Justice and Security (Northern Ireland) Bill

In the debate on Clause 7 we shall also be discussing Amendment No. 17, which is consequential. For us, Clause 7 is the most objectionable of all the provisions in the Bill. My honourable friends in another place voted against it at Report, and since then the Joint Committee on Human Rights has severely criticised it, for reasons that are set out in some detail in paragraphs 1.28 to 1.37 of its report. The clause seeks to curtail the jurisdiction of the ordinary courts to entertain challenges to the DPP’s decision to issue a certificate, including challenges to the legality of that decision. As originally drafted, the clause also tried to subject Section 7 of the Human Rights Act—by which proceedings can be brought, claiming that a public authority has infringed a convention right—to a limitation that was set out in the clause. That part of it, at least, has been amended, and we welcomed that improvement. However, the jurisdiction of the courts is not ousted altogether but is restricted by reference to the grounds on which the issue of a certificate by the DPP may be challenged. A challenge is still possible on grounds of dishonesty or bad faith. It is claimed that such a limitation is not incompatible with a right of access to a court in Article 6.1 of the ECHR because in issuing a certificate, the DPP is not in fact determining a civil right. This issue is discussed in paragraph 1.30 of the JCHR report. In response to the committee’s request for elaboration of the reasons for the statutory ouster of the court’s jurisdiction to review the legality of a delegated decision, the Government pointed to the Shuker case in which they said that the High Court of Northern Ireland had ruled that, "““the procedure for determining mode of trial of the accused is not a process suitable for the full panoply of judicial review. Judicial review would be possible, however, on grounds such as bad faith, dishonesty, or other exceptional circumstances””." The Government claimed to be putting the judgment in Shuker on to a statutory footing, but, as they know, on careful reading of the Shuker case, the Joint Committee on Human Rights found that the Government had misread the judgment. What they are doing here is identical with the argument presented by the Attorney-General to the court in that case, and that was expressly rejected by the court. It is acknowledged that the court allows that decisions which are generally subject to judicial review may be exempt from certain grounds of challenge and that the decision in question, which concerned the de-scheduling of offences under the Terrorism Act 2000, was not amenable to judicial review on grounds of procedural unfairness. But the court specifically declared that it would not be helpful, or even possible, to predict what other grounds there might be for precluding judicial review challenges to delegated decisions. Further, the JCHR draws attention to the inappropriateness, in human rights terms, of sweeping statutory ouster clauses in legislation. It points out that the last time the Government tried this on, during consideration of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, they were forced to withdraw the offending provisions in the face of overwhelming parliamentary opposition. It welcomed the concessions that were made, in particular subjecting the clause to the Human Rights Act, but considered that lack of jurisdiction or error of law should be specifically mentioned as grounds on which judicial review would still be available. Our solution is even simpler: we propose to eliminate the clause altogether, leaving it for the courts to determine, as they have done quite properly in the Shuker case, that there is a small number of cases in which the decision of the Attorney-General—or, under this Bill, the DPP—should not be challengeable.