I am encouraged and inspired by your words, Sir Nicholas. We shall fight on to amend some of the clauses.
We need some clarification of the clause from the Minister. It relates to the type of trial that will take place if a certificate has been issued. The clause states that:
“A trial on indictment in relation to which a certificate under section 1 has been issued” by the DPP, who has gone through all the checks and decided that one of the conditions in clause 1 has been met and that there is a risk to the administration of justice, will be held at the Crown Court in Belfast,
“unless the Lord Chief Justice of Northern Ireland directs that—
(a) the trial,
(b) a part of the trial, or
(c) a class of trials within which the trial falls, is to be held at the Crown Court sitting elsewhere.”
The amendment relates to subsection (2):
“The Lord Chief Justice of Northern Ireland maynominate any of the following to exercise his functions under subsection (1)—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);
(b) a Lord Justice of Appeal (as defined in section 88 of that Act).”
I am worried by that provision, given the seriousness of the issues that we have discussed this afternoon and the nature of the cases that would be referred to non-jury trial. That is not meant as a criticism of the present Lord Chief Justice of Northern Ireland, whom I hold in the highest esteem, as, I am sure, do hon. Members right across the House.
In giving the Lord Chief Justice the discretion to nominate “any of the following”, the subsection makes reference to schedule 1 to the Justice (Northern Ireland) Act 2002. When I mention individual offices, it is not meant as a criticism of the holder; I do so because those offices are listed in that schedule. Listed among the judicial offices to which the Lord Chief Justice may delegate the serious responsibility of deciding on a non-jury trial are the chief child support commissioner for Northern Ireland; the child support commissioner for Northern Ireland; the deputy child support commissioner for Northern Ireland; the president of the Lands Tribunal for Northern Ireland, and a member of the panel of chairmen of the fair employment tribunals. The list extends to more than a score of judicial offices, including lay magistrate. Are we to understand that the chief social security commissioner, the Lands Tribunal president, a lay magistrate, or a member of the mental health review tribunal, all of whom are in listed in schedule 1 to the 2002 Act, should be tasked with the great responsibility of deciding on a non-jury trial? I should have thought not.
If we do not delete all of subsection (2), perhaps the Minister could have a rethink about to whom exactly the Lord Chief Justice should delegate. There is no criticism of his judgment. I just think that lay magistrates, chief commissioners of social security and presidents of the Lands Tribunal may be somewhat surprised, to put it mildly, if they have delegated to them a responsibility for a non-jury trial in Northern Ireland in relation to a proscribed organisation. That is the point that I wish to make with this amendment.
I agree with the hon. Lady and share her concerns. Subsection (2) allows the Lord Chief Justice to decide that a trial, a part of a trial, or a whole class of trials should be held somewhere other than Belfast. The hon. Lady read out a list of the various offices to which the Lord Chief Justice could delegate that decision. Many of the people on that list will not be legally qualified. I am concerned that they would be taking very important decisions. Members of various tribunals might not have a legal qualification. I do not think it appropriate that everyone on that list should have this power. I am not familiar with all the courts in Northern Ireland and whether they have the same levels of security as the courts in Belfast. I would certainly want the Minister to address that issue. Do other courts have the correct security facilities to protect the identity of witnesses who have been granted anonymity? The hon. Lady has raised some important points and I ask the Minister to respond.
Once again, the hon. Lady demonstrates the trouble she goes to in looking into the detail of this. I, too, looked at the list of office holders in schedule 1. She omitted to mention the president of the special education needs tribunal for Northern Ireland, who probably sits alongside some of the other people she mentioned. They all do their job perfectly well. But that is not the issue she raises here. This is a case of, “If it ain’t broke, don’t fix it.” I hope to explain to the hon. Lady why I believe that we should leave the situation alone. This provision is similar to one that already operates successfully under the Diplock court system. We see no reason to change it.
Most non-jury trials take place in Belfast in circumstances where the greatest security can be afforded. Hon. Members would expect that. Occasionally, for various reasons, it may be necessary and appropriate to hold the proceedings outside Belfast. The provision gives the Lord Chief Justice the power to make that decision. It also gives him the power, in the part of the clause to which the hon. Lady has drawn our attention, to delegate that decision to others. One can imagine the circumstances when that may occur. For example, if the Lord Chief Justice is ill, indisposed or away for some reason, it may be necessary for that decision to be taken in his absence. He needs the power to delegate.
Of course, one would expect the decision to be delegated to someone with appropriate experience and seniority. The key judgment here is not about the list. It is about the Lord Chief Justice’s own capacity to decide who in this list would be the appropriate person to take that decision. The evidence is that the Lord Chief Justice has operated a similar system under the Diplock regime perfectly well and without any cause for concern. It is therefore perfectly legitimate to continue that arrangement and use schedule 1 to give the Lord Chief Justice discretion in a way that has already worked.
I am grateful to the Minister for graciously giving way. The Diplock courts obviously preceded the list in schedule 1 to the Justice (Northern Ireland) Act 2002 of people who do their jobs very competently but are not all legally qualified. Will the Minister enlighten us as to what used to happen if the Lord Chief Justice found himself indisposed or too busy? To whom did he delegate?
The hon. Lady has got her own back. I shall need to check what happened in those days, and I will be happy to write to her—or to point out that an amendment was made in the Constitutional Reform Act 2005. I hope that that answers her question at least partly. The formulation is standard and has been used a number of times in legislation such as the 2005 Act which sets out other functions of the Lord Chief Justice. The system already operates in relation to Diplock and exists in other legislation to give the Lord Chief Justice flexibility. It has worked and we see no reason to alter it in the Bill.
I am listening carefully to the Minister’s case, which is quite persuasive, but the provision seems a incongruous part of the clause. Before we make a decision on the amendment it is incumbent on him to share with us the likely number of cases in which the Lord Chief Justice will be incapacitated and the number of such cases that have occurred under the current situation.
When I write to the hon. Member for North Down I will share with the Committee the information that I send her. If I am able also to share the numbers that the hon. Gentleman mentions I will happily do so. In 2005, only 49 cases were conducted by non-jury trial. By definition, the number of those that were delegated by the Lord Chief Justice is likely to have been small. If there are numbers that I can share, I will do so and perhaps include them in the same correspondence as the details requested by the hon. Member for North Down.
I do not wish to make heavy weather of the matter: the proposed formulation operates in other legislation and has worked in relation to Diplock. We see no reason to change it, as it works perfectly well. I understand why the hon. Lady raised the matter—she is rightly scrutinising every aspect of the Bill. I hope that I have been able to offer her some reassurance.
I am indebted to the Minister for trying to explain why the clause was written as it was. I must point out to him that there are two paragraphs in subsection (2). Paragraph (b) specifies that if the Lord Chief Justice is ill or too busy, he can delegate an important decision to a lord justice of appeal. I shall not press the amendment, but I look forward with curiosity to hearing the list of alternatives for the Lord Chief Justice. The Minister has told us that before the 2002 Act there were more than 300 Diplock court cases a year, touching on 400. I will be intrigued to find out to whom the Lord Chief Justice delegated his responsibilities then. The list in schedule 1 to the 2002 Act includes coroners, for goodness’ sake, and lay magistrates. The alternative is staring us in the face in paragraph (b). I suggest that the Minister should have a good night’s sleep and reflect more wisely on the relevant category of non-jury trials. We should not lose sight of what we are tasking the judges with; the responsibility is onerous. We have the alternative, a lord justice of appeal, upon which the Minister needs to reflect further. However, I beg to ask leave to withdraw the amendment.