Orders of the Day — Northern Ireland (Emergency Provisions) Bill

Part of the debate – in the House of Commons at 5:26 pm on 19 November 1990.

Alert me about debates like this

Photo of Rt Hon David Trimble Rt Hon David Trimble , Upper Bann 5:26, 19 November 1990

I agree entirely with what the hon. Member for Antrim, North (Rev. Ian Paisley) said. Articles 2 and 3 of the Irish constitution provide Irish republican terrorism with a moral mandate, or—as a friend of mine put it the other day—they are a "hunting licence" issued by the Irish Free State. We know what the targets of the hunting licence are.

I have some difficulty with the use of the word "emergency" in the title of the Bill. It has given rise to some misconceptions—especially those of the hon. Member for Kingston upon Hull, North, when he referred to the operation of the rule of law. There can be different views of what constitutes the rule of law. The version that the hon. Gentleman gave us owed not a little to Dicey—it sounded like a garbled version of Dicey, which is fair enough. The mistake that some people make is to equate the rule of law with the current state of English common law, whatever it might be. Consequently, they think that any departure from English common law is a subversion of the rule of law. That is a rather exaggerated view of the merits of common law, which has merits but one should not elevate it to such a position that any departure from it is to be denounced.

We have various standards that spell out in detail the rule of law. In western Europe, the appropriate standard can be found in the European convention on human rights, which sets out a series of standards for the operation of the law as regards human rights, which are generally accepted and have been since their inception in the late 1940s and early 1950s.

The Bill is consistent with the European convention in all respects. It is not necessary for the Government to enter a derogation with regard to the Bill. No derogation operates as regards its predecessors. The Bill can be operated without derogating from the European convention in any way. Only one aspect of the Bill might cause difficulty—if powers of detention were reintroduced and implemented, that would necessitate derogation from the European convention. Apart from that, the legislation is consistent with the European convention.

As that is the case, I wonder why they are referred to as emergency provisions. There is provision within the European convention for derogation in cases of emergency. Under the convention, emergency provisions are those that depart from the convention, but this legislation does not—it is consistent with it. Therefore, it is misleading to think of it as an emergency provision.

It is misleading in another sense. An emergency is, or ought to be, something which is limited in time—of short duration. It should apply when something exceptional has come up, and one has to take exceptional measures to cope with it, which it is hoped will be effective within a short time. One is doing something out of the ordinary, but the Bill is ordinary in that it is consistent with the convention and so the provisions should not be labelled "emergency".

They might have been emergency provisions in 1973, when they introduced the code for detention which was in operation then, and so it was necessary to have derogations from the European convention. We are not derogating from the European convention and the provisions are not emergency in the sense of being short lived. Such legislation has been on the statute book, in one form or another, since 1973 and is likely to be on the statute book for the foreseeable future. I wonder why we insist on thinking of the legislation as temporary or exceptional when it is neither.

The term "consolidation" has been used, but this is not really a consolidation Bill. However, we need consolidating measures to deal with all aspects of anti-terrorist legislation. That is what we should be thinking of—not the Emergency Provisions Acts or the Prevention of Terrorism Acts but what anti-terrorist legislation is required.

The world has a problem with terrorism; it is not unique to either part of Ireland but also comes from other sources. The dangers may increase after 1992, as border controls wind down and other changes take place. There is probably a need for us to consider seriously what form of anti-terrorist legislation the United Kingdom—not merely Northern Ireland—needs. Lord Colville said very cogently in his report on the Prevention of Terrorism act 1986: It seems to me that Her Majesty's Government might like to think again. There is now a very real threat of international terrorism impinging on the United Kingdom, as on any other country … It does appear strange that the main measure which is designed to give powers against international terrorism should be annually renewable … and completely entangled with the Northern Ireland problem, from which historically the legislation grew. It might be better now to design the range of control needs both at ports and internally to deal with international terrorism from the security viewpoint, with due regard to what is not within the powers of the immigration or customs services. This could with advantage include some points governed at present in detail by the Order … There is neither rhyme or reason for some of the distinctions which appear in the Order. The Order does not deal comprehensively with international terrorism. If that were done it would be possible to see what powers, whether more or less, but possibly as a renewable supplement, would be needed for the Northern Ireland situation. Lord Colville said that in 1987, and we agree that it is desirable to have anti-terrorist legislation in one Act which deals with the kingdom as a whole. It is silly to have at least two main Acts dealing with different aspects of terrorism, because the two interpenetrate. For example, arrest powers are provided for in the Emergency Provisions and the Prevention of Terrorism Acts. Most arrests in Northern Ireland were carried out under the Emergency Provisions Act but in recent years that practice has changed. Now the vast majority are carried out under the Prevention of Terrorism Act.

