I remind the Committee that with this we are discussing the following amendments: No. 3, in clause 1, page 1, line 8, leave out ‘he suspects’ and insert
‘believes, on the balance of probabilities,’.
No. 4, in clause 1, page 1, line 9, leave out ‘risk’ and insert ‘real and present danger’.
No. 5, in clause 1, page 1, line 9, leave out ‘administration’ and insert ‘interests’.
No. 6, in clause 1, page 1, line 10, leave out ‘might’ and insert ‘would’.
Thank you, Sir Nicholas. It was nice of you to describe my contribution as valuable to this Committee, particularly since I was disagreeing, saying, “No, no and no again” to the Minister’s typically persuasive and eloquent argument. The Committee will not be persuaded by his eloquence on this occasion, however, because it is inconceivable that it could recognise that the conditions outlined in clause 1 would be met to the satisfaction of the Director of Public Prosecutions and that he would also be satisfied that, because of those conditions, there is a risk that the administration of justice might be impaired. The Minister is trying to persuade us that, even though he cannot conceive of any instance in which the DPP would not issue a certificate, he is still not convinced that he should change the DPP’s discretion, which is indicated by the use of the word “may” in clause 1(2), into a duty.
The Minister eloquently reminded us in this morning’s sitting that we really have nothing to worry about, because if there is any danger at all of jury tampering, it will be picked up under the Criminal Justice Act 2003. The Act gained Royal Assent four years ago and I think that he hinted that section 44 is its key provision, but that came into force only today or this week.
It came into force on 8 January, so that is the time that it has taken the Government, in conjunction with the other relevant justice agencies, to put the 2003 Act into operation even though there is the real and present threat of jury tampering.
Let us look for a moment at what the Minister is trying to persuade us of. Section 44 of the 2003 Act came into force just a few days ago and has very limited scope. The Minister, who sits there with an angelic look on his face, knows well that that is so. It will apply only when the prosecutor makes an application to the Crown court judge, who must be satisfied about two conditions that are set out in section 44. It states:
“The first condition is that there is evidence of a real and present danger that jury tampering would take place ... The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood” is such that there would be a substantial threat to the interests of justice in the trial if it were conducted with a jury.
Section 44 applies only to jury tampering. The tests that have to be satisfied are set at a high level. The provision will be available only in limited circumstances. However, the Minister has identified the two parts of clause 1 that must be satisfied and the first is that the DPP must find at least one of the conditions outlined in the clause. It is a side issue, but the DPP might be a man or a woman as we would anticipate that in future all aspects of the judicial system would reflect gender and ethnicity in Northern Ireland. For the Committee’s information, there are 10 High Court judges in Northern Ireland, and not one is female. The positions of Lord Chief Justice and the Director of Public Prosecutions have never been held by a woman, but that is a side issue.
The key issue is that the DPP is satisfied that there is a risk that the administration of justice might be impaired. In those circumstances, it is completely illogical that the DPP, he or she, should turn a blind eye to that significant fact and not make a certificate that there should be a non-jury trial.
The Minister, by being terribly persuasive about the virtues of the Criminal Justice Act 2003, is wrong in giving the impression that there is a seamless system that will pick up, at the trial stage under the 2003 Act, those cases in which the DPP has concluded that there is a risk to the administration of justice. They will not be picked up under the 2003 Act because it sets a very high standard for the judge to come to that conclusion when the trial has begun.
The definition of risk to the administration of justice goes much wider than simply jury tapping, which is the only issue covered by section 44 of the 2003 Act. In those circumstances, it is consistent with the Minister’s own arguments that he cannot conceive of an instance when the DPP would not issue a certificate but the Minister is still not prepared to make it a duty rather than a discretion.
I would be intrigued if the Minister would intervene to give the Committee and the Chairman some examples. I know that Sir Nicholas follows our debates with great interest and passion as he chaired in his characteristically fair and kindly manner in difficult circumstances our ghastly sittings on the proposed measure in respect of on-the-run terrorists not coming before a court.
I hope that the Minister will intervene to give examples of cases in which the DPP would exercise discretion when he knows that there is a risk to the administration of justice. Why in heaven’s name not make that a duty? The Minister said that he did not want to be rigid and inflexible, but I cannot be convinced that he believes, in his heart of hearts, that it is right that the DPP should turn a blind eye to a risk to the administration of justice.
I say, in passing, that although it is a long time since the Criminal Justice Act 2003 was passed, the hon. Lady, with her experience, will appreciate that careful preparations with the appropriate training are needed for the introduction of such important powers.
I rise not to give the hon. Lady examples but to repeat what I said earlier: I do not have any examples to give. I cannot foresee any circumstances in which the certificate would not be issued when both limbs of the test are satisfied. I say again that there may be unforeseen circumstances, which I cannot predict, that may require some discretion by the DPP, but fundamentally it is a point of principle. In the end, it is for the DPP to make that decision and we leave it to him, as it is at present, to use his discretion to make that judgment. I see no circumstances in which that would happen, but we have to leave it open to the DPP.
I am grateful to the Minister for that intervention, which I invited, because he confirmed, as we believed, that there are no circumstances that he can at present envisage in which the DPP would not issue a certificate. We are trying to clarifying the legislation so that it builds confidence. I entirely share the Minister’s view that trying to get the balance right is a matter of caution—he used that word—and that may build some confidence in the criminal justice system among victims. We are talking about victims and their protection.
I see that the hon. Member for East Antrim is here on time, and very nice it is to see that. His nickname is “The late Member”. Both the hon. Gentleman and I have taken evidence in private and heard that there is real fear among the victims of organised crime, paramilitary and ex-paramilitary crime, and intimidation. We should err on the side of the victim to build confidence in the criminal justice system in Northern Ireland. That means making it absolutely clear that when the DPP recognises that there is a threat to the administration of justice in Northern Ireland, and that one of the conditions set out in clause 1 is satisfied, he will do the right thing by the victim and the criminal justice system and issue a certificate. That cannot be done under the Criminal Justice Act 2003, save in very limited circumstances.
