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Session 2001- 02
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Standing Committee Debates
Justice (Northern Ireland) Bill

Justice (Northern Ireland) Bill

Column Number: 157

Standing Committee F

Tuesday 5 February 2002

(Morning)

[Mr. Derek Conway in the Chair]

Justice (Northern Ireland) Bill

Clause 31

Director of Public Prosecutions

10.30 am

Mr. Seamus Mallon (Newry and Armagh): I beg to move amendment No. 200, in page 18, line 32, at end insert—

    '(3A) Subject to subsection (8), the Director and Deputy Director shall be appointed by open competition.'.

First, I express my thanks to the hon. Member for Reigate (Mr. Blunt) for moving the two amendments on Thursday afternoon that were tabled in my name. I appreciate it, because I had to leave early.

Amendment No. 200 is simple and straightforward. Subject to subsection (8), it would require that the Director and Deputy Director of Public Prosecutions should be appointed by open competition. It seems remarkable in this day and age that such amendments should be necessary, especially as the review of the criminal justice system in Northern Ireland is emphatic on the subject. The review states:

    ''It is particularly important that the process of appointing the head of the Public Prosecution Service is insulated from any possibility or appearance of political influence.''

The review went on to recommend that

    ''the appointment process for the head of the Public Prosecution Service and deputy be through open competition, with a selection panel, in accordance with procedures established by the Civil Service Commissioners for Northern Ireland.''

There can be no doubt as to the wishes of the review. Not only does it specify what it wants, but it specifies in detail how that might happen.

I believe strongly that it is an important issue. If we are to take a new approach to the criminal justice system with regard to prosecution, the selection of judiciary and so on, why must we keep the anachronism of the DPP not being appointed by open competition? There must be a reason. I could guess at two or three, but I shall wait to hear what it is. I look forward to hearing why the appointment should not be through open competition, because under the new dispensation in the north of Ireland almost all such posts are advertised and made through open competition, with the help of the expertise of the Civil Service Commissioners.

We should know why the Bill does not state that the appointments will be made by open competition. Most importantly, I ask the Minister to give his assessment of the effect that not having open competition for the position might have on public reaction to the Bill.

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Mr. Edward Garnier (Harborough): Before the hon. Gentleman concludes, will he outline what he means by ''open competition'' in this context? It is an easy expression to use, but I would be interested to hear a little about the thought process behind its use in the amendment.

Mr. Mallon: I claim no credit for the thought process, as I relied exclusively on the recommendation in the criminal justice review. It states without ambiguity that

    ''the appointment process for the head of the Public Prosecution Service . . . be through open competition, with a selection panel, in accordance with procedures established by the Civil Service Commissioners for Northern Ireland.''

I believe that it is right for all such senior posts to be filled by open competition. That may take a little longer and involve more work for others, but it is ultimately the only way in which transparency and openness can be seen to exist.

I shall end with a more general remark. From our debates and deliberations last week, it was clear that hon. Members from both sides of the Committee recognised the imbalance in the judiciary, and believed that the community must be reflected in all the major changes. If we do not have open competition, it will be hard to avoid the suggestion that the old boy network is retaining its influence, and that will not achieve transparency, be to the good of the Bill and the process that it initiates, or be in the interests of fairness.

That may be a jaundiced view, but it is widespread. The amendment would signpost to the community, especially the part of it that I represent, the fact that change is in the air. If we retain the anachronism of appointing by other means, the signposts will point in another direction—in the direction of a process that is not transparent, that has not been especially successful, and that has forced us into a position in which we have to deal with such a Bill.

Mr. Crispin Blunt (Reigate): I thank the hon. Member for Newry and Armagh (Mr. Mallon) for his kind remarks about our moving his amendments in his absence. If the position were reversed at some stage—in the unlikely absence of all my colleagues and me—I should be grateful if he would return the favour, even if he disagreed with the amendments, so that they could at least be debated. However, I hope that we will not have to rely on him.

The hon. Gentleman's amendment seems eminently reasonable, as the idea behind it is contained in the review. That poses questions as to why the idea was not included in the Bill. Is there a hidden agenda floating around in the background? Most reasonable people would clearly be inclined to support the hon. Gentleman's proposal, and I look forward to the Minister's explanation of why there is nothing similar in the Bill.

