Justice (Northern Ireland) Bill

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Mr. Mallon: I thank the Minister for recognising that there is a problem. I am speaking off the cuff, but one way would be for the DPP and deputy DPP to resign formally at implementation, as has happened elsewhere, so that the process recommended in the review can be applied-that is, open competition under the Civil Service Commission procedure. The DPP and deputy DPP may be reappointed but at least the recommendation would have been applied, or better qualified and more suitable people may be appointed, in which case it would be doubly necessary for the recommended procedure to apply.

The Minister would be right to ask about natural justice. Natural justice for the DPP and deputy DPP must be considered, but we are discussing the flagship that will build up support, and if that takes upwards of 30 years, 20 years or even 15 years it will be deficient.

Mr. Browne: I am concerned that there is an inconsistency, which must be highlighted. We are all interested in the transition taking place as quickly as possible, but, other than the current DPP and deputy DPP, who has the expertise necessary to ensure that the transition in Northern Ireland takes place as efficiently and quickly as possible? Who else has the experience of the system in Northern Ireland that will be essential to ensure that the transition takes place speedily and efficiently?

Mr. Mallon: The Minister makes a valid point, but what is most important? I do not want the DPP or his deputy to be turfed out of their jobs, but there are various ways of making the transition. A Chief Constable aided the transition in the Police Service by announcing that he would retire. That is not an exact analogy, but does the Minister agree that a long wait for the most important part of the legislation to be operable and seen to be operable will have a substantial effect on reaction to the entire Bill?

Mr. Browne: I thank my hon. Friend for his patience yet again. The analogy that he draws with the Chief Constable is strong and good. There is no question but that the successful transition to the Police Service of Northern Ireland has been greatly aided by the significant expertise and ability that the Chief

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Constable has brought to the job. He knew where the force would be, and he knew where he wanted it to go. We are all grateful to him for the way in which he assisted. We need to keep such abilities in the system to ensure the transition. The other important aspect of the analogy is that it is a decision for him when and if he retires.

Mr. Mallon: I do not dispute the essence of the point that the Minister makes. Perhaps we could have avoided the impasse had some previous amendments been taken a little more seriously, but that did not transpire.

The far-reaching proposals for the new prosecution service were expected to be implemented rapidly. Many see the early and complete introduction of the new arrangements as a fundamental and crucial test of the determination of the Government to create a criminal justice system that can command the support of all. Page 33 of the implementation plan states that the new

    ''arrangements will apply to appointments taking place after devolution''.

However, nothing in the criminal justice review suggests that they should be deferred until then. On the contrary, the review group specifically referred to the need for a new approach for substantial organisational change. Subsection (2) is an example of selective implementation of the recommendations, and should be removed.

Following your ruling, Mr. Conway, I would like to make observations on amendment No. 291, which would leave out subsection (4), the provisions of which cast grave doubt on the commitment to break with the past and introduce real change to the prosecution service. Subsection (4) will allow the service to defer indefinitely the full implementation of one of the key recommendations of the report. It will allow the DPP-in all probability, barring natural wastage, it will be the DPP who was in place before the change-to comply only partially with the duty to take over the conduct of criminal prosecutions from the police. It is a fundamental weakness that he has to consider whether it is ''reasonably practicable'' for him to do so.

One of the Minister's arguments for the transfer of the existing DPP into the post is that it would provide continuity. One assumes that in the intervening period the administrative procedure and work would have taken place, and that the loose term ''reasonably practicable'' should not apply. Under the Bill, the DPP can fulfil as much or as little of the duty as he wants. It will be entirely for him to decide when he is prepared to comply with his statutory duties, which is bound to be unsatisfactory in every sense.

Mr. Browne: The provision is qualified by reasonable practicability. It is not a carte blanche for the director not to do what he is required to do under the other provisions; it gives him the necessary flexibility, under a programme that is rolling out, to take on responsibility for the work from the police service as and when it is practicable and reasonable to do so.

