House of Commons - Explanatory Note
Justice (Northern Ireland) Bill - continued          House of Commons

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ATTORNEY GENERAL

Clause 23: Attorney General

45.     It is planned to commence the provisions in clauses 23 to 29 and clauses 41 to 43 on the devolution of justice functions to the Northern Ireland Assembly. Subsection (1) of clause 23 will remove the linkage, established by section 10 of the Northern Ireland Constitution Act 1973, between the Attorney General for England and Wales and the Attorney General for Northern Ireland. The Law Officers Act 1997 is also relevant here: it allows the Solicitor General to carry out the functions of the Attorney General for Northern Ireland. The associated amendment to this Act (to allow the Solicitor General to carry out the functions of the post of Advocate General for Northern Ireland) is set out later in the Bill at clause 28.

46.     Subsection (2) of this clause gives the First Minister and deputy First Minister the duty to appoint a person to be Attorney General for Northern Ireland, after consulting the Advocate General for Northern Ireland (see paragraph 13 of Schedule 7). Subsection (3) requires the Attorney General to exercise his functions independently. Subsection (4) sets out the legal qualifications for the post. These are equivalent to those of a judge of the High Court in Northern Ireland (see clause 19). Under subsection (5) the First Minister and deputy First Minister may make arrangements to fill the post of Attorney General temporarily during a vacancy. Before doing so they must consult the Advocate General for Northern Ireland (see paragraph 12 of Schedule 7).

Clause 24: Terms of appointment of Attorney General

47.     Subsection (2) of this clause provides that the local Attorney General cannot be appointed for a period of longer than five years at a time. It would be possible for the First Minister and deputy First Minister to reappoint an individual to the post of Attorney General for Northern Ireland after such a period of five years has come to an end. No-one is eligible to hold the post of Attorney General for Northern Ireland if 70 years of age or older. If the holder of the post of Attorney General would reach the age of 70 during a 5-year period of appointment the term of appointment would have to be shortened so that the holder would leave office before reaching the age of 70.

48.     The effect of subsections (6) to (8) is to disqualify the holder of the post of Attorney General for Northern Ireland from being a member of the House of Commons, the Northern Ireland Assembly or a local authority in Northern Ireland.

49.     Subsection (9) makes the local Attorney General subject to the provisions of the Freedom of Information Act 2000. This is equivalent to the position of the Attorney General in England and Wales.

Clause 25: Removal of Attorney General

50.     Subsection (1) provides that the First Minister and deputy First Minister can only remove or suspend the Attorney General for Northern Ireland from office on the recommendation of a tribunal. The members of the tribunal will be judges in England, Wales or Scotland (subsection (4)). The tribunal will be convened by the First Minister and deputy First Minister and its members will be appointed by the Lord Chancellor.

Clause 26: Participation by Attorney General in Assembly proceedings

51.     The effect of this clause is to make the Attorney General accountable before the Northern Ireland Assembly for the operation of the Prosecution Service. He will be allowed to answer questions and make statements pursuant to standing orders, but without the right to vote. Subsection (3) will give him the right to refuse to answer questions or produce documents on public interest grounds or where that might prejudice criminal proceedings. Subsection (4) makes the Attorney subject to the provisions of section 43 of the Northern Ireland Act 1998 (members' interests), under which he will be required to declare any interests in the register maintained by the Assembly before taking part in any relevant proceedings of the Assembly.

Clause 27: Annual report by Attorney General

52.     This clause sets out arrangements whereby the Attorney General for Northern Ireland is required to write an annual report for each financial year on how he has exercised his functions. This report will be laid before the Northern Ireland Assembly by the First Minister and deputy First Minister, who will also arrange for it to be published.

ADVOCATE GENERAL

Clause 28: Advocate General

53.     There are certain functions of the present Attorney General for Northern Ireland that cannot be given to the Attorney General for Northern Ireland appointed by the First Minister and deputy First Minister. These relate to matters over which the Northern Ireland Assembly has no jurisdiction. These 'excepted matters' are set out in Schedule 2 to the Northern Ireland Act 1998 and include, for example, international relations (including treaties and the European Union), the defence of the realm, taxation and national security. Accordingly, this clause establishes a new post of Advocate General for Northern Ireland to take responsibility for Northern Ireland interests in these issues. Subsection (1) of this clause makes the Attorney General for England and Wales the holder of this post. The amendments set out in subsection (2) allow the Solicitor General (as the Attorney General for England and Wales's deputy) to also carry out the functions of the post of Advocate General for Northern Ireland. This is done by amending the provisions of the Law Officers Act 1997. The office and functions of the Advocate General are made an excepted matter by means of subsection (4), which adds them to the list of excepted matters in Schedule 2 to the Northern Ireland Act 1998.

