Justice (Northern Ireland) Bill

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Mr. Seamus Mallon (Newry and Armagh): It would be churlish indeed of me, given the Minister's generous offer, to pursue the two amendments, but churlish I will be. I accept the sincerity of the Minister's assurances. There is no question that he is a man of his word. That is a rarity in political life nowadays.

Mr. Blunt: In my experience of political life I have found most Members of this House and other politicians to be men of their word—[Hon. Members: ''And women.'']—I meant that collectively. The hon. Member for North Down is looking daggers at me.

The hon. Member for Newry and Armagh and I have made common cause on the issue of the prosecution supplying information to victims and being required to give reasons when it drops proceedings. That is a much more important issue than that of the practical transfer to the DPP and I hope that we will be able to continue to make common cause on it, because it concerns the accountability of the DPP.

Mr. Mallon: I would not like the hon. Gentleman to think that I was implying that the Minister was the only honourable person in politics.

However, churlish I must be on this issue, because a lot of exaggeration is taking place. I did not recommend any big bangs—I do not see the Bill in terms of a big bang, nor would it be possible to implement it in those terms. I think that I made that clear. However, I do not want a series of little whimpers either, and the wording of the parts of the Bill affected by the amendments is not the stuff that legislation is made of. The Director of Public Prosecutions will consider when it is ''reasonably practical'' to comply with the duty and he will have control over when and to what extent he does so. I do not believe that that is how we should do things. There is an urgency about this matter and, because it is the flagship of the Bill, the situation should not be left in a state of limbo.

Mr. McWalter: Would my hon. Friend consider the fact that, historically, there has been a democratic deficit in Northern Ireland, which has meant that the control that Members of Parliament exert over those who implement legislation in England has sometimes been lacking in the Northern Ireland process for a series of reasons? With this new dispensation, there should be sufficient democratic control over the process of implementing legislation so that the fears that he expressed—fears that might have been justified when there was insufficient democratic control—should not exist in future.

Mr. Mallon: I take the point that those fears should not exist. It is not so long ago that other hon. Members and I sat in a Committee Room like this one, dealing with a similar piece of legislation, the outcome of which tended to disprove the faith that my hon. Friend's comment reveals. I believe that he suffered as much as I did in that connection.

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I am talking not about big bangs, but about tightening an essential piece of legislation and inserting some newness into it. I cast no aspersions on the DPP or deputy DPP. For the life of me I could not say who either of them is, so there is nothing personal in my amendment. However, there is something wrong because it might be 30 years before this part of the Bill is implemented, which is too long. Many of us in Committee would not even live to see that, yet it is the cornerstone of the whole new approach. There are ways, which have been applied before, of allowing natural justice to apply to the incumbent DPP or deputy DPP, while abiding by the recommendations in the criminal justice review. I emphasise that I have no lack of confidence in the DPP, but from experience, if I were the DPP or deputy DPP and heard such overt expressions of confidence from the Government and the Attorney-General, I would take a quick look in my filing cabinet to see where my P45 was.

I do not want to prolong the discussion, but I urge the Committee to support the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 1, Noes 15.

Division No. 25]

Mallon, Mr. Seamus

Blunt, Mr. Crispin Browne, Mr. Desmond Campbell, Mr. Gregory Dobbin, Jim Hall, Patrick Hayes, Mr. John Hermon, Lady Heyes, Mr. David
Kilfoyle, Mr. Peter McIsaac, Shona McWalter, Mr. Tony Merron, Gillian Mole, Chris Stringer, Mr. Graham Woodward, Mr. Shaun

Question accordingly negatived.

Amendment proposed: No. 291, in page 68, line 13, leave out subsection (4).—[Mr. Mallon.]

Question put, That the amendment be made:—

The Committee divided: Ayes 1, Noes 15.

