Justice (Northern Ireland) Bill [Lords]

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Mr. Spellar: We think that the provision that we are reinstating more closely reflects the recommendations of the criminal justice review, and does not impinge on the independence of the judiciary. We believe that there is a strong judicial input, and that therefore the clause stands on its own merits. We constantly receive advice from all sorts of quarters on different measures, and consider whether there is merit in those views. We believe that the proposed process is more substantial.

Mr. Trimble: The Minister says that he constantly receives advice from all sorts of quarters. Did he receive advice on that matter? Why is he being so coy?

Mr. Spellar: No, I have not had advice on that matter, but I am saying that the clause stands on its own merits.

Mr. Grieve: I hope that the Minister will not take it personally, but that is one of the most unconvincing explanations and performances that I have heard in Committee for a long time. The clause is important, and was controversial during its passage through the House. He now seeks to change the mechanism for removal under the 2002 Act, and we are left completely in the dark as to why it has been thought necessary to make that change. The impression that he conveys is that he is either embarrassed or unable to tell the Committee about the original decision to introduce the clause and the current attempt to reinstate it.

I can see persuasive arguments to counter what the Minister has said, which I shall outline. The mechanism that we are setting up for disciplinary issues concerning the judiciary in Northern Ireland is a novelty—or was a novelty before the 2002 Act. It is well known that the system in England and Wales requires a resolution of both Houses of Parliament to remove members of the senior judiciary, which has historically taken place on the recommendation of the Lord Chancellor. The last time that that occurred was sometime in the early 19th century. However, I suspect that there may have been a threat to do so about 10 years ago, but that the person concerned left because it was suggested to him that such a resolution might follow if he did not consider his position.

Whatever the situation, one has to think carefully about the implications of moving away from that model. The Minister and I, and the rest of the Committee, will share the view that judicial independence and freedom from political pressure must be maintained. The interesting thing about the mechanism that has been proposed is that it does not involve the legislature. The Northern Ireland Assembly has no role whatever in the process. The link between the legislature and the judiciary in

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Northern Ireland is treated for these purposes as non-existent. That may reflect the Government's assessment of the limitations of the Northern Ireland Assembly as a representative body or of the difficulties that the Assembly will face in view of the way in which it was set up. I do not know—the Minister has not condescended to tell us—but I can see that there could be difficulties. I do not want to add to his difficulties by suggesting that the Northern Ireland Assembly has to be the body that makes the decision.

The result of that is that the decision has been cast on the First Minister and his Deputy—that wonderful hybrid institution where two people with diametrically opposite political philosophies, in the current likelihood, have to operate together for the good of the citizens of Northern Ireland. In the 2002 Act, the Government clearly considered that that mechanism was not sufficient. They put in the extra mechanism of providing for a veto for the Lord Chief Justice.

The other feature of the 2002 Act is that the Lord Chief Justice in Northern Ireland becomes an important figure. He becomes the head of the judiciary once the devolved administration is set up. It seems to me—although the entire model strikes me, as a rather old-fashioned constitutionalist, as fairly bizarre—that if one is trying to provide checks and balances to ensure that there is not political pressure on the judiciary and that wrong decisions are not made by members of the Executive, the mechanism of providing for a veto by the Lord Chief Justice is sensible. The Lord Chief Justice is not God, because if we read further on in the 2002 Act a mechanism is available to remove the Lord Chief Justice from office if necessary. That mechanism extends very far and wide to involve the entire judicial establishment of the United Kingdom, or certainly of England and Wales, in that process. That is no bad thing. It is not as if the Lord Chief Justice is not answerable if he should act capriciously.

In such circumstances, the Lord Chief Justice's final say strikes me as eminently sensible. The Minister says that it is not necessary and that that situation could never happen. I do not know about that. I would certainly think that it is most unlikely that it will ever happen, and I hope that it is most unlikely that a tribunal ever has to be convened at all. However, just because it is unlikely, that does not mean that we should not provide a checking mechanism in a system that is untried and untested. As we know, there has been enormous difficulty in operating the Northern Ireland constitution. Otherwise, the right hon. Member for Upper Bann would have had a different career as First Minister. That is the reality of it.

