Northern Ireland (Offences) Bill |
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Mr. Hanson: I disagree with my hon. Friend on that point. The police will be able to investigate related offences. If the clause were accepted as drafted, the related offences could be added to the certificate to ensure that they were considered as part of the process, which is why the provision should be retained and why I urge him to withdraw the amendment. Mark Durkan: Unfortunately, I will not accept the Minister’s invitation to withdraw the amendment. I make the point again that, if other charges might be brought, it would be more credible and transparent to make the offences the subject of a new certificate. Sammy Wilson (East Antrim) (DUP): The Minister said that new charges might be brought, but the very next clause states:
It goes on to say that
must be suspended. Where are the new charges to come from? Mark Durkan: I thank the hon. Gentleman for making the point. The Minister is talking in riddles. His arguments against our amendment are not consistent with what he is presenting under the Bill. The Minister said that there may be new charges. Those charges could concern different cases, different events with different victims. He told us earlier that victims should not be notified about an application for a certificate. The rest of us have said that victims should be notified. With the same consistency that we say that victims should be notified of an application for a certificate, we are saying that, if there are new crimes and new offences for which someone should be charged, those offences should be part of a separate application. Those of us who say that victims should be notified of an application say that such notification should go with the application. Huw Irranca-Davies: I seek clarification in relation to the intervention by the hon. Member for East Antrim (Sammy Wilson). In the subsequent clause that relates to such matters, it seems, in effect, that investigations are put on hold while the application and the certification process is carried out, but then they can recommence and additions can be made subsequently when the certificate has been awarded. Column Number: 239 6.15 pm Mr. Hanson rose— The Chairman: Order. I suggest that the hon. Member for Foyle deals with one intervention at a time. Mark Durkan: As I was saying, it seems to me, and I am not alone, that the subsequent provisions in the Bill that we will be dealing with effectively freeze serious evidential pursuit by the Police Service of Northern Ireland, not just in relation to the charges that might be the subject of the original certificate application but to any charges on offences that might qualify under this Bill. Mr. Hanson: I am grateful to my hon. Friend for giving way, because, again, I am trying to clarify the point that he is making. Proceedings under clause 5, which we will come on to shortly, are legal proceedings that follow from charges; they are not the charges. In relation to the circumstances that I am discussing today, offences can be added to the certificate under clause 5. The legal proceedings will be stopped and reviewed; it is not that charges cannot be brought. Under the legislation, as currently drafted, there is nothing to stop new offences being investigated, charges being made and offences being added to the certificate. Mark Durkan: I thank the Minister for his point, which I still do not accept deals with this matter. It certainly does not dispose of the questions that we have about subsequent clauses. It is clear that once somebody has the benefit of a certificate for any offence, the police will have limited opportunity to pursue them seriously in relation to any offence that might be deemed a qualifying offence under this Bill. That is how sweeping the provision is. The police are clear about that being the effect. They are also clear that the chances of being able to get prosecutions under this procedure will be limited. They are limited deliberately. Let us remember that the Bill has not just been the work of a Minister who came to Northern Ireland in May. It is the product of deliberate and dedicated negotiations involving the Government and Sinn Fein. People are looking to protect the interests of certain people and are trying to do so in the name of the public interest. To think that we all have to be saved from the truth. It was bad enough that we lived through the brutality of what happened, but we are now not to be entrusted with the truth. We are somehow to be spared it. We know what the Bill is about. It is not about bringing closure. It is about closing off the truth. The Minister refused to accept victims being notified when certificates are applied for. Now certificates can metamorphosise into having all sorts of other offences
