Justice and Security (Northern Ireland) Bill

My Lords, it occurs to me that I am what the Good Friday agreement referred to as a cross-border body; because it is30 years or so since Merlyn-Rees appointed me as special adviser to the Standing Advisory Commission on Human Rights in Northern Ireland. Since then, I have had the privilege of appearing in front of the Northern Irish courts on several occasions, and I am a blow-in of 33 years standing in Cork. I love the whole of Ireland, north and south. I would like to say at the very beginning that I entirely agree with the noble Lord, Lord Trimble, especially on what he said about the courage and integrity of the Northern Ireland judiciary, which needs to be emphasised—not only their bravery but their fearless independence and impartiality. Although I sit on the Liberal Democrat Benches, I am speaking today as a member of the Joint Committee on Human Rights, and I shall not move a millimetre from its report. It is important that that all-party and beyond-party report should be carefully considered in this House. It could not be considered in the other place because it was published on12 February, so this is the first opportunity to draw attention to its proposals. The noble Baroness, Lady Blood, has already done so with great force in relation to the powers of the commissioner, which will enable me to be a bit shorter than I otherwise would have been. I also am grateful to officials from the Northern Ireland Office and from the Northern Ireland Human Rights Commission, who have met me and others to discuss the issues. I hope that the Minister will be able to respond to at least some of the concerns in the report in his reply today. I am more optimistic than my noble friend about the capacity to improve the Bill in Committee. If the Equality Bill was anything to go by, under the leadership of the noble Baroness, Lady Ashton of Upholland, we managed in Committee to make very substantial improvements. I may be considered an idiot, but I believe that the Minister is open-minded and that there will be considerable scope for dealing with some of these points in Committee. The Joint Committee on Human Rights raised three issues of main concern in its report. First, there was jury and non-jury trials, including the controversial ouster clause. Secondly, there was the powers of the commission, and thirdly there was the additional powers for the police and Army. Regarding juries and non-jury trials, I accept a great deal of what the noble Lord, Lord Trimble, said, but we accept the need for safeguards to protect juries from intimidation and for provision for trial without jury where there is a danger of jury tampering or perverse verdicts. We welcome the Bill’s reinstatement of a presumption in favour of jury trials in Northern Ireland, and we report that any departure from that presumption should be tightly defined and demonstrably related to the general problem of intimidation and sectarianism in Northern Ireland. The Bill gives the Director of Public Prosecutions the power to issue a certificate stating that a trial is to be conducted without a jury if the DPP suspects that a number of specified conditions are met and if there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. The committee is concerned with the width of the DPP’s power to certify. He may do so, for example, if the defendant is or at any time has been a member of a proscribed organisation, or is an ““associate”” of such a person. The committee accepts the possible need for a departure from a presumption of jury trial where the defendant is or has been a member of a proscribed organisation. Like the Northern Ireland Human Rights Commission, we are concerned about the extension of this to ““associates”” of such people. The breadth of that power gives rise to a risk that the power to certify may be used arbitrarily and in a way that may discriminate unfairly against friends or relatives of members or former members of proscribed or formerly proscribed organisations. It is the kind of problem that arose in a case in which I was involved in Strasbourg called Tinnelly and McElduff v United Kingdom, involving blacklisting. We therefore recommend that the Bill be amended to remove the reference to ““associates””. We also recommend by way of safeguards against arbitrariness that the DPP should be required to be satisfied that other less restrictive measures will not prevent jury tampering, and that the Bill should provide for judicial control. As regards the ouster clause, Clause 7 purports to exclude the jurisdiction of the ordinary courts to entertain challenges to the DPP's decision to issue a certificate, including challenges to the legality of the decision. Although Clause 7 has been revised and is now subject to the Human Rights Act, in our view it still conflicts with Section 7 of the Human Rights Act, by which proceedings can be brought claiming that a public authority has infringed a convention right. The ouster clause raises the significant issue of the restriction of the right of access to courts, recognised as fundamental both to the common law and in the scheme of the convention by the European Court of Human Rights. The Bill as it