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Standing Committee B
Tuesday 13 December 2005
(Afternoon)
[Part II]
[Sir Nicholas Winterton in the Chair]
[Continuation from column 258]
8.45 pm
On resuming—
Lorely Burt: I beg to move amendment No. 60, in clause 6, page 5, line 1, after ‘person’, insert
‘or the organisation with which he was associated’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 61, in clause 6, page 5, line 2, after ‘him’, insert
‘or the organisation with which he was associated’.
No. 80, in clause 10, page 7, line 8, at end insert
‘in relation to both the person and any organisation that he has at any time supported.’.
Lorely Burt: The amendments relate to Liberal Democrat amendments Nos. 48, 49, 51 and 54, which the Committee dealt with previously. Amendment No. 60 would tie the behaviour of the organisation to the fate of the individual. It would allow the Secretary of State to cancel a person’s certificate of eligibility if the conditions in section 3(3) were not met by the organisation at the time when the certificate was issued or, more crucially, if they are no longer being met by that organisation. That would give paramilitary organisations an incentive to cease all illegal activity: if they do not, they put the licences of those who support them at risk.
Although the Bill deals with individuals, it is important to remember that individuals carried out terrible acts of terrorism in Northern Ireland in the name of certain organisations. The behaviour of those organisations must also be considered in relation to the Bill.
Mr. Henry Bellingham (North-West Norfolk) (Con): Short and sharp. Well done.
The Chairman: I am most grateful to the Conservative Whip for saying that.
Mr. Hanson: I thank the hon. Member for Solihull for her eminently short introduction to the amendment. However, the very reason she mentioned is the reason why I cannot accept it: she wishes to tie the certificate to the organisation with which an individual was associated, but the scheme is predicated on an individual fulfilling the eligibility criteria to enter the scheme. The conditions of eligibility refer primarily to the behaviour and activities of the individual; that
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naturally includes consideration of the status of the organisation, but only in relation to the individual’s support and actions.
If there were a change in the status of an organisation and it became a specified organisation, that could lead to the loss of the certificate. However, the individual, as we have discussed in relation to previous amendments, may well have changed their behaviour dramatically. The scheme is based on the performance, activities and understanding of the individual, not on the organisation with which any individual may or may not be associated.
Sammy Wilson: Does the Minister not see a contradiction in the fact that the certificate will depend on the way in which the individual behaves but, according to the discussion that we had on the earlier amendments, whether or not the Secretary of State revokes the certificate will depend on the wider political circumstances?
Mr. Hanson: There is no contradiction. The individual and what happens to the individual may well form part of a wider political consideration, but the scheme is designed to assess the performance of the individual, what an individual undertakes in terms of their eligibility for the scheme and whether they meet the criteria for the scheme.
Mr. Robinson: If the Minister looks at clause 6(1)(b), he will see that the person’s position is tied directly to what the organisation does.
Mr. Hanson: The eligibility criteria relate to whether an individual is a member of a specified organisation and has other associations with that organisation. The point that I am making to the hon. Member for Solihull is that the conditions of eligibility refer primarily to the individual’s performance—whether he meets the criteria for the scheme and his subsequent performance in relation to them. There may be an opportunity at some point for the organisation of which that person was formerly a member to find itself engaged in further discussions with the Government about a range of issues. That organisation will then fall outside the scheme, but the individual will have met the eligibility criteria and ultimately will have worked within the scheme. It is the individual’s behaviour and activities that are judged by the scheme.
Mr. David Anderson (Blaydon) (Lab): Is it not true that, right across Northern Ireland, there are people who were terrorists and who served time in prison either before or after the early release scheme, but who have done sterling work in moving the Northern Ireland peace process forward? If the organisation to which they once belonged was no longer compatible with the peace process, we would not think of saying to them that they should suffer personally. Why should we apply it in the certification scheme?
Mr. Hanson: Other clauses provide for a period between the judgments on the performance of the organisation and on the continuance of an individual in the scheme. In my view, the conditions of eligibility
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refer primarily to the behaviour or activities of the individual. For that reason, I urge the hon. Member for Solihull not to press the amendment to a Division.
Lorely Burt: The Minister says that the amendment is tied to the individual and not to the organisation. However, the hon. Member for East Antrim said that the revoking of the certificate will depend on the wider political circumstances. More specifically, the hon. Member for Belfast, East made the valid point that the individual and the organisation are inextricably connected. I am sorry to disappoint the Minister, but I feel that it is appropriate to press for a vote.
Question put, That the amendment be made:—
The Committee divided: Ayes 10, Noes 16.
