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Standing Committee F
Thursday 14 February 2002
[Derek Conway in the Chair]
The Chairman: I congratulate hon. Members on their ingenuity in making it here today. We are now quorate, and we can proceed.
Clause 80 ordered to stand part of the Bill.
New clause 5
'The Northern Ireland Act 1998 (c.47) shall be amended as follows-
(1) In section 75(3) after paragraph (c) insert-
''(ca) Northern Ireland Prison Service, Office of the Director of Public Prosecutions, Office of the Lord Chief Justice, Office of the Lord Chancellor, Office of the Crown Solicitors, Office of the Criminal Justice Inspectorate, Northern Ireland Law Commission.''.
(2) In section 76(7) after paragraph (f) insert-
''(fa) the Northern Ireland Prison Service, Office of the Director of Public Prosecutions, Office of the Lord Chief Justice, Office of the Lord Chancellor, Office of the Crown Solicitors, Office of the Criminal Justice Inspectorate, Northern Ireland Law Commission.''.'.-[Mr. Mallon.]
Brought up, and read the First time.
Mr. Seamus Mallon (Newry and Armagh): I beg to move, That the clause be read a Second time.
The clause is straightforward. It seeks to amend the Bill to bring the agencies of the criminal justice system within the remit of equality legislation by including the agencies in section 75 of the Northern Ireland Act 1998. Given their important functions, it is entirely appropriate that those agencies should be bound by that statutory duty.
One of the issues that has most undermined public confidence in the justice system is the perception that those in positions of authority do not reflect the community that they serve. Indeed, it seems that they believe that they are outside the remit of the requirement for equality. The fact that a justice review was included in the Good Friday agreement reflected that view. Moreover, I believe that the full implementation of the justice review recommendations will lead to the creation of a justice system that can be identified with and owned by all. In particular, holding the justice system to the same standards of equality proofing that bind government is logical. It will play an important part in the process of confidence building.
I am certain that it will be argued that the exclusion of those bodies is justified on the basis that they perform quasi-judicial functions. However, hon. Members will recognise that it is the policies and procedures of the agencies that would be equality proofed, not individual judgments. As policies and procedures apply, as far as possible, across the board to all agencies in the north of Ireland, and to every Government Department, I believe they should apply
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also to the bodies that I have specified in the new clause.
It seems anomalous that the agencies set up by the Government should not be subject to the same equality provisions as the Government Departments that will implement the Bill. It is illogical that those Departments that are responsible for the fundamental decisions that will be required to be made under the remit of section 75 of the Northern Ireland Act should not be subject to the same remit.
The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Desmond Browne): My hon. Friend anticipates some of the arguments that I may deploy, but I reassure him that I shall not use the word ''quasi-judicial'', other than in this intervention. Will he consider the requirement for the Director of Public Prosecutions to make decisions on individual cases on merit? Is he concerned-or has he considered-that the requirement on the DPP to apply the considerations in the new clause in individual cases might have an impact on his impartiality?
Mr. Mallon: I spoke privately to the Minister about that before we came to the Committee, because it was one of the issues that worried me. I am still not clear about it, and I would welcome advice.
Section 75 applies to policies and procedures alone, and I cannot see how the DPP or his office could make a convincing case that their policies and procedures should not be equality-proofed. I was at pains to say that the provision would not apply to individual cases brought by the DPP. However, if what we do and what we have already done in many instances in the north of Ireland is to be consistent, the policies and procedures of the DPP's office and of the other offices in the new clause must comply with the equality duty in section 75.
I asked the Minister privately whether there were technical or arcane legal reasons why section 75 should not apply, and I should like to hear about any such reasons. It would contribute much to the public's perception of the agencies if they came within the remit of section 75.
