Justice and Security (Northern Ireland) Bill

Public Bill Committee, 16 January 2007.

Nicholas Winterton (Conservative, Macclesfield)

I welcome all hon. Members to the first sitting of the Committee on the Justice and Security (Northern Ireland) Bill. I am totally confident that it will be a workmanlike, constructive and agreeable Committee throughout the whole of this stage of the Bill. I am a traditionalist but I also believe in comfort, so if, because of the temperature in the room or their own temperature, hon. Members wish to remove their jackets discreetly and to put them on the rear of their chair, I am happy for them to do so. Those are the domestic matters, as it were.

I remind the Committee that there is a money resolution in connection with the Bill. Copies are available in the Committee Room. I would like also to remind hon. Members that as a general rule adequate notice must be given of amendments. My co-Chairman, Janet Anderson, and I do not intend to call starred amendments.

Will hon. Members please ensure that mobile phones and all other electronic devices, pagers and so on are turned off or are put on silent mode? That is something that I personally feel strongly about.

We come first to the programme motion. Debate on the motion may continue for up to half an hour.

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 16th January) meet—

(a) at 4.30 p.m. on Tuesday 16th January;

(b) at 9.00 a.m. and 1.00 p.m. on Thursday 18th January;

(c) at 10.30 a.m. and 4.30 p.m. on Tuesday 23rd January;

(d) at 9.00 a.m. and 1.00 p.m. on Thursday 25th January;

(2) the proceedings shall be taken in the following order: Clauses 1 to 8; Schedule 1; Clause 9; Schedule 2; Clauses 10 to 23; Schedule 3; Clauses 24 to 37; Schedule 4; Clauses 38 to 45; Schedule 5; Clauses 46 and 47; Schedule 6; Clauses 48 to 51; new Clauses; new Schedules; remaining proceedings on the Bill;

(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 p.m. on Thursday 25th January.

I shall not detain the Committee for long. We look forward to the prospect of hard work and comfort under your guidance in the Chair, Sir Nicholas. We certainly look forward to having you in the Chair for our deliberations.

I thank all the Opposition parties for our constructive discussions on the motion and the support that they have shown for it. As members of the Committee will see, we are scheduled to deliberate on the Bill over a period of four days. That will be ample time for us to deliberate in full on all that is before us. There are certainly no knives planned, which I know you will strongly approve of, Sir Nicholas.

The way that I have always approached deliberations in Committee is to listen carefully to all the arguments, to explain clearly the Government’s position as best as I can and, if there is merit in the arguments, to consider always whether there are things that we can do to improve the Bill. That is the correct spirit of deliberation, I think, and the way in which I shall proceed.

I want to make two further points. First, there is a starting point of consensus in the Committee about the fact that we are moving towards more normal times in Northern Ireland. Indeed, the fact that we are bringing this Bill before the Committee is an indication of the progress that is being made. It is also an indication that some risks remain in Northern Ireland, not least from dissident groups. That is why some of the proposals are necessary.

Secondly, we are having our deliberations in Committee at an extraordinarily important time for the people of Northern Ireland. As we have our discussions, other discussions will continue in Northern Ireland with a view to the restoration of devolution. Within a few days of the end of our deliberations, assuming that we accept the programme motion, the Assembly will be dissolved, we will move into an election period and there will be an election on 7 March. An Executive must be restored by 26 March. I believe that that timetable can work, but I reiterate what my right hon. Friend the Secretary of State for Northern Ireland said yesterday in a letter to all parties. The date of 26 March is not negotiable, and nothing will come before the House, in this Bill or any other legislation, to change that date.

It is an important time. The context is very real for Northern Ireland. I am sure that we will give proper consideration to such an important Bill.

Laurence Robertson (Conservative, Tewkesbury)

I welcome you to the Chair, Sir Nicholas. Having served under your chairmanship before, I know exactly what delights await us.

As the Minister said, four days should be ample time to consider the Bill. I certainly hope so, although one can never be certain with Northern Ireland legislation. Although the Opposition officially oppose such guillotine motions, I believe that on this occasion we should have enough time.

Like the Minister, I hope that the Assembly will be up and running shortly, not because important issues have to be dealt with in Bills such as the one before us, but because, as all hon. Members know, much Northern Ireland legislation is enacted through the many statutory instruments that come before Committee. Indeed, one was debated last week, one is being debated tomorrow, and I believe that there are two next week. It is a most unsatisfactory way to govern a part of the United Kingdom. I hope that the parties in Northern Ireland can find their way forward.

The Minister says that the deadline of 26 March is not negotiable. I remind him that that was said about 24 November, but given the Prime Minister’s shortening tenure of office, I think that 26 March will be a definite date on this occasion.

I look forward to debating the Bill. In general, we do not have a problem with it, although we shall want to explore one or two issues and to seek the Minister’s guidance on one or two matters. In general, however, I am sure that our debates will be constructive. I am heartened by the fact that the Minister said that he will take on board what is said in Committee. It is typical of him to listen to the debate, as do all Northern Ireland Ministers, and their officials are accommodating to the Opposition. That usually leads to a high standard of debate.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

May I be the next, Sir Nicholas, to welcome you the Chair? I thank you for taking the time to preside over our discussions. I know from past experience that you are an ambassador for constructive deliberation, and I shall do my best to live up to your expectations for positive engagement with the Government and others.

I thank the Minister for saying that he will listen to our suggestions. I have no doubt that on this occasion at least the Government will accept some Opposition amendments. Ultimately, that will be the best proof that the Minister has broken the mould of the monolith that we have come to know as the Northern Ireland ministerial team.

Finally, I have no problem with the timetable. I may not always share the Minister’s optimism about Government timetables being cast in stone. The good news is that if we are not able to complete our activities in the time allocated, the Minister merely has to say that all the conditions for an extension have been met and we can continue for up to eight further years, as happened with the peace process itself.

I hope that we can finish our work within the eight sittings available. The Bill is not profoundly controversial. I therefore hope that the relatively minor suggestions that the Liberal Democrats wish to make will be regarded in a positive light, as we intend.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I join other hon. Members, Sir Nicholas, in welcoming you to the Chair. Unlike the hon. Member for Tewkesbury, my party and I have deep misgivings about a number of the Bill’s provisions, because they reverse clear and unambiguous commitments made by the British and Irish Governments in the joint declaration of 2003. Nevertheless, the depth of those misgivings is not related in any way to the time that we will take to consider the Bill, so there is no issue with the fact that we have eight sittings. I am sure that our concerns will be no more persuasive to hon. Members if we had more sittings. We all know the Government’s form on such occasions.

The hon. Member for Montgomeryshire said that he hopes that the Government will be more accommodating to reasonable amendments from other parties. With previous Bills, the Government, in Committee Rooms and with the support of their Back Benchers, have resisted all sorts of reasonable amendments to unreasonable legislation, most typically with the Northern Ireland (Offences) Bill. Hon. Members witnessed the Government withdrawing the legislation that they said was absolutely essential and without which the sky would fall in. They did so not because of what hon. Members said in this House and in the proceedings of this House, but because Sinn Fein finally caught on about the implications of the Bill and withdrew its support, and so the Government’s case collapsed.

There is the possibility that in days to come Sinn Fein will wake up to the implications of this Bill, because it will remove things that they claim that they have—such as the repeal of emergency provisions—and reverses commitments given by the British Government in the joint declaration of 2003. The question for many of us is whether Sinn Fein was in on the provision of the new measures or whether it has slept in. If it has just slept in, when it wakes up will we find the Government coming to the House and telling us all a different story? That has been their form before.

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move,

That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.

This is the first time that I have moved such a motion, but I am delighted to do so. Hon. Members will be familiar with receiving copious briefings from organisations and other outside bodies on the matters before us. The opportunity to place those formally on the record and for that evidence to be published is a sensible step forward. It helps to open democracy and I warmly welcome it.

Nicholas Winterton (Conservative, Macclesfield)

Copies of any memorandums that the Committee receives will of course be made available in the Committee Room. Papers relating to a briefing from the Northern Ireland Human Rights Commission will be available on the table of this Committee Room this afternoon.

Clause 1

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I beg to move amendment No. 1, in clause 1, page 1, line 5, leave out from beginning to ‘any’ in line 6 and insert

‘The prosecution may apply to a judge of the Crown Court for’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: Amendment No. 10, in clause 1, page 1, line 5, leave out ‘Director of Public Prosecutions for’ and insert ‘Lord Chief Justice of’.

Amendment No. 2, in clause 1, page 1, line 7, leave out ‘is’.

Amendment No. 27, in clause 2, page 2, line 36, at end insert—

‘(1A) Where information becomes available to the Director of Public Prosecutions after arraignment such that he would have issued a certification under section 1(2), subsection 1 above does not apply.’.

Amendment No. 28, in clause 2, page 2, line 38, leave out from ‘time’ to end of line 40.

Clause 2 stand part.

Amendment No. 12, in clause 6, page 5, line 16, leave out ‘authority making them’ and insert ‘Lord Chief Justice of Northern Ireland’.

Amendment No. 13, in clause 7, page 5, line 26, leave out ‘Director of Public Prosecutions for’ and insert ‘Lord Chief Justice of’.

Amendment No. 14, in clause 7, page 5, line 30, leave out ‘Director’ and insert ‘Lord Chief Justice of Northern Ireland’.

New clause 1—Procedure for application under section 1

‘(1) An application under section 1 for any trial on indictment of a person charged with one or more indictable offences (“the defendant”) must be determined by the court before the arraignment of—

(a) the defendant, or

(b) any person committed for trial on indictment with the defendant.

(2) The parties to any hearing at which an application to which this section applies is to be determined must be given an opportunity to make representations with respect to the application.’.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

As long as we exercise self-restraint in how we present our arguments, we can probably move through the Bill quite fast. That is not to say that the debate is to be insignificant, though.

Amendment No. 1 is intended to establish why it is the Director of Public Prosecutions for Northern Ireland who will take the decision on whether a trial is to be conducted with or without a jury. Amendment No. 2 is simply a grammatical amendment consequential to that.

In other pieces of legislation that make provision for non-jury trial it is the court that ultimately decides whether the trial is to be conducted with or without a jury, as is the case in section 44 of the Criminal Justice Act 2003. It allows the prosecution to apply to the court for a trial to be conducted without a jury if there is a danger of jury tampering. As that provision extends to Northern Ireland, would it not make sense for the same type of procedure to apply in all circumstances where it might be necessary to conduct a trial without a jury? Why have the Government made the distinction between cases where there is a danger of jury tampering and cases that relate to offences carried out by proscribed organisations? Surely, there is likely to be an overlap. It seems highly probable, in fact, that jurors considering terrorist cases could be intimidated. In which case, which procedure should be used—the certification measure outlined in the Bill or the measure in the 2003 Act? In essence, two pieces of legislation are attempting to do the same thing but in a different way.

As we said on Second Reading, we are pleased that the presumption will now be in favour of jury trial in terrorist cases in Northern Ireland. That is long overdue and we are pleased that the Government have attempted to go some way to righting that wrong. However, for there to be confidence that there will be a real change, the processes need to be open and transparent. Amendment No. 1 is particularly important because in clause 7 there is no right of appeal against a decision of the DPP. When we reach that clause, I will make it clear to the Minister that it is the one part of the Bill that is a deal-breaker, and we will vote against the Bill on Third Reading if the Government do not alter the situation.

For us, and I presume for the Social and Democratic Labour party, although I will obviously leave it the hon. Member for Foyle to make his own representations, there is a consequential element to clause 2. Under amendment No. 1, the prosecution would apply to a court for a non-jury trial and no certificate would lodged with the DPP, so clause 2 would not be needed. As the SDLP has objected entirely to clause 1, I imagine that it would agree that there is no need for clause 2.

New clause 1 is consequential on us leaving out clause 2. It puts in place a procedure for the prosecution to make an application to the court for a trial to be held without a jury. That is completely logical on the basis of the 2003 Act and is completely consistent with attempting to normalise the justice procedures in Northern Ireland. It also allows parties to the hearing at which an application is determined the opportunity to make representations in respect of that application. That ties in with clause 7, and we will discuss our objections to that clause in detail later. However, if clause 7 is allowed to remain in the Bill, the new clause would at least allow representations to be heard. If there is to be no ability to appeal, at the very least the parties to an application should be able to make representations.

I hope I have made my points reasonably succinctly. However, they do need an explicit response from the Minister. I do not see that there can be any objections to new clause 1 even if the Government are intent on ignoring our concerns about clause 7. I look forward to hearing the Minister’s views.

Laurence Robertson (Conservative, Tewkesbury)

I shall speak to amendment No. 10 and consequential amendments Nos. 12, 13 and 14, which although worded slightly differently are not entirely inconsistent with amendment No. 1, which is why they are grouped together.

The history of trial by jury has formed a central part of law in this country; we are entitled to be judged by our peers. We should not discard that without very careful thought. It is said that there have been special circumstances in Northern Ireland and that it has been difficult to find 12 people to pass judgment. Indeed, it is felt that many people have escaped justice because of the intimidation not only of jurors but of potential witnesses. If we accept that, then another way of looking at it is to say that to have non-jury trials in such circumstances will add to the resentment that is felt by many in Northern Ireland. That would be very unfortunate.

