Clause
7
Limitation
on challenge of issue of
certificate
The
Chairman:
The question is that clause 7 stand part of the
Bill—
Lembit
Öpik:
On a point of order, Sir Nicholas. I know
that my timing is marginal, but I should like to speak to the clause. I
seek your judgment in that case, because I am merely an honest broker
doing my
best.
The
Chairman:
I am prepared to allow the hon. Gentleman to
speak on clause stand part on clause
7.
Question
proposed, That the clause stand part of the
Bill.
Lembit
Öpik:
I apologise, Sir Nicholas. I have full faith
in the ability of the Committee, including my hon. Friend the Member
for Argyll and Bute, to cover the other matters, but I do wish to make
a point about clause 7.
Once again, it is not necessary
to repeat everything that was said on Second Reading, but there are
significant issues about the clause. In essence, clause 7 is
objectionable because it just does not take account of the observations
of the Joint Committee on Human Rights on this issue. My party did not
oppose the Bill on Second Reading, but I did say in the debate at that
time that if clause 7 were not removed or massively altered, we would
not support the Bill on Third Reading.
The key
reason for opposing the clause is one that has already been indirectly
alluded to by the hon. Member for Foyle. Not only is there no provision
in the Bill for an appeal against a decision of trial without jury, but
appeal is expressly prohibited. We believe that that is completely
wrong. Furthermore—in my judgment at least—it cannot be
right that the Director of Public Prosecutions can issue a certificate
for a trial to be conducted without a jury, without the defendant even
having any means to make representations to the DPP, or having any
means of appeal.
A
similar proposal was made in the Asylum and Immigration (Treatment of
Claimants, etc.) Bill 2004. What was then clause 11 of that Bill would
have inserted new section 108A in the Nationality, Asylum and
Immigration Act 2002. That provision would have cut off all appeals and
judicial review by the ordinary courts on immigration matters. It would
also have excluded habeas corpus applications in immigration cases. At
the time, the Joint Committee on Human Rights issued a damning report
on the provision. It stated that the Committee regarded the proposed
restriction
as
“inherently
objectionable as an attack on an important element of the scheme for
protecting Convention rights in the United
Kingdom.”
That quotation
comes from paragraph 1.28 of the Committee’s third report, dated
19 January
2004.
Despite attempts
by the Government to assuage the Committee’s concerns, a second
report stated that
“it
could be strongly argued that the ouster of judicial review of tribunal
decisions contemplated by clause 11 has not been justified by any
argument advanced by the Government. There is a real danger that this
would violate the rule of law in breach of international law, the Human
Rights Act 1998 and the fundamental principles of our common
law.”
That was in
paragraph 71 of the Committee’s fifth report, dated 2 February
2004. As far as I am concerned, the provisions before us are the
same—albeit in a different piece of legislation—and are
equally objectionable.
Dr.
Nick Palmer (Broxtowe) (Lab): Does not the hon. Gentleman
agree that the issues here are different? In the present context, we
are talking about life and death matters, because if the detailed
reasons for the director’s decision were to be effectively
challenged in court by judicial review, it would be necessary to go
into much more detail in public than is foreseen, for the reasons we
have discussed. I agree with the hon. Gentleman that in an immigration
case there is a case to be made for doing that. In the present case it
seems to me that there is potentially a real
risk.
Lembit
Öpik:
I have no doubt that the hon. Gentleman
believes that there is a difference, but I do not share his view. The
principle is the same. Although it may be argued that immigration cases
have a different magnitude, let us recognise that those cases too can
be life or death matters that can divide or unite families. For me, the
important point is that the proposal would set a precedent that was
rejected in earlier legislation: if it were allowed to pass, it would
set the precedent of acceptance of the opposing view in a piece of
British legislation. It would be inconsistent for the Liberal
Democrats—or anyone concerned about the human rights
consequences of the earlier legislation—to support such a
provision
now.
Clause
7(3) actually
says:
“Section
7(1) of the Human Rights Act 1998 (c. 42) (claim that public authority
has infringed Convention right) is subject to subsections (1) and
(2).”