[Division No. 29]
AYES
Bellingham, Mr. Henry
Burt, Lorely
Donaldson, Mr. Jeffrey M.
Hermon, Lady
Hunt, Mr. Jeremy
Öpik, Lembit
Robertson, Mr. Laurence
Robinson, Mr. Peter
Wallace, Mr. Ben
Wilson, Sammy
NOES
Anderson, Mr. David
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.
Mr. Robinson: I beg to move amendment No. 24, in clause 6, page 5, line 6, at end insert
(c) without good excuse the person who holds a certificate of eligibility does not attend the Special Tribunal dealing with his case.’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 62, in clause 6, page 5, line 6, at end insert
(c) the person has refused to answer questions from a police officer about the offences notified in the application under section 3.’.
No. 63, in clause 6, page 5, line 6, at end insert
(c) the person has refused to appear in court.’.
No. 25, in clause 8, page 5, line 34, leave out subsection (3).
No. 70, in clause 8, page 5, line 34, leave out ‘no’ and insert ‘an’.
No. 26, in clause 8, page 5, line 35, leave out subsection (4).
No. 27, in clause 8, page 5, line 37, leave out subsection (5).
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Mr. Robinson: Our proceedings might slow down a little now, as amendment No. 24 is a key amendment to the Bill. The ghosts of absent applicants have already passed through the Committee several times, and no doubt they will do so again, given some of the other amendments, particularly new clauses 13 and 18. However, this is the only time when the issue arises in a lead amendment. I suspect that hon. Members will address the purpose and principle of the amendment, rather than its wording.
Amendments Nos. 24 to 27 strike at the credibility of the whole Bill. Their purpose is to require the applicant to attend the special tribunal that is dealing with their case. There is no requirement in the Bill as drafted for an applicant to attend, which makes total nonsense of the notion of justice and is yet another attack on the victims of those before the tribunal.
I recognise that the amendments are not the only way in which to achieve our goal—other hon. Members have suggested alternatives—but the key is to achieve that goal. Whether or not the Minister wants to face up to the issue in this Committee—he has showed no inclination to face up to much so far—he will eventually be confronted with it.
Amendment No. 24 provides that a certificate of eligibility can be revoked if, without good excuse, the person who holds it does not attend the special tribunal dealing with his or her case. Attendance therefore becomes a requirement. The consequential amendments Nos. 25 to 27 would remove from clause 8 the words that ensure that there is currently no obligation on a defendant to appear before the special tribunal.
We should remember the very considerable concern expressed at every level on both sides of the House on Second Reading about the idea that people could be dealt with in absentia. I recall that the former Secretary of State for Northern Ireland, the right hon. Member for Torfaen (Mr. Murphy), said:
“the Government should consider seriously some of the amendments that are likely to be proposed. A number have been mentioned this afternoon, including the hugely important one about the victims appearing in court at a time when the person concerned may not have appeared. I hope the Government will listen to the amendments proposed. The difference between now and 1998 is that there has not been a referendum and the context is clearly very different.”—[Official Report, 23 November 2005; Vol. 439, c. 1562.]
The right hon. Gentleman is a former Labour Secretary of State for Northern Ireland who was one of the people most closely involved in the negotiations on this very scheme, so I would have thought that his successor and the Minister would have taken his views more seriously.
Given the inexplicable lack of a requirement to attend a special tribunal in person, it is natural for people to assume that the deal that the Government did with the IRA requires that particular provision. I point out to those people that on Second Reading the present Secretary of State for Northern Ireland denied that that was the case and said:
“I repeat the point that I made and reconfirm that no assurance was given in writing to the IRA about this specific matter . . . Of course no such written assurance was given.”—[Official Report, 23 November 2005; Vol. 439, c. 1538.]
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Unless the right hon. Gentleman was disingenuously drawing our attention to a written assurance as opposed to one given verbally or in some other way, there is no clear reason why the Minister should feel constrained to hold on to a provision that his right hon. Friend said at the time of the negotiations should be changed. I therefore hope that the hon. Gentleman will consider making a change on this vital issue.
9 pm
When replying to the Second Reading debate, the Minister could offer no credible justification for the lack of a requirement to attend court, and no justification has been offered thus far. If the provision does not arise from the deal that the Government have done, they will clearly want to make a change. It is absurd that a witness or a victim may be required to attend a special tribunal but the perpetrator of the offence will not be required to do so.
The victims, the police and the special tribunal will all face considerable expense, difficulty and upset, but the person responsible for the offence, whom the scheme is designed to benefit, will not even have to attend and could be off on their holiday. As a result of the absence of a requirement to attend, perpetrators will be allowed to turn the entire process into a farce and a joke. Even while his case is being dealt with, a perpetrator could be walking the streets or lolling around, never having to face a day in jail, never having to face a court, while the victims and their families endure the hardship yet again of having to relive their trauma.