Just as the Minister did not give examples, the hon. Lady did not. There might be cases that cause concern about the supposed discretion contained in the measures. Obviously, I oppose clause 1 for the same reason that I do not want any provision for non-jury courts beyond that contained in the 2003 Act. Is part of her concern about the DPP having discretion that, under devolution, he may be influenced by a devolved Minister or a Committee of the Assembly as to how he uses that discretion?
I am grateful to the hon. Gentleman for that contribution. However, I am not concerned about who might or might not be a future Justice Minister in Northern Ireland when policing and justice are devolved. I hope that the Government bear in mind the words spoken in the Chamber and the assurances that policing and justice would be devolved to the Assembly only when there is public confidence in the criminal justice system.
Again, I am very grateful to the hon. Gentleman for his helpful intervention, but I will respond first to the intervention of the hon. Member for Foyle.
My concern has been propelled by the fact that the Government—quite rightly—established the Independent Monitoring Commission, and sometimes it would be good if we paid more attention to the commission’s reports. I was affected by a paragraph 5.5 in its third report, published as long ago as November 2004. That paragraph highlights the staggering influence of criminal gangs in Northern Ireland and states:
“The Northern Ireland Organised Crime Task Force has stated that there are some 230 organised criminal gangs believed to be operating in Northern Ireland. We have been advised that about 60 per cent. or some 140 have paramilitary links and that, of the top 25 criminal gangs involved in international activities operating in early 2004, 17, some two-thirds, had paramilitary associations.”
This is the key phrase:
“Seldom in the developed world has this high proportion of the most serious criminals been associated with groups originating in terrorism, with an organised structure and discipline, and the experience of planning, learning and conducting sophisticated clandestine operations, methods of handling money, and with traditions of extreme violence.”
Northern Ireland has a population of about 1.7 million people. It is a small jurisdiction. I have not dreamed up the following facts and figures, and the Ulster Unionist party did not produce them. We have no time for that—we have time for so little. The Independent Monitoring Commission produced the report, highlighting that there are 230 organised criminal gangs in Northern Ireland, and that a vast percentage of them have international connections. They are very sophisticated and quite ruthless. On ruthless and sophisticated criminality, it is perfectly logical and legitimate for the Government to say to the people of Northern Ireland that when they are victims of paramilitary intimidation or of organised criminal gangs, the criminal justice system will be on the people’s side.
The Bill states that the DPP must be
“satisfied that ... there is a risk that the administration of justice might be impaired”.
When the DPP is satisfied and one of the conditions is met, he should exercise a duty to issue a certificate that sends the trial to a non-jury court. It could not be simpler or more logical, and rather than exercise discretion, it would be the right thing to do in the circumstances. I rest my case. I am simply not persuaded by the Government’s very eloquent and very nice arguments, and their approach would just be the wrong thing to do in the circumstances.
On a point of order, Sir Nicholas. I am grateful for your offer of a vote, but since the Minister has said that he will consider at least one of the amendments, we do not feel it necessary to push any of them at this stage. We may return to them on Report.
The amendment relates to a curious part of the clause. Although we were defeated on the last amendment, we have not given up on our efforts to improve the Bill. We are here jointly, no matter which party we represent, to make sure that this is a good Bill for the people of Northern Ireland.
The construction of the clause is interesting. Subsection (9) includes a definition of a proscribed organisation. As we know from our earlier discussions, the DPP has to be satisfied of two things, including one of the four conditions outlined in the clause. The first three conditions make reference to the defendant’s connection to a proscribed organisation. Condition 1 is that the defendant is a member or past member of a proscribed organisation. Condition 2 is that the offence was committed on behalf of a proscribed organisation. Condition 3 is that an attempt has been made on behalf of a proscribed organisation to prejudice the investigation or prosecution. Interestingly, the fourth condition makes no reference to a proscribed organisation. It concerns
“a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons.”
I have tabled the amendment to give the Minister an opportunity to explain the construction of the clause and why one of the four conditions, the last of which makes no reference to a proscribed organisation, must be satisfied, along with the condition that the DPP must be satisfied that there is a risk to the administration of justice. Will the Minister give examples of circumstances in which he thinks there will be a non-jury trial, not under the 2003 Act but under this Bill, where there is no connection with a proscribed organisation?
The amendment relates specifically to the deletion of subsection (9)(b), which defines a proscribed organisation. Hon. Members will be familiar with the definition in the Terrorism Act 2000. Having taken advantage of modern technology, I have a lengthy, up-to-date list of the all the organisations proscribed under the Act. I will not name them all; al-Qaeda is obviously on the list, but some of them have extremely odd titles. I am sure that the Minister is familiar with them—for example, the 17 November Revolutionary Organisation is listed. At the end of the list are the proscribed Irish groups, which include the Continuity Army Council, the Orange Volunteers, the Red Hand Commando, the Red Hand Defenders, the Ulster Defence Association, the Ulster Freedom Fighters and the Ulster Volunteer Force, to name but a few.
I would like the Minister to explain the reason for subsection 9(b), which curiously adds the condition that, in addition to the defendant being a member or a past member of a proscribed organisation under the definition in the 2000 Act, the organisation’s
“activities are (or were at the time of his membership) connected with the affairs of Northern Ireland”.
Let me give an example, which the Minister can address in his response.
If an organisation that falls within the definition of a proscribed organisation were to be responsible for a major bank robbery—I shall not mention the Northern bank, which has already been the subject of many jokes—would it be sufficient that the bank was in Northern Ireland? Would that be sufficient to meet the test in clause 1(9)(b), under which the activities of the organisation are
“connected with the affairs of Northern Ireland”?
What does it mean to be connected with the affairs of Northern Ireland? Would a bank robbery qualify, if it took place there?
