Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.

Donate to our crowdfunder

Justice (Northern Ireland) Bill [Lords]

– in the House of Commons at 12:40 pm on 10th March 2004.

Alert me about debates like this

Votes in this debate

[Relevant document: The Second Report from the Northern Ireland Affairs Committee, Session 2003–04, HC 302-I, on the Separation of Paramilitary Prisoners at HMP Maghaberry, is relevant to Clause 12 of the Bill (Transfer of prisoners).

Order for Second Reading read.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland 12:51 pm, 10th March 2004

I beg to move, That the Bill be now read a Second time.

The Bill represents another step forward on Northern Ireland's path to peace, stability and justice. At the heart of the agreement was a commitment to build a police service and a criminal justice system that would enjoy the support of all sections of Northern Ireland society. It is our view that the Bill is proof that the Government are still completely committed to achieving that end—and to completing the implementation of the Good Friday agreement.

Today is also an opportunity for us to judge just how much has been already been achieved in that task. It is an opportunity for us to look beyond the difficulties that currently confront us and to remind ourselves, and the people of Northern Ireland, of how much has changed and how much has improved since the signing of the agreement almost six years ago.

The political and peace process in Northern Ireland has reached a defining moment, however. Paramilitarism survives in Northern Ireland, and its survival, in defiance of the agreement and the wishes of the people of Northern Ireland, is what we must now tackle. The attempted abduction of a man last month, in broad daylight and cold blood, was but the latest example of the paramilitary activity that has undermined the Good Friday agreement in some respects and, in its indirect impact, has denied the people of Northern Ireland the chance to run their own affairs.

Those who were party to the 1998 agreement acknowledged—some explicitly, some implicitly—that paramilitary activity would not disappear overnight. But six years on, there can be no justification for continuing paramilitary violence. Each corrosive act of crime or violence eats into the hope to which the agreement gave rise.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The Secretary of State referred to the attempted abduction and who knows what else recently. Will he join me and, I am sure, other Members of the House in welcoming what appears to be the initiative of the Independent Monitoring Commission in starting an investigation into that incident and perhaps other cases as well? Perhaps he would now like to revise the date by which he would ask it to bring in the report that it appears to have started work on.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

The right hon. Gentleman is aware that, during the press conference held by the Independent Monitoring Commission yesterday, it did not actually say that it would look specifically at this issue; it said that it might. However, he and I agree on the fact that the commission has an extremely important role to play not just in this particular incident—very difficult though it was—but in the overall assessment of paramilitary activity. My right hon. Friend the Prime Minister and the Taoiseach meet tomorrow in Dublin, and I know that they will be discussing the implications of what the right hon. Gentleman and others have said, together with what the IMC said yesterday.

Photo of Frank Field Frank Field Labour, Birkenhead

Does my right hon. Friend accept that there is a growing feeling in the House that the punishment beatings and exclusions are now a far greater impediment to progress in Northern Ireland than the surrender of arms by the paramilitaries. We know that they have the resources to buy new supplies of arms, should they surrender them. However, ceasing the punishment beatings would show a real change in the character of the people wishing to participate in the public affairs of Northern Ireland.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

My right hon. Friend is right on both counts, in that both issues are important. He emphasises the so-called punishment beatings and I agree that that is an area of paramilitary activity in Northern Ireland that is absolutely unforgivable. It erodes the peace process and the political process, and it is wicked in itself. Where I am not quite sure that I agree with him is to dismiss the idea of decommissioning. That is an important part of the Good Friday agreement, but I very much agree with him about so-called punishment beatings.

Photo of Peter Robinson Peter Robinson DUP, Belfast East

Following the intervention of Mr. Trimble, may I point out that the Government do not need to ask for an earlier report from the Independent Monitoring Commission? It has the power to bring about an earlier report. Perhaps the Secretary of State could advise the right hon. Member for Upper Bann that, if he finds himself with more time on his hands in the coming weeks and months, he could go to the IMC, like my party has already done, and ask it to bring in an earlier report.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

The hon. Gentleman is right, in that the commission has the ability to instigate and initiate investigations on its own account.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The Secretary of State's point is very interesting. Can he inform the House of where the Independent Monitoring Commission will get its intelligence or evidence from? Will it be from the Police Service of Northern Ireland, the Garda Siochana in the south of Ireland or its own efforts on the ground in the north of Ireland? That is a crucial question that we must consider to realise the difficulties that will face the commission, just as it has faced both police services.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

I think that my hon. Friend has answered his own question. The commission may gather evidence from all the organisations and agencies to which he has referred. It can also come to the Governments to examine certain items of intelligence. On the issue that we were discussing, clearly the evidence that the Police Service of Northern Ireland gives is critically important.

I am confident that hope was not misplaced and I am confident that the agreement will survive. That confidence stems from my personal memory of what was intended in 1998, and what was so fervently wished for by the people of Ireland and of Northern Ireland. A new beginning was envisaged, and all the parties who signed up to that vision were entrusted with bringing it about. I challenge anyone to show that, for the Government's part, we have not made huge efforts and great strides to realise that vision.

In criminal justice, the Bill before us is just the latest in a series of reforms inspired by the criminal justice review. The review itself was probably the most comprehensive of its kind anywhere in the world, and its 300 recommendations are resulting in a wholly transparent and equitable system in which rights and justice go hand in hand. In January, in his first report, the new criminal justice oversight commissioner stated that there had already been "significant and impressive progress". Of course, Lord Clyde's office itself, and that of the new chief inspector of criminal justice, are innovations that we have delivered and which are helping us bring about further reforms.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Will the Secretary of State enlighten the House as to the resources that have been made available to the new chief inspector of criminal justice, and tell us just how large his inspectorate is at the moment?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

If the hon. Lady will allow me, I shall ask the Minister of State, my right hon. Friend Mr. Spellar to give her the details at the conclusion of the debate.

I have told the House on other occasions that it is in policing that the most striking—and perhaps the most important—reforms have been undertaken. However, that bears repeating, because the quiet dedication and professionalism with which the police implemented the change from the Royal Ulster Constabulary to the Police Service of Northern Ireland has sometimes obscured the magnitude and difficulty of what they have achieved. Almost 10,000 officers played a part in what was a change not only of name, badge and uniform but of culture. Northern Ireland now has a force that is answerable to a cross-community Policing Board and to the 500 men and women—nationalists and Unionists; Catholics and Protestants—who sit side by side on district policing partnerships.

Photo of Mrs Helen Jackson Mrs Helen Jackson Labour, Sheffield, Hillsborough

I agree with my right hon. Friend that one of the major reforms since the Good Friday agreement has been the reform of the police service. Does he agree that one of the greatest issues that dogs the community in Northern Ireland—it is connected to paramilitary violence—is the failure of one of the parties that claims to be a political party to accept the validity of the Police Service of Northern Ireland, despite the reforms and despite its superb record under its new Chief Constable?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

That is why it is important to put on record the Government's gratitude to the Social Democratic and Labour party, the Catholic Church and others for ensuring that the new policing arrangements have been as successful as they have been.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I do not want to deviate too far from what we are discussing today, but does the Secretary of State accept that the biggest single thing that could reduce the paramilitary beatings in Northern Ireland and improve the rule of law in areas that are not traditionally supportive of the police would be a clear expression of intent by Sinn Fein, saying that it will no longer intimidate Catholics who wish to join the Police Service of Northern Ireland?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

I was about to refer to intimidation. I am sure the whole House will join me in condemning the cowardly attacks that have again this week been aimed at some of the brave men and women who serve on district policing partnerships, including the latest incident regarding Mr. Tom McBride, the chair of Strabane DPP. More than 1,000 new policemen and women—half of them Catholics—have been recruited, which has changed the face of a force that enjoys support throughout Northern Ireland.

Northern Ireland's troubles were born among feelings of inequality and injustice, but the paramilitaries who prosecuted the war—on both sides—merely served to deepen such divisions. That is why, when the ceasefires and the Good Friday agreement marked the closure of the troubles, we were determined to eradicate inequality and enshrine human rights. On that, too, we have seen great success in six short years. Northern Ireland is no longer a place of chronic unemployment. Just 4 per cent. of the work force are currently unemployed, compared with over 7 per cent. in 1998. The differential between Catholic and Protestant employment has been dramatically reduced. Northern Ireland has by far the most comprehensive equality legislation in Europe. We have greatly strengthened fair employment and anti-discrimination laws and ensured that public bodies in Northern Ireland are obliged to promote fairness and equality of opportunity. On health, housing and education, we have delivered programmes to tackle inequality, and we are determined to succeed.

Photo of David Burnside David Burnside UUP, South Antrim

How can the Secretary of State stand before the House and talk about equality of employment in Northern Ireland when the Government have institutionalised discrimination in recruitment to the Police Service of Northern Ireland?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

The hon. Gentleman and I will simply have to disagree about that. We believe that the procedure is an important part of the process and, indeed, it flowed from the Patten report and the agreement itself.

Human rights in Northern Ireland have also been strengthened. In areas of traditional concern, there is now a powerful set of organisations to ensure that rights are protected. The police ombudsman, the children's commissioner and the chief inspector of criminal justice ensure that rights are at the heart of policy and practice. The Northern Ireland Human Rights Commission, despite the problems that it now has, has also played a vital role, especially in relation to old age and mental health.

In all those areas, we are striving to make Northern Ireland a normal society, and we recognise that the security forces in Northern Ireland also have an important role to play in that. That is why, for example, we have overseen the departure of more than 2,000 troops, which has taken numbers down to their lowest level since 1970. Of course, those changes are a direct result of the dramatically reduced level of threat in Northern Ireland. I will never tire of pointing out to the House and others that violent deaths per year in Northern Ireland are now counted in single figures. We must remember that it was not so long ago that that tragic tally was measured in hundreds.

That fact tops a list of achievements since 1998 of which the people of Northern Ireland can be proud. Although the current talks face considerable difficulties, which I do not underestimate, the successes that we have already achieved bear testament to a determination to overcome all obstacles and build a peaceful and stable future for all people of Northern Ireland. The Bill must be seen in that context, which is why I have taken a few moments to remind the House that the Bill and the efforts made by the Governments and parties are integral parts of the progress made since 1998. The Bill is another brick in the new inclusive edifice of a better Northern Ireland.

The Bill provides, first, for the establishment of a judicial appointments commission in advance of the devolution of criminal justice matters to the Assembly. The criminal justice review recommended that the commission be established after devolution of justice and policing functions, and the Justice (Northern Ireland) Act 2002 provided for that. However, we see merit in bringing forward the establishment of the commission. We believe that it will make the appointment processes for the judiciary more transparent and encourage a wider range of applicants than ever before. That will be an important contribution toward enhancing public confidence in the Northern Ireland justice system.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The Secretary of State refers to the fact that the Bill brings forward the creation of a judicial appointments commission from the time originally intended. I am sure that he followed with interest proceedings in another place earlier this week when their lordships decided to refer to a Select Committee the Bill containing equivalent provisions for England and Wales. I am sure that he will want to follow that Committee's consideration, and when that Bill comes forward from their lordships—no doubt considerably improved—I hope he will be willing to take on board the improvements made.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

The right hon. Gentleman and I will await with interest the deliberations of the other place on the judicial appointments commission. He is of course aware that a judicial appointments commission exists in Scotland, that the concept of a judicial appointments commission has existed in Northern Ireland since the Good Friday agreement, and that the principle of such a commission was enshrined in the Justice (Northern Ireland) Act 2002. However, we will naturally follow with great interest the deliberations in the other place.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The Secretary of State mentions the judicial appointments commission in Scotland. That operates on a non-statutory basis, so it is rather difficult to get a clear impression of how it is working from this distance. In looking forward to the subsequent proceedings on the Bill—should it receive its Second Reading—will he try to make available to hon. Members details of how that commission operates, what its structure is and what the experience has been in Scotland, because that might be illuminating?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

Indeed, it might well be. I cannot give the right hon. Gentleman the details of the Scottish experience off the top of my head, but I can say that the principle of commissions for judicial appointments is not novel.

I emphasise that the continued independence of the judiciary is absolutely integral to the system. The Justice (Northern Ireland) Act 2002 enshrined the principle of judicial independence to which the Government remain fully committed. Indeed, the principle was also highlighted in the part of the Good Friday agreement that dealt with criminal justice.

Turning to the other judicial appointment provisions, the 2002 Act stipulates that lay members of the commission should be representative of the community. The Bill provides that the composition of the commission taken as a whole will, as far as possible, be reflective of the community in Northern Ireland. We think that it is right in principle to make that change in the interest of enhancing public confidence in the justice system.

Photo of David Wright David Wright Labour, Telford

Can my right hon. Friend assure us that the commission will consider not just religious communities but issues relating to women's rights and black and ethnic minority communities? We need to increase their representation through such processes.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

My hon. Friend is right, but the commission must reflect society as a whole in Northern Ireland, not just the groups to which he referred.

The 2002 Act placed time limits on lay membership of the commission. It is right that judicial members of the commission should have the same time limits applied to their membership as those that currently apply to non-judicial members, and the Bill provides for that. Merit has been, and will continue to be, the sole basis for judicial appointments. That is non-negotiable. Subject to the principle of merit, a key objective of the commission will be to engage in a programme of action to secure a judiciary that is reflective of Northern Ireland society. I want to make it clear that no one is in the business of appointing applicants on the basis of political opinion, gender or religion. It is important to stress that reflectiveness, as my hon. Friend David Wright said, does not apply just to religious background. There is, in fact, a more obvious and pressing need for more applications from women and people from an ethnic minority background.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

Is the Secretary of State thinking about a pool of merit—a pool of people who reach an approved standard from which appointments can be made according to a 50–50 formula or some other criteria?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

No, I am not thinking of that. As I said, individual appointments will be made on the basis of merit, but there is nothing wrong in the commission considering whether the judiciary in Northern Ireland and everyone involved in the judicial process reflects Northern Ireland society.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

The Secretary of State mentioned the need to recruit more female police officers in Northern Ireland. However, many young female constituents in Lagan Valley who have applied to join the new police service have successfully passed all the tests and entered the merit pool, but in the end they have not been appointed because they are Protestant—because of the church they attend on Sundays. Female applicants are successful in reaching the merit pool, so why on earth can they not be recruited and their religious affiliation be disregarded?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

The hon. Gentleman has made his point forcefully, but I said earlier that the arrangements in place for the Police Service of Northern Ireland resulted from the Patten report and the agreement. In the case of the judiciary, it is important that we try to ensure that we encourage more women and people from ethnic minorities to apply to become members.

Clauses 4 and 5 look forward to the day when justice and policing functions are devolved to the Northern Ireland Assembly. Under that further stage of devolution, when appointing the Lord Chief Justice and Lords Justices of Appeal the First Minister and Deputy First Minister, acting jointly, will make recommendations to the Prime Minister. The Lord Chief Justice, as the head of the judiciary in Northern Ireland, will be consulted by the First Minister and Deputy First Minister, and his views will be made known to the Prime Minister, who will then make a recommendation to the Queen. That builds on the formulation in the 2002 Act, bringing it closer to the original recommendation of the criminal justice review and enshrining the fundamental role of the First Minister and Deputy First Minister in the process.

The House will be aware that on introduction in another place the Bill included a provision dealing with the removal or suspension of judges. That clause was lost, and I would like to signal my intention to reintroduce it as a Government amendment at an appropriate time so that Members of this House will be able to debate the issue. Another provision in the Bill builds on the 2002 Act by placing a duty on the Director of Public Prosecutions for Northern Ireland to refer to the police ombudsman all cases of suspected police malpractice that he comes across in his role as prosecutor. The duty will ensure that the police ombudsman is made aware of allegations of police misconduct which she may not otherwise know of. The duty concerns the transfer of relevant information, and does not change in any way either the DPP's role in reaching decisions about prosecution or the police ombudsman's role in investigating allegations of police misconduct. That, too, more closely reflects the original review recommendation.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

That is not an absolute duty on the DPP, as he has discretion. That was not recognised in the agreement between the two Governments, when there was a compulsory duty on him. The Bill says that he should refer any matter that "appears" to indicate certain things, not that he must do so.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

I believe that there will be debates about those issues in Committee.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down

The Minister has not satisfactorily addressed the question. The criminal justice review clearly stated that when an allegation is made it should be referred to the ombudsman. The Bill proposes that matters should be referred if, in the DPP's opinion, there appears to be wrongdoing. Those are two entirely different things, and I believe that the review's proposal should be included in the Bill.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

As I said, there are different views and various interpretations of the clause, but I repeat my belief that that will be debated in Committee. My right hon. Friend the Minister of State will return to the issue at the end of this afternoon's debate.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

When my right hon. Friend made his original statement, he said that the duty was absolute, so I challenged it. He has now provided a different interpretation in the clause. He will remember that in the Northern Ireland Act 1998 there was an interpretation of such provisions to which, under the rules of interpretation, judges were supposed to pay attention. In fact, judges in the Irish courts refuse to accept his interpretation, so the matter has had to go to the House of Lords.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

That is why I have twice stressed that because of the complicated nature of the clause it is best addressed in Committee, when it will be debated in detail. For the sake of accuracy in reports of our proceedings, if anyone wishes for further clarification they will have to wait until my right hon. Friend the Minister of State refers to the matter in detail.

The 2002 Act confirmed the independence of the Director of Public Prosecutions for Northern Ireland. That is another non-negotiable principle. The creation of an offence of seeking to influence the prosecution decision-making process will ensure that those who seek to impinge on the independence of the prosecution will be brought to book.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Can the Secretary of State explain how the provision will differ from the operation of the existing offence of attempting to pervert the course of justice?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

I hope to do so in a few seconds. My explanation may not satisfy the hon. Gentleman, but I hope that it will satisfy others.

As I said, by creating an offence of seeking to influence the prosecution decision-making process, we will make sure that those who seek to impinge on the independence of the prosecution will be brought to book. The offence is deliberately linked to the well-understood idea of perverting the course of justice. We want to ensure that innocent approaches, such as a doctor passing medical information to the DPP, or a person writing in defence of a relative, are not criminalised. We want to ensure that it is understood by people who seek to raise such issues that those approaches are not criminal. The offence targets activities with malicious intent.

The criminal justice review concluded that human rights and dignity should be a core value of the criminal justice system in all its aspects, and the Government fully endorse that view. To integrate human rights awareness into the criminal justice system still further, a requirement will be placed on criminal justice organisations to have proper regard to guidance on relevant international human rights standards in carrying out their functions. That guidance will be issued by the Attorney-General.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

The hon. Lady will have to wait until later this afternoon for a detailed answer to that, but it will be provided. I am conscious that many Members want to speak in the debate, and I am sure that she is one of them. We will be able to give her a full and proper answer later.

The Bill introduces a right of appeal for the prosecution against the grant of bail by a magistrate's court. We believe that that is appropriate in terms of bringing Northern Ireland into line with Great Britain. That provision is supported by the police and by the Director of Public Prosecutions.

The Bill brings arrangements for breach of bail in scheduled cases into line with current practice in non-scheduled cases and makes some minor amendments in relation to the treatment of those on bail in non-scheduled cases.

