Clause 8 - Trial by Special Tribunal

Northern Ireland (Offences) Bill – in a Public Bill Committee at 11:23 pm on 13th December 2005.

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Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield 11:23 pm, 13th December 2005

I hope that people feel rested, and that we can begin round 3 of today’s sitting. The first item is really a matter left over from an earlier debate: the Liberal Democrats suggested that they wanted to move amendment No. 70 formally, so I ask Lembit Öpik to do so.

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 feel a lot calmer now, so on the basis of the arguments put forward by the hon. Member for Belfast, East, I shall not move amendment No. 70 after all. It would be inconsistent for me to move my amendment, given our earlier debate. I simply tell the Minister that he is definitely on a promise to deliver something meaningful on the subject of defendants appearing, and we shall be watching him.

Photo of Peter Robinson Peter Robinson DUP, Belfast East

I beg to move amendment No. 28, in clause 8, page 6, line 3, at end insert—

‘(6A)Where the Special Tribunal convicts and sentences a person of an offence he must make a public expression of remorse, previously approved by the Special Tribunal, before a licence is granted.’.

We have imposed strictures on ourselves, and this is the test of them. The amendment is fairly self-explanatory; it deals with the issue of an expression of remorse. Let me translate for hon. Members from the rather small logistical issues that we have discussed thus far to the stage after the certification process, the special tribunal and all prosecution issues. Let us say that there has been a conviction in court. Someone has been found guilty by the special tribunal, and sentence is about to be handed down. If they are to benefit from the Bill, and are not to be required to spend even a day in prison, the very least that victims can expect is for them to be prepared, at that stage, to show some remorse and indicate their sorrow and regret.

Photo of Tom Harris Tom Harris PPS (Rt Hon Patricia Hewitt, Secretary of State), Department of Health

I understand the hon. Gentleman’s point, and I have some sympathy with it, but does he not see a contradiction, in that prisoners previously released on licence under the Good Friday agreement were not obliged to make a similar public statement? It might be contradictory to suggest that those covered by the Bill make a commitment that other prisoners on an early release scheme were not asked to make.

Photo of Peter Robinson Peter Robinson DUP, Belfast East

I am very happy to ensure parity; if the hon. Gentleman wants parity, let us have it. Let us have those caught under the legislation put in prison for up to two years. But if they are not going to go to prison for two years—if they are to walk straight out of court—the very least that can be expected is for them to show some sorrow. Quite frankly, if they are not sorry for what they have done, then why on earth are the Government jumping through hoops for them, and allowing them to go out on the streets without any regrets for the murder or other terrorist activity that they committed? It just would not be a sensible course for the Government.

The Government should be prepared to accept this minor requirement, which does not fly in the face of any of the deals that the Government have done with the IRA. It is a minimal requirement, and I hope that the Minister will accept it.

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

We have a great deal of sympathy with the sentiments behind the amendment. Much of what the victims’ families want is for someone to take responsibility for the death of their loved one, and to show some signs of remorse for it. I wonder, though, whether a forced expression of regret is the right way to go about that. Is there not a risk that someone will just say that they are sorry so that they can get a licence? Although I agree that an expression of sorrow and regret would no doubt help the victims, surely victims would want it to be genuine.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

I never thought that I would see the day when I would be cautioning the DUP on the dubious value of an act of contrition, but requiring a statement of remorse as part of the procedure would  mean that we ended up with something formulaic and empty. After a while, I imagine that the expressions of remorse would all be exactly the same, particularly if they had to be approved by the tribunal. Imagine just how stylised and formulaic they would become. They would be pretty empty and meaningless, particularly to victims. I actually think that an empty statement of remorse would be more offensive to victims than almost anything else, because the perpetrator could hide behind that statement.

We might be able to hide behind a statement of remorse as something that improved the Bill, but such an empty process would not make victims feel any better. Such an expression of remorse could cause offence, and where it did not cause offence, it would degenerate into farce.

There is one other reason why we need to be careful about including such a provision. I believe that there will not be many convictions under this procedure, but someone who applies under the scheme and asserts their innocence might just end up being found guilty. In a previous sitting I said that I knew of a case involving a number of young men in my constituency, some of whom were at school with me, who fled; they were on-the-runs. I believe that they were innocent. If there is to be a scheme such as this, I want them to be able to benefit from it, but I want them to assert their innocence in court. I would not want a situation where if they were found guilty, in order to benefit from the scheme, having asserted their innocence, they had to express remorse. That would go against all sorts of natural justice. In the past, that has been an issue when prisoners go through the life sentence review board process; the test of remorse has been imposed on people who were still insisting on asserting their innocence. We would be better off without the amendment.

