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I beg to move, That this House
agrees with the Lords in the said amendment.
I am very conscious of the fact that, as we are deliberating this afternoon, the funeral of George Dawson, Member of the Legislative Assembly, is taking place. Earlier, Dr. McCrea referred to the tragic event that occurred this week. We send our condolences to George Dawson's family, friends and political colleagues, and especially to his wife and two children. Hon. Members will understand that, because of the funeral, several hon. Members who would usually be present cannot be in the House this afternoon.
In our deliberations in both Houses, we have had many discussions about clause 7 and the circumstances in which the Director of Public Prosecution's decision in favour of non-jury trial should be challengeable. I am sure that hon. Members will be pleased to hear that I do not intend to go through all the arguments again. Suffice it to say that it has been our clear intention to put the case law in Shuker on to the statute book.
"A prohibition on judicial review except on grounds of dishonesty, bad faith or 'other exceptional circumstances' does not make sufficiently clear in our view that judicial review for lack of jurisdiction or error of law will still be available."
The amendment would reassure the Committee by confirming that a challenge on such grounds will be possible, provided that it meets the threshold of "exceptional circumstances". It will be for the courts to decide whether that threshold is met in any given case. I want to make it clear that that does not mean that lack of jurisdiction or error of law will of themselves constitute exceptional circumstances in every case. That will be a matter for the courts to decide, based on the arguments put to them.
I hope that the further change to the clause provides additional ground for consensus and confidence.
As the Under-Secretary said, we discussed clause 7 at length in Committee and there is no need to drag matters out. I am grateful to the Under-Secretary for taking our comments and those of the Liberal Democrats on board. We devised what we thought at the time to be the final solution, but their lordships have considered the matter and added a few more words to our proposal. I hope that that makes the provision as judicial as it can be in the circumstances. We have no objection to the amendment.
May I take the opportunity to join the Under-Secretary and Mr. Robertson in recording my condolences to George Dawson's family? He was a fine and friendly man and I had been looking forward to serving with him in the new Northern Ireland Assembly on the Committee for Enterprise, Trade and Investment.
The Minister has explained the amendment before us, but I hope that he will take the opportunity to explain further how a defendant is meant to mount a challenge, even with the new additional wording, in circumstances where, as he has told us, there will be absolutely no information on the certificate. How is someone judicially to review a certificate in those circumstances? How can that happen when there is no information on the certificate as to what it is that the Director of Public Prosecutions is concerned about or what judgment he has made about whether a person is or was a member of a proscribed organisation or an associate of such a person? If there is no information about what has motivated the DPP's certificate, how can anyone mount a meaningful challenge?
I echo the concern, which has been discussed at length in the past, about the complete opaqueness of the process of issuing a certificate. That, as we have already argued, is one of the fundamental flaws of this legislation. I hope that the Minister will provide some further clarification today, but I am not optimistic that, even now, the Government realise the weakness that we are pointing out.
I should have expressed at the start the condolences of the Liberal Democrats to George Dawson's family. He died of cancer at the very young age of 45. My own brother, as the House knows, died at 37 and I know how difficult it was for my family to deal with that. I am sure that we are all unanimous in understanding the grief that the Dawson family now feels.
The advantage of the amendment is, as the Minister said, that it makes it quite clear that while judicial review will be exceptional, it will be fully available in cases involving matters other than dishonesty or bad faith. The reference to "exceptional circumstances" rightly includes cases where there was a "lack of jurisdiction" or other significant "error of law". For that reason, it evidently extends the breadth of the clause's operation, which is welcome, but as I said at the outset and as Mark Durkan has just pointed out, it still does not overcome one of the fundamental deficiencies of the legislation—the opaqueness of the issuing of a certificate in the first place.
I am grateful for the support of Mr. Robertson, but I fear that other colleagues, including my hon. Friend Mark Durkan, may want to drag us back to Second Reading and Committee consideration of the legislation. Where we are at now is that we have achieved a great deal of consensus, including around clause 7, and are coming towards the conclusion of our deliberations. There is a clear test, which is set out in the legislation, and a decision has to be made. We have never hidden from the fact that the decision may rest in particular circumstances on intelligence or other information that is not in the public domain, or that we do not believe that the issuing of the certificate should be the occasion for putting such information into that domain.