Will the hon. Lady accept that when the Northern Ireland Affairs Committee took evidence on the criminal activities of proscribed organisations in Northern Ireland, it heard that those organisations’ activities often go well beyond the boundaries of Northern Ireland—for example, smuggling drugs from outside Northern Ireland or taking fuel to other parts of the United Kingdom? Although those organisations are based in Northern Ireland, their activities are not exclusively connected with Northern Ireland; nevertheless, they have the same ability to intimidate jurors, if the cases are brought to court in Northern Ireland.
It is a rare for me to be grateful to the hon. Gentleman, but I am genuinely grateful to him. He has the dreadful habit of poking fun at the hon. Member for North Down, but I usually rise above it. On this occasion, however, he is absolutely right. His point was mentioned in the 2004 IMC report:
“We understand that virtually all the most significant 25 gangs”— those are the most sophisticated organised criminal gangs—
“with international associations referred to above are engaged in smuggling or in laundering the proceeds of their crimes.”
International organised criminals certainly do not recognise the border between the Republic of Ireland and Northern Ireland. In fact, their operations are helped by the different ways in which both sides have constructed their legislation. However, that gap has been properly narrowed, and there is much greater co-operation between the Garda Siochana, the Police Service of Northern Ireland and the other justice agencies.
I would welcome the Minister’s explanation of the curious construction of subsection (9)(b). Subsections (6) to (8), which concern condition 4, make no mention of proscribed organisations, yet we move on to their definition in subsection (9). That means that we will have non-jury trials only if the circumstances meet the narrow phrasing. The good that we are doing with non-jury trials, which it is necessary to maintain in Northern Ireland, could be undermined by that phrase, and I do not see the need to include it in the Bill.
Given our earlier discussions, hon. Members will not be surprised to hear that I oppose the amendment. If it were to be accepted, those hon. Members representing constituencies on this island might start to catch on to the concern expressed by the hon. Member for Montgomeryshire that aspects of the Bill might be rolled out into UK-wide legislation. The Minister tried to assure hon. Members earlier that the focus is purely on Northern Ireland and Northern Ireland-related terrorist or paramilitary organisations. If the amendment were agreed to, the argument would be that if the Government are prepared to have non-jury trials for proscribed organisations that have nothing to do with the Irish situation in Northern Ireland, surely that would be the precedent for not having jury trials for those organisations elsewhere in the United Kingdom.
I know that the hon. Lady is trying to remove an awkward term from the Bill, and of course the term was in the Northern Ireland (Offences) Bill, too. The exemptions and certificates that were going to be afforded then were for any offence committed by anybody in relation to the affairs of Northern Ireland. I know why the term is questionable for many people, and I make that point in response to the comments made by the hon. Member for Montgomeryshire and the Minister. However, my reason for opposing the amendment is that it still does nothing to do away with Diplock courts. It does not alter the basic thrust of the Bill, which is to provide for continuity Diplock courts.
As ever, the hon. Member for North Down does the Committee and the process of consideration a great service by tabling amendments that allow us to face, debate and explore the issues raised by the Bill. Sometimes amendments are pushed to a vote and sometimes they are withdrawn. That is the spirit in which such things should be done. I have served on a number of Standing Committees with her, on both home affairs and Northern Ireland affairs, and she always pursues the issues in the way in which she has this afternoon. We are all indebted to her for that.
In response to her questions about why we include a fourth condition in the first limb about religious or political hostility, we do so because incidents, events and crimes might reflect the religious and political hostility that has, I am sad to say, been a feature of Northern Ireland for far too long, and there could be evidence of that but no evidence that the perpetrators were involved in a proscribed organisation. The hon. Lady might say that that is not likely, and perhaps it is not, but if the Director of Public Prosecutions had evidence that people or a defendant were involved in political or religious hostility but could not show that they were members of a proscribed organisation, it would be wrong if the option of the non-jury trial was prevented in such circumstances.
Let me take the example of Whiterock. If there was evidence that a defendant was involved in the kind of hostility that marked that dreadful event in Northern Ireland—related as it clearly was to political and religious hostility—but it was not possible to show that they were a member of a proscribed organisation, the fourth test in the first limb would enable the DPP to issue a certificate. Our motivation is to ensure that all eventualities are covered in relation to the conflict and criminality with which we are trying to deal, which is the most serious criminality in Northern Ireland.
We are trying to limit the power in our provisions in a way that reflects the particular and ongoing risk in Northern Ireland. The kind of difficulty that arises from the way in which proscribed organisations—there are 14 in the list—relate to local communities and the hold that they have over them would undermine juries and the judicial process. We seek to deal with that, but with that alone, and we do not want to extend the provisions beyond the proscribed organisations that relate to affairs in Northern Ireland. We do not want to include al-Qaeda and other international terrorist organisations within the provisions. To answer the hon. Lady’s sharp question about the Northern Bank, if al-Qaeda had carried out the Northern Bank raid that would not be covered by the provisions. If one of the proscribed organisations listed in relation to Northern Ireland had carried it out, that would be a different matter.
I confirm that in subsection (9) we are talking about an organisation
“whose activities ... are connected with the affairs of Northern Ireland”.
That shows a distinct relationship between the organisation and the affairs of Northern Ireland. As desirable as it is that the perpetrators of any al-Qaeda operations are brought to justice, it could not be done on a certificate issued by the DPP under the Bill’s provisions. Only those connected with proscribed organisations related to the affairs of Northern Ireland could be so brought to trial.
Does the Minister accept that increasingly many of the terrorist organisations based in Northern Ireland are involved in international criminal activities, according to briefings by both the police and the Government? Those criminal activities may stretch to mainland Britain or the Republic of Ireland. If the people responsible are apprehended in Northern Ireland and there is a danger that they would seek to intimidate a jury, would the case be required to go to a jury trial because the activities were not connected to Northern Ireland? Would a trial be heard in a non-jury court for criminal activities that take place outside Northern Ireland?
