“Those statutory powers exist, but never have been used..”

The House of Lords have been debating the Justice and Security (Northern Ireland) Bill and making some amendments too. In particular, the government have introduced a ‘sunset’ clause which would see the new provisions for non-jury trials dropped after two years unless the Secretary of State at the time extends them before that date. There was also some discussion which touched on the restrictions on investigations by the Human Rights Commission and whether those restrictions should be extended to the Policing Ombudsman.From the debate in the House of Lords on Monday 23rd April – also available at TheyWorkForYou

Lord Rooker moved Amendment No. 4:

After Clause 8, insert the following new Clause—

“Duration of non-jury trial provisions

(1) Sections 1 to 8 (and Schedule 1) (“the non-jury trial provisions”) shall expire at the end of the period of two years beginning with the day on which section 1 comes into force (“the effective period”).

(2) But the Secretary of State may by order extend, or (on one or more occasions) further extend, the effective period.

(3) An order under subsection (2)—

(a) must be made before the time when the effective period would end but for the making of the order, and(b) shall have the effect of extending, or further extending, that period for the period of two years beginning with that time.
(4) The expiry of the non-jury trial provisions shall not affect their application to a trial on indictment in relation to which—

(a) a certificate under section 1 has been issued, and(b) the indictment has been presented,before their expiry.
(5) The expiry of section 4 shall not affect the committal of a person for trial in accordance with subsection (3) of that section, or by virtue of subsection (4) or (6) of that section, to the Crown Court sitting in Belfast or elsewhere in a case where the indictment has not been presented before its expiry.

(6) The Secretary of State may by order make any amendments of enactments (including provisions of Northern Ireland legislation) that appear to him to be necessary or expedient in consequence of the expiry of the non-jury trial provisions.

(7) An order under this section—

(a) shall be made by statutory instrument, and(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.”

The noble Lord said: My Lords, I wish to speak also to Amendments Nos. 13, 14 and 15.

This group of amendments provides that the system of non-jury trial in the Bill will expire after two years unless the Secretary of State makes an affirmative resolution order to extend it for a subsequent two-year period. I hesitate to use the shorthand term for what we are doing here but it is more rolling renewal than sunset because each two years is a separate period.

The system of non-jury trial contained in the Bill has always been intended to address the particular circumstances of Northern Ireland, in particular the paramilitary and community-based pressures that jurors in Northern Ireland face. The Government have long made clear their commitment to return to jury trial in all cases in Northern Ireland as soon as the security situation permits. We believe that these amendments will help underline the exceptional nature of the system. The change will also give Parliament the opportunity regularly to debate these important issues. As I said, the system will lapse after two years unless an affirmative order is made. In order to do that a Minister must stand at the Dispatch Box and at least give some semblance of a review and assessment of what has happened in the previous two years.

For the avoidance of doubt and to assist in our deliberations I should mention the relevance of Amendment No. 13, which provides that parts of the new clause extend to England and Wales as well as Northern Ireland. It is necessary because some of the other legislation containing references to the system that will need to be repealed on expiry will be legislation that extends to England and Wales; for example, the non-jury trial system in the Criminal Justice Act 2003. I add that for clarification of this little package of amendments. I beg to move.

On Question, the amendment was agreed.

And on the Human Rights Commission, or more particularly, the Policing Ombudsman

Lord Rooker: My Lords, I am most grateful for the way in which the issues have been raised. As the noble Lord, Lord Trimble, said, they were raised in Committee in substantial detail in quite a wide-ranging debate. The amendment attempts to restrict the activities of the Police Ombudsman for Northern Ireland in the same way in which the Human Rights Commission is dealt with in the Bill.

We have listened on more than one occasion to the noble Lord’s concerns—they were rehearsed in Committee and we take them seriously. The issues raised were, as promised, drawn to the attention of the Secretary of State, his advisers and other Ministers. I know that other discussions have taken place on them.

The ombudsman has a clear statutory duty in relation to oversight of the police. That is what she is there for and she has no remit whatever to investigate the activities of the intelligence agencies, nor doesshe remotely have any connection with oversight of the activities of the security services. It is simple: the ombudsman’s role is, and will remain, properly focused on the police and only the police.

The ombudsman may have access to sensitive information by virtue of statutory powers to oversee the activities of police officers, but that is essential to the discharge of the ombudsman’s duties and role in ensuring an efficient and effective police complaints system that commands public confidence. It must maintain public confidence; any reports or comments that knock public confidence are in no one’s interests, least of all those of the ombudsman.

Where the ombudsman has reason, consistent with those powers, to investigate the activities of a police officer, any access by the ombudsman to sensitive information held by the Security Service in the course of that investigation will be permitted in accordance with arrangements agreed between the service and the ombudsman’s office.

