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Standing Committee B
The Committee consisted of the following Members:
Chairmen:
†Sir Nicholas Winterton, David Taylor
†Anderson, Mr. David (Blaydon) (Lab)
†Banks, Gordon (Ochil and South Perthshire) (Lab)
†Bellingham, Mr. Henry (North-West Norfolk) (Con)
†Brown, Mr. Russell (Dumfries and Galloway) (Lab)
†Burt, Lorely (Solihull) (LD)
†Coaker, Mr. Vernon (Lord Commissioner of Her Majesty’s Treasury)
†Cooper, Rosie (West Lancashire) (Lab)
†Donaldson, Mr. Jeffrey M. (Lagan Valley) (DUP)
†Durkan, Mark (Foyle) (SDLP)
†Ellwood, Mr. Tobias (Bournemouth, East) (Con)
†Foster, Mr. Michael (Worcester) (Lab)
†Hanson, Mr. David (Minister of State, Northern Ireland Office)
†Harris, Mr. Tom (Glasgow, South) (Lab)
†Hendrick, Mr. Mark (Preston) (Lab/Co-op)
†Hermon, Lady (North Down) (UUP)
†Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
†Hunt, Mr. Jeremy (South-West Surrey) (Con)
†Irranca-Davies, Huw (Ogmore) (Lab)
†McDonagh, Siobhain (Mitcham and Morden) (Lab)
†McDonnell, Dr. Alasdair (Belfast, South) (SDLP)
†Moon, Mrs. Madeleine (Bridgend) (Lab)
Öpik, Lembit (Montgomeryshire) (LD)
†Robertson, Mr. Laurence (Tewkesbury) (Con)
†Robinson, Mr. Peter (Belfast, East) (DUP)
†Slaughter, Mr. Andrew (Ealing, Acton and Shepherd’s Bush) (Lab)
†Todd, Mr. Mark (South Derbyshire) (Lab)
†Wallace, Mr. Ben (Lancaster and Wyre) (Con)
†Waltho, Lynda (Stourbridge) (Lab)
†Wilson, Sammy (East Antrim) (DUP)
Alan Sandall, Committee Clerk
† attended the Committee
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Thursday 15 December 2005
(Morning)
[Sir Nicholas Winterton in the Chair]
Clause 8
Trial by Special Tribunal
9 am
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 108, in clause 18, page 9, line 39, leave out ‘Special Tribunal’ and insert ‘Crown Court’.
New clause 13—Trial in the Crown Court—
‘(1) A person who holds a certificate of eligibility shall be tried for a certified offence in the Crown Court.
(2) The Crown Court may, not under this section, try any offence that is not a certified offence.
(3) There is an obligation on a defendant to appear before the Crown Court.’.
New clause 17—Trial in the Crown Court (No. 2)—
‘(1) A person who holds a certificate of eligibility shall be tried for the offences certified in that certificate in the Crown Court.
(2) Nothing in this Act shall affect the powers of the Crown Court with regard to the conduct of its proceedings and in particular its power to compel the attendance of the accused.
(3) Notwithstanding the Interception of Communications Act 1985, intercepted communications shall be admissible in proceedings concerning a person who holds a certificate of eligibility and subject to the overriding control of the court may only be adduced by the prosecution.
(4) Intercepted communications shall not be subject to any form of discovery by the accused.’.
New clause 18—Trial in the Crown Court (No. 3)—
‘(1) A person who holds a certificate of eligibility shall be tried for a certified offence in the Crown Court.
(2) There is a legal obligation on a defendant to appear before the Court.
(3) Failure by the defendant to appear before the Court shall constitute a criminal offence.
(4) The Court may impose such trial conditions on the defendant as it deems necessary.’.
This is the penultimate sitting, and my colleague David Taylor will be in the Chair for the final sitting this afternoon. I thank members on both sides of the Committee for their co-operation during the deliberations that I have chaired. The Bill is difficult and controversial, but it appears that we are proceeding satisfactorily, and I hope that that will continue. I thank Hansard, the Clerks, the police and all those who have helped to ensure that the Committee has been able to conduct its business properly.