stands would permit a legal challenge only on grounds of bad faith or dishonesty or for what are called ““other exceptional circumstances””, and not because the DPP had no jurisdiction at all to deal with the matter or had committed a serious error in law. For example, if the DPP issued a certificate on the basis that someone belonged to an organisation which had in fact never been proscribed, it would be impossible to challenge the decision in court. The Government claim that they are merely putting on a statutory footing the current case law about challenging the Attorney-General’s decision whether to approve a case as fit for trial by jury under the current framework of the Diplock courts. We explain in our report that a careful reading of the decision of the High Court of Northern Irelandin the Shuker case shows that the ouster clause in the Bill is identical to the argument made by the Attorney-General and rejected by the High Court in that case. We expressed our regret that we find the explanation given in the Explanatory Notes and by the Minister in his letter to the committee to be disingenuous—we do not normally use language as strong as that—and we point out that Clause 7(1) and (2) is an attempt to put into statutory form the very argument which was made by the Attorney-General and rejected by the High Court of Northern Ireland in Shuker. We also point out that Clause 7(2) goes far beyond what the High Court actually held in Shuker, which ruled out judicial review of such decisions on grounds of procedural unfairness and explicitly left open the possibility of judicial review being available on other grounds in circumstances of future cases. I know that the noble Lord, Lord Rooker, is not a lawyer, but I also know that he is as capable as any lawyer of understanding the judgments of the Northern Irish courts. If the Minister could read paragraphs 25 to 27 of the judgment of the Lord Chief Justice for Northern Ireland, Sir Brian Kerr, and the Lord Justice of Appeal in Northern Ireland, Sir Anthony Campbell, he will find that the Government can well trust the courts of Northern Ireland to be extremely careful not to use judicial review to excess. In the judgment, they go out of their way to say, ““Let’s be pragmatic; let’s look at each case on its merits; let’s not say we have no jurisdiction to have judicial review; let’s exercise it only rarely, but we are by no means prepared to be fettered””. The advice in Clause 7(2) shows a lack of confidence by the Government in the judges of Northern Ireland, who can well be left to deal with the problem on a case-by-case analysis. Clause 7(2), as my noble friend said, raises similar rule-of-law concerns to the previous attempt by the Government to include a similar ouster clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill. There are good reasons why courts on judicial review should exercise restraint, as the courts in Northern Ireland have explained, but that does not justify a wide-ranging ouster of judicial review. It should be for the court to decide, in the circumstances of a particular case, whether the DPP has demonstrated that the issue raised cannot be determined by the court without disclosing information whose disclosure would harm the public interest. If the Minister reads the actual judgment, he will appreciate the force of what the committee has said. We welcome the Government’s amendment in narrowing the scope of this clause, but we hope that the Government and this House will agree that the rule of law requires no less than the deletionof Clause 7 as it stands. The reference to ““other exceptional circumstances”” is too vague. The next issue we raise is the need for equal opportunity for the defence and the prosecution in conducting juror checks. We conclude in paragraph 1.46 of our report that, to avoid a breach of the principle of equality of arms, it would be necessary either to retain the defence’s equivalent right of peremptory challenge or for the Crown to be prepared to disclose enough of the gist of the information obtained to support a challenge to a juror for cause. In other words, there must be a level playing field. We believe that a challenge for cause is capable of including a challenge on the basis that the juror is a security risk, susceptible to improper approaches or liable to be influenced in arriving at a verdict for political or sectarian reasons. What is sauce for the goose should be sauce for the gander in that matter. As regards the powers of the Northern Ireland Human Rights Commission, we welcome Clause 13, which enables the commission to institute or intervene in human rights legal proceedings. That is the same as the position under the Equality Act for the Commissioner for Equality and Human Rights. This will enhance the commission's effectiveness in promoting and protecting human rights. However, we share the Northern Ireland commission’s concerns about three matters, to which the noble Baroness, Lady Blood, referred in some detail. The first involves restrictions on the use of the commission's evidential powers, including ““national security””; the second involves fettering of access to places of detention; and the third involves the time limit