Therefore, I welcome this small step forward, because there is now a presumption that there will be a jury trial whereas previously the presumption was that there would not be one in certain circumstances. My concern is that the certificate is to be issued by the Director of Public Prosecutions. This is not a personal matter, but it strikes me as a little incestuous if the person responsible for carrying out the prosecution is also to determine the type of court that will try the case. It seems far better to take the matter to a neutral person—the Lord Chief Justice of Northern Ireland, as we suggest.

I have not heard the Government’s explanation for the measure, but it is not very judicial that the person charged with bringing the prosecution can, in effect, make up his own rules. That is why I propose that the Lord Chief Justice should issue the certificate, and I look forward to hearing the Minister’s explanation as to why he has not gone down that road.

Sylvia Hermon (UUP, North Down)

I, too, am delighted that we are sitting under your chairmanship, Sir Nicholas. Having had the experience in the past, I look forward to repeating it today.

I am confused why amendments Nos. 27 and 28 appear in the group of amendments attached to clause 1, as they relate to clause 2.

Nicholas Winterton (Conservative, Macclesfield)

Order. The hon. Lady will note that I have selected clause 2 stand part as part of this debate. I am sure that if she takes that into account she will understand why her amendments—which do indeed relate to clause 2, but are integral to the debate on clause 1 as well—have been selected.

Sylvia Hermon (UUP, North Down)

I begin with a word of caution about the welcome that has been given to the Bill, particularly by the hon. Member for Tewkesbury, who suggests involving the Lord Chief Justice. We have only one Lord Chief Justice in Northern Ireland. Last year, although the number of Diplock non-jury trials decreased, the average reached 60 per year, according to a consultation paper published in August 2006. That is more than one per week. That figure comes from notes kindly provided by the Northern Ireland Office on the replacement arrangements for the Diplock court system. Those are lengthy, complex trials, and to suggest that the Lord Chief Justice has the spare time and capacity to adjudicate on whether we should have non-jury trials is illogical. It is a proposal to which I could not possibly agree.

My amendments are key to the extension of the scheme of non-jury trials. I was sorry to hear the opening remarks of the Minister, for whom I have enormous regard. His track record in the Home Office is second to none, his appointment to the Northern Ireland Office was welcomed on all sides and he has lived up to his reputation. However, it would have been helpful to the entire Committee if, since the Minister has responsibility for security, he could have enlightened the Committee about dissident republicans whom we know still to be out there and who have potential to do enormous damage. That has been mentioned time and again by the Independent Monitoring Commission. The IMC has also highlighted the fact that none of the loyalist paramilitary organisations that are proscribed and in some cases specified have begun any formal decommissioning at all. I hope that they will, over the coming weeks, but the problem is still there, and information on them would have been welcome too.

Will the Minister also reflect on the fact—because that is what it is—that at least two al-Qaeda suspects have already been arrested and charged in Northern Ireland in Belfast? It would help the Committee if he would take the opportunity to explain why Northern Ireland could easily be the soft underbelly for the rest of the United Kingdom, in that terrorists can arrive at airports and ports in the island of Ireland, in the Republic, and make their way into Northern Ireland through an unmanned border and hence to the rest of the United Kingdom. When we discuss non-jury trials we should focus not just on dissident republicans and loyalist terrorists, though there is a serious danger from them, because al-Qaeda and other foreign terrorists can certainly also use Northern Ireland as a soft way into the rest of the United Kingdom.

As I understand the Bill, that matter has been recognised in clause 1. If the Director of Public Prosecutions suspects that any of four conditions are met, and is satisfied that the administration of justice may therefore be impaired should a trial be conducted, he can order a certificate for a non-jury trial. Committee members will know that one such condition is that in clause 1(6), which is a condition saying:

“the offence or any of the offences was committed to any extent (whether or indirectly) as 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 or persons.”

There is no mention there of a proscribed organisation whose activities relate to Northern Ireland. So I had understood that non-jury trials could be called for by the DPP if he suspected that in the case of an arrested and charged international terrorist there were a likelihood of jury intimidation.

However, the amendments that I have tabled are intended particularly to attack a deadline in clause 2 that is both stupid and artificial. If one reads through it carefully, one finds that clause 2(1) requires that the DPP’s certificate—based on the conditions that I have mentioned—

“must be lodged with the court before the arraignment of...the defendant.”

Let us take an example for those not familiar with criminal procedure in Northern Ireland. Someone is arrested by the Police Service of Northern Ireland and is charged with an offence. On seeing the papers, and perhaps—as the Secretary of State said on Second Reading—through access to intelligence information, the DPP is satisfied that at least one of the four conditions is met. To recap, the conditions are that the defendant is a member of a proscribed organisation; that the offence has been committed by such an organisation; that there is an attempt to prejudice an investigation; and the fourth, to which I have already alluded.

Arraignment is the procedure whereby the defendant pleads one way or the other. If he pleads guilty, that is fine—there will not be a trial. If he pleads not guilty and there is a decision to go to court, it is essential that the DPP should have options between arraignment and the court case coming to trial if additional intelligence information comes to his attention, or if after the defendant has pleaded, some of his associates go to the nearest witness, put a gun to his head and say, “If you appear in that court, we will blast your head off,” “We will take your wife’s head off”, or “We will intimidate your children.” It is after arraignment and before the trial that there is a likelihood of jury intimidation and tampering, and intimidation of witnesses.

I cannot for the life of me understand why the Government, or those who drafted the legislation, accepted in clause 2 a ridiculous and artificial deadline to cut off at the time of arraignment the ability of a DPP to issue a certificate. That is not sensible at all. Amendments Nos. 27 and 28 would tackle the problem. Amendment No. 28 covers exactly the same point; that is, that we should not have an artificial deadline. That is the import of the two amendments, and I look forward to the Minister’s explanation of and justification for the artificial and ridiculous deadline for the DPP to submit his certificate.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I tabled an amendment that would have the effect simply of removing clause 1 and, as hon. Members will see from the list, and as has been anticipated by the hon. Member for Montgomeryshire, clause 2 as well. The clauses provide for continuity of Diplock courts and non-jury trials in the future. It is wrong to deny people their basic right to a jury trial, which the Secretary of State and Ministers proclaimed in legislation that they introduced last year would be guaranteed from 2008 at the latest and hopefully from later this year, except for a one-year extension. Those assurances and arguments from Ministers less than a year ago are being turned on their head in the Bill.

The provisions for non-jury trials in circumstances of the DPP’s choosing also violate commitments that were given in the joint declaration from the two Governments in April 2003 following a series of negotiations at Hillsborough and at various other talks before that. Those commitments were to repeal the Northern Ireland-specific provisions in part VII of the Terrorism Act 2000. Legislation was introduced to do just that, but now those provisions are, in essence, being re-enacted in a new form.

The Government tell us in these days of environmental awareness that we have to reduce, re-use and recycle, but it is not good enough to say that we are going to reduce the number of instances where we have non-jury trials but re-use provisions that we previously repealed to recycle Diplock courts into the future. That simply is not what is needed in Northern Ireland.

Of course, the provisions in part VII of the Terrorism Act are subject to annual renewal because they were emergency provisions. We are told that the Bill will further the normalisation agenda, but in reality we are seeing a normalisation of the abnormal. The provisions will not be subject to annual renewal; on the contrary, the legislation will be permanent. Clause 40 will allow the Secretary of State to repeal by order any of the emergency powers in later clauses but not the provisions for non-jury trials.

Hon. Members must be aware of the Bill’s implications and extent. It is not the usual nod-through—as at the Derry-Bridgend border—of emergency provisions subject to renewal. It will make measures permanent that the Government assured us during debate on last year’s legislation that they would repeal. The Bill will institutionalise the temporary and exceptional and undermine Government commitments. As a leader of my party and a legislator, that is not something that I can take lightly.

Sylvia Hermon (UUP, North Down)

May I bring to the hon. Gentleman’s attention the Northern Ireland Affairs Committee report on organised crime in Northern Ireland, which was published last July? The hon. Member for Foyle will know that his colleague the hon. Member for Belfast, South (Dr. McDonnell) is a member of that Committee. The report was unanimous. The hon. Member for Belfast, South agreed with his colleagues, of which I am one:

“We believe that it is essential that adequate provision for non-jury trials for appropriate offences in Northern Ireland is maintained. It is only by maintaining them that many witnesses will feel able to give evidence against organised crime gangs.”

Is there a split within the SDLP?

Mark Durkan (Social Democratic and Labour Party, Foyle)

I can assure the hon. Lady that there is not. She knows that provisions for non-jury trials already exist in the Criminal Justice Act 2003. She touched on the matter during debate on Second Reading, and I will mention it during my remarks on this clause. To the SDLP’s mind, those provisions, if used in Northern Ireland, would meet the test of adequacy reflected in the Select Committee report.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Gentleman will understand that that is exactly the Liberal Democrats’ position. It is beyond us why the Government, having generated legislation for the UK as a whole, are now choosing to muck about with legislation for Northern Ireland specifically.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I accept those observations entirely. The legislation will undermine the purpose of the Terrorism (Northern Ireland) Act 2006, which was passed just last year. The Act extended the provisions of part 7 of the Terrorism Act 2000 to 31 July 2007, but allowed that they could be renewed, for one further year only, until 31 July 2008. Yet the Bill will reverse all that, and the Government have not given any convincing explanation why.

To return to the point that I made in replying to the hon. Member for North Down, the provisions are also unnecessary. Section 44 of the Criminal Justice Act 2003 already provides for non-jury trials on application of the prosecution if the trial judge is satisfied that

“there is evidence of a real and present danger that jury tampering would take place”

and that

“notwithstanding any steps...which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.”

That has not yet entered into force, but when it does it will apply to Northern Ireland. We do not need the other provisions in the hands of the Director of Public Prosecutions.

The Bill proposes an entirely different and more draconian system. First, it will give the power not to a judge but to the Director of Public Prosecutions. We were told on Second Reading that the Secretary of State may decide on the basis of national security information, presumably from MI5. The quality of that information will be well beyond the reach of the police ombudsman to investigate following Sinn Fein’s acceptance of a dodgy document from the Prime Minister last week.

Secondly, the defence has no right to make representations. Unlike under the Criminal Justice Act 2003, under this Bill the defence does not have to be heard at all. Thirdly, no reasons have to be given by the Director of Public Prosecutions whereas a judge would have to give reasons. By contrast, even Lord Carlile, who is no poster boy for independent challenge and scrutiny in the SDLP’s book, recommended that the DPP should give reasons, to the extent that they could be given without damaging national security. Again, there is the worrying mention of national security in connection with these provisions.

Fourthly, as we will see on the debate on clause 7, there can be an appeal against a judge’s decision, but obviously no challenge and no test against the DPP’s decisions. Fifthly, the threshold is lowered. The DPP merely has to suspect that any of the conditions in the Bill are met. There is not even a requirement that the suspicion be reasonable and there need only be a risk that the administration of justice might be impaired. That is not a significant, a substantial or a likely risk, nor even a real and present danger, but simply a risk.

There is no requirement that the DPP must consider jury protection measures before acting and taking the step of opting for a non-jury trial. Under the Bill the DPP also as the power to deny a jury trial, even where there is no link at all to what is euphemistically called the troubles. It is enough for the offence to be in connection with religious or political hostility. For example, an attack on a Muslim or a Jew could be tried in a non-jury trial, even though there is no more reason to do so in Northern Ireland than anywhere else.

In that respect, the Bill will provide for non-jury trials, possibly more often than at present. At present the Attorney-General de-schedules automatically unless he is satisfied that it is not connected with the emergency in Northern Ireland. So cases that would not be subject to non-jury trial now could be subject to non-jury trial in future. All of that is based on what? Furthermore, unlike in the south of Ireland where there is still a special criminal court, there is only to be one judge, not three. Again that is despite Lord Carlile’s conclusions and observations. I oppose clause 1 and all the related clauses. Because the various amendments which might mitigate the effects of the proposals all accept non-jury trials beyond the provisions of the Criminal Justice Act 2003, I would not support any of them either.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Member for North Down made an important point when she explained to the Committee the continuing risk that remains in Northern Ireland. Since last summer some £25 million of damage has been done by dissident republican groups through their unlawful activities. She is quite right to remind the Committee that that risk still exists in Northern Ireland. She also quoted the average figures in recent years for the number of so-called Diplock trials. It might help the Committee if I gave a little more information about that.

Back in 1987 some 354 cases were tried under the Diplock system. In 2005 that number had reduced to 49. I am sure the whole Committee would welcome that. However, it makes the point that there is still a risk of intimidation, albeit in a smaller number of cases.

I say to the hon. Member for Foyle that, of course, we have an aspiration for complete normality in Northern Ireland. However, it flies in the face of the real threat that still exists—as evidenced by the fact that there were 49 Diplock-type cases in 2005—to suggest that there is not still such a threat of intimidation in Northern Ireland that we do not need a special measure to deal with it and ensure that justice is done.