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Mr. Laurence Robertson (Tewkesbury) (Con): Welcome back to the Chair, Sir Nicholas. As you will not be serving this afternoon, I should like to say what a pleasure it has been to work under your chairmanship. I thank you for your guidance.
New clause 18 would require defendants to appear before a court. It would make two changes: one is that defendants would be required to appear before a court rather than a tribunal, and the second is that they would be required to appear at all. We had a long debate on whether they should be tried in absentia or be required to appear before the tribunal, and the Minister said that he would go away and think about it. He has had time to do a bit of thinking, if not necessarily to come up with an amendment, but I do not wish to press that point to a vote.
Why is a special tribunal necessary when the court system is already set up and running? The Secretary of State’s explanation in the Chamber on Second Reading was not entirely satisfactory: he said that such proceedings would clog up the court system. I am not sure how he can make that assessment. Given the Minister’s and the Secretary of State’s responses to the questions that we have asked, we do not know how many people will qualify under the scheme. The Secretary of State’s explanation, if it can be called that, was unsatisfactory, so I should like the Minister to explain it.
As the Minister said that he would respond on Report, possibly with an amendment dealing with appearing before the tribunal, my new clause has become nothing more than a probing amendment. I do not intend to press it to a vote, given his reasonable approach, but I should like an explanation of why we must have a completely new system called a tribunal rather than the Crown court.
Lady Hermon (North Down) (UUP): I, too, congratulate you on your chairmanship, Sir Nicholas, particularly during the long, dark evening sitting that we had on Tuesday. Your good chairmanship on that evening will not be forgotten by anyone on the Committee.
I support the opinion that clause 8 should not stand part of the Bill, and will speak to new clause 17. I object strongly to the clause remaining part of the Bill, because it invents a new body called the special tribunal. That title gives the impression that it is some august body. In fact, schedule 2, when read with clause 8, indicates that the special tribunal would consist of one person—
“a person who has held high judicial office or office as a county court judge (in Northern Ireland) or circuit judge (in England and Wales).”
Without intending any offence to the person who might take up that post, I believe that it is utterly unacceptable that that person should be a retired judge. The job will require an up-to-date working knowledge of the criminal law, rather than a retired person’s knowledge. The proposal is for very serious criminal offences to be tried and examined by a single person in a special tribunal, and I wonder whether the
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Minister can say how much experience of the criminal process a Northern Ireland county court judge is likely to have.
We already have a criminal courts system in Northern Ireland, including the Crown courts and others. The amendment, together with new clause 17, would ensure that the criminals covered by the Bill—it is criminals that we are talking about—would come before the ordinary criminal courts. The hon. Member for Tewkesbury (Mr. Robertson) questioned the Secretary of State’s explanation of the special tribunal and the whole apparatus that we are discussing. I remind hon. Members of what the Secretary of State said on Second Reading:
“I do not want this process to jam up the existing courts . . . I do not think that the citizens of Northern Ireland think that it would be right . . . to obstruct the timing and momentum of the normal criminal proceedings that are going through our Crown courts, possibly including cases following the Good Friday agreement. That is why we set up the parallel procedure.”—[Official Report, 23 Nov 2005; Vol. 439, c. 1549.]
Can the Minister tell us what evidence exists that the citizens of Northern Ireland object to criminals coming through the criminal courts? Is it actually the case—only he can answer this—that the judiciary in Northern Ireland, which I hold in high esteem, would not touch this procedure with a bargepole, whether it was 10 ft, 40 ft or whatever length one cares to invent? I just want him to tell us the views of the Lord Chief Justice and the judiciary, and say whether it was they who objected, rather than the citizens of Northern Ireland. Like hon. Members representing all constituencies in Northern Ireland—of course, they may be in the wrong Unionist party, or the SDLP—I have spoken to many constituents, victims and others about the legislation, and not one of them has objected to such criminals coming through the normal criminal courts.
I shall therefore press new clause 17 to a vote.
