Justice (Northern Ireland) Bill

[back to previous text]

Mr. Browne: I understand and take the point that the hon. Lady makes, and I see the force of her argument. Whatever qualifications apply in determining the appropriate time to devolve responsibility for policing and justice to the politicians

Column Number: 168

of Northern Ireland—to the Assembly and the Executive—the faithful interpretation and implementation of the review's recommendations requires that the provisions before us be introduced after devolution. Clause 40, to which the amendments relate, replicates the current relationship between the Attorney-General and the prosecution service, as set out in the Prosecution of Offences (Northern Ireland) Order 1972.

Mr. Mallon: That is part of the difficulty, because there seems to be an imbalance. Before devolution, the DPP will, somehow or another, undergo a remarkable metamorphosis, which will require superintendence and direction by the Attorney-General. The person will continue as DPP after devolution, but the same provisions will not apply. I seek the Minister's advice. Does that apply to the Prosecution of Offences Act 1985, as it applies to England and Wales? That Act states:

    ''The Director shall discharge his functions under this or any other enactment under the superintendence of the Attorney-General.''

For England and Wales, the word used is ''superintendence'' while, for Northern Ireland before devolution, the Bill seems to refer to the ''superintendence'' and ''direction'' of the Attorney-General. If I am wrong, may we have clarification? That is my understanding—

The Chairman: Order. The intervention has been very long. If the hon. Gentleman is wrong, the Minister will no doubt tell him.

Mr. Browne: I am delighted to tell my hon. Friend that he is right. We shall discuss in more detail the distinction to which he refers under other amendments and clauses. For the purposes of this clause, I can only repeat that clause 40 endeavours to reproduce the status quo, pre-devolution, in statutory form. I recognise that there are issues in that respect, which the hon. Member for North Down and my hon. Friend have raised. Those issues no doubt exercised the review group, which clearly recommends that the changes be implemented post-devolution.

The hon. Lady rightly says that there is a problem, in that none of us can give a fixed date for devolution. However, all parties in Northern Ireland have approved, in conversation with me, the formula used in the implementation plan as regards the point at which the Government are prepared to devolve responsibility for justice and policing. I do not claim that the hon. Lady has done so, but members of all parties in Northern Ireland have approved that formula. It depends on a degree of stability for devolution, which will enable the people of Northern Ireland to have confidence that politicians there will be able to take on the responsibility for policing and justice. I have no criticism of that formula; indeed, I have been encouraged by the fact that people have given me specific definitions as to when it should apply.

The hon. Lady asked a specific question about judicial appointments, which was a point that arose earlier in our proceedings. From good manners, I seek your indulgence, Mr. Conway, in answering her

Column Number: 169

question, although it may not be in order in relation to the amendment. After devolution, only one way of appointing High Court judges will be possible. The Judicial Appointments Commission will make a recommendation to the First Minister and Deputy First Minister, who will pass it on to Her Majesty for appointment. The First Minister and Deputy First Minister may, however, recommend only those candidates recommended by the Judicial Appointments Commission. I refer the hon. Lady to the provisions in clause 5(2) for clarification in that regard.

Mr. Garnier: I agree with the Minister's last remark. It might be instructive if those who tabled and supported the group of amendments took time to study the relationship between the Attorney-General and the Director of Public Prosecutions in this country, better to understand such words as ''supervision'' and ''direction.''

A constitutional device is used to make the prosecuting authorities accountable to Parliament. The fact that the Attorney-General is a Member of Parliament from either the Lords or the Commons—currently he is from the Lords, although I would prefer him to be from the Commons—means that the prosecuting authorities are accountable to the elected representatives of the people. The relationship between the Attorney-General and the director in this country is not such that the Attorney-General telephones the director and tells him what to do, nor does the Attorney-General involve himself in the day-to-day running of the Crown Prosecution Service. The relationship is mature and sensible, but it exists to provide a constitutional release valve, so that the hon. Member for Newry and Armagh and I can question the Solicitor-General—for five or 10 minutes once a month, or whatever it is—in the House of Commons. I have all sorts of complaints about how Parliament treats the office of Law Officer. This Government in particular have downgraded its importance or allowed others to misunderstand the constitutional role of the Law Officers, but that is another issue. However, I say to those who support the amendment that a little study of the situation here should relieve some of their fears about the proposed set-up for the Director of Public Prosecutions and the Attorney-General in Northern Ireland. I have no doubt that their roles will be conducted properly and within the parameters that pertain in England and Wales, which I have outlined.

