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Justice and Security (Northern Ireland) Bill

moved Amendment No. 1: 1: Clause 7, page 5, line 33, at end insert ““(including, in particular, exceptional circumstances relating to lack of jurisdiction or error of law)”” The noble and learned Lord said: My Lords, we return to Clause 7, as I indicated we would with the leave of the House, and I rise to move Amendment No. 1, to which the noble Lord, Lord Lester of Herne Hill, has added his name. I express my gratitude to noble Lords for their constructive discussions on the clause both inside and outside the House. At earlier stages and in discussions outside, I explained the various reasons that prompted us to include Clause 7 and perhaps I may remind the House of them. We were conscious of the need to prevent disclosure of sensitive information that could put lives at risk. Three of the four conditions in the test for whether there will be a trial without a jury relate to paramilitary groups. That means that the case for non-jury trial will often involve sensitive intelligence material that raises national security issues. If that material were exposed in open court, it would pose serious risks: such information could come out into the public domain; sources could become compromised, putting lives at risk; and in some cases it may not even be possible to admit that intelligence on a particular thing exists because, where there is a small circle of knowledge, it may be possible to identify a particular individual as the person who has passed that intelligence on. Techniques used for gathering intelligence in national security and serious crime cases could become compromised and so, too, could ongoing police investigations. Those are the reasons why it would be difficult, dangerous and undesirable to disclose such information openly. We therefore want to avoid sharing that material in open court in any challenge and so avoid opportunistic attempts to frustrate the judicial process by using judicial review as an attempt to force disclosure of material in the hope—as happens in some cases—that by doing so the prosecution will be forced to stop a case or deal with it in a way that is not in the best interests of justice because it cannot afford to respond to a requirement to disclose the material. However, it has never been the Government’s intention to oust judicial review of the director’s decision by the courts in appropriate cases. We have taken the view, as did the Court of Appeal in the case of Shuker, that it would likely be exceptional to do so. I am encouraged to think that there is now a substantial measure of agreement with that point of view within the House; indeed, all main opposition parties agree with it. Paragraph 1.37 of the fifth report of the Joint Committee on Human Rights states: "““A prohibition on judicial review except on grounds of dishonesty, bad faith or ‘other exceptional circumstances’ does not make sufficiently clear in our view that judicial review for lack of jurisdiction or error law will still be available””." The amendment seeks to offer some comfort to noble Lords by confirming that challenge on these grounds will be possible, provided that it meets the threshold of exceptional circumstances. It will obviously be for the courts to decide whether that threshold is met in any case. I want to make it clear that this does not mean that lack of jurisdiction or error of law will be exceptional circumstances in every case; that would be a matter for the courts to decide based on the arguments put to them. However, in the hope and belief that this amendment will find favour across the House, I beg to move.