On a point of order, Sir Nicholas. I know that my timing is marginal, but I should like to speak to the clause. I seek your judgment in that case, because I am merely an honest broker doing my best.
I apologise, Sir Nicholas. I have full faith in the ability of the Committee, including my hon. Friend the Member for Argyll and Bute, to cover the other matters, but I do wish to make a point about clause 7.
Once again, it is not necessary to repeat everything that was said on Second Reading, but there are significant issues about the clause. In essence, clause 7 is objectionable because it just does not take account of the observations of the Joint Committee on Human Rights on this issue. My party did not oppose the Bill on Second Reading, but I did say in the debate at that time that if clause 7 were not removed or massively altered, we would not support the Bill on Third Reading.
The key reason for opposing the clause is one that has already been indirectly alluded to by the hon. Member for Foyle. Not only is there no provision in the Bill for an appeal against a decision of trial without jury, but appeal is expressly prohibited. We believe that that is completely wrong. Furthermore—in my judgment at least—it cannot be right that the Director of Public Prosecutions can issue a certificate for a trial to be conducted without a jury, without the defendant even having any means to make representations to the DPP, or having any means of appeal.
A similar proposal was made in the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2004. What was then clause 11 of that Bill would have inserted new section 108A in the Nationality, Asylum and Immigration Act 2002. That provision would have cut off all appeals and judicial review by the ordinary courts on immigration matters. It would also have excluded habeas corpus applications in immigration cases. At the time, the Joint Committee on Human Rights issued a damning report on the provision. It stated that the Committee regarded the proposed restriction as
“inherently objectionable as an attack on an important element of the scheme for protecting Convention rights in the United Kingdom.”
That quotation comes from paragraph 1.28 of the Committee’s third report, dated 19 January 2004.
Despite attempts by the Government to assuage the Committee’s concerns, a second report stated that
“it could be strongly argued that the ouster of judicial review of tribunal decisions contemplated by clause 11 has not been justified by any argument advanced by the Government. There is a real danger that this would violate the rule of law in breach of international law, the Human Rights Act 1998 and the fundamental principles of our common law.”
That was in paragraph 71 of the Committee’s fifth report, dated 2 February 2004. As far as I am concerned, the provisions before us are the same—albeit in a different piece of legislation—and are equally objectionable.
Does not the hon. Gentleman agree that the issues here are different? In the present context, we are talking about life and death matters, because if the detailed reasons for the director’s decision were to be effectively challenged in court by judicial review, it would be necessary to go into much more detail in public than is foreseen, for the reasons we have discussed. I agree with the hon. Gentleman that in an immigration case there is a case to be made for doing that. In the present case it seems to me that there is potentially a real risk.
I have no doubt that the hon. Gentleman believes that there is a difference, but I do not share his view. The principle is the same. Although it may be argued that immigration cases have a different magnitude, let us recognise that those cases too can be life or death matters that can divide or unite families. For me, the important point is that the proposal would set a precedent that was rejected in earlier legislation: if it were allowed to pass, it would set the precedent of acceptance of the opposing view in a piece of British legislation. It would be inconsistent for the Liberal Democrats—or anyone concerned about the human rights consequences of the earlier legislation—to support such a provision now.
Clause 7(3) actually says:
So if my understanding is correct, the provision says that the Human Rights Act is subjugated by clauses 7(1) and 7(2). In other words, the clause itself sets out a hierarchy of priorities in terms of rights, and indicates that it is required in order to subject the Human Rights Act to a process of relegation—in order not to fall foul of that statute.
That is our case; that is why we are opposed to clause 7. The only way for the Minister to convince us otherwise would be to explain why it is not similar to the precedent defeated previously. He will have to say why the observations of the Joint Committee on Human Rights on that previous legislation, which was very similar, can be disregarded on this occasion. I doubt that he can.
The clause presents one of the most draconian aspects of the Bill. Unlike the provisions of the Criminal Justice Act 2003, under the Bill, the DPP does not have to apply in court to have a case tried without a jury. However, the clause goes much further: it makes it impossible to question or to challenge that certificate by way of judicial review. That runs totally contrary to the Government’s own consultation paper, which stated that
“As with other administrative decisions, the DPP’s decision will be judicially reviewable.”
It also runs contrary to the recommendations of Lord Carlile, who clearly believed that the decision on certification should be judicially reviewable.
