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

Lord Alderdice Excerpts

Monday 4th July 2011 Lords Chamber

[Lord Glentoran]

My Lords, I did not intend to come into this debate, but the noble Lord, Lord Maginnis, said two things that worry me. He suggested that the PSNI is getting complacent. I do not believe that to be true. It is under threat continuously. He and I have met widows in recent times. That is not right. For four or five years now, I have worked with the Secretary of State and no one is more diligent or more energetic than my right honourable friend Owen Paterson. The communication is very free and ongoing, and Owen does not hide anything from anyone. He tells it as it is. If the noble Lord does not like the way in which it is coming out, that is different. But it is the way it is.

[Lord Alderdice]

My Lords, I am grateful to my noble friend for outlining the background to the order. I should like to pick up one or two of the comments. Like other noble Lords, of course I regret the fact that it is necessary for this order to come forward again. Perhaps, particularly today, noble Lords might expect me to say that such a thing should not be necessary. In the final IMC report published today, we have said again that it is time for peace process institutions to pass into history and for the proper administration of politics and the rule of law to take place under Northern Ireland authority by Northern Ireland elected representatives.

I and my colleagues very much stand by that but it does not necessarily mean that the particular process to which we are referring today should be set to the side immediately. I want to take that a little further. It is clear that there are those in Northern Ireland on the republican side—we sometimes call them dissident republicans—who simply are not persuaded that political arguments should not be made through threat or actual use of violence. They continue to believe that. For a very long time there have been people who have taken that view in Ireland, north and south as well as elsewhere.

As the noble Lord, Lord Maginnis of Drumglass, said, it is also clear that there are those in the loyalist community who continue to use violence. With regard to them, I see little evidence that there is any political agenda at all. It is very much about self-aggrandisement and crime. In some cases it is a kind of incipient attack on the police and the historic inquiries team, because some of them simply do not want their past crimes to catch up with them. They want to foment violence, trouble and sectarianism within their own loyalist community.

My difficulty, and I think my noble friend will agree, is that despite the fact that the previous Government indicated that a more substantial process would take place, the consultation was very limited. It seems to me that, the next time round, there needs to be a much more substantial consultation at a much earlier stage. Over the past number of years the majority of people—and I say this from my experience in the IMC—have been increasingly prepared to come forward to give evidence and material, to participate in juries and so on. However, I am not wholly sure that we will get to a place in the next two years, or perhaps even a little longer than that, when there will be no fear and no reason for fear in the community.

It seems to me that there is something fundamentally unsatisfactory about telling ourselves that in two years it will be fine; in two more years it will be fine; and in another two years it will be fine. We know how long the provisional can stay and that it can become rather permanent. I do not think that that is satisfactory. I wonder whether the notion of non-jury trials is such that they will have to be with us for quite some time. They are not for widespread use—we are talking about only a dozen or perhaps two dozen individuals over a period of 12 months. However, it is still a significant number.

I come back to a matter that I and colleagues in the Alliance Party have spoken about in the past—that in such non-jury trials a number of judges might sit together, not on the basis of a two-year order but perhaps on a longer-term basis in circumstances where it proved necessary. We have seen such circumstances in the Megrahi trial, for example, which was a three-judge court, with appeal to a five-judge court.

In the past, the argument made by the judicial authorities in Northern Ireland when there were a very large number of cases was that it was completely impossible as the number of judges required would make it completely impractical. There was some force in that argument. However, where we are talking about a very small number of cases it does not seem unreasonable to believe that the judiciary in Northern Ireland might be able to sustain the numbers required. In theory the Diplock courts were unsatisfactory; in practice complaints about justice during the Troubles were more about perverse outcomes such as the Birmingham Six and the Guildford Four, which were jury trials, rather than the actions of judges in Northern Ireland. It says a great deal about the calibre of the judges in Northern Ireland over many years that there were not an enormous number of complaints. In principle it was not satisfactory but in practice there was relatively little complaint.

[Lord Empey]

I want to make sure that I understand what the noble Lord is saying. Is he saying that instead of coming back in two years’ time for another renewal, which in theory could go on indefinitely, we move to a transition proposal? As Dr Johnson said, there is nothing as permanent as the temporary. In other words, would this become a transition period rather than simply coming back in two years for renewal? Was the noble Lord saying that his proposal for multi-judge courts would be a transition to where we would all want to be with jury trials?

[Lord Alderdice]

As ever the noble Lord is alert and well ahead of the argument. There is a case that, rather than waiting for two years, when we would have little opportunity but possibly a modest consultation and a repeat of the order, perhaps after only one year there could be a much more serious consultation process that would look at the question of whether a more substantial change might be made. For example, a more permanent arrangement which had three judges sitting in such non-jury cases might be considered. I say “after only one year” because quite clearly it would require substantial primary legislation that would require serious consultation and thought. However, I feel that it would not be good for us to get into a position where every two years we repeated this because we could not think it through properly. It is much better to come back for a proper consultation, not with just 11 returns but with a more substantial debate which gave time for proper primary legislation. I fear—from my own experience and I rather suspect that of other noble Lords with experience in Northern Ireland—that those on the loyalist side and the republican side who may be prepared to threaten juries and otherwise use threats and intimidation may not disappear in two years or four years or six years. Some of the cases of violence in the last little while will take quite a while through the process.

[Lord Glentoran]

To some extent I considerably disagree with the noble Lord’s proposition. I understand where he is coming from but I feel that psychologically to impose a permanent trial system without judges, a Diplock court system, is admitting defeat. I am still an optimist, even now. I still think that we will be able to get back to proper democracy and judicial processes. I cannot go along with the idea that we set up this non-jury system of trials for as long as we want. The other thing I like about the present system is that it reflects the state of play in Northern Ireland because the heart of the state of play on one side is financial and on the alternative side it is terrorism and criminality and the way the judicial processes are working. It is very important that this should come back to your Lordships’ House and to the other place once every two years.

[Lord Alderdice]

I am grateful to my noble friend for intervening, but in a sense he is already engaging in the process that I was suggesting. I was not suggesting that we immediately jump to that suggestion or any other, but rather that we should engage in a proper process of debate and consultation rather than the more than modest consultation that there was. The noble Lord, Lord Maginnis, has a point when he talks about consultation and communication. If there is a proper consultation over a reasonable period, the concerns of the noble Lord, Lord Glentoran, can be engaged with, rather than living in hope that everything will be fine, when all our experience, sadly, is that it has taken a lot longer to get where we want to go than we could ever have imagined.

[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.