My response to the hon. Gentleman continues my response to the hon. Member for North Down. We do not have evidence of jury intimidation by members of international terrorist organisations that have nothing to do with Northern Ireland issues, but we have evidence of proscribed organisations in Northern Ireland intimidating juries. Therefore, the provisions will protect juries and justice to ensure that trials can be conducted properly. We do not have evidence that international terrorists are intimidating juries in Northern Ireland so that justice cannot be done. If we had such evidence, we might look at the situation again. The only evidence we have relates to Northern Ireland proscribed organisations, and that is why the legislation focuses on that issue alone.
In the circumstances highlighted by the hon. Member for East Antrim, in which a proscribed organisation in Northern Ireland has links with international terrorist organisations, those matters relating to members of the proscribed organisation in Northern Ireland could be dealt with under the provisions of the Bill. Matters relating to members of other organisations could not.
We are seeking to ensure that we have a provision for non-jury trials, because that is still necessary in view of the risks that exist in Northern Ireland. However, we want to balance that by trying to focus the powers as narrowly as possible within the agreement. We need to continue the provisions in some form for the future.
Mark Durkan rose—
The measures apply to people who are, or who may have been, members of proscribed organisations. Given the Government’s repeated statements of satisfaction, and the glowing tributes they have paid to the position and stated future intentions of the IRA and the Provisional IRA, have any assurances been given that they do not envisage the measures being used against anyone who was a member of the Provisional IRA?
Considering that we have not agreed on anything in our proceedings, the spirit remains positive, and I thank my hon. Friend for that.
When we look at the list of proscribed organisations relating to Northern Ireland, we see that, interestingly, the Provisional IRA is not on it. The Irish Republican Army, which covers a number of organisations including PIRA, the Real IRA and Continuity IRA, is on the list. I assure my hon. Friend that there is no hidden agreement lurking around. The IRA remains a proscribed organisation, and there are no plans to change that.
I hope that I have helped to clarify the position for the hon. Lady and that she accepts the argument. We are seeking to ensure that the powers to have non-jury trials when necessary are limited to circumstances pertaining to Northern Ireland.
I am most grateful to the Minister for trying to explain why the clause is constructed as it is. I take the view that there is no such thing as a good terrorist or a bad terrorist. There should not be a distinction between home-grown terrorism in Northern Ireland or on the island of Ireland and vicious, nasty, murderous terrorists, such as al-Qaeda. We have seen what they can do. We saw, not far from here, in London on 7 July the absolute havoc that they can wreak.
Two al-Qaeda suspects have been arrested and charged in Belfast. I am sure that the case is sub judice and so I will not say anything more about it. These organisations are ruthless and have murderous intent. They have no comppassion for their co-religionists or anyone else in the pursuit of their political aims. In my book, when we have a lengthy list of proscribed organisations in the 2000 Act, I do not want the distinction that we have non-jury trials only for those home-grown terrorists. They are not better terrorists. Terrorism is terrorism, as far as I am concerned.
I appreciate the Minister’s efforts, valiant as ever, to explain why the clause has been constructed as it has and why it focuses on home-grown terrorism, but it is just not an argument that I can buy into. I am sure that he did not mean this, but he said that the whole provision is to protect juries. With the greatest respect to him, and he knows that I hold him in the highest esteem, the whole provision is not just about protecting juries. It goes much wider than that. The Liberal Democrats alluded to this when we did not adopt their amendment, although the Minister is going to consider it. There is a risk that the administration of justice might be impaired. That is wider than the intimidation of juries; it means the intimidation of witnesses.
It is difficult to ask people to come forward and appear in a jury in a small jurisdiction with international press coverage. We have a lot of press coverage in Northern Ireland for a hole host of reasons, sometimes the wrong reasons. We have a lot of media attention. It takes a very courageous man or woman to step in as a witness in the case of an al-Qaeda terrorist who has committed atrocious crimes in Northern Ireland or who has been associated in some other terrorist activity in Northern Ireland which might affect all of the United Kingdom.
We have an opportunity in this Bill. As the hon. Member for Foyle said, we do not want to have to come back to amend it. So let us get it right when we have the chance to do so. Let us not just legislate for the present. Let us take into account what the Prime Minister told us at the end of last week: it will take at least a generation to defeat this kind of international terrorism.
The hon. Lady argues passionately about this. I understand why. She condemns international terrorism as much as the rest of the Committee, but does she have any evidence that international terrorist organisations that have no specific interest in the affairs of Northern Ireland are threatening and intimidating either witnesses or members of a jury in Northern Ireland? If she does, I would be pleased to look at it.
Whether or not there is evidence of specific cases, does the hon. Lady agree that if international terrorist groups are linking themselves in the supply of drugs, smuggled cigarettes and arms to groups in Northern Ireland which are prepared to intimidate jurors on behalf of their members, they are equally likely to intimidate jurors on behalf of their associates?
Again, I am grateful to the hon. Gentleman for that helpful intervention. He is in sparkling form this afternoon. He is absolutely right. He sits on the Northern Ireland Policing Board, which I do not, so he has access to information that I do not see. His intervention was spot on.
We have evidence, documented by the IMC, that there are international links with sophisticated criminal gangs in Northern Ireland. It beggars belief that the Minister is asking the hon. Member for North Down to identify and to give evidence of intimidation. I take my hat off to the people who very courageously come to my constituency surgery on a Friday evening—they want to sit in the back office and do not want their names mentioned anywhere at all—to give information about neighbours who will slit the throat of their own dog to make sure that they are not awakened and that nobody’s attention is drawn to the fact that they are shifting drugs late at night. We are talking about utterly ruthless people. Those who come to me to say that they are prepared to allow their homes to be used for police surveillance are enormously courageous. I do not in any way diminish the threat.
