New Clause 1 — Mode of Trial on Indictment

Orders of the Day — Terrorism (Northern Ireland) Bill – in the House of Commons at 1:34 pm on 30th November 2005.

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'(1) Section 75 of the 2000 Act (mode of trial on indictment) shall be amended as follows.

(2) After subsection (1) insert—

"(1A) The court shall consist of three judges of the Crown Court.".'.—[Lembit Öpik.]

Brought up, and read the First time.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs 1:45 pm, 30th November 2005

I beg to move, That the clause be read a Second time.

I congratulate the Government on their sensible handling of the timetable for this legislation. This is one occasion on which there has been no issue of process, but there has been an issue of content. For that reason, I am sure that we can dispense with the business fairly quickly today, even though three important issues are up for debate. The first is the issue of the mode of trial.

Right hon. and hon. Members will recall that in Committee we had a debate about the specific question of how many judges should sit on the committees known as the Diplock courts. At the moment, as we all know, it takes one judge to operate the Diplock courts. The new clause seeks to alter the way in those courts operate by increasing the number of judges from one to three.

We had the option to table an amendment that would simply have repealed the entire Diplock court system, but we were aware that we would not have gained a consensus on that and also that there may still be a case for operating the Diplock court system because of the evils of intimidation and coercion that are well known in Northern Irish politics. However, Lord Carlile, who has informed much of our debate—the Government have listened to him considerably—suggested in his last report on the operation of part 7 of the Terrorism Act 2000 that three judges of the Crown court should sit in such trials, rather than one.

It is fair to recognise that Lord Carlile's assessment that Northern Ireland judges apply rigorous standards to the quality of evidence in non-jury trials still stands, but he suggested that a three-judge court would command greater confidence across the communities, without diminishing the credibility of the court system that we are discussing.

As we try to normalise Northern Irish politics and Northern Irish law, we believe that it is necessary to do all that we can to normalise the court system. So I agree with Lord Carlile that such a move would help to secure greater confidence in how the criminal justice system operates in scheduled-offence trials in Northern Ireland. We believe that the Government should seriously consider how best to move the situation forward and should certainly take on board Lord Carlile's suggestion.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons), Shadow Spokesperson (Work and Pensions), Shadow Spokesperson (Treasury)

In the scenario that the hon. Gentleman envisions, with three judges sitting, would decisions have to be reached unanimously, or could they be reached by majority vote in cases of a difference of opinion?

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I was just about to come to that point, because it arose in Committee. My hon. Friend Lorely Burt said that she thought that the decision needed to be unanimous. On consideration, and after discussion with colleagues and others, I concur. A unanimous judgment would be a check step that would guarantee that the body of evidence was robust. The argument against a unanimous vote would be that a majority vote was sufficient insurance, because at least two judges would have to agree. In my judgment, it should be unanimous. However, those details do not have to be decided now as they could be dealt with by a statutory instrument that would establish the standing orders for the procedure.

In the previous debates on this point, the Minister cited cost as a reason not to have three judges. He said that in Lord Carlile's 2003 report

"he estimated that 10 additional judges would be required to produce the same criminal justice system. Those judges would have to be recruited and trained, and accommodation would have to be provided for them. If necessary—of course we would do this if we were to move to that system—steps would have to be taken to protect their security. That would have significant financial implications."—[Official Report, Standing Committee E, 8 November 2005; c. 25.]

Photo of Lorely Burt Lorely Burt Opposition Whip (Commons), Shadow Minister (Northern Ireland)

May I develop the theme of costs? Lord Carlile was talking about 10 judges in 2003 and although only two years have elapsed since then considerable progress has been made, so one would hope that the necessity for the number of Diplock courts envisaged by Lord Carlile might be less than it was. I would also like to make the point that—

Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. I have not finished with the hon. Lady. She must understand that there is a distinction between an intervention and a speech. If she really wants to develop a point, perhaps she would be better off trying to catch my eye later in the debate.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