The independent review of security in Maghaberry prison that was conducted by John Steele and others concluded that republican and loyalist paramilitary prisoners should, on a voluntary basis, be accommodated separately from each other and from other prisoners. That recommendation has been accepted, and work to implement it is ongoing. The review also recommended that those new separated arrangements should be backed by a range of measures to prevent deterioration into segregation as it operated in the past in HMP Maze. The Bill introduces, as one such measure, a new power allowing the transfer of a prisoner from Northern Ireland to another prison in England or Wales in the interests of maintaining security and good order in prisons. Northern Ireland has only one high-security prison, and the dispersal of troublesome prisoners within the Northern Ireland Prison Service estate is not therefore possible.

Photo of David Burnside David Burnside UUP, South Antrim

Further to the separation of prisoners in Maghaberry for understandable prison security reasons, can the Secretary of State confirm whether prison governors are negotiating directly with the Provisional IRA and the loyalist paramilitary leadership in those prisons?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

I understand that the prison management in those prisons are dealing with the organisations to which the hon. Gentleman refers in the sense of a compact. The word "negotiation" would perhaps be inappropriate in such cases. In terms of considering what is best done in those prisons, all prisoners were asked their views on the Steele recommendations when they were put forward. Beyond that, the prison governors have been talking to the Prison Officers Association and dealing with the political parties.

Very wide consultation has taken place on the proposals. That is important, because we want them to work. I know that the hon. Gentleman wants them to work, too, which is why he said that separation is important for safety's sake. Under the proposal, in the event of a situation involving an exceptionally troublesome prisoner that disrupts the only high-security prison in Northern Ireland, provision is made for transfer to Great Britain.

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

On the transfer of prisoners, is my right hon. Friend aware of the great concern that is felt by many who serve on the Select Committee on Northern Ireland Affairs, and who reviewed the issue of separation in Maghaberry prison, as well as by many on the mainland? They fear that if this proposal is implemented, it may be used as a tool or a weapon by the paramilitaries to seek further political gain to the detriment of the prison authorities in Northern Ireland or, indeed, to impede the peace process.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

We agreed with the Steele tribunal's recommendation that it is important to deal with safety problems both inside and outside prisons. It was, after all, an independent tribunal, which, incidentally, had the support of the Churches and of those right across the political spectrum in Northern Ireland. Obviously, I hope that the provision does not have to be used, but as the tribunal made the recommendation and we considered it sensible, we have to legislate for it. We added these measures to the Bill because they are good common sense and the Bill is an appropriate vehicle.

Photo of Martin Smyth Martin Smyth UUP, Belfast South

May I press the Secretary of State on this issue? Is he aware that, although he used the term "independent" in reference to the committee, concern has been expressed that interference from a higher authority was involved in its setting up?

Will the Secretary of State give a guarantee on behalf of the Government that there will be no outside interference with the internal discipline of the prison when those in the Prison Service seek to hold the line in protecting the safety of prisoners?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

There was certainly no interference from on high, from outside, or whatever phrase one might want to use. I wholly reject that. It was my decision to institute the independent tribunal, two of the three members of which are former clergymen who were prison chaplains. They, and John Steele himself, are people of the highest integrity, and I accepted their recommendations in their entirety. They were sensible recommendations that will ensure that we deal properly with the safety of prisoners inside the prison and prison officers outside the prison. That is an important issue for all the people of Northern Ireland.

On the hon. Gentleman's point about prison safety, we must not return to what happened at the Maze over all those years, when the prison—or part of it—was controlled by paramilitary groups. That is certainly not my intention or that of the Government. We are considering the safety of people in those prisons—officers and prisoners—and we thought that separation was the best way forward.

Photo of Mr Harry Barnes Mr Harry Barnes Labour, North East Derbyshire

My right hon. Friend is talking about the transfer of prisoners from Northern Ireland. Why is that to apply both to paramilitaries and to ordinary prisoners? It is argued that paramilitary prisoners may apply pressure to try to turn separation into segregation, so the provision goes too far. Would it not have been a good idea to have engaged in separation in the first place?

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

As I said, it is not the Government's view that separation means segregation—we are opposed to that. However, the provision has to be put on the statute book in case it is ever needed. As my hon. Friends know, the difficulty is that prison resources in Northern Ireland are limited—there is effectively only one high-security prison. That means that from time to time we need to call on the Prison Service elsewhere in order to deal with troublesome prisoners.

The Bill will amend section 103(2)(e) of the Terrorism Act 2000. The Northern Ireland (Emergency Provisions) (Amendment) Act 1975 criminalised intelligence gathering against those working in the Prison Service in Northern Ireland. The Terrorism Act 2000 makes it an offence to collect information relating to a

"full-time employee of the prison service".

That does not offer the same degree of protection to all classes of prison staff. The Bill will ensure that part-time workers will also be protected. That is in line with Lord Carlile's recommendation in his independent review of part 7 of the Terrorism Act 2000.

The Chief Constable of the Police Service of Northern Ireland is anxious to have the power of arrest without warrant for the offence of driving while disqualified. That power exists in the rest of the United Kingdom. I hope that hon. Members on both sides of the House will be able fully to support the taking of firmer action against the serious problem of disqualified driving.

The powers of court security officers, as set out in the Justice (Northern Ireland) Act 2002, are built on to ensure that all relevant buildings have adequate protection.

The Bill deals with the fact that barristers in Northern Ireland cannot enter into contracts for the provision of their services, whereas those in England and Wales can. It brings the situation in Northern Ireland into line with that in England and Wales.

I have to disagree with the reasoned amendment tabled by the Opposition. The Bill does not weaken the criminal justice system in Northern Ireland. Its purpose is twofold. First, we are continuing to build a criminal justice system that has the confidence of the whole community. Secondly, we are increasing the powers that are available to the criminal justice system, especially to the police and the courts, so that they are able to do their job more effectively. The Bill does not in any way weaken the criminal justice system—rather, it strengthens it on two counts.

Nor does the Bill undermine the judiciary. The Government are wholly committed to judicial independence, and that fundamental principle is asserted clearly and unambiguously in the Bill. All measures in the Bill relating to the judiciary meet that standard. Likewise, the principle of appointment solely on the basis of merit is asserted in the text of the Bill. Contrary to the Opposition's insinuation, appointment on merit alone is not incompatible with efforts to ensure that the widest pool of talent is available from which to make such appointments.

Furthermore, there is no reason to suppose that the procedures set out in the Bill politicise the judiciary. The 2002 Act makes it clear that

"those with responsibility for the administration of justice must uphold the continued independence of the judiciary".

The process for appointing senior judges, after the devolution of responsibility for criminal justice, is guided by the principle of judicial independence, which is itself enshrined in the terms of the Good Friday agreement.

The Government look forward to the day when decisions on local justice will be placed in the hands of local Ministers. We are confident that that devolution will happen when the time is right: when we have a stable Assembly and Executive; when there is an enabling security environment; and when the local parties are ready to make the devolution of justice and policing a reality. In the meantime, we have a responsibility to set the pace by continuing to improve the criminal justice system in Northern Ireland in a way that maximises public confidence and political support.

The Bill's provisions mark an important step in the reform and development of the justice system in Northern Ireland. The Bill will help to provide for an even fairer, more efficient and more effective justice system. It will provide for a justice system that is more transparent, open and accountable, and that will instil even greater levels of confidence in all parts of the community. The Bill is another milestone on Northern Ireland's journey to a just, stable and peaceful future, and I commend it to the House.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland 1:31 pm, 10th March 2004

I beg to move,

That this House
declines to give a Second Reading to the Justice (Northern Ireland) Bill because the Bill will weaken rather than strengthen the criminal justice system in Northern Ireland;
will undermine the independence of the judiciary in Northern Ireland;
will lead to the greater politicisation of the criminal justice system in Northern Ireland;
and will weaken the principle of appointment to the judiciary solely on merit.

I start on a bipartisan note by associating myself and my right hon. and hon. Friends with the deserved tribute that the Secretary of State paid to the members of the district policing partnerships and the Northern Ireland Policing Board, who are having to withstand all manner of intimidation, threats and outright violence as they go about their duties. All democratic politicians owe those men and women a debt of gratitude for what they are doing. I also ally the Opposition with the Secretary of State's commitment to continuing the search for a means of restoring to Northern Ireland effective devolved institutions that command the necessary support from all parts of the community there. However, the Opposition doubt that the Bill will help that search for an enduring peace in Northern Ireland.

Judicial appointments are at the core of the Bill, and the provisions that relate to them are at the core of our reservations. I shall devote most of my speech to them, but I shall first refer to other provisions that the Secretary of State mentioned. Clause 12 deals with the transfer of prisoners. I understand the reasons behind that clause and I do not quarrel with it as a matter of principle, although I question whether, in the light of the Home Secretary's catastrophic mismanagement of the Prison Service in England, there are any spare cells on this side of the water in which to accommodate prisoners sent over from Northern Ireland. I hope that when the Minister of State, Northern Ireland Office, Mr. Spellar replies, he will be able to confirm whether the Government will later introduce amendments to extend the Bill's scope to include Scotland, as has been reported in parts of the Scottish press.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Does the hon. Gentleman also support the making of reciprocal arrangements with the Republic of Ireland to allow disruptive republican prisoners in Maghaberry prison to be transferred to Portlaoise in the Republic?

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

I should be prepared to look at that proposal with an open mind, although I do not know whether the hon. Lady is suggesting a reciprocal arrangement that would allow the United Kingdom to take prisoners from the Republic. That idea is well worth serious consideration.

It is the Government's foolish and, I regret to say, disgraceful decision to concede the principle of the separation of paramilitary prisoners at Maghaberry that has given rise to clause 12. I visited Maghaberry two weeks ago, and I want to put on record my admiration for the bravery and professionalism of the prison governors and officers working there. As the Secretary of State knows, he has some brave men and women working for him in the Northern Ireland Prison Service and I know that, whatever their personal feelings, they will do their utmost to implement the policy on which Ministers have decided, and attempt to prevent separation from deteriorating into outright segregation.

I notice that the Secretary of State made no reference in his speech to the trenchant conclusion of the Select Committee on Northern Ireland Affairs—which has a majority of Labour Members—that

"the separation of paramilitary prisoners . . . was demanded by dissidents for political reasons and acceded to by the Government for (other) political reasons."

Photo of David Burnside David Burnside UUP, South Antrim

Does the hon. Gentleman share my concern at the Secretary of State's response to my earlier intervention, in which he confirmed that the prison governors and management at Maghaberry were in negotiations with the Provisional IRA and the leadership of loyalist paramilitaries? That means that, in reality, a political status was involved in the negotiations. That is very serious.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

I completely agree with the hon. Gentleman. If that is happening, it suggests that the boundary between separation and segregation has already been crossed, which would be to the disadvantage of us all.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

David Burnside cannot have heard my clarification of my point. I said that "negotiations" was not the appropriate word, and that, although discussions might be taking place, those are not the same as the sort of negotiations to which I assume that he is referring, such as those that might have taken place when segregation was operating at the Maze prison. That is not the case in this instance. Hon. Members must be aware that when the Steele recommendations came out, people across the board in Northern Ireland—including the Churches, the political parties and the community in Northern Ireland—agreed with separation but not with segregation.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

I am grateful to the Secretary of State for his reassurance, but that exchange shows how difficult it will be for the Government or for the officers and prison governors at the front line to ensure that the distinction between separation and segregation is maintained in practice. The Select Committee stated that it was

"doubtful that the Government's decision to separate was wholly and simply about safety."

The Committee concluded that that decision was taken

"contrary to the balance of the facts and arguments presented to us".

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

May I take the opportunity of agreeing with the Secretary of State on this issue? One cannot expect absolute purity of position on this matter, given the experience of what the prisons, and what happened in them, in the north of Ireland did to the community there for almost 30 years, and the contribution that that in itself made to paramilitarism. God knows how many people would be alive today, and whether the political face of the north of Ireland might have been completely different, had there been a Secretary of State then, and a John Steele then, who took the decision that has now been rightly taken on Maghaberry.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

No one—least of all me—is going to impugn the hon. Gentleman's commitment over many years to democratic and inclusive politics in Northern Ireland, but on this issue we have to disagree. The risk that we now run is that we might, over time, concede control of those wings of Maghaberry prison to the paramilitary organisations, and that we will once again repeat the mistakes that were made at the Maze.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I am listening to the hon. Gentleman's strongly held views with interest. If the Conservatives feel so strongly about this issue now, and are so confident that they could do a different job if they were in government, why did they not do so in the 1980s and 1990s?

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

If the hon. Gentleman looks back at the history of the period before either of us was a Member of this place, he will find that, during the 1980s and 1990s, the then Conservative Government had recognised the mistakes that had been made in relation to the original decision to permit segregation, and were working to phase it out—as eventually happened. I remind him that the criticisms that I have quoted from the Select Committee report were agreed unanimously by every member of that Committee, regardless of party.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

I cannot comprehend the hon. Gentleman's understanding of the situation at the end of the last Conservative Government, when the Maze—formerly Long Kesh—was completely segregated and no moves were being made to stop that. Also, it was his former right hon. Friend the late Viscount Whitelaw who, as Secretary of State for Northern Ireland, was the first to grant concessions on political status.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

There are few people in any political party who, looking back on the decisions taken in the 1970s, would believe that they helped the cause of peace and democratic politics in Northern Ireland. I am anxious that we should learn from that experience and not repeat those mistakes now or in future.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

No, the hon. Gentleman has already made one intervention, and I want to make some progress.

The problems that will face the Prison Service and Ministers are highlighted by the reports in the Northern Ireland media in the last few days. They involve threats of new dirty protests and hunger strikes, and tensions between Provisional IRA suspects and members of other republican terror groups being held on remand at Maghaberry.

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

Like the hon. Gentleman, I visited the prison and viewed the different accommodation improvements involved in the move to separation. Does he accept that the concern of the Select Committee's investigation was that the line now conceded should be held, and that the Government have given verbal guarantees that the line will be held? That is vital for the situation there.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

I agree that, Ministers having made that decision, it is vital to make every effort to maintain that line, as the hon. Gentleman urges. However, I fear that it will be difficult to maintain the line in practice, in the face of determined efforts by terrorist groups in the prison to test that boundary at every opportunity. The Select Committee, on which he sits, was right to conclude that the Government's decision was dangerous, especially for the public servants who will have to implement it and live with its consequences.

Photo of Martin Smyth Martin Smyth UUP, Belfast South

Does the hon. Gentleman acknowledge that the former Secretary of State for Northern Ireland and subsequent Home Secretary, Mr. Whitelaw, apologised publicly to the nation through the media for the mistake that he had made? One of the first victims of that tragedy was a prison officer—a member of my congregation—who spoke out on behalf of the brave prison officers, and who was murdered coming out of the civil service headquarters.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

The hon. Gentleman makes his point well. His constituent was, sadly, one of far too many prison officers and governors who were murdered or maimed by terrorists in Northern Ireland.

I am glad to tell the House that we can fully support two clauses in the Bill. Clause 9 will give the prosecution the right of appeal against a decision by magistrates to grant bail, and clause 14 will make driving while disqualified an arrestable offence. We have no problem in supporting those proposals. They are welcome crumbs from the Government's table, but their inclusion highlights the missed opportunity that the Bill embodies. The people of Northern Ireland, whether they are nationalist or Unionist, want to be protected against crime and antisocial behaviour. For the most part, they want that task to be carried out by the lawfully constituted police force, prosecution service and courts, rather than by the freelance activity of terrorist groups, whether loyalist or republican. Surely it is our job as legislators to give priority to whatever measures will be effective in enabling decent citizens in Northern Ireland to live their lives in safety.

The Chief Constable of the Police Service of Northern Ireland has made it clear that he wants to see changes in the law to strengthen his hand against criminals. The police would like antisocial behaviour orders and parenting orders to be made available in Northern Ireland, along with local curfew schemes, powers to remove truants to designated places and the extension to Northern Ireland of the special provisions in the law relating to racially aggravated offences. I would have thought that that last proposal deserved particular priority, given the appalling attacks on members of the ethnic minorities in Belfast in recent weeks. The figures that I have seen suggest that there has been a 30 per cent. rise in reported racial attacks in Northern Ireland over the last year. However, not one of the measures that I have just listed has been included in the Bill. What is more, the Government have drafted the long title in such a way as to make it very difficult to table amendments to include them.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

While I fully accept that consultation can sometimes be lengthy and tedious, is the hon. Gentleman suggesting that I should truncate the consultation and introduce the legislation before we have gone through that process and allowed the various groups and individuals in Northern Ireland to comment on our proposals?

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

What I am saying is that, given that the Northern Ireland Office has only this single opportunity to introduce primary legislation in this parliamentary year, it would have been better off getting the results of its consultation and then introducing a Northern Ireland criminal justice Bill that would tackle the genuine difficulties faced by law-abiding citizens and seek to add to their protection, rather than introducing this legislation, which I do not believe will serve that purpose.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I am sure that the hon. Gentleman would agree that, given the tremendous delay in starting to advance some of the measures that he mentioned—some of which have been on the statute book this side of the water for years—it is highly reprehensible of the Northern Ireland Office that it should now start this leisurely, elongated procedure. In view of that delay, it would have been more reasonable to proceed with greater expedition.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

The right hon. Gentleman's description and assessment are correct. The Government's priorities are simply misplaced.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

The hon. Gentleman is right to emphasise the opportunity that the Government have missed to introduce legislation. The vast majority of people in Northern Ireland support the introduction of the necessary provisions and are therefore mystified about why consultation should take so long.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

The hon. Gentleman is right. People throughout Northern Ireland, whether Unionist or nationalist, would welcome the package of criminal justice measures that the police have sought and that I have described. Instead, the Bill tampers with the judicial appointments system in a needless and possibly harmful way. Fewer than two years—595 days—have passed since the Justice (Northern Ireland) Act 2002 received Royal Assent. Yet the Government today propose significant changes to a law that they believed was just right for Northern Ireland only two years ago.

Unsurprisingly for a Conservative, I should prefer to leave judicial appointments to the Lord Chancellor, perhaps with an appointments commission to advise and assist him. Matters were conducted in that way under devolved Administrations between 1921 and 1972 and subsequently during periods of direct rule. No Minister has suggested that the current judicial appointments system has produced a partial or incompetent bench. I am sure that the Secretary of State recalls that, for example, the late Lord Lowry, at the height of the troubles, ruled that a conviction could not be founded on the evidence of a supergrass alone. He made that judgment because he believed that it was right in law, even though he must have known that it was bound to lead to several dangerous terrorists being able to walk free. One could point to Lord Hutton's decision in 1994 to dismiss the appeal against the murder conviction of Private Clegg. That decision caused some difficulty for Ministers and other politicians.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The hon. Gentleman appears to suggest that the system worked well from the 1920s until things started to happen in the 1990s. Does he agree that that was not a golden age for justice in Northern Ireland? I put it no more strongly than that. Does he agree that no one would look back on that period with great sentiment?