In fairness to the people of Northern Ireland, we should be much more realistic about the future dangers to the whole of the United Kingdom. That includes Northern Ireland, which, as I pointed out this morning, can be accessed through many ports in the Republic of Ireland, through Shannon and through Dublin. There are no manned borders—we no longer have checkpoints.
I want to get this legislation right. The Minister has argued that there should be a discretion for the DPP. I disagreed, but we all want to get the legislation right now, so that we do not have to come back later and amend it to take account of changing circumstances. For goodness sake, let us allow for flexibility instead of tying the hands of the DPP. The Minister has managed to argue against himself in the last 15 minutes. He wants us to give the DPP discretion in circumstances that he cannot identify, but would also tie the hands of the DPP. Let us not give al-Qaeda or any other hideous proscribed terrorist organisation a fair wind through Northern Ireland to wreak havoc, and then stand back wringing our hands in regret when somebody is dead. Let us accept the amendment today and not argue about it. Accept the amendment and give flexibility to the DPP. I rest my case.
I am encouraged to know that you have been on your own on many occasions, Sir Nicholas. I am most grateful for the right thinking of the hon. Member for East Antrim—a rare occasion. I will move on swiftly, before the hon. Member changes his good mood.
I take my hat off to whoever drafted this legislation, which is full of all sorts of idiosyncratic drafting, not least subsection (10):
“For the purposes of this section a person (A) is the associate of another person (B) if”— then there is a definition and we have a number of choices:
“(a) A is the spouse or a former spouse of B,
(b) A is the civil partner or a former civil partner of B,
(c) A and B (whether of different sexes or the same sex) live as partners, or have lived as partners, in an enduring family relationship,
(d) A is a friend of B, or”— lastly—
“(e) A is a relative of B.”
My amendment would leave out the curious five words—
“in an enduring family relationship”.
I cannot understand why they have been introduced only in paragraph (c). We need the Minister to explain the meaning of “an enduring family relationship”. Does “family” mean that there have to be children? With regard to paragraph (a)—
“A is the spouse or a former spouse of B”— it does not matter that there was not an enduring family relationship, with no children. With civil partners, it does not have to be an enduring family relationship. In heaven’s name, why has the phrase only been introduced in paragraph (c)? It stands out because it is so unusual and odd in the examples given for the definition of “associate”. I do not see any rhyme or reason for that and I would like the Minister to explain in his usual wonderful style—colourful and imaginative—why “enduring family relationship” has to be here. Why “enduring”? Why “family”? Are children involved? Why are those words not included elsewhere in subsection (10)?
Amendment No. 7 would delete paragraphs (d) and (e), where an associate is defined as a friend or a relative. The amendment returns to a point that we made on Second Reading. I believe that the definition of “associate” is generally too broad and has to be tightened.
Paragraph (d) defines an “associate” as “a friend” and paragraph (e) as “a relative”, but how do we determine whether a person is a friend or relative of another person? The terms are open to many differing interpretations. For example, two people might be cousins but might not have seen each other since childhood. On the other hand, are we going to include second, third or fourth cousins? Where do we stop? That is an important issue as to whether or not a trial is conducted with a jury.
I want the Minister to tell us whether “friend” or “relative” have been used in other legislation. Is there a legal precedent to determine their definition? Unless the Minister can convince us, the terms are far too vague to be included.
I am following the hon. Gentleman’s argument. Does he not believe that there is a distinction between friends and relatives? I understand his point about third and fourth cousins, but whether someone is a relative can be determined fairly, which is not necessarily the case with a friend.
The hon. Gentleman makes an important point—relatives and friends are different. The Government should list relationships that will count, but that would be impossible in the case of friends. If they do not do that, the wording will be far too vague.
Does the hon. Gentleman accept that although the terms “friend” and “relative” are fairly vague, the second condition must also be met? Whatever relationship exists, there must still be a risk that it will lead to jury tampering or the intimidation of a juror.
I accept that there has to be a risk, but without definitions of “friend” and “relative” the wording is far too vague. We should remember that under the clause the DPP has the absolute right to take decisions and cannot be challenged by a court. If the DUP—I mean the DPP—[Interruption.] I hope that it will not be the DUP that takes the decision. The DPP will take the decision, so we need clear definitions. As I said, we do not know where the definition of relative will end. I hope that the Minister will give examples from other legislation and reassure us that the definitions are clear.
For the same reasons as others, I do not support the amendments, although I have some sympathy with the points made in support of them. When reading subsection (10) I begin to feel as though I am at a meeting to put together the bones of a soap opera: A can be the spouse or former spouse of B, his civil partner, friend, relative and so on. Those definitions are clearly wide.
The most disturbing point that the Minister made was that the certificate will not indicate the grounds being used to justify it. A defendant will not know whether they are being sent for a non-jury trial because of a relative, friend or other reason. No information will be given: neither the defendant nor the court will know. That will put people in an impossible situation.
Does the hon. Gentleman agree with the half-facetious point that since almost everyone I have met in Northern Ireland, apart from a few Estonians, are relatives or friends of each other, this is the Government’s back-door way of abolishing jury trial in Northern Ireland for ever?
That could be so. In fact, in many parts of Northern Ireland the word “friend” is used to mean a relative. To say that somebody is your friend indicates that they are a cousin or that there is some family connection. I doubt whether Ministers were aware of that subtlety of dialect in parts of Northern Ireland.
The clause and other provisions in the Bill will mean that people affected by the list in subsection (10) will not know on what grounds they have been given a non-jury trial, and they will not be able to say anything. I can imagine that a defendant might well be puzzled and stressed and want clarification of what has been said about him.
Many people in Northern Ireland are related to those who have been members of proscribed organisations, but have themselves never given those organisations any support and have views diametrically opposed to theirs. There may also be many people in senior positions with such relatives. So although I have a lot of sympathy with the attempt to restrict the list, the problem is that it does not go far enough, because I do not think that we should be making the provision for non-jury trials at all. That is why I would not strongly oppose the amendments. However, because of my reservations about continuity Diplock courts, I will not support them.