The Minister must recognise that many of us are working in the light of recent events. The reality is that the Secretary of State’s assertions about the public interest in respect of the collapse of the prosecutions last week, his refusal to provide any further statement and his opposition to any parliamentary discussion on the matter raise a number of questions. The first is whether anybody believes him. I do not believe that people believe that those prosecutions were withdrawn last week purely on the initiative of the Director of Public Prosecutions. People suspect that, for wider political convenience, side deals were done. Much of the language being used by Government in this regard only reinforces that suspicion on the part of many people. This is just yet another power that we believe would be open to abuse and manipulation, not just by the Secretary of State. Mr. Hendrick: Is it not the case that to issue a new certificate is no different from adding new charges to an existing certificate, in the same way that if somebody is in prison, they are there and cannot be imprisoned twice at the same time? Mark Durkan: No, it would not be the same, particularly if the Bill were amended in the way in which many of us have sought to amend it. Some of us wanted an approach that was victim-centred and victim-sensitive, and said that victims should be notified in respect of anything that might appear on a certificate, and should be notified at the point of application. We want consistency with our position on other aspects of the Bill and our other amendments. That is why we say that, if there were new offences and new crimes that qualified under the Bill—they might well be not at all related to the other offences; they might be about completely different events, involve completely different accomplices and have completely different victims—that should be the subject of a separate application, of which victims should be duly informed. My hon. Friends on the Government Benches might be happy to be inconsistent in how they treat different aspects of the Bill and in what they say about them, as well as in how they vote, but some of us are labouring to be consistent, because we are dealing with serious issues on behalf of people who have suffered a lot. Question put, That the amendment be made:— The Committee divided: Ayes 10, Noes 15. [Division No. 24] AYES Bellingham, Mr HenryDonaldson, Mr. Jeffrey M. Durkan, Mark Ellwood, Mr. Tobias Hermon, Lady McDonnell, Dr Alasdair Robertson, Mr. Laurence Robinson, Mr. Peter Wallace, Mr. Ben Wilson, Sammy
NOES Column Number: 241 Banks, Gordon Brown, Mr. Russell Coaker, Mr. Vernon Cooper, Rosie Foster, Mr. Michael (Worcester) Hanson, Mr. David Harris, Mr. Tom Hendrick, Mr. Mark Hillier, Meg Irranca-Davies, Huw McDonagh, Siobhain Moon, Mrs Madeleine Slaughter, Mr. Andrew Todd, Mr. Mark Waltho, Lynda Question accordingly negatived. Motion made, and Question put, That the clause stand part of the Bill:— The Committee divided: Ayes 15, Noes 12. [Division No. 25] AYES Banks, GordonBrown, Mr. Russell Coaker, Mr. Vernon Cooper, Rosie Foster, Mr. Michael (Worcester) Hanson, Mr. David Harris, Mr. Tom Hendrick, Mr. Mark Hillier, Meg Irranca-Davies, Huw McDonagh, Siobhain Moon, Mrs Madeleine Slaughter, Mr. Andrew Todd, Mr. Mark Waltho, Lynda
NOES Bellingham, Mr HenryBurt, Lorely Donaldson, Mr. Jeffrey M. Durkan, Mark Ellwood, Mr. Tobias Hermon, Lady McDonnell, Dr Alasdair Öpik, Lembit Robertson, Mr. Laurence Robinson, Mr. Peter Wallace, Mr. Ben Wilson, Sammy Question accordingly agreed to. Clause 4 ordered to stand part of the Bill. Clause 5 No proceedings while application for certificate pending Lady Hermon: I beg to move amendment No. 253, in clause 5, page 4, leave out lines 22 to 28 and insert
The Chairman: With this it will be convenient to discuss the following amendments: No. 259, in clause 5, page 4, line 23, leave out from ‘applies’ to end of line 25 and insert
No. 122, in clause 5, page 4, line 27, leave out paragraph (b). No. 123, in clause 5, page 4, line 29, leave out subsection (2). No. 255, in clause 5, page 4, line 31, at end insert—
Column Number: 242 No. 256, in clause 5, page 4, line 31, at end insert—
No. 124, in clause 5, page 4, leave out lines 33 and 34. Lady Hermon: What a hornet’s nest clause 5 is. The amendments in my name are amendments Nos. 253, 255 and 256. Clause 5 as it stands is curious. Subsection (1) states:
until the application for the certificate of eligibility has been determined. Goodness knows how long that will take. At present, subsection (1) guarantees that a person who may be guilty of terrible crimes never has to put their foot through the door of a court. The purpose of amendment No. 253 is to ensure that proceedings must at least have commenced. The applicant—the person who is guilty of the most terrible of crimes—must at least have darkened the door of a court to make a court appearance. The amendment would omit lines 22 to 28. The clause would instead read that
The effect of the amendment would be to oblige the applicant, who will get an amnesty for committing the worst of crimes, to step into court and allow us to see his or her face. This morning, the Minister was asked to reflect on the intrinsic contradiction in clause 3. Why do the Government prefer to give beneficial and preferential treatment to those who are on the run compared with those in the security forces? The Minister was at pains in the early stages in Committee to emphasise what a difficult decision that had been to take, but, on balance, he was convinced that police officers should also be included in this ghastly piece of legislation. The Minister, when pushed, indicated to the Committee that it was his understanding that members of the security forces would be granted bail and would not have to linger at Her Majesty’s pleasure in prison. However, if the Minister and other Committee members care to turn their attention to subsection (2), it states:
in other words, where an application has been made—
