Justice (Northern Ireland) Bill

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Lady Hermon (North Down): I am delighted to begin the week in Committee in agreement with the hon. Member for Newry and Armagh. I agree with the amendment, but for very different reasons.

The Chairman: Order. It is not Lady Hermon's fault, but I think there is some confusion in the Committee about what is being debated and I should perhaps explain. I have had some discussion with the Clerk about the contents of the amendment paper, and I think that it might be helpful to discuss in this group amendment No. 205, in clause 40, page 23, line 18, leave out subsection (2), which was also tabled by Mr. Mallon—provided the hon. Gentleman is happy to proceed in that way. The amendments are related and we have already gone off on that tack, to some extent. That would pull together what has been said and enable the Committee to make sense of the matter. I hope that the hon. Lady will forgive me, but I think what I have suggested might help us to go in the same direction.

Lady Hermon: Thank you, Mr. Conway. Of course I forgive you.

The hon. Member for Newry and Armagh has identified yet another inconsistency in the Bill. He wants clause 40(3) to be deleted completely. That subsection states:

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    ''The Attorney General for Northern Ireland may remove the Director or Deputy Director from office on the ground of misbehaviour or inability to perform the functions of the office.''

That is the first method for removing the director or deputy director. However, clause 43 sets outs an alternative method by which the Attorney-General for Northern Ireland could remove the director or deputy director if a tribunal had been convened for the purpose. I am prepared to be corrected, but there appears to be no link between clause 40(3) and clause 43.

Mr. Blunt: If I may help the hon. Lady, I understand that clause 40 applies only as long as justice is not devolved, so that the Attorney-General for Northern Ireland is the Attorney-General for England and Wales. Clause 40(1) sets that out. The crux of the debate is that the Attorney-General has different responsibilities, or powers, before devolution of the administration of justice and after.

Lady Hermon: I appreciate that intervention; it was helpful and has clarified the point. Will the Minister clarify the inconsistency that arose earlier in relation to High Court appointments? I raised the matter in Committee last Thursday and he undertook to look into it. This is the second inconsistency regarding High Court judges. The First and Deputy First Ministers, acting jointly, can appoint High Court judges, or, under the list of judicial officers, may do so on the recommendation of the Judicial Appointments Commission. Those are inconsistent methods of appointing High Court judges. Will the Minister deal with that concern? With the clarification provided by the hon. Member for Reigate, I wait to hear how the Minister addresses the amendment, but I reserve the right to return the matter.

Mr. Browne: To understand the correlation between clauses 40, 41, 42 and 43, which have to be taken together, one has to make the distinction pointed out by the hon. Member for Reigate.

The Chairman: Order. So that the Minister does not go down the wrong alleyway, we shall come to clauses 40, 41 and 42 separately and in due order. The Committee may want to discuss them on clause stand part, as no amendments have been tabled to them. While the Minister may refer to the amendments as they refer to different clauses, the Committee cannot yet discuss the merits of clauses 40, 41 and 42.

Mr. Browne: I am obliged for your direction, Mr. Conway. I shall endeavour to follow it. Perhaps you will allow me some latitude while I try to set the statutory scene in order to explain some of the apparent inconsistencies that have been highlighted. I am also grateful for your direction that we should consider amendment No. 205, which seeks to amend clause 40, as does amendment No. 206. I shall try not to generate a clause stand part debate. However, it is important for me to respond to some of the contributions that have been made.

We must understand the distinction that the hon. Member for Reigate pointed out to the hon. Member for North Down (Lady Hermon), namely that clause

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40 is intended to apply to circumstances pre-devolution and clauses 41 and so on are intended to apply post-devolution. There is no inconsistency in the sense that there are no competing methods of discipline or removal. There are two distinct methods; one intended to apply pre-devolution and the other post-devolution. Both are intended to respond directly to the recommendations of the review. I hope that that clears up the apparent cause for concern.