The hon. Member for North Down has asked why the provision concerning enduring family relationships in clause 1(10)(c) has been included. The reason is that we need to say more about the nature of the partnership. Other subsections refer to the spouse or former spouse, civil partner or former civil partner, and the nature of those relationships is defined in legislation, so there should be no confusion. However, in paragraph (c), we need to define the nature of the partnership. Business partners could not be included, for example.
Because we are defining very precisely what we mean by partners in an enduring family relationship—people who share a life together. “Enduring” implies a length of time. “Family relationship” implies sharing a house and common facilities, which normally happens in families. We do not intend the provision to cover business partners, romantic partners or people who meet up every day of the week at the same time and place to go to the same pub and carry on the same activities. They will not be caught by the provision.
I say again to the hon. Lady, as gently as I can, that it is important to ensure that we have the capacity for trials without jury in Northern Ireland—for all the reasons that we have heard, we want to limit them for use only when required. The provision explains the meaning of the term “partnership” in the present circumstances. The term “enduring family relationship” explains that the context is a length of time and shared household facilities. Those matters are defined in statute in relation to spouses and civil partners, but they are not defined in respect of other relationships.
In that case, I admit to being confused as to what the Government are trying to achieve. To qualify under this provision surely means that there is some kind of relationship. As the hon. Lady has said, what difference does it make whether the relationship is an enduring family one or one in which the parties live together? If they live together, could they not qualify to some extent as friends? That may not necessarily be the case, but given that paragraphs (d) and (e) are so broad, I should have thought that they would. The Minister has said that business partners would not qualify, but surely business partners have pretty much an everyday relationship.
It may well be that in that kind of relationship the description “friend” would be adequate. What we are seeking to do in paragraph (c) is to extend what is covered by paragraphs (a) and (b). Paragraph (a) clarifies that spouses are covered, and the term spouse is defined in legislation. Paragraph (b) covers civil partners, which is also a term defined in legislation. There are other people, however, who live together in enduring family relationships and who are neither spouses nor civil partners. We simply wanted to extend the explanation of the provision’s intention by including an additional paragraph, which seeks to describe people who share a family relationship over a period of time who may not be spouses or civil partners but who may have an enduring family relationship. It could even be that they are friends and that they qualify in that way, but we do not want there to be the possibility of omitting them. It is important that such situations are brought to the attention of the DPP, which is why the provision has been included.
In looking for an explanation for paragraph (c), the hon. Gentleman needs to look at paragraphs (a) and (b), not paragraphs (d) and (e). We are seeking to fill a small gap in our explanations.
In which case, the Minister needs to explain the definition of “friend” and explain the process by which the friendship will be proved. He must be aware that, if he is trying to avoid the risk of corruption, there will be a strong incentive for people who are friends not to admit it.
The hon. Gentleman invites me to move on to my next point, which I am happy to do, and to respond to the points made by the hon. Member for Argyll and Bute.
The DPP will have to make that judgment, as he will have to make a similar qualitative judgment in relation to the description of “friend” and “relative”. There is a qualitative judgment to be made, and it will be for the DPP to make it. We do not seek to prescribe that in absolute terms, as the hon. Member for Argyll and Bute has suggested that we might.
If we were to accept the amendment tabled by the hon. Member for Argyll and Bute, the only people who would be covered by the provision would be current or former spouses, civil partners or people living together
“in an enduring family relationship”,
which would leave a large gap in the provisions. If he feels that the clause is drawn too widely, there is always the second limb of the test, which states that there has to be a risk of the administration of justice being impaired. I remind him that the test in clause 1(10) is not a casual one and does not stand on its own, but sits alongside the test regarding administration of justice.
Under the hon. Gentleman’s amendment, if evidence were brought to the DPP’s attention that a major player—a leading member of a proscribed organisation—was making preparations to intimidate jurors because his son happened to have been charged with a serious offence that was about to be heard by a jury in court, the DPP would not be able to issue a certificate, which would leave a large gap in our provisions. Although the nature and quality of the friendship or family relationship, or the length of the enduring family relationship, is a matter for judgment, it is important that the DPP can exercise their judgment, otherwise some serious cases could be missed, certificates might not be given and there could be major threats to and intimidation of juries and witnesses in Northern Ireland. We want to avoid that, which is why these provisions are necessary.
I invite the hon. Member for Argyll and Bute to withdraw his amendment.
I am grateful to the Minister for trying to explain the drafting of clause 1(10). He has made a good effort, but I think that we are splitting hairs. For example, in respect of a spouse, we have no idea how lengthy the marriage will be; we just know that a box will have been ticked and that the people were married at some stage. If we are talking about a former spouse, we know only that they were divorced or separated at some stage. There is no requirement for consideration of the length of time that the marriage may have lasted—it does not have to be enduring.
Unfortunately, although the Minister has acknowledged that the Government were hoping to cover a relationship, including a house and all the things that would show some sort of commitment, he did not answer my specific question about whether that means that there have to be children. The term “enduring family relationship” implies more than owning a house, which is the only thing that the Minister has alluded to. We have given the DPP a major headache in trying to decide who falls into the categories in subsection (10).
As always, I am seeking to clarify the points. It is not necessary for there to be children within an enduring family relationship. A family can exist without children, so there may or may not be children.
That is the answer that I expected the Minister to give, because, of course, paragraphs (a), (b), (d) and (e) do not mention family. Paragraphs (a) and (b), in particular, do not mention having a family or having children. It would have been ludicrously discriminatory if the provision depended on the presence of children when people live together as partners, but not in the cases of civil partnerships and marriages. That would not have been a tenable position.
I would be happier if the Minister were to say to the Committee that he and his officials will reflect on the matter, because I have some difficulty in deciding whether, for example, paragraph (b) refers to a civil partner or a former civil partner. Surely that cannot be mutually exclusive of being a relative or, indeed, a friend, which are categories (d) and (e).