There are questions about the relationship between the Attorney-General and the Director of Public Prosecutions and—because the Attorney-General will answer for the DPP in the Assembly—about the confidence that must exist between them. There is, however, no relationship between the Attorney-General's term of office and that of the DPP, and,

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under the Bill, an Attorney-General can appoint a DPP who may remain in office permanently until the age of 65. We shall discuss the age limit in the clause stand part debate, and I shall be interested to hear from hon. Members who contributed to our debate on the age limit for the Attorney-General. There are, however, particular problems in this case because the DPP's term of office is unlimited. The review suggests that the DPP should hold his post for a fixed term or until he reaches a statutory retirement age, which leads us to a discussion of the relationship between the Attorney-General and the DPP, which I shall explore in the clause stand part debate.

On the amendment, paragraph 4.176 of the review noted:

    ''It is particularly important that the process of appointing the head of the Public Prosecution Service is insulated from any possibility or appearance of political influence.''

In the light of that recommendation, I look forward to the Minister's reply to the debate. I should add that the Opposition are inclined to support the amendment tabled by the hon. Member for Newry and Armagh.

Mr. Peter Kilfoyle (Liverpool, Walton): I listened with interest to the hon. Member for Newry and Armagh, and I was struck by his arguments against the old boy network and for widening the net when making an appointment. This may or may not be relevant, but his words brought to mind the Government's emphasis on exactly the same arguments in 1997. It was noteworthy that they took exactly the same direction as the hon. Gentleman in their first piece of legislation, which enabled the Lord Chancellor to draw the permanent secretary from a wider selection of people. I look forward to the Minister's comments on the Government's consistency in these matters. I appreciate that we are talking about an entirely different function from that exercised by the permanent secretary in the Lord Chancellor's Department, but the Government must be careful about the mixed messages that have been sent out over time.

Mr. Garnier: I take the point that the hon. Member for Liverpool, Walton (Mr. Kilfoyle) made, but despite the words of my hon. Friend the Member for Reigate, I am not convinced that I am sure of the amendment's implications. I asked the hon. Member for Newy and Armagh what he meant by open competition, and I have yet fully to understand what he thinks it means, although the Minister may well have a better idea.

The net into which the Attorney-General can dip for candidates is fairly limited because the legal profession in Northern Ireland is small in comparison with that in England and Wales and, I dare say, in Scotland. Furthermore, any candidate from within that small class of people must be a barrister or a solicitor of at least 10 years' standing, so there will not be a very big pool into which to dip the net.

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The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Desmond Browne): I should just make it clear that the Government accepted the recommendation that there should be open and fair competition in the context of the implementation plan. For the very reason of definition, the commitment to open and fair competition does not lend itself to statutory expression.

Mr. Garnier: The Minister and I are pushing at the same door. I do not wish to be a pompous lawyer.

Mr. Blunt rose—

Mr. Garnier: Before my hon.--and, I am sure, had he remained in the armed forces for longer, gallant--Friend speaks, I caution the Committee against getting overenthusiastic about warm words. They have eventually to be interpreted by a court or by those who are adjudicating the competition, and we need to be careful.

10.45 am

Mr. Blunt: The answer to the question of my hon. and learned Friend and to that of the Minister is clear. The recommendation is that the appointment process be

    ''through open competition, with a selection panel, in accordance with procedures established by the Civil Service Commissioners for Northern Ireland''.

I am not certain why that cannot appear in the legislation.

Mr. Garnier: We are moving into an era of aspirational legislation. It is becoming a bit continental—I do not mean that in a disparaging sense. In the legislative system of the United Kingdom, black letter law does not, or should not, include clauses that express hopes or desires. It should say what the law is and what a person or a public body may or may not do. If we add the expression ''open competition'', I am not sure that that will assist in the selection process. For example, the DPP for England and Wales was selected on merit. He happens to be an old Etonian and to have gone to Oxbridge. Nowadays, many members of the selecting class deem both of those educational advantages to be disadvantages. None the less, David Calvert-Smith, QC, an extremely good criminal barrister, has performed his job as DPP in this part of the UK with great aplomb and skill. I have no doubt that whoever chooses the DPP for Northern Ireland will be able to select the best man or woman, regardless of whether the words ''open competition'' appear in the Bill. We do not need to hobble the selectors by adding words that make us comfortable that we have done something good, but which achieve little.

 
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