Photo of David Hanson David Hanson The Minister of State, Northern Ireland Office

For the reasons mentioned by my hon. Friend the Member for Foyle—I am pleased to agree with him, and for him to agree with me—and the hon. Member for Solihull, I am unable to accept the amendment. They have sensibly pointed out two elements that give me cause for concern in the amendment tabled by the hon. Member for Belfast, East.

The first is that expressions of remorse are not required in normal trials, nor were they required under the early release scheme, as my hon. Friend said. The Government are seeking to put terrorist suspects through a judicial process, albeit one that results in release on licence. It is a process that includes conviction and sentence in as normal a way as can be done in the special tribunal circumstances. To add a requirement that a person who is found guilty must make an expression of remorse has nothing to do with  the trial, but in many ways seeks to move towards what the Government have already considered and not acted on, in part because of the recommendations of the Northern Ireland Affairs Committee—a truth and reconciliation commission of sorts. Such an approach is not our purpose in the legislation.

The second point relates to what was mentioned by my hon. Friend the Member for Foyle and the hon. Member for Solihull. How can we judge, measure or guarantee the quality or the nature of any remorse shown after the conviction has taken place?

Photo of Mark Hendrick Mark Hendrick PPS (Rt Hon Margaret Beckett, Secretary of State), Department for Environment, Food and Rural Affairs

Is it not the case that if there is no obligation to express remorse or give any apology, any apology or remorse that is shown would be valued much more by the victims, because it would be voluntary?

Photo of David Hanson David Hanson The Minister of State, Northern Ireland Office

My opposition to the amendment does not preclude the idea that if someone genuinely wants to show remorse they can do so when the person presiding over the trial gives them an opportunity to say something at the end of the conviction. Such remorse would be a genuine sentiment, which, I am sure, would be welcomed by the victims. To put a formulaic provision in place whereby an individual had to express remorse would mean that we would risk individuals coming forward and uttering not serious remorse, but a token expression of it.

As my hon. Friend said—again, I am pleased to agree with him—somebody who believes himself to be innocent could still be found guilty. Under the formula proposed, such a person would have to express an element of remorse that they would not feel, given their deeply held conviction that they were innocent of the charges. For both those reasons, I ask the hon. Gentleman to withdraw the amendment.

Photo of Peter Robinson Peter Robinson DUP, Belfast East

I shall, of course, withdraw the amendment—but for none of the reasons that have been suggested. It was something of a probing amendment to set people up for a later amendment to clause 11. We shall come back to the issue; none of the arguments that have been provided will apply when we deal with those who, far from being apologetic, glorify the activities in which they have been involved and the fact that they have been able to walk out of the court without having to serve a day in prison. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

I beg to move amendment No. 260, in clause 8, page 6, line 10, at end insert—

‘(7A)A person tried under this section must be tried in open court.’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss amendment No. 43, in schedule 2, page 17, line 42, at end insert—

‘6AThe Special Tribunal may not make a direction denying members of the public access to any hearing.’.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

It is a fundamental provision of law that justice be done in public. Amendment No. 260 is self-explanatory. It would oblige a trial to take place in open court. Why do we need that? Because of the suspicions about so many other ruses for which the Bill provides, and because of experience. The provision of law that justice be done in public was undermined in the north when there was screening of witnesses in Diplock courts. It was undermined by witnesses such as Colonel J., the head of the Force Research Unit, being able to testify anonymously at Brian Nelson’s trial. The Inquiries Act 2005 undermined the independence of public inquiries, with the Secretary of State reserving the right to prevent any information from being made public by an inquiry.

Provisions in other clauses of the Bill mean that the Secretary of State can at any stage, for any reason of his own choosing, override the requirements of the Bill for information to be provided to victims and for names to be provided and so on. There is every reason, therefore, to worry that the Government will at some stage try to take all this a step further, either by proposing amendments obliging the special tribunal to meet in private when the Secretary of State so directs or, when the tribunal is established, by applying to it for private hearings.

