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I believe it would be inappropriate for a judge to make an appointment to a post that sat in part of the Executive arm of government. That would be to undermine a fundamental tenet of the UK’s constitutional framework—the doctrine of the separation of powers. I appreciate the noble Lord’s concern that the Attorney-General should be safeguarded from inappropriate political pressure. In response, I should highlight that the appointment is made jointly by the First Minister and Deputy First Minister. That balance should provide reassurance. The First Minister and Deputy First Minister have also made public who they are minded to appoint to this post, and their proposal has been widely welcomed.

Although the Attorney-General will be appointed by the First Minister and Deputy First Minister, and as such is clearly appointed by politicians, Section 22(5) of the Justice (Northern Ireland) Act 2002 states that:

“The functions of the Attorney General for Northern Ireland shall be exercised by him independently of any other person”.

This is in line with the criminal justice review, which recommended that the Attorney-General should be “a non-political figure” and concluded that an Attorney-General appointed under these arrangements was,

The Criminal Justice System Review Report, published in March 2000, was the most important and far-reaching survey of criminal justice in Northern Ireland in more than 30 years and flowed from the Belfast (Good Friday) agreement. The Government do not believe there is evidence to support a move away from these arrangements which were approved by Parliament as part of the Justice (Northern Ireland) Act 2002.

Again reflecting the criminal justice review, the 2002 Act provides for a consultative relationship between the DPP and the Attorney-General for Northern Ireland, and between the DPP and the Advocate-General. This was considered the best way of ensuring visible independence of prosecutorial decisions by the DPP. Indeed, giving the Attorney-General the power of superintendence and direction would be contrary to the criminal justice review. Noble Lords will therefore understand why the Government also oppose the removal of Section 41 of the 2002 Act, which transfers certain functions from the Attorney-General to the DPP. The transfer was provided for in the 2002 Act to ensure that the Attorney-General’s functions would be consistent with his new consultative role post devolution.

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This consultative relationship is a statutory obligation. It allows a wide range of matters to be discussed, with a particular duty to consult on the code of practice for prosecutors which informs so much of the prosecution process. I would expect such discussions to involve challenge and a full and frank exchange in both directions. Also under Section 25 of the Justice (Northern Ireland) Act 2002, the Attorney-General may participate in the proceedings of the Assembly. Although it will be for the Assembly, through its standing orders, to set out how this will work in practice, this will provide a line of accountability from the Director of Public Prosecutions, through the Attorney-General to the Assembly. This is in addition to the fact that the DDP is answerable in Assembly for the finance and administration of the Public Prosecution Service.

Some things have most certainly changed since 2000, when these arrangements were first envisaged. Indeed, a great deal has happened. The reactions to the recent atrocities from both sides of the political spectrum are testament to this. The political progress we have seen since 2000 is something we can all welcome. However, the review group designed these recommendations to ensure that justice could be transferred to the devolved institutions in Northern Ireland on a sustainable basis. The fundamentals of these devolved institutions, including the joint nature of the office of the First Minister and Deputy First Minister and the mandatory coalition that makes up the Executive have not changed.

As the noble and learned Lord, Lord Mayhew, said at Second Reading:

“It comes down to a question of judgment concerning the atmosphere in Northern Ireland today”.—[Official Report, 9/3/09; col.974.]

I think that we must respect the views and the judgment of the Northern Ireland Assembly.

The noble Lord, Lord Kingsland, drew our attention to the arrangements for judicial appointments and removals, dealt with in Clause 2 and Schedules 2 to 6 to the Bill. Unlike these arrangements, however, the First Minister and Deputy First Minister have not proposed that the post-devolution arrangements relating to the prosecutorial system should be changed. The Government believe that those who will be taking responsibility for the system are the best judge of whether the time has come to move away from the accountability arrangements put in place in 2002. If, in due course, the Assembly decides that the time has come to put in place new arrangements, they will be able to do so. It is not our job today to pre-empt their decision on the substance or timing of such a change.

I believe that with the commitment of those involved, the arrangements in the 2002 Act will ensure an effective relationship between the Director of Public Prosecutions and the Attorney-General and Advocate-General. The arrangements will preserve the director’s independence and promote confidence in prosecutions in a jurisdiction where justice has been a contested space. I am therefore, extremely grateful to the noble Lord for signalling that he would not wish to pursue these amendments and I ask him to withdraw them.