on using the new powers. We agree with the Northern Ireland Commission that it should not be prevented from investigating a matter on the ground that it has already been sufficiently investigated by someone else; we also agree that there should be no blanket ban preventing the commission from raising questions about the intelligence services in its investigations. In the Northern Ireland context, such a limitation would be a severe blow to the commission's credibility and effectiveness. As regards the fettering of access to places of detention, we also agree with the commission that the restrictions imposed by the Bill are too onerous to enable it to carry out its statutory responsibilities effectively. The commission points out that the importance of monitoring the strategic management of national security issues has been highlighted by the Police Ombudsman in her recent investigation into allegations of collusion between the police and their informants. The fetters proposed in the Bill make it very doubtful whether the commission could form part of the UK's national preventive mechanism under the Optional Protocol to the Convention Against Torture. That is a matter on which the Government have not responded to the Joint Committee on Human Rights, although we asked it to do so. It would be a serious matter if the fetters prevented this commission from being able to play a part in that national preventive mechanism. There may be a misunderstanding among officials in this regard. Reference has been made to many other ways of inspecting—for example, by the director of the Prison Service, by the National Audit Office or by others—but, with respect, that is not really the point. The role of a national human rights institution in monitoring the human rights of prisoners and the associated regime is distinct from and complementary to an individual complaints mechanism such as that with the Prison Ombudsman or Her Majesty’s Chief Inspector of Prisons. The matter can be dealt with, as the noble Baroness indicated, by protocols or memoranda of understanding, to avoid overlap. Again, that is an example of a completely unnecessary bureaucratic obstacle, which I suggest should be removed. The noble Baroness, Lady Blood, has already dealt with the time limit on using new powers; there are no such limits with respect to the CEHR or the Scottish Human Rights Commissioner or any other oversight body in Northern Ireland. We, like her, recommend that Clause 19 should be deleted. Finally, I turn to the additional powers for the police and the military. The Bill gives them the power when on duty to stop a person ““for so long as is necessary”” to question him to ascertain his identity and movements. Members of the Armed Forces are also given a power to stop a person ““for so long as is necessary”” to question him to ascertain what he knows about a recent explosion or other recent incident endangering life, or about a person killed or injured in a recent explosion or incident. Bearing in mind that the member of the Armed Forces making the arrest must suspect that the person arrested has committed, was committing or was about to commit an offence, the JCHR believes that the arresting officer should be required at least to inform the detainee of the facts that are the foundation of the decision to detain and to ask whether he admits or denies the allegations. That should be an elementary requirement. It would reduce the risk of findings of incompatibility with Article 5.2 of the European convention in particular cases and avoid unnecessary litigation by lawyers such as me. We comment also on the breadth of the power of entry of premises and recommend that it should be expressed in objective terms, such as where the police officer or member of the armed services reasonably considers it necessary. That would reduce the risk of the power being found to be incompatible with Article 8 of the convention. We also recommend that there should be an equivalent requirement of authorisation by a senior officer where the power is exercised by a member of the Armed Forces. The Bill provides the police and Armed Forces with a power to enter and search premises to ascertain whether there are munitions unlawfully on the premises or wireless apparatus on premises where there is a reasonable suspicion that such items are present. It gives the officer who is carrying out such a search the power to require a person to remain on the premises for up to four hours, extendable to eight hours in total if he reasonably believes it necessary to carry out the search or prevent it being frustrated. We explain our reasons for doubting whether detention for up to eight hours during a search of premises is compatible with the right to liberty in Article 5 of the convention. However, we welcome the Minister’s indication to us that he intends to make available a draft of the guidance on the use of these powers during the passage of the Bill. We hope the Minister will reply to these concerns and indicate at what stage we will be provided with the draft of the guidance. We look forward, perhaps in Grand Committee, to being able to pursue these matters in a spirit of optimism and constructive assistance.