Justice and Security (Northern Ireland) Bill

moved Amendment No. 2: 2: Clause 1 , page 1, line 5, leave out ““Director of Public Prosecutions”” and insert ““Attorney General”” The noble Lord said: I must say by way of introduction that I am at a bit of a loss to understand the grouping of amendments at this stage. I am happy to speak to Amendment No. 2. Amendment No. 13 has been tabled by the noble Lord, Lord Smith of Clifton, and the noble Baroness, Lady Harris of Richmond, and it does not seem to lie terribly well with Amendment No. 2. My Amendment No. 49, which is a new clause, was drafted on the assumption that some of the amendments following this group would have been discussed—and, indeed, on the assumption that one of them would have been agreed to, which I am sure will happen when we reach that amendment; at least, I hope it does. However, I shall try to cope with the situation we have. Amendment No. 2 is quite simple: it substitutesthe Attorney-General for the Director of Public Prosecutions. I am very glad to see that the noble and learned Lord is here to reply to this, and I hope he will appreciate that I am anxious to continue his role in this respect. I seriously believe that it is inappropriate that the Director of Public Prosecutions should himself be able to determine the mode of trial. That is the basic problem here. The Bill as drafted gives the DPP the power to issue a certificate, which then determines the mode of trial. It is inappropriate that that should be in the hands of the prosecuting authority. It is much better that someone else who is not simply a prosecutor but is also charged with considering the public responsibilities generally and the public interest should be the person who issues the certificate. It was suggested in the debate on Second Reading that that power should rest with the judges, but I could well imagine that the judges themselves would not want to have that. They too might feel a certain conflict of interest, as they would be the parties who were then going to determine the case, or at least decide it, if it went down the non-jury route. That leaves one with the Attorney-General. I should add that when I drafted this amendment, I deliberately used the wording ““Attorney General for Northern Ireland””, but I notice the Clerks dropped the phrase ““for Northern Ireland””. At the moment, of course, the Attorney-General for England and Wales discharges the functions of the Attorney-General for Northern Ireland, but that might change, and I thought one should provide for that. But the substance of the amendment is intended at least to get a more independent element into the choice of whether there will be a non-jury trial. The issues raised by my Amendment No. 49 are much more general. Clause 1 of the Bill provides fora non-jury trial in a number of cases. Various conditions have to be satisfied, and those conditions relate mainly, although not solely, to proscribed organisations. On the other hand there is the Criminal Justice Act 2003, which also provides for juries to be dispensed with, but the circumstances in the Criminal Justice Act are very narrow; they relate simply to evidence of a real and present danger that jury-tampering would take place. The relevant section, Section 44 of the Criminal Justice Act 2003, applies to Northern Ireland. So we have two different bases on which there can be non-jury trials: one where there is a proscribed organisation and other cases, which are limited to jury tampering; whereas in proscribed organisation cases, it is broader. What also concerned me was that the criteria differ. Under the proscribed organisation provision in Clause 1, for a certificate to be issued, the director—or, if I were to have my way, the Attorney-General—must be, "““satisfied that in view of this there is a risk that the administration of justice might be impaired””." In the Criminal Justice Act 2003, we are dealing with, if anything, a more stringent test. The judge must be satisfied of various conditions, including that thereis a, "““real and present danger that jury tampering would take place””," and that, "““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””." It is that final phrase in the 2003 Act on which I am focusing, whereas the equivalent provision in the clause is, "““a risk that the administration of justice might be impaired””." Both those provisions will be operating in Northern Ireland, but they operate two quite different standards. There is a very strong case to assimilate their criteria. I have drafted Amendment No. 49 to take what might be the novel way of assimilating the general provision to the Northern Ireland provision. It might be argued that we should assimilate them the other way, but I rather suspected that if I tried to assimilate Clause 1 to the same standard as applies in the 2003 Act, I would be told that it was wholly unrealistic to put the bar so high in Northern Ireland. So rather than raise the bar in Northern Ireland to the English standard, I suggest that we lower the English bar to the Northern Ireland standard. This is one United Kingdom; the same criteria and principles should apply throughout it in broad terms. Even if the Attorney-General is not attracted to my particular solution, there is a general issue with both the provisions being on the statute book. There is a contradiction between the two and it must be resolved one way or the other. I shall listen to what is said on that point with great interest. I beg to move.