Defamation Act 2013: Northern Ireland

Lord Bew Excerpts

Thursday 27th June 2013 Grand Committee

[Lord Bew]

My Lords, first, I thank the noble Lord, Lord Lexden, for securing this debate. It is conventional to say so but in this case I should like to go further and say that it reflects the noble Lord’s deep love for Northern Ireland and his consistent concern about its public life even when, at times, Northern Ireland does not present its most attractive face to the world.

I have to acknowledge that I remain puzzled as to why the Northern Ireland Assembly is taking this position at this point and I should like to explain why I am still puzzled. If one looks at the unionist political class, a defining feature of the rhetoric of unionism was the belief in something called equality of citizenship. The current First Minister is famous, above all, for one phrase in the aftermath of the Anglo-Irish agreement of 1985, when he complained that he regarded Northern Ireland as having been pushed on to the window ledge of the union. In this case, it looks as if he himself is scrabbling out of the main room of the house to get himself on to the window ledge of the union.

Equality of citizenship has always been at some level an important part of the historic argument for unionism. That does not mean that in all cases Northern Ireland must apply exactly the law as it is here, and there may be significant reasons for difference. The important point is that there should be—as there has been in other recent cases, to be fair—an open public debate as to why that might be so. What is specific about this case is that there has been virtually no public debate, just a negative fiat and a refusal of legislative consent with no real explanation. Of course, I am delighted to see that politicians in the Assembly are trying to ensure a public debate.

I now refer to the republican and nationalist tradition in the Assembly, which must have a voice in this respect. That tradition has always chosen to identify itself with human rights. It is particularly keen on the campaign for a Northern Ireland Bill of Human Rights. I would say that such a campaign is compromised by the stand that has apparently been taken. Let me explain why.

The noble Lord, Lord Lester, has already referred to the European convention. In the Belfast agreement, strand 1, the sections dealing with the establishment of democratic institutions in Northern Ireland, sections 1 to 4, explain that there will be an Executive established. Section 5 then provides safeguards. The first safeguard is the principle of proportionality in terms of Ministers, committee chairs, and so on, but the second key safeguard is the European convention. Indeed, when safeguards are discussed in the third section, the European convention is also mentioned along with any possible Bill of Rights.

So the significance of the European convention for the working of the Belfast agreement is flagged up at the heart of the agreement itself. It seems to me that a political tradition which has identified itself so much, as, for understandable reasons, the republican and nationalist tradition has, with the European convention, and which has identified itself with the campaign for a Northern Ireland Bill of Human Rights, has at this point been remarkably silent on a concrete application which is of real meaning to the citizens of Northern Ireland.

I turn to one other key aspect of the current decision as it affects universities. I hope that the noble Lord, Lord Lexden, will forgive me for that, because I think that his affection for Northern Ireland was first formed when he was an academic at Queen’s University Belfast. The truth is that British provincial, what we might call old-style redbrick universities, are finding it more and more difficult in a competitive world to retain their remarkably strong position in league tables. We do not seem at this point to have a problem with keeping Oxford and Cambridge—or Imperial—right up at the top, but there is considerable evidence that universities such as Manchester, Glasgow and Sheffield are struggling in an intensely competitive world to maintain their relatively high positions in those league tables. Queen’s University Belfast is certainly not exempt from that difficult struggle.

To me, it sends out a very negative signal for academics who might be considering working at Queen’s University Belfast to discover that they would be working in the only region of the United Kingdom where, at this point, the amount of academic freedom is a matter of indifference. One of the most important things in the new defamation legislation is the increased defence of academic freedom, particularly to allow academics to express controversial and difficult opinions in peer-reviewed journals in both the sciences and humanities in a way in which the chill factor previously undoubtedly militated against. It seems to me symbolically that if you want to maintain a vital university culture, this is a mistake for the Assembly. The sector is of considerable importance to the economy of Northern Ireland and the point has already been made by the noble Lord, Lord Black, that what has been done here has implications for the economy of Northern Ireland.

If the universities of Northern Ireland can maintain a strong position in the international league tables, that must be good for the economy. If they sag, and if there is a growing sense that they are not the best places to work and certainly not the most free, and that the local political class does not really care about that, then that is a negative signal. I hope it will not be sent out. There is a great phrase from Brian Lenihan, a former Foreign Minister of the Irish Republic, about the value of mature recollection. I hope that in this case mature reflection will come to the rescue of the Northern Ireland Assembly and that there will be some reconsideration.

