Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in the provisional grouping of amendments selected list. There is a single group of four amendments, which deal with preliminary investigations and changes to consequential amendments. The debate will be on amendment Nos 1 to 4 and opposition to clauses 1 and 2 stand part.
I remind Members who intend to speak that, during the debate on the single group of amendments, they should address all the amendments in the group on which they wish to comment. Once the debate is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If that is clear, we will proceed.
Clause 1 (Abolition of preliminary investigations)
In page 1, line 5, after "repealed" insert-<BR/>
"save in respect of preliminary investigation proceedings resulting from a direction under Article 29A".
The following amendments stood on the Marshalled List:
No 2: In page 1, line 5, after "accordingly" insert-
"save in so far as is necessary to give effect to Article 29A of the Magistrates’ Courts (Northern Ireland) Order 1981". — [Mr Allister.]
No 3: In clause 4, page 5, line 43, leave out from "for" to end of line 44 and insert-
"for the word 'documents' substitute 'copy of the notice of committal'". — [Mrs Long (The Minister of Justice).]
No 4: In schedule 1, page 9, line 13, leave out paragraph 18. — [Mr Allister.]
To understand and appreciate the amendments that I have moved, one has to examine the backstory of the matter, which the House will, I think, find intriguing, interesting and maybe a little surprising. In 2015, the previous Justice Minister, Mr David Ford, brought before the House the Justice Bill. In that Bill, he sought to remove all oral evidence from committal proceedings. The House disagreed. It accepted an amendment from me at Consideration Stage, which preserved the option of oral evidence at committal stage if the magistrate was persuaded that it was in the interests of justice. Mr Ford then returned to the House at Further Consideration Stage with a more fleshed-out amendment that was compatible with the House's decision. In consequence, we have section 7 of the Justice Act 2015, which says:
"The Magistrates' Courts (Northern Ireland) Order 1981 is amended as set out in subsections (2) to (5)."
The relevant amendment came in section 7(2), which inserts after article 29 of the Magistrates' Courts (Northern Ireland) Order 1981 the following as article 29A, which was passed without Division at Further Consideration Stage:
"(1) Committal proceedings in a magistrates' court in relation to an indictable offence are to be conducted— (a) in a case where the court directs under this Article that a preliminary investigation is to be held, by way of a preliminary investigation; (b) in all other cases, by way of a preliminary inquiry. (2) An accused may apply to the court for a direction that a preliminary investigation is to be held."
I should interpose to say that the phraseology "preliminary investigation" is the one that allows oral evidence, while "preliminary inquiry" does not. It goes on to say:
"(3) Magistrates' court rules may make provision in relation to an application under paragraph (2), including provision— (a) for an application to set out the grounds on which the application is made and contain such other information as may be prescribed; (b) requiring an application to be made before a prescribed time; (c) for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused). (4) The court, after considering the application and any representations made to the court, may direct the holding of a preliminary investigation if (and only if) the court is satisfied that a preliminary investigation is required in the interests of justice. (5) In determining an application under paragraph (2) the court shall in particular have regard to— (a) the nature of the offence or offences charged; (b) the interests of the persons likely to be witnesses at a preliminary investigation."
So, this House, in a settled view on an amendment moved by the Minister — it did not provoke a Division in the House — decided that the 1981 Order would be amended to preserve in very particular circumstances the right to have oral evidence in committal proceedings. Those very particular circumstances were that it would be in the interests of justice. The matters that would inform the decision on whether it would be in the interests of justice included such things as the nature of the offence and the interests of the witnesses themselves. One might have thought, therefore, that that became the law of this land.
I have to tell the House that, in the most astounding course of events, six and a half years later, the Department has still to move the commencement order for that section. Six and a half years ago, the House decided that the path that it wanted to tread on committal proceedings was to abolish all oral hearings except for those where it was found by a judge to be in the interests of justice, and yet the Department of Justice took it upon itself to defy the decision of the House and to circumvent that decision by never moving a commencement order. What an audacious challenge to the authority of the House. Today, six and a half years later, we have arrived at the situation of what this House declared to be law never yet having been implemented. The purpose of my amendments — amendment Nos 1 and 2 — is to require the implementation of what we agreed six and a half years ago and to preserve the right to have oral evidence in committal proceedings, if the magistrate is persuaded — the onus is on the defence — that that is in the interests of justice.
When I discovered that, I was shocked beyond words, so I went to the Justice Committee's report — the Committee that examined this Bill — to see what it was told about this. I found that it was told very little about it. If you look at the explanatory document that accompanies the Bill, you will not find a word of explanation for why the commencement order was never made or why the Department thought that it was fit and able to defy the House. In the Committee's report, there is a reference in paragraph 69, which says:
"The Department had previously sought to abolish the option to hear oral evidence from victims and witnesses at a committal hearing in the Justice Bill 2015. As noted earlier in the report, this did not receive sufficient support"
— in fact, it was rejected —
"during the passage of the Bill through the Assembly and, instead, an amendment was passed that ensured oral evidence could only be called if a judge was satisfied that the interests of justice require it. The Department advised the Committee that these provisions, placing the decision on whether to allow oral evidence at a PI or mixed committal in the hands of the judiciary, had not been commenced – while the Department was working with criminal justice partners to introduce the relevant provisions, the Fresh Start Three Person Panel published its report which included the recommendation that legislation should be brought forward to further reform committal proceedings to remove the need for oral evidence before trial. The recommendation was accepted by the Executive in its Action Plan", which, it says here, was published in July 2018. That surprises me. The report continues:
"The Department therefore believes that Clause 1 and Clause 2 are required to fulfil the Fresh Start Recommendation and that retaining the interests of justice test provided for in the 2015 Act would fall short of addressing the recommendation."
These amendments are an attempt to restore the equilibrium and authority of this House. After lunch — because I suggest that you are about to call me down, Mr Deputy Speaker
— I will explore the merits of those amendments and why, in the interests of justice, it is right to keep the option for oral evidence.
The Business Committee has agreed to meet at 1.00 pm. I therefore propose, by leave of the Assembly, to suspend the sitting until 2.00 pm. The first item of business when we return will be Question Time to the Minister of Justice, after which we will continue with this debate, and Mr Allister will be able to complete his commentary.
The debate stood suspended. The sitting was suspended at 12.59 pm.
On resuming (Mr Principal Deputy Speaker [Mr Stalford] in the Chair) —