The question has been how best to balance the need to keep a certain level of protection of the information, while allowing people in certain circumstances to be able to challenge the issuing of the certificate. We now think that, with this further Lords amendment, the balance is as right as it possibly can be. I am pleased that we were able to achieve a consensus in the other place and I hope that it is maintained here this afternoon. I know that my hon. Friend the Member for Foyle has pursued this issue and I fully understand the reasons why. However, I ask him to understand that what we have sought to do is to provide the necessary balance, including what I accept are narrow grounds for challenge, but grounds for challenge nevertheless.
That is all. The certificate will be issued by the DPP and it will not include any of the sort of information to which my hon. Friend refers. He knows that from our earlier discussions. All that we are doing today is further to clarify the grounds on which an appeal can be made. There has been some suggestion that what we are seeking to do here is completely to remove grounds for appeal. We are not seeking that at all, but we are limiting those grounds.
I will give way in a few moments, but I fear that, perhaps understandably, colleagues want to take us back to discussions that we have had long since. What we are seeking to do is to express our support as the Government for amendments agreed in the other place after extensive discussion and deliberation both on the Floor of the House and elsewhere, which brings us closer to the balance that we seek to strike between making sure that the grounds are narrow, but none the less there in appropriate cases. I shall give way to the hon. Gentleman and then swiftly bring my remarks to a conclusion.
Let me explain that the reason why Mark Durkan and I are making this point today is that we both feel that it could well become a problem. We are trying to register our concern now so that, in anticipation of the Government having to change the legislation in future, there will at least be some clarification in the record of today's debate that some hon. Members were already foreseeing a problem. At the end of the day, even with the improvements of the Lords amendment, challenging a certificate will still be down to guesswork and assumption because the certificate provides precious little evidence for how it might be challenged.
The hon. Gentleman speaks for himself and his remarks are on the record.
Initially, clause 7 provided grounds for appeal based on dishonesty and bad faith. Consistent with the Shuker judgment, we have now included other "exceptional circumstances". In view of the deliberations in the other place, we now confirm that those other exceptional circumstances may include
"lack of jurisdiction or error of law".
We have now reached the point where the balance is clear and we have clarified all those points in the Bill. I hope that, as I say, that will give us a greater degree of confidence and consensus.
The House has heard the Minister and I do not want to provoke him into answering much of what I am going to say, but I want to make two or three sensible and serious remarks.
First, the likelihood of judicial review happening will, I suspect, be low, particularly if many of the hopes built up over recent months are carried forward, but it remains an important issue. The Government tend to operate to a degree by precedent and, if this goes unchallenged and unremarked, I do not believe that the House will have done its duty. I am glad that some hon. Members have put questions to the Minister and that he has responded to them.
Secondly, it may be possible to think of a parallel, albeit not a direct parallel. I remember being involved in the case of a senior officer of the Metropolitan police who had warrants issued by judges and certificates signed by Ministers saying that a particular person was a very serious threat to national security, providing reasons to grant those warrants. It turned out, however, that the information given to Ministers was completely wrong. Without opening all that up again, I hope that there will be some system whereby afterwards—whether it be immediately afterwards or after the trial or perhaps even some years after that—the information becomes open to review. If and when either judges or Ministers issuing certificates realise that they should not have done so, I hope that they will find some way of saying so.
Finding out what happens at the time is one issue, but trying to pick up the picture later is another. There needs to be some invigilation of the uses of the certificate to exclude review. I happen to believe that there are too many applications for judicial review for too many cases, but there are certainly times when they are important. There are the examples of Clive Stafford Smith's work on Guantanamo Bay, which has embarrassed other American lawyers, including military defence lawyers; and the work of Gareth Peirce in this country, opening up to judicial supervision cases that would otherwise have gone unchallenged. I am sure that the Minister would accept that we have a responsibility to ensure that powers are used properly and limited wherever possible.