Nevertheless, the point made by my hon. Friend Lorely Burt is valid. We are constantly told that the situation in Northern Ireland is normalising, so the estimate of 10 may be on the high side. There is a second point, which relates to other legislation that we have been discussing recently where the Government want to set up an entire, parallel quasi-judicial system to deal with on-the-runs, which will be a colossal expense. It is not acceptable for the Government to rail against the relatively modest investment in a three-judge Diplock court system while advocating an entire parallel system, at relatively high expense, for that other legislation.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson Shadow Spokesperson (International Development), Shadow Spokesperson (Transport)

The hon. Gentleman will recall that during Second Reading of the Northern Ireland (Offences) Bill, the Secretary of State claimed that one reason why the Government were not able to go through a full judicial process for terrorists who were on the run was that it would create major problems in the judicial system in Northern Ireland. What implications does that have for his proposal that three judges should sit in such proceedings?

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I thank hon. Friends for their contributions, because as they make them we are covering all the points. In response to the hon. Gentleman, I recall the Secretary of State for Northern Ireland saying, only seven days ago, that he did not want to use the existing court structure because the on-the-runs legislation would "jam up" the courts, so if that is the state of shortage of judges in the Northern Ireland court system, the Government should be investing in extra judges in any case. There is a strong case for resolving both issues by ensuring that there are sufficient judges to administer the existing responsibilities and requirements of the judicial system in Northern Ireland, together with the on-the-runs—a matter that we shall discuss at another time—and the three-judge Diplock court system that we are proposing.

In essence, that is our case. We have given the Government some time to consider it and I hope that the Minister, on reflection, will accept that the new clause is wholly reasonable; the costs would be modest and it is very much in the interests of justice in Northern Ireland. Should the Government hold out against the new clause, it will be necessary for us to divide the House.

Photo of Laurence Robertson Laurence Robertson Shadow Minister (Northern Ireland)

We discussed this matter in Committee. The official Opposition have some sympathy with the point made by Lembit Öpik and we have had various discussions about it.

I raised the point about unanimity in Committee although we did not discuss it much at that stage. We can see some difficulty with it. If there was a requirement for unanimity and there was a two-to-one vote in favour of the guilt of the person before the court, the majority verdict would obviously be guilty but the person would presumably be released. If there were no requirement for unanimity, I foresee further problems. If there was a two-to-one vote, there might be questions about which judge voted which way. Were they Unionist, loyalist, nationalist, Protestant or Catholic?

The initial appointment of the judges could also lead to difficulties. The number three does not divide equally, which is why it was chosen.

Photo of Laurence Robertson Laurence Robertson Shadow Minister (Northern Ireland)

Indeed.

A further problem could arise: if one judge was a Protestant and the second a Catholic, how would the third appointment be made?

Photo of Laurence Robertson Laurence Robertson Shadow Minister (Northern Ireland)

I cannot possibly respond.

There could be an argument for considering the background of the judges, but the current system seems to be working reasonably well in practice, although I accept that trial without jury is wholly undesirable. It is acceptable—if that is the right word—only due to the difficulties in Northern Ireland, which unfortunately continue to exist.

The situation is working acceptably partly because it has as a back-stop the automatic right to appeal. Leave to appeal does not have to be sought; there is an automatic right of appeal in the present system, so although I promise the hon. Member for Montgomeryshire that the official Opposition have looked at the new clause and discussed it in great detail, we have decided on balance that we cannot support it.

Photo of Shaun Woodward Shaun Woodward Parliamentary Under-Secretary (Northern Ireland Office)

New clause 1 would amend the Terrorism Act 2000 to provide that Diplock courts would in future consist of three judges of the Crown court. The business of the Crown court in Northern Ireland is dealt with by judges of the Court of Appeal, High Court and county court sitting in the Crown court in accordance with directions given by the Lord Chancellor.

Lord Carlile has recommended on several occasions that a three-judge court could be a replacement for Diplock courts. However, I remind Lembit Öpik that Lord Carlile draws no firm conclusions and has stated that the decision is one for the Government. Indeed, the proper context is the 2004 report, where he says:

"My overall conclusion is that a 3 judge, non-jury court could"— not "would" but "could"—

"function satisfactorily even if the judges were of non-equivalent judicial status. Nevertheless the present single-judge courts continue to offer a high standard of justice: there is no evidence of any deficit in the quality of single-judge courts."