Division No. 26]

Mallon, Mr. Seamus

Blunt, Mr. Crispin Browne, Mr. Desmond Campbell, Mr. Gregory Dobbin, Jim Hall, Patrick Hayes, Mr. John Hermon, Lady Heyes, Mr. David
Kilfoyle, Mr. Peter McIsaac, Shona McWalter, Mr. Tony Merron, Gillian Mole, Chris Stringer, Mr. Graham Woodward, Mr. Shaun

Question accordingly negatived.

Clause 87 ordered to stand part of the Bill.

Clause 88

Statutory rules

Mr. Browne: I beg to move amendment No. 302, in page 69, line 12, after '10(4)', insert 'or 71(1), (3), (7) or (8)'.

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The Chairman: With this we may discuss the following amendments: No. 179, in page 69, line 12, after '10(4)', insert 'or 85(1)'.

Government amendment No. 303.

Mr. Browne: During Tuesday evening's debate on clause 71, concern was expressed at the lack of detail coming before Parliament on the membership of local community safety partnerships. Amendment No. 302 will require the order that establishes community safety partnerships to be subject to affirmative resolution. That will afford an opportunity for further scrutiny when the Northern Ireland Executive's review of public administration is complete, and we are in a position to firm up partnership, membership and structures. Amendment No. 303 leaves clause 71(2) subject to negative resolution, because it deals only with the name change and it is not necessary to subject that to such anxious scrutiny. I ask that those amendments be made.

Amendment No. 179 would require every provision in the Bill to be commenced by affirmative order, which would be completely unprecedented. I suspect that the hon. Member for Reigate is using the amendment not to achieve that objective, but to debate it and other issues. The amendment would place an undue burden on Parliament and delay the implementation process by requiring every provision to be commenced by affirmative order. Where further parliamentary scrutiny is necessary, or desirable, we have provided for it, as illustrated by amendment No. 302.

3 pm

I understand from the hon. Gentleman that amendment No. 179 is a probing amendment, although he may have changed his position and I do not bind him to it. My understanding, however, is that he seeks clarification on how the Bill's provisions will be commenced and how devolution will be organised. This might be a good opportunity to explain how the mechanics for transferring the Bill's provisions to the devolved institutions will work when the time comes. I trust, Mr. Pike, that you will consider such remarks to be in order. I believe that they are relevant to our debate. I understand hon. Members' uncertainty about how the Bill will work, and I hope to explain why it is drafted as it is. My explanation will take a little time, but I am sure that hon. Members will be grateful to the hon. Member for Reigate, at whose request I am making it.

Hon. Members will know that the division between what is devolved to Stormont and what is retained at Westminster is governed by the Northern Ireland Act 1998. Broadly, everything is devolved—in the terminology of the 1998 Act it is ''transferred''—except those matters set out in schedules 2 and 3 to the Act. Schedule 2 contains ''excepted matters''. They deal with issues such as national security and will not be devolved under the scheme of the 1998 Act. Schedule 3 to the Act covers matters that are reserved. Those are currently dealt with at Westminster, although the Assembly could legislate on them with the consent of the Secretary of State.

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Executive functions in relation to those matters lie with the Government.

Criminal justice matters are generally reserved. Under the original Northern Ireland Act provisions, judicial appointments were excepted matters. The review recommended changing that, and it was achieved under clause 81 of the Bill. Once a decision is taken to devolve matters from the reserved to the transferred field, a number of steps have to be taken to effect the change. Those steps are set out in sections 4 and 86 of the Northern Ireland Act. Section 4 provides that the Northern Ireland Assembly must first pass a resolution, with cross-community support, praying that the matter concerned should cease to be a reserved matter. The Government may then lay before Parliament a draft Order in Council to amend schedule 3 to the Act. That is effectively an affirmative resolution instrument. There will be prior consultation, and a debate in both Houses. If the Order in Council is approved by Parliament, Her Majesty may then make the order.

