Justice (Northern Ireland) Bill

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Mr. Mallon: What the hon. Gentleman says is interesting. He described the distinction between superintendence and directions as a grey area, but we must consider more than the word ''directions''. The DPP is

    ''subject to any directions given by''

the Attorney-General, which is fairly unambiguous.

Will the hon. Gentleman refer to the anomaly that only the superintendence of the Attorney-General applies in England and Wales, yet pre-devolution in Northern Ireland the superintendence and direction of the Attorney-General applies, and post-devolution neither will apply? That is part of my problem in trying to figure out, if only for the sake of interest, what the DPP could do if he had been in the office for a long period to merit the Attorney-General having a different power from that in England and Wales?

Mr. Blunt: I am grateful to the hon. Gentleman, as his intervention goes precisely to the relevant issues. The relationship between the Attorney-General and DPP in England relates to superintendence and not to directions, but the Bill refers to superintendence subject to directions. I am not an expert, but I suspect that that is because one can read into the word ''superintendence'' a degree of necessity to respond to the directions. However, it is opaque. We are dealing with the meaning of words and the weight that will be given to them. Presumably, if actions become open to judicial review, judgments will be made about what is or is not reasonable with respect to superintendence. The Government have been specific in using the word ''directions'' in the Bill, which apparently is different from what happens in England at present. The approach is, I think, a reflection of the difficulty of trying to make the Bill clear about exactly what has been established by practice.

Lady Hermon: I want to clarify some of the greyness and opaqueness around the word ''superintendence'', which was studied in some depth in the Glidewell report. The review of the criminal justice system in Northern Ireland commented at paragraph 4.104:

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    ''As for what is meant by 'superintendence', the issue is examined in some depth by the Glidewell report. In short, the relationship between Attorney General and DPP is in practice primarily consultative in nature, enabling the Attorney to retain a general overview of prosecution policy and be aware of potentially contentious or important cases''.

Mr. Blunt: None of those words are absolute. The passage states that the relationship is primarily consultative—which, of course, it will be, normally. The Director of Public Prosecutions will not pursue a prosecution policy such as will cause sufficient public concern to lead to representations being made to the Attorney-General in this place. However, although the relationship is primarily consultative, the language used in the provision allows for the Attorney-General to do something about it if such a situation were to arise. That approach is absent from the Bill with respect to the devolved administration of justice.

We are now leaping forward to other clauses, including clause 42(1), to which the Minister drew the Committee's attention, which states:

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

Mr. Garnier: We are having an interesting discussion, but I am not sure that it is terribly helpful to the development of public policy with respect to the relationship between the new Attorney-General for Northern Ireland and the new Director of Public Prosecutions. We are becoming bound up in a problem of our own making, which is not necessarily conducive to the development of good legislation.

Clause 40 deals with the interim arrangement. The current regime allows the Attorney-General for England and Wales to double up as the Attorney-General for Northern Ireland with, so to speak, a colonial direction of the Director of Public Prosecutions for Northern Ireland. As a Conservative Member of Parliament, I use the word ''colonial'' deliberately—exaggerating to make my point. What I have outlined is reflected in clause 40. I ask hon. Members please not to be upset about my use of the word ''colonial''; I used it deliberately.

With the move into the new dispensation, under which justice will have been devolved to Northern Ireland, the relationship between the Advocate-General for Northern Ireland—currently called the Attorney-General for Northern Ireland—and the Director of Public Prosecutions will be one of greater equality. Those two will consult each other on any matter for which the Advocate-General for Northern Ireland is accountable to Parliament.

In any of the consultations a tripartite relationship of some maturity must be presupposed. I know that you, Mr. Conway, are about to invite me for a consultation without coffee for going on for too long. My banging on for so long about the tripartite relationship between the Attorney-General, the Advocate-General and the DPP suggests that even I am not being helped by the discussion. Perhaps we should move on.