Justice and Security (Northern Ireland) Act 2007 (Code of Practice) Order 2013

Lord Bew Excerpts

Thursday 20th June 2013 Lords Chamber

The context for these powers is crucial to the debate. Your Lordships will all be aware that the threat level in Northern Ireland remains severe. It is vital that the Police Service of Northern Ireland continues to have available the powers in the 2007 Act. The powers in the Act are not terrorism powers per se; they are powers for dealing with public order situations, including, but not restricted to, terrorism. The powers are an important tool for maintaining public order and were exercised by the PSNI during the recent flags dispute. However, given the current situation in Northern Ireland, these powers are often used to protect the public from terrorist attacks. The PSNI has demonstrated that these powers are necessary and effective in dealing with Northern Ireland-related terrorism. They have prevented attacks, saved lives and led to arrests and convictions. I commend the order to the House.

[Lord Bew]

I thank the noble Baroness for introducing this statutory instrument and broadly offer my support. Since the Court of Appeal’s ruling in May of this year, it is clear that this matter has acquired a degree of urgency and I understand why the Government want to move so quickly. Broadly speaking, I accept her words when she says that the right balance has been achieved between civil liberties and the need to preserve public security.

However, I have one slight reservation. Paragraph 8.4 of the Code of Practice for the Exercise of Powers in the Justice and Security (Northern Ireland) Act 2007 states:

“The use of these powers can protect people’s rights under the European Convention on Human Rights, such as Article 2 (the right to life) by preventing serious harm posed by use of unlawful munitions and wireless apparatus. However, if these powers are exercised there may be some interference with other rights under the Convention, such as the right to private life, and this should be borne in mind when officers judge it necessary to use these powers”.

This is under the part of the code dealing with search for and seizure of munitions and transmitters. My slight problem with that phrasing is that it seems to say that there are two rights. It does not do so explicitly but it leads into it. One is the right to a private life and the other is the commitment that the police must have, under the European convention, to protect life. Following the Court of Appeal ruling, we are putting this problem back with the officers on the ground, and it is probably reasonable to make it clearer. I think that Parliament properly believes that the right to life, in certain circumstances, trumps the right to a private life for a person who might be under investigation. There is just an element of equivocation in the drafting there, which suggests an apparent equality of rights. I accept that it does not actually equate those rights but it certainly does not prioritise one right over another.

Noble Lords will remember that we have expected officers in the last few days, in the lead-up to the G8 summit, to protect world leaders who are in Northern Ireland. They might have been in a situation of trying to intercept ammunition that was being moved around Northern Ireland. I cannot imagine that it would be enormously helpful for them to have to have in mind that they must, on the one had, weigh up their views on the right to life—we all have the right to life but in this case it is the lives of some very important people—and at the same time have to bear that in mind that they might be interfering with the private life of the person driving the car. There is a real problem of balance here and I just think that the drafting is slightly too glib. I am not in any way going to push this point but think it is worth registering. Broadly speaking, I accept the reason for the statutory instrument and accept entirely the defence that has been offered this afternoon by the Minister.

[Lord McAvoy]

My Lords, I, too, thank the Minister for the clear exposition of the powers outlined in the code of practice. There is a very wide range of powers affecting the Police Service of Northern Ireland and the Armed Forces and it is right and proper that there should be a well thought out code of practice governing the exercise and use of those powers. We all know the situation in Northern Ireland, where the authorities, the police and the Armed Forces have to be seen to be absolutely foursquare in their application of those powers. This code of practice builds in safeguards for the use of the powers for all in the community.

Security in Northern Ireland is of the utmost importance to all noble Lords in this House and we are united in our commitment to ensuring that people in Northern Ireland are safe and secure. The men and women officers of the Police Service of Northern Ireland do their jobs with bravery and dedication. The measures in the Act play a hugely important role in combating terrorism and protecting communities in Northern Ireland and it is very important that they are overseen by rigorous, independent scrutiny. That is encompassed in the code of practice, which is vital to maintaining public confidence in Northern Ireland in the exercise of these powers. We on this side of the House are happy to lend our support, in the best traditions of bipartisanship, and understand the reasons for the urgent nature of the measure. I would like to place on record that Her Majesty’s Loyal Opposition give their full support to this order.

Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2013

Lord Bew Excerpts

Tuesday 4th June 2013 Grand Committee

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson)]

My Lords, this order extends for a further two years the period during which trials without a jury can take place in certain circumstances in Northern Ireland. Without this order, the system allowing for non-jury trials would lapse on 31 July this year.

It is with regret that I propose that this system be renewed for a further two years, but I do so with the knowledge that there remains in Northern Ireland a serious threat from a small but dangerous minority. They have no mandate but seek to drag Northern Ireland back into the past. Their targets are police officers, soldiers and prison officers, but their attacks are felt by the wider community, many of whom face disruption on a daily basis.

