Justice and Security (Northern Ireland) Bill

My Lords, I am grateful to the noble Baroness, Lady Harris, and the noble Lord, Lord Glentoran. I am also grateful to all those—I see in their places the noble Lord, Lord Trimble, the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Avebury—who participated in what I thought was a very constructive discussion in Grand Committee. I also thank all those with whom I have had conversations since and for the great care taken by the noble Lord, Lord Glentoran, in investigating from his own point of view how to get this right in Northern Ireland. He and the noble Baroness are absolutely correct to say that we have to try to get the right balance in these matters. I have never suggested that it is straightforward, but we are of the view that, unfortunate though it may be, it is a fact that the position in Northern Ireland remains, and may remain for some time, one where there needs to be a different test for avoiding jury intimidation and things of that sort from the one that would apply in England and Wales. That is why the noble Baroness was right to point out that the test for England and Wales is tougher to satisfy than the test in this Bill, but that is deliberately so for the reasons which have been explained. The fundamental question put by the noble Baroness is whether the Government are of the view that they have set the balance at the right level. I committed to reflect on a number of suggestions helpfully made in Grand Committee. That has been done and the conclusions were set out in a letter from my noble friend Lord Rooker, copied to all Members who participated in the earlier debates. The short answer essentially is yes, we do believe that we have the balance right, and I shall explain why, but it is correct also to make the point highlighted by the noble Lord, Lord Glentoran, that if the House accepts the proposed sunset or time-limiting clause shortly to be moved by my noble friend Lord Rooker, it will provide an opportunity to see how the test has operated when the House considers a report that no doubt it will want to see on the operation on the Act. Although we debated them in Committee, I want to make one or two points. First, I think it is now the view of the House, and I appreciate it, that we can have the confidence in the scrupulous way in which the current Director of Public Prosecutions for Northern Ireland has discharged his duties. His tenure in office has required him to consider some of the most difficult cases, and in Grand Committee the noble and learned Lord, Lord Mayhew of Twysden, was good enough to make that point based on his own experience. Many of the cases dealt with by the DPP are complex, and confidence in the prosecution service is in no small measure due to the way in which he has scrupulously fulfilled those responsibilities. I have no doubt that he will take exactly the same rigorous and conscientious approach to the new duties that the Bill will impose on him. The concern has been whether by setting the barrier too high one would put too high a burden before these provisions can be operated. As I explained in Grand Committee, one has to look at the effect of striking the balance in the wrong place. If we put the barrier too high, the risk is that cases which ought to be dealt with under the special provisions in the Bill will not be dealt with in that way. The risk is that there will not be a fair trial because there may be jury or witness intimidation—jury intimidation, particularly. Worse than that, there is a risk that juries might be subjected to violence, which we want to avoid. Setting the test a little too low could mean that a case is dealt with under the special system under the Bill rather than by a jury; I believe that everyone is agreed that that would be a fair trial, albeit a trial by judge alone. No one has challenged that proposition; everyone has agreed. The history of the Diplock courts in Northern Ireland shows that the judges have conducted themselves with conspicuous fairness in the trials which they have conducted without a jury. We are concerned that the amendments would risk setting the test too high. We believe that we have struck the right balance and that we ought to keep it, very much for the reasons that the noble Lord, Lord Glentoran, gave. However, we will have an opportunity to see how the legislation has operated if the House accepts the proposal for a sunset clause. On that basis, I invite the noble Baroness to acceptthe Government’s assurance and withdraw the amendment.