The operations of the security forces in Northern Ireland rely quite heavily on the Prevention of Terrorism Act, which is a United Kingdom Act, rather than the Emergency Provisions Act, which is supposed to deal with terrorism in Northern Ireland. It would be better to put the two Acts together, along with whatever other pieces of legislation are required.

I think that the hon. Member for Kingston upon Hull, North might agree with that, because the amendment that he moved refers to a series of measures—inquest public immunity certificates, the abolition of the right of silence —which are not included in the Emergency Provisions Act but deal with related matters. It would be better for those to be put into one Act.

A practical advantage is that it would be so much easier for the people who operate the legislation and those who are affected by it to know what it provides if they could refer to a single Act, and not have to chase through several Acts to find out the position. It would simplify life for policemen and soldiers, who have to operate the legislation, and for citizens who are affected by it.

Access to and knowledge of the law is important, and the present arrangement of legislation does not facilitate that. I urge the Government, rather than to consider almost routine re-enactment of provisions with only minor amendments, to consider comprehensive legislation, on a United Kingdom basis, giving normal provisions to deal with terrorism. The problem exists and will continue to exist in the foreseeable future. There will be terrorist threats of one sort or another. We need to consider what sort of legislation should be passed to deal with them. We may want to make some special additional provisions to deal with particular situations, but we believe that there is an argument for permanent anti-terrorist legislation.

The main provision in the Act is for a different form of trial through what are called the Diplock courts, which are essentially non-jury courts, presided over by a single judge. Clearly, the concept of a single judge gives some hon. Members problems. I confess that I had doubts about whether a single judge was the most effective system

However, after several years' experience, I am satisfied that a single-judge court is the only effective way of dealing with such cases. I know that it is normal to defend the single-judge Diplock courts in terms of the difficulty of providing multi-judge courts in Northern Ireland. The small size of the legal profession there and the age distribution within the Bar mean that it would be extremely difficult to recruit the additional judges who would be needed if we were to have multi-judge courts. There is an argument for saying that, with the unanimity rule, two judges would be sufficient. However, it would still be extremely difficult to staff such courts. Hon. Members will know that there is considerable difficulty at the moment in recruiting judges for the county courts. I believe that there is still one vacancy. There is great difficulty in getting anyone to accept such an appointment. One hears rumours about trawls being made through the Bar library in considerable detail, ranging down to people who are quite junior, in an attempt to persuade people to accept an appointment in the county or Crown courts. The latter provide some of the judicial manpower for the Diplock courts.

The position in the High Court is not altogether happy either, although I do not intend to discuss that in detail now. Nevertheless, there is growing unease in Northern Ireland about the way in which High Court appointments are made. This summer I heard a person who has been involved in politics in the Irish Republic say, "Thanks to the Anglo-Irish Agreement, we now have an input into the selection of judges." I was appalled. If politicians in the Irish Republic continue to boast that they are responsible for the appointment of certain judges, that will have more disastrous consequences for public confidence in the judiciary than any of the provisions in the Bill. However, that is a different matter for another consideration.

Not only is it difficult to recruit judges for multi-judge courts, but such courts are likely to be unsatisfactory. We have the example of the special criminal court in the Irish Republic which consists of three judges—three different lawyers. Those who practise before the special criminal court in the Irish Republic say that the multiplicity of judges provides no defence and no safeguard for the accused. In practice, the senior judge makes the decision. Even if, on occasions, counsel manage to evoke some sympathy in one of the judges, that judge is quickly brought into line by the others. I heard a senior lawyer, who is also involved in politics in the Irish Republic, say unofficially not so long ago that he regarded the special criminal court as a sentencing court. Therefore, having three judges is not by itself a safeguard. A single judge with a reasoned judgment provides a better safeguard, because that single judge knows that he must give his reasons in detail and that the sole responsibility for making a decision rests on him. That leads to a tendency for caution.