Mr. Blunt: In the Minister's remarks about the necessary inconsistencies between the positions pre-devolution and post-devolution, will he address the issue of the relationship of the Director of Public Prosecutions and the Attorney-General? In pre-devolution mode, the Attorney-General can direct the DPP, whereas presumably he will not be in a position to do so post-devolution, yet he will still be accountable to the Legislative Assembly. Will he specifically focus not on the misbehaviour of the director, or on his inability to carry out his functions, but on him pursuing a prosecution policy towards particularly classes of criminal? Am I right that the Attorney-General will not be able to give him directions under the devolved system, but that he can under the present system? Might that not be a problem for the devolved administration of justice?

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Mr. Browne: I thank the hon. Gentleman for that helpful intervention—if it proves to be so. I shall endeavour to deal with the amendments as I had planned. If, in doing so, I give hon. Members the answers that they want, we shall not need to discuss the hypothesis posed by the hon. Member for Reigate. The danger of that, Mr. Conway, is that it will lead me into the very area that I have been cautioned not to enter, which is a general discussion about the clauses.

Amendments Nos. 206 and 205 are related. My hon. Friend the Member for Newry and Armagh paid less attention to amendment No. 206 than to amendment No. 207, and I understand why. The latter amendment seeks to do away with the Attorney-General's power to remove the Director of Public Prosecution or his deputy from office on the grounds of misbehaviour or inability to perform the functions of the office.

It is important to understand that clause 40(3) would apply only before devolution. Its removal would cause a lacuna. Without it, the Attorney-General would have no way, pre-devolution, of removing the DPP if he was misbehaving or was unable to perform the functions of his office. It may not be my hon. Friend's intention to leave the director independent to the extent that he could not be removed from office whatever his actions, his state of mind or his physical condition. It does not take much hypothesis to imagine circumstances in which that could have serious consequences for the administration of justice in Northern Ireland. The provision that my hon. Friend seeks to remove is necessary, but it applies only prior to devolution.

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Lady Hermon: I appreciate the Minister's explanation of the pre-devolution position. Post-devolution, we shall have a tribunal to consider the removal of the director or deputy director. The composition of the tribunal is clearly set out in clause 43(5). Why cannot we have a tribunal pre-devolution? That may meet the concerns of the hon. Member for Newry and Armagh.

Mr. Browne: The hon. Lady causes me to look to the recommendations of the review. The principle purpose of the Bill is to implement as safely as possible, but subject to translating the recommendations into workable provisions, the review's recommendations on the system of public prosecution. Those recommendations were substantially accepted by the people of Northern Ireland and by the political parties there. Significant changes include removing the power of direction, to which the hon. Member for Reigate referred, and the creation of a tribunal for discipline purposes and for removal from office. The recommendations will come into effect post-devolution. Pre-devolution, we have sought to give statutory expression in the Bill to the status quo. No tribunal currently exists, but it is intended that one will exist post-devolution, which is the reason for the distinction.

My hon. Friend's amendment would remove the relationship of superintendence and direction between the Attorney-General and the DPP, but the clause that provides for that relationship is intended to apply only before devolution. On devolution, the relationships set out in clauses 42 and 43 will come into force, and they will be different and reflect the review's recommendations. I should tell the hon. Lady and my hon. Friend that the review group saw direction ending only in the context of devolution. As with other aspects of the relationship between the Attorney-General and the DPP, we have reproduced the current position, which will apply before devolution.

Lady Hermon: The Minister has kindly drawn our attention to the fact that much will depend on devolution. That brought to mind the foreword by the Secretary of State for Northern Ireland to the criminal justice review implementation plan. As one would expect, the wording is very careful. The Secretary of State says that the Government intend to devolve justice and policing functions, but adds:

    ''A final decision to devolve these functions can only be taken at the time taking account of security and other relevant considerations.''

I do not want to appear unduly pessimistic, but I should record my disappointment. If we are to wait and wait for devolution, there should be tribunals to remove the DPP or the deputy DPP. That would resolve the difficulties that the hon. Member for Newry and Armagh has with the proposed pre-devolution position.

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