That is the Crown court or other criminal courts in Northern Ireland, not a special tribunal or the certification commissioner. Therefore, the Minister’s assurance to the Committee this morning is not consistent with clause 5(1)(b) and subsection (2), which expressly preserve the right of the Crown court—the ordinary criminal court—to remand members of the security forces in custody. I urge the Minister to provide much better
Amendment No. 255 would ensure that the ordinary courts in Northern Ireland—not this awful parallel system that we are building here—would not take into account the suspension of proceedings when determining whether to grant bail. 6.30 pmThe decision to grant bail should be determined on the seriousness of the offences that the applicant is alleged to have committed. The fact that the applicant is seeking to benefit from an amnesty should not sway the court and should not be taken into account when the Crown court is deciding whether to remand an individual to custody or to grant bail. That covers amendment No. 255. Finally, on amendment No. 256, there are maximum time limits for keeping the defendant in custody between an application for a certificate and a decision on its completion. The amendment’s purpose is to ensure that the maximum time limits on which a defendant can be remanded in custody are suspended at the same time, so that those maximums would not apply until the application for a certificate of eligibility was determined. Together, the amendments are important as they would mean a court appearance by all defendants. The very least such people should do before they benefit from the amnesty is put their foot through the door of the court so that we could see their faces before they were granted clearance for the most awful crimes committed in Northern Ireland’s history. Mr. Robertson: Amendments Nos. 122, 123 and 124 are slightly different from those tabled by the hon. Lady, from whom we have a slightly different view on the matter, although we are happy to discuss it. We believe that it is wrong for any proceedings that are already going on to be suspended. In some cases, we can see that possibly—I stress that word strongly—there might be a case for not commencing new proceedings as outlined in the clause, but we do not see the case for ending those that have already begun. A great deal of expensive work could already have been done in many cases and we simply see no justification for ending them at such a point. The hon. Lady made some good points in support of her amendments, but I am concerned about the comparison between clauses 5 and 7. Clause 5 states:
Clause 7 relates to when the certificate is awarded and provides that no further investigations may be made. That is very unsatisfactory. I do not want to speak at length, but I seek from the Minister an explanation of why the clause is drafted in this way. Lembit Öpik: I strongly agree with the intent of amendment No. 253, tabled by the hon. Member for North Down. It is utterly incomprehensible to the
I look forward to hearing why the Government do not think it reasonable to expect the defendant to appear in court. Mark Durkan: Under the Bill as it stands, once a person applies for a certificate of eligibility, he cannot be prosecuted for any troubles-related pre-Good Friday agreement offences, as clause 1 makes clear. That freedom from prosecution remains until a decision is reached on whether to issue the certificate. As we have stated in relation to other points, such provision is too broad and open to abuse. Someone could apply for a certificate of eligibility for what might be regarded as a more minor pre-Good Friday agreement offence and, as a result, have proceedings against much more serious offences suspended, possibly for months or even years. One has only to look at some examples that my hon. Friend the Member for Belfast, South mentioned earlier to realise that it is not inconceivable that such proceedings could be prolonged for years. There is no reason why a person should be able to have all proceedings against them stayed for pre-Good Friday agreement offences. The only offences that should, arguably, be stayed, are those for which certification has been sought, and perhaps any ancillary offences deemed to be connected with such specific offences. If anything is to be suspended, that is where the limit should be and that is what our amendment No. 259 is aimed at ensuring. That amendment refers back to the definition of a certified offence in clause 3(7), which includes connected offences, but excludes other pre-Good Friday agreement offences. Beyond that, a trial judge should decide whether to suspend proceedings. However, there should be nothing to compel the judge to do so. The issue should be truly at the discretion of the court. I hear what the hon. Member for North Down says about amendment No. 253. I do not believe that it would do all that our amendment No. 259 would do. However, it would limit the scope of clause 5 by ensuring that future proceedings could still be brought and by suspending only existing proceedings. As such, we are willing to support that amendment if the hon. Member for North Down does not give way to our amendment No. 259. Mr. Hanson: Clause 5 is intended to provide that once an individual has applied for a certificate of eligibility, no proceedings, including court proceedings, can be commenced against that person for an offence to which the Bill applies until the application