Crucially, he continues:

"Having provided those conclusions, whether there should be a change is a matter outside my direct purview. It is a matter for Ministers, and the evolving political process. Political and economic judgments at that level are founded on broader considerations than my responsibilities as reviewer permit."

Photo of Lorely Burt Lorely Burt Opposition Whip (Commons), Shadow Minister (Northern Ireland)

In Committee, the Minister may recall saying that when considering the necessity for a successor to Diplock the three-judge option might be tried. Why does he feel that we should wait until we are considering the successor to Diplock before looking at that option?

Photo of Shaun Woodward Shaun Woodward Parliamentary Under-Secretary (Northern Ireland Office)

Because, with the respect to the hon. Lady, those matters must be more carefully thought through and not just dealt with by trial and error. Lord Carlile acknowledges that the existing system offers a "high standard of justice". Simply to work on the basis of "Perhaps it might be better" is not an entirely good way to proceed with criminal justice in Northern Ireland.

In his 2003 report, Lord Carlile also acknowledged that there would be resource and training implications if the three-judge approach were adopted. He estimated that 10 additional judges would be required. The hon. Member for Montgomeryshire raised questions about the parallel system that we are introducing for on-the-runs, but I suppose that I should say, Mr. Deputy Speaker, that I will not crave your indulgence by talking about that measure in the context of this Bill. Nevertheless, the fact of the matter is that 10 additional judges would cost several million pounds to maintain—the Court Service has produced that cost for us. If proceeding down that route were to produce a better system of criminal justice, of course we should consider it. However, until we know the full costings and are certain that that system of justice would be better, it would be foolish to throw out something at that even Lord Carlile accepts has a high standard of justice.

The recruitment and training of the judges would lead to significant financial costs, as would their accommodation and, quite rightly, their security. I am not clear that the proposal represents value for money, especially given that Diplock courts in their current form are due to be repealed under the security normalisation programme in about 18 months, subject to—critically—an enabling environment.

Three-judge courts could create significant problems of delay. The requirement to ensure that the three allocated judges were available for all stages of a trial might lead to delay in the criminal justice system. Unless verdicts were required to be unanimous, which would be different from the current practice in the Court of Appeal, there could be unwelcome and unhelpful speculation about the verdicts and individual views of judges involved in such cases. It is not clear to me that that would increase confidence in the system.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons), Shadow Spokesperson (Work and Pensions), Shadow Spokesperson (Treasury) 2:00 pm, 30th November 2005

Leaving aside the merits of three-judge courts for one minute, can the Minister help us on the question of costs? Will he tell us how many cases have gone through the Diplock process each year over the past few years so that we can get an idea of the size of the burden on the judicial system that would be created?

Photo of Shaun Woodward Shaun Woodward Parliamentary Under-Secretary (Northern Ireland Office)

If the hon. Gentleman will allow me, I will write to him specifically on that point. Given the analysis that we have seen, we think that the proposal of the hon. Member for Montgomeryshire would be more expensive than the existing system. However, as I said, if it were to lead to a better system of justice in Northern Ireland, it would undoubtedly be the right thing to do, but it is appropriate to consider value for money. What matters is confidence in the judicial system. The concerns are not insurmountable, and we are convinced that we could perhaps consider three-judge courts in the future.

As I said on Second Reading and in Committee, I am already committed to considering what, if any, replacement is needed for Diplock courts so that we can tackle the problems of intimidated jurors in paramilitary-style trials in the future. That is an important issue for the people of Northern Ireland. The future of certain types of criminal trial in Northern Ireland is a matter of significant public interest that merits the maximum possible scrutiny and debate. The Government would like to proceed with as much consensus as possible on any replacement arrangements for Diplock courts. Until the detailed inter-agency work that is under way on the issue has been completed, it would not be appropriate to discuss specific proposals or to commit to three-judge courts as a possible way forward.

Photo of William McCrea William McCrea Shadow Spokesperson (Environment, Food and Rural Affairs)

The Minister says that he wants to consider costs and implications. What is the time scale in which any further proposals might be brought forward?

