Justice (Northern Ireland) Bill

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Lady Hermon: May I clarify one point? Does the hon. Gentleman gain any consolation or reassurance from the short phrase in clause 40(2):

    ''but a failure to comply with this subsection does not affect the validity of anything done by or on behalf of the Director''?

Does that give him some consolation, if the Minister is not prepared to support the amendment?

Mr. Mallon: The hon. Lady asks a good question, but I would prefer to think for a little while before I answer. The Minister said earlier that something did not lend itself to legislative expression. In that respect, I continue to wonder why ''superintendence'' is added to ''direction'' by the Attorney-General. I have heard nothing that leads me to believe that there is no reason for that wording. I simply fail to see why the Bill is not in accord with the legislation that applies in England and Wales. The Minister will know that I am always

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at pains to ensure that Northern Ireland is at one with England and Wales--we do not even aspire to be at one with Scotland.

Mr. Browne: The provisions in the Bill are a restatement of the provisions in the 1972 order. They are merely a restatement of the status quo—the words are those used in the 1972 order.

Mr. Mallon: The Minister is absolutely right, but the status quo is the very thing that I am complaining about. The amendment relates to a status quo that will not last for ever and that is at odds with the powers of the Attorney-General in England and Wales. I am sure that we shall have an interesting debate about the situation post-devolution in respect of the DPP, his relationship with the Attorney-General and other aspects of the Bill. However, the apparent need for the wording relating to direction by the Attorney-General puzzles and worries me. If one regarded the matter in a colonial sense, as the hon. and learned Member for Harborough said, one could accept the logic of it even if one deeply disliked the lessons of it. That is not the case, however, so we shall have to remain bemused until we debate later clauses.

In the interests of speed and because I am now a little confused about the matter, and with the hope that I shall be able to table an amendment to clause 40 at a later date, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Patsy Calton (Cheadle): I beg to move amendment No. 156, in page 19, line 16, after 'finances', insert ', management'.

I shall be much briefer than speakers to previous amendments. This is a probing amendment. Will the Government clarify whether the Director of Public Prosecutions will be required to answer questions relating to case conduct? I suspect that that would not be covered in the phrase

    ''finances and administration of the Service''.

The Assembly should be able to question the Public Prosecution Service about the way in which it conducts cases. I look forward to the Minister's reassurance that there will be a way to probe the conduct of cases.

Mr. Browne: I am grateful to the hon. Lady for explaining the amendment so concisely. I had thought that the word ''management'' was covered by the word ''administration'', but I suspected that the debate might spread to the accountability of the director to the Assembly. One can be in no doubt about the review's recommendation that the independence of the director should not be undermined by making him accountable to politicians for his decisions on any individual cases. As we have already discussed, the review group decided that the proper channel for accountability to the Assembly on prosecution policy was the Attorney-General for Northern Ireland. That accountability for policy will not be allowed to undermine the independence of the Director of Public

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Prosecutions. The review considered and discarded other mechanisms on the ground that they might infringe the director's independence. I would argue that to make the director accountable to the Assembly for the management of, and decisions on, individual cases would undermine his independence and lead to improper questions being asked. The Bill seeks to avoid that.

I do not know whether that satisfies the hon. Lady or whether the independence of the Director of Public Prosecutions is that important to her or her party, but it is certainly important to the Government, which is why we shall resist the amendment. As I have already said, the word ''management'' is just a subdivision of the word ''administration'', so I hope that she will withdraw the amendment.

12 noon

Lady Hermon: I regret to find myself disagreeing with the Minister once again. I wish to speak in support of the amendment tabled by the hon. Members for Cheadle (Mrs. Calton) and for Montgomeryshire (Lembit Öpik).

We are keen to ensure that the director is as accountable as possible without compromising the independence of the prosecution service or disclosing details about individual cases. If the Minister cares to reflect on paragraph 4.163 of the review, he will see the following recommendation:

    ''We recommend that the head of the prosecution service should be accountable to the appropriate Assembly Committee for financial and administrative matters relating to the running of the service.''