So if my
understanding is correct, the provision says that the Human
Rights Act is subjugated by clauses 7(1) and 7(2). In other words, the
clause itself sets out a hierarchy of priorities in terms of rights,
and indicates that it is required in order to subject the Human Rights
Act to a process of relegation—in order not to fall foul of that
statute.
That is our
case; that is why we are opposed to clause 7. The only way for
the Minister to convince us otherwise would be to explain why it is not
similar to the precedent defeated previously. He will have to say why
the observations of the Joint Committee on Human Rights on that
previous legislation, which was very similar, can be disregarded on
this occasion. I doubt that he can.
Mark
Durkan:
The clause presents one of the most draconian
aspects of the Bill. Unlike the provisions of the Criminal Justice Act
2003, under the Bill, the DPP does not have to apply in court to have a
case tried without a jury. However, the clause goes much further: it
makes it impossible to question or to challenge that certificate by way
of judicial review. That runs totally contrary to the
Government’s own consultation paper, which stated that
“As with other
administrative decisions, the DPP’s decision will be judicially
reviewable.”
It also runs
contrary to the recommendations of Lord Carlile, who clearly believed
that the decision on certification should be judicially
reviewable.
I say in
passing that the fact that the Government can be so dismissive of such
a significant view is one reason why we have no faith in what the
Government offered last week about MI5—that we should be assured
that Lord Carlile will be reviewing it annually.
The Government have already told
us that the provision merely reproduces the result of the Shuker case.
In that case, it was decided that the decision of the Attorney-General
to deschedule was
“a
procedure on which the courts should be reluctant to
intrude”.
If so, and if
the courts had already established for themselves that it was a
procedure on which they should be reluctant to intrude, why is it now
necessary to go further? Why is it necessary to ensure that the courts
cannot even get a look in through the door or the window, never mind
intrude? The Government are exaggerating and extending the implications
of the Shuker case through the clause.
I understand that the
Government also argue that it will be possible for the courts to step
in, at least if there is bad faith on the part of the DPP. However,
subsection (1) does not permit that; it rules out judicial
review—full stop. It is true that subsection (2) provides that
the court is prevented from judicially reviewing where a decision is
taken without bad faith, but that is not to say that a court will be
permitted to do so if there is bad faith. After all, the
Minister’s argument is that the court should not
intrude.
Shockingly,
the Government back the provision with a derogation from the Human
Rights Act 1998 under subsection (3), and therefore from the European
convention on human rights—that is to say, a
derogation from the basic standards of decency that
are meant to have applied throughout Europe for more than 50 years.
That is an extraordinary thing for any Government to do. It is
particularly extraordinary for the Government to want to do it in
Northern Ireland, especially at a time when the security situation is
improving. They are constantly telling us how much things have changed
and saying that people should not have any worries or hang-ups about
the situation, yet they still want to introduce this extremely
draconian clause. I oppose its standing
part.
Mr.
Robertson:
If the amendment that we debated earlier had
been accepted—that the Lord Chief Justice for Northern Ireland
should determine such certificates—I probably would not have
wanted to speak. We have already heard that the Bill states at the very
front that
“Mr.
Secretary Hain has made the following statement under section 19(1)(a)
of the Human Rights Act 1998: In my view the provisions of the Justice
and Security (Northern Ireland) Bill are compatible with the Convention
rights.”
They are not. If
it were otherwise, there would be no need for subsection (3). It is
ridiculous, and, as the hon. Member for Foyle said, there can be no
judicial review. I am not a lawyer, although I studied law for a while,
but I am not aware of any other area of law in which judicial review is
impossible. Lawyers on the Committee may be able to advise me better,
but it seems to me that judicial review should be available for any
decisions that are not made in the correct manner.
How
do we know that that will not be the case with the Bill? Decisions
could be made in an incorrect manner and a judicial review has to be
available. That is a human right and a basic legal right. I have no
intention of repeating the remarks made by other hon. Members, but I am
concerned.
7
pm
Lady
Hermon:
As the Minister and other hon. Members who
participated in the debate on Second Reading will know, I am extremely
uncomfortable with all of clause 7, and I shall certainly support
others in voting against it. I might not have supported them to date in
voting against other aspects of the Bill, but I have no hesitation in
this instance.