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

I am an enough of a sceptic not to believe in golden ages. I do not argue that we should go back to the political arrangements that existed in Northern Ireland between 1921 and 1972. We want to move forward, but the examples that I cited refer to important judicial decisions in much more recent history. My point stands that I have heard no persuasive criticism of the current judicial appointments system, on the grounds that judges are either incompetent or partial. The only arguments to that effect that I have heard were made by people who have a considerable vested interest in undermining the judicial and criminal justice system.

Photo of Steve Pound Steve Pound Labour, Ealing North

The hon. Gentleman impresses greatly with the breadth of his knowledge and the depth of his research and I am therefore sure that he knows the answer to my question. Roughly how many Roman Catholic judges were appointed during that period?

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

I am not sure to which period the hon. Gentleman refers. If he examines the figures for the current senior judiciary in Northern Ireland, he will see that people from Protestant and Roman Catholic traditions serve on the bench. Judges and magistrates have been murdered and intimidated by terrorists during the 40 years of the troubles. All holders of judicial office, at whatever level, have had to live in peril of their lives and have known that their families were also under threat.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

The hon. Gentleman and I agree that many Catholic as well as Protestant judges lost their lives through the troubles. I am following carefully the drift of his speech. He appears not to take into account the fact that the Good Friday agreement specifically wanted the criminal justice system to be reviewed. That led to last June's criminal justice review implementation plan, which clearly emphasises the need for a judicial appointments commission. Does not he understand that we have had to go through that process?

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

The Government made the changes in the Justice (Northern Ireland) Act 2002. I do not understand the need, let alone the urgency, for the Government to introduce yet further changes before the 2002 legislation has had time even remotely to bed in.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend accept that, although all that he says is true and many examples exist of stalwart upholders of the law making inconvenient decisions for the Government, a problem of perception lies behind the review? Would he leave matters as they are or make other changes, different from those that the Government propose?

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

I would try to make the 2002 Act work and let us see how we progressed from there. The biggest change for the better that we need in Northern Ireland is for all political parties to be prepared to endorse the work of the police, the courts and the prosecution service. Sinn Fein's insistence that it does not have confidence in those institutions, its desire to deter people from participating in them and its attempts to undermine them as biased and partial helps to create the difficulty of perception that my right hon. Friend Mr. Gummer described.

As the Secretary of State said, the basis of the judicial appointments commission is the criminal justice review that the Government commissioned. Surely the review crafted its recommendations in the expectation that responsibility for criminal justice and policing would be transferred to the Assembly and Executive. It argued in its report that a new appointments system would be needed as devolution took place. The key paragraph is 6.102, which states that

"the factor which, above all, sways us in favour of recommending such a body is the imperative that if political responsibility for judicial appointments is to be devolved, the appointments process . . . must be clearly seen to be insulated from political influence."

The report continues:

"We do not believe that it would be feasible, particularly from the perspective of judicial independence, to leave significant discretion on appointments matters in the hands of Ministers on the Executive Committee."

That approach of the review report was incorporated in the terms of the 2002 Act.

However, if we are honest, we would admit that there is little or no prospect in the near future for the devolution of criminal justice in Northern Ireland. Although I regret it, there appears to be a diminishing prospect of any early return to devolved institutions. Following the Government's logic, I see no urgent need for a Bill allowing the establishment of a new system for judicial appointments ahead of devolution.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I am slightly concerned about what the hon. Gentleman just said. Does he accept that strategic decisions about the legal system should not be made on the grounds that we currently have a tactical difficulty in regard to devolution? That would set a precedent that would unquestionably be used by opponents of devolution in Northern Ireland.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

Strategic decisions on criminal justice were established by the Criminal Justice Review and the 2002 Act that followed it. The Bill's proposals are being produced with very little notice, apparently as a consequence of the joint declaration of 2003. It is those proposals, in my view, that fail the test of a strategic analysis of the criminal justice system that the hon. Gentleman wants to be applied.

Clause 2 goes to the heart of the Bill. It requires those responsible for appointing lay members of the commission to try to ensure that membership is

"reflective of the community in Northern Ireland."

It could be argued, and was I think implicit in the Secretary of State's remarks, that the word "reflective" is an improvement on the term "representative", which was used in the 2002 Act; but we must see that change alongside the new duty in clause 1 that will rest with those appointing not just lay but judicial and professional members to ensure that the membership overall is reflective of the community. Nowhere in the Act was that duty laid in such a way on those responsible for judicial and professional appointments. Moreover, for the first time we see the imposition of term limits on not just lay but judicial members.

The Government have, of course, been full of reassuring words. They say that this is all about putting more women and members of ethnic communities on to the bench. I have no quarrel with that aspiration, provided that appointments are made strictly on merit. I should like more women and members of ethnic minorities to seek successful careers in the law in Northern Ireland, and to gain places on the bench in due course. I fear, however, that no matter what the Secretary of State may intend, the Bill's wording may result in every appointment being pored over in an attempt to access its impact on the overall political and sectarian balance of the commission's membership.

Photo of Mr Roy Beggs Mr Roy Beggs UUP, East Antrim

Surely it would be impossible to achieve such a balance if those to whom positions were offered did not accept them.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

The hon. Gentleman is probably right, but there are other problems too. If the commission's membership must indeed be reflective of the community, a number of its members will presumably have to come from a certain political tradition—that of Sinn Fein, which currently remains, in the Government's own words, "inextricably linked" to an illegal terrorist organisation, and which the Irish Republic's Minister of Justice has publicly accused of making money from organised crime. Worse, a similar kind of political analysis is likely to be applied to the commission's recommendations for the appointment of new judges. The duty to produce a judiciary that is reflective of the community in Northern Ireland surely contradicts the Government's declared commitment, which it continues to make, to the principle that judges should be appointed solely on merit. If the Bill is passed unamended, two contradictory principles will govern judicial appointments.

Lest the Secretary of State think that this is just a complaint from a political opponent, let me refer him to the comments of one whose views I know the Government respect. On Second Reading of the Bill that became the 2002 Act, Lord Hutton said:

"It is clearly vital that a judge should be appointed on merit alone and that appointments should not be influenced by political considerations. That is all the more important in the highly charged political atmosphere of Northern Ireland. If judges are not appointed on merit the administration of justice will suffer, as will public confidence in that administration."—[Hansard, House of Lords, 3 May 2002; Vol. 634, c. 969.]

Let us consider the possible reasons for this Bill. It is, apparently, nothing to do with a problem over the quality of the judiciary in Northern Ireland; nor do the Government consider their 2002 Act to be in any way defective. The only reason for the Bill seems to be that the joint declaration of 2003 provided for it, but that declaration mentioned many other things. It spoke of the need for Sinn Fein to support the police. It said that all paramilitary groups should put their arms beyond use. Above all it said, in paragraph 13, that

"paramilitarism and sectarian violence must be brought to an end, from whichever part of the community they come."

That has not happened. Provisional Sinn Fein continues to boycott the Police Service. Guns and explosives remain in store. The Secretary of State himself has said in the last fortnight that the Provisional IRA has committed a "serious breach" of paragraph 13. Yet the Government's response has not been to impose sanctions against those who are allegedly responsible for kidnappings, for beatings or for sending fellow citizens into exile; rather it has been, through the Bill, to press ahead with changes to the criminal justice system that the republicans themselves have been active in demanding.

Photo of Paul Murphy Paul Murphy The Secretary of State for Northern Ireland

It would be inaccurate to describe the Bill as in any way a concession as far as Sinn Fein, or indeed any party, is concerned. As the hon. Gentleman said, it arose from the joint declaration; but it also arose from a commitment made before that, at the time of the Good Friday agreement. We are moving ahead in terms of criminal justice, which I think is something that everyone wants. It is not a concession to anyone; it is part of an agreement. I know that my hon. Friends in the SDLP, for example, would take exception to the hon. Gentleman's views.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

I am perfectly willing to concede that SDLP Members will take a principled position of support for the reforms being incorporated in the Bill.

Photo of David Burnside David Burnside UUP, South Antrim

I am sure that, on reflection, my hon. Friend will agree that this would be better described as an SDLP Bill. The joint declaration did not, of course, have the consent of the Unionist population.

Photo of David Lidington David Lidington Shadow Secretary of State for Northern Ireland

In pressing ahead with the Bill and giving it such high priority, the Government are making the mistake of letting themselves be seen to be making yet another one-sided concession in Northern Ireland, at a time when the major problem with the political process is the near despair of so many members of the Unionist community about the progress so far towards ending paramilitary activity. I think that the Bill will do nothing to reassure the thousands of decent people who desperately wanted the Good Friday agreement to succeed, and who believed the Prime Minister's handwritten pledges that it and all that followed would bring about a final end to terrorism—the acts of completion of which the joint declaration speaks.

We need more from the Government than the words of condemnation at the beginning of the Secretary of State's speech. In the light of events of recent weeks, it is not enough to carry on as if nothing at all has changed and to conduct business as normal with militant republicans. A clear message must be sent to paramilitary groups, republican and loyalist, that they cannot expect to be treated as full democratic partners in Northern Ireland if they persist with paramilitary activity, which they agreed to forswear at the time of the Good Friday agreement.

The Government should put the Bill on ice and replace it with a criminal justice Bill that deals with the immediate problems of crime and disorder in Northern Ireland. Their failure to address the priorities of the people of Northern Ireland is the reason why we intend to press our amendment tonight.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 2:11 pm, 10th March 2004

I shall refer to two points that struck me forcibly in case I forget them.

First, Mr. Lidington referred to racially motivated attacks, and he was right to do so because they are increasing. One of the difficulties is that people who are in or on the fringes of paramilitary groups carry out those attacks in such a way that many of those who suffer cannot receive compensation because the Chief Constable cannot give them Chief Constable certificates, which means that they cannot be recompensed through the Compensation Agency. The issue is serious, and I am glad that the hon. Member for Aylesbury raises it.

Secondly, it is ironic that the Ulster Unionist party has remarkable confidence in the international monitoring commission and lacks confidence in a judicial appointments commission made up of people from the north of Ireland—indeed, it opposes such a commission. Perhaps we should examine that irony in the context of this debate.

I have advocated devolution of the powers of policing and criminal justice for a long time. In the 1970s, devolution—even administrative devolution—was a pipe dream, and to think about devolution of policing powers and criminal justice was a mild form of insanity. When I raised the issue in my party in the middle to late '70s, I was reminded that we were a sensible party that did and said sensible things, and that we hoped to remain that way. It shows how far we have come that we are once again legislating on such matters on the Floor of this House.

I assure the House and the Secretary of State that I welcome the Bill, because some of the points that I make later may not indicate that. I support the concepts behind the Bill and want to support devolution, which is one of the key elements that we must address.

What type of being is the body politic in Northern Ireland? It has administrative devolution for what are known as the normal Government Departments, a system of north-south arrangements and arrangements between Ireland north, Ireland south and Britain, but it does not have responsibility for the most important issues in its own life—sustaining the police service and the criminal justice system. It is an unfortunate orphan. Such devolution cannot survive because the body politic refuses to take the important issues and say, "Yes, we have confidence in devolution. We will take the good bits along with the bad bits because we have confidence in what is known as devolution and in the need for us to deal with policing and criminal justice."

For too long, we have all, whatever our political point of view, had the luxury of criticising those who are responsible for such matters—those who have sat on these Benches down the years, those within the police and those within the judicial system. That we can take responsibility is a sign that devolution is a maturing political process. We should proceed with the Bill and with the devolution of powers.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

What does the hon. Gentleman say to the many people in Northern Ireland who are concerned that if devolution were to proceed under the Belfast agreement arrangements the person in charge of policing and justice could be inextricably linked to a terrorist paramilitary organisation? How does that bolster confidence in justice and policing in Northern Ireland?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank the hon. Gentleman for making that point, which brings me to my second broad point. Believe it or not, people within what would widely be called "the nationalist community" express concern that somebody from the Democratic Unionist party might end up as Minister for Justice. Believe it or not, some people who are on the DUP side of thinking express concern that one of the "others"—the "others" being the Ulster Unionist party—might end up in that post. One thing is sure; it will be one of us, and that person will have a more immediate relationship with the needs of the north of Ireland.

I know that the Secretary of State will forgive me for saying this, and it applies to any Secretary of State for Northern Ireland or, indeed, any Lord Chancellor: if we are ever to make a success of devolution, which means making a success of Northern Ireland, we must overcome these problems. The hon. Gentleman's point is valid: how does one hand over power in a devolutionary situation in which some participants are involved in paramilitarism? I honestly believe that one cannot hand over power in those circumstances.

Power must be handed over in a situation in which paramilitarism has ended and people have worked together for a period of time through devolution in other areas. In that case, devolution would be tried and tested and it would have been shown that, in the absence of paramilitarism and violence, the system—whatever it is—is workable and can be sustained. That is one of the harsh points that we must examine, because power cannot be handed over until that happens. That is all the more reason why I say to those who are involved in paramilitary activity—those in the republican movement and those in the loyalist organisations—that they are preventing the people of the north of Ireland from exercising the responsibility that they should be able to exercise in those crucially important roles. With their adherence to violence, they are standing in the way of the type of development that we are very capable of sustaining, whoever happens to be chosen to be the Minister responsible.

Those people who say that they are in the political process but who are at the same time connected to violence and paramilitarism should hang their heads in shame. The unfortunate people who are kneecapped or shot dead, or treated as many people have been treated, are not the only victims; one of the other victims is the political process that many of us have spent a long time creating. When I look—from the perspective of many years of involvement—at what those organisations have done to what was painstakingly created over 35 years, I question their alleged patriotism, their alleged interest in the country in which we live and their commitment to a purely political way forward.

I put those comments on record because it is incompatible to suggest that people can take responsibility for a justice and policing system at the same time as they have any relationship, contact or dealings with those who enforce their own strange form of policing. We talk about victims and I am glad the Secretary of State mentioned those people who serve on the policing partnership boards and who have been attacked. Seven have been attacked recently, some of them members of my party. Tom McBride, for example, yesterday suffered a pipe bomb attack on his house. Two members of my party who are councillors in my constituency were actually threatened across the floor of the council chamber, in the presence of the media and officials. It was not a mild threat: it was a threat of violence towards them and their families. I am not going to take that from such people, and nobody should have to take that from them. Our system should not have to take that from them either. Whatever we—I mean all of us here—disagree about, we should agree that we cannot allow a system in which good people are daily and weekly sacrificed on the altar of the atavism of what is called—it is a misnomer—republicanism. In the same way, good people in the Unionist community have been sacrificed by loyalist paramilitaries. They killed 13 people last year and were involved in 145 shootings. Like the republican movement, the loyalist paramilitaries are involved in racketeering and they actually put a lady who was over 100 years old out of her house. The mind boggles when one considers the sum total of their acts, but that is what we have to deal with.

We cannot deal with those problems from the security of the Benches here. If they are to be dealt with successfully, it will be when the political process reaches a point at which devolution is possible. I make a request of the Government—seriously and without a hint of cynicism—that they should not make this issue a bargaining point somewhere down the line. They should not allow the political process to reach a point at which the devolution of powers in the Bill becomes a price demanded by those who will not, at this stage, abide by the rules of democracy. I make that point because I have seen that happen too often, and anybody who values the political process cannot tolerate it.

We use the term "peace process" glibly these days, but as Spinoza reminds us, peace is not just an absence of war but an attitude of mind—a disposition towards benevolence, confidence and justice. It is that justice that must be part of peace, part of this Bill and part of devolution, in a way that proves and sustains the integrity of what the Bill will do.

I make those broad points because we must put the Bill in context. However, I shall move on to the Bill itself. This is the fifth time in five years that we have considered primary legislation on policing and justice.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am sorry to interrupt the hon. Gentleman, who is making a compelling speech, but would he reflect on the happy hours that we spent in Committee on the Justice (Northern Ireland) Act 2002? He tabled amendments, which the Government accepted, to the effect that the First Minister and the Deputy First Minister should act jointly. Bearing in mind what the hon. Gentleman has just said about the difficulty and the slow pace of the devolution of justice and policing, does he now regret that that phrase was written into that Act so often? It will put off the devolution of justice and policing for a long time to come.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank that hon. Lady for that point, but I do not regret my actions. Indeed, one of the criticisms I shall make later is that the commitment on the roles of the First Minister and Deputy First Minister—whoever they may be—has been diluted from what was agreed at Hillsborough. It is essential that the requirement for the First Minister and the Deputy First Minister to act jointly should be in pole position, because without it there would be no devolution—only the giving of some powers by the Government here to an Administration in the north of Ireland, and that could appear disparaging.

As I was saying, the Bill is the fifth piece of legislation on policing and justice—we have had three on policing and two on criminal justice issues.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

Could the hon. Gentleman elaborate on the agreement at Hillsborough? I am not clear to which agreement he refers. Who agreed to the proposal that he mentions?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

It was agreed between the two Governments and subsequently became known as the joint declaration. Like the hon. Gentleman, I was not present at Hillsborough, so I cannot say in what context it was agreed, but when two sovereign Governments write such an agreement in a joint declaration that they will use as a cornerstone for future legislation, one expects that they will tell the truth. I am prepared to accept that—and I would recommend it to the hon. Gentleman, too.

I fully accept that most of these points derive from what was not dealt with in the previous primary legislation and had to be squeezed out of the Government at Hillsborough. The Secretary of State put it more gently, but that is the reality. I was concerned about the reference to Sinn Fein, because its reasons were nothing to do with the quality of legislation. Our reason was to get the legislation in accord with the recommendations of the review. There is a huge difference, and that is why we are considering this legislation, just as we had to consider policing, because an untold mess was made of it for the wrong reasons. Patten was diluted, and we had to come again to the issue. The criminal justice review was diluted, and we have had to come again today to the issue.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

The hon. Gentleman will be familiar with the concept of nothing is agreed until everything is agreed. Since when was it agreed that the joint declaration would be the cornerstone of any legislation in this House?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

It was agreed by the representatives of the British Government at Hillsborough. It is in the joint declaration. I recommend to the hon. Gentleman that he reads the declaration made by the two Governments.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

We were not a party to that.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I was not there. I cannot say whether your party agreed to it. [Interruption.] I beg your pardon—your ex-party.

The reality is that the two Governments made an agreement that brought what was previously legislated into line with the criminal justice review. Now let us get on with it and get it right. I welcome the legislation, which is very important for a number of reasons.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The hon. Gentleman says that the Bill is to bring the Justice (Northern Ireland) Act 2002 into line with the criminal justice review. Will he consider the question of the judicial appointments commission, and in particular the provision in paragraph 6.102 of the review, which makes it absolutely clear that the overriding reason for having the commission is the prospect of devolution, so the 2002 Act is on this point entirely in accordance with the review, but the Bill is not?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I take the right hon. Gentleman's point, and of course he can stress that when he makes his contribution, but now I want to describe three broad areas in which I am very much in favour of the Bill.

The Bill imposes a duty to ensure that the judiciary reflects the community. I am not talking about good judges or bad judges. There is no implication that, because a person is a Catholic, a Protestant, a Unionist, a nationalist, DUP, SDLP or whatever, they are any better or worse as a judge. I am saying that it is essential, especially in a divided community, that the whole business of criminal justice is not the preserve of the lawyers—it is much too serious to leave it simply to the lawyers, much as I respect them.

