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Mr. McNamara: I refer to the judiciary apart from the justice system.
Mr. Browne: I think that my hon. Friend will find that those in the justiciary in Northern Ireland are more than adequately covered because of the oath that they take. I repudiate his suggestion that the criminal justice system—in particular, the judiciary and the Director of Public Prosecutions—act in a discriminatory fashion in prosecuting those involved in crime in Northern Ireland.
Indeed, I want to put on record, not in any rosy fashion, my and my fellow Ministers' appreciation of the significant bravery of prosecutors and other lawyers, including judges, in Northern Ireland in the face of significant danger for some 30 years. They have ensured that justice has been done and earned an enviable reputation for Northern Ireland in the face of significant dangers and problems for justice.
That is not to say that there have not been miscarriages of justice. Indeed, there have been in Scotland and England—and I suppose that there have been in Wales, although I cannot think of one off the top of my head now. There probably have been miscarriages of justice throughout Europe and the civilised world. However, the fact is that, in the United Kingdom, if judges act or are thought to have acted in a discriminatory fashion in the way that my hon. Friend suggests—although non- specifically—there is a review process that allows such issues to be raised on appeal. The same cannot be said for all parts of the world.
It may have taken too long for some miscarriages of justice to be corrected, but increasingly over the years the House and Parliament have sought to address those issues as they have become apparent. I am not saying that there have been no miscarriages of justice; I am saying that there has not been the discrimination in relation to prosecutions that my hon. Friend suggests has taken place. If he is suggesting that such discrimination is systemic in the judicial system of Northern Ireland, it behoves him not to refer in an airy-fairy way to some studies, but to suggest specifically where the evidence can be found.
Mr. Blunt: I simply want to thank the Minister for going to the trouble of making such a robust statement, with which I fully associate Her Majesty's loyal Opposition.
Mr. Browne: Finally, on this point—for the sake of completeness—the Northern Ireland court service is covered by section 75, which places an equality duty on all Government agencies. Clearly, it would not be appropriate for such provisions to cover the judiciary, as, of course, those issues are covered by the judicial oath.
Lords amendment No. 11 makes the office of the Director of Public Prosecutions subject to those duties. We have identified certain limited safeguards that will give the protections necessary to ensure the continuing independence of the DPP. As is clear from the amendment, we have exempted the prosecution process from this duty, for the reasons that I articulated on several occasions in Committee and perhaps even on Report. The exemption can be found at subsections (3) and (5) of the new clause introduced by the amendment. That means that prosecution decisions and policies relating to such decisions are exempted. I explained in Committee the sorts of difficulties that would arise if we attempted blanket coverage of the DPP's office, but we have assured
ourselves that, with those safeguards in place, we can meet the duties that we have accepted. That explanation refers to some of the other remarks made by my hon. Friend the Minister of State.The obligations under sections 75 and 76 will apply to the DPP, for example, in relation to the recruitment of public prosecutors, despite the exception for which we have provided in Lords amendment No. 11. Of course, they will continue to apply in the same manner once the new public prosecution service is established.
The purpose of amendment (a), tabled by the hon. Member for North Down (Lady Hermon), is, as I understand it, to ensure that the DPP's entire organisation—the entire public prosecution service—is covered by these duties and not just the head of the organisation. To aid the House's understanding of the way in which the Act is structured, I should point out that sections 75 and 76 do not bite on individuals but on functions. That is why the functions are transferred, not the service. I hope that hon. Members will be reassured when I say that all of the functions of the prosecution service are, in fact, vested in the DPP. Without going into too much detail, that is done particularly in clauses 31 to 33 of the Bill, in which the functions are transferred, and conferred on the director.
We agree with hon. Members that the whole organisation should meet those duties. The duties are imposed on the functions, and the functions are conferred on the DPP, although they are carried out in a delegated fashion, in some cases by others. By the process of making the DPP subject to the provisions, the functions of the DPP are bitten on. I hope that hon. Members are satisfied that the Bill already provides for that.
The equality obligations under sections 75 and 76 will also apply to the criminal justice inspectorate and the Law Commission, which are designated by Lords amendment No. 30 in this group. We examine every new body created by the Government to see whether it should be designated under the Northern Ireland Act 1998 for equality purposes. I see no reason why any exception should be made in respect of those bodies. We intend them to operate in an open and transparent fashion.
