Justice and Security (Northern Ireland) Bill 2007
20 February 2007

In a debate on the Justice and Security (Northern Ireland) Bill 2007 in the House of Lords on 20 February 2007 Lord Trimble said,

'My Lords, in introducing the Bill the Minister reflected on recent and anticipated developments in Northern Ireland. He reflected first on the moves that republicans have made to support the police and then said that the Government fully expected a resumption of the power-sharing Executive on 26 March. The language he used at that stage was significantly different from the language the Government were using after the meeting at St Andrews, when they said that there were two issues that had to be resolved: Sinn Fein’s approach to policing and the willingness of the Democratic Unionist Party to enter into a power-sharing Executive.

It is to be regretted that those noble Lords who are closely related to the Democratic Unionist Party are not present with us today to give further guidance on the second issue. I hope that the Minister is right in his confidence that the Democratic Unionist Party is ready and willing to enter a power-sharing Executive on 26 March. Some of us may entertain a little scepticism about that, scepticism reinforced not just by experience but by the studied ambiguity of the leadership of the DUP and the not-so-ambiguous attitudes struck by certain individual members of the DUP. However, we shall wait and see what happens.

I know from experience that the Minister will not want to say anything clear on this issue, and I see that he is nodding his head, so I shall leave him to his confident attitude on the matter and its underlying ambiguity. I have a certain sense of déjà-vu about his first point on republican support for the police, because we discussed this issue at great length with republicans in 2003. Had certain circumstances and events occurred more favourably, had the Independent Commission on Decommissioning carried out its remit properly and had the Administration resumed in 2003 as we hoped, I am confident that, within a short period, republicans would have made the move that they have made in recent weeks and months.

As mentioned in the debates, the republicans are and have been playing a game. They knew that support for policing was their last card and they have held it back. They could have put it on the table four years ago, had matters been handled better, but we have had a delay of some four years in seeing it on the table, and I understand the scepticism about the sincerity of republicans on the matter. There is only one way to find out whether they are genuine: to see what happens. However, there are some worrying circumstances. I was glad that the noble Baroness, Lady Park of Monmouth, mentioned community restorative justice schemes, a matter that should give the House considerable concern. It is regrettable that in the Bill, which covers such a wide range of issues, there is no provision for a legal basis for the operation of such schemes. It is not right that the Government should allow part of the criminal justice system to be contracted out to private people, with no effective legal safeguards for the protection of the human rights of those involved.

As I look at the situation in Northern Ireland, the gravest source of threat to human rights is through the kangaroo courts of paramilitaries, which are now potentially being transmuted into community restorative justice schemes. The silence on that issue from the Government, particularly when we have this opportunity before us, is very concerning.

The noble Baroness also mentioned the McCartney case. I speak from memory—my source on this is the website under the name of Slugger O’Toole; perhaps people should check my source. Slugger O’Toole’s website noted a day or two ago that, among those who had assented to the nomination of a Sinn Fein candidate, one Mr Alex Maskey, were two persons alleged to have been in the pub where Mr McCartney was on the occasion of the assault on him that resulted in his murder and who have not given statements to the police. A number of persons who were there have given statements but, according to Slugger O'Toole, those persons have not. The fact that two persons who were there in the pub who have not co-operated with the police are so close to the Sinn Fein candidate that they signed his nomination paper would not give one any great comfort.

The noble Baroness, Lady Harris of Richmond, made clear her distaste for non-jury trials. I do not share that approach at all. In this debate, it is appropriate that we record our appreciation of the judges in Northern Ireland who, during the past 30 years, have sat in Diplock courts in very difficult circumstances. Despite the difficulties and dangers, they have managed during that time to deliver a good result. That must be said.

No system is perfect. Any form of trial will occasionally result in mistakes being made. Over the years, I have had occasion to associate myself with a campaign to remedy a miscarriage of justice in a Diplock court which was not entirely successful, despite having the case sent to the Court of Appeal twice. Of the four defendants, we got three cleared but not the fourth, so there is still a miscarriage of justice in that respect. There may be other cases with which I am not familiar, but looking back over the past 30 to 40 years to see how Northern Ireland issues have been handled in the courts, the major miscarriages of justice have occurred in jury trials in England. We should reflect on that.

Over the years in Northern Ireland, campaigns have been got up by paramilitaries, sometimes with popular support, about aspects of the legal system. Supergrasses were criticised; interrogation techniques were criticised; but there was no serious campaign for a return to juries. There has been no serious campaign in Northern Ireland over the years for a change to the single-judge Diplock court. Some people—in my view, foolishly—think that the courts would be better with three judges. I think that that is a profound mistake. It is interesting that there has never been any popular support for change to the process.

I am glad to see that the main safeguards that existed in Diplock courts are reproduced in the Bill. Those safeguards are, first, that the judge must produce a written reasoned judgment where he deals with all the circumstances in the case and the evidence that has been presented. That is linked to the second safeguard: that there is an unlimited right of appeal to the Court of Appeal on any ground. That means that the judge knows that his judgment is liable to be thoroughly examined by three judges in the Court of Appeal and picked over by the lawyers looking for any possible flaw in his argument, and that they will be doing that without having had the benefit, as he had, of seeing the witnesses give evidence. That is a very significant safeguard.