Some of the people I knew over the years who became judges—people I was very friendly with—were killed, by the same organisation that I was talking about earlier. I can think of four. Some who became judges were previously Unionist Ministers and Attorneys-General, and were excellent judges, so I make no point about that, but I do want to see a judiciary that reflects the wider society and does not come from a religious, academic or social stratum that excludes others. How many judges came from outside the grammar school system in Northern Ireland? I bet if we looked it up—I confess immediately that I have not—we would not find one. Nor would we find representatives of the ethnic communities. Nor are there any ladies—there are no women, I believe, and if there are they are certainly hiding their light under a bushel. There is a whole wide concept of making the judiciary reflective of the community that is not tied into political or religious views. It is much wider and more important than that.

The Bill imposes a duty on criminal justice agencies to have regard to international human rights standards. I think that Lady Hermon will want to come in on that point—no, thankfully, she has not made the point that she was about to make, because I do not have the answer, but I will have it at a certain point. Perhaps I could do a Secretary of State for now.

The third area to which I draw attention is the position of the Director of Public Prosecutions. The fact that the Bill deals with that, too, is welcome. All three matters should have been dealt with in the original legislation, as the criminal justice review required, but for long-standing reasons they were not.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

The hon. Gentleman will remember that the code for prosecutors is already legislated for in the 2002 Act. The international guidance is already on the statute book, so I am intrigued as to what further international guidance would be relevant to the criminal justice system.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The hon. Lady will have to wait for the Minister's winding-up speech or the Committee stage to get a definitive reply to that.

I want to cover two further crucial points. The commitment made by the two Governments at Hillsborough, in line with the review, is that there would be "a requirement" on the DPP

"to refer to the Police Ombudsman cases of alleged police misconduct discovered in his casework"

That is a simple commitment: any time the DPP comes across an allegation, he has to refer it to the ombudsman, but the Bill, like its predecessor, does not do that, and instead the DPP has to refer cases only when it appears to him that there might have been some wrongdoing. He can decide not to refer allegations simply because he does not believe them, even though it is the police ombudsman's job, not his, to investigate such matters.

Why does this matter? It is crucial, so I will give an example, because it is a vital protection for the process of law and for the community. In 1991, William Stobie was charged with the possession of weapons. On being charged, he threatened to reveal that he had warned the police that the UDA was going to murder someone, and had told them where the weapon that was to be used was. The police made no move. Pat Finucane was shot dead with that weapon in his own house, on a Sunday, in front of his family. Once Stobie had threatened to reveal all, what happened? Charges against him were dropped by the then DPP. Of course, there was no police ombudsman at the time, but no explanation was ever given, and a cloud has hung over the DPP's office ever since. Had the law then been as we want it to be, and as it should have been, the DPP would have had to refer Stobie's allegation for independent investigation—by whomsoever. That is why this issue matters, and it could not matter more. Indeed, had that law been in place, we might—might—have saved lives and avoided some of the issues referred to in Judge Cory's report.

The Government gave another simple commitment: that in the respect of the appointment of senior judges, the First Minister and Deputy First Minister

"will make recommendations to the Prime Minister, who in turn will recommend appointments on this basis."

But of course, the Bill does not say that; it leaves out the phrase "on this basis". Because of the way in which the provision is phrased, the Prime Minister can consult the First Minister and Deputy First Minister and proceed to ignore their recommendations. As an ex-Deputy First Minister—I will never be one again—I do not want any First Minister or Deputy First Minister in the north of Ireland to be treated in that way. When they make recommendations, and when they jointly agree that it will not be the right of a Prime Minister to act otherwise, I want those recommendations to stick. In that regard, the Bill needs to be put right. Intriguingly, such a provision is included in the explanatory notes but excluded from the Bill. I want it to be included.

I finish with a broad point about the Cory report. As my hon. Friend Mr. McNamara and I have said in the House on a number of occasions, how can we expect and demand of others that they live up to what is required of them in the agreement—requirements to which they are committed—when, in effect, the Government have yet to fulfil their responsibilities as outlined at Weston Park? I was there, and I have the piece of paper on which the Prime Minister gave the following absolute commitment:

"In the event that a public inquiry is recommended in any case, the Government will implement that recommendation."

I have listened to various explanations from Government sources, but why has that not happened? Why are the Government not honouring their commitment in respect of this crucial matter? How can we point the finger at others for not honouring their commitments when, in effect, one of the agreement's guarantors is not honouring theirs? I do not want to labour the point, which I make in a broad context. There is no chance whatsoever of fostering the attitude within the community that would allow us to take over the responsibility for the whole issue of justice and policing until that commitment is honoured.

I feel deeply about this legislation. In terms of those who are not allowing others in the community to move the political process forward, I feel deeply that that has got to end. Unless we start to understand the fears and apprehensions in the minds of others—be they Unionist minds, Democratic Unionist party minds, republican minds or nationalist minds—we will not get to the heart of this problem. The awfulness of what the paramilitary groups are doing is preventing people from understanding the problems, in terms of justice and policing, of those who will be their partners in a devolutionary situation. The paramilitaries are again killing the disposition towards benevolence and confidence that can deliver justice. To the enormity of the crimes that the paramilitaries have committed over the years, we can add that of preventing the good people in the north of Ireland from taking control of matters that are crucially important to their lives, so that the atavistic requirements of those paramilitary groups can be served before the needs of others.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 2:45 pm, 10th March 2004

In introducing the Bill this afternoon, the Secretary of State properly reminded us of the progress that has been made in Northern Ireland in the past six years. We on this side of the water have always regarded that as an exercise in Northern Ireland's catching up with developments in Great Britain. Ironically, after the shenanigans in the other place on Monday night, we have the prospect of Northern Ireland taking the lead, with England and Wales being left to follow.

Liberal Democrats are pleased to give the Bill a broad welcome. We have already made our attitude to it clear in the other place, and the Minister will be aware that we are not uncritical of it. Improvements have been made in the course of discussions in the other place, and notwithstanding the Secretary of State's comments about some of those changes, we hope that the Government will think carefully before they seek to bulldoze the amendments away, and that they may be preserved. There is still scope for improving the Bill, and we Liberal Democrats will play our role in that. If I have any criticism, it is that it is something of a hotch-potch. Bills that pull in little bits in respect of bail, youth justice and courts are slightly unhelpful, but we are where we are and we have what we have.

I should make it clear at the outset that we will not support the Conservatives' reasoned amendment. If one regards the Bill as part of a process and considers it in its full political context, it is somewhat perplexing that they should table a reasoned amendment in this particular form. I read with great care the reasoned points made by Lord Glentoran in the other place on Second Reading on 17 December. He made it clear, in a fairly measured way, that there are certain aspects of the Bill with which he does not agree. There was no hint, however, that a reasoned amendment such as this would be tabled in this place, and I am afraid that the only conclusion that I can draw is that we are now dealing with matters such as judicial appointments in a slightly more febrile atmosphere than existed on 16 December, when their lordships received the Bill for consideration on Second Reading.

The tabling of today's reasoned amendment perhaps has more to do with what happened in the other place on Monday night than with anything in the present Bill. I make these comments with some hesitation, because this situation is particularly regrettable. The Bill does not exist in isolation—it is part of a process and has emerged from the criminal justice review and last year's joint declaration. We have supported that process, and the Conservatives previously supported it, adopting a non-partisan approach.

When Mr. Davies was calling the shots, that approach changed. I had hoped that with the appointment of Mr. Lidington we might see some progress in the other direction. Indeed, for some time I had considerable confidence that that would happen. Unfortunately, however, the hon. Gentleman seems to have lost sight—or perhaps others pulling his strings have lost sight—of the bigger picture of which the Bill is part, and accordingly we have the amendment, which the Liberal Democrats cannot support.

I wish to deal first with the question of the independent commission on judicial appointments. Mr. Trimble effectively asked the Secretary of State for a report-back on how the system is working north of the border, where we have had an independent appointments body for about three years. I must be honest and say that I do not follow these matters with quite the same interest as I did previously, but my general impression is that it is working exceptionally well. Certainly when we consider the appointments that have been made, both to the College of Justice and to the shrieval bench north of the border, we do not recognise any of the hares set running in the speeches of the hon. Member for Aylesbury and others in the other place about the creation of an independent commission.

We have a system to which the public can look with a degree of confidence. It can be seen that one does not become a senator of the College of Justice or a sheriff north of the border simply because of the school one went to, who one shared a flat with at university, who one happened to be in practice with, whose stables one was part of or any of the other matters about which suspicions always lurked in the past when the system was such that names emerged from a fog at the centre of which was the Lord Advocate.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Does the non-statutory judicial appointments board in Scotland have the power to delegate even its appointments procedures to a committee or sub-committee, or does it operate as a board? The hon. Gentleman must know from the earlier provisions in the Justice (Northern Ireland) Act 2002 that the judicial appointments commission to be set up in Northern Ireland will have the power to sub-delegate its work, including appointments, to committees, which will include people who are not even members of the JAC itself.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

To be candid, I do not know the exact set-up in Scotland. However, applying first principles to it, I note that the hon. Lady says that it is a non-statutory body, so effectively it has power delegated from the Scottish Ministers. I imagine that those powers will be subject to the principle "delegatus non potest delegare"—one cannot delegate a power of which one has oneself been a recipient. Therefore, I imagine that it does not have that power. No doubt others will have applied their minds to that matter more carefully than I have. The power that exists under the 2002 Act is there, so I do not understand the parallel that the hon. Lady seeks to draw to my attention in that regard.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

The hon. Gentleman said that the Scottish judicial appointments board had done a very good job. He was very complimentary about it. However, there is not a strict parallel with Northern Ireland, because the proposed judicial appointments commission in Northern Ireland will operate on a completely different basis. Those who have confidence that it will make appointments perceived to be much more independent than those made to date must look again at the power that it will have to sub-delegate its powers to appoint.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am grateful to the hon. Lady for that intervention. I follow her point. However, it is perhaps for discussion in Committee rather than being an objection to the principle of the establishment of a judicial appointments commission in the first instance, which is essentially what we are dealing with on Second Reading.

The fact that although we have such a body in Scotland the sky has not fallen in and the world continues to turn on its axis should give some comfort to the Cassandras we have heard. The hon. Member for Aylesbury said that there were two contradictory principles—that the principle that the judiciary should be reflective of the community was somehow in conflict with the merits of the Bill. I take a rather higher view of the wider community than perhaps the hon. Gentleman does. I do not see why there is automatically a contradiction between the two principles. I do not see why a judiciary drawn from the widest possible range of the community should in any way be lacking in merit. That perhaps is the difference between me as a Liberal and the hon. Gentleman as a Conservative.

I defy anybody to say that the existing system, which relies on a lack of transparency and carries with it the suspicion that it works on the basis of nods and winks, is entirely merit-based. Having seen the performance of a number of their lordships appointed under that system, I certainly hope that there was some other reason than merit for their appointment, because merit alone could not possibly account for their appointment: either that, or the assessment of their merit was poor.

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

The hon. Gentleman will appreciate that I speak purely for myself these days, and not on behalf of my party. Will he not concede at least the possibility that if the best 20 judges were selected to serve a particular community they might all turn out to be Catholics, or, for that matter, to be left-handed? Surely the hon. Gentleman will concede that much?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Before I answer the hon. Gentleman's point, may I tell him that we miss his contributions to Northern Ireland matters. In the Committee corridor, we often hanker after the days of the Taylor test and we miss the Taylor doctrine. I am delighted that the hon. Gentleman is back with us dealing with Northern Ireland business.

The hon. Gentleman is absolutely right, that on an objective analysis, however the assessment is made, one could have 20 Roman Catholics, Presbyterians or left-handers, but one wonders just how well such a bench could serve the community as a whole, which is what we are dealing with today.

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

The hon. Gentleman has been very kind to me this afternoon, but I must ask him this. Surely, once it has been accepted that the best 20 judges might all be Catholics, if the hon. Gentleman does not find that that would sit well with the acceptance of that bench by the community, is he not then intellectually already in the province of quotas?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Absolutely not. The difference between the hon. Gentleman and me is that I believe that we should examine the judiciary as a whole, rather than as 20 individual judges. We have to assess how the judiciary as a whole can best serve society in the widest sense. Twenty judges who are all left-handed, Roman Catholic, Presbyterian or whatever would not inspire confidence among the right-handed or ambidextrous part of the community, so they are not serving the wider community well.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

Does my hon. Friend agree that—[Interruption.] Actually, I happen to be left-handed. Although what Mr. Taylor suggests is theoretically possible, does my hon. Friend agree that the prospect of having 20 Catholic left-handers chosen by accident is infinitesimal? In the real world, there seems to have been a lack of faith in the selection process in the past when improbable percentages came about, and people did not accept that the appointments were purely on merit.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

My hon. Friend is right to lure me back into the real world and away from the world of Mr. Taylor, tempting though it is.

Photo of Steve Pound Steve Pound Labour, Ealing North

I thank the hon. Orcadian for giving way. Surely the fact that 50 per cent. of the entire Liberal Democrat Front Bench is left-handed—or, as we would say, sinister—shows that such things can happen!

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I do not think that you have been listening during the last few minutes, Mr. Deputy Speaker, and I am absolutely delighted about that—[Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I assure the hon. Gentleman that, whatever direction the Deputy Speaker is looking in, he is always listening. It would now be appropriate to get back to the meat of the business.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I apologise wholeheartedly, Mr. Deputy Speaker, for momentarily forgetting the full panoply of the powers at your disposal, and I am certainly more than happy to return to the subject of the Bill.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Shadow Spokesperson (Communities and Local Government)

The fact that 50 per cent. of their Front Benchers are right-handed and 50 per cent. left-handed shows that the Liberal Democrats can look both ways at the same time. Nevertheless, does the hon. Gentleman not accept—we will have to discuss the matter in detail in Committee—that there is clearly a tension between appointment on merit and appointment that is reflective of the community as a whole? The judgments that have to be made are difficult, but the Secretary of State was quite clear, in his introduction to the Bill, that merit was the first consideration and that being reflective of the community was secondary. Does the hon. Gentleman not concede that there is surely a tension between them?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Of course there is a tension, and it is a perfectly healthy, normal and natural tension. However, I do not believe that it is a tension that defeats the general principle of the establishment of the commission in the first place. My view is different from that expressed in the reasoned amendment, which the hon. Gentleman is inviting his colleagues to support this evening. We can only have the discussion that the hon. Gentleman said was necessary in Committee if the reasoned amendment is rejected.

Photo of Steve Pound Steve Pound Labour, Ealing North

There is a new Deputy Speaker in the Chair to offend.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

That being the case, I shall try to truncate my remarks and allow the hon. Gentleman, who is as capable as I am at antagonising, to speak.

I want to move on. Clause 6, which deals with influencing a prosecutor, takes us into territory that the Government often visit—criminalising conduct that is already criminal. I asked the Secretary of State how the provision differed from attempting to pervert the course of justice, and he provided a lengthy answer about people who might want to write to a prosecutor to give reasons why someone should not be the subject of criminal proceedings, but also referred to other sorts of conduct that are not currently criminal. I am afraid that, by the end of the Secretary of State's answer, I was none the wiser; in fact, it will be no surprise to any hon. Member in the House if I say that I was not even better informed. [Interruption.] If the Minister can explain the difference between the offence in the clause and attempting to pervert the course of justice, we will listen carefully. I see no particular need for the clause, so it is for the Government to explain what they hope to achieve by it.

Clause 7 deals with providing guidance to criminal justice agencies on human rights standards. On my initial reading, I thought it quite sensible, but Lady Hermon subsequently asked a couple of questions about what international standards would be the subject of the guidance. From my own experience, having reflected on the conditions of prisoners on death row in America, I know that there are a number of international conventions to which the UK is party—for example, on the treatment of prisoners—that might well fall under the wider ambit of the clause. That is just my best guess; I hope that the Minister will provide something more specific in his reply.

On clause 12, we heard an interesting rewriting of history from the hon. Member for Aylesbury on the issues of segregation and political designation. I thought the hon. Gentleman received good advice from Mr. Clifton-Brown who I thought told him as he dug himself energetically into a hole—I hope that the Hansard report will catch it—to "move on". Eventually, the hon. Member for Aylesbury took his hon. Friend's advice.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Shadow Spokesperson (Communities and Local Government)

Whatever the hon. Gentleman may have heard sotto voce, I do not recall and I do not believe that I told my hon. Friend to move on. I would not dare give him such an instruction.

Photo of Steve Pound Steve Pound Labour, Ealing North

Did you say, "Move on"?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

If the hon. Member for Cotswold tells us that he did not tell his hon. Friend to "move on", he may have just uttered the words at random for whatever reason.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

Does my hon. Friend agree that if Mr. Clifton-Brown did not advise his hon. Friend to move on, he should have done? As I recall, Mr. Lidington claimed—amazingly, in my view—that the Conservative Government had worked to remove segregation. Does my hon. Friend recall that they did not do a thing to stop segregation? In fact, segregation was powerfully established by 1997, so it is neither reasonable nor plausible for Conservative Members to rewrite history on such a core issue.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I thank my hon. Friend, whose recollection of events more accurately mirrors my own, for his intervention—and I see other hon. Members who have a longer pedigree than me on that matter also nodding in agreement. Now that my hon. Friend has put the record straight, we might just leave it and move on, but my noble Friends in the other place expressed a concern about ensuring that the matter of separation should be tied to individual prisoners, rather than on the basis of classification. If classes of prisoners are to be separated, it is difficult to see the distinction between that and segregation.

We were pleased to support Lord Hylton's amendment

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

I would like to correct a misapprehension—inadvertent, I am sure—on the part of Lembit Öpik, who said that Conservative Governments had done nothing about segregation in Northern Ireland. I am not sure whether the hon. Gentleman was a Member of the House at the time, but I remember, because I was the Whip, the Fair Employment (Northern Ireland) Act 1989, with its quotas and timetables for the workplace. I was here; I am not imagining the Committee stage of a long Bill. The Act was difficult to get through, but we did it.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Perhaps the hon. Gentleman did not have the benefit of hearing his hon. Friend the Member for Aylesbury and the exchanges that punctuated his speech, because I do not think that the point that he is making is about segregation within prisons, which was the point at issue. If he wishes to explain his point at greater length, no doubt he can catch your eye later, Madam Deputy Speaker, but I am mindful that others want to speak, and I want to bring my remarks to a conclusion.

As I was saying, the Liberal Democrats in the other place were pleased to support an amendment tabled by Lord Hylton, the chair of the Northern Ireland Association for the Care and Resettlement of Offenders, which was designed to tighten the clause by wording it as follows:

"If it appears to the Secretary of State that, because of his serious misconduct, or, with his consent, for his own protection" a person should be transferred to England or Wales. That is similar to amendments that we expect to table on Report, and I hope that the Government will give them fair consideration before then.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am sorry, but I really do want to bring my remarks to a close. I have been fairly generous in giving way to hon. Members.