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Lord Mayhew of Twysden: I do not wish, through remaining silent while present, to be thought to have resiled from the position I took at Second Reading. I recall that, when we had a debate, back in 2002, on the recommendations of the criminal justice review committee, I supported the proposition that is reflected in the Bill, that the Attorney-General should be appointed in that way and that the DDP should be subject to no ministerial supervision. I do think, however, that it is very important to realise that it is not just a question of instances in which a DPP can be brought under political pressure; perception is almost as important in Northern Ireland as fact, and it was therefore entirely understandable and helpful that my noble friend’s amendments should be put forward as alternatives. After all, they reflect a structure that has been tried over very many years in England and Wales and has been found to serve very well, in my estimation. It does, however, as we have just been reminded, turn upon the question of what the political atmosphere is like in Northern Ireland today, because the criminal justice review committee, back in 2002, specifically referred to the highly charged political atmosphere in Northern Ireland as a justification and an explanation for the proposal that it made.

We all know—I add my condolences to those expressed to the family of PC Carroll—that things have taken a very regrettable turn for the worse but we hope that they will go no further in that direction. Therefore, it is very helpful that this amendment will not be put to the vote. As I said on Second Reading, I would be content with either solution. Perhaps the sensible thing is to wait to see how we get on. In those circumstances, I do not think that I have anything more constructive or useful to add to this short debate.

4 pm

Lord Kingsland: I am most grateful to the noble Baroness for her full response, which, it is fair to say, reflected the observations that she made two days ago at Second Reading. I should like to respond briefly to her remarks, as well as to the observations made by the noble Baroness, Lady Harris.

I cannot overemphasise the degree of isolation of the DPP in the system. I have already drawn your Lordships’ attention to Section 42(1) of the Justice (Northern Ireland) Act 2002 which refers to the obligation on the director to exercise his functions,

That is starkly underlined by Section 22(5), to which the noble Baroness briefly drew our attention. It states, almost in the same terms as Section 42(1):

“The functions of the Attorney General for Northern Ireland shall be exercised by him independently of any other person”.

To the extent that he makes any remarks about prosecutions—he is allowed only to make observations about the prosecutorial system generally, not about particular prosecutions—he is not in any way obliged to take the view of the DPP. This underpins the degree of the DPP’s isolation.

Moreover, Section 42(3) states:

“The Attorney General for Northern Ireland and the Director may (from time to time) consult each other on any matter for which the Attorney General for Northern Ireland is accountable to the Assembly”.

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The Attorney-General for Northern Ireland is not accountable to the Assembly for particular prosecutorial decisions taken by the DPP. So the DPP is forbidden by Section 42(3) from even consulting the Attorney-General if he has some concerns about a decision he is making.

Some concern was expressed—it was cast under the grand principle of “separation of powers”, which I remember being referred to frequently by the Government in the course of the Constitutional Reform Bill—about the selection of the Attorney-General under our amendments as being made by the Lord Chief Justice. Actually, that is not in practice so. We are suggesting that the appointment of the Attorney-General should mirror the appointment system for High Court judges under Section 5 of the 2002 Act, as amended by this Bill. The selection of the Attorney-General would be as follows: the name, after interviews, would be put forward by the Northern Ireland Judicial Appointments Commission. The Lord Chief Justice would either accept it automatically or refer it back. But if the same name is put forward again by the JAC, the Lord Chief Justice has to accept it—he has no alternative. It is exactly the same as the new system for High Court judges introduced by the Constitutional Reform Act. So although the Lord Chief Justice appears to have powers in relation to the selection of judges, in practice the real choice is made by the Judicial Appointments Commission. With respect to the noble Baroness, it is not fair to apply the analogy of the separation of powers to this process.

However, I agree with the noble Baroness on perhaps the most important thing that she said: these are testing times. It may be that we will have an opportunity in future to influence the devolution process on this matter. After all, although we are talking about a devolved Administration, this is an alteration to the United Kingdom constitution and we have a duty to consider it in that context. However, for the reasons that I gave when I moved the amendment, this would not be an appropriate time to vote on it. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 3 agreed.

Clauses 4 and 5 agreed.

Schedule 1: Northern Ireland department with policing and justice functions

Amendment 1A

Moved by Lord Maginnis of Drumglass

1A: Schedule 1, page 5, leave out lines 7 and 8 and insert—

“(i) made by the First and Deputy First Minister acting jointly, and”

Lord Maginnis of Drumglass: I join other noble Lords in expressing my heartfelt sympathy at the death of Constable Carroll. He was a long-serving police officer, who came from the Irish Republic many years ago to serve in the Royal Ulster Constabulary.

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He served there with pride for many years, and it is so sad, in what we believed was a new, peaceful era, that he should die at the hands of republican murderers. It is important to note that he joined the RUC at one of its most difficult times and not at a time when arrangements were made to—perhaps I use the word improperly—nursemaid certain people into the police. Instead, when there was a need to serve, he served faithfully.

