Justice and Security (Northern Ireland) Bill

In the light of what has been said, it is plain that we need to consider the points. While we do that, I want to explain to Members of the Committee the considerations which led the Government to bring forward this clause so that, in their turn, those arguments can be considered as well. Three points need to be made: what the problem is, the nature of the DPP’s decision, and what was said by the Court of Appeal in the Shuker case. We have touched on the problem a number of times during the course of our debates today. The problem is that in most of the cases where the DPP would reach the conclusion that he should issue a certificate, he would be heavily reliant on sensitive intelligence information, more often than not sensitive intelligence information which comes from human sources. One then has to envisage what the situation will be if there is a challenge to that certificate. I have been a practising lawyer for a very long time and I know that in representing a defendant in those circumstances I would want to say, ““I do not accept the decision of the DPP and I want to see the information on which he has based it””. Automatically, I would try to get at that information. Indeed, I might try to do that for two reasons: either because I would want the opportunity of challenging the underlying basis to see whether I could pick holes in it or say that the DPP had been too bullish in deciding that there should be a non-jury trial, or simply because I would know that the likelihood is that the evidence on which the DPP based his decision is information he cannot possibly share with me. The DPP cannot tell me and my client why it is believed that he is associated with a paramilitary organisation because my client will be able to guess that that information comes from a particular associate, and it is likely that only a certain number of associates could be responsible for it. He knows that I cannot share that information. That is a fact of what happens in other areas such as in criminal trials where people seek to get at what lies behind what is known as personally identifiable information—PII information—because they want to see whether they can put the prosecution into the position of having to identify an informant. The result is that sometimes the case cannot go ahead at all because the prosecution cannot disclose the sensitive information. In this case it would be that the prosecution cannot continue on the basis that there should be a non-jury trial, because the risk that the DPP was concerned about might come into existence. It is to recognise that risk and seek to minimise it that the Government have looked at who should be making the administrative decision and how far it should be open to regular challenge in the courts. The second issue is the nature of the decision the DPP is making. As I have also said during these debates, the decision he is making is analogous to other decisions he already makes, such as the mode of trial. He makes the decision already about the mode of trial between the Crown Court with a jury or a trial without a jury in the magistrates’ court. He is also making a decision, as again I have said several times, between one form of fair trial and another. I do not dismiss for a moment the very strong, understandable and justifiable attachment to jury trial, but even without a jury it remains a fair trial. I understand that those particular considerations were the reasons that led the Court of Appeal in the Shuker case to say that they would approach judicial review with reticence. I turn, then, to that case to explain where the words come from. The noble Lord, Lord Avebury, if I remember correctly, suggested that the argument we are putting forward in the Bill—presented by me, he said; in fact, it was presented on my behalf, but never mind about that—is precisely the argument that was rejected by the Court of Appeal. That is not right. The argument rejected by the court was that there should not be judicial review at all, and that is not what the clause says. It does not argue that there should not be judicial review at all; it recognises that there will be circumstances in which that is legitimate. However, it seeks to reflect in statutory language what we understand the Shuker decision to have been. There are several passages in the judgment that are relevant. The passage read by the noble Lord, Lord Trimble, is undoubtedly very relevant. As he concluded, "““This is par excellence a procedure on which the courts should be reluctant to intrude””." In fact the only circumstance the Lord Chief Justice was prepared specifically to countenance was bad faith. He did not even go further than that; as the noble Lord says, he said he did not want to identify what the further cases might be. There is an earlier passage in the judgment at paragraph 17, which is a quotation—the noble Lord, Lord Glentoran, referred to this in an earlier amendment—from Lord Steyn, who said that, "““absent dishonesty or mala fides””—" that is, bad faith— "““or an exceptional circumstance, the decision of the DPP to consent to the prosecution of the applicants is not amenable to judicial review””." It is that language that is being picked up in the statutory language. It would be for the courts to determine what were the exceptional circumstances, and that would be fully within their discretion to decide. The Joint Committee on Human Rights strongly condemned and criticised the earlier version of the clause. The noble Lord, Lord Avebury, referred to paragraphs 1.28 and 1.37. Paragraph 1.28 deals with the original version of this clause. Let me be perfectly frank: I could not have stood here and commended the original version of Clause 7 to Members of the Committee. I would not have been able to do so. However, following those criticisms and, indeed, what was said in another place, amendments were made, including explicitly putting back the reference to the Human Rights Act. It is right that the committee then deals with that in paragraph 1.37 of its report, and what it says there is not in any sense as strong as what it had said about the previous paragraph, nor should it be. It said that it welcomed, "““the narrowing of the scope of this previously sweeping clause … and in particular the subjection of the ouster clause to the Human Rights Act 1998. However, we note that the amendment still does not meet all of our concerns expressed above. A prohibition on judicial review except on grounds of dishonesty, bad faith or ‘other exceptional circumstances’ does not make sufficiently clear in our view that judicial review for lack of jurisdiction or error of law will still be available. In our view the rule of law requires no less””." I read that as meaning, as did Amendment No. 16 tabled by the noble Lord, Lord Glentoran, that they are concerned with the absence of ““error of law”” or ““lack of jurisdiction””. My question is: is that covered by exceptional circumstance? Indeed, my general question comes back to the point rightly made by the noble Lord, Lord Trimble. Given that the courts have indicated that they see a lack of reticence in the Shuker case, ought Parliament to leave it to them on these rather different clauses in these rather different circumstances; or ought we to send a message as Parliament that although it will remain for them to determine what are the exceptional circumstances, they should exercise reticence in relation to judicial review? I accept that we need to reflect on that, but I invite noble Lords also to reflect on the problem that I identified, which has led us to this position, which is, if we do not somehow send a message and express as Parliament concern about judicial review in the broader sense, we risk very sensitive information that we should not disclose having to be disclosed to determine that judicial review. None of that is to disagree one jot with what the noble and learned Lord, Lord Mayhew of Twysden, said about the importance of judicial review. I entirely agree with him about that. I might say that the Human Rights Act is also a very important part of holding the Executive to account, but judicial review is certainly important. This is not an ouster clause in the sense advanced in the Asylum and Immigration Bill—which I can now tell your Lordships, given that it was never put to the House, I, too had problems with.