The list is very difficult, and we are giving the DPP a difficult task.
Let me try to be constructive. There are issues here which will divide this Committee, because there are issues of principle and genuine disagreements. In trying to set out a definition, we are seeking the best and the tightest definition. I discount proposals, however, that we should leave out relatives and friends, because I think that they should be included. We are trying to define the nature of a family relationship. Some of this is already set in statute, and some of it is not.
I will reflect on our discussion. If there is a better way of expressing this, I would be more than happy to come forward with a suggestion. If there is not, the hon. Lady will at least know on Report that I have thought about it.
Because clause 1 contains a great deal of the meat of the legislation, I am prepared to allow what I hope will be a short stand part debate. Hon. Members may raise matters that we have not discussed in concentrating on the main issues raised by the clause. This is, therefore, a clause stand part debate.
I am grateful for this opportunity. However, it will not be constructive if we all simply repeat the arguments that we have already made. I would like to discuss why I oppose the clause as it stands.
The Minister has not taken on board our strategic concerns about not permitting a judge to be at the heart of the issue of a certificate. His adherence to an administrative approach is profoundly wrong for the reasons that we have discussed. Given the debate that we have just had, it is quite obvious that many of us have the gravest reservations about what the definitions actually mean. I was only half joking when I said that it will be difficult to find individuals who do not fall foul of all the conditions—a large proportion of the Northern Ireland population is related to itself. In addition, if individuals try to cheat the system, they are unlikely to volunteer information regarding their relationship with other people. The Minister must give some thought to that.
I am encouraged by Minister’s indication of his willingness to consider the import of amendments Nos. 3 to 6, and I hope that he will take on board the points that my hon. Friend the Member for Argyll and Bute has made about the wording, which is once again vague and leaves great latitude for interpretation. That latitude is bound to be taken advantage of by those people who have evil intentions. It would make it easier for everybody if, on reflection, he chose to make a few minor modifications, perhaps in line with what the hon. Member for North Down has suggested.
I shall avoid rehearsing a number of the points that we have dealt with earlier.
I oppose this clause. We have already discussed the detail of the provisions involving the DPP and the circumstances in which the non-jury trial option might be used. We have also touched on the Secretary of State’s comments on Second Reading that national security and intelligence matters could be considered in that. I want to share one of our fundamental concerns with the Committee, which is that the provisions have implications for how things will work out and be seen to work out in the devolution of policing and justice. The clause gives a key role, which is quite controversial, to the DPP to do something that the Government have assured us would not be provided for.
The joint declaration of 2003 made it clear that the emergency provisions were going to go. The Government amendments to the Terrorism Act 2003 gave effect to the commitments in the 2003 joint declaration, but now they have been reversed. When those amendments removed the Diplock courts and made sure that they would not exist after July 2008, we were also debating the options for the devolution of justice and policing.
Anyone looking at those debates taking place in parallel would see that, with the arrival of justice and policing devolution, a devolved Minister would not be in a position to face questions about decisions on the use of non-jury trials, even though he they might have their own views or concerns. They would not be in a position to know why such decisions were taken, because, as the Secretary of State suggested on Second Reading, the DPP would be taking them on the basis of receiving information from MI5 or a similar source. The devolved Minister—a devolved committee in the Assembly might also be interested or concerned, because no doubt lawyers, defendants and other people would be writing to it—would be in the difficult position of having to say that they knew nothing, could know nothing and potentially could do nothing.
Will the hon. Gentleman enlighten the Committee: does he believe in an independent prosecution service? We legislated for such an independent prosecution service not so long ago in this House. I greatly admire the independence of the DPP and hate the thought of a politician being able to call them up and influence their decision. Do the hon. Gentleman and his colleagues not support the idea of the independence of DPP within the Public Prosecution Service?
I assure the hon. Lady that we absolutely do. I did not say that any Minister would wish to influence decisions; I said that they would not be in a position to know why decisions were made or anything else about them. The fact is that a Minister will inevitably face questions, whether they are from lawyers, defendants or members of committees.
If there is a pattern of non-jury trials and no information is given in the certificates, people will say that we should at least know on what grounds people are being referred to a non-jury trial. People will question the procedure and protest the fact that they cannot know why the certificates were supposedly issued. Lawyers will protest at that.
If a devolved Minister is meant to simply defend the status quo, then they will be is in a very constrained and difficult situation. That is why we said on Second Reading that the Bill is pregnant with implications and complications for the devolution of justice and policing. Perhaps the Minister will clarify the plans for the devolution of justice and policing. The provisions are not renewable but permanent. Will the amendments be subject to Westminster legislation or can they be altered, amended or repealed by the devolved Assembly after devolution? Will the Minister clarify which it is to be? If they are to be amended by the Assembly, I assume that cross-community support will be needed before they can be altered.
In a sense, the Bill means that Diplock courts will be born again just ahead of the devolution of justice and policing. They will become part of the suite of devolved justice arrangements, which can be changed only on the basis of cross-community support. On current form, that will not happen unless and until the DUP says so. Not only will we have continuity Diplock courts, but essentially we will have DUP-lock courts. Again, I ask the Minister whether Sinn Fein fully realises that. Is Sinn Fein in on it, or has it slept in?
As you rightly say, Sir Nicholas, this clause is the meat of the Bill and it has been discussed for the best part of two sittings, as is right, so I shall keep my remarks short. I entirely understand where the hon. Member for Foyle is coming from. That said, I support the clause because it at least moves in the right direction. It shifts the emphasis and makes a presumption for a trial by jury. The reasons why a trial should not be by jury have to be shown, although I accept that they do not have to be shown to the defendant.
I retain my concern. I listened to the Minister carefully and I think that it should be a matter for the Lord Chief Justice of Northern Ireland to decide. I am still concerned that the person who will carry out the prosecution will decide on the mode of trial and I do not think that that is correct. However, that is not a strong enough objection to cause me to vote against the clause.
