Northern Ireland (Offences) Bill |
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Mr. Robinson: The Minister has not got the point. The point is that under a previous clause the person who might be the subject of the offence does not have to apply him or herself; someone else can apply for them, yet the reference in clause 5 is to the person who applies. That might not be the person who is the accused; it could be someone acting on their behalf. Mr. Hanson: I shall reflect on that, but it is my understanding that provision refers to the person who is eligible for the certificate. If it turns out that my understanding is incorrect, I shall revisit the matter to clarify the position. I hope that my commitment to at the very least reflect on that assuages the hon. Gentleman’s fears. However, I make no commitment to make changes, because I believe that the way that we have phrased the legislation is effective. Lembit Öpik: I wish to say something that will assist the Minister in his reflections; he does not have to respond to it now. It is obvious to me that there must be a difference in meaning between
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because if they mean the same thing, why use different language? Mr. Hanson: I have said what I said. Hon. Members will understand that. In the cold light of day following this Committee sitting, I will reflect on the points that have been made to make sure that the Government’s intentions have been correctly expressed. Amendments Nos. 255 and 256 are unnecessary. The decision on granting bail or remanding in custody is not and would not be taken with reference to the suspension of proceedings under the legislation. The hon. Member for North Down has again raised a valid point on whether suspension affects custody time limits. That is another matter that I wish to reflect on outside the Committee. [Interruption.] I am setting a precedent; that must be because of the late hour—late in our proceedings in this sitting—and the fact that the House has adjourned. Mr. Robinson: Part-timer. Mr. Hanson: We are in danger of falling into levity, Sir Nicholas. I will reflect the hon. Lady’s points on custody time limits and write to her. If my reflections lead me to see merit in what she has said, I will consider how to deal with that aspect of the Bill as it progresses. Column Number: 248 I hope that I have given adequate assurances, and that I have answered the points raised by hon. Members to their satisfaction. Lady Hermon: I have listened very carefully to the Minister’s response and I think that when he does reflect on what he has said he will realise that he has dug himself into a deeper hole than he was already in, although he has managed to suggest to the Committee that after reflecting on the wording of the clause he may be prepared to tip over into accepting the fact that amendments need to be made to the Bill. I was disappointed that the Minister did not clarify an extremely important issue that was raised this morning. He made it clear that his understanding of the legislation was that members of the security forces would not linger at Her Majesty’s pleasure, but would be granted bail, but clause 5(2) clearly suggests that the power remains with the Crown court to remand the person in custody or on bail. There is no way that the Minister can guarantee to fetter the discussion of the courts in relation to members of the security forces or anyone else. I am sorry that the Minister failed to clarify that point when given the opportunity to do so. As it stands, it is clear that the words in clause 4,
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have been omitted from clause 5. Whether that is accidental or deliberate, goodness only knows, but surely there should be some consistency in the Bill so that clause 5 does not immediately contradict clause 4, as it does at present. For that reason, I have to press the amendment to a Division. Question put, That the amendment be made:— The Committee divided: Ayes 8, Noes 16. [Division No. 26] AYES Burt, LorelyDonaldson, Mr. Jeffrey M. Durkan, Mark Hermon, Lady McDonnell, Dr Alasdair Öpik, Lembit Robinson, Mr. Peter Wilson, Sammy
NOES Anderson, Mr. DavidBanks, 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. Column Number: 249 The Committee divided: Ayes 16, Noes 13. [Division No. 27] AYES Anderson, Mr. DavidBanks, 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
NOES Bellingham, Mr. HenryBurt, Lorely Donaldson, Mr. Jeffrey M. Durkan, Mark Ellwood, Mr. Tobias Hermon, Lady Hunt, Mr. Jeremy McDonnell, Dr Alasdair Öpik, Lembit Robertson, Mr. Laurence Robinson, Mr. Peter Wallace, Mr. Ben Wilson, Sammy Question accordingly agreed to. Clause 5 ordered to stand part of the Bill. Clause 6 Cancellation of certificate Sammy Wilson: I beg to move amendment No. 17, in clause 6, page 4, line 44, leave out ‘may’ and insert ‘shall’. The Chairman: With this it will be convenient to discuss amendment No. 32, in clause 11, page 7, line 14, leave out ‘may’ and insert ‘shall’. Sammy Wilson: The amendment is self-explanatory. The clause provides that if the conditions in which the certificate of eligibility was originally granted are not met, the person’s certificate should be cancelled; however, it also allows for discretion to be exercised by the Secretary of State. We are concerned about that. Given the experience in Northern Ireland of how the Secretary of State has used his discretion in the past, the clause will shake confidence even further. Let me give an example. One of the early release prisoners was caught many times stirring interfaith violence around Ardoyne. The police presented an unassailable case, according to the Chief Constable, that the terms and conditions of the early release had been broken. The Secretary of State accepted that and put the person—Sean Kelly—in jail, but three weeks later, as a result of political pressure to get a statement