May I say on behalf of my right hon. and hon. Friends that I deeply appreciate the remarks expressed across the House about my friend in the other place, George Dawson? He was an excellent servant of the people, who represented the people well. I know that his family will find comfort in the remarks that have been made.
My colleagues and I accept the provisions in clause 7. They have already been debated in Committee, and we will therefore support the Government on this matter.
Lords amendment agreed to.
After Clause 8
Lords amendment : No. 2.
This group of amendments provides that the non-jury trial system in the Bill will expire after two years unless the Secretary of State makes an affirmative resolution order to extend it for subsequent two-year periods. The system contained in the Bill has always been intended to address the particular circumstances of Northern Ireland, especially the paramilitary and community-based pressures that jurors in Northern Ireland face.
Throughout the passage of the Bill, the Government have made clear their commitment to return to jury trial in all cases in Northern Ireland as soon as the security situation permits. Initially, it was our view that the special provisions should be allowed to wither on the vine. We have listened carefully to the debates on this matter, however, and that has given us cause to reflect on our initial view. We have paid attention to the quickening pace of change in Northern Ireland and the move towards more normal circumstances. Such a move has been evidenced by, among other things, Sinn Fein's commitment to support the police and the rule of law, and by the events earlier this week involving the devolution of power to Northern Ireland.
We also accept that the inclusion of a sunset clause will give greater clarity and certainty, and provide for a continuing role for Parliament in scrutinising the provisions. The amendments will provide for that. The amendments also provide for transitional arrangements for cases that begin under the new provisions to be allowed to come to a conclusion, even though the provisions might have lapsed. They also make a number of minor technical and legislative changes, and I am happy to support them.
I thank the Minister for listening to the debate on this issue. When we were discussing the matter on Second Reading and in Committee, we were concerned about extending the principle of non-jury trials beyond July 2007 because of the improving security situation. The Independent Monitoring Commission had reported favourably on the activity—or lack of activity, as it described it—of the IRA, and Sinn Fein had publicly declared its support for the police and the criminal justice system. We recognised, however, that there was some way to go regarding dissident republicans and loyalist paramilitaries, so we supported the retention of an ability to hold a trial without jury. We welcomed the change of emphasis, however, and the change to a presumption that trials would be held with a jury unless otherwise stated by the Director of Public Prosecutions—although we disputed who should actually make the decision.
I have one further question for the Minister. If these aspects were to be devolved in due course, what would happen? There is talk—although nothing is set in legislation yet—of further devolution in 2008, yet the sunset period in the Bill is for two years. How does the Minister envisage the arrangements working in those circumstances?
I, too, welcome the fact that the Minister has reflected further on the provisions to make permanent the option of non-jury trials in Northern Ireland. When the Government introduced the Bill, they said that those provisions were all about normalisation but, in trying to make permanent the temporary, annually renewable provisions relating to the Diplock courts, they were attempting to normalise the abnormal. I welcome the fact that the Government have thought better of permanently providing for a non-jury court option subject to a review by the Secretary of State, and that they have restored the principle that, if this provision is to be extended, it must be renewed by Parliament.
In the present context, I, like Mr. Robertson, find it hard to accept the justification for continuing the provision at all. We had that debate on Second Reading and elsewhere. The Government's move from introducing legislation last year to end Diplock courts in July this year—or July next year at the latest—to providing permanently for the non-jury option did not seem to rhyme either with the Government's judgment of the more benign circumstances or with the very positive prospects that we see now. I was always at a loss to understand how special, annually renewable, temporary provisions that were introduced in the vicious heat of the worst violence of the troubles would be necessary as a permanent feature in the cool calm of the current circumstances. I welcome the fact that the Government have reflected further on this matter.
I hope that the Minister will clarify the point raised by the hon. Member for Tewkesbury about whether the Government intend the renewal of the legislation to be devolved to the Assembly. Do they intend the power to continue to reside with the Secretary of State for Northern Ireland and this House, rather than being transferred to a Minister for Justice in the Northern Ireland Assembly?
