I beg to move,
That the draft Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1985, which was laid before this House on 14th November, be approved.
The order we are considering tonight gives us an opportunity to amend schedule 4 to the Act on roughly the lines proposed by Sir George Baker, as this can be achieved by order under section 30 of the Act and does not require a Bill to introduce the amendment. The amendment order will in effect widen the discretion of my right hon. and learned Friend the Attorney-General to certify in respect of particular cases that offences should not be treated as "scheduled" offences. This extends the range of offences which could potentially be tried before a jury and is intended to make it possible for more cases to be tried by jury in Northern Ireland. However, the Government share Sir George Baker's view that unfortunately the time has not yet arrived at which jury trial could be restored for all cases involving terrorist-type offences in Northern Ireland.
Nevertheless, I hope that the House will agree that this amending order marks a small step in the right direction and provides, I hope, an answer to those who question the sincerity of the Government's commitment to dismantle the apparatus of emergency legislation as soon as it is safe to do so. This is something to which we have long been committed and the order is a direct result of Sir George Baker's review, which was completed in 1984.
I am very conscious of the fact that the order may not go as far as many right hon. and hon. Members and the Government would like, but it goes as far as we can in the present circumstances. I hope, therefore, that everyone, both in this House and elsewhere, will recognise in this measure, limited though it must be, our readiness to match our actions to our understanding of the importance of building and maintaining public confidence in the administration of justice in Northern Ireland.
In essence, the order meets virtually the whole of Sir George's recommendations 12, 13 and 15, which were that kidnapping, false imprisonment, offences under the Firearms (Northern Ireland) Order 1981 and all scheduled offences which are triable summarily, or carry a maximum sentence of less than five years, should be capable of being certified out. The exceptions are those offences under the Firearms (Northern Ireland) Order 1981 and those scheduled offences which carry a low maximum penalty but are, in practice, only likely to be committed by persons associated with terrorists. In my view, it would be pointless to give the Attorney-General discretion to certify out such offences when he will almost certainly never be able to exercise that discretion.
The amending order does not extend the Attorney-General's discretion to cover robbery or aggravated burglary, as Sir George Baker had recommended, but it is worth emphasising to the House that this does not mean that all cases involving robbery or aggravated burglary will, in practice, be tried in a Diplock court, as under note 4 to schedule 4 such offences only come within the definition of scheduled offences "where it is charged that an explosive, firearm, imitation firearm or weapon of offence was used to commit the offence". In circumstances where such weapons are used, it is usually very difficult to tell whether the alleged offence was committed for domestic or terrorist purposes. If such offences were capable of being certified out, the Attorney-General's decision in particular cases might be perceived as an indication that one accused person had terrorist links while another did not. That could prejudice the outcome of certain trials and make my right hon. and learned Friend's decisions in such matters a matter of public debate. Where the decision cannot be clear-cut, I believe that it is better not to confer discretion and to leave the mode of trial to be determined on objective criteria by reference to the nature of the offence.
For completeness, I should record that the Government do not intend to accept Sir George Baker's recommendations 16 and 17. He had recommended that the power to certify out offences in particular cases be given to the Director of Public Prosecutions for Northern Ireland. However, my right hon. and learned Friend the Attorney-General believes that it would be right to reserve this important power to himself. He can then continue to he directly answerable to the House on the way in which he exercises that power.
Sir George Baker also recommended—and this is a particular point raised by the right hon. and learned Gentleman the Member for Warley, West (Mr. Archer) in the last debate—that if a case had been certified out and was being heard by jury, and seemed likely to result in a wrongful verdict as a result of intimidation, harassment or whatever, the trial judge should have the power to discharge the jury and continue the trial alone or to direct that it be heard by another judge sitting alone. The Government disagree with this recommendation because any such decision would risk bringing the courts into disrepute. Critics would argue that judges exercised such powers only where they disagreed with the likely outcome of a jury trial, and that it was a device for setting the judge's views on matters of fact above those of a jury. We believe that, where a jury is believed to have been intimidated, the correct course would be to abandon the trial and to order a retrial. It would then be for the Attorney-General to use his discretion to judge whether the offence should be certified out or not.
I believe that this amending order represents a modest step in the right direction, and I commend it to the House.
As to the matter which he has just mentioned, the proposal of Sir George Baker for conditional jury trial, this is obviously not the occasion on which we should enter into a debate on it, but I hope that we can properly infer from what the Minister has said that the Government at least intend to introduce the amendment in the form in which he has just described it, so that we will then have an opportunity to discuss it.
The measure which the Government propose today is a very modest one, but it is a move in the right direction and, as far as it goes, we welcome it. I have already indicated the reason why we believe that it misses the essential point. For the record, I will try to say it again in one paragraph.
The whole justification which is suggested for non-jury trial is that it is designed to deal with offences connected with terrorism. We know that at present some 40 per cent. of those convicted under that procedure have no connection with terrorism. The schedule, as it is drawn, catches allegations of offences committed from motives which are in no way political. This order extends the discretion of the Attorney-General to certify out of the provisions some offences additional to those already in the schedule. We know that the large percentage of charges which are not connected with terrorism relate to robbery involving the use of real or immitation firearms. The order does not give the Attorney-General power to certify out the offences under the provisions that I listed in the previous debate. I do not find it easy to understand the Minister's reason for that. It seems to be that discretion is not to be given to Law Officers because their decision might be misunderstood. We may have an opportunity to discuss that at greater length on another occasion.
This is one further example of the frustration that arises from legislating for Northern Ireland by unamendable orders. This is essentially an order on which we would have liked to table amendments to include those provisions. Then we could have discussed them, and we would all have known where we were. We can only make that point and hope that in due course the Government will hear and respond to it.
We accept the order, modest as it is, as what we hope will be the beginning of more effective reforms.
