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‘(6)The Secretary of State may, by order, following consultation with the Lord Chief Justice of Northern Ireland, determine that a specific case falling under a scheduled offence, shall be subject to trial by jury.
(7)In such a case, section 75(8) of the Terrorism Act 2000 shall not apply.’.
The amendment follows on from my previous amendments. The Secretary of State can currently schedule or unschedule offences. As I understand the legislation, murder, for example, could be scheduled or unscheduled. This is a probing amendment to find out the Government’s thoughts in an attempt to bring about greater normalisation. The amendment would give the Secretary of State the power by order, following consultation with the Lord Chief Justice of Northern Ireland, to determine that a specific case within a category can be tried by a jury rather than a single judge.
The second part of the amendment states that section 75(8) of the Terrorism Act 2000, which is the provision of an automatic right to appeal if a trial is conducted simply by a judge, will not apply. If the trial were to be conducted by a jury, the normal appeal procedures would apply.
I wondered whether it would be helpful for the Secretary of State to have, by order, the power to specify not only a category of offence—let us say murder is a scheduled offence—but a certain case if he were convinced that for a particular offence in a particular case a jury could be recruited that would not be subject to intimidation, and if he were satisfied that a trial could go ahead properly. Have the Government considered introducing such legislation?
I am worried that the amendment would lead to at least the perception of discrimination between individual cases and of political interference or—to choose a less loaded word—involvement in the judicial process. If there were two similar cases, and in one case the Secretary of State decided to intervene to allow a jury trial and in another he did not, there would be a risk that the person who came off worse would complain about the result. I have sympathy with the objective, but I believe that it is risky.
It is fair to say that we were confused about what might lie behind this probing amendment. Therefore, to be of assistance, I shall explore what I think may be happening.
The amendment would create an additional mechanism for cases to be removed from the Diplock system. It would enable the Secretary of State, after consultation with the Lord Chief Justice, to order that a particular case be tried by jury. Such orders would not be subject to the unfettered right of appeal of sentence or conviction available from Diplock courts.
The current process for taking cases out of the Diplock system is well understood. The Attorney-General certifies out of the Diplock system any case that seems to him to be unconnected with the emergency in Northern Ireland. We think that the hon. Gentleman may misunderstand the process of de-scheduling, because all offences listed in the schedule are automatically tried by Diplock courts. The Attorney-General determines that the offence is not connected to the emergency and therefore de-schedules it. This process has worked well for many years, and successive Attorneys-General have undertaken the role with great care and diligence.
As my hon. Friend the Member for Broxtowe (Dr. Palmer) said, there may be some confusion; it is again is a question of understanding what lies behind the amendment. What is being proposed may be intended as an alternative to Diplock courts. The choice of Secretary of State and Lord Chief Justice seems somewhat odd on that basis, because it is a well-established principle that Ministers should not be involved in individual cases in this fashion and that the Lord Chief Justice’s interests lie in the smooth running of the courts and the management of the judiciary and not in the prosecution of individual cases. We would be concerned that involving him in the way set out in the amendment would risk placing the judiciary in the realm of the political.
I do not know whether that helps the hon. Gentleman, but we would certainly want him to withdraw the amendment, because we suspect that, for all his good intentions, he may not have understood the principle behind de-scheduling.
This is an extremely complicated issue, so I am more than happy to ask my officials to set out for the hon. Gentleman a detailed explanation in writing, which will canter through the system and explain and adumbrate in greater detail why we believe it appropriate to resist the amendment and why we think that there may be a genuine misunderstanding on the hon. Gentleman’s part in tabling it. None the less, we welcome the probing amendment, because it gives us the opportunity to set out our opposition and why we maintain it.
The hon. Member for Broxtowe made a reasonable point. As I said, this is a probing amendment to test the Government’s thinking on the issue. I would welcome such a detailed explanation and, depending on its contents, we could return to the matter on Report. Again I thank the Minister for his reasonable response and beg to ask leave to withdraw the amendment.