The hon. Gentleman mentioned that the Bill contains provisions elsewhere for my right hon. Friend the Secretary of State to repeal certain sections of this legislation, when enacted, if in due course they are found not to be necessary. That provision is not necessary here, because as the risk continues to reduce so will the number of non-jury trials continue to reduce. As intimidation ceases to be a factor in Northern Ireland, as has been so for the past 30 years or more, so will the need to have non-jury trials because of the threat of intimidation. In other words, this will wither on the vine as intimidation is removed from the culture and society of Northern Ireland.

We are moving towards more normal times, as evidenced by the numbers of Diplock-type cases that are tried, but we are not there yet in terms of complete normality, so we need the relevant provisions. I welcome the fact that, in his opening remarks, the hon. Member for Montgomeryshire acknowledged that the Bill was a normalising measure and that we were now introducing into legislation a presumption in favour of trial by jury in specified cases, rather than the reverse. I thank the hon. Gentleman for making that point so early in his remarks.

The amendments, particularly those tabled by the hon. Members for Montgomeryshire and for Tewkesbury, caused the Committee to consider how and by whom decisions are made in respect of the mode of trial. Both hon. Gentlemen invite the Committee to agree with amendments that would have that decision taken as part of the judicial process. They have come up with a different proposition. I shall deal with both amendments.

The hon. Member for Montgomeryshire would vest the decision-making power for non-jury trial in the Crown court. The prosecution would be able to apply to the court for a non-jury trial and the court would have to determine the issue before arraignment. It is important to note that all parties to such a hearing would be able to make representation. I shall deal with the difficulties relating to that in a moment. The hon. Member for Tewkesbury would vest the decision-making power in the Lord Chief Justice.

In considering this legislation, Ministers—including my hon. Friend the Under-Secretary of State for Constitutional Affairs, the Member for Lewisham, East (Bridget Prentice), who I am delighted to see on the Front Bench and who will be participating in our deliberations—thought about alternative ways to deliver juryless trials. We considered whether a judicial model would work, but we concluded that it would not because there would be too many risks. The particular circumstances in Northern Ireland require us to have an administrative form of decision making in respect of such a decision.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I thank the Minister for indicating that there has been some consideration by the Government of how they could continue jury trials. Will he say whether those considerations were being pursued at the same time as the House was legislating to repeal the Northern Ireland-specific provisions in part 7 of the Terrorism Act? Was that going on at the same time as the Government were telling us that they were meeting the terms of the joint declaration of 2003 and repealing these emergency provisions? Was the Government appearing to remove juryless trials on one hand while planning to bring them back by some other means?

Paul Goggins (Labour, Wythenshawe and Sale East)

As a Government, we took a clear step in saying that we were repealing part 7 of the Terrorism Act because we thought that the conditions were such that we could do so. That will be evidenced by the fact that, from the end of July next year, the only Army personnel in Northern Ireland will be those who are stationed in garrisons, similar to troops in north Yorkshire or in garrisons elsewhere in the United Kingdom.

Mark Durkan (Social Democratic and Labour Party, Foyle)

They will have powers that they would not have in north Yorkshire.

Paul Goggins (Labour, Wythenshawe and Sale East)

We shall come to the powers that they will have as a result of the Bill soon. I am sure that we shall keep returning to the matter with my hon. Friend the Member for Foyle, but as much as he yearns for complete normalisation in Northern Ireland—as do I and all members of the Committee—those conditions do not yet exist. Therefore, in taking the bold step to repeal part 7, it would be irresponsible of a Government not to put in place those provisions that are required to make sure that security and public order can be maintained and that justice can be done, and can be seen to be done. Our conclusions have been subject to extensive public consultation after careful consideration, and my hon. Friend the Member for Foyle will have contributed to that process.

Peter Bone (Conservative, Wellingborough)

I understand clearly the Minister’s argument. He is trying to move towards normalisation. However, we have heard today that the Bill extends to areas that are not currently subject to trials without jury. Is that correct?

Paul Goggins (Labour, Wythenshawe and Sale East)

We are taking a different approach. As the hon. Gentleman will know, at the moment, for certain types of offence in Northern Ireland under the Diplock court system it is presumed that there will be a juryless trial unless a decision is made that that is not necessary in a particular case. In the Bill, we reverse the presumption and say that it is for a trial by jury, unless certain conditions are met.

I am grateful to the hon. Gentleman for bringing us to the conditions because they have two limbs. First, one part is in relation to the circumstances of the offence and the connections of those whom it is alleged have carried them out. As the hon. Member for North Down made clear, three of the conditions under the first limb relate to the relationship to membership of prescribed organisations. The fourth part of the first limb is about political or religious hostility.

The second part of the test is about the possibility of the impairment of justice. Both limbs must be fulfilled. In the words of my hon. Friend the Member for Foyle, it would not be sufficient simply to cite political or religious hostility on its own. It would always have to be accompanied by the fulfilment of the second part of the test in respect of the fact that justice may be impaired. It is important for the Committee to understand that both elements have to be proved. Indeed, more than one of the four tests under the first limb might be passed, but both limbs must be passed in order for the DPP to make a decision in favour of a juryless trial.

William McCrea (DUP, South Antrim)

I apologise for being late, Sir Nicholas. The Minister made much play about normalisation. When the Government announced the security normalisation programme on 1 August 2005, they made a commitment to repeal all counter-terrorist legislation in respect of Northern Ireland. Does the hon. Gentleman understand that it is wrong to change the criminal justice system as a bargaining chip in a political process? Does he not see the danger that lies therein?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to the hon. Gentleman for reminding the Committee that, in August 2005, we made it clear, as much as we were repealing part 7, that we would need to consider the issue of juryless trials because it would be a continuing issue. I refute his suggestion that the matter is part of a deal. It is the action of a sensible Government making strides towards normal conditions in Northern Ireland, but at the same time making sure that provisions are in place to ensure that justice is done in all cases, especially when serious crimes have taken place and there is a risk of the intimidation of juries. The provision has not been arranged as part of a shabby deal, but a thoughtful move towards more normal conditions.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I return to what the Minister said a couple of minutes ago when he was describing the conditions under which there might be a juryless trial in Northern Ireland in respect of a racially motivated incident or attack. Why does the same argument not apply to the rest of the United Kingdom? Why does the Minister single out Northern Ireland for those conditions, which would pertain to juryless trials, but not the rest of the UK? If he wants to be consistent, he needs to explain to the Committee why there should be a disparity between the conditions for Northern Ireland and those for the rest of the United Kingdom.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman might have noticed that political and religious hostility has been a factor in the life of Northern Ireland over the past 30 years. It has played into criminality and must be treated seriously. I repeat that it is not enough just for the condition to be met. There must also be the risk of impairment of justice. In balancing all that together, the Director of Public Prosecutions would arrive at his decision, and it is important that we should have that element. We have arrived at that conclusion after careful consideration.

Laurence Robertson (Conservative, Tewkesbury)

The Minister said earlier that he had considered how best to deliver justice in that respect. He said that to go down the route that the hon. Member for Montgomeryshire proposed or the slightly different route that I proposed carried risks. Unfortunately, the Minister was intervened on and did not explain what those risks would be. Will he tell us what he perceives them as being, either now or later in his speech?

Paul Goggins (Labour, Wythenshawe and Sale East)

The great danger in telling the Committee that one wants to make progress is that hon. Members think that one is moving off the point and therefore intervene. In fact, I want to get on to the point that the hon. Gentleman just raised.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Perhaps the Secretary of State’s comments on Second Reading might help on the subject of risk. He said that

“there would be a risk to national security with the possibility of intelligence getting into the wrong hands.”—[Official Report, 13 December 2006; Vol. 454, c. 902.]

The Secretary of State offered that as a consideration in why the DPP could issue such a certificate. He envisaged the power being used in that way, although it is not clear what the risk would be to the administration of justice, which is quite a separate judgment. Later on Second Reading he said:

“My point was that if the DPP judges that there is a risk to the safe administration of justice because of information that he has received, the source of which is a matter for national security in terms of intelligence and so on, he is entitled to go to the judge and say, ‘This is a certificate for a juryless trial.’”—[Official Report, 13 December 2006; Vol. 454, c. 903.]

Paul Goggins (Labour, Wythenshawe and Sale East)

The DPP could very well have to consider some sensitive information when arriving at his decision. We made much on Second Reading of the fact that that information may pertain to national security intelligence, and my hon. Friend quoted extensively from the remarks of my right hon. Friend the Secretary of State. Given that three of the conditions in the first limb of the test relate to proscribed organisations, some of the information that comes to the attention of the DPP might well relate to national security intelligence. However, issues of national security are not the only issues that will be considered. What, for example, if there is another prosecution in the pipeline for an individual? What if the police have information about the conduct of the individual that is pertinent to a case?

To move on to the issue of risk, having a judicial system of decision making would mean that a range of information would have to be exposed to the other party in a way that could cross-examined. That would put at risk serious and highly important confidential information that would otherwise quite properly not be released into the public domain and not be brought to the attention of the defendant.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister must appreciate that for some of us there is a bigger risk to the administration of justice, which comes from the powers being used in a capricious way, but no one can test what that risk is. The public in Northern Ireland have been astounded at the withdrawal of prosecutions, with the DPP’s stated reason being the public interest. People do not believe that that has delivered due administration of justice. The Minister referred to the extensive consultation on the legislation and to the views received from my party. Will he say whether Sinn Fein has accepted the provisions? Has it agreed, or will the Minister change his tune if Sinn Fein wakes up and suddenly say that it is worried about them?

Paul Goggins (Labour, Wythenshawe and Sale East)

I can assure my hon. Friend that the measures that we propose in the Bill will not be amended as a result of discussion, outside our consideration, with any other party. That would be a preposterous way to proceed.

Mark Durkan (Social Democratic and Labour Party, Foyle)

It has happened before.

Paul Goggins (Labour, Wythenshawe and Sale East)

It certainly will not happen with the proposals that we are considering today. There has been extensive public consultation, which we have considered carefully. We have considered the risks of going down the judicial route. I shall return to those in a moment. That is why we opted for the administrative route. I know that my hon. Friend has all kinds of concerns about the accountability and transparency of national security and intelligence. He and I have discussed the matter at length. However, as hon. Members familiar with Northern Ireland will know, the Province has the most transparently accountable system of policing anywhere in the world, although accountability for national security and intelligence are perhaps not as transparent as my hon. Friend would like.

Sammy Wilson (DUP, East Antrim)

I apologise,Sir Nicholas, for my late arrival.

I hope that there will not be any going back on the issue if and when Sinn Fein decides to make it a matter of concern. The safeguards that the Minister mentioned are important. Does he accept that the defence will often apply for judicial review in order to trawl for intelligence that it believes may compromise the prosecution’s case, thus leading to its withdrawal? That is a bigger danger than that of being subject to maladministration.

Paul Goggins (Labour, Wythenshawe and Sale East)

I agree very much with the hon. Gentleman about the risk of delay; it is a matter for concern. Indeed, the hon. Member for North Down raised the matter in debate, and she received a letter from my right hon. Friend the Secretary of State outlining some of the improvements that we hope to make. We certainly do not want people trawling around and delaying the system in that way. We want justice to be done properly and as speedily as possible. We do not want people undermining justice through the process of delay suggested by the hon. Gentleman. However, delay is a risk, and we considered the matter carefully. We need a system that allows information to be properly considered, but we do not want the sort of unending delay that could provide an escape route for people who ought to come to trial.

The principal risk of going down the judicial route is not that information pertinent to the conduct of an individual that should remain private would be introduced into the process, but that the information would be kept private and out of the system and that people who should have a juryless trial, and to whom jury trial poses a real threat, would be tried by a jury, with all the risks that go with it. That is a serious consideration. Information that the police or national security may have that would be brought to the attention of the DPP in a more open judicial process would not be brought to bear. That would be a huge risk. Frankly, the Government were not prepared to take that risk. That is why we have brought forward the present proposals.

Laurence Robertson (Conservative, Tewkesbury)

I have listened carefully to the Minister’s reasons for deciding as he did. However, on the other side of the argument, does he not see that there may be a risk—in a philosophical sense, by trying to satisfy people not only that justice has been done but that it can be seen to have been done—that the person who conducts the prosecution will decide who is to make the decision on the outcome of that trial? Is that not a risk as well?

Paul Goggins (Labour, Wythenshawe and Sale East)

Let me deal with that. The hon. Gentleman raises a legitimate question, and it requires an answer. The Lord Chief Justice is the appropriate person. It might be of interest to the hon. Gentleman and other members of the Committee if I draw attention to the judgment in the Shuker case. The judgment was delivered by Lord Chief Justice Kerr, sitting with Lord Justice Campbell. It relates to current case law and to de-scheduling in the Diplock courts. In other words, it relates to the way in which decisions are made not to have a trial by judge alone, even though the offence may be scheduled.

The Lord Chief Justice and a colleague arrived at the following conclusion. I shall quote from it extensively, which I hope will help the Committee. The judges concluded:

“The exercise involved in deciding whether offences should be de-scheduled is in some respects akin to the decision whether to prosecute. It involves the evaluation of material that will frequently be of a sensitive nature and the assessment of recommendations made by or on behalf of the Director of Public Prosecutions based on his appraisal of matters that may not be admissible in evidence or whose disclosure would be against the public interest. This is par excellence a procedure on which the courts should be reluctant to intrude.”