I shall not speak at length, because the general views of Social Democrat and Liberal Members on the order were adumbrated during the previous debate by my hon. Friend the Member for Isle of Wight (Mr. Ross). However, the view of the right hon. and learned Member for Warley, West (Mr. Archer) that it is possible to conduct criminal trials in Northern Ireland by jury seems completely unsustainable.
Order. The hon. Gentleman will realise that we are discussing changes proposed to schedule 4 to the 1978 legislation. He must not speak to the last debate which was concluded.
The changes are being made to the 1978 Act, but they relate directly to jury trials and non-jury trials. It seemed that I could comment in passing on the general principle which the right hon. and learned Gentleman supported in his speech on this order. I do not seek to do more than that. I seek briefly and cogently to point out that the reason why we must stick to the Diplock trials and cannot move towards descheduling on a larger scale is that there is no guarantee of justice being done and jurors not being intimidated in the present position.
How do the Government view the difficulty of descheduling? It is not entirely clear from the nature of an offence whether it is associated with terrorism, for example a bank may be broken into to enrich the robber or to finance the IRA. It must be extremely difficult on the face of it to determine whether it is a terrorist offence which it would be appropriate to schedule, or whether it is not and appropriate for the Attorney-General to deschedule. It must be necessary for the Attorney-General to err on the side of assuming that offences capable of being terrorist offences are such. Our anxieties about the continuance of the Diplock courts is to some extent alleviated by information which the Solicitor-General gave in tonight's debate and in the summer, in which he pointed out that the rates of conviction in Northern Ireland were not substantially greater for scheduled offences than for unscheduled offences where trials are conducted by juries.
Another point which has been overlooked is that, in trials of scheduled offences, certain additional rights are enjoyed by the accused, including the requirement that the judge give his reasons for his findings of fact as well as his sentence. Secondly, there is an automatic right of appeal against the judge's findings to the Court of Appeal which does not follow in the case of unscheduled offences.
These balancing factors, in my view, are reasons why it is right to move with caution towards descheduling. I hope that that view is shared by the Government. I think that the alliance would accept the reasons which were advanced by the Minister in opening the debate for not proceeding further or faster, and for rejecting those recommendations of Sir George Baker which he indicated the Government did not accept.
I have a few observations only which I make because I understand that there is unlikly to be a Division at the end of the debate.
I am opposed to the so-called temporary seven-year old Northern Ireland (Emergency Provisions) Act 1978. Even with the amendments proposed, it will not comply with the European convention on human rights. Furthermore, it will still not compare with the level of justice which exists in this part of Britain. I am advised that the Government are proposing these amendments based on the fact that they were the sort of amendments recommended by the Baker review.
However, Baker also put forward some other important recommendations for the Government to put into effect to make the Act a little more just. Among those was that the power of internment should be totally removed from the statute book. It was also recommended that all arrests should be on the basis of reasonable suspicion and not just suspicion; the army's powers of arrest should be confined to terrorist-type offences, the initial onus for opposing bail should be on the prosecution, and bail should be automatic for anyone held on remand for more than 12 months without committal for trial. Furthermore, confessions obtained by violence or the threat of violence should be inadmissible in court. Baker recommended that a limit should be placed on the number of defendants in any one trial. I maintain that the amendments so suggested will not make the emergency powers legislation any more just than it is at present.
This is the expurgated version of the speech that I might have made but for the lateness of the hour and courtesy to the House.
I welcome to our debate my hon. Friend the Member for Hackney, North and Stoke Newington (Mr. Roberts). I listened with interest to his brief remarks.
We waited with some eagerness to hear the hon. Member for Caithness and Sutherland (Mr. Maclennan). I had hoped to hear a definitive description of the alliance position which would have been of some assistance to the people of Northern Ireland. I regret that the message from the hon. Gentleman is that the people of Northern Ireland have nothing to hope from the SDP/Liberal alliance other than half-baked, half-thought out, ill-advised and ill-conceived ideas. I am sure that that message will be clear.
The order extends the list of so-called scheduled offences in schedule 4 of the 1978 Act. They are not to be treated as scheduled offences unless the Attorney-General so certifies. As my right hon. and learned Friend the Member for Warley, West (Mr. Archer) said in his short but cogent speech, the order does not go far enough, but earlier the Secretary of State said that he would take into account the wider and more positive recommendations in the Baker report and that legislation would be introduced in this Parliament.
The Opposition do not intend to divide the House on this order.
With the leave of the House, may I say that we have covered briefly some interesting matters.
I must tell the hon. Member for Hackney, North and Stoke Newington (Mr. Roberts) that the order has to be seen against the background of the Government's declared intention further to implement the Baker recommendations by introducing legislation in this Parliament, as the hon. Member for Middlesbrough (Mr. Bell) recognised. We were conscious that this limited progress could be made through an amending order without primary legislation. We thought it right to demonstrate the Government's commitment and to respond to pressures by taking this modest step. The Government are determined to legislate further during this Parliament.
The Northern Ireland (Emergency Provisions) Act is fully consistent with the European convention on human rights and the United Nations international covenant on civil and political rights. It is a distortion to imply that it is not.
The hon. Member for Caithness and Sutherland (Mr. Maclennan) mentioned the distinction between different types of robbery. We have come to the conclusion that there is a difficulty in deciding, when firearms are used to rob a bank or post office, what the motive is—whether it is for paramilitary purposes or for private gain. To give the Attorney-General the power to decide whether it was a terrorist or domestic offence before the case comes to trial would prejudice the trial and we decided not to go down that road. But I have noted the hon. Gentleman's comments.
I am glad that the right hon. and learned Member for Warley, West (Mr. Archer) agrees that this order is a modest step in the right direction. I commend it to the House.