Mr. Browne: My hon. Friend is correct that we had a private conversation, and I endeavoured to give him a quick response to his legitimate question about whether there was a legal bar-I interpreted that to mean a legislative bar-to his proposals. I must engage him on the issue, however, because the DPP's essential function is prosecutorial. Whether or not one can restrict the application of section 75 in the way that my hon. Friend proposes is a moot point. Regardless of whether one could do so, I am concerned that such a requirement on the DPP would spill over into his decision-making function in individual cases. I do not ask my hon. Friend to solve that dilemma, but to discuss and consider it.
Mr. Mallon: I take the Minister's point, but I am not competent to give examples of the situation that he describes-I simply cannot envisage any. Nor can I envisage the DPP and his office working properly if their policies are not in accord with the equality duty in section 75. I would be greatly disturbed if I thought that the policies or the procedures of the DPP's office
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did not comply with that duty. I fail to see the distinction between the operation of the policies and the operation of the procedures, or how those could stray into and affect individual cases in relation to the equality duty. People with more experience of dealing with legal matters might be able to advise us as to how that might happen. I do not see how policies would not be amenable to the equality duty or would affect a case in a detrimental way. The same applies to procedures. I cannot understand why the procedures of the DPP's office and the other agencies would be such that they would not be required to be in accord with the equality duty.
The Minister asked for an answer, but I cannot give him one. I cannot envisage circumstances in which anyone would suggest that the agencies involved in criminal justice should not be required to be compatible with the greatest element of justice in our system, which is the duty on equality in section 75 of the Northern Ireland Act 1998.
Lady Hermon (North Down): As you know, Mr. Conway, I am absolutely delighted to have followed in your footsteps to reach the Committee safely this morning.
I have two points. It may help the hon. Gentleman to know that, under the Northern Ireland Act 1998 (Designation of Public Authorities) Order 2000, the Northern Ireland Court Service is designated under section 75 of the 1998 Act. However, if I were to follow the logic of his argument, would it not be correct to say that the office of the police ombudsman of Northern Ireland should also be included in the equality provisions in section 75?
Mr. Mallon: I believe that all parts of the administration should be subject to section 75, and have argued for that forcefully for the past three years. It is remarkable that aspects of the administration that one would have thought would be no problem, such as universities, have adamantly stayed outside the section 75 duty. We may have persuaded the universities-that is a gentle way to put it-that they were wrong.
I see no reason why the procedures and polices of the ombudsman's office are outside the duty, and no reason why any organisation, especially those that deal with justice, should not be under the remit of that duty.
Mr. Browne: Will my hon. Friend give way?
Mr. Mallon: I will give way, although I suspect that a subtle trap is about to be sprung.
Mr. Browne: I am not sure whether I am known for my subtlety.
Our interesting discussion is a result of the intervention made by the hon. Member for North Down (Lady Hermon), and I am not intervening because I disagree with anything that has been said by her or my hon. Friend. I merely want to ensure that he understands that section 75 of the 1998 Act cannot be restricted to policies and procedures. It applies to the functions of a body. I mention that as a matter for debate, not as a block to what he sets out to achieve. I
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just want to extend the debate to include some of the relevant offices, with an understanding of their functions, which sometimes affect individuals.
Mr. Mallon: This is the heart of the matter that needs to be resolved. I understand what the Minister says, but surely the terms of the required proofing would not apply to specific cases; what must comply are, first, the policies of an organisation and, secondly, the procedures. Stemming from that, those policies would be applied to individual cases, as would the procedure. As to the principles in section 75, how can it be wrong for the principles of equality established in relation to policies and procedures to be applied practically in individual cases?
It is not as if the equality duty would be impartial of itself-quite the opposite. Policies begin to mean something only when they are applied. The highest standard of application is surely the best. The same applies to procedures. They may be efficient and may look good on paper, but they, too, will surely work more beneficially if the highest standard is applied to them. The highest standard of equality is the one specified in section 75.
I remain convinced that applying that standard would be right and that, regardless of any arcane twist of illogicality, it should be in the Bill. I cannot foresee circumstances, in relation to how the Director of Public Prosecutions or ombudsman perform their duties, in which the requirement for equality would be detrimental to the actions of their departments.