There are several gems in the Bill. The provisions on bail seem entirely sensible, as does the power for arrest without warrant for driving while disqualified. On the whole, the Liberal Democrats are pleased to support the Bill; we think that it is an important contribution to a process of which we are generally supportive. We shall have more to say at a later stage, but today we are content to support the Government.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North 3:12 pm, 10th March 2004

Before I start on the main part of my speech, I should like to refer to some of the remarks that have been made in the debate, especially by Mr. Taylor, in the context of the attitude of Conservative Front Benchers to the Bill. With the Fair Employment (Northern Ireland) Bill, the whole idea was that merit alone would matter. For any job or job application, nothing but merit would count.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

May I finish making my point? Then I shall certainly give way.

I sat through most of the proceedings on that Bill, and I do not remember it being such a tremendous fight for the then Government to get it through. As I recall, it was given a very fair wind by the then opposition, to such an extent that the Government accepted many of our amendments, and we helped the Bill along.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I was most impressed listening to the hon. Gentleman emphasising the idea that in employment, merit should be all. When did he change his mind?

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

I have not changed my mind; I wanted affirmative action programmes. I was simply saying that the Government at the time said that it was all merit, merit, merit—yet now the Conservatives are decrying that idea.

The joint declaration was part of the tortuous negotiations that have followed the Good Friday agreement. That itself reflected a compromise resulting from political negotiations between the parties, with the assistance of the British and Irish Governments—a process supported by the United States, the institutions of the European Union, non-governmental organisations, Churches, trade unions and an array of state and non-state bodies.

In the course of those negotiations, when it was felt that matters required further thought and consideration for the sake of building trust and confidence in the process, the task was outsourced. It was taken on by a diversity of individuals forming independent commissions of unimpeachable integrity. Membership of those bodies required expertise and vision to take the project through, plus courage and, some might say, unimaginable perseverance.

In discussing the delivery of criminal justice in Northern Ireland, we must pay tribute to the work of the Patten commission on policing, and to the criminal justice review team, which together supplied the template for a system that would be an international model for defending and promoting respect for human rights and upholding the rule of law.

One offshoot of that was the establishment of the Police Ombudsman for Northern Ireland. Mrs. Nuala O'Loan, who is now in that office, demonstrated at an international conference in Belfast last November that that Northern Ireland institution is now regarded throughout the world as a model, an exemplar and a leader in civilian oversight of the police and police accountability.

When they were fulfilling their responsibility to introduce legislation on policing, the Government were warned that the drafts did not meet the requirements of the Good Friday agreement or of the Patten commission. When that first happened, we were laughed out of court, but their first policing Bill emasculated the Patten report, and three years later, Ministers were back with a second Bill to redress the shortcomings of the first. On criminal justice, Ministers were again warned that the Justice (Northern Ireland) Bill, which became the 2002 Act, did not meet all the expectations. Two years later, we are back again with another Bill.

My noble Friend Baroness Amos has referred to that as a matter of steady evolutionary progress, a journey of reform and modernisation. It was not; it was three years of wasted opportunities. Each time a Government fail to meet their commitments or modify them, or seem to be swaying one way or the other, they undermine trust and confidence in the process as a whole. That is the Government's share of responsibility for the crisis in which the process now finds itself.

I welcome the successful conclusion to the negotiations at Weston Park and the joint declaration by the British and Irish Governments published subsequently. In so far as the Bill introduces measures set out in the declaration, it is to be welcomed, and I do welcome a great deal of it. However, I feel that it does not go far enough.

On accountability, I do not feel that there is sufficient transparency in the appointment or the exercise of the responsibilities of the Director of Public Prosecutions. As for the composition, I do not feel that the systems in place are sufficiently robust to ensure that the criminal justice system reflects, and is seen to reflect at all levels, the community that it serves. On ethos, I do not feel that sufficient progress has been made in transforming the image, symbols and traditional practices of the criminal justice system to create what Patten looked for—a sense of shared ownership of the system across the divided community.

Those issues still have to be addressed if we are to succeed in completing the process of devolution—and I want that to succeed. I welcome the Government's decision to bring forward the introduction of the judicial appointments commission in advance of the devolution of justice powers. In the light of past legislation that failed to meet expectations, I believe that it is important to put our commitment to openness, transparency and accountability beyond doubt. By putting it in statute, we underline the Government's perseverance and determination to see that devolution is returned on the principles of the Good Friday agreement.

I also welcome the proposal for a programme of action to focus on equality issues that affect judicial appointments and commitments to establish a consultative forum. I hope that my right hon. Friend the Minister of State can assure me that the forum will also include members of non-governmental organisations and community support groups.

Of course, not every aspect of change requires primary legislation. I am pleased that the Government have been persuaded of the need for a justice oversight commissioner. That was the result of pressure from colleagues in the Social Democratic and Labour party and on the Labour Benches. That pressure has worked, to a limited degree.

Clause 5 deals with the duty of the Director of Public Prosecutions and provides that matters of police malpractice should be referred to the ombudsman. However, as I pointed out in an intervention on my right hon. Friend the Secretary of State, the clause does not go as far as was promised in the joint declaration. The Police (Northern Ireland) Act 1998 leaves the DPP with a discretion in such matters. As my hon. Friend Mr. Mallon noted, if examples of police malpractice had been passed directly to someone similar to the proposed new ombudsman, some of the terrible things that have happened in Northern Ireland might have been avoided.

Clause 5 confers excessive discretion on the DPP to decide whether a matter must be referred to the ombudsman. The review recommended that

"a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated."

Clause 5 does not do that. It is quite proper that the DPP should retain responsibility for making decisions about prosecutions, but his duty to ensure effective investigation requires that his own suspicions, or allegations that are brought to his attention, should be referred automatically to the ombudsman.

Clause 7 is entitled

"Guidance for criminal justice organisations on human rights standards".

It has raised a number of interesting questions already, and I wait to hear what my right hon. Friend the Minister of State will say when he sums up. However, in the Joint Committee on Human Rights, we have been examining the matter, and have asked the Government to detail which international covenants and agreements in respect of human rights they have signed up to and those with which they have had problems. For example, the Government have not agreed to all the protocols in the European convention on human rights. Some have suggested that it is not quite accurate to say that Britain is a paragon of virtue when it comes to international standards of human rights, given the 13 people presently being held under maximum security without proper trial.

In many respects, our system can bear examination according to the best standards in human rights. I hope that such an examination is carried out properly. That is why I do not understand why the Government say that it will be for Attorney-General for Northern Ireland to issue guidance to the criminal justice agencies on the exercise of their functions in a manner consistent with relevant international standards. It is a useful proposal, but I do not understand why the wording used is considered better than a requirement to have "due regard" for a list of relevant standards, which could be included as a schedule to the Bill. Providing that the agencies must comply with a list issued by the Attorney-General is not as full a provision as the joint declaration led people to expect.

Clause 7(8) exempts the prosecution service from having any regard to human rights guidance issued by the Attorney-General for Northern Ireland where it would be inconsistent with the code of practice issued under section 37 of the Justice (Northern Ireland) Act 2002. Given that section 37 is meant to meet those standards, I do not understand why the exemption is proposed. I hope that my right hon. Friend the Minister of State will explain why the code of practice for the prosecution service should be singled out in that way, or why it should be permitted to be inconsistent with guidance on international human rights standards issued by the Attorney-General.

I have already complimented the Government on appointing the justice oversight commissioner, but I want to turn to another matter that arises by way of background to the Bill. In his first report of December 2003, Lord Clyde noted that there appeared to be significant delays in implementing recommendations 5 and 6 of the criminal justice review on equity monitoring.

Equity monitoring is an extremely important aspect of criminal justice reform in Northern Ireland and crucial to building confidence in the system. Both the criminal justice review implementation plans confer lead responsibilities for equity monitoring on the criminal justice board, but I hope that the Minister of State will clarify the matter when he winds up. Lord Clyde states in his report that the board intends to publish the first results on equity monitoring only in 2008–09—an enormous length of time after the board's establishment. The matter requires detailed explanation.

In the languages of the review, equity monitoring consists of

"effective equity monitoring of the workforce and of job applicants" as well as

"monitoring, with a view to recording, any potential differential treatment of people who pass through the criminal justice process or are affected by it."

I see no reason why it should not be possible to publish a breakdown of figures for the work force of each criminal justice agency well before 2009, which will be long after I have left this House.

I cannot understand either why the board should be treated in that way, when all other private and public employers have a responsibility to produce their plans for equity monitoring. In such a sensitive area, it is wrong for there to be so long a delay. Lord Clyde provides a religious breakdown of the criminal justice division of the Northern Ireland Office as it was in 2002, but it seems that the same is not possible for the board.

With regard to the criminal justice division, when will the figures for 2003 be available? We are also entitled to ask for publication of dates and statistics for all the other criminal justice agencies, such as the public prosecution service.

Clause 4 deals with the appointments of the Lord Chief Justice and the Lords Justices of Appeal. My hon. Friend the Member for Newry and Armagh has already raised the matter, and I do not want to waste the House's time, but the updated implementation plan stated that the Prime Minister would make the appointments

"based on the recommendations of the First and Deputy First Minister".

However, the Bill seems to give the Prime Minister carte blanche to impose any person that he wants. It provides only that he has to "consider" a recommendation made by those Ministers: he does not have to accept it. Presumably, after he has spoken to the Lord Chief Justice, he will be able to go outside their recommendations, even though the whole point of the Bill was to give control of and responsibility for the justice system to the people of Northern Ireland, through their elected representatives. I thought that giving people in Northern Ireland a sense that they belonged to the system and owned it was to have been part and parcel of the proposals.

I welcome much that is in the Bill and trust that much more will be improved in Committee. It is regrettable that, once again, the Government, having set off with good intentions, succumbed to temptation along the way, left the true path and had to be dragged back by the logic of the Good Friday agreement and of what was accepted in the various undertakings that they gave, which were encompassed at Weston Park and in the implementation plan. I hope that this will be the last time that the Government have to come back to the House with further amendments to legislation that they originally said was the finest example of the implementation of the Good Friday agreement.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons) 3:30 pm, 10th March 2004

Normally, when major legislation on criminal justice and the reform of the courts has been passed, the Government allow a period of time to pass so that the various changes can settle and bed in, and we can consider how they are operating in practice. Yet a mere two years after the passage of the Justice (Northern Ireland) Act 2002, we are considering a further measure on the implementation of the justice system in Northern Ireland. Furthermore, as other Members have pointed out, the Bill follows three recent pieces of primary legislation on policing in Northern Ireland.

Many of the provisions of the 2002 Act are not yet in force. Legislation for England and Wales, which could also apply to Northern Ireland, is introduced in the other place, with the difficulties that have already been mentioned. What is the Government's motivation in their rush to introduce legislation? Mr. McNamara and others have given us the answer. They have referred not to what should be the driving force for the measure—the interests of justice and the efficient and effective delivery of justice for people—but to the delivery of commitments given by the Government, as part of the political process arising from the Belfast agreement, in consultation and agreement with the Dublin Government and certain other parties in Northern Ireland. In my view, that is not the right and proper way to introduce legislation on such a crucial issue.

Such legislation should not be based on political considerations and political agreements hammered out after hours of negotiations between parties for party political reasons but on what is right and proper for the delivery of a good and effective criminal justice system in Northern Ireland. That should be the guiding principle, yet today, time and again, we have heard contributions that show that the driving force for the measure was Weston Park, the Belfast agreement, the joint declaration and the various reviews that have arisen from those agreements.

That is part of our problem. There is no better illustration of our fears and concerns about the politicisation of the criminal justice system and of the danger of political interference than the driving force for the Bill. We are yet again debating a measure that has arisen from the joint declaration—from commitments entered into by the two Governments and the other parties that agreed the process of negotiations that led to the joint declaration. That is why we are debating this Bill so soon after the 2002 Act—because of commitments entered into as part of the joint declaration.

The joint declaration, flowing as it does from the Belfast agreement process, is part of the attempt by the Governments—indeed, a hallmark of the process since 1998—to buy the acquiescence of certain parties, and the republican movement in particular, through concessions. The Governments want to involve those parties and to get them where the Governments want them, but they are doing that by offering more and more concessions. When those concessions do not work, the Governments offer yet more concessions. That is what the joint declaration is all about.

Throughout that process, events have shown that it does not work—especially recently. Terrorists and those allied to them pocket the concessions, but so far they have demonstrated no willingness to move to exclusively peaceful and democratic means. The reason that there has been such an erosion of public confidence in so many aspects of the political process in Northern Ireland is that, time and time again, concessions given as part of the Belfast agreement process to parties allied to terrorists and paramilitaries have been pocketed, yet those parties have not been prepared to commit to exclusively peaceful and democratic means.

The Tohill incident is but the latest manifestation. The republican movement talks a good game on peace and democracy, yet all the time it remains wedded to violence, to the terrorist machine that is the IRA, to holding on to its stockpile of weaponry and to carrying out crimes in broad daylight on the streets of Belfast, if it can get away with that. That is the issue for the vast majority of people in Northern Ireland and that is what concerns them about the Government introducing legislation such as this at this time. Why do we constantly introduce legislation and take decisions in this place to fulfil commitments arising from the joint declaration, the Belfast agreement and all the rest of it, when it is clear that the republican movement and Sinn Fein in particular are not prepared to commit to exclusively peaceful and democratic means?

Both the Belfast agreement and the joint declaration, in which the Bill originates, envisaged the devolution of policing and justice powers to Northern Ireland. Although devolution of at least some elements of policing and justice is desirable if appropriate institutions and arrangements are in place in Northern Ireland, it would be wholly unacceptable in the context of the current arrangements under the Belfast agreement. Indeed, there is no doubt that devolution of such powers in those circumstances would only make things worse.

Appropriate arrangements may be made at some point in the future; we shall have to wait to see what the discussions and negotiations bring forth. However, I reiterate the point I made to Mr. Mallon: the prospect that anyone who is associated with, or inextricably linked to, a terrorist organisation should have any role, or any say or control, in policing or justice in Northern Ireland is wholly unacceptable. However, there is no doubt that the provisions of the joint declaration envisaged that a member of Sinn Fein-IRA could be in that position. Not only would that send a very bad message, it would be a travesty. It would be deplorable not just for the Unionist community, but for the nationalist community as well if someone from that background were put in a position of control over policing and justice. That simply cannot happen. I am reminded of the words of the Minister for Justice in the Irish Republic.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

Just to be clear, is the hon. Gentleman in effect saying that, if Sinn Fein cut all its ties with paramilitary groups, got rid of its weapons and ceased kneecappings, its intimidation of people and its racketeering—if all those things ceased—it could not be in the position that he is discussing? We need to be clear. I am trying to derive such clarity from him, and I have no doubt that he will give that clarity now.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

I am grateful to the hon. Gentleman for his intervention, but we have set out our position very clearly in our recent publications—we have entitled them "the Blair necessities"—and those conditions have been laid down not by the Democratic Unionist party, not by Unionists, but by the Prime Minister and others who have made it very clear that there must be acts of completion: a total end to all paramilitary activity and the disbandment of the IRA, so that it goes away completely and for ever. People in Northern Ireland will have to have confidence that that is in fact what has happened. That must be proved, and we will have to measure that over a period. The reality, however, is that there can be no prospect of our allowing such people into positions of executive power over policing and justice—or, indeed, into any role in executive Government in Northern Ireland. What differentiates us from the Ulster Unionist party and other parties in the House is that we will not tolerate the entry of such people into government in Northern Ireland in this or any other area of responsibility while there is any doubt about their role in terms of the ballot box in one hand and the paramilitary violence in the other.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

Could the hon. Gentleman go a little further and say who—what agency, what body—will establish whether paramilitarism had ended, weapons have been got rid of and all the other paraphernalia of violence has ceased? Who will establish that if it is not formally established through a political process?

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

The hon. Gentleman is talking hypothetically, because there is little evidence at the moment of Sinn Fein-IRA being prepared to commit to exclusively peaceful and democratic means. A judgment will have to be made, but that will be for the people of Northern Ireland, as the Prime Minister said in a response to my hon. Friend Rev. Ian Paisley during Prime Minister's questions some time ago. He said that everyone would have to be satisfied about the acts of completion, and that will have to be measured against the test of whether people in Northern Ireland have confidence and are satisfied IRA violence is over once and for all. We cannot measure that by leaving it to some independent body to establish, by setting it to one side or by defining a set of circumstances or tests. That will be known if and when those circumstances ever come about, and it will be for the people to make a judgment on that at that time. As far as we are concerned, the reality—certainly if the Prime Minister holds to the position that he has set out and others hold to the position that they have set out—is that there can be no role for IRA-Sinn Fein in government in Northern Ireland in the present circumstances.

Photo of Peter Robinson Peter Robinson DUP, Belfast East

Does my hon. Friend agree that the satisfaction of the public would be all the greater if those in the IRA do not behave in the mealy-mouthed way that they did last October, when they tried in a convoluted fashion to give the impression that they may have been ending violence and tried putting weapons beyond use in a way that was not transparent? The clarity and quality of what they do will lead to satisfaction in the community.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

Of course my hon. Friend is absolutely right. When one considers the events of last October and the debacle surrounding the decommissioning episode, one also thinks of the statement that Gerry Adams made at the time, which was heralded as being a major statement akin to, "The war is over." In fact, all bar some politicians who were keen to see the process succeed had no idea whatsoever about what those in the Sinn Fein leadership were trying to say. One would have needed a degree in republican methodology and history to understand what they were trying to say. There was certainly little clarity in any of that, so my hon. Friend is right to point out that such clarity is vital if people are to be certain. Everyone on the ground in the communities must be clear and certain about what is happening. People in the rural parts of Northern Ireland and in the towns and cities must be clear—this will not have to be explained to them—that the IRA has gone and that the violence is over once and for all.

Legislation and the criminal justice system should not change as the result of political negotiations such as the joint declaration and the Belfast agreement. They should be measured against the test of whether they will improve the criminal justice system's ability to make people feel safer in their own homes, as the then Secretary of State for Northern Ireland said in introducing the 2002 Act on Second Reading. Instead, what we have heard today from the Government and a number of other Members in support of the Bill is that such things should be measured against the test of whether they are in the joint declaration or the criminal law review implementation plan. Those are not the crucial issues. The crucial test is whether the Bill delivers a better criminal justice system. Will it enhance trust and confidence in the judiciary? Does it protect judicial independence, or does it increase political interference? Will it result in a more efficient and effective delivery of justice? Those are the tests and measures that we should be proposing, not those advanced by Members in support of the Bill today.

Turning to some of the Bill's detail, I agree with other Members that there is little controversy about some of the clauses, and they will have the support of everyone—in particular, clause 9, which introduces the right of appeal against the grant of bail in a magistrates court. That is in line with what the Chief Constable and the police want, and there is no controversy about that. Clause 14 gives the police the power to arrest in cases of driving while disqualified, and those are sensible modifications to the legislative regime in Northern Ireland.