I see no possible justification for decisions being taken in the absence of the person responsible for the offences. It is essential that they face the court and their accusers, that the court has the opportunity to consider the arguments and hear the evidence, and that the victims have the right to see those who are responsible so that they can—I come back to that word again—have some measure of “closure” on the events. Once again, however, it is clear that the Government are on the side of the terrorists, not the victims.
Lembit Öpik: In supporting the sentiment and intent behind the amendments that the hon. Gentleman has just spoken to, I shall speak to amendments Nos. 62, 63 and 70, which stand in my name and that of my hon. Friend the Member for Solihull.
Amendment No. 62 highlights our concern about the provisions that specify that an applicant cannot be arrested or detained. That presumably means that they cannot be questioned about any offence in their application, or at least that they cannot be made to participate in the questioning process. We are concerned that that could damage the chances of the police and the prosecution of building any kind of credible case against an applicant.
Under the amendment, the refusal to answer questions of an applicant who had been arrested could be drawn to the attention of the tribunal, which could then draw a potentially adverse inference from that silence. More specifically, the amendment would provide applicants with an incentive actively to
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participate in the process. Given that their certificates could be cancelled if they refused to answer questions from a police officer, they would, I hope, be more willing to co-operate and to come forward to admit to anything they might have done.
In the same vein, amendment No. 63 would provide the applicant with an incentive to appear before the tribunal. We propose revoking the licence of a person who does not appear before the court. It would give the applicants a motivation to be at their own hearing. Nothing in the Bill encourages an applicant to appear, as the hon. Member for Belfast, East said. The case can be made by a barrister, and applicants will not have to be cross-examined or face the people who have been affected by their actions. It is easy to understand why a person in that position would choose not to appear if they had no reason to do so. The amendment would provide them with a reason to attend the hearing.
Thirdly, amendment No. 70 would make a change that is very simple, but which goes to the heart of the matter. For Liberal Democrats, this is one of the crucial issues in the Bill. The suggestion that a qualifying defendant will not have to appear before the special tribunal to avail himself of the scheme is offensive. Instead, they may be represented by proxy. The Committee should think about that. As a special tribunal will have all the powers of the Crown court, the Bill creates a ridiculous situation, as victims of and witnesses to the offences could be subpoenaed—forced to appear in court to give evidence against an accused person who is not even there.
If the offender is not required to appear in person, the whole process becomes a charade. Relatives of victims and victims themselves will be forced to relive experiences caused by an individual who may not even be in the country.
As I said on Second Reading, appearance in court is essential. It would give a limited sense of relief to some victims. It would be small consolation to many of those who suffered at the hands of the paramilitaries, but it would be a start. It would clearly show that society believes that what the offender did was criminal and continues to be wrong. Although the offender would be released on licence, he or she could not wash their hands of the offences of which they had been found guilty.
The Government have offered absolutely no credible justification for a defendant not being required to appear in court. Meanwhile, in comparison, victims and their representatives have given a cast-iron explanation of why that is necessary in terms of natural justice and as an essential part of any judicial process that is to be taken seriously.
In opposing the amendment, the Minister must explain how on earth trial by proxy can have anything like the same coherence as trial in the orthodox fashion, which one would expect in a court. He must also explain why he can pretend that the Government have considered the matter in the context of victims’ requirements, when everything is weighted towards making it comfortable for the defendant.
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So far, I have heard nothing from the Minister, his boss or any other Government spokesperson as to why the measure is in the Bill. We have been assured many times that it is not part of a deal with Sinn Fein. Forgive me for being sceptical, but I see no rational or ethical justification for the exemption of a defendant from attendance in court. However, I look forward to hearing what the Minister has to say.
Gordon Banks (Ochil and South Perthshire) (Lab): I want to pick up from where the last two speakers left off. Labour Members have significant concerns about the fact that the Bill places no obligation on the defendant to appear before the special tribunal in person. I echo the sentiments expressed earlier by my hon. Friend the Member for Glasgow, South.
It is particularly difficult when witnesses who may be victims, or the family of victims, can be forced to appear and go through a gruelling, difficult process, but the persons who stand to gain most from that process are spared that moral responsibility. The lack of attendance by the defendant shows no acceptable recognition of the crimes with which they are charged or the procedural process.