Lords amendment: No. 12, in page 38, line 3, at end insert
";but the appropriate authority may, with the consent of the Secretary of State, at any time discharge a child who is being so kept."
Mr. Browne: I beg to move, That this House agrees with the Lords in the said amendment.
Madam Deputy Speaker: With this we may discuss Lords amendments Nos. 13 to 17.
6.45 pm
Mr. Browne: All the amendments in this group relate to part 4 of the Bill—the provisions dealing with youth justice—and all effect minor refinements to those provisions.
Lords amendments Nos. 12 to 14 amend the provisions dealing with the new form of disposal for children under 14—the custody care order. The relevant provisions are found in clause 55. Within clause 55, new article 44B provides for the legal regime under which a child subject to a custody care order will be detained. It does that by applying certain provisions of the Children (Northern Ireland) Order 1995 to such children and by excluding the application of all other provisions. Children held under a custody care order will be held in accommodation provided within the care system. We therefore think it right to draw on the provisions contained in the Children (Northern Ireland) Order 1995 in shaping the legal regime under which children should be held.
It was brought to our attention, however, that we had inadvertently excluded the application of certain provisions of the 1995 order that apply to all children, whether looked after by an authority or not. We did that by referring exclusively to certain provisions, and, because reference was not made to other provisions, those would be deemed not to apply. It is a principle of statutory interpretation that if one expresses some provisions and excludes others, one is deemed not to have wanted the others to apply to that situation.
On any view, those provisions should not have been excluded. That is addressed by Lords amendment No. 13, which has the effect that those provisions of the 1995 order which apply to children being looked after by an authority, and which we consider should be applied to children who will be held under a custody care order, are applied. However, the key difference between Lords amendment No. 13 and the provision in the Bill is that the amendment is predicated on the basis that all the other general provisions of the 1995 order will apply unless specifically disapplied. As a result, important wider protections, such as those contained in article 3 of the order—which provides that when a court determines any question with regard to the upbringing of a child or the administration of his property, the child's welfare will be the paramount consideration—continue to apply.
I should also draw the attention of hon. Members to two specific points. First, the amended article now applies the provisions of article 45 of the 1995 order. That will mean that the case of a child being held under a custody care order must be reviewed by the authority holding the child, and that the authority must have a procedure for considering representations by or about the child. That will help to strengthen the process of managing a child's period in secure accommodation and thus deserves to be included in the clause.
Secondly, hon. Members may notice that the recast article—new article 44B—does not contain provision relating to the discharge, at any time, of a child in secure accommodation by the appropriate authority, with the consent of the Secretary of State. That provision is currently in new article 44B(4). Hon. Members will be reassured that there has been no change of substance here, merely one of drafting. By virtue of Lords amendments Nos. 12 and 14, the provision has simply been moved to a more logical position, in new article 44A(6) and new article 44F(3)(b), where it is associated with the definition of periods to be spent in secure accommodation. Again, the meaning and purpose of the provision has not changed.
Let me now deal with the remaining amendments in the group, which address youth conferences. Again, the amendments do not change the substance of what the House has agreed to.
New article 3B(1) provides that the Secretary of State may make rules governing the procedure of youth conferences. It is expected that the rules will be used to set time limits for the various stages of the conference process, and for the performance of the various functions of the conference co-ordinator. Because of the way in which they are drafted, however, they cannot be used to make provision about youth conference plans—in particular, to set a time limit within which the person monitoring compliance with a plan arising from a diversionary conference must submit his final report to the director.
As the director may, on the basis of the report on compliance, still instigate proceedings against the child if he believes that the plan has not been complied with to a significant extent, we think it right to set a time limit for this stage of the process. Without it, the child may have the threat of prosecution hanging over him for an indefinite period. Lords amendment No. 15 therefore empowers the Secretary of State to make rules establishing a time limit for submission of the report to the director.
As we intend to specify a time limit, it is not appropriate for the Bill to require the making of the report
- "as soon as is reasonably practicable",
New article 33C(1) provides that a child may be referred to a conference only if he lives in an area where the new system is in place. That will allow us to pilot the new arrangements and also, if necessary, to stagger the subsequent roll-out of the conferencing system.
The purpose of Lords amendment No. 17 is simply to clarify that this applies equally to both mandatory referrals to a conference, provided for in new article 33A(1), and discretionary referrals, provided for in new articles 33A(3) and 33A(4).
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