That, however, prompts the question raised by Mr. Lidington. If such measures are being introduced, why cannot the Government go further and introduce a number of other provisions that the police and communities want brought into force? I understand that the Government's position is that there will be a period of consultation, but there has been much foot dragging. I have no doubt that, when people in communities across the Province are consulted, they will say a big yes to the introduction of measures such as those for antisocial behaviour orders. I have spoken to the Minister about that subject and I know that he has an interest in it.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

The hon. Gentleman knows that communities across Northern Ireland have resoundingly said yes, and we have put detailed provisions out for consultation. Furthermore, I have shortened the consultation period precisely so that we can implement the measures as soon as possible. There is a crying need for them, and we know from experience in England that they work. We want to introduce them as soon as possible. We have been taking action, so I do not think that we can be accused of dragging our feet.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

I am afraid I have to disagree. The Bill provided an opportunity to introduce legislation, and there would have been little argument about the propriety of doing so. I am at a loss to understand why that and other provisions should be missing. If the Bill passes through the House tonight, I hope that we will have a chance in Committee to return to some of these issues. We have an opportunity that should not be missed.

The biggest issues for many people are the fear of crime, the reality of crime on the streets and the lack of a proper police response, as they see it, to deal with many problems. When one talks to the police, one finds that the issue for them is not just the lack of proper resources, but the lack of proper powers to deal with some of the problems. They would be keen to see progress on some of those issues.

I shall move on to some of the more contentious provisions in the Bill. Clause 1 allows for establishment of the judicial appointments commission immediately in advance of devolution of criminal justice matters to Northern Ireland. Throughout the debate, the Government and the Bill's supporters have relied on the need to implement the criminal justice review. They have said that it provides an argument in favour of some of the provisions being introduced. They have argued that the Bill is not entirely faithful to the review and other recommendations, but the clause is an example of something that was not in the review. It explicitly said that the provisions contained in the clause should go hand in hand with devolution. However, the Government have introduced a clause that will set up the judicial appointments commission in advance of devolution. I would be grateful for an explanation of why such a provision is so urgent when there is not the same sense of urgency about other matters.

Reference has been made to the position in Scotland, but we are not yet clear what kind of appointments system will finally emerge in England and Wales. We know what happened in the other place this week. There is merit in the Government considering the position in England, Wales and Northern Ireland together and as one rather than rushing ahead with clause 1.

When the Bill was introduced in the other place, it referred to the Secretary of State taking over the responsibilities of the Office of the First Minister and the Deputy First Minister. As it progressed through the other place, the provision was amended so that the Lord Chancellor will take on the Secretary of State's role. What will happen when and if the Lord Chancellor's post is abolished? What would happen if the Secretary of State had no particular judicial background or experience? What would qualify such a Secretary of State to have a role in relation to the judicial appointments commission? When we talk about more political interference in the appointment of judges, that is an example that we could point to.

We have pointed out in our submissions that we believe that the judicial appointments commission will be far too big for a place of the size of Northern Ireland. It is proposed that there will be 15 members of the commission for England owing to the large number of appointments—about 900 a year—that it will make. I understand that the Scottish body consists of 10 members, but the Northern Ireland commission is to have 13, despite the small number of appointments with which it will deal each year. I would be grateful if the Minister would explain why, when he is prepared to amend some aspects of the judicial appointments commission, he is sticking by a large body consisting of the Lord Chief Justice, five judicial members, two members from the legal profession and five lay members. Why do we need such a large body to deal with relatively few appointments?

Clause 2 will ensure that the tenure of judicial members of the commission is brought in line with that of lay members. Its other purpose is to ensure that all those responsible for making appointments to the commission have a duty, as far as is practicable, to make it reflective of the community in Northern Ireland. It will thus no longer fall on the Secretary of State—or the Office of the First Minister and the Deputy First Minister under the devolved set-up—to ensure that the commission is reflective of the community. Will the Minister explain how that will work in practice? For example, will those who first make nominations have discretion in their choice of whom to put forward? Will those who make nominations later be forced to correct any imbalance? Alternatively, if a body may make two or more nominations, will it be expected to nominate people from both sides of the community and reflect a need to put forward women and people from ethnic backgrounds?

If the commission was not reflective of the community as a whole, against whom would a disgruntled person who felt that he should have been appointed bring a case? Would such a person bring a case against those who were supposed to nominate him, all the nominating bodies or the Secretary of State? Lots of aspects of the system need to be explored.

My main concern about the process is the criteria that will be applied when appointing lay members. People's qualifications to make judicial appointments will have to be assessed carefully because we are talking about significant positions of responsibility. It is clear that people will have to maintain the respect that they currently have for the judiciary of Northern Ireland. We need more explanation of how can we measure people's expertise at making recommendations.

Many of us in the Unionist community, when we hear talk of bodies, organisations and commissions that are supposed to be representative or reflective of the community as a whole in Northern Ireland, look at the bodies that have existed and do exist, because some of them little reflect the majority viewpoint. We think of the Parades Commission, the Northern Ireland Human Rights Commission and the old police authority, and we even consider recent appointments to the Independent Monitoring Commission. Can one say that those bodies are truly reflective of society as a whole in Northern Ireland? We will examine carefully appointments to the commission to ensure that the fine words are backed up in reality because our experience of appointments to similar kinds of bodies has not been happy.

Clause 3 is probably the most vital provision in the Bill and causes us the greatest concern. We welcome and endorse the view that merit should be pre-eminent in the appointment of members of the judiciary. It is a prerequisite that should apply above everything else, so the reference in subsection (8) to appointments made "solely" on merit is welcome. However, there is a strong argument that subsections (9) and (10) could undermine the merit principle and weaken it considerably. The introduction of a programme of action by the JAC raises questions about the extent to which the merit principle will receive the pre-eminence that it deserves. Broadly speaking, the judiciary in Northern Ireland is reflective of the religious make-up of society. However, there are no female judges in the High Court or the Court of Appeal, although there are women judges at a lower level. No females and no one from an ethnic background have been appointed puisne judges, Court of Appeal judges or Lord Chief Justice, and that should be addressed. However, until recently, only one of the four judges in the Court of Appeal came from the Protestant community. In the light of the appointment of the new Lord Chief Justice and the traditional method of appointing Court of Appeal judges on the basis of seniority, that may well continue, so it, too, should be addressed.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The hon. Gentleman makes an interesting point, but is there a pristine measurement of merit in any walk of life? Is it not the case that many people of outstanding merit in the legal profession do not want to be appointed as judges because they prefer to do their existing job, and perhaps making much more money? Similarly, in Government appointments, when were two people from the same party ever appointed European Commissioners? Are such appointments made on the basis of merit or on the basis of one from each side? Some methods of appointment are not peculiar to the north of Ireland.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

As for nominations or appointments to the European Commission, I have never doubted that they are made on a political basis. However, we are talking about something very different, as appointments to the judiciary are independent of considerations of political affiliation, religion or anything else. I do not object to the notion of a pool from which eligible candidates should be drawn, but we should strive to appoint the person best qualified to do the job properly. The Government have not gone down the route that they took on policing. They have defended a 50:50 discrimination policy on recruits to the Police Service of Northern Ireland, but in appointments to the judiciary, they are not suggesting the creation of a pool of candidates. There are not arguing that a Roman Catholic appointment has to be balanced by another appointment, or that a Protestant appointment has to be balanced by an appointment from the other community. In the Bill, they say that the merit principle should apply, and that action should be taken to try to promote a judiciary that is more reflective of the community. When it comes to policing a completely different attitude is taken, entirely as a result of political considerations. The merit principle is put to the back of the queue, and we are offered instead what amounts to a policy of discrimination against the Protestant community. In relation to the 50:50 provision—I must put this on record again, because it is not emphasised enough—the legislation speaks of Roman Catholics and others, and those others are comprised not only of Protestants, but of people of other denominations and from ethnic backgrounds.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

Before my hon. Friend leaves this subject, may I remind him of the point that I put to the Secretary of State? Although it is not stipulated in the Bill, the only conceivable way to implement the two guiding principles of merit and of reflecting the community is indeed by the creation of a pool of merit, which is precisely what is bound to emerge over time.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

My hon. Friend's suggestion has a lot of merit.

Surely, some consideration should be given to divorcing or separating the roles of appointing members of the judiciary and of undertaking the programme of action to ensure that they are separate functions for separate bodies. Clause 3 involves serious issues that will have to be discussed in detail in Committee.

Clause 4 deals with the appointment of the Lord Chief Justice and the Lords Justices of Appeal. I listened carefully to what Members on the other side of the House said about that. Concern has been expressed about those appointments being made by the Prime Minister on the recommendation of the First Minister and the Deputy First Minister. As was pointed out in another place, that effectively turns the Prime Minister into a glorified postman, because his role will simply be to implement the recommendation of the First Minister and the Deputy First Minister. One can envisage circumstances in which it is not easy to get agreement between the First Minister and the Deputy First Minister on the appointment of a Lord Chief Justice. Alternatively, the decision could become mired in discussions about other issues or traded off as part of a negotiating process. That is not the proper way to go about appointing the most senior judge and law officer in Northern Ireland. My hon. Friends and I remain to be convinced of the merit of the proposal that the Prime Minister should simply accept the recommendation of the First Minister and the Deputy First Minister and automatically implement it without any discretion or consideration on his part.

I was disappointed to hear the Secretary of State say that the Government intend to bring back their proposal to remove the Lord Chief Justice's power of veto in relation to dismissals from the judiciary. That measure was lost in another place, which was the right decision. As the independent head of the judiciary in Northern Ireland, the Lord Chief Justice should have the final say on a matter of such import as the removal from the bench of a member of the judiciary. At the end of the day, that decision should not be taken by politicians. The Lord Chief Justice, as head of the judiciary, should have a major say in it.

On clause 5, and the discretion of the Director of Public Prosecutions to refer matters to the police ombudsman, it is unnecessary to upgrade that discretion to a duty. The provision for discretion is sensible and should remain. There is discretion in all such matters; for example, in many cases, the DPP has discretion over whether to prosecute. That discretion should be exercised in the proper way, but to place a duty on the DPP to take that action come what may would be to put an unnecessary onus on him. I wonder how much time the DPP's office will spend combing through every aspect of every case to make sure that some aspect that should have been referred to the police ombudsman has not been overlooked. I hope that that will not end up as something else that distracts the DPP from the proper business of the administration of justice in Northern Ireland.

On clause 6, I agree with Mr. Carmichael, who said that he was not entirely clear why it was necessary. It does not differ much from the common law offence of perverting the course of justice, so I cannot see why it has been included in the Bill—unless, again, it is because it was in the joint declaration. However, to return to the main point that I made at the outset, is that the test by which we should measure such provisions, or should we use the test of what is in the best interests of the delivery of an effective criminal justice system? The second of those should be the test. If the provision is not necessary, we should not go back to the joint declaration and say that it should be included just because it was agreed at Hillsborough some months ago by various parties. I do not even know how it was agreed, because the interesting fact came out of our recent discussions that some such agreements were made at the last minute on the back of an envelope—that may even apply to aspects of the Belfast agreement. We should not be hidebound on such matters, but should consider them on their merits to determine whether they are in the best interests of Northern Ireland.

I conclude with a reference to clause 12, on the transfer of prisoners. It is a sensible enough tool to add to those at the Secretary of State's disposal for dealing with security and safety inside Northern Ireland prisons. However, I share many of the reservations that have been expressed about the way in which some measures have been implemented inside Maghaberry in recent months. Will the Minister tell us what right of appeal there will be for prisoners who are told that they are to be transferred? What sort of pre-emptive action will he be able to take? Will he be able to transfer someone whom he thinks is disruptive or causing disorder, without any evidence of their having had occasion to resort to violence in a prison? There are obvious difficulties for prisoners' families, and some families in my constituency have expressed their concerns to me about difficulties in visiting. If someone is transferred outside the jurisdiction to a prison in England or Wales—or Scotland, if the necessary changes are made—that will add to families' problems in visiting. All those issues need to be addressed, but the clause should nevertheless be included.

We have strong doubts about the necessity of many parts of the Bill. Other parts, on their own, are meritorious and non-controversial, but the basic fact is that the legislation is being introduced for political reasons and as a result of the joint declaration. That is not the proper basis on which to introduce legislation. It should be done for proper reasons, not for the sort of reason that the Government have advanced today.

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East 4:14 pm, 10th March 2004

I rise to support the Government in this Second Reading debate on a further justice Bill for Northern Ireland. It is entirely correct that, despite the current stalemate in the progress of the political processes in Northern Ireland, we should be doing all that we can to ensure that all the pieces are in place to allow a fair, free and fully inclusive society to be fostered there. However, I look forward to the completion of the review of the Good Friday agreement and the peace process, and I believe that on conclusion of that review, political parties that still foster paramilitary links should not be able to enter the Northern Ireland Executive.

I have a great deal of sympathy with the model proposed by the Democratic Unionist party in its presentation to the review body, which looks at an organic, evolving committee system that will allow for the Assembly to be up and running and for cross-party dialogue at committee level, while ensuring that people who are not signed up to the political process and who still have paramilitary links are not allowed to play an effective role in the governance of the Province.

Like the Secretary of State and Mr. Carmichael—who is no longer in his seat—I, too, must express surprise at the negative nature of the wording of the amendment tabled by Opposition Members. In their argument for no change, they advocate the perpetuation of what many people in the Province feel to be a biased and unbalanced system of justice that favours one section of the community over the others—

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

Well, that is what has been put in print, and I have also read it in evidence. Certain members of the community in Northern Ireland feel that they were born with a second-class birthright, depending on which side of the peace wall they were born. We cannot allow that situation to go on. In saying that, I am in no way calling into question the integrity and professional competence of those who are called to serve in the justice system of Northern Ireland. However, for a system of justice to be fully accepted by all in the community that it is set up to serve and safeguard—

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

If the justice system in Northern Ireland is so biased and unfair, will the hon. Gentleman explain why, at the height of the troubles, there were as many loyalist paramilitaries as republican paramilitaries being convicted and put in prison? I know that, because those prisons were in my constituency. If the system is not fair, how on earth did all those loyalist paramilitaries end up being convicted?

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

Obviously, the system has functioned. However, there is still a perception that there is insufficient cross-community confidence in the fairness of the current system—I shall refer later to the document published last February by the SDLP in that regard—and that is why the Bill is trying to redress the balance.

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

I shall carry on, but I shall be happy to give way if the hon. Gentleman has any other points to make on this matter.

For the system to be seen to be fair and balanced, there has to be a representative element in ensuring that the areas of interest over which the competence of the legal system in Northern Ireland holds sway are fully served. I firmly believe that the Bill promotes that purpose, specifically in the creation of a judicial appointments commission, whose members will reflect the broad spectrum of interests in the community. That, in turn, will ensure that, in future, the judiciary will better reflect Northern Ireland's society. The commission will go a long way towards creating a system of justice that has the confidence of all the people of Northern Ireland—and all the communities that have to coexist there—and towards ensuring a peaceful and safe society there.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I am having a little trouble following the hon. Gentleman's argument. I know of the perception, which I reject, that the Royal Ulster Constabulary was not an open and fair organisation, but I am searching my memory for any perception in the past 30 to 40 years that the judiciary was biased. The Bill is based on that assumption, which the hon. Gentleman has asserted. We are entitled to ask him for the evidence on which he bases that view.

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

There is a belief across community boundaries that the judiciary is not representative in its make-up. It is not balanced as regards sex or ethnic minorities, but there is also a feeling that it was biased in favour of one community. That is my perception after speaking to people in Northern Ireland and from my research.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

Does the hon. Gentleman know the religion of the new Lord Chief Justice of Northern Ireland? Does he know the religious balance of the Court of Appeal in Northern Ireland? There is no evidence to support the theory that he expounds. Only the terrorists and paramilitaries, who did not recognise the justice system in the first place, have argued against it. Of course, they have their unique system of justice.

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

I do not speak on behalf of terrorists. I am expressing what I believe to be a widely held perception in specific sections of the community in Northern Ireland. The hon. Gentleman may represent one section of the community but he must accept that other members will hold other views.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

Does my hon. Friend agree that the criminal justice review was largely written by people who are involved in the legal process? They knew at first hand the pulse in the legal profession. Of course, others apart from lawyers contributed to writing it, but lawyers pinpointed the deficiency, prepared the necessary changes and presented them to Parliament to be incorporated in legislation, which we are now considering. Not a political party but a cross-section of the community in the north of Ireland saw the need for change.

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

My hon. Friend is right.

Let me consider the contribution of Mr. Dodds, who questioned the need for new legislation. He set out a series of tests for the way in which we should measure the Bill. The crucial test, which I support, is whether the Bill will enhance the acceptance of the criminal justice system in the Province. I firmly believe that the answer is yes. On the basis of the hon. Gentleman's test, the measure is needed. His negative approach to the proposals has no merit and I hope that he will reconsider his opposition to the Bill and vote with the Government.

I agree with the points in the SDLP's policy paper, "Delivering a New Beginning for Criminal Justice", which was published in February last year. I have read all parties' positions on the matter. The SDLP document emphasises that there is insufficient cross-community confidence in the fairness of the current system of justice in Northern Ireland. The hon. Member for Belfast, North may deny that. Indeed, that appears to be his argument, but those who are elected to represent a whole community have to take cognisance of the views of other members of it. Legislators cannot hide and refuse to accept responsibility for legislating fairly across the community divide.

The comments of my hon. Friend Mr. Mallon were moving and emotive. I believe that he tackled the issues and dealt with trying to isolate parties that continue to have links with paramilitary organisations, which try to steer the political process, with perverse effects. He also made the case for rational and moderate debate to ensure that the peace-loving community—the majority of people in Northern Ireland—has the benefit of a fair justice system.

Opposition to the Bill denies that there is a problem and ignores the fears and uneasiness of many people about the impartiality and probity of a system that one could hope to access as a right as a citizen in the Province. That fear lingers not only among those who have the most fundamentalist, anti-British, republican views but, I am led to believe, among many well meaning, moderate, respectable and well respected holders of milder nationalist views.

On Second Reading in the other place on 16 December, Baroness Amos made a telling comment when she said:

"All justice systems must continue to evolve. They cannot be allowed to sit still and to ossify or they will cease to meet the needs of modern society. As well as being effective, efficient and fair, they must reflect the community they serve and be prepared to change as society changes."—[Hansard, House of Lords, 16 December 2003; Vol. 655, c. 1091.]

No one who is familiar with what is going on in Northern Ireland today, on both sides of the peace wall, can deny or denigrate the real changes that are taking place. They are there for all to see. Along with other MPs, and officials in the Northern Ireland Housing Executive, I spent Tuesday of last week touring Belfast—south, north and west—and observing developments in housing. We talked to many residents and many representatives of the community. It was a heartening, informative and interesting tour. We had an opportunity to discuss with people their perception of the current situation, and of how the move towards a peaceful, safe society was progressing.

Both loyalists and nationalists made clear their welcome for the climate created by the peace process. They were embracing change. Many of those in north Belfast were involved in a campaign to stop antisocial behaviour, and would be travelling to Edinburgh the following day to share their experiences with members of other councils throughout the United Kingdom. It was evident that those on both sides of the peace wall to whom we spoke were involved not just in cross-UK dialogue, but in cross-community dialogue. All were clearly committed to working towards a peaceful, democratic society. I believe that the Bill is another step along that road. To deny that change is occurring is perverse; indeed, such a move is utterly doomed. It is a sad indictment of the negative effect that petty party politics can have on peaceful progress.

