Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2011

Baroness Smith of Basildon Excerpts

Monday 4th July 2011 Lords Chamber

[Lord Bew]

My Lords, I offer reluctant but strong support to the noble Lord, Lord Shutt. It may or may not be a comfort to him to know that he stands in a long line of Liberal Ministers, going back to Mr Gladstone in the 19th century, who have been perplexed by the problems created by the Irish tradition of political violence for the legal system, particularly for the process of jury trials. There was a serious argument in the 19th century that such cases should be taken out of Ireland and tried in Liverpool; serious writers argued that that was a way of preserving jury trial. More generally, it was perceived that the inability to have proper legal procedures in cases involving political violence was pointing up a fundamental crisis in Ireland—the failure of the attempt to combine colonialism and democracy—and that this created a context in which terrorism existed.

What is striking about the situation in Northern Ireland now, though, is that by any standards we have a legitimate democratic system. In the most recent Assembly elections, 107 out of 108 Members of that Assembly were fully elected by the people of Northern Ireland and are full supporters of the political arrangements that are in place. In a referendum, the people of Ireland as a whole showed that they support those political arrangements. We now know that it is too sweeping a judgment to say that terrorism arises simply from a denial of democracy, because we have now established a legitimate and democratic system and we still have these problems with democracy and a situation where it would yet be unwise to return to jury trials in terrorism-related cases. I take very seriously the advice from the noble Lord, Lord Carlile, in particular, which the Minister mentioned in his introductory remarks.

Like other noble Lords, I have one caveat, one doubt. It concerns the process of consultation, which seems to have been meagre in this case. A few months ago the noble Lord, Lord Shutt, came to the House with a piece of legislation that reflected electoral law. There, in fact, the consultation was actually wider. In some ways this is a more important matter, going to the heart of where we have reached now in Northern Ireland.

I fully recognise what the Minister describes when he says that the Northern Ireland Office was not overwhelmed with advice on this matter; for a number of reasons, people want to turn their eyes away from this. It is actually difficult to have a lively consultation on it, and the Minister’s remarks in this respect are entirely reasonable and fair. I wonder, though, whether we should be thinking along the lines suggested by the noble Lord, Lord Alderdice, of having a genuine debate. I am not convinced that he is right about the desirability of three judges as a solution in this context, even in the short term, but that does not matter; there is no question that if you said, “We are consulting about this”, you would provoke a substantive debate and much more lively contributions.

I ask the Minister to consider ways in which we could ensure that the next time that he has to come to this House asking for an extension in this respect, if there is a next time, we will be able to say that we have had a proper public consultation and a genuine element of vigour in the debate that occurred beforehand. For reasons that are not his fault or the fault of the Government, he has not been able to say that, but if we took a different approach there might be a way of having a better debate.

[Baroness Smith of Basildon]

My Lords, I have listened with great care to the debate and it is clear that none of us welcomes the order before us. The Government have informed us, and it has been endorsed by noble Lords, that it has been brought forward because of necessity. The Minister’s comments on that were a wise reflection. We are not in a normal situation and we should never regard it as such. We have to continue to move towards normalisation of the courts and the justice system. The noble Lords, Lord Shutt, Lord Bew and Lord Maginnis, all recognised the enormous progress that has been made in moving towards normalisation in Northern Ireland but we recognise that some parts of the justice apparatus are not yet able to be fully normalised. That has to be the right direction to move towards and one that has our total support.

The key issue of importance in this order is the maintenance of public confidence in this position. Obviously, we will not oppose the order tonight, but I am sure that the Minister is aware that accountability and transparency of decision-making if a case is not to be heard by a jury are extremely important. Each decision must be taken on a case-by-case basis. We certainly agree with the Minister and support the reduction in the time before it will expire from four years to two. I welcome the comments he made at the beginning that there should be a return to jury trial as soon as possible. It is clear from the discussion this evening that no one wants to move towards a rolling extension of such an order every two years. Should a further order be necessary in the future, I hope that the noble Lord will take back to his ministerial colleagues the comments that have been made about consultation and the issues that have arisen. That could play into the comments and concerns that I have about accountability and transparency and ensuring that we maintain public confidence in the system.

I have four points to raise with the Minister that I think will be helpful to noble Lords. He set out some of the reasons why he felt it necessary to extend the order. It would be helpful to have a little more detail on that. That is my issue about public confidence in the judicial system. It is always important and prudent to be as transparent and open with us as he can possibly be but I recognise the difficulty. I understand the Government’s concern, which has been raised by other noble Lords, about jury interference. Is he able to tell us about any other action that the Government are seeking to take to deal with the issue of jury interference because that will help towards looking into the future of reinstating jury trials? Furthermore, as the decision will continue to be made by the DPP, can the Minister say more about the criteria that are used by the DPP when deciding whether or not the case should be heard by a jury? He gave the four criteria at the beginning, but I am interested in the weighting of those criteria and the fact that only one has to be met for the DPP to decide on a non-jury trial.