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What my hon. Friend says is right; in fact, progress has already been made on preparations for the roll-out, and we expect that they will be well advanced by the end of next year. I can give the Committee and others who need it reassurance that there will be considerably more detail in the new implementation plan that we will publish after the Bill receives Royal Assent.

Mr. Mallon: Yes, but that is not compatible with the recommendation of the review group. Recommendation 17, which is about the prosecution service, is unambiguous:

    ''in all criminal cases . . . responsibility for determining whether to prosecute and for undertaking prosecutions should be vested in a single independent prosecuting authority.''

However, the provision allows the DPP the latitude to determine whether it is reasonably practical and allows him to take on as much or as little as he decides. That is indicated by the wording of subsection (4), which is worth a read in the interests of the English language, if nothing else:

    ''If on the coming into force of subsection (1) of section 32 it is not reasonably practicable for the Director to comply with the duty imposed by that subsection to its full extent, until it is reasonably practicable for him to do so that subsection is to be taken to impose on him a duty to take over the conduct of such descriptions of the proceedings specified in that subsection as it is reasonably practicable for him to conduct.''

Mr. Browne: It is clear.

Mr. Mallon: It is as clear as can be. The subsection says, in a convoluted way, that the new DPP will implement the crucial element of the measure when he decides that it is reasonably practicable to do so.

Mr. Browne: My hon. Friend's ability to paraphrase the subsection clearly, if not in legislative language, demonstrates just how well written it is. I understand his arguments, but the review recommendations must be turned into practical reality. Who should make the decision?

Mr. Mallon: I had always thought that we would decide some of the important aspects as part of the legislative process rather than leaving a crucial element such as this to the DPP. The Minister knows that the measure is also contrary to the report's recommendation on when the new arrangements should be introduced.

Mr. Blunt: I am following the discussion with interest. At present, the DPP is responsible for about a quarter of the prosecutions, which are for serious offences. That is the practical reality. At the moment, some three quarters of prosecutions are the responsibility of the police, nearly all for minor offences. We shall go through a period of transition when the DPP takes responsibility for all of those. The clause simply puts a practicality test on the least important prosecutions currently conducted by the police with regard to when the bulk of that work can be taken over by the DPP. It enables the transfer of functions and the devolution of justice to happen earlier than would be the case if the practical transfer were not yet possible because the DPP did not have the resources to make those decisions and take on all those cases.

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Mr. Mallon: I take the point, but is it not much more important that we recognise recommendation 30 of the review group on timing? It states:

    ''the timing of commencement of legislation that will flow from our recommendations''-

that means what we have been doing for the past three weeks-

    ''should be planned so as to ensure that all necessary resources, preparation and training are in place and completed before procedural changes are introduced.''

11.15 am

Are we satisfied that that recommendation is being met and shall be met? Are those of us charged with producing the legislative changes satisfied that our time frame and the time frame to be given to the incumbent DPP will not be restricted by the open-ended way in which the new DPP-who will be the old DPP-can decide about when it is reasonably practical to take on all prosecutions, including those now dealt with by the police? The Minister might have some views on that, and I shall be interested to hear them.

The implementation plan openly envisages that

    ''the new service will extend its role on an incremental basis''.

When I see phrases such as ''incremental basis'' in implementation plans, I wonder about the speed at which matters will operate. I have seen implementation plans promise incremental change before, and speed was not then of the essence.

I believe that the provision is a flaw in the Bill and that it is not what the review group recommended. I ask that we change it so that we have full and speedy implementation of the new arrangements for conducting prosecutions. We expect the necessary resources to be made available for that to happen. That is the minimum requirement if people are to believe that there is real change in the system. We do not want delay, nor do we want piecemeal implementation. Subsection (2) is, in many ways, an open invitation to those who want to resist change, which some people want, including some in the justice system. To leave things as they are, under the pretence that a new dispensation is taking place, will be fatal to the entire project's prospects of success.

I believe that we who are charged with drawing up the legislation should make decisions that do not allow lax, open-ended, arbitrary, incremental decisions to be made by someone given the absolute authority to implement a crucial, core element of the Bill.

 
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