The Bill recognises the basic fact that human rights have a role to play in the administration of justice. It places a duty on Northern Ireland justice agencies to take account of the way in which they handle human rights. It constitutes a response to the conclusions of the criminal justice review, which stresses that human rights and human dignity—the dignity of individuals as human beings—should be at the core of our consideration of the way in which criminal justice operates, both in the Province and in this part of the UK. The Government have rightly highlighted awareness of human rights as a key element in the operation of criminal justice organisations. They want to ensure that in future such organisations pay due regard to guidance and directives on relevant international standards.

A matter that I have already raised—as have many other Members, and the Northern Ireland Affairs Select Committee—is the Bill's proposal to allow the transfer of military prisoners from Northern Ireland to mainland penal institutions. That has featured largely in the Scottish media this week. A Sewel motion has been tabled in the Scottish Parliament to enable the Scottish end of the transfer to go ahead if necessary. I—and, I think, the Committee—accept the reasoning behind the proposal in the Bill, which flows from recommendations in the Steele report on the separation, as opposed to segregation, of political prisoners in Northern Ireland. I think that such powers, if they were ever used, could have adverse effects.

Only at a late stage in the Select Committee's inquiry into the separation of paramilitary prisoners at HMP Maghaberry—in fact, in response to a question that I put to the Minister responsible for justice and security on 10 December—was its attention drawn to the possibility of the transfer of prisoners from Maghaberry to the mainland as a sanction of last resort.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank my hon. Friend for giving way. He raises a valid point—transportation has been part of the folk memory of the people of the island of Ireland for centuries. The transportation used to be to Van Diemen's Land; now it is to Scotland or parts of England. The Government should be wary; that folk memory was expressed at Twickenham every five minutes last Saturday by the singing of "Fields of Athenry", which is based on transportation. I have not discussed the population of Van Diemen's Land, Australia, but the matter should be watched carefully because it hits what is probably the rawest nerve in Irish life.

Photo of Mr Iain Luke Mr Iain Luke Labour, Dundee East

Being a student of Irish history, I take serious note of that intervention. In Dundee, we are very happy about the transportation of many Irish people to the city, and especially to the universities, over a long period of time. My family has connections with the Province, and its members have moved backwards and forwards in the linen trade over the past 200 years. The word "transportation" has connotations that may apply to prisoners if they are ever moved from prisons in Northern Ireland to prisons on the mainland.

It is right to restate the Northern Ireland Affairs Committee's response to the point, which is outlined on page 28 of its report. It states:

"We believe that the proposal to transfer prisoners to other jurisdictions as a sanction of last resort is very dangerous and could easily be manipulated by the paramilitaries in their campaign to undermine the Northern Ireland Prison Service and, ultimately, the British Government. We caution against its use in the strongest possible terms."

That view was expressed by the Northern Ireland Prison Service when we visited the prison and in evidence that we took subsequently. I personally believe that the implementation of prisoner transfers could impede rather than promote the peace process, which the Government and hon. Members are actively pursuing.

Prisoner transfers were discussed in the early stages of the Steele review, when the number of paramilitary prisoners was fairly low. In the move towards separation and, I believe, segregation, many ordinary, decent criminals—as they are called in prisons—have been pressured into claiming paramilitary status, so the number of paramilitary prisoners has grown significantly. The proposed increase from 50 to 200 prisoners could cause real problems given the activities that we saw in Maghaberry prison last year, where separation was forced on the authorities because of dirty protests and roof top protests. If such protests return, we may be discussing not one or two prisoners but dozens. That political tool could be used to good effect by paramilitaries.

Mr. McGrady was present for the earlier part of the debate but has had to go. In the Northern Ireland Affairs Committee on 10 December, he said:

"To put this into the political context rather than the prison regime context, if that happens, if you transport paramilitaries from Northern Ireland to Scotland or England or Wales, you will be creating an enormous political weapon that will be exploited by the paramilitaries."

We have seen that happen; we are in this situation because the paramilitaries have manipulated events to achieve separation. I am sure that many hon. Members have an intimate knowledge of the situation in the Maze prison—I do not—and we should never to return to that. Commitments were given at that time that a line had been drawn and that there would be no movement from it, and I sincerely hope that that will be the case.

In conclusion, the Bill completes the implementation of the criminal justice review, which is an important part of the Good Friday agreement, and will help to deliver the fair, modern and balanced justice system that the people of Northern Ireland truly deserve. In introducing the Second Reading of the Bill in the other place, Baroness Amos said:

"The Bill will provide for a justice system that is more transparent, open and accountable; a justice system that will instil even greater levels of confidence in all parts of the community."—[Hansard, House of Lords, 16 December 2003; Vol. 655, c. 1095.]

The Bill will bring more light and dispel a little of the darkness that has so long clouded the fair northern shores of our sister island. I commend it to the House.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 4:35 pm, 10th March 2004

I am sure that Mr. Luke means well, and he has clearly made efforts to inform himself. I hope that he continues to do so, and I look forward to a time when his contributions display a greater understanding of and judgment on the matters to which he refers.

The Bill is a modest measure compared with the Justice (Northern Ireland) Act 2002. It is quite short, but it is set in a context that means that our debate today has ranged over several matters. In view of the lateness of the hour—although few Members remain to contribute—I do not intend to cover all the issues that have been mentioned. However, I wish to make a couple of general points, two of which in particular relate to the contribution from Mr. Mallon. I have a compliment for him, as well as something of a criticism.

The compliment refers to the comments that he made when he was reflecting on the need for people visibly to give up paramilitarism and violence. He pointed out that it was entirely inconsistent with the devolution of responsibility for justice matters for people still to be involved in paramilitary organisations. I recall comments that the hon. Gentleman has made in other debates on the subject in which he referred to the need for it to be clear that institutions are robust enough—in terms of durability and the integrity of those who will operate them—to deal with the real stresses and strains that would result from the devolution of such matters. It would be the final sign that the arrangements are well bedded in and are durable enough. It flows from that that we are not at present in that position. I shall come back to that point.

I was less than happy with the hon. Gentleman's comments in response to a point made by my hon. Friend David Burnside when he was talking about the discriminatory arrangements for the recruitment of police. I think that the hon. Gentleman asked whether a 50-50 split was not equality. That comment may have been made by the hon. Gentleman without reflection and instinctively, but it betrays an approach that is fundamentally wrong. It is a common mistake on the issue, and I have heard it made even by those involved in equality issues in their professional lives.

The assumption underlying the question of whether 50-50 is not equality is that by equality we mean an equal outcome for people. It implies that the two "communities" in Northern Ireland should be treated as if they were two equal entities and that the treatment of them should be equal. However, that is not equality as contained in the Belfast agreement or in the Northern Ireland Act 1998. It is not what the Equality Commission is charged with doing and it is not what human rights instruments mean when they talk of equality. In all those cases, the reference to equality is to equality of opportunity, and the need for each individual to be treated fairly and equally. There is no basis for approaching the issue as if we were dealing with group rights, with groups having to be treated equally. Such an approach would mean treating individuals oppressively and in a discriminatory way.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The reality is that the 50-50 system was introduced to redress an imbalance in the police service personnel. Members of my party and I have been told many times that we must encourage people to join the police. The right hon. Gentleman's point has some validity, but it falls down because the arrangement is there on a pro tem basis, until the imbalance is redressed. He and everyone else want it to be redressed, but when that starts to happen, the complaints pour in.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The hon. Gentleman referred to three things there: to an imbalance that needs to be redressed; to comments made urging him and his political colleagues to encourage people to join; and to the temporary nature of the arrangements. One must bear it in mind that, even at the height of the affirmative action programmes in the United States—and that is a long time ago now—they were applied only when there was some element of wrongdoing or fault. To suggest that the admitted imbalance in police numbers in Northern Ireland arose as a result of wrongdoing or deliberate discrimination is quite wrong.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

No, but I have to make the point because when some people hear a reference to imbalance they assume that there is some element of fault. If there is fault in relation to the imbalance, it lies with those who through various means discouraged people from applying. I think the hon. Gentleman knows what I am referring to. The interesting thing about his comments about being urged to encourage people to join, and the irony of the whole matter, is that the target group from which we would want to recruit police officers—persons aged around 18 to 25—is, roughly speaking, evenly balanced between Protestant and Catholic, so that if there was equal participation, there would be something akin to 50-50 recruitment, operating on a purely merit basis.

The key is not compulsion and legalised discrimination but encouraging equal participation, and already significant steps have been taken in that direction. The hon. Gentleman must bear it in mind that with the legalised discrimination that is currently in place individuals are left with a strong sense of injustice. It is not as if we are talking about a handful of people whose interests can be overlooked for the greater public good—although I would not advance that principle in any event—because the number of those who have suffered a personal injustice is getting into four figures, and that builds up a significant body of resentment in the community and has other ill effects that the hon. Gentleman should also bear in mind: it means that those who benefit from this injustice come into the service with a stigma that will be with them all their days, of having got there through special assistance and being in some respect second-class.

Many of those people are not second-class, but because of the legislation that the hon. Gentleman has promoted, people whose interests he would wish to advance will carry that stigma throughout their career. He and others who continue to defend this approach should bear in mind not only the injustice done to those who fail to be appointed but the stigma that they impose on those who gain appointment through these means, especially as it is all unnecessary given the existing structures. I have dwelt on this issue longer than I intended because of the quality of the response from the hon. Member for Newry and Armagh.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The right hon. Gentleman is making many very interesting points, and I hope to reconvene our discussion when we are dealing with policing, rather than the judicial system.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I raised the issue in order to tease out the mistake that has been made, which is to think that equality operates in terms of group rights, rather than individual rights. We must always remind ourselves of that point.

My hon. Friends and I will support the reasoned amendment because the terms in which it is expressed focus attention on the Bill's first seven clauses, which are ill-advised. Indeed, the provisions relating to the judicial appointments commission, which are central to those clauses, are particularly ill-advised. It is on appointments and the resulting creeping-in of political influences that the reasoned amendment focuses, because clauses 8 to 14 in fact contain a number of sensible, if somewhat modest, measures.

As other Members have said—I shall not dwell on this point—the Bill has been introduced out of purely political considerations, which are contained in the first half of it. The second half is the result of the Northern Ireland Office's efforts to make use of a suitable vehicle for long-overdue changes. As was pointed out to the Minister, it is a pity that he was not a little more imaginative and energetic in introducing other necessary and desirable measures for which the Bill could act as a vehicle. It is also a pity that he has crafted a long title so restrictive that it prevents Members from using the Bill to rectify some of the mistakes that he has made. I hope that between now and when we meet in Committee, he will reflect on that point and adopt a more liberal and generous approach.

The provisions relating to the judicial appointments commission—the central issue—are premature. They were largely enacted in the 2002 Act and were designed to operate after devolution. As has been pointed out in interventions, the criminal justice review recommended the commission because of devolution—it did not recommend that it operate before devolution. It is quite remarkable that Labour Members, who keep talking about the need to stick closely to the terms of the criminal justice review, are themselves acting inconsistently in respect of the Bill and its central provisions. Again, that points to the political motivation that lies behind this legislation. My colleagues and I have never been able to see the nature of the political gain that some Labour Members think this legislation will provide. We do not quite understand the overriding political purpose of the Bill's proponents.

When the notion of a judicial appointments commission first came to light in the criminal justice review report, I was generally welcoming of it. I did not criticise it at the time, and it seemed then a reasonable concept—I am talking about the concept, rather than the detail—that was not terribly controversial, and which might prove useful. I did not reflect upon it deeply then, but I have since, and the more I have done so, the more I have concluded that it is a bad idea. I am referring not to the detail, but to the concept itself as it will operate within our system, in contrast with what went before.

There is a paradox in this regard. At the moment, senior judicial appointments are made by the Lord Chancellor, who is a quasi-political figure and a member of the Cabinet. Some people have got exercised about this issue, because they think that a fundamental principle involving the separation of powers is being breached. But anybody who knows anything about British political life and history knows that our arrangements have never been based upon any concept of separation of powers—they have evolved in a more complicated way—and that there are positive advantages of the system that has evolved here in the United Kingdom, not only in the concept of the Lord Chancellor, but in the presence in another place of the Law Lords and in the presence in Parliament of people who can answer both here and there on behalf of the prosecuting authorities. We had an example only last week of the advantage of that and of how we would suffer as a House if a crude separation of powers approach were adopted. But, then, if one followed a crude separation of powers approach one would remove the entire Treasury Bench from this place. [Hon. Members: "Hear, hear."] Some hon. Members indicate assent to that. I presume they are thinking of the present Treasury Bench rather than all Treasury Benches on all occasions. I must repeat that it would be very bad for our political system if that sort of crude separation of powers approach were adopted.

The paradox is that, although superficially the present arrangements for the appointment of judges may appear open to political influence, in practice with the proposed commission there will be a greater danger of political influence over judicial appointments. I came to that conclusion thinking, by way of analogy, of some of the judicial procedures we have experienced in Northern Ireland. The jury-free trials, the Diplock courts, may have seemed in theory to be risky in terms of judicial standards. In fact, they were very successful. Someone on the Criminal Cases Review Commission told me not long ago that per capita it had fewer applications alleging miscarriages of justice from Northern Ireland than from any other part of the United Kingdom, which it attributed to the success of the Diplock courts. Why was that?

The key point was the sole, undivided responsibility that lay with the single judge.The same factor can be seen with regard to judicial appointments. The Lord Chancellor makes the appointments—yes, after consultation—and carries the sole, undivided responsibility for them. If it becomes clear at any point that there are questions about the merit of appointments, there is no doubt about who is responsible. The Lord Chancellor knows that if he were to err and set aside considerations of merit for some reason of political or other advantage, the responsibility would lie with him and nowhere else.

So the paradox is that appointments by an individual who has a quasi-political role tend not to be infected by political considerations, but with the judicial appointments commission there is a very serious danger. The commission proposed in the Bill will have a chairman and 12 other persons, seven from the judiciary and the legal professions and five lay members. If there is devolution, the lay members will be appointed by the First Minister and Deputy First Minister. If there is not, they will be appointed by the Secretary of State, the Lord Chancellor or whoever.

That has to be taken with the injunction that the members shall be "reflective of the community". People will think of "reflective" in political and religious terms in Northern Ireland, and will think that they have to bring forward people with those labels on them. Those persons will know that they have been appointed because they have those labels, and will have a sense—implicit, not explicit—that it is their job in the commission to represent the interests of those whose labels they bear, because that is what led to their appointment. They will feel that it is their job to ensure that people who share their labels, which got them into the commission, are appointed. That will bring political considerations—again implicitly, not explicitly—into the operation of the commission itself. It does not mean that every recommendation that flows from it will be tainted, but some appointments will be affected by political considerations. The structure brings political considerations into judicial appointments in a way that does not apply under the present arrangements.

I am not saying that the present arrangements are perfect. There may be good reason to reflect on whether a broader range of people could be considered, but we should bear in mind the fact that, in respect of judicial appointments, a broader range could come only from persons qualified to be appointed. That necessarily means a segment of the population that has already gone through various processes, which to some extent detaches them from the population as a whole—but that is by the way. My main point, after comparing appointments in the past with the proposed new arrangements, is that I have come to the conclusion that the proposals are dangerous and that the existing arrangements are better and more likely to exclude political influence. It is a paradox, but life often proceeds in that way.

Other criticisms could be, and have been, made by others, but I have dwelt on that main point to explain what influenced my change of approach to the concept. As I said, I was first favourably inclined, but on further thought, I reached the conclusion that it is not a good idea. The other criticisms, already touched on, go back to the concept of being representative or reflective. Mr. Dodds asked how it was possible to be reflective and what it would mean when someone is making one, two or three—or in some cases, five—appointments. The whole process is unclear and bristles with difficulties. Our experience in that matter is not good.

When I examined the criminal justice review earlier today and saw that it introduced the suggestion that the commission or lay persons appointed be reflective or representative of the community, I noted that it expressly referred to the Human Rights Commission as an example in support of the concept. It might have been possible to view the Human Rights Commission with rose-tinted spectacles when the review was written, but is there anyone anywhere in Northern Ireland today who believes that the present Human Rights Commission is a good thing, or that it did not do a botched job of its appointments and operations? Few would dissent from that view now.

It is important to try to analyse why the Human Rights Commission did a botched job of its appointments. It may be that the Secretary of State at the time decided as a final act of revenge that she would make a whole set of bad appointments to screw up the process in Northern Ireland. Some people hold that view, and I am not saying whether I hold it myself. It may be the case, but it is somewhat unlikely, on balance, that that was the sole reason for what happened. There are other reasons. I suspect that some of the officials involved in the process thought they were doing a reasonable job, but I have reason to believe that some of them now feel deeply embarrassed about what happened.

Why did well-intentioned people end up producing such a terrible result? Part of the reason is the fact that the persons doing the job were not organically connected with society in Northern Ireland and did not fully understand what they were dealing with. I am almost tempted to call it the Dundee, East syndrome, but that is another issue. There are other factors as well and I suspect that the criteria adopted for appointments were what led to the result. Again I would suggest to those who may have responsibility for making appointments in the future that they reflect very seriously on the Human Rights Commission experience and work out for themselves what went wrong. They should try to ensure that we do not reach the same position again in future. In terms of this Bill and these proposals, I would say, "Don't create the judicial appointments commission; don't get into that problem again."

Similar proposals were considered in another place on Monday night—and we know the result of that. I was listening to Lord Goodhart giving his views on that matter on the "Today" programme yesterday, and I paid particular attention because the position of the Liberal Democrats within the structure of the House of Lords is not without some significance. I was trying to work out what could possibly have persuaded a person who I think is knowledgeable to favour the Bill.

Lord Goodhart said that the judicial appointments commission had to be set up as a matter of urgency. He conceded that things had not been too bad under the last couple of Lord Chancellors, who were decent chaps, but he said that we still desperately needed a judicial appointments commission to protect us from what might happen in future. Decoded, that means that he favours a commission because he is so appalled by the idea of what might happen under the present Lord Chancellor, and under future Lord Chancellors who might be appointed by the present Government.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

There may be another, less crisis-laden explanation. Liberal Democrats are, on the whole, seeking to codify some aspects of the structures of government and the law, which in our view have been left somewhat ad hoc. I do not want to put words into Lord Goodhart's mouth, but I think he would say that as it is strategically right to make that change, and as we have the opportunity to do it now, Liberal Democrats would be loth to pass up that opportunity, because we do not know when we will get another chance.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I do not get the impression that the noble Lord's approach was as laid back as that, because he emphasised the urgent need to get the commission in position. As I said, I was interested in the fact that he conceded that things had been all right under the two previous Lord Chancellors. Whatever criticisms we might make of those two people, they knew what it was to behave in a judicial manner, and they acted with complete probity over judicial appointments. I shall eschew the temptation to adopt or repeat the personal observations recently made by the Lord Chief Justice about the present incumbent, because he now tells us that those should not be treated too seriously.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

"Cheerful" was the word, I think, but I presume that the hon. Gentleman has some superior knowledge of the gentleman in question, and I am quite happy to defer to him in that respect.