The noble Lord has raised serious concerns, and any damage to national security or risk to lives is a matter of grave concern. I can assure him that, should the Secretary of State feel it necessary or appropriate to do so, he will not hesitate to deploy the statutory provisions allowing him to issue guidance to the ombudsman with respect to the disclosure of matters that may be prejudicial to the public interest. Those statutory powers exist, but never have been used, as I said in Committee. [added emphasis]

I and the Secretary of State have read the reports and information that the noble Lord, Lord Maginnis, also raised in Committee, and of which I was given copies afterwards. The Secretary of State and the Security Minister have met police officers and representatives of the Northern Ireland Retired Police Officers’ Association. We are listening and will want to consider those issues carefully, particularly those that relate to the disclosure of sensitive information that puts lives at risk. If necessary, the Secretary of State can issue guidance on such matters to the ombudsman.

Before withdrawing the amendment Lord Trimble replied to Lord Rooker

Lord Trimble: My Lords, I appreciate that the Minister has said that the matter has been considered carefully, and I hope that regard is given to the point made by the noble and learned Lord, Lord Mayhew. There may be a duty to have regard to guidance but that is not the same as saying that it must be followed, so the safeguard that the Minister is relying on is

weak in that respect. It is also weak in respect of the point referred to by the noble Baroness, Lady Harris. When does the Secretary of State find out what is in a report, and will he find out before the press hears it? The report that gave rise to the controversy was circulated among chosen journalists weeks before other people came to hear of it and probably weeks before the Secretary of State came to hear of it, so the safeguard is not particularly effective.

The Minister’s basic point—that the police ombudsman is concerned with inquiries into the police and not into the intelligence services—is a distinction that cannot be drawn in practice, as was revealed by the report that we went through in a little detail in Grand Committee. In dealing with the terrorist situation in Northern Ireland, there was very close co-operation between the police and the intelligence authorities, and I am sure that equally close co-operation is going on today in the United Kingdom in dealing with the current terrorist threat. No clear distinction can be drawn between inquiries into the police and inquiries into intelligence matters. In any event, the same techniques are used by the police in dealing with suspected terrorists as are used by the intelligence authorities.

As the report that we discussed in Grand Committee shows, there is a serious risk of national security matters relating to the intelligence authorities being published. Indeed, I think I am right in saying that the ombudsman has launched an inquiry into the handling of agents within the IRA. A large number of those agents were run not by the police but by other agencies. In announcing the inquiry, reference was made to the code-names of certain agents. I am speaking off the cuff and without checking, but I am sure that at least one of the names related to an informant who was being run not by the police but by another agency. The distinction that the Minister relies on is not being followed in practice.

Whatever may have been thought appropriate at the time, the legislation for the ombudsman has been put in place. The Government now consider that, with regard to inquiries by the Human Rights Commission, there should be this procedurefor protecting information relating to national security. The amendment gives the Government the opportunity to be consistent and to apply their procedures for protecting national security in context A to context B, which are exactly analogous.

If the Government or the Northern Ireland Office do not want to take this opportunity of having the same protection for national security in that other field, and if in the coming days, weeks, months, or whenever, there are more reports that compromise national security as the existing one does, the Government and the Northern Ireland Office will be left with no excuse for their dereliction.

Lord Rooker: My Lords, before the noble Lord sits down, I want to add something. The point he makes on the report is well made. I said that we have met the Northern Ireland Retired Police Officers’ Association. We are listening and will want to consider the issues raised very carefully.

I shall also elaborate on the answer that I gave to the noble and learned Lord, Lord Mayhew. Section 65 of the Police (Northern Ireland) Act 1998 compels the ombudsman to have regard to the Secretary of State’s guidance. The ombudsman is also required to act within the requirements of the European Commission on Human Rights and the Human Rights Act, and to ensure that no lives are put at risk. Guidance could be used to amplify how the European Commission on Human Rights could be applied, which would cover some of the points raised in the report to which we have all been referring but have not named.

Lord Trimble: My Lords, I thank the Minister for his intervention, which provides more grist to my mill. He repeated that the ombudsman is compelled to have regard, but just have regard, but we shall not argue too much about that.

On the second point on human rights, the report to which we are referring virtually names agents, or uses a letter system. The situation is described in such detail that the press in Northern Ireland had no hesitation in putting names in its report, and it got the right name. We all know that. The Human Rights Act was not observed in that respect.

Again, that shows the weakness of the existing safeguard. There is an alternative safeguard that the Government consider elsewhere—I shall not repeat the point I made. The Government have the opportunity to cover this gap, but if they do not want to take it, they will have to bear the consequences. As it is clearly the desire of the House to go through this matter as rapidly as we can, I shall not press the matter further, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

There was also some discussion on an amendment, later withdrawn, on Community Restorative Justice schemes

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