I say in passing that the fact that the Government can be so dismissive of such a significant view is one reason why we have no faith in what the Government offered last week about MI5—that we should be assured that Lord Carlile will be reviewing it annually.
The Government have already told us that the provision merely reproduces the result of the Shuker case. In that case, it was decided that the decision of the Attorney-General to deschedule was
“a procedure on which the courts should be reluctant to intrude”.
If so, and if the courts had already established for themselves that it was a procedure on which they should be reluctant to intrude, why is it now necessary to go further? Why is it necessary to ensure that the courts cannot even get a look in through the door or the window, never mind intrude? The Government are exaggerating and extending the implications of the Shuker case through the clause.
I understand that the Government also argue that it will be possible for the courts to step in, at least if there is bad faith on the part of the DPP. However, subsection (1) does not permit that; it rules out judicial review—full stop. It is true that subsection (2) provides that the court is prevented from judicially reviewing where a decision is taken without bad faith, but that is not to say that a court will be permitted to do so if there is bad faith. After all, the Minister’s argument is that the court should not intrude.
Shockingly, the Government back the provision with a derogation from the Human Rights Act 1998 under subsection (3), and therefore from the European convention on human rights—that is to say, a derogation from the basic standards of decency that are meant to have applied throughout Europe for more than 50 years. That is an extraordinary thing for any Government to do. It is particularly extraordinary for the Government to want to do it in Northern Ireland, especially at a time when the security situation is improving. They are constantly telling us how much things have changed and saying that people should not have any worries or hang-ups about the situation, yet they still want to introduce this extremely draconian clause. I oppose its standing part.
If the amendment that we debated earlier had been accepted—that the Lord Chief Justice for Northern Ireland should determine such certificates—I probably would not have wanted to speak. We have already heard that the Bill states at the very front that
“Mr. Secretary Hain has made the following statement under section 19(1)(a) of the Human Rights Act 1998: In my view the provisions of the Justice and Security (Northern Ireland) Bill are compatible with the Convention rights.”
They are not. If it were otherwise, there would be no need for subsection (3). It is ridiculous, and, as the hon. Member for Foyle said, there can be no judicial review. I am not a lawyer, although I studied law for a while, but I am not aware of any other area of law in which judicial review is impossible. Lawyers on the Committee may be able to advise me better, but it seems to me that judicial review should be available for any decisions that are not made in the correct manner.
How do we know that that will not be the case with the Bill? Decisions could be made in an incorrect manner and a judicial review has to be available. That is a human right and a basic legal right. I have no intention of repeating the remarks made by other hon. Members, but I am concerned.
As the Minister and other hon. Members who participated in the debate on Second Reading will know, I am extremely uncomfortable with all of clause 7, and I shall certainly support others in voting against it. I might not have supported them to date in voting against other aspects of the Bill, but I have no hesitation in this instance.
Explanatory notes are very helpful, and I know that civil servants spend an inordinate amount of time scrutinising legislation and judicial cases to compile them for the benefit of readers of the legislation. Although they are not part of the legislation, they are a helpful background note. In this instance, the explanatory notes laboured—as did the Secretary of State on Second Reading—a small, narrow point taken from the case alluded to by the hon. Member for Foyle, the Shuker case. That was a decision, which the Minister mentioned, made by the Lord Chief Justice of Northern Ireland and Lord Justice Campbell about whether the Attorney-General should have descheduled an offence and whether that decision was reviewable.
After some discussion and a lot of thought two of our most senior judges in Northern Ireland, both of whom are extremely experienced, came to the conclusion, cited in the explanatory notes and by the Secretary of State on Second Reading, that the descheduling of offences
“is not a process which is suitable for the full panoply of judicial review superintendence. In particular, we do not consider that the decision is amenable to review on the basis that it failed to comply with the requirements of procedural fairness.”
However, it would have been accurate and would have done justice to the judgment of those two senior judges in Northern Ireland had the explanatory notes and Secretary of State been so kind as to go on to explain to the House on Second Reading that the judgment continues in paragraph 27:
“It must be made clear that while we have concluded that judicial review is not available to challenge the decision of the Attorney in the present cases, we do not consider that this will be excluded in every circumstance.”