Explanatory notes are very
helpful, and I know that civil servants spend an inordinate amount of
time scrutinising legislation and judicial cases to compile them for
the benefit of readers of the legislation. Although they are not part
of the legislation, they are a helpful background note. In this
instance, the explanatory notes laboured—as did the Secretary of
State on Second Reading—a small, narrow point taken from the
case alluded to by the hon. Member for Foyle, the Shuker case. That was
a decision, which the Minister mentioned, made by the Lord Chief
Justice of Northern Ireland and Lord Justice Campbell about whether the
Attorney-General should have descheduled an offence and whether that
decision was reviewable.
After
some discussion and a lot of thought two of our most senior judges in
Northern Ireland, both of whom are extremely experienced, came to the
conclusion, cited in the explanatory notes and by the Secretary of
State on Second Reading, that the descheduling of
offences
“is not a
process which is suitable for the full panoply of judicial review
superintendence. In particular, we do not consider that the decision is
amenable to review on the basis that it failed to comply with the
requirements of procedural
fairness.”
However, it
would have been accurate and would have done justice to the judgment of
those two senior judges in Northern Ireland had the explanatory notes
and Secretary of State been so kind as to go on to explain to the House
on Second Reading that the judgment continues in paragraph
27:
“It must be
made clear that while we have concluded that judicial review is not
available to challenge the decision of the Attorney in the present
cases, we do not consider that this will be excluded in every
circumstance.”
It goes on
to
say:
“Depending
on the circumstances of other cases that may arise, further grounds of
judicial review challenge may be deemed appropriate but we do not
consider that it would be helpful, or even possible, to predict what
those grounds might
be.”
It is not fair and
accurate to construe the Shuker case as a restriction, as clause 7
does, to the grounds of “dishonesty or bad faith”. That
is not what the judges were saying. They were saying that they would
not set out an exhaustive list of the grounds for judicial review. On
the narrow ground of the Shuker case, they decided not to open the case
and review it on the grounds of “procedural fairness”. It
beggars belief that under clause 7(2) a court would be
prevented
“from
entertaining proceedings to determine whether a decision or purported
decision of the Director (without dishonesty or bad
faith)”—
those are
the two allowable
grounds—
“was a
nullity by reason of lack of jurisdiction or error of
law.”
So, for goodness’ sake, the DPP may
make a decision that is wrong in law and wrong in fact because he is
unwell—for example, medically unwell—and a court would
not be able to review such a decision. We are talking about
someone’s civil liberties in the context of a Government who
made the European convention on human rights part and parcel of our
domestic law, and to which I say hallelujah. That was the best decision
they ever made. I am amazed and offended that they are now going to
say, “Well, we might have done that. It was a good decision at
the time, but when it suits us, we will, through clause 7(3), make the
Human Rights Act 1998 subject to subsections (1) and
(2).” That was done on the basis of a distorted interpretation
of one case, the Shuker case, where the judges were much fairer than
the explanatory notes or the Secretary of State. I am completely
opposed to clause 7 as drafted and, honestly, if I were the Minister I
would not even attempt to justify
it.
Dr.
Palmer:
I take the point made by my hon. Friend the Member
for Foyle that clause 7(2) appears to bear out what is stated in the
explanatory notes: that a challenge is still
possible where dishonesty or bad grace are suspected. However,
subsection (1) does not appear to envisage that possibility. Will the
Minister clarify whether, in the eyes of the law, the proposal as it
stands allows challenge on the grounds of dishonesty or bad grace?
Alternatively, will he introduce an amendment to make that
clear?
Paul
Goggins:
Although it is fairly evident from some comments
that it may be a tall order, I will do my best to persuade the
Committee that we are placing Shuker on a statutory footing, as
mentioned by the hon. Member for North Down. The Shuker judgment makes
it clear that the limitation we provide is not incompatible with the
European convention on human rights. The reason why the Bill is
compatible with the ECHR is because it guarantees a fair trial. The
convention does not guarantee trial by jury; it guarantees a fair
trial. As has been made clear by all hon. Members on Second Reading and
today, whatever questions people may have about the Diplock system, it
delivers fair justice and has done so in the teeth of some difficult
situations. That standard of justice will continue and I am happy to
stand beside the commitment my right hon. Friend the Secretary of State
made about the Bill being compliant with the ECHR, because it
guarantees a fair trial.