I support the amendments, as they certainly improve the Bill, and I am pleased that the Government have listened to the points raised in earlier debates. The amendments provide reassurance that the Government truly expect the provisions to be temporary. I am also pleased that the affirmative resolution procedure will be used to renew them. That will ensure that the Government need to review the operation of non-jury trials in Northern Ireland and consider whether they are still necessary. It will also ensure that the final responsibility lies with Parliament as a whole to make the decision. I certainly support the amendments.
I would like the Minister to clarify a point that has already been touched on. In the event of the devolution of policing and justice functions to Northern Ireland, would the renewal of the non-jury trial provisions in the Bill be a matter for Westminster or for the Assembly? We need to have that point clarified in the House today.
I want to speak to Lords amendments Nos. 6 and 7, although they are not the most important issues in the Bill. The amendments affect clause 50. Lords amendment No. 6 would limit the extent of the provision to England, Wales and Northern Ireland. That would exclude Scotland. An explanation for that might have been given in the Lords; I am sorry that I did not check up on that. Will the Minister tell us whether that aspect of the provision is an oversight, or whether there is some reason why trials of this nature cannot take place in Scotland? If that information is not available this afternoon, I would be happy to accept a letter of explanation from him.
Lords amendment No. 7 states:
Page 32, line 29, after "Schedule 1" insert "(and section 8 and ( Duration of non-jury trial provisions)(1) to (4) so far as relating to those amendments)".
It is reasonably clear what the first part does, and presumably it is all governed by the clause relating to the extent to which these trials may take place in certain parts of the United Kingdom. If it is clear to the Minister, perhaps he could give us an explanation, but if not, I would find it useful if he could write to me. This is a very technical point and it is beyond my comprehension.
I am grateful for the increasing echo of support and consensus for the amendments. I am pleased that, at long last, I have been able to do something that has pleased my hon. Friend Mark Durkan, which has not happened too often during the course of the Bill. I should also place on record the fact that at this moment, as at others, we would have benefited from the advice of Lady Hermon, who is assiduous in such matters. She is unable to be here with us this afternoon, but her contribution to debates on such issues is important.
I have been asked further questions about two substantive issues. On the issue raised by Peter Bottomley, there are separate provisions for non-jury trial in England and Wales and Northern Ireland, and those are contained in the Criminal Justice Act 2003. That legislation contains references to the special provisions for non-jury trials in Northern Ireland. As we are changing those special provisions, we must also change the references in that other legislation. I am happy to confirm that in further detail in writing.
A number of Members requested further information on the second issue, which was whether the decision on renewal will remain with Westminster or be devolved. The renewal decision will remain with Westminster. Clearly, three of the four conditions in the first limb of the statutory test relate to proscribed organisations, and the system of non-jury trial falls within that part of the Northern Ireland Act 1998 dealing with national security matters. It is therefore clear that the matter should remain one for Westminster, and that renewal should be considered by the House. That does not mean that we cannot discuss such matters with a future Justice Minister, First Minister or Deputy First Minister, as we reach a conclusion about whether to bring forward further affirmative resolutions. The decision, however, will be one for the House.
Lords amendment agreed to.
Before Clause 42
Lords amendment: No. 3
We are certainly with the Lords in spirit in relation to the original amendment, which is entirely in keeping with the policy that the Government have been pursuing administratively on community-based restorative justice. We wish, however, to address a number of minor drafting points.
The amendment provides that the Secretary of State shall maintain a public register of schemes that appear, to him, to be community-based restorative justice schemes, and that meet published requirements. The Government have already put those requirements into the public domain in a protocol for community-based restorative justice schemes, which was published on
Schemes will be added to the register when it can be demonstrated that they can meet the stringent requirements set out in the protocol. In making that determination, the Secretary of State will request a pre-accreditation inspection report from the chief inspector of criminal justice in Northern Ireland, which shall examine a scheme's ability to meet those standards. The new clause provides a power for the chief inspector of criminal justice to inspect schemes both prior to registration and subsequently, to ensure that they continue to meet the required standard. Reports of those inspections will be made to the Secretary of State, and the amendment provides that existing statutory arrangements for the laying and publication of inspection reports by the chief inspector will apply. By virtue of section 49(2) of the Justice (Northern Ireland) Act 2002, the Secretary of State must already lay all such reports before both Houses of Parliament and arrange for them to be published.