It goes on to say:
“Depending on the circumstances of other cases that may arise, further grounds of judicial review challenge may be deemed appropriate but we do not consider that it would be helpful, or even possible, to predict what those grounds might be.”
It is not fair and accurate to construe the Shuker case as a restriction, as clause 7 does, to the grounds of “dishonesty or bad faith”. That is not what the judges were saying. They were saying that they would not set out an exhaustive list of the grounds for judicial review. On the narrow ground of the Shuker case, they decided not to open the case and review it on the grounds of “procedural fairness”. It beggars belief that under clause 7(2) a court would be prevented
“from entertaining proceedings to determine whether a decision or purported decision of the Director (without dishonesty or bad faith)”— those are the two allowable grounds—
“was a nullity by reason of lack of jurisdiction or error of law.”
So, for goodness’ sake, the DPP may make a decision that is wrong in law and wrong in fact because he is unwell—for example, medically unwell—and a court would not be able to review such a decision. We are talking about someone’s civil liberties in the context of a Government who made the European convention on human rights part and parcel of our domestic law, and to which I say hallelujah. That was the best decision they ever made. I am amazed and offended that they are now going to say, “Well, we might have done that. It was a good decision at the time, but when it suits us, we will, through clause 7(3), make the Human Rights Act 1998 subject to subsections (1) and (2).” That was done on the basis of a distorted interpretation of one case, the Shuker case, where the judges were much fairer than the explanatory notes or the Secretary of State. I am completely opposed to clause 7 as drafted and, honestly, if I were the Minister I would not even attempt to justify it.
I take the point made by my hon. Friend the Member for Foyle that clause 7(2) appears to bear out what is stated in the explanatory notes: that a challenge is still possible where dishonesty or bad grace are suspected. However, subsection (1) does not appear to envisage that possibility. Will the Minister clarify whether, in the eyes of the law, the proposal as it stands allows challenge on the grounds of dishonesty or bad grace? Alternatively, will he introduce an amendment to make that clear?
Although it is fairly evident from some comments that it may be a tall order, I will do my best to persuade the Committee that we are placing Shuker on a statutory footing, as mentioned by the hon. Member for North Down. The Shuker judgment makes it clear that the limitation we provide is not incompatible with the European convention on human rights. The reason why the Bill is compatible with the ECHR is because it guarantees a fair trial. The convention does not guarantee trial by jury; it guarantees a fair trial. As has been made clear by all hon. Members on Second Reading and today, whatever questions people may have about the Diplock system, it delivers fair justice and has done so in the teeth of some difficult situations. That standard of justice will continue and I am happy to stand beside the commitment my right hon. Friend the Secretary of State made about the Bill being compliant with the ECHR, because it guarantees a fair trial.
We are disputing the decision about the mode of the trial, not the trial itself. It is a fundamental right that if a legal decision has been reached through the wrong channel, there is the option of a judicial review. That is a fundamental basic right. I do not know why clause 7(3) is in the Bill at all when the whole Bill is supposed to be compatible with the European convention on human rights. If the Bill was compatible, there would be no need for clause 7(3).
We are simply dealing with the decision on mode of trial; this is not about a fair trial. The trial would be fair whether it was by a judge alone or a jury. Yes, we are limiting the grounds on which a challenge can be made, and that is for the good reasons we rehearsed earlier. I shall repeat some of those.
There was difference of opinion across the Committee, but the overwhelming judgment was that it is still necessary to have trial by judge alone in Northern Ireland. I believe that that view has held sway, as demonstrated in the votes taken so far, because we have chosen the administrative route for decisions about the mode of trial rather than the judicial route. We have done that because if evidence is given in a judicial process on whether a person belongs to a proscribed organisation, with which they associate with, or on other aspects of the test, it has to be shared with the defendant, and with that comes many risks, such as further intimidation.
The greatest risk of all is that such cases are tried not by judge alone but by jury. Many risks come with that. We have decided that trial by judge alone is justified in certain circumstances and that the administrative route is the right one. Once we have taken that decision, we cannot open that process to a system of judicial appeal because that would put at risk all that we have sought to protect with our earlier decisions. All that information would have to be shared in a judicial process, and that would bring into question the system of having trials by judge alone, in limited circumstances, which we seek to introduce. There is no inconsistency. If we choose the administrative route of having trials by judge alone, we cannot have a judicial process questioning that, because it would undermine the whole process.