is determined. Under clause 5, “proceedings” refers to legal proceedings, including court proceedings, but does not include investigations or inquiries. Column Number: 245 The purpose of the clause is to ensure that when a person has made an application that could enable him to enter the Northern Ireland (Offences) Bill scheme, proceedings are not begun or continued against him so that they might be replaced by proceedings before the special tribunal. Lady Hermon: I am sorry to interrupt the Minister’s flow, but he has just said something very interesting that contradicts what he said earlier. He said that the person must apply for a certificate of eligibility; he did not say that anyone else could do so on that person’s behalf. Will the Minister confirm that clause 5 can operate only when the person himself or herself applies for a certificate of eligibility—not their solicitor or anyone else in the court acting on their behalf? That is what he has just said and it will appear in Hansard. Mr. Hanson: We are revisiting previous discussions, during which I gave a full explanation of the position on the application for the certificate. I feel, Sir Nicholas, that you would chide me if I went back over previous debates. Mr. Robertson: In support of the hon. Member for North Down, I should say that the application is mentioned in clause 5, so she is not going over past debates. Mr. Hanson: Under clause 5, and previous clauses, the application for the certificate of eligibility is made. Under previous clauses, we discussed whether the application is made by the person or on behalf of the person, but the application is ultimately made by a person for a certificate. Clause 5 is not in any way contradictory to previous clauses. It states:
the following will apply. That is the same situation as previously. During previous discussions, I tried to explain that what matters is the application; whether the individual or someone on their behalf makes it, the application under clause 5 for a certificate of eligibility is made in exactly the same way. I see no contradiction between the two, but I am happy to continue to discuss the issue, as I see that hon. Members wish to intervene. Mr. Wallace: I am not pursuing that specific point, but I want to follow up the Minister’s point about his definition of proceedings. Does he not need to put that in the Bill? He has given us his assurance, but, having looked through the Bill, I cannot see “proceedings” defined anywhere else. Does “proceedings” already have an accepted definition? Mr. Hanson: My understanding is that it is an accepted definition in terms of what I am putting before the Committee today. In this context, “proceedings” refers to legal proceedings, including court proceedings. Mr. Ellwood: The Minister was unable to tell me roughly how many people would come forward from across the world to participate in the certification process. If he cannot give me a number today, will he
Mr. Hanson: I refer to the hon. Gentleman to points that I made earlier. Whatever our objections to the scheme, if both Houses of Parliament approve it, it is not likely to commence until early to mid-2007. If there are court cases that are likely to take two years to complete, I can answer the hon. Gentleman’s question. I am unable to do so at the moment, however, because the scheme will not commence for some time. He is asking me to offer conjecture on whether any cases being prosecuted through the courts are likely to continue until early to mid-2007 and on whether and how many proceedings will commence between now and when the scheme comes into effect. I will be able to answer the question only at that point and if I am honoured enough to be in this ministerial post in two years. Lembit Öpik: Nobody lasts that long in the Northern Ireland Office. My question concerns an unintended procedural consequence of how the clause is phrased. Clause 5(1) states:
Not so long ago, the Committee was discussing clause 4, which states:
Someone who applies directly might be treated differently from someone on whose behalf an application is made. I know that is not the intent of the Bill, but we have been caught out by this kind of thing in the past. Can the Minister give an assurance that there is no unintended consequence here? I suspect he probably cannot. Mr. Hanson: I hope to assure the hon. Gentleman that there will be no unexpected consequences resulting from the points he has mentioned. I cannot be clearer than I have been both previously with regard to that matter and in discussions on this clause. I hope that that reassures him. Mr. Robertson: This is a small point, but it could be important. Perhaps there is a drafting error. When the hon. Member for North Down drew the Committee’s attention to the phrase “a person applies”, the Minister explained that that is basically anybody. It cannot be, because clause 5(2) says that
It is not possible to remand on bail or in custody someone who has just made an application, unless that is the person who has committed the crime. Mr. Hanson: Let us go back to basics on this. Mr. Robertson: John Major tried. Mr. Hanson: He did try that. I discussed under earlier clauses how an application to the certification commissioner is made. This clause relates to the proceedings being suspended once the application has been made if other proceedings are continuing. To
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