The reckless murder of prison officer David Black, in November 2012, by a group referred to as the “new IRA” was an unwelcome reminder of the continuing threat posed by dissident republican terrorists. This new grouping primarily consists of members of the Real IRA, Republican Action Against Drugs, which conducts brutal shootings against nationalist members of the community, and a number of unaffiliated individuals, who we believe have connections to the fatal attack against Massereene barracks in 2009.

The Police Service of Northern Ireland and its counterpart in the Republic of Ireland, the AGS, continue to thwart the efforts of such groups. Across the island of Ireland, 173 arrests and 64 charges were made during 2012. There were also 18 convictions of individuals involved in planning and participating in attacks. So far this year, there have been 63 arrests, 32 charges and 18 seizures. Many more attacks have been thwarted and disrupted.

It is therefore vital that there are means available within the criminal justice system to allow the perpetrators of these attacks to be brought before the law. We must recognise that Northern Ireland is still unfortunately in a unique situation, and the non-jury trial provisions provide a unique solution to a small number of cases. Noble Lords will know that jury trials in Northern Ireland are not safe from disruption by those involved in terrorist activity. Public galleries are at times crowded with members of the public. The close-knit nature of society in Northern Ireland means that jurors are vulnerable to intimidation. This can result in, at best, a partisan verdict.

I thought it would be helpful if I outlined the processes involved in order to obtain a non-jury trial. The Director of Public Prosecutions issues a certificate which allows for one. The DPP can issue a certificate for a non-jury trial only if he believes that one or more of four statutory conditions, which are laid out in Section 1 of the Justice and Security (Northern Ireland) Act 2007, are met. Condition 1 is that the defendant is, or is an associate of, a member of a proscribed organisation. Condition 2 is that the offence was committed on behalf of a proscribed organisation or that a proscribed organisation was involved. Condition 3 is that an attempt has been made by or on behalf of a proscribed organisation to prejudice the investigation or prosecution. Condition 4 is that the offence was committed as a result of, or in connection with, religious or political hostility.

Noble Lords will be aware that a proscribed organisation is one that is concerned with terrorism. It can also be seen that the four conditions relate specifically to the circumstances of the offence and the defendant. Furthermore, the DPP must be satisfied that there is a risk that the administration of justice might be impaired if a jury trial were to be held. There is a clear distinction here between this system and the previous Diplock court arrangements which were in place prior to the Justice and Security (Northern Ireland) Act 2007. The Diplock system saw all scheduled offences tried by a judge alone. Today, there is a clear presumption that jury trial will take place in all cases. Certificates are issued only when absolutely necessary in the interests of the administration of justice and where the particular statutory tests are met.

Noble Lords will also wish to be aware that not all cases proceed to a non-jury trial. The PSNI holds no right to stipulate that a non-jury trial takes place, and the Director of Public Prosecutions acts with discretion and independence in deciding whether to issue a certificate. Hence the number of non-jury trials in Northern Ireland remains relatively low. So far, in 2013, the DPP has issued just eight certificates for non-jury trials and one request has been refused. In 2012, 25 certificates were issued and three were refused. However, while they are low, these figures are still significant and show the ongoing need for non-jury trial.

I know that this is now the third such renewal of these provisions and there is some concern about that. I am also aware that during the last renewal in 2011, noble Lords expressed concern about the limited consultation that was held at the time. I can, however, inform noble Lords that prior to taking a decision on the renewal of the provisions this time around, the Northern Ireland Office canvassed opinion from the main stakeholders linked to the operation of non-jury trials in Northern Ireland. This included the PSNI, the Department of Justice, the Northern Ireland Courts and Tribunals Service, the PPS in Northern Ireland and the Office of the Lord Chief Justice. The consensus among all of those stakeholders was that the present threat environment is not dissimilar to that surrounding the previous renewal and, as such, all were in favour of renewing the provisions as they currently stand.

The canvassing exercise did, however, inform the Secretary of State’s decision to hold a limited consultation again for the 2013 review. In reaching her final decision on whether to seek the renewal of the provisions, the Secretary of State then formally consulted with those who have direct involvement in the operation of the system, including members of the judiciary, the security forces, human rights groups and political representatives.

The noble Lord, Lord Carlile of Berriew, the Independent Reviewer of National Security Arrangements in Northern Ireland, who has previously scrutinised the non-jury trial system, concluded that trials are not safe from disruption and recommended renewal of the provisions for a further two years. The Attorney-General, in his capacity as Advocate-General for Northern Ireland, also agreed that in view of the current circumstances a further two-year extension should be sought.