The Lord Chief Justice concluded that such judgments and those about mode of trial are for the Director of Public Prosecutions, who is in a much better position to deal with them than the Lord Chief Justice himself.

The decision is about prosecution, a subject more familiar to the DPP than to the courts. In the view of the Lord Chief Justice, it is better to consider the matter that way, and not to bring it into the judicial process. The Northern Ireland courts have themselves concluded that they should not become routinely involved in such issues. The hon. Member for Tewkesbury poses a legitimate question, but the Government’s conclusion is also the view of the Lord Chief Justice.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister prays in aid the Shuker case. In that case, the decision to de-schedule was

“a procedure on which the courts should be reluctant to intrude.”

The legislative provision before us goes much further and makes the procedure an absolute no-go zone. Unlike Shuker, clause 7(1) is unclear about whether bad faith can even be questioned.

Paul Goggins (Labour, Wythenshawe and Sale East)

I read out to the Committee the phrase,

“should be reluctant to intrude,”

and in making that remark, the Lord Chief Justice makes it clear that the court should not be routinely concerned with such matters. If we were to accept the amendment that the hon. Member for Tewkesbury has moved, we would enshrine it in legislation that matters should always be conducted in that way, which is different from the Lord Chief Justice’s position in the judgment to which I referred.

The two amendments that the hon. Member for North Down tabled would extend the period during which the DPP could make a certificate for non-jury trial. If new information became available after arraignment, it would affect the decision for non-jury trial and the DPP would be able to issue a certificate of non-jury trial. We have fixed the moment of arraignment as the key decision-making point, but the hon. Lady invites us to go further. We have concerns about that.

First, there is the issue of delay, which is of concern to the hon. Lady. If, for example, under her proposal arraignment passed, we moved to a trial and there were then sufficient grounds for her amendment to come into play, we would have to restart the trial. Witnesses might have to be brought in, and the whole business would have to start again, inducing in the system the delay that she and I want to reduce.

Even more importantly, the provision is unnecessary for the very reasons to which the hon. Lady alluded. The Criminal Justice Act 2003 provides for the mode of trial to change if there is a real and present danger of jury intimidation during the trial. That new measure came into operation on 8 January: between Second Reading and this morning’s deliberations, the new provision has come into play. Her proposal is unnecessary, because if there were evidence of a real and present danger of jury intimidation in a trial by jury, under the new powers of the 2003 Act it would be possible to change the mode of trial.

We are concerned not about the real and present danger, which is now provided for, but the risk of intimidation that may still exist under the conditions in Northern Ireland. Such provisions do not exist elsewhere in the United Kingdom. I hope that the hon. Lady is persuaded—if I remember correctly, she was on the Standing Committee that considered the Bill in 2003—that this provision is now in place, much as she has been frustrated at the length of time that it has taken to implement. We will have a complementary system. Under the provisions, the DPP will be able to issue a certificate up to the point of arraignment. The provisions of the 2003 Act will then come into play if there is a real and present danger of jury intimidation after arraignment. The whole judicial process will be covered against both potential threats and real and present danger.

The hon. Lady raised the issue of the threat from al-Qaeda and she is right to point out the potential for that threat to show itself in Northern Ireland.

Sylvia Hermon (UUP, North Down)

I am taken aback by what the Minister has just said. He has spent a long time usefully explaining to the Committee why it is essential that the DPP is the key person who makes the decision, because of the risk and the intelligence information that he is given. In the Shuker case, the Lord Chief Justice said that the court should not be making that decision. Having spent so much time explaining that, the Minister has now told the Committee that the prosecutor—it is only the prosecutor, not the DPP, who can apply to the court under the 2003 Act if there is a real and present danger of jury tampering—will not have the detailed information that, as the Minister has just laboured in telling us, the DPP will have. There will not be a smooth track. The whole point of moving the time is so that the DPP is not shackled by the date of arraignment the whole way up to the trial.

Paul Goggins (Labour, Wythenshawe and Sale East)

Clearly I am not explaining myself very well, so I shall have another go at it. We are dealing with risk: the risk to justice and the risk of intimidation because of the connections that a particular defendant may have. We have proposed a system that will allow the DPP, using a statutory test, to decide whether conditions are met to warrant a trial without a jury, by judge alone. The certificate can be issued, modified or withdrawn at any point up to arraignment when the defendant enters a plea.

Let us assume that the DPP considers a particular case and decides not to issue a certificate. There would follow a trial by jury. If there is any evidence of real and present threats to any members of the jury, the prosecution can bring forward evidence and the mode of trial can be changed under the provisions of the 2003 Act, so the element of risk before the arraignment can be dealt with, as can the reality after arraignment. If at any point there is the risk or the reality of intimidation and threats, it is possible to move to a judge-alone trial. Given the hon. Lady’s role in arguing forcefully for that provision in the 2003 Act and arguing since on many occasions that it needed to be introduced quickly, I would have thought that she would take some credit as having been part of the process of delivering a system whereby we can have a trial without jury if threats and intimidation are such that justice may not be done.

The two sets of provisions are separate. The hon. Lady is seeking to make a provision that is not necessary because the 2003 Act provides it. If the Government had said that there was no intention to introduce the new powers to change the mode of trial under the 2003 Act, I could well understand the need for her amendments, but that is not the case: we have implemented those provisions. Right through the judicial process in Northern Ireland, we now have a system for dealing with the potential threat and the reality of jury intimidation. Time will tell whether I have made better fist of explaining myself on this occasion, but I am sure that the hon. Lady will tell me later proceedings whether I have done so or whether I have failed.

The hon. Lady mentioned the threat from al-Qaeda, and I was about to say that we must take that threat seriously in all parts of the United Kingdom. However, what we do not have in Northern Ireland is any evidence to suggest that there is a general threat against juries emanating from the risk from al-Qaeda. What we do have is considerable evidence, based on the factionalism and sectarianism of the past, that there is a pattern of threats and intimidation to juries arising from the particular circumstances in Northern Ireland. In other words, we need the provisions to reflect that sectarianism and that difficulty with proscribed organisations. The same risk does not apply in relation to al-Qaeda, or any presence in Northern Ireland. I hope that she will understand that we are trying to make the provisions as minimal as possible, as close to normality as possible, but dealing with the actual risk that there is. We do not have that same risk in relation to al-Qaeda as there is elsewhere. I was about to sit down, but I am happy to give way to my hon. Friend.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I note the degree to which the Minister is reassuring the Committee that al-Qaeda is not a serious or large threat in Northern Ireland, with respect to the legislation. However, that seems at odds with the emphasis that Government Ministers put on the issues of al-Qaeda and the potential threat with international terrorism in Northern Ireland, to justify the expanded role for MI5, and to justify it taking the primacy after October of this year in terms of intelligence policing. The two messages do not square.

Paul Goggins (Labour, Wythenshawe and Sale East)

I do not know whether that was a careless explanation from me, or a mischievous interpretation of words by my hon. Friend. Let me be clear that I was not making any statement at all to the Committee about the level of threat posed by al-Qaeda in Northern Ireland. Indeed, I said to the hon. Lady that we have to take the threat seriously in all parts of the United Kingdom. We need accurate systems of gathering national security intelligence about al-Qaeda in Northern Ireland, as in any other part of the United Kingdom. That is an important function of the security services there. What I said was that we did not have any evidence that those engaged in al-Qaeda, and those who sympathise with it, have built up any system of intimidation of juries that would undermine trials in Northern Ireland. We do have that evidence in relation to other aspects of the community there. That is why we need these provisions, rather than extending the provisions more widely to include other international terrorist organisations. The Committee needs to be absolutely clear: I am not saying that al-Qaeda is no threat in Northern Ireland: it is a threat throughout the world that we need to counter and understand. Now, my hon. Friend, for the last time, can intervene on me in this section of the Bill.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister said that al-Qaeda may not present a threat in terms of jury intimidation, but will he return to the point that was introduced not by anyone else, but by the Secretary of State himself on Second Reading? He indicated that the DPP might be minded to issue a certificate, simply on the basis of protecting intelligence sources or a risk to national security. That had nothing to do with the administration of justice per se, or the role of jury trials. Will he address that point? Surely that would be relevant in the case of al-Qaeda.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to my hon. Friend for continuing to intervene; it helps to clear up the matter. The DPP could not issue a certificate simply on the basis that he had received some intelligence about a particular defendant. It may be that that information is pertinent when he is considering whether that particular case meets the statutory test as outlined in the legislation—in other words, whether a defendant belongs to a proscribed organisation or is engaged in political or religious hostility, and there is the possibility that justice would be impaired. That is the test. It could be that some intelligence is pertinent to that, and needs to be made available to the DPP privately, so that he can consider whether the test is met. The police could have other information about potential prosecutions that may be pending, or other investigations that are being carried out. That information will help the DPP to make the judgment but it alone will not justify a decision as he must apply the stringent statutory test set out in this Bill. It could be that the information is pertinent, but that alone will not be sufficient.

Mark Durkan rose—

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall happily take interventions all day long, although the Committee may weary of it after a while.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Are those not instances where the decision is whether or not to proceed with a prosecution as opposed to whether or not to go for a non-jury trial?

Paul Goggins (Labour, Wythenshawe and Sale East)

The consideration that the DPP will give is about the mode of trial: whether to opt for a juryless trial or not. That is the decision that the DPP will have to make. It is about working out whether there is the potential for justice to be impaired and whether all the conditions are met. It is in relation to applying that test that this information may be relevant. The important point is that we are talking about information that cannot be shared with the defendant, and we must keep reminding ourselves of that. Once we go down the more open, judicial route, the information must be shared and we ultimately risk having people who may threaten juries being tried by a jury. We cannot countenance such a risk and we need to put that security in place.

After a fairly extensive run round all of these issues, I must conclude by asking hon. Members not to press their amendments to a Division.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I shall not withdraw my amendment because, having listened to the Minister and perhaps naively believing that he was minded to listen to sensible contributions from all parties, I have found that he has reverted to the usual behaviour of Northern Ireland Ministers in these Committees. He has attempted to defend the indefensible and then asked his colleagues to force it through simply because that is easier than listening to the force of argument from other sides. To paraphrase something that the Prime Minister once said, it seems that the Minister’s debating train has left the station and has left our ideas on the platform. Once again, we seek to influence the Minister but he gives us slightly vague answers and does not direct himself specifically to the purpose of the amendments.

Let us consider specifically what the Minister has said. In the context of what the hon. Member for Foyle has just said, it seems that the Minister slightly misunderstands the issue. The Secretary of State referred not to a question of intelligence relating to the defendant, but to intelligence that the Secretary of State thought might be so sensitive that it was better to proceed without a jury trial. I believe that the hon. Member for Foyle was reciting the Secretary of State’s own comments.

In other words, the Secretary of State for Northern Ireland is suggesting that simply being concerned about the sensitivity of information that would have to be shared with a jury is sufficient justification for not having a jury trial. That cannot be right; it cannot be in the interest of justice for the Secretary of State’s comments to be taken into consideration by the DPP and for it then to say, “In every other respect this case is worthy of a jury, but as MI5 does not want to share this information in public we had better carry on with the Diplock courts and do things in private.”

I believe that the hon. Member for Foyle was highlighting that point, and the Minister has not responded to it. I will happily give way to the Minister if he will clarify the point. If he will not do so, we can only surmise that he agrees with the Secretary of State that it is acceptable, regardless of the justice of the situation, for the DPP to call for a non-jury trial in order to protect sensitive information in the possession of the security services. In my book, that is not right.

Sammy Wilson (DUP, East Antrim)

Does the hon. Gentleman accept that in some cases the wish might be to protect the intelligence source? Intelligence on a case may have come from an intelligence source and if that source were disclosed, both the source and future intelligence could be compromised. That would be as good a reason as any for going down the route that the Government have suggested.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Gentleman puts forward a brave defence in support of the Minister. If the Minister does mean what the hon. Member for East Antrim just said, it would be helpful for the Committee to understand that. I disagree with that position, but I am not even clear at the moment whether the Minister in this Committee actually agrees with what the Secretary of State for Northern Ireland said on Second Reading.

Paul Goggins (Labour, Wythenshawe and Sale East)

Of course I agree with my right hon. Friend the Secretary of State; one would expect nothing less. I think that the hon. Gentleman is sincere in seeking greater clarification before he decides on whether to press his amendment.

It is important to distinguish between the case against the defendant and the test as to whether the trial should be by jury. The two issues should not be confused. I put it to the hon. Gentleman that information about whom a particular defendant may associate with, other investigations that are ongoing, material that is coming forward through sources that one would want to keep discreet and private, as he has pointed out, may be vital in deciding whether to have a trial without a jury. To have a trial without a jury is a very serious step to take. We all want as many trials with juries as possible.