We discussed subsection (10) fairly briefly, and a number of interesting points came up. I accept that it is difficult to determine what an associate is, but with respect to the Minister the debate showed that there are a number of holes in the attempt that has been made. He generously offered to go away and consider it, and I urge him to do so as there are a number of holes. I cannot see why the words “enduring family relationship” are used. It is difficult to define a friend. I cannot see why a business partner should not qualify or why a spouse or parent should not qualify, too. However, with those few comments I shall give the clause fairly guarded support, but support nevertheless.
Despite the support that I have given to some of the amendments moved by the hon. Member for North Down, I do not believe that they are sufficient to cause us to vote against the clause in its totality. We believe that non-jury courts are essential in some circumstances in Northern Ireland. The implication in some of the opposition to the use of non-jury courts is that somehow or other the justice in non-jury courts is different from or of a lesser standard than that in a jury court. That was never the purpose of non-jury courts; the purpose of non-jury courts was to ensure that justice was done. Justice was done by stopping the interference of those who would wish to subvert the justice system by intimidating jurors. That is one of the reasons that I do not have a great deal of concern about the continued use of non-jury courts. I see them as a means of ensuring that the integrity of the justice system remains and is protected, and that people who would have been guilty of horrific offences are brought to justice.
Is not the hon. Gentleman conscious of the fact that he can achieve that quite straightforwardly by relying on the Criminal Justice Act 2003? We do not need separate and distinct legislation for Northern Ireland to achieve that goal.
I do not accept that. Clause 1 quite clearly gives the scope to the DPP if he is sure that certain conditions have been met. We have discussed whether those conditions are tightly defined. He must be satisfied that there is a risk to the administration of justice. I believe that the safeguards are sufficient.
I do not accept the point made by the hon. Member for Foyle that the provisions will make the devolution of policing and justice more difficult. If anything, they will probably build in a further safeguard for those concerned about that devolution and whether community confidence is sufficient for it to work. Those who would want to question a Minister about why a case is being taken to a non-jury trial would do so with one view—to change the outcome. They would be seeking ministerial interference. In the context of Northern Ireland devolution and the administration of policing and justice, a situation that allows even the thought that the administration of justice might be interfered with in that way would make it more difficult to gain the confidence required for devolution.
First, questions or representations to a Minister might well come in circumstances where somebody finds themselves subject to a non-jury trial and they or their legal representative challenge the decision. It is as much as if to ask, “How can you be the Minister for this? Is this what you signed up for? This isn’t what you as Minister promised us would flow from the Good Friday agreement.”
Secondly, Members of the Assembly might want at the end of a given year or longer period to question the pattern of use of the power, or might have concerns about the number of times that it has been used, but there is nowhere particular for those questions to go. The hon. Member for North Down said earlier that I was trying to fetter or qualify the independence of the Director of Public Prosecutions, but we heard from the Secretary of State that the DPP will be influenced by MI5. Elected politicians will have no way of knowing what is going on and will not even be allowed to ask.
I note the hon. Gentleman’s remarks, although I must say as a member of the Northern Ireland Policing Board that of course Members had questions on many occasions about why the police had done something or not done something else. When it was explained that security issues were involved and therefore the police would not discuss it with the Policing Board, I never noticed SDLP Members jumping up and down. They accepted that there would be times when, in the interests of security and the protection of intelligence sources, such issues could not be discussed. There is an acceptance that it is not always possible to discuss devolved issues in public or for them to be open to public scrutiny.
I return to the point that I made at the start, which is that the reason why many would want the Minister to have input is exactly so he could influence. If that were ever introduced, the devolution of policing would be made that much more difficult. In his own remarks the hon. Gentleman indicated that it was a divisive issue in Northern Ireland and the fact that he said that, were it to be subject to a cross-community vote it would not get through the Assembly, shows that it is still a confidence issue. For that reason, the Bill’s approach is correct and we shall support the clause.
There is just one thing that I want the Minister to make clear. In respect of clause 1, I am concerned about voting for a massive increase in non-jury trials in Northern Ireland. What does the Minister estimate will be the difference between the current and future situations if the measure is passed?
When my right hon. Friend the Secretary of State said in August 2005 that we would repeal part 7 of the Terrorism Act 2000, it was made clear that the issue of non-jury trials would require further hard thinking and decisions. A considerable amount of work has been done since then to deal with the issue in the context of a reducing number of non-jury trials under the Diplock system—there were 354 in 1987 and 49 in 2005. However, if there were jury trials in all cases there would still be a serious risk of jury intimidation and that justice would not be done.
We resolved to find a way of changing the presumption in favour of trial by jury but ensuring that in the small number of cases in which it was necessary a non-jury trial would still be available. We adopted an administrative approach to the decision making; some hon. Members disagree with that but we believe that it is right way to go, given the sensitive information that is often dealt with. The DPP is in a good place and has the right kind of experience and knowledge to make that decision.
Clause 1 describes the statutory test and states the conditions in respect of membership of proscribed organisations and the nature of religious and political hostility. Subsection (2)(b) describes the crucial second limb of the test: a risk that the administration of justice might be impaired.
I agreed to take away and consider at least two issues raised in the debate and I will of course look at the whole debate carefully, too. I am prepared to consider seriously the wording “administration of justice” and “interests of justice”, as suggested by the hon. Member for Montgomeryshire, although with no commitment as to the outcome. I will also look again at the issue of family relationship to see whether we can find greater common ground.
My hon. Friend the Member for Foyle raised the devolution of justice and policing. I will not widen the debate further from the exchange between the two hon. Members, but there is considerable discussion to be had on that matter. In relation to the Bill, we need to give the issue some thought because it is a criminal justice matter, and criminal justice can be devolved, but it also relates to issues of national security which, as my hon. Friend knows, will not be devolved.
I want to think a little more about the matter and I may write to the Committee outlining our current thinking in order to inform our future debates.