Mr.
Robertson:
We are disputing the decision about the mode of
the trial, not the trial itself. It is a fundamental right that if a
legal decision has been reached through the wrong channel, there is the
option of a judicial review. That is a fundamental basic right. I do
not know why clause 7(3) is in the Bill at all when the whole Bill is
supposed to be compatible with the European convention on human rights.
If the Bill was compatible, there would be no need for clause
7(3).
Paul
Goggins:
We are simply dealing with the decision on mode
of trial; this is not about a fair trial. The trial would be fair
whether it was by a judge alone or a jury. Yes, we are limiting the
grounds on which a challenge can be made, and that is for the good
reasons we rehearsed earlier. I shall repeat some of those.
There was difference of opinion
across the Committee, but the overwhelming judgment was that it is
still necessary to have trial by judge alone in Northern Ireland. I
believe that that view has held sway, as demonstrated in the votes
taken so far, because we have chosen the administrative route for
decisions about the mode of trial rather than the judicial route. We
have done that because if evidence is given in a judicial process on
whether a person belongs to a proscribed organisation, with which they
associate with, or on other aspects of the test, it has to be shared
with the defendant, and with that comes many risks, such as further
intimidation.
The
greatest risk of all is that such cases are tried not by judge alone
but by jury. Many risks come with that. We have decided that trial by
judge alone is justified in certain circumstances and that the
administrative route is the right one. Once we have taken that
decision, we cannot open that process to a system of judicial appeal
because that would put at risk all that we have sought to protect with
our earlier decisions. All that information would have to be shared in
a judicial process, and that would bring into question the system of
having trials by judge alone, in limited circumstances, which we seek
to introduce. There is no inconsistency. If we choose the
administrative route of having trials by judge alone, we cannot have a
judicial process questioning that, because it would undermine the whole
process.
Lembit
Öpik:
The Minister is not answering the question
asked by the hon. Member for Tewkesbury. If the legislation is
compatible with the Human Rights Act, why does the clause have to
suspend one of the Act’s measures and make it subject
to subsections (1) and (2)? I simply do not understand why the Minister
thinks that it is compatible if the Bill is to suspend a part of that
Act.
Paul
Goggins:
My whole point is that the limitation in
subsection (3) does not run counter to the overall assurance that the
Bill is compliant with the European convention on human rights; it is.
The hon. Member for Tewkesbury questioned the commitment of my right
hon. Friend the Secretary of State for Northern Ireland on that
basis.
We seek to
limit the grounds on which the DPP’s decision may be challenged.
My hon. Friend the Member for Foyle is right to say that the
DPP’s decision to issue a certificate can be challenged on the
grounds of bad faith and dishonesty. The grounds on which such a
decision may be challenged are necessarily limited for the reasons that
I have given. We have chosen the administrative route to protect
sources and important information. If there is then a judicial review
process, all that information will be opened up to wider scrutiny and
the defence. That would undermine the process that we are trying to put
in
place.
Mr.
Robertson:
Will the Minister tell us which court could
consider an appeal on the grounds of dishonesty or bad
faith?
Paul
Goggins
rose—[Interruption.]
The
Chairman:
Perhaps the Minister wants to take
another intervention.
Mark
Durkan:
Thank you, Sir Nicholas. I put it to the Minister,
as have other hon. Members, that something cannot comply with the Human
Rights Act or the convention if it provides for a derogation from them.
He still has not addressed the point about the Government’s
clear and unambiguous statement in their
consultation:
“As
with other administrative decisions, the DPP’s decision will be
judicially
reviewable.”
As well as
answering the question about which court will consider judicial review
cases brought on the grounds of dishonesty or bad faith, will the
Minister tell us how someone will be able to mount such a case if the
DPP’s certificate is to contain no indication of which
conditions are supposed to have informed its issue? How can one prove
dishonesty if there is no information and no case
stated?