Although there was some limited opposition to renewal, the overwhelming response from the consultation acknowledged that the security situation in Northern Ireland rendered the provisions necessary, at least for a further two years. I can assure noble Lords that the Government do want to see a return to full jury trial in all cases in Northern Ireland, but this should happen only when the security situation permits and your Lordships will know that we are not there yet. Given the current severe threat from Northern Ireland-related terrorism and its bearing on criminal trials, now is not the time. The renewal of these provisions for a further two years is, regretfully, the only way forward at present.

The Government remain fully committed to tackling the threat from terrorism and keeping the people of Northern Ireland safe and secure. It is with this responsibility in mind that the Government seek to renew the non-jury trial provisions. I commend the order to the Grand Committee.

[Lord Bew]

My Lords, I thank the noble Baroness, Lady Randerson, for introducing the order, which I reluctantly support. I have only one question. At one point the noble Baroness said that all stakeholders who were consulted accepted the need for the continuation of these arrangements. The document actually says that the majority of respondents to the consultation accepted the need for the continuation of these arrangements. Is it possible to be told a little more about the arguments of the minority and how strongly they were stated, even, if possible, where they came from and, indeed, if this represents any difference of view among the political parties? However, as I said in my opening remarks, I regretfully agree absolutely with the Government that the situation in Northern Ireland at the moment is such that it is necessary to continue with these arrangements. I hope very much that it will not be too long before the Minister can come to the Dispatch Box and give us better news, but she has had no alternative than to make the announcement that she has today.

[Lord Empey]

My Lords, I reluctantly agree with the noble Lord, Lord Bew. We are considering a two-year renewal. Given the length of time that would have to elapse before what any of us would consider normality could resume, it seems to me inevitable that this measure will have to be renewed, at least for the proposed period. The fact is that while the number of trials is not large, it is significant, and it is the nature of the trials that is really the issue. I do not see any grounds for believing that we are at a point where a renewal of this provision could be refused in the foreseeable future. That is most unfortunate but I think the reality on the ground speaks for itself.

The noble Baroness referred to the murder of Mr Black towards the end of last year. Perhaps the Committee is not aware of the number of terrorist attempts that have been made since then, to say nothing of what was done in the year or two years before the death of Mr Black. We should put on record our thanks to the security services for the number of terrorist attempts that have been interdicted. We also should thank the Irish police for the co-operation that we are receiving from them and for the very effective actions that they have taken. Their contribution has saved the lives of many people, not only within their own jurisdiction but within ours.

Northern Ireland

Lord Bew Excerpts

Thursday 10th January 2013 Lords Chamber

[Baroness Randerson]

I thank the noble Lord for his question. I agree wholeheartedly that it is absolutely essential that the UK Government maintain an interest in what is happening in Northern Ireland and that there are very close links between the Northern Ireland Office and the Northern Ireland Executive. I know that those links exist and that they are very active. The Secretary of State has been in daily contact with the Northern Ireland Executive and Ministers in the last few weeks. We must not accept violence on the streets of any of our cities. What is perhaps most poignant about the recent weeks is that we had almost come to believe that Belfast was entirely stable and secure from the outside. I think it has come as rather a shock to many people how difficult it has been to control this violence.

[Lord Bew]

My Lords, I thank the Minister for presenting this debate and for both its tone and its detail. I would like to focus just on one point: the mode of address of government in these circumstances.

One of the reasons for what has happened and for the many disgraceful scenes that we have seen on our television screens—I come from east Belfast and I have seen them happening right in front of me—is a sense among a wide section of the unionist community that some kind of erasure of their British culture is going on. I do not want to comment on the validity or otherwise of that perception. However, there is no doubt that part of the reason why respectable sections of unionism initially showed some sympathy for these protests is dependent on that feeling. It seems to me that there might be a case for the Government attempting to address it. This Government in particular have made a point of saying that they are not tepidly neutral on the union. This is a complicated question that has to be addressed with balance.

My next point will have no effect on the young people who are rioting, but if the Government remind the people of Northern Ireland that their place within the union, based on the principle of consent, is secure and that the Government are in no sense tepid about this prospect, that would help to draw away support for this protest from respectable sections of unionism. By the way, I believe that that drawing away of support is already happening.

[Baroness Randerson]

My right honourable friend the Secretary of State made it absolutely clear in her response in the other place this morning—I repeat it here this afternoon—that the union is secure and that this Government are committed to it in every respect, but that does not mean that there can be a lack of respect for people who come from different backgrounds. It is absolutely essential that the future of Northern Ireland is based on respect for those who see themselves from the perspective of Britishness and those who emphasise their Irishness. The two have lived together for the past 20 years as the peace process has developed, and that must continue. There must be mutual respect and respect for democratic decisions. I think that anyone who thought that supporting, or giving tacit approval to, protests on the streets of Belfast now realises that they have dealt with a very dangerous situation.