I feel totally inadequate in the company of noble and learned Lords. For 26 years in Parliament, I had the benefit of the advice of the noble Lord, Lord Trimble. I am not a lawyer, hence my feeling of inadequacy when dealing with technical points that are exceedingly complex and involve a series of pieces of legislation. At the same time, I am deeply concerned that your Lordships’ House is being asked to legislate for a fix. The ideas that are enshrined in the Bill, whatever may appear to be their strengths, are designed to create a very narrow and restrictive approach to justice and policing in Northern Ireland. I believe that the approach is based on a deal that has been done between two major parties to carve up, in their separate interests, what needs to be done in Northern Ireland.

I will attempt in a moment to address the amendments that I propose. In the mean time, we have only to look at five months of inactivity by the Executive in Northern Ireland to realise that the Democratic Unionist Party and Sinn Fein are not brothers in arms—or out of arms—except when it is expedient for them to show some sort of joint approach, as we have seen in the past day or two. That is not the basis on which we should be taking forward legislation that concerns the administration of justice.

My Amendments 1A, 1B and 1C illustrate alternatives to new paragraph 3A(1)(b)(i) in Schedule 1, in which we are being asked to approve a situation where a single Member of the Assembly could nominate the Minister. That is there for a reason. The reason is that if we arrange for one Member to propose who will be the Minister, we do not have the embarrassment for either the DUP or Sinn Fein of having to be seen to nominate someone outside their party. That is unsatisfactory. I do not know which would be best. It might be an idea to put that responsibility on the First and Deputy First Ministers and to test their sincerity in that respect. Alternatively, if we are going to leave it to Members of the Assembly, it should be not just one Member but perhaps eight Members of the Assembly. The third option is that nominating officers from each of the four main parties come together to decide whom they will nominate. That would not let Sinn Fein and the DUP off the hook and out of the responsibility that they should be exercising jointly for the benefit of those in Northern Ireland. I hope that that—inadequately, I know—explains my Amendments 1A, 1B and 1C.

If I may, I shall briefly allude to Amendment 2A, which deals with one of the strangest aspects of the Bill, where the Minister appointed Minister for Justice could in fact be the First or Deputy First Minister. If he were the First or Deputy First Minister, he would for ever have a veto on whether he could be removed as the Minister for Justice. That appears to me to be an injustice.

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Amendment 4A deals with the strange provision for a resolution to remove the Minister, where cross-community and separate majorities give the DUP and Sinn Fein power not exercisable by anyone else in any other circumstances. Again, we are being asked to endorse the carve-up of a power. Similarly, Amendment 5A would leave out the words,

In this instance, total power would be given to the leader of the DUP and the leader of Sinn Fein to act in a carve-up.

Those points, I admit, though understood by me, have not perhaps been adequately addressed in technical language. However, they are relevant and applicable. Hence, I ask the Lord President to say whether “made in Northern Ireland”, as the Secretary of State says, actually means “contrived in Northern Ireland”, but put into a form that, in the longer run, will present us with problems that could ultimately cause the Assembly to crumble. I beg to move.

4.15 pm

Baroness Harris of Richmond: I will briefly speak to two of the amendments tabled by the noble Lord, Lord Maginnis of Drumglass. On Amendment 1C, we feel that there is nothing in legislation to provide that four parties must always be in the Executive. The d’Hondt formula just needs to be applied until all ministerial posts are filled. If one or two parties have a sufficiently large number of Members, that could result in only two or three parties being in the Executive. Indeed, there could come a time when there are fewer than four parties in the Assembly.

Amendment 2A would prevent the First Minister and Deputy First Minister from holding the post of Justice Minister. Although we agree that this probably would not be ideal the first time that policing and justice powers are devolved, there may come a time when it is entirely appropriate. I remind the noble Lord, Lord Maginnis, that my noble friend Lord Wallace of Tankerness, while Deputy First Minister for Scotland, was also the Justice Minister. Although this model is drafted as being temporary and in effect only until 2012, the Assembly could like this model and agree to continue with it after May 2012. In the future, there may be a case for the post being held by the First or Deputy First Minister, so, with regret, we are not able to support the noble Lord in his amendments.