However, that is very different from the actual trying of the case. Of course, if there is evidence, it would need to be brought in court. If there is intelligence, forensic evidence or any other evidence, it would need to be brought forward in the trial, albeit by the judge alone. That could not remain hidden. There could not be some sort of secret deal in which someone is found guilty without the evidence being brought forward in court. Of course, all such evidence would need to be brought to bear in the trial.

What we are talking about here is the decision about mode of trial. I put it to the hon. Gentleman in all seriousness that that is a very important decision, but if there is important, private and secret evidence, then for its own sake and for the protection of sources, we need a system that allows it to be brought into play. If we have a judicial system, such matters would be opened up, and the defendant would have to be dealt with in a certain way. The information would perhaps run the risk of not being shared, with the ultimate risk of people who will threaten juries having trial by jury when that is not justified and is not something that we would want to have.

I hope that I have been able to clarify my remarks in a rather long intervention. We need to focus on the decision about the mode of trial and not on the trial itself, in which, of course, all this evidence would need to be adduced.

Nicholas Winterton (Conservative, Macclesfield)

Before the hon. Member for Montgomeryshire continues his speech, I would like to say that I do not like lengthy interventions, but I believe the Minister was being extremely helpful and therefore I allowed him what I would describe as an abnormally long intervention.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

One of the good things about Committees such as this is that we are genuinely using the process to try to reach a solution. I agree with what you said, Sir Nicholas, with regard to the Minister’s attempt to clarify the point, but I have to say that I am still not persuaded. The Minister appeared to say that he agreed with the Secretary of State for Northern Ireland that sometimes one would not have a jury trial in order to protect sensitive information. However, he did not make such remarks explicitly, so we seem to be in a situation in which potentially the hon. Member for East Antrim has formed a triumvirate with the Minister and the Secretary of State for Northern Ireland, and in which all three of them seem to think that merely wanting to protect sensitive information is an acceptable justification for not holding a jury trial.

I do not think that that is a good enough reason. I do not think that it is correct or justified. Furthermore, if such an approach is justifiable in Northern Ireland, why on earth is it not justifiable for the rest of the United Kingdom? The arguments that the Minister and the Secretary of State are using are not specific to the geography or particular circumstances of Northern Ireland. I wonder, therefore, whether the Minister is setting a precedent for the whole UK that begins in Northern Ireland and gets rolled out from Northern Ireland as a precedent for the future.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister rightly said that we need to distinguish between the mode of the trial and the decision and prosecution. As for the comments of the hon. Member for East Antrim, I am aware that he is among those public representatives who are often agog and indignant when prosecutions are suddenly withdrawn or they collapse and all we are told is “public interest”. Rightly, he and others have made the point that the public cannot have confidence in what the public cannot know. Surely that applies to the decision on jury or non-jury trials. It is not only in relation to whether a judge or the DPP makes the decision that the issue of protection of intelligence sources is relevant. If the evidence is the same in a jury trial as in a non-jury trial, then that argument is a red herring. It is only in relation to who issues the certificate, not whether it is a jury or non-jury trial.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Gentleman makes a very good point. Once again, without extending the dialogue with the Minister, I would ask him to consider that point, because the hon. Member for Foyle does not make such observations for fun. He makes them because they would have a practical impact on the extent to which we can normalise the justice system in Northern Ireland and, as he implies, on the extent to which Northern Ireland’s system appears to be transparent and in keeping with the rest of the United Kingdom.

Paul Goggins (Labour, Wythenshawe and Sale East)

This will be an important and short intervention. The hon. Gentleman asked the rhetorical question about whether this was a first step by the Government in introducing this kind of procedure elsewhere. The whole weight of my argument, throughout the deliberations this morning, is that this provision is specifically for Northern Ireland. The test relates to “proscribed organisations” and “political and religious hostility”, which are specific to Northern Ireland. There is no intention of producing such provisions elsewhere and it is spurious to suggest so.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I am glad that the Minister regards this as spurious and that he puts on it the record that there is no intention of rolling out these provisions in the rest of the United Kingdom. That is important because there is no logical reason to stop in Northern Ireland. There is no logical reason to consider those particular precedents as pertaining to the so-called troubles. There is logic in what the Minister says, but let the record show that the Minister is being absolutely clear that the Government do not intend to roll out such provisions across the rest of the United Kingdom for justifications relating to terrorism or any other reason.

Moving on, the Minister also said that £25 million of criminal damage has been done by the paramilitary groups—I think that the timetable was roughly in the last 12 months—which is one reason why we have to have the non-jury provision in Northern Ireland. I do not have the actual figure, but I have no doubt that the criminal damage done by organised criminals and gangs across the United Kingdom as a whole comes to a far larger amount. Once again, I do not see why the Minister thinks that the figure of £25 million that relates to Northern Ireland is any more persuasive than the hundreds, perhaps thousands, of millions of pounds’ worth of criminal damage done by organised gangs in other parts of the UK. Once again, if in the rest of the UK we have sufficient provision through the Criminal Justice Act 2003, then that should be sufficient provision in Northern Ireland as well, bearing it in mind that there is a significant risk of intimidation on any occasion when there is a jury trial relating to organised criminals. Many cases have been documented in the papers and discussed in the House.

The Minister said that the provisions are an interim measure, which pertains to the specific levels of intimidation in Northern Ireland. I am sure that, however much I would like to think otherwise, there will always be some level of intimidation in Northern Ireland, because there is an ongoing level of intimidation with regard to jury trials in the rest of the United Kingdom. The question that I would ask rhetorically—I do not realistically expect the Minister to reply, unless he wants to—is at what level of intimidation the Minister would be satisfied that we can abolish this particular provision and revert to the provisions of the 2003 Act. The figure cannot be zero. In that sense, I am concerned that we set a precedent, as we have many times done with Northern Ireland legislation. We say that this is an interim measure, but we enshrine it as precedent for decades to come.

Paul Goggins (Labour, Wythenshawe and Sale East)

I cannot give the hon. Gentleman a precise figure. The point that I made earlier, I make again: the statutory test reflects the particular conditions in Northern Ireland. As we improve those conditions and get to normality in Northern Ireland, so the need to decide on a juryless trial will decline further and further. We will not need to repeal the legislation; it will wither on the vine.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

That makes it sound as though the Government are planning to maintain the legislation indefinitely. I do not think that that is how we should proceed. We have so many debates relating to Northern Ireland in which we renew temporary provisions that they form a significant part of my workload and that of my hon. Friend the Member for Argyll and Bute. That is because the Government are good at introducing exceptional measures for Northern Ireland, but extremely poor at repealing them. I fear that once again, because they are concerned about a specific circumstance, Northern Ireland’s problems mean that there has to be a special solution on juryless trials, and in 10 or 20 years the legislation will still be on the books. I should love to think that it will, to quote the Minister, “wither on the vine”, but once provisions are in statute, they stand to be used in ways that a number of us find objectionable.

Finally, the Minister had a go at talking about the risks of a judicial model and the benefits of an administrative approach. Once again, however, he is not being entirely consistent. At the risk of straying a little into another example, I have no doubt that there are many who think that many risks attached to allowing a political process to determine whether we went to war in Iraq, whereas an administrative process, outside the political circuit, might have produced a more informed decision. My point is that the Minister treads on dangerous ground if he decides to talk up the benefits of an administrative model over a judicial one, because exactly the same points can be made about many of the decisions that we make here in the Palace of Westminster.

The Minister may be comfortable, but I am not. It is not good enough to say that an administrative model has fewer risks. In essence, many of us who oppose the Government’s formulation of clauses 1 and 2 and favour the amendments are saying that there are more risks in not making the changes that we propose in our amendments. It is worse for justice for an insufficient return to make juryless trials as convenient administratively as they would be if we were to accept the provisions laid out here.

We will talk about the matter again if we can have a clause stand part debate on clause 7. Suffice it to say that I am not persuaded by the Minister’s arguments. Rather than waste the Committee’s time and have individual votes on each amendment and on clause stand part, may I press amendment No. 1 to a vote, because I think that we can express our concerns very effectively with just one vote? I hope that other hon. Members who have concerns will use the opportunity to express those as well.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 24, in clause 1, page 1, line 5, leave out ‘may’ and insert ‘shall’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss 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’.

Sylvia Hermon (UUP, North Down)

The debate has been interesting so far, and we are moving slowly but surely through clause 1.

Amendment No. 24 is straightforward. The Minister has spoken helpfully and at length on the realities of the situation in Northern Ireland and the danger to jurors and witnesses that continues there. Underclause 1, the Director of Public Prosecutions for Northern Ireland has a discretion. The Minister is responsible for security in Northern Ireland and has intelligence briefings. His contributions are valuable, and the DPP would know all about what he has outlined at various junctures in the past hour.

The procedure is outlined in clause 1. The DPP would be in receipt of all the relevant information in respect of the two limbs or parts that have to be satisfied before a non-jury trial could be conducted. At least one, but perhaps two, three or four of the conditions in clause 1 would have to be satisfied: the defendant was or had been a member of a proscribed organisation, the offences had been committed by such an organisation or there was prejudice to the investigation or prosecution. That last condition is relevant to the grisly, horrible murder of Robert McCartney in a Belfast bar, which was forensically cleaned by those responsible—certainly people connected with those responsible—for that murder. They went in with gloves and disposed of all the evidence in a forensic and clinical manner, which so far has frustrated the bringing to justice of those involved.

Another condition in clause 1 is when the offence has been committed

“as a result of, in connection with or in response to religious or political hostility”.

The DPP could be convinced that at least one of those conditions was satisfied and—the second limb—that, in view of any of those conditions, there was

“a risk that the administration of justice might be impaired”.

He would be in receipt of all that valuable information, on which he would have to make a decision. However, he would then have a discretion. That makes no sense, given what the Minister has said about why the amendments tabled by the hon. Member for Tewkesbury, who is not here at the moment, and the hon. Member for Montgomeryshire could not be agreed to and why the decision could not be given to a member of the judiciary. The Minister rightly quoted from the Shuker case, which is valuable in this context.

The decision would lie with the DPP, who would be in receipt of all the essential and sensitive information. However, it seems ludicrous that even at that juncture, when he was satisfied that there would be a risk to the administration of justice, he could say, “Oh well, I’ll exercise my discretion under the legislation and will not go for a non-jury trial”. That does not stand up or make any common sense whatever.

I would like the Minister to justify to the Committee why it is to be a discretion, not a duty, as he also said that the Bill will “wither on the vine” and that he is hopeful about the extent of intimidation in Northern Ireland, which is severe. I say to the hon. Member for Montgomeryshire that it is a matter of regret that there are no representatives of his party on the Northern Ireland Affairs Committee. We took evidence on organised crime last year, and witnesses gave us true accounts—we have no reason to suspect that they were not true—of intimidation of themselves and their families. It only takes somebody to come up alongside a wife shopping in Tesco, Sainsbury’s or wherever and whisper in her ear, “I know where your children go to school.”

Northern Ireland is a small jurisdiction and people live cheek by jowl with those in paramilitary organisations. I therefore recognise, as has the Minister, that there will be a need for non-jury trials for some time to come. However, I cannot for the life of me understand why the clause contains a discretion, not a duty, to issue a certificate. When all the conditions are met and there is a risk to the administration of justice, the DPP should obviously have to issue a certificate for a non-jury trial rather than have discretion to do so.

Alan Reid (Liberal Democrat, Argyll and Bute)

It isa pleasure to serve under your chairmanship,Sir Nicholas. It is the first time that I have done so in Committee, although there have been several occasions in Westminster Hall. I look forward to today’s proceedings.

I wish to speak in favour of amendments Nos. 3, 4, 5 and 6. They would further the Government’s aim of a presumption in favour of a jury trial by tightening up the criteria that the DPP can use for issuing a certificate. At the moment, the Bill sets the bar very low: the DPP may issue a certificate if he “suspects” that

“there is a risk that the administration of justice might be impaired”.

Amendment No. 3 would remove the word “suspects” and insert the words

“believes, on the balance of probabilities”.

Using the word “suspects” would be a very low test for the DPP to employ—much lower than a test on the balance of probabilities. The amendment would raise the level of the test to ensure that the DPP must be at least 50 per cent. certain that the conditions set out in the clause are met.

Amendment No. 4 would also tighten the language of the clause. The DPP would have to agree that there was a “real and present danger” of the administration of justice being impaired if a trial were conducted with a jury. For that language we have drawn on the Criminal Justice Act 2003. Section 44(4) of that Act imposes a condition of

“evidence of a real and present danger that jury tampering would take place.”

The same wording should be in the Bill. Amendment No. 6, too, would tighten the language by stating that the DPP would have to believe before issuing a certificate that the administration of justice would be impaired.

Amendment No. 5 is a probing amendment. The Bill uses the term “the administration of justice”, which we propose to replace with “the interests of justice”. That is a well known and much-used term in legislation, whereas I do not know what the Government mean by “the administration of justice”. That conjures up notions of management and something being run efficiently instead of the perhaps less tangible but none the less well understood principle of something being done for the good of justice. The language in the amendment ties in much better with the principle of a fair trial that is seen to be conducted in the interests of justice rather than expedited for the sake of time management.