11.30 am

Lady Hermon: Part of the difficulty and the reason for this misunderstanding is that, pre-devolution, the words,

    ''The Director must exercise his functions under the superintendence . . . and is subject to any directions''

apply, but suddenly, post-devolution, those words will not appear. That has given rise to much concern and ill ease.

Mr. Garnier: I can see what it says in clause 40, but will the h Lady direct me to the relevant clause, which reveals the absence of those words post-devolution?

Column Number: 170

Lady Hermon: The hon. and learned Member for Harborough should turn to clause 43.

Mr. Garnier: I am not sure that I share the h Lady's worries. If one supports the process of devolution, one is looking for a constitutional chain between the director, who carries out the day-to-day work of the relevant prosecuting authorities in Northern Ireland, and the Attorney-General for Northern Ireland, who is answerable to the Assembly. The DPP is not answerable to the Assembly, so Members of the Assembly will not be able to cross-examine him about the policies of the prosecuting authorities, although they will be able to question the Attorney-General for Northern Ireland—and I hope that they will be given more than five minutes every month in which to do so.

Lady Hermon: It is precisely that connection between the director and the Attorney-General that I should have liked to see sustained post-devolution. The fact is that the words

    ''the superintendence of the Attorney General for Northern Ireland''

    ''is subject to any directions given by him''

are not repeated in the legislation that will come into effect post-devolution. I want to maintain that link and am disappointed that those words will not apply post-devolution.

Mr. Garnier: I do not think that I can help the h Lady. Perhaps her arguments are reinforced by clause 42, which states:

    ''The functions of the Director shall be exercised by him independently of any other person.''

I do not wish to argue with the h Lady. I simply want to reassure those who have such concerns, irrespective of whether the post-devolution dispensation is controlled by particular words in the statute, that the relationship between an Attorney-General and the DPP, either here or in Northern Ireland, will be open to public scrutiny. The person whom the Assembly, in Northern Ireland, or the House of Commons, in the United Kingdom, can cross-question is the Attorney-General of each jurisdiction. I am beginning to repeat myself, which is not necessarily helpful given the somewhat restricted timetable under which the Bill is being managed. I leave the problem for the hon. Lady, and no doubt the Minister will write to her or speak about it, but I think that I have said quite enough.

Mr. Blunt: My hon. and learned Friend has made clear the strengths of the British constitution and the way in which it has developed, as against the efforts of the review and the Government to introduce a written framework in the Bill to replace it. The specific issue is the accountability of the DPP, and this is an appropriate moment to discuss it. Our discussion will lead in to the clause stand part debate, which will deal with the tenure and term of office of the DPP.

Post-devolution, it will be possible to remove the DPP only by a tribunal that makes a decision about misbehaviour or inability to perform the functions of the office. Those are the grounds for dismissal by the Attorney-General. The Attorney-General is

Column Number: 171

accountable in this Parliament and the DPP operates under his superintendence. Therefore, if the prosecutorial policy of the DPP gives rise to great public concern, that can be shown directly to the Attorney-General or the Solicitor-General in our Houses of Parliament by elected representatives or Members of the other place. By virtue of being a Member of this Parliament, the Attorney-General is held directly accountable here for that policy. He has some ability to put it right, because the DPP operates under his superintendence.

There are nuances in the use of language as to what superintendence and directions mean, and as to what is exactly appropriate for the Attorney-General to tell the DPP. That is a necessary grey area in which boundaries are not explicit. The Bill attempts to set up a situation in which boundaries are specified, given that this legislation lays down the independence of the DPP in absolute terms post-devolution.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2002
Prepared 5 February 2002