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

Lord Glentoran Excerpts

Monday 4th July 2011 Lords Chamber

[Lord Maginnis of Drumglass]

My Lords, I support the Motion before the House, albeit with some disappointment, as one who 13 years ago sat beside the noble Lord, Lord Trimble, during negotiations and hoped that we would no longer, and certainly not at this stage, have non-jury trials. However, a number of people in Ireland want to keep alive the distrust that exists between two traditions. Those people do not have—and I say this with some confidence—the sort of grass-roots support that previous terrorist organisations had. None the less they have the ability to kill policemen and civilians. Just recently they have issued a threat against prison officers, saying that they intend to kill prison officers because the “hotel” at Maghaberry is not quite to their liking. The reality is that this, though it may be a last stand, still presents a difficulty and presents huge challenges to the security services and to the community as a whole.

There are certain things that are going for us. I am optimistic—I am never quite sure that I can be as optimistic as some of my noble friends from this side of the water. There is always a threat, always a hiding place, but I think that it is appropriate at this time—and it is not every day that I say this—that I praise the Garda Siochana, whose attitude, under the leadership of the very recently retired Commissioner Fachtna Murphy, has been exemplary. There is no equivocation, there is none of this, “Well, we’ll find the arms dump, but we’ll let the culprits escape”. They have found the culprits, they have taken them to court and convicted them. That has sent a huge and very important message to Northern Ireland that there is no all-Ireland desire to have violence continuing.

For somebody who has been involved in security and Northern Ireland affairs for as long as I have, there is always the temptation to say that we did it better when it was more difficult. I simply hope that our police service, the Police Service of Northern Ireland, does not slip into a comfort zone which assists people who are dissident IRA and a number of other people who would embark on loyalist violence again—I have never, I hope, been someone who looked purely at one side of the community, or the threat to one side of the community. There is a necessity now for a common-sense approach, a need to ensure that fewer people are put under pressure. I am talking now about juries and I think that the Minister is very wise in what he has suggested this evening; that we have to protect not only those who would be targets of the potential terrorists but those who would become targets as members of a jury. Indeed, as recently as this week we have seen prison officers being highlighted for targeting.

I should not sit down without saying something that I hope will be heard by all the authorities in Northern Ireland, particularly the Northern Ireland Office. I have said one or two kind things, I am going to say one or two unkind things—perhaps one unkind thing—and that is that the degree of communication at the moment is not satisfactory. I hope that the Minister will take that message away. There are those of us sitting in this House who have many years of experience and whose advice is never sought. More than that, I feel that sometimes our advice is avoided.

With that, I simply say that I support—like the previous speaker, I hope that in two years’ time, I will not have to support it again—the continuation of the non-jury trials at this stage.

[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 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.