The term “the interests of justice” is used in section 44 of the 2003 Act. Will the Minister confirm whether the word “administration” was used intentionally instead of the word “interests”, and can he explain what he intends that to mean? I hope that he will take on board our worry about the important difference between the interests of justice and the administration of justice.

I hope that the Government will accept the amendments, as they further the aim of the presumption in favour of a jury trial.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Hon. Members will not be surprised to learn, given my earlier comments, that I will not support the amendments—although I have different reasons for different amendments. In the case of amendment No. 24, tabled by the hon. Member for North Down, to remove the proposed discretion of the DPP would compound the difficulties that the Bill brings. The DPP would lose the discretion to issue a certificate or not and would automatically have to go for a non-jury trial. Let us remember that clause 1(2) states that the provision applies if the DPP

“suspects that any of the...conditions is met”

and if

“he is satisfied that in view of this there is a risk that the administration of justice might be impaired”.

The reference to any of the conditions includes if the person has been a member of a proscribed organisation at any time, and if a person is an associate of someone who was a member of a proscribed organisation at any time. Contrary to the impression given by the Minister earlier that what makes the measure absolutely guaranteed to be uniquely specific to Northern Ireland is the emphasis on proscribed organisations, there is no suggestion that the crime has to be absolutely connected to the purposes, causes or interests of a proscribed organisation. Yes, that is one of the other conditions that might have to be met, but they do not all have to be met.

When we see the definition in clause 1 of who is an associate of another person—a spouse or former spouse, a civil partner or former civil partner, when

“A and B (whether of different sexes or the same sex) live as partners, or have lived as partners, in an enduring family relationship”,

when

“A is a friend of B”,

or when

“A is a relative of B”—

and if there is to be no discretion or if no judgment is to be made on whether there are to be non-jury trials, we have to consider whether amendment No. 24 is helpful and whether it could create an odd situation.

If, as the Secretary of State’s comments on Second Reading lead us to suggest, the DPP has been influenced or counselled by information from MI5 or some other source, and if some of the conditions are met, and any one of them alone has to be met, not all of them combined, it seems wrong—

Peter Bone (Conservative, Wellingborough)

I understand what the hon. Gentleman is saying about clause 1(2)(a), but there is also the hurdle of clause 1(2)(b) to be overcome. It seems to me that there is an absolute logic that if paragraphs (a) and (b) are in place, it should be “shall” and not “may”.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The hon. Gentleman will recognise that I am not as convinced on the subject of clause (1)(2)(b) as others are, because I am not confident about the way in which the Government have explained how a risk to the administration of justice is to be determined and about the Secretary of State’s ready reliance on the protection of intelligence sources or national security considerations. I am not assured that paragraph (b) means what it is intended to mean at all, because nowhere in the Bill do we see a reference to national security or intelligence sources, yet that is exactly what the Government have resorted to as their first line of defence or explanation as to what would be the considerations for using the power. That has to be very worrying for us as legislators.

If the Government are saying that intelligence sources or national security is the reason, that is what should be in the Bill. As legislators, we should be saying clearly that that is the reason and it should be covered in the Bill, but it is not, so I take no comfort from the fact that both subsection (2)(a) and subsection (2)(b) have to be met. The worry is that only any of subsections (3), (4) or (5) have to be met in terms of the other conditions—any of those.

Sylvia Hermon (UUP, North Down)

The hon. Gentleman leads a party that was enormously courageous in taking its seats on the Policing Board years ago, when Sinn Fein did not and should have, and he, as party leader, and his party have very much supported justice and law and order. Is he actually trying to persuade the Committee that even if the DPP is aware that there is a risk to the administration of justice because one or other of the conditions is met, the DPP should turn a blind eye to that? I cannot believe that the leader of the SDLP is saying that to the Committee.

Mark Durkan (Social Democratic and Labour Party, Foyle)

First, there are provisions for non-jury trials in exceptional circumstances in the Criminal Justice Act 2003. We are not challenging those. Secondly, the House legislated last year to remove provisions for non-jury trials, and rightly so. The Government stated very confidently and very clearly why the House should be able to do that, guaranteeing an end to non-jury trials beyond 2008, with the exception of whatever might emerge from the use of the 2003 Act. That is a position that we support—a position that we think is justified. We have not conjured up the scenario that I am discussing; the Secretary of State raised it on Second Reading. The point was made that people from MI5 might go to the DPP and the DPP then goes to the judge and says, “Here’s your certificate for a non-jury trial.” It was the Secretary of State who presented the scenario in those very colloquial terms. That does not seem to me to be the way in which justice should be administered—somebody gets private information and somebody else produces a certificate.

We still do not yet know what is to be stated on the certificate. Is the certificate to state which of the conditions applies? Is it any of them? Is it all of them? Is it to be suspected of a defendant in a non-jury trial that all three conditions apply, or is the defendant, or his or her lawyers, meant to argue or say, “Well, we can guarantee this doesn’t apply and that doesn’t apply”? I ask that because there is automatically a suspicion and a stigma on a defendant in that instance.

The issue partly touches on clause 2, because there is a reference in clause 2 to a certificate being modified. When we discuss clause 2, we do not know what modifying a certificate might mean if we do not know what will be on the certificate. Will the certificate say which, if any, of the conditions apply?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Does the hon. Gentleman agree that it is quite conceivable that this problem could become salient to the pursuit of the case in court, because all kinds of inferences can be made that could to some extent determine the outcome of the trial?

People need to think about what this legislation’s full consequences might be in practice. Some things work the other way around. Usually that starts happening after a couple of cases where lawyers and so on get some traction on how to approach and to exploit these things on behalf of their defendants.

On amendments Nos. 2 and 3, I recognise what the Liberal Democrats are trying to do in changing some of the language, but I am not sure that they go far enough to meet my basic concerns. I opposed other amendments that, in effect, accept the position of no-jury courts. For the same reasons, I would not be able to support those amendments either.

Sammy Wilson (DUP, East Antrim)

I say at the outset, as we made clear during debate in the House, that we believe it is premature to move away from non-jury trials, for many of the reasons that have been given by the hon. Member for North Down. We have taken evidence in the Northern Ireland Affairs Committee on the degree of intimidation that, in some cases, led to people even being reluctant to come to give evidence to a Committee of this House, let alone to stand up in court to give evidence in public.

A degree of intimidation still exists, so we will support any provision enabling non-jury trials to remain. Thus we will support amendment No. 24. Given the points made earlier by the Minister on the continued need for non-jury trials, I cannot see how the Government could resist that amendment if there is a need and if it has been proved that those conditions can be met.

I noted the remark of the hon. Member for Foyle that the provision applies when

“any of the ... conditions is met.”

However, that is not the case. A judgment must also be made that, if any or all of those conditions are met, there is an associated risk. If there is an associated risk and only half of those conditions are met, surely we should not take the risk that a conviction might not result through intimidating or tampering with the jury. I would have thought that, given the grip that organised criminals associated with paramilitary groups have in Northern Ireland, it would have been in everyone’s interest to make sure that we had no situation develop where people could escape justice because they were associated with a paramilitary organisation—especially when the authorities already knew that there was a risk of them using their positions to try to tamper with the judicial system. It is eminently sensible to change the word from ‘may’ to ‘shall’, simply because, once the risk is there, the DPP should proceed with a non-jury trial.

I am at a bit of a loss, because the amendment has been grouped with others that are designed to try to reduce the possibility of a non-jury trial. All the amendments tabled by the Liberal Democrats seek to tighten the conditions. I believe that some of them are unworkable. For example, amendment No. 6 would allow for a non-jury trial if the administration of justice “would”—not “might”—be impaired by a jury trial. How would the DPP prove that it would be impaired? After weighing up all the evidence and the balance of possibilities given people’s associations, the DPP could of course conclude that those associations might be used to nobble or intimidate a jury, but it could not be guaranteed. If we put something that unworkable into the legislation, there is a difficulty that non-jury trials will not be possible.

Amendments Nos. 3 and 4 would change “suspects” to “believes” and “risk” to “real and present danger”. That would tighten up the requirement, but it would also open it up to further interpretation and make it more difficult to go down the road of non-jury trials. For those reasons, we will reject the Liberal Democrat amendments. I believe that where it is clear that people present a risk through their associations, the DPP should have no discretion but should be obliged to hold a non-jury trial.

Mark Durkan (Social Democratic and Labour Party, Foyle)

It might help if the hon. Gentleman addressed the point that the Secretary of State has already introduced. National security and intelligence could be an obvious prop to the DPP. Under this administrative procedure, the DPP is an officer of a devolved public service. Is the hon. Member content that if the DPP is left with no discretion after the Bill passes—and it is permanent, not renewable—a certificate will be issued as soon as the DPP gets a call from MI5? He will have no discretion, and no other judgment will be made.

Sammy Wilson (DUP, East Antrim)

Given that the decision would be based on a perceived risk of interference with the jury, I would err on the side of ensuring that someone who committed an offence and was going through the system had a better chance that the system had not been interfered with.

I return to the hon. Gentleman’s earlier point. Very often, national intelligence comes from intelligence sources, and I do not believe that we can afford the risk of exposing them. He mentioned that people jumped up and down about the Denis Donaldson case, but the case fell because there was a risk that trawling through all the information available on Denis Donaldson could have exposed well placed intelligence sources that were still of use to the security services. I do not think that anyone wants to risk that.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Those considerations have nothing to do with the administration of justice, or what anyone would understand to be the administration of justice. People might understand them as legitimate considerations and understand that Government and others might want to offer protection, depending on how they see such matters, but they have nothing to do with the administration of justice. That the hon. Gentleman resorts to such arguments corroborates my concerns regarding the Secretary of State’s remarks. Will the hon. Gentleman not address the fact that he is saying that non-jury courts would somehow protect intelligence services? Is he arguing that non-jury courts require less evidence and would consider evidence less than jury courts? That is the logical implication of what he said.

Sammy Wilson (DUP, East Antrim)

No, I am not saying that at all. I thought that the hon. Member for Foyle was making the point that, at an early stage, before we even decide whether a case will go through the jury system, there could be a trawl to discover how, for example, the conclusion was reached that someone was associated with a paramilitary organisation. To introduce the opportunity for the defence to use that kind of trawling mechanism at that stage and to stop a case short in its tracks would be unacceptable.

The reason why I support the hon. Lady’s amendment is that once the DPP has been assured that certain conditions are met and that they are likely to lead to a risk, of course it makes sense for the case to go to a non-jury trial rather than to run the risk of the trial having to be aborted.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I simply ask the hon. Gentleman: how would anyone but the DPP know? He said, “Once the DPP has been assured,” but there is no indication of what serious test the DPP would require. The Secretary of State introduced a suggestion of things being done in a secretive and unsatisfactory way. Later in his remarks, he also touched on the fact that the judge might want to ask the DPP privately about certain things. That is not the way that some of us would see justice being properly and duly administered. The hon. Gentleman needs to address the question of how the public will have confidence in what they cannot know.

Sammy Wilson (DUP, East Antrim)

I will deal with the hon. Gentleman’s first point that there are no serious tests. There are two serious tests: first, the DPP must believe that some of the conditions outlined in subsections (3), (4), (5) and (6) are met; secondly, he must be satisfied that there is a risk before he can move to recommend a non-jury trial. That is a serious test.

It is not always right, especially if there is a risk of exposing where that information came from, for the public to know how or where the DPP got that information. There cannot be such a degree of transparency, especially if it risks exposing the source from which the information came.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The fact is that in respect of non-jury trials, the tests that the Bill confers on the DPP have a much lower threshold than the tests in the 2003 Act. Normally, where a judgment must be made about a risk it is a judgment about the significance of that risk, not just that there might be a risk. Anyone could conjure up any possibility of a risk in these circumstances. The hon. Gentleman also needs to accept that that can apply in a range of cases, not merely in troubles-related offences. Schedule 1 gives other legislation that is amended as a consequence of the proposal, including the Domestic Violence, Crime and Victims Act 2004. We must be vigilant, before hon. Members nod this Bill through the House.

Sammy Wilson (DUP, East Antrim)

We also have a duty to be vigilant to ensure that those who wish to abuse the very open process that the hon. Member for Foyle recommends should not be allowed to have their way.

There is enough evidence in Northern Ireland at present to show that there are those who still have the power to abuse the system, to interfere with juries and to escape the justice that they deserve. For that reason it is important that the DPP does not run the risk of allowing someone to walk free if some or all of the conditions have been met—if there is a risk that they might interfere with the jury. Opinions differ: some people want to expose the justice system, in a society in which strong terrorist tendencies and organisations remain, to a degree of transparency and to risks, to which it should not be exposed. Others believe that the advantage should lie with the judicial system, not the terrorists.

Nick Palmer (Labour, Broxtowe)

I apologise for intervening on our discussions on the clause—unfortunately, I missed the first few minutes including the introduction by the hon. Member for North Down, whom I respect for her long-term commitment to the matters before us.