I wonder whether the Minister has further information about the limited circumstances in which a certificate for a non-jury trial would be provided. If he has not, I am happy for him to write to me about this. Fourteen certificates for non-jury trials were issued in 2010 but 12 have already been issued in 2011, which indicates that there will be a much higher number issued in 2011 than in 2010. We are all aware of high profile cases that have yet to come to trial. If we were to see that increase year on year, the Minister will recognise the significance of that. I am interested in the number of cases considered for jury and non-jury trials. What is the balance between those for which the DPP grants a certificate for a non-jury trial and those that he would not grant a certificate for a non-jury trial? We have to be concerned about the numbers increasing when we are seeking to move towards normalisation of the justice system.

I thank the Minister for his helpful explanation that has led to a thorough debate on this issue. I hope that he will take away the comments to his colleagues in the department who can reflect on them to see whether improvements can be made, particularly with regard to consultation in future.

[Lord Shutt of Greetland]

My Lords, I thank all noble Lords who have taken part in this debate. I am grateful to the noble Lord, Lord Cormack, for speaking about his experience in the House of Commons of dealing with Northern Ireland matters and I note that he spoke about people’s fears. I am delighted to hear that the noble Lord, Lord Maginnis, is an optimist. That is a good place to be in regard to Northern Ireland. We need more such optimists. I hope that he continues to be an optimist. I am also delighted that he praised the exemplary work done by Garda Siochana. I noted with concern what he had to say about threats to prison officers. I will ensure that that is taken back to the department so that people are aware of it. I am also concerned that he feels that there is a communications problem. The Secretary of State has spoken to Peers about Northern Ireland matters for a number of years, but such a meeting has not taken place for a while. I will draw to the Secretary of State’s attention that it is time we had another. We have said that we would endeavour to hold three such meetings a year. I think that we are not up to scratch on that. I will certainly take that back to the department.

I am delighted that the noble Lord, Lord Glentoran, is also an optimist—what an optimistic day—and that he believes that the police service is not complacent. I am delighted to hear my noble friend Lord Alderdice speaking on the day on which his report—the 26th and final report of the Independent Monitoring Commission—has been produced. I am sure that all noble Lords are very grateful for the work that the noble Lord and his colleagues have carried out over many years in monitoring the willing. Sadly, much of the dissident republican and dissident loyalist violence that we are still talking about is the work of the unwilling. I noted with interest my noble friend’s comments on a possible way forward. I have heard the voices but we will have to make a judgment closer to the time on whether there is a need for a public consultation. Happy would be the day when we could say that we did not need the two-year period. That could happen. It does not have to be a case of two plus two plus two, but we want to take into account the impact and effect of other changes to the criminal justice system which the local Administration is taking forward. At the moment we can extend this provision only for two years. My noble friend suggested that we look at a three-judge system. I will take that option back to colleagues. Obviously, that would constitute a big change but I understand why he has suggested it. We routinely have one judge presiding over a criminal case and if a defendant is not satisfied with a verdict, there are the usual routes of appeal.

In the early days of the Diplock courts, there were more than 300 cases. That figure diminished over time but in the past five years of the present regime there have been 12, 25, 11, 14 and 12 so far this year. However, as the noble Baroness indicated, the figure could now be going higher than the year before and the year before that.

The noble Lord, Lord Bew, indicated his reluctance but said that he strongly supported the extension. We are all reluctant, I am afraid, and wish that we did not have it to do. He gave a comforting reminder of the splendour of the democratic system. Nevertheless, there are those who do not want to participate in what it brings forward. He was concerned about consultation and I shall take his concerns back.

The noble Baroness, Lady Smith, agreed that the order is a necessity. She is concerned about public confidence. However, as I understand it, this is an exceptional system; it is used only in limited circumstances on a case-by-case basis and there is a presumption for jury trial, the opposite of Diplock. The noble Baroness asked about other action. I am not aware of any that I should draw to the attention of noble Lords but, if there is, I shall write to her. After looking at all the papers and all that I have read, I am not certain that there is another initiative of which I am able to speak. However, if there is, I shall drop her a line on that. The noble Baroness referred to other steps. This is now a matter for the devolved Administration and the PSNI. All we can do is support them in their efforts to reduce intimidation.

I like to have figures available but I cannot say, for example, that there were 12 cases in a non-jury setting and 3,000 otherwise; I do not have those kinds of numbers. We shall endeavour to provide the figures—I am sure they must be available—but it is clear that the figure for non-jury trials is very low.

I hope I have dealt with the comments made by noble Lords and that your Lordships will agree to the renewal of the order.