Once a matter has been moved from the reserved to the transferred field, the Assembly can pass Bills dealing with it without the approval of the Secretary of State. On its own, however, a section 4 order will not transfer existing executive functions to the devolved institutions. For that, we will use an order made under section 86 of the Northern Ireland Act. Section 86 orders are also Orders in Council. The Northern Ireland Act states that they may, among other things,

    ''make provision for transferring to a Northern Ireland authority, with effect from any date specified in the Order . . . any functions which immediately before that date are exercisable by a United Kingdom authority and appear to Her Majesty to be concerned with a matter which is a transferred matter''.

Once criminal justice has been devolved by an order made under section 4, a transfer of functions order made under section 86 will transfer specific powers from UK authorities to Northern Ireland authorities by name.

Consequential matters such as funding could also be covered by a section 86 order. Westminster will not provide funding for matters that are in the devolved field. References to funding being provided by Parliament will therefore disappear. That is why we did not set out in the Bill what the financial arrangements would be after devolution.

As it stands, the Bill includes a variety of provisions. Some may come into force before devolution and then be transferred, while others will come into force only after devolution. For the latter provisions—basically, the Judicial Appointments Commission and the new Law Officer arrangements—the Bill already sets out where functions will lie. The main political input from the Northern Ireland Administration will be from the First Minister and Deputy First Minister—I shall say this quietly, in case the hon. Member for North Down intervenes on me—acting jointly.

In the case of provisions that may come into force before devolution, such as the prosecution service, the Law Commission and the criminal justice inspectorate, the Bill sets out how they will work before devolution. We decided not to include in the Bill provisions

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explaining how things will work post devolution, for the very good reason that we do not know exactly what the post-devolution arrangements will look like. For example, the Executive might decide to create a department of justice—the issue is discussed in the review, where a recommendation is made—or split the responsibilities between two departments. We do not want the Bill to contain provisions that pre-judge decisions to be taken in consultation with the Northern Ireland parties at the proper time. Those who know the structure of the Executive in Northern Ireland—and, indeed, of those in Scotland and Wales, although I am not so familiar with Wales—will know that departments there do not reflect, in terms of responsibilities, the divisions that there are in Westminster. The Executive and the Assembly have the right to decide their own order of priority and their own arrangements.

As a result, the Bill is littered with references to the Secretary of State. I assure hon. Members that almost all of those will disappear on devolution by means of the section 86 transfer of functions order. The only references that will remain after devolution are those that concern the Secretary of State's remaining responsibilities. The only example is the reference to the Secretary of State's order- making power under clause 29(2), and some consequential references to the Secretary of State in the associated schedule 7.

We considered whether to include specific powers in the Bill setting out how devolution in this area should work. Although that might have had presentational advantages for the lay reader—if there is such a thing in relation to a Bill—we were keen not to duplicate the provisions of the Northern Ireland Act 1998, which have a certain elegance and have been tried and tested in setting up devolution. To some degree, the provisions have their roots in many years' worth of consideration in Scotland, via the Scottish constitutional convention. Those of us who were in favour of devolution learned the lesson of an early attempt to devolve government to Scotland in a different way. This short history is for those who do not know what happened.

The previous attempt at a Scotland Act sought to list the functions that were being devolved in schedules to the Act. That occupied the Committee for endless, tedious hours, as people argued around the margins of the provisions. Attempts to introduce lists into the Bill inevitably created a lot of anomalies, and many things were left out. Our best endeavours to list what was transferred were unsuccessful. We learned that lesson and the provisions in the Scotland Act 1998 that are now, to some degree, reflected in the Northern Ireland Act, seek to devolve by reference not to the powers that are being transferred but to those that are being retained. That is a significantly smaller list, when it comes to individual functions.

I hope that that attempt at an explanation is of some help to the Committee and to all our lay readers, whoever they may be. I have endeavoured to address in a short time issues that have—rightly—exercised some members of the Committee, and I hope that I have made them clear.

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