Most of us here are treading a difficult path between two types of amendment. On the one hand, the amendments tabled by Liberal Democrat Members attempt to fix with considerable rigidity the conditions under which the DPP can intervene, and on the other hand, other amendments would require the DPP to intervene if certain conditions were met. I should like to make a point that has not really come out yet: most of us want a gradual evolution in Northern Ireland. I do not think that any of us want a long-term future for the Province in which non-jury trials are commonplace. Neither do we want to be blind to the fact that there are terrorist threats and individuals, if not, organised groups, who would still attempt to influence trials improperly.

How do we deal with such an evolution? It seems to me that we need to give the DPP a degree of discretion allowing the frequency of intervention to diminish in proportion to the gradual normalisation of Northern Ireland. The alternative would be to redraft the Bill in a sort of ratchet process so that every time we feel that the risk has diminished a little, we fine tune the regulations. For that reason, rather than party loyalty, I feel that we should resist the amendments and allow the DPP a degree of reasonable discretion.

Paul Goggins (Labour, Wythenshawe and Sale East)

To pick up the theme of my hon. Friend the Member for Broxtowe, we all share the desire to move towards more normal conditions in Northern Ireland, in which risks are reduced, fewer people belong to proscribed organisations and there is less intimidation. As those conditions unfold, and as a result of the provisions before us, there will be fewer trials without jury. However, as was said earlier, those conditions still exist to some degree so the provisions are necessary.

On the amendment tabled by the hon. Member for North Down, and supported by the hon. Member for East Antrim, I understand her motives for inviting the Committee to replace “may” with “shall”. I hope that I can offer her an explanation of why her fears are unfounded and the chosen word appropriate. I expect that when both limbs of the test are met, a certificate will be issued by the DPP. However, my argument must be consistent. My hon. Friend the Member for Broxtowe alluded to this: I have made the point before, not least in relation to the Shuker judgment, that the decision whether to issue a certificate is akin to the decision on whether to prosecute. We do not fetter the prosecutor in making that judgment, and we shall not seek to fetter him regarding the decision to issue a certificate. However, I expect that he will issue a certificate if the conditions are met.

The Criminal Justice Act 2003 states that the prosecutor “may” rather than “shall” decide whether to apply for a non-jury trial. We must be consistent. We expect that if the conditions are met the certificate will be issued, but we should not fetter the prosecutor with the absolute terms suggested by the hon. Lady. Our approach is that the legislation should be consistent with the Criminal Justice Act and other arguments that I have adduced elsewhere. We do not expect that the DPP will be haphazard in judging when to issue certificates.

Peter Bone (Conservative, Wellingborough)

Can the Minister give an example in which the two conditions would be met but no certificate would be issued?

Paul Goggins (Labour, Wythenshawe and Sale East)

The simple answer is no, I cannot foresee any situation in which the conditions are met and the DPP would not issue a certificate. The problem with legislating, however, is that we might all think today that there are no circumstances in which the tests are satisfied and a certificate should not be issued, but there might be circumstances in the future that none of us can foresee that require allowing the DPP more discretion. That is the reason for the discretion. It is not because we expect there to be such circumstances, but because they might occur. As my hon. Friend the Member for Broxtowe said, if we draft the legislation to fetter the DPP’s discretion in that way, we constrain the situation and the wrong thing might happen as a result. So, although I cannot foresee any such circumstances, it is important to be consistent with other legislation and leave the DPP that discretion.

I turn to the point raised by the hon. Member for Foyle. I look forward to him supporting some of the measures in the Bill, but one lives in hope and dies in expectation. There will not be any detail in the certificate about the information that the DPP has considered or his reasoning. There would be clear dangers in doing that for individuals who are mentioned in the information, and a danger that inferences will be drawn from it that could prejudice an individual’s right to a fair trial. For example, if it is noted on a certificate that an individual is a member of a proscribed organisation, that might lead to inferences being drawn that have nothing to do with the matter at hand. It is therefore in the interests of justice and necessary to protect sources and individuals that details are not contained in the certificate.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I thank the Minister for that clarification, but if there is absolutely no information on certificates, I am not sure how they might be modified under clause 2. Surely, there is a danger of inferences being drawn about all three of the conditions when there is no indication of which has been fulfilled. If a certificate is issued simply because someone is possibly a friend of someone who has been a member of a proscribed organisation, and the other conditions about the offence being committed on behalf of a proscribed organisation do not apply, surely that presents a danger for someone who happened to be a friend of such a person.

I do not know what the test of being a friend of a former member of a proscribed organisation would be. Perhaps sharing the office of the First and Deputy First Ministers would qualify someone as being a friend or associate of a former member of a proscribed organisation. If that is the only ground on which a certificate is issued, will not that person be put in a situation in which the court and the wider public will draw all sorts of conclusions?

Paul Goggins (Labour, Wythenshawe and Sale East)

We are returning to some arguments that we had earlier. I made the point, although not all Committee members accepted it, that going down the judicial route, with more of this information on display for people to see, runs incredible risks. It is for that reason that the information described by my hon. Friend will not be on the certificate. It would be wrong if it was and would place people at risk.

I shall move on to the other amendments in the name of the hon. Member for Montgomeryshire and moved ably by the hon. Member for Argyll and Bute. In contrast with the other amendment that we have just been discussing, the hon. Member for Argyll and Bute invites us to raise the bar of the test so that there would be fewer trials by judge alone. All the way through our deliberations on this matter, we have had to make a judgment about where to draw the line. If the line is drawn too low, it means that more cases would be heard by a judge alone than we would wish to see. However, if it is drawn too high or the bar is raised too high, there is a serious risk that although people will be tried by jury, justice would not be done and people would be intimidated.

Introducing the words,

“on the balance of probabilities”,

for example, as in amendment No. 3, raises the bar too high, destabilising the balance that we have tried to draw and increasing the risk.

It is important to get on the record that, if there is a risk and a judgment to be made—we have to make a judgment—I would sooner err on the side of caution, with a fair trial by a judge alone, than risk justice not being done by allowing people to be tried by jury who should not be tried in that way because they pose a real risk. I make no secret of that. In making these judgments, we try to be as close to the balance point as possible, but if we are going to tip either way we should tip on the side of caution rather than risk. The people of Northern Ireland would expect no less.

Amendment No. 4 would insert the words “real and present danger”. That is relevant in relation to the 2003 Act, where the trial is already ongoing and there is information about actual jury intimidation. However, we are judging something different from that; we are judging the possible risk of jury intimidation and the risk that justice might be undermined or impaired because of the background, record, and so on, of particular individuals. We are judging risk, rather than dealing with the real and present danger. If there is a real and present danger and the trial is ongoing, the prosecution can apply for a judge-alone trial. But these provisions are about making a judgment on risk. If we raise the bar too high, a considerable amount of risk would not be properly accommodated within the system. There are few cases of jury intimidation in Northern Ireland—11 since 1999—but the reason is that those cases where the risk is greatest are heard in the Diplock system. That has been a good safeguard against jury intimidation. Nevertheless, there have been 11 cases since 1999.

In relation to the semantic argument about the interests of administrative justice, I say to the Member for Argyll and Bute that I chose the term “administration of justice” because we were considering whether system is capable of delivering a fair trial. That is the purpose behind the word “administration”. I am happy to reflect a bit more on the semantics and see whether we have got the right word.

In relation to amendment No. 6, which would have the clause say that the administration of justice “would” be impaired, rather than there being a risk, how can we know for certain sure that things will happen? We cannot know that. We are asking the DPP to make a judgment about what might happen, bearing in mind the intelligence and information that he may have.

Sylvia Hermon (UUP, North Down)

I commend the Minister for his persuasive argument, but of course I am not going to be persuaded by it. I cannot accept that the DPP, in whom we place so much responsibility and confidence in respect of upholding justice in Northern Ireland, should turn a blind eye to the risk—

Written evidence to be reported to the House for publication

Nicholas Winterton (Conservative, Macclesfield)

Before I ask the hon. Member for North Down to resume her valuable contribution to this important debate, may I confirm that the Committee has now received evidence on the Bill in a document called JS(NI)1, which is a Committee-stage briefing from the Northern Ireland Human Rights Commission relating to clauses 13 to 19? A copy of this document is available in the room and I hope that all hon. Members will look at this evidence.

Clause 1

Nicholas Winterton (Conservative, Macclesfield)

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’.

Sylvia Hermon (UUP, North Down)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am happy to confirm that it came into force on 8 January.

Sylvia Hermon (UUP, North Down)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sylvia Hermon (UUP, North Down)

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.

Mark Durkan (Social Democratic and Labour Party, Foyle)

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?

Sylvia Hermon (UUP, North Down)

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.

Peter Bone (Conservative, Wellingborough)

We were asked for examples of when the provisions may cause a problem. Whether or not the DPP exercises a discretion to go to trial without jury, defence lawyers would always approach him asking for the decision to be reversed.

Sylvia Hermon (UUP, North Down)

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.

Nicholas Winterton (Conservative, Macclesfield)

It is only fair to tell the Committee that the amendments grouped with the lead amendment are totally opposed to it. If the Liberal Democrats want to press one of their amendments to a Division, I should be happy to permit it.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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.

Nicholas Winterton (Conservative, Macclesfield)

I am sure that the Committee and the Minister are grateful for that explanation from the hon. Gentleman.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 25, in clause 1, page 2, line 19, leave out paragraph (b).

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?

Sammy Wilson (DUP, East Antrim)

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.

Sylvia Hermon (UUP, North Down)

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.

Mark Durkan (Social Democratic and Labour Party, Foyle)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sammy Wilson (DUP, East Antrim)

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?

Paul Goggins (Labour, Wythenshawe and Sale East)

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—

Paul Goggins (Labour, Wythenshawe and Sale East)

I knew it would not be long before my hon. Friend intervened.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I thank the Minister for taking this intervention. Perhaps he did so because I tried to be helpful earlier.

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?

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sylvia Hermon (UUP, North Down)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sylvia Hermon (UUP, North Down)

I am obviously grateful to the Minister for that very awkward intervention. He is entitled to ask that and the answer is clear. Does everyone come forward to say, “I have been intimidated.”? Of course they do not.

Sammy Wilson (DUP, East Antrim)

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?

Sylvia Hermon (UUP, North Down)

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.

Nicholas Winterton (Conservative, Macclesfield)

I say to the hon. Members for North Down and for East Antrim that I, too, have been on my own on many occasions during my parliamentary career.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 26, in clause 1, page 2, line 28, leave out ‘in an enduring family relationship,’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss amendment No. 7, in clause 1, page 2, line 29, leave out paragraphs (d) and (e).

Sylvia Hermon (UUP, North Down)

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)?

Alan Reid (Liberal Democrat, Argyll and Bute)

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.

Laurence Robertson (Conservative, Tewkesbury)

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.

Alan Reid (Liberal Democrat, Argyll and Bute)

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.

Sammy Wilson (DUP, East Antrim)

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.

Alan Reid (Liberal Democrat, Argyll and Bute)

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.

Mark Durkan (Social Democratic and Labour Party, Foyle)

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.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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?

Mark Durkan (Social Democratic and Labour Party, Foyle)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Laurence Robertson (Conservative, Tewkesbury)

Why not?

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Laurence Robertson (Conservative, Tewkesbury)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Peter Bone (Conservative, Wellingborough)

If two people are living together as partners, at what stage do they qualify for an enduring family relationship? Is it three months, six months or a year?

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sylvia Hermon (UUP, North Down)

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).

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sylvia Hermon (UUP, North Down)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sylvia Hermon (UUP, North Down)

I want to commend the Minister on the wisdom of his decision to reflect upon this and to come back to it on Report. I beg to ask leave to withdraw the amendment.

Nicholas Winterton (Conservative, Macclesfield)

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.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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.

Nicholas Winterton (Conservative, Macclesfield)

That was a good example of a stand part debate speech.

Mark Durkan (Social Democratic and Labour Party, Foyle)

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.

Sylvia Hermon (UUP, North Down)

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?

Mark Durkan (Social Democratic and Labour Party, Foyle)

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?

Laurence Robertson (Conservative, Tewkesbury)

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.

Sammy Wilson (DUP, East Antrim)

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.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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.

Sammy Wilson (DUP, East Antrim)

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.

Mark Durkan (Social Democratic and Labour Party, Foyle)

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.

Sammy Wilson (DUP, East Antrim)

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.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister will not be allowed even to discuss it.

Sammy Wilson (DUP, East Antrim)

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.

Peter Bone (Conservative, Wellingborough)

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?

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Clause 2

Clause 3

Nicholas Winterton (Conservative, Macclesfield)

I make the comment to the hon. Member for Foyle that I made to the hon. Members for North Down and for East Antrim: persevere with your principle.

Clause 4

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 29, in clause 4, page 3, line 26, leave out subsection (2).

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.

Alan Reid (Liberal Democrat, Argyll and Bute)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sylvia Hermon (UUP, North Down)

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?

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Stewart Jackson (Conservative, Peterborough)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Sylvia Hermon (UUP, North Down)

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.

Clause 5

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 30, in clause 5, page 4, line 31, leave out subsection (4).

I am very concerned about clause 5, which was alluded to in passing by the hon. Member for Foyle and the hon. Member for Montgomeryshire (Lembit Öpik). Having named them, I will check that, but I think that they were concerned that inferences might be drawn from a certificate for a non-jury trial being issued by the DPP. The provision that may allay the fears of the hon. Gentlemen is in clause 5—which I am attacking this afternoon:

“No inference may be drawn by the court from the fact that the certificate has been issued in relation to the trial.”