Clause 29: Functions of Advocate General

54.     This clause introduces Schedule 7 to the Bill which sets out the functions of the new post of Advocate General for Northern Ireland (see also below).

PUBLIC PROSECUTION SERVICE

Clause 30: Public Prosecution Service

55.     Subsection (2) of this clause sets out the composition of the Prosecution Service. There are two statutory office holders: the Director and Deputy Director of Public Prosecutions.

56.     Subsection (3) deals with the staff of the Prosecution Service. These are currently civil servants, who are considered to be on secondment from the Northern Ireland Department of Finance and Personnel. There are no plans to change this arrangement. As the main work of the service will be the conduct of prosecutions, staff to be designated as prosecutors will need to be legally qualified, as set out in subsection (4).

Clause 31: Director of Public Prosecutions

57.     This clause sets out the appointment criteria for the Director and Deputy Director. The legal qualifications for the two post-holders are set out in subsections (2) and (3) respectively.

58.     The Director and Deputy Director would normally hold their posts until they reach the age of 65, unless the Attorney General for Northern Ireland extends their period of appointment, they resign by giving notice in writing, or are dismissed by the Attorney General under clause 40 (which applies prior to devolution) or clause 43 (which sets out the arrangements for an independent tribunal which will operate after devolution) (subsections (5) and (6)).

59.     Subsections (7) and (8) set out the arrangements for temporarily exercising the functions of Director and Deputy Director should those posts fall vacant. If there were no Director, it would be for the Deputy Director to exercise the functions of the post until another Director was appointed by the Attorney General for Northern Ireland. If the post of Deputy Director became vacant, then the Attorney General for Northern Ireland could appoint an acting Deputy Director from the prosecution service staff under subsection (8) to cover that period.

60.     In accordance with the recommendations of the Review, subsection (11) provides that the Director cannot be required by the Assembly to answer questions or produce documents other than in relation to the finances and administration of the prosecution service. As the Director is meant to have complete independence in the exercise of his functions (subject to the accountability measures and limits set out in this legislation) it would not be appropriate for the Assembly to question him on individual cases. These provisions also apply to the Deputy Director and other members of staff.

Clause 32: Conduct of prosecutions

61.     This clause sets out the core functions of the Prosecution Service. It will be the responsibility of the Prosecution Service to undertake all prosecutions for both indictable and summary offences committed in Northern Ireland that were previously the responsibility of the Director of Public Prosecutions for Northern Ireland or the police.

62.     Under subsection (1), the Director will have a duty to take over all prosecutions instituted by the police. On commencement the Director will take over responsibility for all prosecutions instituted by the police. Clause 87(4) provides that if, for example, preparatory work is not sufficiently advanced to allow the Prosecution Service to take on all prosecutions at that time, the Director will only have responsibility for those types of prosecutions which it is reasonably practicable for him to conduct. Under subsection (2), the Director will also be able to institute criminal proceedings himself where he considers it appropriate.

63.     Subsection (3) ensures that the right to institute private prosecution remains, although it will continue to be open to the Director to take over any privately instituted prosecution under subsection (4) (other than proceedings instituted by the Serious Fraud Office). Subsection (5) requires the Director to give advice to police forces operating in Northern Ireland on prosecutorial matters. Advice is limited to such issues; it is not intended that the Director should supervise police investigations.

Clause 33: Discontinuance of proceedings before court appearance

64.     This clause addresses a recommendation of the Review that the prosecutor be able to withdraw charges before the defendant's first court appearance ('first remand'). When combined with a direction that the name of the accused not be released before that first court appearance it will help to address the potential for damage to reputation if someone has been wrongly charged. Removing the requirement for withdrawal of charge to be sought in court will also prevent unnecessary court appearances by the person accused and the prosecutor and will ensure a more efficient use of court time. Other methods of terminating a prosecution (such as the entering of a nolle prosequi) will continue to be open to the prosecution service after first remand.