Paul
Goggins:
The High Court is, of course, the court to
which reference could be made, albeit on the limited grounds of bad
faith and dishonesty. I do not deny for a minute that they are limited
grounds. They are necessary to provide some assurance for the most
extreme circumstances, but I set my face clearly against a judicial
process of challenge given that we have chosen an administrative route
to protect justice. I accept that some Committee members disagree with
that argument, but it is coherent and is consistent with all that has
gone before.
Mr.
Bone:
The Minister cannot have it both ways. Subsection
7(1) makes it clear there can be no challenge, irrespective of what it
says later. There can be no consideration and no challenge. The
Minister is right to say that an administrative route is what he
prefers, but he has to accept that it infringes the
convention.
7.15
pm
Paul
Goggins:
I do not accept that. What the European
convention on human rights guarantees, and what we are signed up to, is
a fair trial, and that will happen. Even if the decision to give a
certificate is one that the defendant wishes to challenge, and even if
he is not able to challenge in the way that some hon. Members would
like, he still gets a fair trial.
Sammy
Wilson:
My concern is not that the grounds have been
limited for challenging these decisions. I have made it quite clear
that I believe there is still opportunity for a fair trial. My concern
is whether, if the challenge is on the basis of honesty, that opens the
door for information regarding the background of the individual or the
associations of the individual and how that information has come to the
DPP to be revealed to those who challenge. We then have the
difficulties that we had before with national security and the
possibility of the identity of agents being
revealed.
Paul
Goggins:
I can reassure the hon. Gentleman that that would
not be the case because the grounds for the appeal relate to the
character and way of operating of the Director of Public Prosecutions
rather than the background of the defendant. I can therefore give him
the assurance that he seeks. In adopting the administrative route we
seek to protect information
sources. Those small number of cases where it is justified to make a
certificate can be very sensitive indeed and it is absolutely essential
to keep that out of the public domain and away from the defendant in
order to make sure that we actually have a fair
trial.
Mr.
Robertson:
I return to the opportunity to appeal against
the decision on the basis of dishonesty or bad faith. I am not
convinced that this would be available under the clause as it is
written. As my hon. Friend the Member for Wellingborough says, clause
7(1) expressly rules it out. Therefore, will the Minister try to
re-word it so that it makes it clear that in certain
circumstances—he can specify them if he wishes—it is
possible to appeal. I do not believe that the present wording of the
clause allows
that.
Paul
Goggins:
It is important that subsections (1) and (2) are
read together. They make it clear that we are not excluding judicial
review altogether. There are grounds to make the challenge. The grounds
are, however, limited. They are limited in a way that is consistent
with the Shuker judgment, which we are now seeking to put on a
statutory basis. The grounds are very limited indeed but they are
compliant with the ECHR. The Shuker judgment makes that absolutely
clear.
I will, of
course, reflect on the point the hon. Gentleman has made, but I
encourage him to read the whole of the clause to see that there are
limited grounds for appeal. They are limited grounds and necessarily
so.
Lembit
Öpik:
I do not want the Minister to turn this into
a dialogue with each individual so I will try not to intervene on him
again. I do, however, have to back up what the hon. Member for
Tewkesbury says: there can be no misinterpretation of clause 7(1). It
is utterly clear and unconditional. To suggest that subsection (2)
provides some latitude to challenge these proceedings would assume that
by saying “without dishonesty or bad faith” is somehow
more important than the unconditional statement in subsection
(1).
Subsection (3)
would indicate that the Government are aware that this does not really
comply with human rights legislation. I do not wish to embark on a
dialogue or contention with the Minister, but I would like to hear him
say that he will take this clause away and re-think it and perhaps come
back on Report with something that is compliant and does not need
subsection (3).
Paul
Goggins:
I made it clear at the start that I will look
carefully at all the contributions that have been made. I do not,
however, have any doubts in relation to clause
7(1).
Mr.
Robertson:
It is not very
clear.
Paul
Goggins:
If we can make it clearer we will do so. However,
undertaking to reconsider it does not mean that we are shifting our
ground; absolutely not. The proposal makes it clear that the court
cannot question the decision of the DPP to make a certificate having
considered both limbs of the statutory test. It is that decision, and
the grounds on which the DPP made it, that the court cannot challenge.