Photo of Shaun Woodward Shaun Woodward Parliamentary Under-Secretary (Northern Ireland Office)

I might be able to answer the hon. Gentleman's question pretty much immediately. Although detailed proposals should be worked up by next summer, we would like to ensure that we are able to take on board a wide range of views, including those of the hon. Member for Montgomeryshire and representatives of other political parties, before any final decisions are taken. With that in mind, and taking forward the proposals that I made clear in Committee, this morning the Secretary of State wrote to Sir Patrick Cormack, as Chairman of the Northern Ireland Affairs Committee, to make a commitment to pre-legislative scrutiny on any replacement for Diplock. Such scrutiny should facilitate the full debate that I believe the hon. Member for Montgomeryshire would like. It will allow us to take full account of all the issues involved, including costs, security and the question of majority or unanimous verdicts. We must consider those extremely important matters so that we can proceed carefully and appropriately and ensure that any arrangements that replace the present system are better than it, not worse. We look forward to hearing the views of hon. Members on the subject next summer.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons), Shadow Spokesperson (Work and Pensions), Shadow Spokesperson (Treasury)

I welcome the Minister's commitment to pre-legislative scrutiny. Why is he prepared to adopt that approach on future proposals, but not prepared to accept the suggestion that the much more contentious Bill on amnesty for on-the-runs should receive such scrutiny? That matter was raised in the House by no less a person than the Chairman of the Northern Ireland Affairs Committee, but the Government seem to have set their face against that approach.

Photo of Shaun Woodward Shaun Woodward Parliamentary Under-Secretary (Northern Ireland Office)

I fear that I would be craving your indulgence, Mr. Deputy Speaker, if I started to discuss on-the-runs. However, as I have said, we believe that it would be entirely appropriate to use the Northern Ireland Affairs Committee for close examination of the proposals through pre-legislative scrutiny. For the purposes of this Bill, we think that the present system remains the right one for the next few months, so I urge the House not to accept new clause 1.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I thank hon. Members for their contributions to the debate. May I start by emphasising the importance of being consistent with Lord Carlile's advice? We are considering the words and judgments of the man who is paid to make independent assessments, so we should think seriously about recommendations and suggestions that he puts forward, even if the Government are not inherently disposed to support them from the outset. I assure hon. Members that my dedicated belief in Lord Carlile's contributions is not based on the fact that he was the Member of Parliament for Montgomeryshire until 1997, although that is a consideration.

I understand the concern of Mr. Robertson about religious and community affiliations in a three-judge system. Nevertheless, it is fairly easy to show that we could find independent judges from across the community who would be trusted as faithful adherents to the standards and principles that we expect from the judiciary.

Photo of Shaun Woodward Shaun Woodward Parliamentary Under-Secretary (Northern Ireland Office)

Obviously, the Government have enormous respect for the work of Lord Carlile. However, when the hon. Gentleman makes his assessment of the matter, he must take Lord Carlile's 2003 report into consideration. Lord Carlile said that the fact that a three-judge court could work did not necessarily mean that it should be introduced.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

That is why this is a matter not of principle, but of judgment. The judgment of the Liberal Democrats is that it is appropriate to take the advice on board. I do not condemn the Minister, the hon. Member for Tewkesbury or others for holding a different view, but it is important to put down a marker today on where we should go.

Let me return to the question of the affiliation of judges. The hon. Member for Tewkesbury rightly pointed out that there might be some consideration of whether there were one Protestant and one Catholic judge. It was suggested that the third judge could be an Alliance party member, but perhaps one Baha'i could be the third member of the panel. The problem is not insurmountable. We faced it all the time when constituting the various organisations that have been set up in Northern Ireland in recent years and we got through it. If the system were coupled with a requirement for a unanimous verdict, we would ensure that we would get a cross-community verdict from the judges. We must also bear it in mind that Diplock courts have been frequently criticised for requiring one individual to make a judgment on an offence that would be made by a jury in normal circumstances, or in other parts of the United Kingdom, but I shall not labour that point because it has been made several times before.

As for the number of judges that we need, I am still not persuaded that we need 10 judges to make the change. I am disappointed that, in responding to a question from the Democratic Unionist party, the Minister could not tell us how many times a Diplock court has been used in the past few years, as such information would be helpful.