The wording is interesting, with the emphasis on “the fact”, not on no inference being drawn from the certificate.

Given the Minister’s good track record in the Home Office—which I say in all sincerity—he will be familiar with the provisions of the Criminal Justice Act 2003. He has quoted heavily from the Act to justify having to issue the certificate before arraignment, which I have objected to—but we have moved on. The Minister will be well aware of the provisions on bad character in the 2003 Act. The House wisely decided to change the law so that a defendant’s bad character would be admissible as evidence if certain conditions were satisfied. I will not read out all those conditions, but interested members of the Committee can look at section 101 of the Act. The defendant’s bad character can now be included in evidence in criminal proceedings.

Not to labour the point too much, but the introduction to Northern Ireland of the provisions about non-jury trials, when there is evidence of real and present danger of jury tampering, has taken an inordinate length of time—since 2003 until 8 January 2007. Could the Minister assure the Committee that the provisions on bad character, which were also legislated for in the 2003 Act, now extend to Northern Ireland? If they do not, why in heaven’s name do they not? We are part of the United Kingdom and if the provisions are good enough in Great Britain they should also be extended to Northern Ireland. There is provision in section 334 of the Act for bad character provisions to be extended to Northern Ireland. My first question to the Minister, therefore, is whether those provisions have been extended and, if so, when was that done. I suspect, with a sinking heart, that they have not. As with the jury tampering provisions, until we highlight the issue the Northern Ireland Office will not see fit to extend the bad character provisions. However, I hope to be surprised, although I will eat my hat if I am.

Secondly, will the Minister explain the impact of subsection (4) on a bad character application? Can the facts that the DPP used to come to the conclusion that a non-jury trial is appropriate, and which lead to the issuing of a certificate for such a trial, go towards a bad character application being made against the defendant? I should like the Minister to address those two issues, and that is my reason for tabling the amendment.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I oppose the amendment. As the hon. Member for North Down said, I have expressed concerns about the possibility that inferences might be drawn not only by the court, but more widely, and particularly where there is no indication of which conditions are supposed to have informed the DPP’s issuing of a certificate. If the amendment were successful, there would be no restriction on a court drawing an inference from the issuing of the certificate. We do not, of course, know what effect other evidence in the case might have.

I am particularly concerned because of some of the Secretary of State’s comments on Second Reading. At one point, he obviously misunderstood the Bill, because he said:

“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.]

Obviously, that is completely wrong, as we all know from our reading of the Bill. However, the Secretary of State later said:

“the Bill is clear that the DPP essentially takes the decision and issues the certificate, but he must have good grounds for that. The judge may want to ask him privately about the decision.”—[Official Report, 13 December 2006; Vol. 454, c. 903.]

I would be very concerned about a judge privately asking the DPP about some of the issues and conditions, perhaps being privately told what they were and then being allowed, in conducting the court, to draw an inference from the fact that a certificate had been issued. That breaches even the claims that were made about the Diplock courts, where judges had to warn themselves and meet all sorts of conditions so that nobody could say that what was done was of a lesser quality than what would have been done in a jury court.

Putting a judge in a non-jury court in circumstances in which he can draw a particular inference from the issuing of a certificate will take the Bill into even more dangerous territory than it is in already. I therefore oppose the amendment.

Paul Goggins (Labour, Wythenshawe and Sale East)

On the question of whether evidence of bad character has been introduced in Northern Ireland, it is in force there, not under the Criminal Justice Act 2003, but under equivalent legislation—the Criminal Justice (Evidence) (Northern Ireland) Order 2004. That is a different route, but I am sure that the hon. Member for North Down will be pleased to know that that is the situation. I hope that that will add to the credibility and strength of the justice system.

The clause is the result of a switch in presumption in relation to the decision as to whether a trial should be by judge alone, rather than by jury. Under the present, Diplock court system, the Attorney-General will not de-schedule a case unless he is satisfied that it is not connected with the emergency in Northern Ireland. In other words, he has to have positive evidence and information that a case is not connected with the emergency in Northern Ireland. There may not be any evidence, but for him to de-schedule it there has to be positive evidence that it is not connected with the emergency.

Under the system that we are proposing, where the presumption is changed, if a certificate has been issued, everybody will know that some positive information must have come before the Director of Public Prosecutions relating to membership of a proscribed organisation, involvement in political or religious hostility or the risk that the administration of justice would be impaired. In other words, the issuing of a certificate will signal that positive information and evidence has been seen by the DPP, leading to a judgment that the case should be tried by judge alone.

One can foresee that there would be more grounds for inference based on the issuing of a certificate than there would be under the de-scheduling of cases in the current system. We seek to question neither the credibility of the justice system in Northern Ireland, nor the senior judges that preside over it: they are used to dealing with cases on the facts and reaching their conclusions in the right way. Given that we are switching the balance in respect of how the test is carried out, it is important that it is switched in favour of a presumption of trial by jury, rather than not. It is important to include this small addition to the clause to make it clear that no inference can be drawn from the fact that a certificate has been issued. It is included to strengthen the credibility of the justice system. Although that is what judges do, it is none the less important to include this provision in the Bill. I hope that that reassures the hon. Lady. We seek to make it explicit that no inference can be drawn from our changing the way in which the test is carried out.

Sylvia Hermon (UUP, North Down)

First, I am delighted to know that the bad character applications are available in Northern Ireland ahead of the provisions on jury tampering— that has slipped under the radar—and that there will be a non-jury trial where there is evidence of jury tampering. The Minister has kindly addressed that issue.

Secondly, could the facts leading to the DPP’s conclusion about a certificate being served also go towards a bad character certificate being issued?

Paul Goggins (Labour, Wythenshawe and Sale East)

I apologise to the hon. Lady for not mentioning that in my response. Information could go into both processes, but the important thing to emphasise is that there are two distinct processes: one determines whether a certificate could be issued; the other is a finding of fact in relation to the allegation and the charge that has been made. Although the processes are different, the same information can go to both.

Sylvia Hermon (UUP, North Down)

That was the most useful intervention from the Minister that I have had all afternoon. I am enormously grateful and he is enormously relieved. Those are helpful assurances. We Committee members are tasked with the job of producing good legislation that deals with all circumstances. My amendment was intended to give the Minister an opportunity to explain what the clause means. I am delighted with his assurances and with the clarification with which he has provided the Committee. I beg to ask leave to withdraw the amendment.

Laurence Robertson (Conservative, Tewkesbury)

I beg to move amendment No. 11, in clause 5, page 4, line 33, leave out subsections (5) and (6).

I raised this matter previously. The amendment provides that, where the court is not satisfied that a defendant is guilty of an offence that is being tried, but is satisfied that he is guilty of another offence of which a jury could have found him guilty after trial, the court may convict him of the other offence. My concern is that somebody who is tried without jury for a specific offence can be found not guilty of that offence but convicted by that same court, without a jury, of a completely separate offence. Is that correct? If the second offence is a similar one, it could be argued that it would waste a lot of court time to start the trial all over again, but if it is very different, should it not be considered in a different way and separately? I do not wish to drag this out. I have raised the matter before, and the Government came up with all sorts of explanations, but I should like to hear what the Minister has to say about why they group two offences together.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall try to give a short but careful explanation, because I know that the hon. Gentleman has raised the issue before, and it is important to give the correct answer.

Subsection (5) enables the non-jury court to convict a person of an alternative offence, where the defendant is found not guilty of the offence for which he is being tried. The principle behind that provision is taken from normal criminal procedure. A jury can find a defendant not guilty of an offence with which he has been charged, but guilty of an alternative lesser offence even if that offence has not been put on the indictment. Alternative verdicts are available only where the lesser offence consists only of legal elements contained in that originally charged. That means that where a defendant is charged only with murder, a jury can acquit of murder but instead convict for manslaughter, because murder is similar to manslaughter. It is the same with robbery and theft. There might be a trial for robbery that is not found, but if theft is found the conviction is made.

It is not possible to move from murder to theft or from murder to robbery. The offences have to be of like nature for a conviction on the lesser offence to be found. The lesser offence arises from the same facts, and therefore the circumstances that have led to the decision for non-jury trial in that case will apply. It clearly makes sense for the tribunal that has already heard all the witnesses and come to a conclusion on the facts to enter the appropriate verdict rather than to start from scratch. It is in the interests of justice that we do not start all over again. That is important—the criminal justice system does not allow us to start all over again on the same charges. Under the changes to the double jeopardy rule—this takes us back again to the Criminal Justice Act 2003—it is possible to retry for the same offence only where the matters are very serious and there is new and compelling evidence.

If we do not give the judge here the same powers that a jury would have to convict on a lesser offence, somebody who is not convicted of the most serious offence but who has none the less committed an offence, could walk scot free from the court. That would indeed be something that any member of the Committee would regret.

Laurence Robertson (Conservative, Tewkesbury)

I am grateful to the Minister for his explanation. Is he satisfied that, as the Bill is drafted, the two offences—murder and manslaughter in the example that he gave—would be linked?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am satisfied that they would. The Bill is clear enough, and that is understood in criminal justice legislation and procedure generally. There has to be that close association between the two offences for there to be a finding of guilt on the lesser offence. That relationship has to exist; it is not possible for the court to switch dramatically from one offence to another.

Subsection (6) contains one of the main safeguards applicable to non-jury trial. Where the court convicts a defendant, it must give a judgment stating the reasons for the conviction at—or as soon as is reasonably practicable after—the time of the conviction. That helps to ensure the European convention on human rights compatibility of the system. It also provides transparency and helps to increase confidence that non-jury trials are fair. That is the point that the hon. Member for East Antrim made when we discussed clause 1. The fact that a trial is a non-jury trial does not mean that it is an unfair trial. The standard of justice has been very high indeed, and part of the underpinning of that is to ensure that the statement is made clearly at the end of the trial or as soon as possible afterwards. It is a safeguard to ensure that, in what are extraordinary, unusual circumstances, justice is done and—[Interruption.] My hon. Friend the Member for Foyle spots when I am getting to the end of my last sentence. Again, I will happily give way.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Does the Minister agree—well, I do not expect him to agree with the premise of the point, so I will rephrase it. Does the Minister accept that the problems with the credibility of a situation where certificates are issued without the information being revealed or indicated, and people do not know why the certificates were issued, would be compounded if the court that was held on the basis of a certificate could convict someone and, as a result of the measure, not be under an obligation to produce a statement of judgment in a timely fashion that said why they were convicted? Then, people would say, “We weren’t told why we were going to a non-jury court, and now we’ve been convicted and we’re not even told why we have been convicted.”

Paul Goggins (Labour, Wythenshawe and Sale East)

The issue is important. My hon. Friend has questioned the transparency of the system that we propose, and I have defended it and explained the Government’s position. It is important that at last we have something on which we can agree, which is the importance of the fact that the court makes absolutely clear the reasons for the finding of guilt and provides an explanation of that. That ensures that we comply with human rights legislation and, as important, it offers credibility to the system that we are putting in place, so that justice is done and is seen to be done, even if some of the decisions are not particularly transparent to the public eye. I hope that that explanation helps the hon. Member for Tewkesbury. I hope that I have calmed some of his fears and that he will consider withdrawing the amendment.

Laurence Robertson (Conservative, Tewkesbury)

I thank the Minister for his patient explanation. As the Bill is written, it does not give a guarantee that it is impossible to move from one offence to a different offence. I assume that the Minister is saying that the legislation that prevents that from happening covers Northern Ireland. If it does, I suppose that the question is why the subsection was put in the Bill if what has been described can happen anyway. I am happy to take an intervention.

Paul Goggins (Labour, Wythenshawe and Sale East)

I sense that the hon. Gentleman—I hope that I am correct—does not necessarily wish to press the amendment to a Division but does want a bit more background information, which I am happy to provide to him and other members of the Committee. I can assure him that what I have said is true, but perhaps we need to reference that a little more clearly for the hon. Member for Tewkesbury. That might satisfy him on the point.

Laurence Robertson (Conservative, Tewkesbury)

I am grateful to the Minister. Given that assurance, I beg to ask leave to withdraw the amendment.

Clause 7

Nicholas Winterton (Conservative, Macclesfield)

The question is that clause 7 stand part of the Bill—

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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.

Nicholas Winterton (Conservative, Macclesfield)

I am prepared to allow the hon. Gentleman to speak on clause stand part on clause 7.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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.

Nick Palmer (Labour, Broxtowe)

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.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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:

“Section 7(1) of the Human Rights Act 1998 (c. 42) (claim that public authority has infringed Convention right) is subject to subsections (1) and (2).”

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.

Mark Durkan (Social Democratic and Labour Party, Foyle)

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.

Laurence Robertson (Conservative, Tewkesbury)

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.

Sylvia Hermon (UUP, North Down)

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.

Nick Palmer (Labour, Broxtowe)

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?

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Laurence Robertson (Conservative, Tewkesbury)

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).

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

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.

The rest of the debate is in Hansard.