I bring to the Minister’s attention comments made by Dave Cox, a former Metropolitan police commander who worked on the Stevens inquiry on security force collusion in killings, about what he called the “extraordinary unfairness” of a situation in which a witness might be required to appear before a tribunal, but the defendant is not required to do so.
I am sympathetic to comments made in relation to clause 4, and the requirement to attend would remove the possibility of false applications. I urge the Minister to give the Committee an understanding that he is prepared to consider, between now and a later stage in the process, the forceful argument that defendants should be compelled to appear.
Huw Irranca-Davies: I also support the aims of the amendments, and I made my position clear in an intervention on Second Reading. This issue goes to the core of the Bill. Although we may have fundamental disagreements in Committee about the aim of the legislation, there is a cross-party feeling among many Members that one of its effects should be to achieve, to whatever degree of effectiveness is possible, some feeling of justice—a sense that criminal and terrorist activities have been displayed for people to see, that it is right that they are on record and that the person concerned appeared in person to acknowledge them.
I am sure the Minister realises that there is a significant difference between the appearance of a proxy to acknowledge the offences in place of the individual concerned and the appearance of that individual. Later amendments deal with the issue of expressions of remorse—I shall not test your patience by dwelling on that, Sir Nicholas—but those we are considering do not. They simply aim at getting the individual to appear in person so as to hear the roll call of their criminal or terrorist activities.
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Mr. Hunt: The hon. Gentleman speaks most eloquently. Will he this time send the Government a clear message by voting for the amendments?
Huw Irranca-Davies: The hon. Gentleman tempts me. I shall see, depending on the Minister’s response, but I have progress to make yet.
The amendments go to the core of our discussion, because mention has previously been made—this is very pertinent to the amendments—of the creation of an amnesty under the Bill. It is not an amnesty, because that would wipe the slate completely clean and give a total pardon. Although the Bill does not create an amnesty, we want not only the certificate and the record pertaining to the individual, but the individual himself—standing there, accounting for the things he was responsible for.
Mr. Mark Todd (South Derbyshire) (Lab): Can my hon. Friend think of any circumstance in which the individual’s non-attendance could be justified? I have attempted throughout consideration of the Bill to think of various hypothetical circumstances—we had a good exercise of that kind earlier—but I cannot for the life of me think why an individual in the relevant circumstances should not attend. Can my hon. Friend throw any light on that?
Huw Irranca-Davies: My hon. Friend makes a fair point. I struggle to think of such exceptional, rare circumstances, although there may be some.
Mr. Hendrick: Does my hon. Friend agree that such a case might be one in which a person’s identity could be revealed as a result of a court appearance? Is it reasonable to suggest that, in the same way that undercover police officers are shielded in court, arrangements might be made to allow someone to attend court without being recognised?
Huw Irranca-Davies: My hon. Friend gives an interesting illustration to try to identify a possible exception, but what he describes would not preclude the individual’s appearing in court, albeit behind a screen or in disguise. That is a fundamental point.
9.15 pm
Mr. Ellwood: I am trying to work out when an amnesty is not an amnesty. When it sounds like an amnesty and looks like an amnesty, I think it is an amnesty. The point about informants is a red herring.
Huw Irranca-Davies: When is an amnesty not an amnesty? When it clearly is not in this Bill. An amnesty has to be complete. I do not have the details on me, but I did some research and will happily forward the results to the hon. Gentleman, which show where amnesties have happened. An amnesty is technically, and clearly legally, a complete wiping clean of the slate.
The hon. Gentleman has talked about truth and reconciliation. I appreciate the analogy, but this is not truth and reconciliation, nor is it akin to the situation in Uganda. There, people involved in the Lord’s Resistance Army came back after murdering their own kinsfolk and stood in front of their tribe and said, “I
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am guilty for what I did, I am remorseful. Please accept me back.” This is not that—it is very different legislation.
I am conscious of the time, so I shall conclude. There is a strong feeling that, for families that have lost loved ones to have some sense of justice, however small, there needs to be an appearance in court. I look forward to hearing the Minister’s response and ask him seriously to consider the views across the Committee on the issue.
Mr. Robertson: For the record, we support the amendment tabled by the hon. Member for Belfast, East. I do not intend to speak at length, because we are coming to new clause 18, which would go a little further in replacing the tribunal with a court. It would also place on the defendant a duty to appear in front of that court, and make it a criminal offence if he did not.
Mark Durkan: I rise to express our support for amendment No. 24 and to address a number of other amendments.