Lorely Burt (Solihull) (LD): I hope that today we shall continue as before, under your admirable leadership, Sir Nicholas. I intend to speak in support of amendment No. 108 and new clause 13, and to oppose the stand part motion.
The amendments in the group all relate to an issue that my party regards as fundamental—the status of the hearing. We firmly believe that defendants should be tried in the Crown courts. As drafted, the Bill sets aside due process and the normal rule of law. The people who will avail themselves of the measures are people who have been accused of serious terrorist offences. Why should they not be tried in a criminal court?
The Bill shuts out the courts from considering such cases, whereas we should be demonstrating that society, the Government and the offender all recognise that the offence was wrong, and that due process is being observed. The proposals will make it much more difficult to hold offenders to public account for their actions, and I am concerned that if justice is not seen to be done, the Government will be licensing vigilantes to take matters into their own hands. Unfortunately, there are still elements of society in Northern Ireland who prefer to do just that, rather than trust the police
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and the courts to deal with offenders. We discussed that when we considered the position of people who have been intimidated into moving out of their homes and who have been exiled from Northern Ireland. Who is to say that there will not be people who feel that justice has not been done, and take the law into their own hands?
We are also concerned that the processes set out in the Bill will undermine the current criminal justice system. I have the utmost respect for the judiciary, both those currently serving on the bench and those who have stepped down. The Secretary of State has said that the special tribunal will consist of a retired judge. I am concerned that giving a person outside the judiciary the ability to try, convict and sentence a person would drive a coach and horses through the valuable criminal justice system in Northern Ireland. I appreciate that retired judges do much valuable work, such as involvement in Government inquiries, but those inquiries do not try or convict a person for criminal offences.
The Bill sets out all kinds of special mechanisms to deal with applicants—appeals commissioners, a special tribunal, a special prosecutor and a special appeals tribunal. I asked the Secretary of State to estimate the likely cost of setting up those additional unwanted mechanisms. He replied that it was not yet possible fully to predict the cost, but stated:
“The costs will be met from within the NIO’s existing resources.”—[Official Report, 12 December 2005; Vol. 440, c. 1740W.]
In other words, there will be no additional funding.
We shall certainly press this matter to a Division.
Mark Durkan (Foyle) (SDLP): I recognise, as have others, that we spent a long time here on Tuesday under your chairmanship, Sir Nicholas. I appreciate what you did to ensure that we did at least leave on Tuesday, not on Wednesday. Today, however, those of us who have travel plans will, I hope, be able to keep to them.
Like others, I oppose clause 8; I shall also speak to the new clauses. The clause would provide for a special tribunal. In this Hain-Adams Bill, Sinn Fein, which opposed the idea of special legislation for years, and opposed special courts in the north and the south, has begotten a special tribunal. No doubt Sinn Fein will be able to say that it is different because it is not actually a court. That is the rub.
Sinn Fein used to say—and we have always said—that people have the right to a trial before a jury. New clause 13 would ensure that, and on that basis we are pleased to back it. It would also ensure that those who are convicted would not be able to excuse or spin that conviction in future on the grounds that it had been given by a special tribunal of dubious legitimacy, without a jury. If people could do that, it would undermine the Government’s false claim that the Bill is about giving victims the satisfaction of at least having a conviction for the crime that hurt or bereaved them. As the Bill stands, the special tribunal does not even have to have a currently serving judge. As other
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hon. Members have mentioned, a retiree is allowed. That shows how literally unreal the special tribunal will be as a court.
The Government have also told us that the Bill will honour an international agreement. We have been told to think past the fact that it comes from a black pact with Sinn Fein, on behalf of the IRA, and to recognise that it is part of an international agreement with the Irish Government to underpin the peace process. We have been told that we cannot oppose the Bill if we support the peace process, want good things to happen and believe in the Good Friday agreement. The Irish Government are having to say the same thing about the provisions that they are making in the south, but let us remember that in the south of Ireland, a special tribunal such as the one in the Bill would be absolutely and totally unconstitutional.