I acknowledge that the Government's amendment does not refer to the ability of the chief inspector to make specific recommendations about schemes—and to recommend removal from the register—as was provided in the Lords amendment. There are not explicit references, however, in the primary legislation governing the function of the chief inspector in relation to the making of specific recommendations about any other organisations that are subject to his inspection. The chief inspector's ability to make such recommendations as he thinks appropriate is plainly inherent within the inspectorate function, rather than requiring to be expressed explicitly in statute. The Government amendment is therefore consistent with the approach taken in existing legislation relating to the chief inspector's other inspection functions.
The Government amendment does, however, require the inspector, following a pre-registration inspection, to report on the ability of schemes to meet the requirements set out in the protocol—I am sure that the whole House would regard that as desirable, but it was not expressed explicitly in the Lords amendment. The chief inspector will clearly make such recommendations as he thinks appropriate, in each case, and the Secretary of State will take full account of his reports, which shall be published. The Government believe that the new clause continues to reflect the objective of the Lords amendment, and I commend it to the House.
The Minister is aware of the Opposition's concern, which we have raised previously, about the potential for some of the schemes to fall into the wrong hands. We are still concerned about that. I am grateful to him, however, for discussing the new clause with me beforehand. As a result of those discussions, I am happy to support the Government amendment.
The Minister seeks to disagree with the Lords amendment and provide an alternative Government amendment. After listening closely to the Minister's comments, I have tried to distinguish between the two amendments on offer, and I am not sure that I can fully do so. I am reminded of the old advert for Campbell's soup, "The difference is in the thickness". It is not clear to me that the difference can be justified by the Minister's reference to the inspector's powers to make recommendations being implicit elsewhere, so that they do not need to be made explicit in the Bill. In earlier debates, the Government were at pains to say that they were trying to use the Bill to make things explicit in legislation that were already in case law, as established by the Shuker case. We are now being told that we ought to make pains not to make things explicit in legislation when they are implicit elsewhere.
In relation to the previous amendments, a number of Members asked questions about the Government's intentions or assumptions as to where the relevant powers would lie after the devolution of justice and policing. Is it the Government's assumption that the Secretary of State's powers in the two different amendments will transfer to a Minister of Justice in Northern Ireland on the devolution of justice and policing, and that such a Minister will provide the register of community-based restorative justice groups, or might that power also remain with the Secretary of State for Northern Ireland?
May I remind the House of how far we have come? We are now talking about restorative justice schemes being regulated in a formalised way. If we remember the previous position, that is a great step forward. The fact that we are arguing about the details is a source of great hope, because in the past there was no question but that acts of vigilantism, rather than formalised restorative justice schemes, were taking place in Northern Ireland. Let us give credit to those in Northern Ireland who have made that change, and to the Government for getting us this far. Thinking about how far we have come, I look at Airey Neave's name there above the exit to the Chamber, and I remember how he died. Now we are talking about nuances to try to get the legislation right.
The British Brands Group is very concerned about copycat products. It seems to me that the Government amendment is a classic example of a copycat product. Like Mark Durkan, I thought the original amendment was pretty good. It made the points very well, and was written by a man who was very well versed in the problem, Lord Trimble. The copycat product is the Government's amendment, which seems to be saying almost the same thing in slightly different words. I share the bafflement of the hon. Member for Foyle that the Government did not simply accept the original proposal.
As far as we can tell, the main differences between the two amendments are that the Government do not like the phrase
"justice schemes shall be inspected regularly", and do not want to enshrine the work of inspection in the mandate of the Criminal Justice Inspectorate. Why not? As we have heard, they want the provisions to be implicit in the legislation, but why should we opt for assumption when those provisions are set out explicitly in the amendment that the House of Lords passed thanks to David Trimble?
I have no objection to the Government's amendment, but I do object to their monkeying about with an amendment that was perfectly good in the first place. Methinks their amendment is driven more by ego than by rational consideration, and I should like to think that even at this late hour the Minister may think again.