Mr. Blunt: The discussion was important in that it prepared us for what follows, and I am grateful to my hon. and learned Friend for drawing attention to

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clause 40. Although the clause places a requirement on the Attorney-General for England and Wales, who is currently also the Attorney-General for Northern Ireland--he will be the Advocate-General for Northern Ireland post-devolution--to consult with the DPP, there is no superintendent or directive relationship between those two posts. However, there is a consultative arrangement.

11.45 am

Presumably, because the duty appears in the Bill, it might be possible to raise issues in this House about the prosecutorial policy in Northern Ireland post-devolution. It will be interesting to see where that leads us, and I should be grateful to the Minister for some indication. Given clause 42(4), if there were concern, post-devolution, about the prosecution policy in Northern Ireland, would it be appropriate in this House to question the Advocate-General for Northern Ireland on the conduct of that policy? That might provide the constitutional safety valve to which my hon. and learned Friend referred. The degree of independence given to the DPP after devolution is such that problems might arise because of the difficulty of getting him to account for the policy that he follows. That concern leads into my worry about the length of time for which he is appointed, which we shall debate shortly. I look forward to the Minister's response.

Mr. Browne: I accept the invitation to say a few words. As we might return to the matter in the context of other clauses, I shall try not to widen the debate so that it becomes unmanageable, as the hon. and learned Member for Harborough, perhaps, fears.

The hon. Member for Reigate referred to clause 42(4). A similar provision—clause 42(3)—relates to the Attorney-General for Northern Ireland. To understand the difference between superintendence and direction pre-devolution and post-devolution, one must accept that the decision for there to be no superintendence post-devolution clearly implies an element of independence recommended by the review in respect of the Director of Public Prosecutions for Northern Ireland. One cannot ignore the political position of post-devolution Northern Ireland. The review's recommendations were intended to reflect that reality.

The independence of the Director of Public Prosecutions in post-devolution Northern Ireland will be an attribute that has to be jealously guarded and clearly protected in that very political environment. That is what the provisions seek to do, and that is why there is a difference—it is not an accident. In consultation on the review and on the Government's interpretation of the review in terms of the draft Bill and the implementation plan, there was almost universal approval from Northern Ireland of the structure that had been designed to achieve and protect that element of independence.

The question put by the hon. Member for Reigate then arises: how are the Attorney-General for Northern Ireland and the Advocate-General for Northern Ireland to be accountable to Parliament? The provisions relating to their accountability are set

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out separately in the Bill. The consultative relationship between them and the Director of Public Prosecutions is designed not to interfere with the DPP's independence. Therefore, the answer to the hon. Gentleman's question is that their accountability to the Assembly and to Parliament respectively cannot be in contradiction to the independence of the DPP, which is clearly set out in clause 42(1).

No doubt, due to their accountability, the Attorney-General and the Advocate-General will be asked questions that relate to policy decisions that might be made by the DPP. However, neither the Attorney-General nor the Advocate-General will have the power to direct the DPP in relation to that policy.

Mr. Mallon: We have been debating this for some time, but clarity has not yet descended on me. I find it difficult to understand the reasoning. The hon. and learned Member for Harborough probably got as near to it as we are going to get when he described the ''colonial'' aspect of the legislation as it applies to Northern Ireland. I would have been much too reticent to make such a statement.

If the legislation before devolution were the same as that in England and Wales, I would probably save myself and everybody else a lot of trouble. However, there must be a reason why, in the period before devolution, something that does not apply in England and Wales, exercisable by the Attorney-General, is introduced into the Bill. Words do not appear in legislation for no reason. The concept of ''superintendence'' is logical because it is compatible with the situation in England and Wales. However, to add the phrase

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

that is, the Attorney-General, makes the provision at odds with that which applies through the Attorney-General in England and Wales and completely at odds with that which applies post-devolution. That is part of the difficulty. If there were another bite of the cherry, and the phrase

    ''subject to any directions given by him''

were not there, there would be consistency in terms of the Prosecution of Offences Act 1985.

 
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