The rest of us are meant to be intimidated by this binding international agreement and to suspend all our values and judgments in the face of it. What we are being asked to do in support of and to honour that agreement would be unconstitutional, and nobody in the south of Ireland is being asked to do the same. If parliamentarians in the south of Ireland are not being asked to honour the agreement in this way, why, in whatever name people believe in, are we being asked to do so? The legislation is asking us to go along with a contradiction inside a conundrum buried underneath an outrage.
The Irish constitution is clear that only the courts can administer justice. That should be the case here as well. That is something with which anybody should agree who also believes in the rule of law and democracy, even in what I understood passed for British democracy. That should be the position here, and that is why we are backing new clause 13 and why anybody in this room who calls themselves a parliamentary democrat and a believer in justice should back it too.
9.15 am
The Minister of State, Northern Ireland Office (Mr. David Hanson): In case I forget to say so at 10.25, I pay tribute to your chairmanship now, Sir Nicholas, it has been a pleasure to serve under you. At the completion of these proceedings, both you and Mr. Taylor should be proud of your work. If the hon. Member for Foyle (Mark Durkan) has travel plans, may I say that he is welcome to go now?
Clause 8 contains provisions that establish a special tribunal with the exclusive right to try offences certified under this legislation. The clause also introduces schedule 2, which contains the necessary supplementary provisions for the special tribunal. It may help hon. Members if I explain the Government’s rationale behind the special tribunal, and I will then respond to points raised in the debate.
The key feature of the special tribunal is that it attracts to itself all the powers, authorities and jurisdictions of the Crown court, but sitting without a jury. It is to all intents and purposes the Crown court
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without the jury, and is therefore the equivalent of the Diplock court, of whose operation Members, particularly those who represent Northern Ireland constituencies, will be aware.
Mark Durkan: New Diplock.
Mr. Hanson: The hon. Gentleman is again being very helpful with his heckles. I am aware that the provision is controversial, as was recognised in hon. Members’ contributions.
In speaking to his new clause the hon. Member for Tewkesbury raised the issue of an individual’s attendance at the tribunal. In Committee on Tuesday I gave clear indications that following representations in the Committee, on Second Reading and outside the House, I will return on Report having reflected on the issues raised. I hope that that will satisfy the hon. Gentleman. I will examine his new clause carefully before Report, and I hope that I will be able to reflect on it positively.
I would like to take the opportunity to set out the importance of having a distinct tribunal for the prosecution of certified offences. That may be for reasons with which hon. Members disagree, but it is for reasons that the Secretary of State explained and dealt with on Second Reading. The cases that will appear before the special tribunal are in many ways additional to the existing burden on the courts. I recognise, as I have said, that we cannot as yet estimate precisely the number of cases that will come before the tribunal, but we do have a reasonable idea of the potential number. They are historical cases, even though in many instances their impact will continue.
Courts in Northern Ireland will be busy trying recent crimes, not necessarily related to the Troubles, but to recent crimes as a whole. To impose on the court system, in relatively short order, a wave of cases that are not part of their projected work load would throw up real difficulties, as the Secretary of State said. I anticipate that if the legislation reaches the statute book in its current form, there will be a wave of applications once the certification commissioner and the special tribunal are established; it is in the nature of the scheme that those who are going to return will do so fairly soon after it has been established.
Mr. Tobias Ellwood (Bournemouth, East) (Con): The hon. Member for North Down (Lady Hermon) repeated remarks made by the Secretary of State. One of the more astonishing admissions on Second Reading was that the grounds for not using Crown courts was that they would be clogged up; I think those were the words used. The Minister is willing to reflect on issues, and I would have hoped that the Secretary of State would reflect on the deluge of comments that were made after the revelation that he thought that the courts would be clogged up. I believe that there is cross-party support for using the Crown courts—not any other form of court. We want the process to go through the Crown courts, no matter how much delay might be caused, or how many problems might be created, or how much time it might take.
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Mr. Hanson: I was intending to address that point, which was also made by the hon. Member for North Down. If the legislation is enacted in its current form, the Government believe that there may be a wave of cases in 2007 and early 2008. We cannot yet calculate how many cases there might be, but we can work out the rough figure, and we know that that would cause a problem for Her Majesty’s Court Service. The courts would be in the position of having to timetable old cases—20 or 30 years old, perhaps—alongside recent cases in the normal criminal justice system. Questions of priority would arise, and it seems unreasonable to us in government to expect old cases to take precedence over current cases that are being dealt with by HMCS generally.
