Justice (Northern Ireland) Bill

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Lembit Ípik (Montgomeryshire): What I find interesting about the new clause is the principle put forward by the hon. Member for Newry and Armagh (Mr. Mallon). The Minister's points may be technically correct. I do not want to criticise him, but he sounded a trifle pedantic. If the principle is accepted, there is a case for the change that the hon. Member for Newry and Armagh proposes.

Mr. Browne: Without wanting to reinforce my growing reputation as a pedant, I want the Committee to consider whether the application of the section to the DPP might impinge on the duty of impartiality in an individual case. That might seem pedantic to us, but if the influence of such a provision on the DPP's duty to examine the evidence on its merits and make an independent, impartial decision affects the decision whether to prosecute someone, the matter will be far from pedantic. It will be highly significant in Northern Irish society.

Lembit Ípik: The Minister will need to show how building in the need to have due regard to the promotion of equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status and sexual orientation and between men and women generally can compromise an organisation's ability to do its job. I suggest that the opposite applies. It would give an assurance to people in those groups-all of us are in one or more of them-that they would not lose out on account of prejudicial behaviour or attitudes displayed by any of the groups or individuals listed in the new clause. I thought that the Minister sounded pedantic

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because I do not understand why the Government should resist including something that is already there by precedent as a result of the Northern Ireland Act 1998 for comparable groups and organisations. Why is the Minister not willing to extend it by using what could almost be regarded as a housekeeping amendment to bring all the other organisations into line?

If this new clause or something like it were implemented, it would be unlawful for a public authority to discriminate or to aid or incite another person to discriminate against a person or class of persons on the grounds of, for example, religious belief or political opinion. New clause 5 seems to be an insurance policy against discrimination rather than a barrier to equal treatment. Can the Minister explain why he thinks that it is a barrier, as so far he has not done so?

Mr. Browne: The new clause would amend the Northern Ireland Act 1998, designating the listed organisations for the purposes of sections 75 and 76. Section 75 creates a duty on public authorities to have due regard to the promotion of equality of opportunity between each of the nine categories of person. I thank the hon. Member for Montgomeryshire (Lembit Ípik) for listing them. Section 76 makes it unlawful for a public authority to discriminate or to aid or incite another person to discriminate on the grounds of religious belief or political opinion.

My hon. Friend the Member for Newry and Armagh said, in essence, that it is important in the context of what the Bill seeks to achieve to give a clear message on the issue. I welcome his general welcome for the Bill and the implementation of the review provisions. He is supported by the hon. Member for Montgomeryshire. The Government, who were responsible for introducing the provision in the 1998 Act in the first place, share that view. However, care needs to be taken in imposing statutory duties. I sought, in relation to one of the categories, to engage the Committee in debate as to whether that careful attention in relation to the DPP might reveal issues that were at least worthy of consideration. When I intervened, I did not say that that would necessarily be a block to the application of the provisions to the DPP. However, I was seeking to engage people in debate about whether they had thought the process through, particularly in relation to my hon. Friend's concerns about the section 75 obligations. I pointed out that they could not be restricted in the way in which he thought because of policies and procedures. If it were simply a matter of policies and procedures, with no concern about possible consequences, it might be more straightforward.

Some of my hon. Friend's concerns, which are reflected in the new clause, have been dealt with already. For example, the Northern Ireland Prison Service is already bound by sections 75 and 76 of the 1998 Act by virtue of being an agency of the Northern Ireland Office. It does not require separate designation. The Lord Chancellor and his Department are already bound by section 76, by virtue of section 76(7)(a) and (b). The Lord Chancellor

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does not need to be covered by section 75 because, as the hon. Member for North Down said in an intervention, the Northern Ireland Court Service is covered instead.

I understand that there is some confusion, which is reflected in the new clause, about who and what is covered under the important sections of the 1998 Act. That shows the importance of addressing the difficulties of getting the designation right. The other bodies listed would have to be considered individually to assess the extent to which they can affect equality of opportunity and community relations, consistent with their primary duties. That is relevant to the office of the Director of Public Prosecutions, which primarily carries out prosecutorial functions. I have no doubt that other administrative functions are appended, but most of the DPP's policies relate to prosecutorial functions and are designed to deal with individual cases. Those cases are decided by the DPP on merit, and there could be difficulties-some would say that there will obviously be difficulties-in reconciling the principle of impartiality and the duty to pay regard to equality considerations in the DPP's decision-making processes.

I repeat, because it is an important point, that section 75 applies to bodies designated in carrying out the functions. Although policies and procedures are covered, the provision is wider than that. I also repeat that the DPP's essential function is a prosecutorial one. Insufficient regard has been paid to that point, although I have tried to widen the debate.

What value can be added by designating the Lord Chief Justice's office, which comprises only three people? That is another legitimate question. Nor have I become any clearer, between the time the new clause was tabled and this debate, about the scope for the Crown Solicitors' work to affect equality of opportunity.

In respect of the criminal justice inspectorate, we should also reconsider what value would be added by designation. It might be more straightforward in the case of the Northern Ireland Law Commission, but some consideration must be given to including that body in relation to section 75. Detailed consideration has been undertaken of all the bodies that are part of the list to which the sections already apply.

For the reasons that I have given, we should take full account of the implications of bringing within the scope of the statutory duties under the 1998 Act the agencies listed in the new clause. If, having considered every case, we believe that there is scope for them to affect the quality of community relations, we shall designate them under section 75(3)(a) and (b) of the 1998 Act. If appropriate, we shall table an amendment to section 76 in due course. We are not ruling out the prospect of amendments in the context of the Bill's progress. On the understanding, therefore, that we will look into that in more detail, I ask my hon. Friend to withdraw his new clause.

10 am

Mr. Mallon: The Minister is right that there is some confusion on my part. The core of the problem seems to be his assertion that it would be possible, for what

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he described as consequences of policy and procedure, for adherence to the equality duty to impinge on individual cases. That seems to suggest that he believes that a case that must be decided on merit-I am at one with him on that; the DPP must decide on merit-could somehow be weakened by adhering to the equality duty. I think that that is the Minister's suggestion, but I am still keen to find out how the merit of a case that has been decided by the DPP could be weakened if the equality duty were applied.

Mr. Browne: I shall try to be more specific, because we should try to tease out the issue.

The designation under section 75 of the 1998 Act would require the DPP, for example, to have regard to the desirability of promoting good relations between persons of different religions. Some thought must be given to how that fits into the process of deciding whether there is sufficient evidence to prosecute someone and whether it is in the public interest to do so.

What is the balance between the other duties of the DPP and this new statutory duty? I am not suggesting to my hon. Friend that it is impossible to reconcile the two, but it is an important issue.

Mr. Mallon: I thank the Minister for those remarks. Of course, in those circumstances, the DPP must surely decide on merit. There is no doubt about that. However, the need to make a decision on merit does not prevent him from applying the other requirements under section 75. It is stretching the argument too far to suggest a hypothetical situation in which the DPP is wrestling to decide a case on its merits and at the same time wondering what the effect might be on community relations. I cannot imagine any DPP who is worth his salt looking at a case in that way. I am grateful to the Minister for his intervention, but I am still not convinced.

I want to make two other points. The first concerns perception. We have a new Bill that introduces a new approach to justice in a new political dispensation in a new millennium and century-

Lady Hermon: I do not want to prolong the discussion, but I want to put one argument to the hon. Member for Newry and Armagh, because the Minister made a fair point. Section 75 of the 1998 Act states:

    ''A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity . . . between men and women''.

If the DPP has more men to prosecute than women, how can he possibly comply with section 75? It is incompatible with his duty to prosecute.

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