from the IRA and following widespread campaigning by Sinn Fein, including slogans written of the walls of Belfast and flags hung out from flats, the Secretary of State suddenly decided that the evidence given by the Chief Constable no longer stood. The Chief Constable continues to make it clear that the terms of the licence were broken, but the Secretary of State, for political reasons, exercised his discretion and decided, despite all the evidence and conditions laid down under the terms of early release, to override the Chief Constable and the evidence offered by the police. Column Number: 250 The same potential for discretion exists in the clause, which is disquieting for those who have already had to swallow a massively bitter pill. Furthermore, it sends out a signal to those who might apply for a certificate that it does not matter how they behave, because their political backers will find an opportunity to put pressure on the Secretary of State to ensure that a certificate is not withdrawn, no matter how they behave. There will always be good political reasons that can be advanced to force the Secretary of State’s hand. Given the Secretary of State’s record and what we know about those who have never repented of their terrorist ways and have never shown any remorse for their terrorism, and who will sneak back to it at every opportunity that they can get, we cannot allow that element of discretion to be left in the Bill. Our amendment removes that element of discretion and states that the Secretary of State must cancel the certificate if the conditions for the certificate have been broken,. That is important. There is no need for such discretion and removing it will ensure better behaviour on the part of those who obtain a certificate. The amendment should be accepted. 7 pmMr. Robertson: I support the amendment. I would like to take the Committee back to an earlier discussion that we had about the certification commissioner. We discussed an amendment saying that he “may” issue a certificate, but the Minister said that the term must be “must”. However, we have now reached clause , where the word used is “may”, not “must”, which is rather confusing. I suppose that that is in keeping with the enormous inconsistencies in the Bill, but it is not acceptable. Lembit Öpik: There is an absolute duty on the certification commissioner—a “must” duty—to issue a certificate if the conditions are met in the first place. Why should there not be an absolute duty—a “must” duty—to cancel a certificate if it is discovered that the conditions are not being met? As the hon. Member for East Antrim pointed out, the provision is totally biased in favour of the applicant. We cannot pretend that that sort of discretion in defence of the applicant is provided with the interests of the victims in mind. There has obviously been an oversight—the matter was not thought of when the Bill was being framed. Since this clearly is an error, I hope that the Minister can, in as matter of fact a way as possible, assure us that it will be amended. Mr. Hunt: I strongly support the amendment. A function of law is to mete out justice to wrongdoers, but an equally important function is to deter potential wrongdoers from breaking the law. If a law is to have that deterrent function, there needs to be absolute clarity in the mind of someone who is potentially going to commit an offence as to what will or will not be permissible. If legislation includes a sentence such as,
Column Number: 251 the effect is to blur that clarity and undermine the deterrent effect of the possible removal of the certificate. I put it to the Minister that the leeway that the provision gives to the Secretary of State may be wholly unwelcome, because it gives the opportunity for the Secretary of State to be lobbied by organisations by which he or she may not wish to be lobbied. Clarity in the legislation will make it seem fairer—if such a Bill could ever be seen as fair. We need clarity to prevent potential future wrongdoing. We should say clearly that certificates will definitely be cancelled if someone breaks the conditions under which they are issued. Mark Durkan: I join other hon. Members in expressing support for the amendment. As with previous amendments, I believe that we should limit the sweeping discretion that is available to the Secretary of State under the Bill. I do not believe that, in the circumstances, the Secretary of State—not just the present Secretary of State—can be trusted with such discretion on such sensitive matters. It seems to me that, given recent events, giving the Secretary of State such powers and responsibility would be something akin to asking Attila the Hun to mind your horse. The whole history of recent years is one of a blind-eye approach being taken. When Belfast’s infamous dogs on the streets knew who was up to what and who was doing what, the Secretary of State deliberately turned a blind eye, saying that everything was for the wider good of the peace process. However, when honourable, decent democrats ask questions and raise concerns, we find ourselves being lectured to as though we are out to subvert the peace in some other way, or as though we are out to undermine political stability just by wanting democracy to be matched by decency in the context of the pursuit of crime. I therefore join with other hon. Members in supporting the amendment. If, as the hon. Member for Montgomeryshire said, the legislation is unambiguous about what the certification commissioner must do, there must be equally clear imperatives and absolutes as far as the Secretary of State is concerned. Otherwise, none of the assurances that we have receive here or in the House will mean a thing. On an earlier clause, the Minister tried to reassure the hon. Gentleman that there would be no unexpected consequences. I believe the Minister. The Bill is designed to ensure that there are no unexpected consequences for anyone in the IRA, Sinn Fein or the loyalist paramilitary groups, anyone acting on behalf of the state, or anyone in the state forces who acts outside their authority. For anyone who has anything to answer for, the Bill ensures that there will be no unexpected consequences. That is why there are absolute covers, why there are absolute limits to the evidence that can be pursued and why there are so many evasions and escape clauses; but it is also why the residual discretion is left to the Secretary of State. Even if all the evidence available to the public suggests that people are up to other activities, and even if other