65.     Subsection (3) ensures that the person concerned will be released from custody when the charge is withdrawn (unless there are other charges pending that warrant his detention) and that any requirement for him to appear at or be brought before court, or appear at a police station (for example, those imposed by Article 47 or 48 of the Police and Criminal Evidence (Northern Ireland) Order 1989) ceases to have effect. Subsection (4) ensures that the person can be prosecuted for the same offence in the future.

Clause 34: Consents to prosecutions

66.     Certain offences are considered serious enough to require the consent of either the Director of Public Prosecutions or (at present) the Attorney General for Northern Ireland before a prosecution can be undertaken. The provisions in this clause set out the detail of how this consent is to be given by the Director and used by the courts 3. After devolution, the Attorney General for Northern Ireland will no longer be able to consent to the prosecution of offences and all of those provisions requiring his consent (other than those that relate to "excepted" matters) will be passed to the Director. Commentary on this change is set out at clause 41.

    3 These provisions will also apply to consents given by the Advocate General for Northern Ireland (see Schedule 7, paragraph 33).

Clause 35: Police complaints

67.     The amendments to the Police (Northern Ireland) Act 1998 set out in this clause are intended to allow the Director to refer any allegations made to him of criminal conduct by police officers to the Police Ombudsman. The Ombudsman would then report the outcome of any investigation it was felt should be undertaken into those allegations to the Director. This builds on the Director's powers in clause 36 (see below).

Clause 36: Information for Director

68.     Subsections (1) and (2) of this clause require court officials, District Judges (Magistrates' Court), lay magistrates and clerks of petty sessions to send the Director copies of relevant information when persons are committed for trial or a complaint has been made. This will ensure that the Director is made aware of prosecutions which he has not heard about through other channels. It would then be open to him to take over the conduct of those prosecutions under clause 32.

69.     There is a requirement in subsection (3) for coroners to report to the Director the circumstances of a death where it appears that an offence may have been committed. Subsection (4) of this clause requires the Chief Constable of the Police Service of Northern Ireland to send to the Director information about offences alleged to have been committed which are of a description specified by the Director. This information will enable the Director to monitor the progress of investigations and proceedings in relation to particular types of offences.

70.     Subsection (5) requires the Chief Constable to send information to the Director at his request about criminal offences that may have been committed or any other information that the Director might need in order to carry out his functions: this reflects provisions currently in force in Article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972. This could be used, for example, where the Director had gained information that indicated a criminal offence might have been committed. He could ensure that it had been thoroughly investigated and request any associated papers in order to ensure that a decision could be made by the Prosecution Service as to whether any prosecution should be instituted. These provisions do not, however, constitute a power for the Director to supervise the conduct of investigations by the police.

Clause 37: Exercise of functions by and on behalf of Service

71.     This clause allows the Director to delegate any or all of his functions to a member of his staff. All staff members must carry out their work subject to the direction of the Director (see clause 31(5)). Subsection (2) allows the Director to retain the services of a barrister or a solicitor to prosecute cases on his behalf, but they must act in accordance with any instructions issued by a Public Prosecutor (subsection (3)).

Clause 38: Code for Prosecutors

72.     Under the provisions in this clause the Director must publish a Code of Practice for Public Prosecutors and barristers and solicitors conducting cases for the Director. This would incorporate a code of ethics. The Code of Practice would contain guidance on the general principles to be applied by Prosecutors in the matters set out in subsection (3), such as the grounds on which the Prosecutor would make the decision to prosecute (the evidential and public interest tests); for what charge; and on what grounds proceedings would be discontinued. The code will be published subsection (5)). Clause 39 requires the code to be included in the Director's annual report.

Clause 39: Reports by Director

73.     This clause contains the reporting arrangements for the Prosecution Service. For each financial year the Director will have to prepare an annual report for the Attorney General for Northern Ireland that contains details of how he has exercised his functions for that year, the Code of Practice (including the code of ethics) which the Director is required to produce under clause 38 (see above) and any alterations made to those codes during the previous year.

74.     The Director will present the Attorney General with a copy of his report and it will then be for the Attorney General to ensure that the report is published. Subsection (4) allows the Attorney General to exclude parts of the report from publication on public interest grounds.