Indeed. This shows a lack of joined-up thinking, or joined-up thinking that is so poor that I call for the Prime Minister's resignation. I believe that I will secure it, and then I shall take the credit.
It would not harm the Government sometimes to accept amendments that are perfectly good even if they do not come from the Government's own stable. It would show good faith and good will, at no cost to the integrity of the legislation.
I welcome the amendment, particularly as a member of the Northern Ireland Affairs Committee. Last year we conducted an investigation of community-based restorative justice schemes, looking at those in Andersonstown and Bangor. It was clear that while the schemes required some form of regulation, which the amendment will clearly provide, they were effective on the ground. That was because many of those involved had spent 30 or 40 years performing deeds that they now regretted—everything up to and including murder—and were now able to intervene early in the lives of young people, telling them "Do not follow the path that I took". We saw for ourselves the success of that programme. Reoffending rates were at least 10 times higher among people who went to prison than among those who had benefited from community-based restorative justice schemes.
I hope that whatever we agree today—and I am sure that we will agree to the Government's amendment—the aim is to make the schemes work rather than to limit their ability to work. And as well as being enabled to work within the letter of the law, they should be funded properly. That has not happened in the past.
My colleagues and I have expressed concern about community-based restorative justice schemes in the past, and I am still concerned about many aspects of them. However, the Lords amendment endeavoured to assist, and I think that explicit legislation is always preferable to implicit legislation. I cannot understand why the Government did not want this House to accept that amendment. However, given the support of Her Majesty's Opposition as well as the Government, there is clearly no reason for the House to divide.
I support the Minister and my hon. Friend Mr. Robertson. It is House of Commons procedures that have made the position rather more awkward than it ought to be. I think that "To move, That this House agrees with the Lords but will word the amendment in a slightly different way" would be a better way of phrasing the motion.
Some elements of the Secretary of State's amendment make elements of the original amendment more explicit, and are therefore welcome. I especially welcome the requirement for co-operation with the inspector, which appears early in the proposed new clause. The reference to the Justice (Northern Ireland) Act 2002 is another example of explicit provision that should be welcomed.
On this occasion, I have no questions to ask the Minister. I simply think that he is right.
I am grateful for all the comments that have been made. My hon. Friend Mr. Anderson was absolutely right, and I pay tribute to the work he has done as a member of the Northern Ireland Affairs Committee. As he said, community-based restorative justice schemes have great potential as a diversion from prosecution, dealing with a pattern of offending behaviour at an early stage in a way that diverts people from the criminal justice system altogether. I am sure we all support that, but there have been concerns about various schemes. What we have now is a system of accreditation and inspection that is rigorous, and can determine whether individuals working in schemes are suitable for the task. We have a robust system, including the protocol.
I pay tribute to the Minister of State, Ministry of Justice, my right hon. Friend Mr. Hanson, who is no longer with us now that he is happily charged with other responsibilities. He has done considerable work to establish this system, which will be continued under the watchful eye of the Under-Secretary of State for Northern Ireland, my hon. Friend Maria Eagle.
There is no question of ego here. I pay tribute to Lord Trimble for his work—for the amendments that he tabled, and for his efforts to ensure that the Bill provides the certainties and securities that he seeks. My right hon. Friend Lord Rooker accepted the spirit of what was proposed, but made it clear that a check with parliamentary counsel would be necessary to ensure that the amendments did all that we hoped and expected them to do. The advice from parliamentary counsel is that the amendments that he initially brought to our attention are defective, in that they make specific requirements that are not necessary. Indeed, if we made specific requirements in relation to these schemes, we would need to legislate for reports and requirements in relation to a range of others that are not included in legislation. The inspector already has the power and responsibility to make reports and recommendations, and the Secretary of State is obliged to publish them and lay them before both Houses. The position is absolutely clear.
Let me say to my hon. Friend Mark Durkan and others that this matter will rightly be devolved to a future Minister of Justice in Northern Ireland. It does not relate to the matters that we were discussing earlier, and it can and should be devolved as we make progress towards the day of further devolution of policing and justice in Northern Ireland.
Question put and agreed to.
Lords amendment disagreed to.
Government amendment (a)in lieu agreed to.