There are many reasons for opposing the Bill, and many reasons why we in the SDLP oppose it—the absence of a time limit; the inclusion of those who have either killed while acting in the name of the state, or solicited or been complicit in killings by others while they were acting for the state; and the outrageously lax treatment of loyalist terror. Those are all enormous failings, and each is a reason why we have called for the Bill to be dropped. However, for the widest possible cross-section of the public in Northern Ireland, symbolically, the most appalling feature of the Bill is the fact that perpetrators do not have to appear in court to avail themselves of the scheme.
Those people are to be spared even the vague discomfort of possibly having to look their victims in the eye, or even catching their eye. That means that provos on whose behalf the Bill was negotiated can come home with the pleasure of a media opportunity, surrounded by their supporters—“home comes the hero”. That leaves those who were party to collusion able to celebrate in quiet anonymity, as any chance of the emergence of the truth about their misdeeds evaporates under this legislation.
Those are the lengths to which the Government and Sinn Fein have been willing to go in this pact to cover for each other and to deny victims of all kinds the truth. The provision in clause 8(3), for instance, did not appear out of nowhere. It was specifically negotiated into the Hillsborough side deal in 2003. In recent weeks, since the legislation was published, Sinn Fein has been happy to say constantly, “This legislation comes from Weston Park”. It deliberately tries to airbrush Hillsborough 2003. The paper produced by the Government on that occasion provided that nobody would have to appear—so the provision goes right back to that time—but it also provided that the scheme would cover all scheduled offences, which Sinn Fein has been in denial about, saying that it was not aware of it and that it was written in only recently. Even the Government have pretended
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that Sinn Fein knew nothing about it, even though the public record shows different and “all scheduled offences” can mean only “all scheduled offences”.
That is why the Government are not proposing any amendments today, in spite of what they have said before. It is also why they will vote down any amendments tabled by the rest of us. That is so that, when they propose any amendments, it will be in the House of Lords, so that they can keep their word to Sinn Fein that they would not let the DUP, the UUP, the SDLP or anybody else lay a finger on the Bill. Only in the House of Lords, which the Government do not control, might they have to make some adjustments. Somehow, they will be released from their compact with Sinn Fein there and will be allowed to dance on their feet a little.
When amendments are tabled, no doubt we will even be treated to Sinn Fein claiming the credit for one or two—not least because some issues on which the Minister has said he will reflect involve tightening the Bill in favour of the perpetrators. A few loose threads were identified in earlier discussions. What does that mean to us as members of the Committee and Members of the House of Commons? We have to ask how this has come to be such an upside down world. We are meant to suspend our democratic parliamentary judgment when the magic words “for the wider good of the peace process” are used and accept that some other unexplained imperative should override the logic that is coming from all Members, including those on the Government side of the Committee, which is that people who avail themselves of the scheme should at least have to participate in the proceedings, or even part of them.
As well as telling us that the Bill is about closure, the Minister has told us that it is about people having to take responsibility for their actions. We know from earlier debates that people will not even have to take responsibility for their own application. Now they will not have to take responsibility even to turn up. We have to ask how we, as democratic parliamentarians, find ourselves in this upside down world. We, the elected Chamber of this Parliament, are to be denied the right to make logical, proper amendments that even the Government have difficulty arguing against—all for that to be done by an unelected Chamber on behalf of people who carried out thoroughly undemocratic and unlawful deeds.
Of course, it is not just we democrats who find ourselves in an upside down world and treated as though we are the subversives for speaking up for the democratic, public and lawful interest. As the hon. Member for Montgomeryshire has said, we also have the extraordinary situation whereby a perpetrator does not have to appear in court, but a victim who is a witness can be compelled to appear, even though that person may, and in all chances will, fundamentally object to the whole proceedings.
What happens if the victim does not appear? He or she risks imprisonment—the very outcome that this whole process is designed to ensure that perpetrators
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avoid. That is how devoid of principle the Government and Sinn Fein are in straying and taking forward the Bill.
That may suit the IRA, the UDA, the UVF, members of the force research unit and people in special branch who were up to all sorts of skulduggery, but the rest of us are left with questions. How can anyone stand over such a perverse and unjust outcome? The magic words “for the wider good of the peace process” simply do not wash. Many of us have taken many risks and many stands. Many of us have suffered many costs in standing up for the wider good of the peace process. The Bill has nothing to do with the wider good of the peace process and this provision is about protecting the narrowest possible interest of people who have a lot to hide. The Bill is about accommodating people by hiding those things in the name of closure—closing down the truth in the name of closure.
That is why we stand ready to support amendment No. 24, which at least would give the perpetrator some incentive to turn up in court. I am equally happy to support the other amendments, including those that we have tabled, which would either give perpetrators an incentive to appear in court or oblige them to do so. Those are amendments Nos. 25 to 27, 70 and 62.
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