RELATIONSHIP OF DIRECTOR AND ATTORNEY GENERAL

Clause 40: Superintendence and removal of Director

75.     This clause sets out the relationship between the Director and the Attorney General prior to devolution and the appointment of a local Attorney under clause 23. This reflects the current relationship between the Director and the Attorney.

Clause 41: Transfer of functions etc.

76.     This clause sets out the changes to the functions of the Attorney General that will occur on devolution. Subsection (2) will end the ability of the Attorney General to consent to prosecutions for certain, specified offences. The power to consent to those prosecutions will be split between the Director of Public Prosecutions for Northern Ireland and the Advocate General for Northern Ireland (with the offences for which the Advocate General's consent is required set out in paragraphs 24 to 32 of Schedule 7).

77.     Subsection (3) will allow the Director, rather than the Attorney General for Northern Ireland, to stop a prosecution by means of entering a nolle prosequi. This allows proceedings upon indictment to be halted at any time before judgment. It is now usually directed to be entered in cases where the accused person cannot be produced in court to plead or stand trial owing to physical or mental incapacity which is expected to be permanent. A nolle prosequi puts an end to the prosecution but does not operate as a bar or discharge or an acquittal on the merits and the party remains liable to be re-indicted.

78.     Subsection (4) will remove the power of the Attorney General to present a Bill of Indictment so as to obtain trial before the Crown Court without the necessity of committal proceedings. Subsection (5) will allow the Director, rather than the Attorney General for Northern Ireland, to appeal where he feels that a sentence handed down by a court is unduly lenient. Subsection (6) will allow the Director to refer a point of law to the Court of Appeal following an acquittal on indictment.

Clause 42: Independence of Director

79.     This clause sets out the arrangements for consultation and advice between the Director of Public Prosecutions, the Attorney General for Northern Ireland and the Advocate General for Northern Ireland after the devolution of justice functions to the Northern Ireland Assembly. It includes (in subsection (1)) a statutory declaration of the independence of the Director of Public Prosecutions in the exercise of his functions. Subsections (5) to (7) deal with the publication of the Director's annual report.

Clause 43: Appointment and removal of Director by Attorney General

80.     This clause sets out the appointment and removal criteria for the Director and Deputy Director after devolution. As the Director will be carrying out some prosecutions that fall within the area of responsibility of the Advocate General for Northern Ireland the Attorney General for Northern Ireland will have to consult him before making an appointment. The Director and Deputy Director can only be suspended or dismissed on the recommendation of a tribunal convened under subsection (4) (see subsection (2)). The membership of such a tribunal is set out at subsection (5). The tribunal will be convened by the Attorney General for Northern Ireland, after consulting the Advocate General for Northern Ireland, and its members will be chosen by the Lord Chancellor (see subsections (4) and (6)).

SUPPLEMENTARY

Clause 44: Interpretation

81.     This clause defines when proceedings in any case are to be considered to have been instituted for the purposes of this Part.

PART 3: OTHER NEW INSTITUTIONS

CHIEF INSPECTOR OF CRIMINAL JUSTICE

Clause 45: Chief Inspector of Criminal Justice

82.     This clause provides for the creation of an office of Chief Inspector of Criminal Justice in Northern Ireland. The Chief Inspector is to be appointed by the Secretary of State. Schedule 8 makes provision dealing with the practical aspects of the new office, such as tenure, staff, delegation of powers, etc.

Clause 46: Functions of Chief Inspector

83.     This clause lists the organisations in respect of which the Chief Inspector must conduct inspections. The Chief Inspector will be responsible for ensuring the inspection of all aspects of the criminal justice system, excluding the courts. However, he must not conduct inspections of organisations if he is satisfied that the organisation is already subject to adequate inspection, for example, by bodies such as Her Majesty's Inspector of Constabulary (subsection (2)).