I am convinced that in the vast majority of cases, thanks largely to the quality of the judiciary, the single-judge Diplock courts have delivered justice. I sometimes wonder whether those who are so concerned about the danger of judgment by a single man—and who consequently criticise the Diplock courts—occasionally think about the other single-judge courts which we have in Northern Ireland, and which we have had since 1935. I refer to the courts of summary jurisdiction which, as hon. Members know, are presided over in Northern Ireland by a single judge, whom we call a resident magistrate and who is equivalent to a stipendiary magistrate in England and Wales. We do not have any benches of justices. We do not have any justices of the peace to exercise judicial functions. All the magistrates courts' decisions are made by a single judge. That is what happens in the vast majority of cases that go through the courts of summary jurisdiction.

I should add that I do not have the same confidence in the quality of the magistracy as I have in the quality of the High Court judges, but perhaps I should go into that in more detail at another time and in another place. However, that point should be of greater concern than the Diplock courts to those who are worried about the effect of having a single judge.

I cite as evidence the way in which the Diplock courts operate. The effective conviction rate in the Diplock courts varies between half and three quarters. It is a little higher than the conviction rate in jury trials, but that is only to be expected because an accused person who is to appear before a single judge is less likely to plead not guilty in a hopeless case. There will always be those who will plead not guilty in hopeless cases before a jury in the hope that their clever lawyer will get them off. However, people do not pursue hopeless cases to the same extent before a single judge. Consequently, it is natural that there should be a slightly higher conviction rate in single-judge courts compared with jury courts.

Diplock courts have another advantage. English lawyers wishing to make comparisons, who can be bothered to come over to Belfast to look at the operation of the courts, find that the business is conducted with remarkable efficiency. Trials in Northern Ireland rarely take half the time that is taken for an equivalent trial in England. That is because there are certain lines of argument that one would not bother to pursue before a single judge because he will not bother listening to it. Things are different with a jury. One cannot try it on before a judge as one would before a jury. Judges are quick to pick up the points and the argument must be put more precisely and more concisely. That is why trials proceed much more quickly, with consequent and not inconsiderable savings to the public purse, though that is by the way.

I am conscious that if the suggestion that I made earlier about permanent legislation to deal with terrorism on a United Kingdom basis were adopted, that would allow for the use of Diplock-style courts in Great Britain. Of course, it depends on the mechanism that is used to introduce the Diplock courts and I have one in mind. The mechanism could be borrowed from the Irish Republic's Criminal Law and Procedure Act 1887, which provided for special courts and for non-jury courts. That Act was on the statute book in Ireland from 1887 until 1922. There is nothing unusual about such legislation. We have always had it in Ireland in one shape or form. The former Lord Justice Turlough O'Donnell used to refer to that Act as "the old Act". He had been in practice long enough to have heard stories about the operation of "the old Act". Under that Act, it was possible for an order to be made that all cases in a particular area, usually defined by county, were to be held before the special court, or for cases to be moved from one part of the jurisdiction to another. Borrowing from that procedure, it would be possible for the Lord Chancellor to make an order, subject to parliamentary approval, for the operation of Diplock-style courts in any jurisdiction within the kingdom or possibly within any part of the jurisdiction, or with regard to specific cases.

The use of such a mechanism would enable Diplock-style courts to be used in England in terrorist cases. I believe that there is a serious argument for so doing. Terrorist cases are not like ordinary crimes. A terrorist action strikes at the whole community and gives rise to an emotional reaction that can affect the operation of justice. There are parallels here with cases that have already been mentioned, such as the Guildford and Birmingham cases, which gave rise to strong emotional reactions. In that context, juries will not operate terribly effectively. It has been suggested that, in terrorist cases in England, juries will inevitably convict no matter who appears before them. That is because the juror himself or herself feels a potential object of the terrorist act. Although he or she will not be personally involved, because of the way in which terrorism strikes at the community, an individual serving on a jury will feel personally involved and, as a consequence, may not render a true verdict.

That is part of the reason why jury trials were discontinued in Northern Ireland. It was not just because of intimidation of the witnesses or other parties involved. The real fear was of perverse verdicts, perverse convictions and, in some cases, perverse acquittals. It would be a brave practitioner in England and Wales who, looking at a jury dealing with a terrorist case, could not say that there were no perverse convictions.