The Bill is the product of a pact between Sinn Fein and the Northern Ireland Office—we have moved on from Sinn Fein-IRA to Sinn Fein-NIO. They are inextricably linked in the Bill, in its destiny and in its implementation. Any future Secretary of State with that discretion will be told, “No, you are bound by the terms of a secret deal that was done,” just as the present Secretary of State has been told that he is bound by what was decided in 2001 in Weston Park and in 2003 in Hillsborough. The whole thing goes back to all those seedy side deals done between Sinn Fein and the people negotiating on behalf of the Government. That is why we cannot trust the Secretary of State—any Secretary of State—with that discretion. The discretion will be abused in ways that militate against and offend the legitimate democratic public interest. Mr. Hanson: The Secretary of State’s discretion has been put in place to safeguard against manipulation of the scheme. I recognise what was said under earlier clauses about the certification commissioner, but he has a different function from that of the Secretary of State with regard to this matter. The commissioner will oversee the point of entry to the scheme. The Secretary of State has a stronger function and a wider responsibility to review the scheme in its broadest sense. Hon. Members can take this at face value or not, but I do not expect the Secretary of State to have use that discretion on many occasions. It is not there to let him play fast and loose with the system or to overturn decisions taken as part of the consideration of this matter. It is there because he may be required to use it to ensure that unfairnesses and other issues are not raised and not perpetuated by the operation of the scheme. Lembit Öpik: I am utterly confused, as other hon. Members must be, by what the Minister tells us. If that is the case under clause 6 with regard to cancelling a person’s certificate, why it is not the case under clause 3 in granting a certificate? Why does the self-same argument not apply? I am sorry to have had to intervene on the Minister again, but I was giving the Government the benefit of the doubt, assuming he would say that this is a drafting error and that the provisions obviously need to be the same. First, he needs to confirm that it is not a drafting error. Secondly, he needs to explain why it is more important to have discretion in revoking certificates when that is required than in granting them. I am sure that other hon. Members feel the same. Mr. Hanson: I shall explore the points that the hon. Gentleman has made, because the issue is important. The commissioner will oversee entry to the scheme, and the scheme’s entry criteria are the eligibility criteria in clause 3. The Secretary of State has a wider responsibility. He may seek to use his discretion not to
Sammy Wilson: The Minister might be about to answer my question. Can he give us examples of instances in which the scheme might be manipulated in such a way that the Secretary of State—to use the Minister’s own terms—would wish to use his discretion? Mr. Hanson: Let me give a particular example. There is an eligibility condition for an individual who in the past supported an organisation that subsequently became specified. That individual would, therefore, now be liable to have his certificate cancelled. It may be at the Secretary of State’s discretion to consider the situation of that individual and say that, having had the certificate granted and that person having progressed, he is now leading a life that is constructive and that involves participation in the community, and that the cancellation of the certificate is not demanded even though the organisation has subsequently become specified. That could happen. I accept that the discretion is there for hon. Members to consider, but it has not been inserted to allow the Secretary of State to play fast and loose with the system. It might apply in special circumstances involving an overriding need relating to the potential security of an individual or the future of Northern Ireland. The discretion has to be there for the Secretary of State, but I would not expect it to be used on many occasions. Mr. Robertson: Does the Minister not understand why this is causing so much concern? When somebody applies for a certificate, it has to be given, but we are told that a certificate may be withdrawn. Everything is pointing one way—in the direction of the terrorist. If he is so concerned about an organisation becoming specified after somebody has supported it, why is that in the Bill as a condition? Mr. Hanson: Again, I simply say that the Secretary of State may have that overriding responsibility to consider individuals. I understand that some recent events have given hon. Members cause for concern, so, as it may be difficult to accept my argument, may I pray in aid something said by the hon. Member for Foyle? In Committee last Thursday afternoon, when considering an earlier amendment, he said:
For that very reason, the Secretary of State might have discretion in these matters. Column Number: 254 Mark Durkan: I was speaking about a very specific amendment that would have meant that people who had ever supported such organisations would not be able to benefit from the scheme. The Minister is absolutely stretching things in taking a very particular point that stands up of itself—unlike most of his arguments on various amendments—and quoting it with regard to this situation. It simply does not apply. If the Minister agrees with what I said last week, he should support what I am saying now. This should not be a matter for the discretion of the Secretary of State. 7.15 pmMr. Hanson: Would the hon. Gentleman want those who have renounced violence, who would have been through the scheme and who were playing effective roles in the community—and, outside their community, were perhaps supporting the ongoing peace process—to be recalled on the basis of activities of an organisation that they perhaps supported in 1975? That is the key question. That is why the Secretary of State will have the discretion to view the wider picture. He may or may not exercise that discretion, but I do not want that discretion removed. Mr. Hunt: I do not think that the Minister’s example is correct. A condition of eligibility for a certificate is that the applicant “does not”—present tense—“support a specified organisation”. Therefore, providing that the person who possesses a certificate no longer supports a specified organisation, an organisation that he had previously supported becoming specified will not render the certificate ineligible. Mr. Hanson: I refer again to my hon. Friend the Member for Foyle. I want to emphasise that there is an additional condition for holding a certificate, rather than for granting a certificate, which is different because of the differences between the legislation on the early releases scheme and this legislation. My hon. Friend talked about that condition last Thursday. The Secretary of State will have discretion not necessarily to exercise it at all times, but because there may be circumstances in which he, for the wider political benefit of society at large, needs to ensure that individuals who might renounce and who have renounced violence are not penalised on that issue. Mr. Robinson: I note that the Minister attempts to rest his case on the second of two conditions, without mentioning the first. Can he please tell the Committee in what circumstances the Secretary of State would not revoke the certificate of someone who had not met the conditions set out in clause 3(3)? Are there any circumstances in which the Secretary of State would allow individuals to hold on to a certificate if they had either wrongly been given that certificate or provided inaccurate information? Surely the Secretary of State must revoke the certificate in those circumstances, whatever might be said about the second set of circumstances. Column Number: 255 Mr. Hanson: Again, I simply wish to retain in clause 6 discretion for the Secretary of State on these matters. I emphasise that the Secretary of State will not use that discretion fast and loose. He will have the power to use that discretion in the event of needing to consider using it in circumstances that might arise in future. Mr. Robinson: I asked the Minister, aided by his officials and all the hon. Members who support him on the Government side, to give me one set of circumstances in which the Secretary of State would be of the view that someone who had not met the conditions in clause 3(3) should be allowed to hold on to a certificate. Just give me one example—anybody. Mr. Hanson: I refer the hon. Gentleman to later clauses. Clause 10 deals with conditions of licence, and subsection (2)(c) states that one condition is
That is the condition that the hon. Member for Foyle spoke about on Thursday, and it is the same condition, in general terms, that I am relating to the Committee today. There may be circumstances, on both aspects, in which the Secretary of State retains discretion. I do not anticipate the Secretary of State using that discretion regularly, but we want to retain it because circumstances may arise in which the Secretary of State has a responsibility to look to the wider picture in Northern Ireland, not simply the conditions laid down. The issues that the certification commissioner has to accept in terms of entry to the scheme are very tight, but the Secretary of state must retain discretion on this matter. Lembit Öpik: The Minister has failed to give the single example that the hon. Member for Belfast, East requested. However, in the example that he did give, he suggested that there may be occasions on which the Secretary of State will decide that not fulfilling the second element—regarding the condition on connection with a specified or newly specified organisation—may be relaxed. What is the point of including it at all? I remind the Minister that he has himself said that the record of this debate might be used to guide a court. He has now given the court some guidance, which is that, sometimes, the second condition may not need to be met. People will say that the hon. Member for Delyn (Mr. Hanson) said it was all right to let them off, and then a judge will say, “Oh, go on then, off you go. It’s fair enough.” That is the difficulty. The Minister cannot have it both ways, and he has just committed a fatal error when it comes to clause 6(1)(b) because he has just, more or less, negated its meaning. Mr. Hanson: I do not accept that I have because, as I said earlier, the provisions on the certification commissioner and eligibility for the scheme are extremely tight. Under clause 6, the Secretary of State has discretion on this matter, but that discretion will
I refer the hon. Gentleman to subsection 2(a) and (b), which states that the Secretary of State must give notice of the cancellation and of the reasons for it, and that he must inform the Director of Public Prosecutions. The reasons for that discretion being exercised will be a matter of public record and will be put to the Director of Public Prosecutions by the Secretary of State. |
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