84.     The Chief Inspector may inspect the activities of the organisations listed. He may also inspect any institutions provided or managed by them. This would allow him to inspect prisons, young offenders centres, juvenile justice centres, secure accommodation provided for the purpose of custody care orders (as to which see clause 56) and attendance centres. Subsection (4) allows the Chief Inspector to inspect other organisations providing juvenile justice centres or attendance centres but only in respect of those activities. For example, the Secretary of State has entered into an arrangement under Article 50(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (NI 9)) (the "1998 Order") with the Young Men's Christian Association ("YMCA") in Belfast whereby the YMCA provides an attendance centre. By virtue of subsection (4) the Chief Inspector may only inspect the activities of the YMCA in so far as they relate to attendance centres. Similarly, subsection (5) ensures that any inspection of a Health and Social Services Board or Trust may only deal with the activities related to keeping children in secure accommodation, where the court has made the young person the subject of a custody care order (see clause 56).

85.     Subsection (6) provides for the Secretary of State to change the list of organisations, by adding, removing, or changing the description of organisations on the list. This would be done by order. As the courts are not within the remit of the Chief Inspector, paragraph (a) makes it clear that courts or tribunals cannot be added to the list.

Clause 47: Further provisions about functions

86.     This clause sets out more functions of the Chief Inspector and also provides certain limits to the exercise of his functions.

87.     The Chief Inspector must consult the Secretary of State and the Attorney General for Northern Ireland when preparing his programme of inspections (subsection (1)). The Secretary of State is given powers to require the Chief Inspector to carry out inspections (subsection (3)), to provide advice and assistance (subsection (7)) in relation to particular organisations listed in clause 46 and to carry out reviews into any matter relating to the criminal justice system in Northern Ireland (other than a matter relating to a court or tribunal) (subsection (4)). However, the consent of the Attorney General for Northern Ireland is necessary before the Secretary of State may require the Chief Inspector to carry out any inspection or review relating to the Public Prosecution Service (subsection (5)). These powers, and the general functions of the Chief Inspector in clause 46, are subject to two express limitations, set out in subsection (6), namely that the Chief Inspector is not permitted to carry out inspections or reviews of individual cases, nor may he carry out inspections relating to activities of an organisation which do not relate to the criminal justice system in Northern Ireland.

Clause 48: Powers of inspectors

88.     This clause sets out the powers of persons carrying out inspections or reviews for the Chief Inspector, including powers to require documents to be produced and explained. The offence of failing to comply with such a requirement without reasonable excuse, which is created by subsection (3), is triable in the magistrates' courts (see subsection (4)). The current maximum for a fine on level 3 is £1,000.

Clause 49: Reports

89.     This clause sets out how often and in what form the Chief Inspector must produce reports and to whom he should give copies. The Chief Inspector must report to the Secretary of State on each inspection and review he carries out, and the Secretary of State must then place a copy of the report before both the House of Commons and the House of Lords and arrange to have it published (subsections (1) and (2)).

90.     Subsection (3) enables the Secretary of State to leave out part of the report from the copy laid before the Houses of Parliament and published on the limited grounds stated. Under subsection (4) when the Secretary of State has excluded a part of a report, he must produce a statement with the report that part of it has been excluded.

91.     If the report relates to the Prosecution Service, subsection (5) requires the Secretary of State to send a copy to the Attorney General for Northern Ireland. This reflects the fact that the activities of the Director of Public Prosecutions for Northern Ireland are to be overseen by the Attorney General for Northern Ireland. This obligation would continue post-devolution, when the Attorney General for Northern Ireland will not supervise the Director, but will continue to oversee his activities.

LAW COMMISSION

Clause 50: Law Commission

92.     Subsection (1) provides for the establishment of a Law Commission for Northern Ireland, which will review the criminal and civil law of Northern Ireland, including procedure and practice, with a view to making recommendations to Government for reform, codification, simplification and consolidation of legislation.

93.     Subsections (2), (3) and (4) require the Secretary of State to appoint a chairman and four other Commissioners. The chairman must be a person who holds the office of judge of the High Court of Northern Ireland; and of the other Commissioners one must have experience as a barrister, one must have experience as a solicitor and one must have experience as a teacher of law in a university. The remaining Commissioner must be a lay person.

94.     Subsection (5) requires the Secretary of State to consult with the Lord Chancellor, the First Minister and deputy First Minister and the Attorney General for Northern Ireland before appointing Commissioners. Subsection (6) requires the Secretary of State in exercise of the powers of appointment to secure, as far as possible, that the Commission is representative of the community in Northern Ireland. Subsection (7) and Schedule 9 make further provision about the Commission, including Commissioners' tenure, salaries, staff and financial provisions.

 
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Prepared: 19 December 2001