As we know from other recent events, the Government may have another option: to ensure that the special prosecutor does not bring a case to court at all and drops the charges. If we follow the Government’s defence of recent events, there is no reason why that would not happen under their plans for this legislation.

We believe that private hearings must not be allowed if justice is to be done and truth is to be told. That is why we propose amendment No. 260: it would oblige the special tribunal to meet in public. Amendment No. 43, tabled by the Democratic Unionist party, would have a similar effect, so we are delighted to support that, too.

Photo of Peter Robinson Peter Robinson DUP, Belfast East

As the hon. Member for Foyle says, amendment No. 43 would have the same impact as amendment No. 260. We therefore see no need to press ours; we are happy to support his. It is a fundamental principle of British law that justice should not only be done but be seen to be done. The people who carried out the activities in question planned them in a hole in the corner. They probably hid behind a hedge and waited for someone. It is about time they appeared in the open, so that the victims can see those who are responsible for the agony that they have suffered, and they come under the full scrutiny of the public. If all that those people have to suffer is being held up to public ridicule, that is the very least that should occur. It should be an open court, with the press entitled to be there and full reporting facilities available.

Photo of David Hanson David Hanson The Minister of State, Northern Ireland Office

I hope to be able to reassure my hon. Friend the Member for Foyle and the hon. Member for Belfast, East. The special tribunal will have the   same powers, authorities and jurisdiction as the Crown court, subject to any provisions in the Bill that impact on it. No provisions in the Bill will prohibit public access to the tribunal in any way, shape or form. However, the tribunal should not be prevented from availing itself of powers similar to those that the Crown court could exercise, should the presiding judge want to restrict public access on the basis of protection of vulnerable witnesses, for example.

The same powers currently exist for the Crown court presiding judge as will exist for the special tribunal presiding judge. There are circumstances in which public access can be restricted in the Crown court, such as for cases in which there may be vulnerable witnesses, or a need to protect a witness from potential intimidation. The Crown court exercises those powers very sparingly. The special tribunal will have the same powers. I do not expect it to exercise them, but again, for the reasons that I have explained, I have reserved the right for the presiding judge, not for the Government, to determine whether the circumstances require them to be used.

Generally, however, no provisions in the Bill prohibit public access, and I anticipate that the vast majority of cases brought before the tribunal will be open to the public and to public scrutiny. The only time that they will not be open will be if the presiding judge deems that they should not be, to protect a witness or prevent intimidation.I hope that that reassures both hon. Members and that they will not press their amendments to a Division.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I shall call the hon. Member for Belfast, East first, because the hon. Member for Foyle has the lead amendment. Does the hon. Member for Belfast, East want to respond to the Minister?

Photo of Peter Robinson Peter Robinson DUP, Belfast East

I do not intend to press amendment No. 43 to a vote.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

I heard what the Minister said, but if what he said is so, there can be no reasonable objection to the amendment, because all it would do is write that assurance into the Bill, albeit in a more meaningful and reassuring way.

Photo of David Hanson David Hanson The Minister of State, Northern Ireland Office

The amendment would not do that. It says:

“A person tried under this section must be tried in open court.”

As I said to the hon. Gentleman, if that tribunal was a Crown court, the presiding judge would have discretion in exceptional circumstances to restrict public access if witnesses were being intimidated or if vulnerable witnesses could not perform in an open court. The amendment would restrict the power of the presiding judge in the tribunal to have that very limited opportunity to restrict public access, as he could do if the case was brought before a Crown court.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

Again, I am grateful to the Minister for trying to make the point. We know from the other provisions, however, that there will be all sorts of limitations on whatever information is brought before the tribunal. The Secretary of State can insist on anonymity as far back as at the certification stage, and can certify that all sorts of information relevant to cases is not to be given to anyone other than to the certification commissioner and himself. I therefore do not see the need for the tribunal to have the sort of protection that the Minister mentions. In any case, if other provisions ensure that the tribunal acts with the same powers as the Crown court or the High Court, again I do not see the need for the Government to resist the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 16.

Division number 0 Nimrod Review — Statement — Clause 8 - Trial by Special Tribunal

Aye: 7 MPs

No: 15 MPs

Ayes: A-Z by last name


Question accordingly negatived.

Further consideration adjourned.—[Mr. Coaker.]

Adjourned accordingly at fifteen minutes to Twelve midnight till Thursday 15 December at Nine o’clock.