Lord Maginnis of Drumglass: What in fact we are creating—I did not want to reduce it purely to political terms—is a one-issue election forecast for the future, for ever. Once policing and justice are the responsibility of a Minister in the Assembly, one party will be able to argue for the first time, “Vote for us. We may actually have the justice and policing responsibility”. The other party—this is the carve-up between the two parties—will say, “Vote for us, because we are the one party that can prevent Sinn Fein from having the responsibility for policing and justice”. This legislation turns Northern Ireland once again, and more starkly than ever before, into a sectarian society where the electoral contest is purely sectarian.

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Lord Browne of Belmont: First, I extend my condolences to the family of PC Stephen Carroll, who was so brutally murdered in Craigavon. Secondly, I declare an interest as an elected Member of the Northern Ireland Assembly.

The Bill is one of eight models that have been designed to establish a new Northern Ireland department to exercise functions that consist wholly or mainly of devolved police and justice powers. This model has received the majority support of the review committee at the Assembly. More important, it has been passed by the whole Assembly by a cross-community vote. That means that more than 50 per cent of the Members who are designated as unionists, and more than 50 per cent of the Members who are designated as nationalists, have given their approval. It is very important, particularly at this time, that the Bill is passed through this House as quickly as possible without amendment, so I do not intend to refer entirely to the points made by the noble Lord, Lord Maginnis.

Lord Glentoran: This is a difficult situation, a difficult Bill and a difficult time. No one is more aware of that than I am, having visited the Province yesterday. I visited all the sites, the chief constable, the head of the Army and, indeed, the chief inspector and the policemen down at Craigavon, and I sent my personal condolences to them through two young policewomen.

I am not taking an active part in this, any more than my noble friend Lord Kingsland is. His arguments are sound, and I shall have a few more later. My reason for not supporting the noble Lords, Lord Maginnis and Lord Browne, is not intellectual; it is purely because I believe that, given the situation that we are in, now is not the time to start dissecting a Bill as important as this. I still think that it is an awful shame that it did not have longer in the Commons and here, but that is where we are and where we must stay and go from. Although it is not really my job, I ask the noble Lord, Lord Maginnis, whether he would be good enough to withdraw his amendment.

Baroness Royall of Blaisdon: I am grateful to all noble Lords for their support and for the actions that they have taken in support of the family of Constable Carroll in Northern Ireland.

I recognise that noble Lords have concerns about how the Bill provides for the appointment and removal of the justice Minister under this new model, and I have heard the concerns expressed by the noble Lord, Lord Maginnis. I must stress that I do not agree with his assertion that the Bill is all about a deal. It is not. As the noble Lord, Lord Browne, quite rightly said, it reflects an agreement between the democratically elected representatives of the people of Northern Ireland, as set out in the agreement that was announced by the First and Deputy First Ministers in November and built on by the cross-party Assembly and Executive Review Committee. The report of that committee was approved, as the noble Lord said, by the Assembly on a cross-community basis on 20 January. The Government believe that it is right and proper that they should take their lead from this agreement.

Amendments 1A, 1B and 1C would remove the possibility of a nomination for the justice Minister being made by any Member of the Assembly. Instead,

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the nomination would have to be made either by the First Minister and the Deputy First Minister acting jointly, by at least eight Members of the Assembly, or by at least one Member of each of the four largest parties in the Assembly. The Assembly and Executive Review Committee did not seek to restrict who could nominate the justice Minister, and for that reason we have not done so in the Bill.

Another of the models provided for by the 1998 Act in Section 21A(3) already provides for a single elected Minister nominated by the First and Deputy First Ministers, which replicates the effect of Amendment 1A. But, in any case, the key test that needs to be applied is whether the nomination commands cross-community consensus, as expressed through a cross-community vote in the Assembly. That is what the Bill provides; therefore, there is no need to impose the additional hurdles within the nomination process which would be created by Amendments 1B and 1C.

The noble Lord also asserted that having a single Member of the Assembly nominate the justice Minister saves the DUP or Sinn Fein from having to lose face by doing so. I do not accept that these provisions let anyone off the hook. It is simply a way to ensure that any Member of the Assembly can nominate a justice Minister and that there should be no restriction on that right. The nomination still requires cross-community support to be carried.

Amendment 2A, in the name of the noble Lord, Lord Maginnis of Drumglass, would prevent the First Minister and the Deputy First Minister from being nominated to hold the office of justice Minister. It is a feature of all existing ministerial models for the department of justice and the other executive ministerial offices that neither the First Minister nor the Deputy First Minister is precluded from holding these offices. Members of the Committee may recall that the honourable Member for Foyle simultaneously held the office of Deputy First Minister and that of finance Minister under a previous Assembly mandate. I am grateful to the noble Baroness, Lady Harris, for giving the example of her noble friend Lord Wallace of Tankerness, in Scotland.

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