Photo of Shaun Woodward Shaun Woodward Parliamentary Under-Secretary (Northern Ireland Office)

As I have said, the Government fully respect Lord Carlile's advice. The hon. Gentleman regularly turns to that advice, and Lord Carlile suggested in his 2003 report that we would require

"at least ten additional judges, from whom membership for trials could be chosen".

We are therefore also relying on that evidence.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

No doubt, Lord Carlile will learn how many times he has been cited in our debate and will have his own views on the matter. I will welcome that as the debate shifts to another place. However, circumstances have changed markedly in the past two years, and he was writing about the situation in 2003, not 2005. Nevertheless, this is a moot point because of the words that the Minister used only a few moments ago. I believe that he said that if it were to lead to a better system of justice for Northern Ireland, it would undoubtedly be a worthwhile thing to do. In my judgment, it would. The Minister is more cautious, and I understand why.

Photo of Shaun Woodward Shaun Woodward Parliamentary Under-Secretary (Northern Ireland Office)

I absolutely stand by what I said to the hon. Gentleman in Committee. We are asking him to refrain from dividing the House this afternoon. We have made it perfectly clear that later next year we will introduce proposals for pre-legislative scrutiny by the Select Committee on Northern Ireland Affairs, which will have all the evidence available to make a judgment on our proposals. That is a far more sensible way of proceeding, as it fully recognises the recommendations as well as criticisms and Lord Carlile's observations. Lord Carlile clearly thinks that it would not necessarily be a better system, but it could be. As he has such confidence in the present system, simply to tinker with it for the sake of a delay of 12 months or so would be a little foolish.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I could be wrong, but I see the look of fear in the Minister's eyes. He is afraid that he might lose the vote, but that is the cost of democracy. I encourage him to have the courage of his convictions if the House divides and lose gracefully if it comes to that.

There are two reasons why we wish to divide the House. First, it is appropriate to discuss the details of the Diplock court system, because they pertain directly to the legislation. Secondly, and more importantly, in recent years we have been assured of pre-legislative scrutiny, proper consultation, inclusivity and cross-party accord in Northern Irish matters. In the eight and a half years in which I have been Northern Ireland spokesman for the Liberal Democrats, there has been a movement away from bipartisanship and towards unilateral deals, primarily between the Government and Sinn Fein. I am concerned that the assurance of consultation that the Minister has given us today may not be carried through in future. As evidence of that, I cite the point made by the DUP not 10 minutes ago. There has been no more important piece of legislation requiring cross-party support and pre-legislative scrutiny than the on-the-runs legislation. We are not here to debate the detail of that legislation, but we can cite the failure of process that led to the debate on Second Reading as evidence of the need to be extremely cautious about any guarantees that Ministers offer us, both today and in future.

If we do not divide the House, we will fail to put in place a limited insurance policy that recognises the importance of cross-party support and pre-legislative scrutiny before further changes to the Diplock courts. I accept the Minister's views, and I welcome his offer on paper of extensive pre-legislative scrutiny of Diplock court reform. However, I do not trust the Government to follow it through, because we have been let down in the past. For that reason, I seek leave to divide the House.

Question put, That the clause be read a Second time:—

The House divided: Ayes 46, Noes 370.

Division number 110

See full list of votes (From The Public Whip)

Question accordingly negatived.

Photo of Robert Wareing Robert Wareing Labour, Liverpool, West Derby

On a point of order, Mr. Deputy Speaker. I am one person who missed that vote. The reason was the irregularity of the lift in No. 1 Parliament street. I have reason to believe that it is sometimes used by people who should not be using it during a Division. It was hovering between the mezzanine floor, the basement and the ground floor, but never reached the higher floors. I do not know whether I was the only person affected. There were other people waiting for a lift, and when we got in there were so many of us that it became overcrowded and would not operate. I would be pleased if you could get something done about that so that it does not occur again.

Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

I am sorry that the hon. Gentleman was inconvenienced by what happened. I can only offer the immediate consoling thought that his inability to cast his vote did not have an effect on the result. The point that he raises is a serious one. Lifts are meant to be exclusively for the use of Members during a Division. I will ask the Serjeant at Arms to have the matter investigated so that neither the hon. Gentleman nor any other hon. Member is inconvenienced in future. I am obliged to him for raising the matter.