The Minister is not answering the question asked by the hon. Member for Tewkesbury. If the legislation is compatible with the Human Rights Act, why does the clause have to suspend one of the Act’s measures and make it subject to subsections (1) and (2)? I simply do not understand why the Minister thinks that it is compatible if the Bill is to suspend a part of that Act.
My whole point is that the limitation in subsection (3) does not run counter to the overall assurance that the Bill is compliant with the European convention on human rights; it is. The hon. Member for Tewkesbury questioned the commitment of my right hon. Friend the Secretary of State for Northern Ireland on that basis.
We seek to limit the grounds on which the DPP’s decision may be challenged. My hon. Friend the Member for Foyle is right to say that the DPP’s decision to issue a certificate can be challenged on the grounds of bad faith and dishonesty. The grounds on which such a decision may be challenged are necessarily limited for the reasons that I have given. We have chosen the administrative route to protect sources and important information. If there is then a judicial review process, all that information will be opened up to wider scrutiny and the defence. That would undermine the process that we are trying to put in place.
Thank you, Sir Nicholas. I put it to the Minister, as have other hon. Members, that something cannot comply with the Human Rights Act or the convention if it provides for a derogation from them. He still has not addressed the point about the Government’s clear and unambiguous statement in their consultation:
“As with other administrative decisions, the DPP’s decision will be judicially reviewable.”
As well as answering the question about which court will consider judicial review cases brought on the grounds of dishonesty or bad faith, will the Minister tell us how someone will be able to mount such a case if the DPP’s certificate is to contain no indication of which conditions are supposed to have informed its issue? How can one prove dishonesty if there is no information and no case stated?
The High Court is, of course, the court to which reference could be made, albeit on the limited grounds of bad faith and dishonesty. I do not deny for a minute that they are limited grounds. They are necessary to provide some assurance for the most extreme circumstances, but I set my face clearly against a judicial process of challenge given that we have chosen an administrative route to protect justice. I accept that some Committee members disagree with that argument, but it is coherent and is consistent with all that has gone before.
The Minister cannot have it both ways. Subsection 7(1) makes it clear there can be no challenge, irrespective of what it says later. There can be no consideration and no challenge. The Minister is right to say that an administrative route is what he prefers, but he has to accept that it infringes the convention.
I do not accept that. What the European convention on human rights guarantees, and what we are signed up to, is a fair trial, and that will happen. Even if the decision to give a certificate is one that the defendant wishes to challenge, and even if he is not able to challenge in the way that some hon. Members would like, he still gets a fair trial.
My concern is not that the grounds have been limited for challenging these decisions. I have made it quite clear that I believe there is still opportunity for a fair trial. My concern is whether, if the challenge is on the basis of honesty, that opens the door for information regarding the background of the individual or the associations of the individual and how that information has come to the DPP to be revealed to those who challenge. We then have the difficulties that we had before with national security and the possibility of the identity of agents being revealed.
I can reassure the hon. Gentleman that that would not be the case because the grounds for the appeal relate to the character and way of operating of the Director of Public Prosecutions rather than the background of the defendant. I can therefore give him the assurance that he seeks. In adopting the administrative route we seek to protect information sources. Those small number of cases where it is justified to make a certificate can be very sensitive indeed and it is absolutely essential to keep that out of the public domain and away from the defendant in order to make sure that we actually have a fair trial.
I return to the opportunity to appeal against the decision on the basis of dishonesty or bad faith. I am not convinced that this would be available under the clause as it is written. As my hon. Friend the Member for Wellingborough says, clause 7(1) expressly rules it out. Therefore, will the Minister try to re-word it so that it makes it clear that in certain circumstances—he can specify them if he wishes—it is possible to appeal. I do not believe that the present wording of the clause allows that.
It is important that subsections (1) and (2) are read together. They make it clear that we are not excluding judicial review altogether. There are grounds to make the challenge. The grounds are, however, limited. They are limited in a way that is consistent with the Shuker judgment, which we are now seeking to put on a statutory basis. The grounds are very limited indeed but they are compliant with the ECHR. The Shuker judgment makes that absolutely clear.
I will, of course, reflect on the point the hon. Gentleman has made, but I encourage him to read the whole of the clause to see that there are limited grounds for appeal. They are limited grounds and necessarily so.