The consequence could well be either that old cases push back new cases so that they stagnate still further, or that individuals return and are granted certificates by the certification commissioner, but if a prosecution is brought against them, there is a delay. That would mean that for a period the individual would have the certificate, would have returned to Northern Ireland, and would be free from potential further investigation, but their court case would still be some time off. For that reason, it would be better to establish a stand-alone tribunal to deal with such matters.
Huw Irranca-Davies (Ogmore) (Lab): My hon. Friend has made it clear that the Government would like the process to be concluded as soon as possible, and reference has been made to the period of two years for winding it up. If the process clogged up the court system and inordinate delays were caused, that could lead to the period being artificially stretched far beyond two years; that would depend on how the courts dealt with the situation. Does my hon. Friend agree that the case for the special tribunal is made on that basis?
Mr. Hanson: I agree entirely. The Government want cases to be dealt with quickly, so that the matter is put behind us quickly—the convictions are given quickly, and the individuals are released on licence quickly. That is the way in which the matter would be best dealt with.
Lady Hermon: The Minister has outlined the Government’s views, and explained their defence of the extraordinary structure of this special tribunal. I would like him to focus on replying to the question that I asked when speaking to new clause 17. What are the views of the judiciary? Did the Lord Chief Justice of Northern Ireland object to taking part in this absurd procedure?
Mr. Hanson: I intend to come to that point shortly, after I have completed my current comments.
Mr. Ellwood: We are dealing with people who are on the run. They might have been on the run for many years. Will they be in a hurry to go through this process? The process needs to be done correctly, rather than in a rush. I know that the Minister wants to get the whole issue dealt with quickly, but that is not necessarily the best way to address it.
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I wish to make a second point, if I can test your patience, Sir Nicholas. I asked a few days ago for the number of people we were dealing with. The Minister was unable to give me a number. He was deliberately shy of that. He now seems to have a number in mind. He must do, or he would not think that the courts would be clogged up. What number does he have in mind that would clog up the courts?
Mr. Hanson: I anticipate that this scheme will be undertaken by a significant number of individuals. However, I cannot give the Committee or the House a specific figure because the matter relates to potential investigations and potential activity by the Police Service of Northern Ireland, which we cannot establish at present. I have a broad figure in my mind, and 60, 70 and 80 have been mentioned. I do not want to be tied to any figure, but I recognise that great interest could be taken in the scheme by a large number of individuals.
Mark Durkan: May I help the Minister?
Mr. Hanson: I am sure that the hon. Gentleman is aching to help me.
Mark Durkan: I have this from no less an authority with no less credibility than the Prime Minister. He assured my colleagues and me in Downing street in October 2005 that this Bill would cover no more than 60 people. That colourshow I take any other assurance or advice from the Government about the Bill, but if we are talking figures, we were told that it would be no more than 60. Does the Minister have a problem stating that to the Committee?
Mr. Hanson: I thank the hon. Gentleman for his help. It is encouraging to have his assistance on these matters. I must tell the hon. Member for Bournemouth, East (Mr. Ellwood) that I expect the figure will be about 60, 70 or 80. [Interruption.] If hon. Members would care to listen, that is what I anticipate—but at some future date more individuals may come forward, because the PSNI establishes that there are cases to answer, and I could find that there are 85 or 90 cases. There might be 45 or 50 cases. We are in that region.
The Chief Constable himself has estimated that he currently has an interest in approximately 70 individuals. That is the ballpark figure. I expect that if people avail themselves of this scheme, it will happen in a wave. That is why I return to the original point that it would be a burden on the existing Court Service. There will be a special tribunal to deal with those matters speedily, which will ensure that current criminal cases are not pushed back to delay their examination still further, and those 50, 60, or 70 individuals are not given a certificate before they have faced the tribunal.
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