I accept that those words are reflected in the Bill. However, I should like the Minister to consider going a little further to include the word ''management'' in the Bill. His fears that the Assembly might encroach on the independence of the service are dealt with in the review, which continues:

    ''In this event it would be important that Standing Orders made clear the limitations on questioning which might impinge on individual cases.''

It does not seem to be beyond the bounds of possibility that the Assembly might draft Standing Orders that would allow management matters, but not individual cases, to be questioned.

Mr. Browne: It now appears that there are two interpretations of the amendment's import. As I understand it, the hon. Member for Cheadle seeks to provide for a mechanism whereby the DPP will be accountable to the Assembly for the management of individual cases, whereas the hon. Member for North Down seeks the opposite. My answer to the latter is that the word ''management'' is subsumed in the word ''administration'', so it is unnecessary to insert it. ''Administration'' covers ''management'' in the sense in which it is meant by the hon. Member for North Down. In the sense in which the hon. Member for Cheadle defines ''management'', the amendment is resisted. I hope that that is clear.

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Lady Hermon: I appreciate the Minister's explanation. It is enormously helpful that we all now know that ''management'' is included in ''administration''.

Mrs. Calton: In those circumstances, it is right that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Blunt: I do not intend to go over the ground that we have already explored about the independence of the DPP in the devolved settlement, but some issues arise from it. I shall clear one out of the way. Subsection (9) places a duty on the Secretary of State to pay for the DPP. I assume that that refers only to the pre-devolution state of justice, as covered in our previous discussions. I should be grateful if the Minister would reassure me about that.

Mr. Browne: I am happy to give the hon. Gentleman the reassurance that he seeks.

Mr. Blunt: I am grateful. The clause will cease to operate after devolution, so the responsibility for paying for the DPP, which was addressed in the review, will then revert to the Legislative Assembly, which will vote on the necessary moneys. It will therefore be the responsibility of the First Minister and Deputy First Minister.

The review offered two choices on the appointment of the DPP: to appoint him either until a statutory retirement age or for a fixed term. The Government have come down in favour of a statutory retirement age of 65, which takes us back to the arguments that we had at a previous sitting about whether 65, 70, 75 or another limit would be appropriate for an individual position. This appointment is different due to the nature of the relationship between the Attorney-General and the DPP, and the period that can be spent in office.

We have explored the subject of independence. The Committee can safely conclude that, under the devolved system, the DPP is plainly more independent than he was under the pre-devolved settlement of justice. Within the period up to a DPP's retirement age, his framework of policy will be, in effect, indefinite. It will not relate to the term of office of the Attorney-General or of the Parliament, as is the case in England. Under the devolution of justice settlement, we have made the DPP more independent.

That has consequences. The DPP can be removed only as a result of misbehaviour or an inability to carry out his functions. Therefore, if the DPP follows a specific prosecutorial policy in deciding which cases to bring, it is difficult at this stage to find a remedy for it unless it stretches into the area that can be defined as misbehaviour. There is therefore a problem with appointing the DPP for an indefinite period. We are trying to find a way to institute checks and balances on a DPP who is wholly independent and responsible for

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the conduct of prosecutions, and who makes decisions about whom and what cases to prosecute. It is difficult to find a remedy.

Shortly, we shall discuss victims' right to information. At the moment, no one has any such rights. It is extremely difficult—impossible, as far as I can see—to bring the Director of Public Prosecutions to heel in the informal way that happens in the current set-up, because of the relationship between the Attorney-General and Parliament. That is why I am drawing attention to the issue of the set term to the age of 65.

At least a term is set--although there is a different debate to be had in that the director could still be perfectly capable of carrying out his functions at 65, giving rise to questions of judgment about the appropriateness of choosing that age. I should have preferred the Government to come down on the side of setting a term of five, 10 or however many years for the DPP, instead of an age limit. Why did they go for an age limit rather than a term limit, given that the director's independence is so firmly entrenched in the Bill and the devolved system? We may want to return to the issue on Report.

 
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