Over the years, I have read quite a few judgments given by judges in Diplock courts. The success of the Northern Ireland judiciary in producing good judgments that clearly stand up when examined must be recorded.

The first part of the Bill is rolling over Diplock courts into a new context where there is a shift of emphasis in the decision, in that now the presumption is that there will be a jury trial unless the DPP issues a certificate. There are provisions on the grounds on which certificates might be given. I shall be interested, when we get to look at this more closely, to see the arguments for giving this to the DPP rather than, as heretofore, to the Attorney-General. I think that there would still be some advantage in giving it to the Attorney-General so that there is a person who has a degree of accountability here who could then give a view on the matter. I think that is significant.

I want to focus on one issue regarding the conditions in Clause 1. Three of those conditions make reference to a linkage with a proscribed organisation. In deciding whether to have a non-jury trial, it is obvious that there should be a reference to proscribed organisations; that makes sense. What concerns me is the absence of any reference to serious organised crime. Some paramilitary organisations are now gradually transmuting themselves into organised crime gangs. Most of the organised crime gangs in Northern Ireland have paramilitary linkages—most of them but not all. I am thinking of a report by the Independent Monitoring Commission in 2004, which said that of the most serious organised crime gangs, three quarters have linkages with paramilitary organisations but the other quarter do not. What happens there? The danger of attempting to nobble juries is just as great with organised crime in this context.

The Government might reply that that can be covered under the Criminal Justice Act 2003, which provides for an application for a non-jury trial where there is reason outside the context of terrorism to believe that the jury might be tampered with. However, there are significant differences between the procedure under the Criminal Justice Act 2003 and that in Clause 1. We should bear in mind that we will have some organised criminal gangs in Northern Ireland that, because of a history linking them to paramilitaries, will come under the Bill, whereas others who do not have the history of a linkage with paramilitary gangs will come under the 2003 Act, with radically different procedures. That has not been well thought out and we might want to look at it.

I think that most of the attempts to safeguard jury members are sensible, but I was glad to see paragraph 6 of the Explanatory Notes refer to, “reforms which it is considered will reduce the risk of juror intimidation and partisan juries”.

I was glad to see that reference to partisan juries. It is too often forgotten that when Diplock reported in 1973, while most of the emphasis was given to juror intimidation, there was also reference to the dangers that flow from partisan juries. It is not something one likes to advertise but it has to be said that in 1973 there was concern among senior officials in the administration of justice that there had been partisan decisions, perverse acquittals and even perverse convictions. Indeed, some might regard some of the miscarriages of justice in jury trials in terrorist cases as coming into that category as well.

That is particularly significant when considering religious or political hostility in subsections (6) and (7) of Clause 1. Subsection (6) relates to an offence that, “was committed to any extent ... as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons”.

That goes into this territory. Part of the reason I mention it is that on this side of the water, as we say, given the terrorist problems that are now developing here, it would be appropriate for someone to think about whether there is a risk of having partisan juries. These situations may develop and if they do so it is better to have thought about them and to have something prepared beforehand rather than have to patch up what has happened afterwards.

I must say that the Clause 42 provisions for the justice department astonished me. Had I any influence on those in the Northern Ireland Assembly, I would take grave exception to this. As things were originally planned, it was to be left to us in the Assembly to decide how we would structure departments. When active consideration was given to the question of the devolution of policing and justice in 2002 and 2003, we were happy to discuss with others what models would be necessary. Had the Government here started to prescribe models, even if they were just presented as models, I would have deeply resented it. I would also have deeply resented it had the Government taken powers to impose a model, as it were, on the Northern Ireland Assembly. It is getting desperately close to overriding the Assembly itself. The Minister disclaims that intention, but Clause 42 makes it obvious that we are going to see a little bit of spin: the Democratic Unionist Party will be assured that the triple lock has not been overridden and the Government are just bringing this forward for consideration. It will still be up to the party to decide whether or not to elect a Minister for justice; and of course Sinn Fein will be told, “This is how hard we are pushing on the target date of May 2008. We are taking the power to enable us to put it in place if the Assembly does not agree”. The obvious message underlying it is, “When the time comes we may be prepared to go further and actually impose the devolution”.

There is a strand of thinking among those in the DUP that they would be happy to operate something if it was imposed upon them rather than having to vote for it. I remember DUP members who said of the Belfast agreement that we should never have agreed to it. It would have been all right if it had been imposed on us, then we could have worked it, but somehow it was wrong for us to agree to it. I suspect that the same thing is happening again and what we are seeing is the beginning of a little ritual dance that will result in that. But I fear that the people of Northern Ireland will not be content with it. In fact, I have grave reservations about whether the people of Northern Ireland are ready for the devolution of policing and justice powers. Certainly their temper in recent times would indicate that they are not. I doubt very much whether things will change so dramatically in just over a year.'

To read the debate in full click here

20 February 2007

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