I am afraid that I disagree with the Minister. In the absence of some cogent argument to persuade me otherwise, which has been lacking, I will resist the new clause, because I think that the arguments advanced in another place remain valid and that this is a sensible safety device to which I can see absolutely no downside.

Mr. Carmichael: I agree in large measure with what the hon. Gentleman has said. The matter was first dealt with in the House of Lords, and the Government are seeking to reinstate the position. Frankly, I regret

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that they feel that to be necessary. I do not see the need. There is no good reason for departing from the procedures followed on this side of the Irish sea, and the Government have not yet evinced one. I presume that the matter will be pressed to a vote, and I will support the hon. Member for Beaconsfield and his colleagues.

Mr. Spellar: I reiterate that the key issue is whether any individual, however eminent and distinguished, should be able to exercise a veto in this regard, particularly when the Lord Chief Justice or other senior members of the judiciary have been involved in the process at an earlier stage and have therefore had a considerable influence on this important issue. The real question is then whether they should also have a veto within the system. On reflection, we decided that they should not. Accordingly, I seek to reinstate the clause that was removed in another place.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 10, Noes 6.

Division No. 3]

AYES
Barnes, Mr. Harry Casale, Roger Clarke, Mr. Tony Coaker, Mr. Vernon Harris, Mr. Tom
Hepburn, Mr. Stephen Lucas, Ian Palmer, Dr. Nick Spellar, Mr. John Thomas, Gareth

NOES
Carmichael, Mr. Alistair Grieve, Mr. Dominic Hunter, Mr. Andrew
Swayne, Mr. Desmond Swire, Mr. Hugo Trimble, Mr. David

Question accordingly agreed to.

Clause read a Second time, and added to the Bill.

Clause 5

Duty of Director of

Public Prosecutions to refer certain matters to Police Ombudsman

Mr. Hunter: I beg to move amendment No. 25, in

clause 5, page 3, line 30, after 'shall', insert 'within his discretion'.

This is the second of three amendments that I tabled on behalf of the DUP. Again, it is a quest for the reason for a change, although in this instance it returns, without apology, to the 2002 Act. As the explanatory notes to the Bill make clear, section 34 of that Act amends section 55 of the Police (Northern Ireland) Act 1998, and places on the Director of Public Prosecutions a duty to refer matters to the police ombudsman. The Committee will be aware that recommendation 21 of the criminal justice review stated that the DPP should have a duty to refer to the ombudsman. The clause therefore makes the necessary amendments to ensure that the recommendation is fully implemented in line with the undertakings that the Government made in the Hillsborough joint declaration, which the explanatory notes obligingly confirm and emphasise.

It is highly questionable whether an attempt to achieve a political deal is the right basis for sound legislation. The primary purpose of the clause is therefore self-evident. It is also rather worrying, as it

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re-enacts the provision in section 34 of the 2002 Act, which was designed to operate after devolved government was up and running in the Province. We have already debated that theme in another context today, but it is disturbing to see that provisions that were intended, under the review, to be enforced only after devolved government was in place, are now to be enforced before. It stands to reason that the DPP should be able to exercise his or her judgment on the referral of matters to the police ombudsman. The previous provision for discretion was sensible and practical and, with this amendment, I seek its restoration.

The DPP exercises discretion in comparable matters, such as whether to prosecute. What is the intrinsic difference in this matter? Why should not the DPP exercise discretion? It is hard to think of a legitimate reason. Assessing the strength of a case and the likelihood of obtaining a conviction is the essence of the DPP's job. Why is that freedom of action being denied? The independent DPP should have discretion to decide whether he has sufficient evidence to bring a prosecution. If he has, the prosecution should go ahead, thus avoiding the further delays that are inevitably created by imposing on him a duty to report the incident to the ombudsman. The Government have yet to explain convincingly why the ombudsman should have a role in the first place. The matter should be determined by the DPP and should result in criminal prosecution, internal disciplinary processes, or no action at all.

On Second Reading in another place, Viscount Brookeborough saw clause 5, which was then clause 6, as another instance of the Government

''eternally tweaking the law ahead of the planned timescale in order to appease''—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1105.]

 

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Prepared 25 March 2004