That is explicit; it is understood.
The decision can be challenged
only on the grounds of dishonesty and bad faith in relation to the
character and the conduct of the DPP, not his judgment in relation to
the statutory test. It is entirely right that no court can challenge
the decision. We are not having a full-blown judicial process to
consider an appeal against that decision. We make that clear; it is our
choice. I am open about that; we are taking the administrative route,
which subsection (1) makes absolutely
clear.
Mark
Durkan:
Again, I remind the Minister that when he talks
about taking the administrative route, as with other administrative
decisions the Government’s own paper said that the DPP’s
decision will be judicially reviewable. That is a very significant
exception.
The
Minister also referred to subsection (2), but the
words
“without dishonesty
or bad faith”
are in
parenthesis. The question is whether a purported decision
“was a nullity by reason of lack
of jurisdiction or an error of
law.”
The proposal is
narrower when one considers the full subsection.
Does the Minister accept that
what he is saying clearly now means that what the Secretary of State
said on Second Reading in response to an intervention from the hon.
Member for Cambridge (David Howarth) was completely wrong? The
Secretary of State said
that
“the DPP must put
the matter before a judge. If the judge took the view that the action
was unreasonable, he would obviously have an argument with the
DPP.”—[Official Report, 13 December 2006;
Vol. 454, c. 902.]
The
Secretary of State gave the House one version and the Minister is
giving this Committee a very different
version.
Paul
Goggins:
There are two distinct processes, one is the
issuing of the certificate, which is based on a decision made by the
DPP in the light of any information he has set against the statutory
test. The certificate is issued, there is arraignment and then there is
a trial by judge alone. It is up to that judge how he or she conducts
that trial. They are two separate processes and I am happy to have the
opportunity once again to explain that to my hon. Friend.
My hon. Friend referred to the
consultation, which was clear: there would be grounds for a challenge
to be made and we have provided for that, on very limited grounds, I
agree. He may not agree with our position, but there is the ability to
challenge on the grounds of bad faith or dishonesty. However,
subsections (1) and (2) make it explicit that there is no
provision to challenge the decision of the DPP in relation to the
judgment he has made on the facts that he has, set against the
statutory test. We are clear that that is coherent and absolutely
consistent with our stance in relation to the statutory test on
non-jury trials.
The hon. Member for
Montgomeryshire said that there was perhaps a limit to our discourse,
and we are getting close to it, but I am happy to give
way.
Mark
Durkan:
I ask the Minister to respond to my earlier point:
how could someone possibly challenge on the grounds of dishonesty or
bad faith a decision that says nothing, and gives no information, no
reason, and no suggestion of anything? How does one challenge that
decision on the grounds of dishonesty or bad
faith?
Paul
Goggins:
That will relate to the conduct of the DPP in the
decision he has made, not to the facts on which he has made the
judgment. I acknowledge that the grounds on which the challenge can be
made are very
limited.
Mark
Durkan:
It is based on
intelligence.
Paul
Goggins:
My hon. Friend is making it clear that he
continues to disagree with me. I respect his position on this and on
many other issues, I just happen to disagree with him. The levels of
agreement and disagreement in the Committee on this issue are
evident.
May I make
one final point, which has not been made so far? It is open to the
defendant, as is the case under the Diplock system, to make
representations to the prosecution about whether the statutory test
applies. It is possible to make representations to the DPP. The
defendant does not have to be a completely passive person in this
process. Again, I reiterate, we believe that an administrative route
and a statutory test with limited grounds of appeal is the best way in
the limited number of circumstances where trial by judge alone is still
needed in Northern Ireland.
Question put, That the
clause stand part of the
Bill.
The
Committee divided: Ayes 13, Noes
6.
Division
No.
7
]
Foster,
Mr. Michael
(Worcester)
Question
accordingly agreed to.
Clause 7 ordered to stand
part of the
Bill.
Clause 8
ordered to stand part of the
Bill.
Schedule
1 agreed
to.
Further
consideration adjourned.—[Mr. Michael
Foster.]
Adjourned
accordingly at twenty-eight minutes past Seven o’clock till
Thursday 18 January at Nine
o’clock.
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