I do not want the Minister to turn this into a dialogue with each individual so I will try not to intervene on him again. I do, however, have to back up what the hon. Member for Tewkesbury says: there can be no misinterpretation of clause 7(1). It is utterly clear and unconditional. To suggest that subsection (2) provides some latitude to challenge these proceedings would assume that by saying “without dishonesty or bad faith” is somehow more important than the unconditional statement in subsection (1).
Subsection (3) would indicate that the Government are aware that this does not really comply with human rights legislation. I do not wish to embark on a dialogue or contention with the Minister, but I would like to hear him say that he will take this clause away and re-think it and perhaps come back on Report with something that is compliant and does not need subsection (3).
I made it clear at the start that I will look carefully at all the contributions that have been made. I do not, however, have any doubts in relation to clause 7(1).
If we can make it clearer we will do so. However, undertaking to reconsider it does not mean that we are shifting our ground; absolutely not. The proposal makes it clear that the court cannot question the decision of the DPP to make a certificate having considered both limbs of the statutory test. It is that decision, and the grounds on which the DPP made it, that the court cannot challenge. That is explicit; it is understood.
The decision can be challenged only on the grounds of dishonesty and bad faith in relation to the character and the conduct of the DPP, not his judgment in relation to the statutory test. It is entirely right that no court can challenge the decision. We are not having a full-blown judicial process to consider an appeal against that decision. We make that clear; it is our choice. I am open about that; we are taking the administrative route, which subsection (1) makes absolutely clear.
Again, I remind the Minister that when he talks about taking the administrative route, as with other administrative decisions the Government’s own paper said that the DPP’s decision will be judicially reviewable. That is a very significant exception.
The Minister also referred to subsection (2), but the words
“without dishonesty or bad faith” are in parenthesis. The question is whether a purported decision
“was a nullity by reason of lack of jurisdiction or an error of law.”
The proposal is narrower when one considers the full subsection.
Does the Minister accept that what he is saying clearly now means that what the Secretary of State said on Second Reading in response to an intervention from the hon. Member for Cambridge (David Howarth) was completely wrong? The Secretary of State said that
“the DPP must put the matter before a judge. If the judge took the view that the action was unreasonable, he would obviously have an argument with the DPP.”—[Official Report, 13 December 2006; Vol. 454, c. 902.]
The Secretary of State gave the House one version and the Minister is giving this Committee a very different version.
There are two distinct processes, one is the issuing of the certificate, which is based on a decision made by the DPP in the light of any information he has set against the statutory test. The certificate is issued, there is arraignment and then there is a trial by judge alone. It is up to that judge how he or she conducts that trial. They are two separate processes and I am happy to have the opportunity once again to explain that to my hon. Friend.
My hon. Friend referred to the consultation, which was clear: there would be grounds for a challenge to be made and we have provided for that, on very limited grounds, I agree. He may not agree with our position, but there is the ability to challenge on the grounds of bad faith or dishonesty. However, subsections (1) and (2) make it explicit that there is no provision to challenge the decision of the DPP in relation to the judgment he has made on the facts that he has, set against the statutory test. We are clear that that is coherent and absolutely consistent with our stance in relation to the statutory test on non-jury trials.
The hon. Member for Montgomeryshire said that there was perhaps a limit to our discourse, and we are getting close to it, but I am happy to give way.
I ask the Minister to respond to my earlier point: how could someone possibly challenge on the grounds of dishonesty or bad faith a decision that says nothing, and gives no information, no reason, and no suggestion of anything? How does one challenge that decision on the grounds of dishonesty or bad faith?
That will relate to the conduct of the DPP in the decision he has made, not to the facts on which he has made the judgment. I acknowledge that the grounds on which the challenge can be made are very limited.
My hon. Friend is making it clear that he continues to disagree with me. I respect his position on this and on many other issues, I just happen to disagree with him. The levels of agreement and disagreement in the Committee on this issue are evident.
May I make one final point, which has not been made so far? It is open to the defendant, as is the case under the Diplock system, to make representations to the prosecution about whether the statutory test applies. It is possible to make representations to the DPP. The defendant does not have to be a completely passive person in this process. Again, I reiterate, we believe that an administrative route and a statutory test with limited grounds of appeal is the best way in the limited number of circumstances where trial by judge alone is still needed in Northern Ireland.