief, Sir Nicholas, so that we have time to vote on the proposal.

The Minister made my case for me in his closing remarks. He moved away from trying to give an example of not wanting some poor individual, who had changed his mind and wanted to change his lifestyle and everything else, to be wrongly treated. However, we saw that that example did not comply with or fit the terms of the Bill. Now we have got down to the crux of the matter: in the Minister’s own words, it may be necessary for the Secretary of State to exercise discretion “for wider political considerations”.

We in Northern Ireland have seen Secretary of State after Secretary of State—not just the current one—bite his tongue, use discretion and give the benefit of the doubt to terrorists for wider political considerations. That is why we do not want to give him that discretion again.