As we have already heard, the Bill says that merit is to be the sole basis for appointment. This is where concern about ideas of balance, representation and reflectiveness arises, because of the tension that exists. It is because I saw that tension reflected in the comment made by the hon. Member for Newry and Armagh that I mentioned earlier that I am returning to that subject. The merit principle must operate purely on an individual basis, when there is a vacancy, with regard to that particular vacancy. It should be—indeed it is, and has been for some time—enshrined in legislation.

I am not so sure what happened in the 1990s, but I recall that in the 1980s, when we had measures to ensure that appointments were made purely on merit, it seemed rather strange that with High Court appointments, the merit principle always seemed to produce first a Catholic, then a Protestant, then another Catholic, then another Protestant. It was a remarkable coincidence that the merit principle produced alternate Catholics and Protestants, and never a Jew—but thereby hangs another tale. I hope that the merit principle will be properly vindicated in practice, and that it will not be merely the subject of lip service. However, I fear that notions of representativeness, group approaches and implicit quotas will mean that the merit principle will not be fully observed in practice.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

May I pose again the question that I put to Mr. Dodds? I do not have the same insight into the other place as the right hon. Gentleman, nor the same access to legal tittle-tattle. However, he consistently distinguishes between the non-political appointments system that exists at present, and the potential political element in appointments under the proposed system. Is he saying that senior appointments made under the present system are not essentially political in nature? I do not believe that it is possible to make any appointment that does not have a political configuration—

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I think I am bound to remind the hon. Gentleman that he is making an intervention, not a second speech.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The point made by the hon. Member for Newry and Armagh is not unexpected, as it is consistent with his earlier comments about the concept of merit. That is something about which we can argue, but I am concerned that he approaches the concept of merit in a way that allows a host of other factors to be taken into consideration. He pointed out an apparent contradiction in my argument, but I repeat that I prefer the present arrangements to the proposed appointments commission, as political considerations are less likely to be an influence under the present system. As I said, however, I am remarkably impressed by the evident coincidence that attaches to appointments in Northern Ireland.

I can say no more, as I am not privy to much judicial or legal tittle-tattle these days. Perhaps a person with greater to access to such tittle-tattle would be able to say more about these matters, but I hasten to point out that I do not have that access.

I have already set out the dangers of the proposed judicial appointments commission. They worry me because the proposal reduces the opportunity for someone to see the matter in the round, as the Lord Chancellor does at present.

Problems will arise in future if the Government's proposals for the legal system are carried through. I hope that they will not succeed in abolishing the post of Lord Chancellor, but if they do we will have problems when it comes to making appointments. The post of Secretary of State for Constitutional Affairs is different from that of Lord Chancellor, and the nature of the people likely to occupy that post will also be different. That is a huge problem, with its own dangers. The debate has been largely good-humoured, but I am seriously disturbed at the Government's approach to these important matters. They display an appalling amateurishness and lack of understanding of the structures with which they are dealing. I am really worried about the vandalism being wreaked on our political, judicial and legal systems by the way in which the Government are proceeding.

Photo of David Burnside David Burnside UUP, South Antrim

Can my right hon. Friend explain for the education of a non-lawyer how, if and when the appointments were made—which I hope will not be for a long, long time, if ever—they would be more or less political if made according to the commission proposals than if they were made by the First Minister and the Deputy First Minister: positions held in the Executive following the Belfast agreement by my right hon. Friend and Mr. Mallon?

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The conclusion of the points that I was making is that I should be opposed to vesting in a First Minister and a Deputy First Minister the functions in the measure. Part of the reason why I came to that conclusion arose from reflections on the way that the structure will—perhaps not intentionally but inadvertently—implicitly bring many political considerations into play. If, as is likely, the First Minister and Deputy First Minister were from different political parties with fundamentally different political objectives, it is difficult to see how those appointments could be anything other than the result of an overtly political or quasi-political negotiation. That is a serious problem for the future.

I do not know how long it will be before the institutions in Northern Ireland are up and running again; it may be some time, but I suspect that they will be and that those structures will function at some point in the future and that there will be huge difficulties in their operation. I say that as someone who is still broadly in favour of the devolution of policing and criminal justice matters—in the right circumstances, which we do not have at present. However, I am concerned that the structures that we are building into the system and the structure of the judicial appointments commission will produce too great a political influence.

That is the core of our reason for supporting the reasoned amendment. I shall not go through the clauses in detail, nor shall I discuss the provisions towards which we take a more welcoming view. My speech was not intended to be of such length, but that is how it developed. I hope that the Government will give us the opportunity in Committee to have a broad debate on these matters and to include other provisions that cannot come under the long title. I hope, too, that, through what will happen elsewhere, we shall have the opportunity thoroughly to examine the concepts that underlie the Bill and that they can be thought about again and radically changed, and that the Bill—or Act, as it may be by then—will be brought into line with them.

Photo of Steve Pound Steve Pound Labour, Ealing North 5:13 pm, 10th March 2004

I apologise to you, Mr. Deputy Speaker, and to the House not only for the fact that was I darting in and out of the Chamber earlier, but because I may have to dart out again before the conclusion of the debate. Very much in the style of employment in the 21st century and the precepts of new Labour, I am multi-tasking between this place, the Select Committee on Northern Ireland Affairs and the Tobacco Workers Alliance, just along the Corridor.

I am acutely aware of the fact that no words instil a greater sense of dread and foreboding in the House than those contained in the sentence, "I shall be brief". I shall in fact be brief, although in the context of this debate, I realise that we have moved on somewhat from the days of Timothy Michael Healy and Joseph Biggar, who felt that anything less than five hours was a mere clearing of the throat and anything less than 15 hours did not deserve a sidebar in the Freeman's Journal, but—

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I hope that the hon. Gentleman will bear in mind amidst his busy duties that it is a courtesy to the House to sit for the whole of the speech after his own, which may of course last any number of hours.

Photo of Steve Pound Steve Pound Labour, Ealing North

No Labour Member would ever have any reason to doubt the significance of your judgments, Mr. Deputy Speaker. I am well aware of it.

I am delighted to take part in what, if it is not a piece of parliamentary history, may be a part of the establishment of another stage of the parliamentary rubric: the first outing of the Aylesbury razor—a new parliamentary principle whereby the House considers a number of items in the Bill and, very wisely and sensibly, goes through, ticking off the uncontentious ones. That is a superb practice, which should be adopted from now on. If the name of Mr. Lidington is perpetuated in the same way as Occam's was in earlier years, that is both to his credit and to that of that great sage.

On the principle of the Aylesbury razor, we may be able to dispose of any objection to the offence of gathering intelligence against full-time Prison Service employees because that is uncontentious. The move to make it illegal to seek to influence a prosecutor with the intent of perverting the course of justice is, I hope, uncontentious. It is entirely sensible, as are some of the other provisions, such as placing a duty on the Northern Ireland criminal justice agency to observe human rights.

Photo of Steve Pound Steve Pound Labour, Ealing North

I certainly give way to the person who wishes to interject a note of contentiousness.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

The only contention is that, as my hon. Friend Mr. Carmichael said in his speech, although such provisions may not be contentious, surely they already exist in law, so they may survive the Aylesbury razor, but not the accusation of being superfluous.

Photo of Steve Pound Steve Pound Labour, Ealing North

I appreciate that Orcadian analysis may sometimes supersede the Aylesbury razor, but I hope that we can abjure that today and concentrate on two main issues. The overarching aspect of the Bill was enunciated with the fluency and expertise that one expects of a member of that most inner of inner circles of the establishment, an Oxford-educated lawyer. I refer, of course, to Mr. Dodds, who enunciated his objections overall. [Hon Members: "Cambridge."] I apologise to Cambridge, and to Oxford for the imputation.

I have come to grow familiar with the hon. Gentleman's objections—we have heard them before—but I have also come to have an amount of respect for them. If my travels in the north of Ireland have taught me anything, it is how little I know about the circumstances and realities of life there. He feels that the Bill, as part of the process that flows from the Good Friday agreement, should not even be considered on the Floor of the House because, as he perceives it, the Good Friday agreement has not been fulfilled and the terms have not been adhered to, as he sees them, so anything that flows from that is the fruit of the upas tree, and we simply should not be considering it.

I very much hope that the measures that we are considering are not only in the spirit of the Good Friday agreement, but a vital part of developing the consensus that was agreed. Yes, it is not something that would embrace every hon. Member. Yes, the points that the hon. Member for Belfast, North makes about the activities of some people cannot be denied, but the fact remains that all human beings have within them the capacity to commit horror as well as to experience it. The circumstances around individuals make them create those appalling situations and participate in those ways. I hope that, by moving into a different form of civil society, even though people will still have it within them to be as they were, they will not need to act that way, and I desperately hope that we can move on from that.

Mr. Trimble made an extraordinary suggestion. He is so vastly my intellectual superior that I would not wish to cavil at any of his words, but he seemed to imply that, even if an agency was wholly and utterly unrepresentative of the community that it served, that would not matter if it did a good job. Superficially, that argument is attractive. A police force that is 100 per cent. representative of one particular community might be very good at parking tickets. However, even though elements of the outcome of a monocultural organisation or agency may be efficacious and can be defended, how on earth could everyone within that community feel an identification with, a sense of ownership of and sense of confidence in such an agency? That worries me desperately. A police force or agency anywhere in the world that is entirely of one community could function well, but there would be another side to that. The dangerous side would be the lack of identification or association with the rest of the community.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The hon. Gentleman is doing the familiar thing of setting up a straw man in order to knock it down. When he reflects on what I said, he will realise that I did not advance that proposition. I said that the clear imbalance that exists in the police force was not the result of deliberate discrimination. However, I would point out to him—I did not say this—that, in appointing judges to the highest level, the object of the exercise should be to get the best man for the job. Evidence given to the Select Committee on Constitutional Affairs made it clear that

"it is not the function of the judiciary to represent or reflect any particular group in the community."

Photo of Steve Pound Steve Pound Labour, Ealing North

It is some years since I heard the expression "the best man for the job". I think I know what the right hon. Gentleman is talking about, but that seems to be an institutional problem rather than an individual one. I still feel—I hope anybody would feel this—that, if we as free citizens give the right to other free citizens to have power and authority over us in enforcing the law, the group of citizens who have power over the others must reflect them in every possible way. The governors must reflect the governed and vice versa.

We can get into absurd situations, and we dipped a toe into the limpid waters of Lake Absurdity when we started talking about the proportion of left-handed people. However, this is a serious issue. I have been to Garnerville, and spoken to a number of young police recruits. They do not come in, sit down and say, "I am here from this community." One thing that is massively impressive about the new recruits to the Police Service of Northern Ireland is the fact that one cannot immediately identify which community they come from.

I realise that it is said that, by the age of 12, there are 36 ways in which one can identify a person's community in a brief conversation, but all the people I met at Garnerville seemed to be desperately proud of wearing the uniform of the Police Service of Northern Ireland. I did not hear anybody say—well, I wouldn't, would I?—that he or she was a token for one side of the community or the other. I was immensely proud of that body of men and women who are coming through the training school. The fact that they are more representative of the community adds to their stature and augurs well for the future.

Photo of David Burnside David Burnside UUP, South Antrim

While being understandably proud of Garnerville and everyone standing there wearing a uniform and passing out in the PSNI, can the hon. Gentleman understand the problem that is created for young Protestant boys and girls? They are applying, but feel that they are discriminated against. They feel resentment. They go in on merit and pass all the criteria, but they are turned out because they see a law that discriminates against them because of their religion. All they want to do is to go in as Protestants and Catholics and all be proud of serving the police and the community in Northern Ireland.

Photo of Steve Pound Steve Pound Labour, Ealing North

I am not by nature confrontational, but I cannot help remembering an advertisement that appeared for an American presidential candidate recently. It showed a pair of white hands ripping up a piece of paper that said "Job Offer". Underneath, it said, "He didn't get the job because he wasn't black." If we concentrate on that side of the equation rather than the situation that pertained for many years when people from one community had absolutely no chance of getting a job in certain organisations—

Photo of Steve Pound Steve Pound Labour, Ealing North

I shall give way in a second.

If we talk about the issue in terms of the people mentioned by Mr. Donaldson who live in his constituency and are qualified for the job, we are missing two key points: first, that the arrangement is transitional, so I hope that after we have achieved a basis of equality, it be utterly uncontentious; and, secondly, that such discrimination existed in the past. I ask hon. Members to consider how many Catholic prison officers there are in Northern Ireland, and while we are thinking about that, I shall give way to Mr. Turner.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I hope that the hon. Gentleman will reconsider the implication of his words. Although he did not mention the Royal Ulster Constabulary, it was evident to some of us that that was what he was speaking of. Does he accept that the greatest problem with the RUC's recruitment was the pressure put on Catholics not to apply?

Photo of Steve Pound Steve Pound Labour, Ealing North

The very first member of the RUC to be killed in the troubles—or certainly one of the first—and if not the last, almost one of the last to be killed, were both Roman Catholics. Catholics did join the RUC, although I entirely accept that there were those who put pressure on them not to do so. One reason why that happened was the dislocation between the community and the RUC. I shall not go into the "Oranges in uniform" slurs that were perpetuated for many years because there were wrong—and a thing of the past from which we may move on. However, no one in the Chamber can remotely deny that large sections of nationalists, republicans and Catholics in Northern Ireland were reluctant to join the RUC because they perceived not only that they were unwelcome, but that it was not their police force. At the end of the day, if one is in trouble and someone comes to one's rescue, one does not ask what religion they are.

Photo of Steve Pound Steve Pound Labour, Ealing North

Of course; how could I not?

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

Is it not the case that despite all the changes and reforms to policing in Northern Ireland that have taken place and the advent of the Police Service of Northern Ireland, one sizeable section of the nationalist community still refuses to support the police, to encourage people to join the police or to participate in district policing partnerships? How does the hon. Gentleman explain that if he supports the current regulations that discriminate against Protestants?

Photo of Steve Pound Steve Pound Labour, Ealing North

I do not seek to explain that, I will not seek to condone it and I will never excuse it—it is wrong. However, the fact that one group of people takes that position does not invalidate the overall argument that I hope that we are making. I will not defend that group's position. I have tried to understand it, but I have failed. It is wrong—the hon. Gentleman and I agree on that. I hope that a more representative Police Service of Northern Ireland will make such postures an irrelevance in the near future.

Photo of Steve Pound Steve Pound Labour, Ealing North

I do not think that I have any choice.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The hon. Gentleman always has a choice. May I invite him to return to the Bill because he started to make an interesting point on the importance of the judiciary reflecting wider communities and the wider society that I had hoped that he would explore? Does he agree that there is a practical importance to that? For example, a male-dominated judiciary, which is what we have had, has always found it especially difficult to deal with rape cases, so we have a poor record of convictions in such cases. Surely that is the sort of issue on which we should focus.

Photo of Steve Pound Steve Pound Labour, Ealing North

I will try to resist being sidetracked by rape, but the overall point that the hon. Gentleman makes is precisely right. I cannot think of any community in any society anywhere in the world that has not said, "Yes, leave it to us and we will gradually organically evolve into a more representative group." The United States Congress was mentioned earlier, but, in reality, every single group that was non-representative was unable to reform itself without some form of external legislation—it would be unfair of me to refer to Liberal Democrat parliamentary candidates in that context. Every body that I know says, "Leave it to us and we'll be more representative." Every single body I know signally fails to do so until a quota is imposed. We may not like that crude mechanism or blunderbuss, but it works. In a desperately fractured community with a small population we have to take such steps because that is the only way to make such a body represent the community in Northern Ireland. We could talk about that for much longer, but there are other Members who are far more qualified to talk about it than I am.

The operation of the hon. Member for Aylesbury—the Aylesbury razor—has left me only scraps, but I would like to deal briefly with the separation of paramilitary prisoners at Maghaberry. I am profoundly uncomfortable with many aspects of that separation, and have severe doubts about it. If there were any question of moving into a segregation regime I would enunciate those doubts even more forcefully. Like many hon. Members, I have visited Maghaberry—in fact, I am worried about the amount of time that I spend in prisons—and the experience taught me a number of things.

The difficulty of being a prison officer was mentioned, and I said earlier that 21 prison officers have been killed. I was wrong—in fact, 29 prison officers have been killed in Northern Ireland since the troubles began. Maghaberry is one of only two prisons in Northern Ireland—Magilligan is the other—and there is also Hydebank Wood young offenders institute. Maghaberry is the only maximum security prison, but it also houses failed asylum seekers and a few women prisoners, because there is no women's prison in Northern Ireland. Mr. Robinson said that by and large Ulster women are extremely law-abiding, which I accept, but women prisoners are still accommodated in a house in the grounds of Maghaberry. In some ways, it is a recipe for building a bad prison, as there are little houses dotted around with a helicopter net over the top, and I hope that there will be an improvement when Bush and Roe houses are rebuilt. The present situation is not unique to Northern Ireland, as separation exists in each of the hundred-plus prisons on the prison estate. In some cases, there is an obvious separation of so-called vulnerable prisoners. In others, it is people supporting different football teams, or from different gangs, groups or ethnic formations.

Like most members of the Northern Ireland Affairs Committee, I heard the evidence of Father Kevin Donaghy and Canon Barry Dodds—I see from the official House of Commons report that the Canon's name is spelt as if he were a piece of artillery rather than a clerk in holy orders.

Photo of Steve Pound Steve Pound Labour, Ealing North

Indeed, there may be a congruence. Father Kevin, Canon Dodds and John Steele, who formed the Steele review panel, told us that safety of prisoners, both convicted and on remand, and prison staff was paramount. We must give credit to the people who were appointed to make that decision and are experts in the area. I do not like anything that moves us towards the arrangement that pertained in Long Kesh and the Maze, but we must accept separation if it is the only way to operate the prison safely in its present confines. It will throw up other problems, as people will identify with certain groups. One group, the Irish National Liberation Army, is not on ceasefire and is more strongly represented in Maghaberry than anywhere else outside parts of north Belfast where, I hope the whole House agrees, its members are committing the foulest and most disgusting crimes.

The Government are responding to the situation sensibly, calmly and pragmatically. They commissioned and analysed a review, which was representative in the context of our earlier discussions, and came up with a conclusion, the text of which contains the key fact that has not been touched on—namely, that a rebuilt and expanded Maghaberry will be able to order these things differently.

Personally, I find it surprising not only that Northern Ireland has no women's prison, but that it has just one maximum security prison. We seem to be building prisons at the rate of one a month on this side of the water, but have not done so in the one part of the United Kingdom where there is enough space. Would it not be rather a good idea to build a couple of smaller prisons there? I shall leave that to the Secretary of State; I am not in any way proposing additional Government expenditure.

The Bill has been described as a vehicle with elements being added to it. That is no bad thing, because a vehicle moves forward. The Bill moves the process forward by introducing certain tidying-up elements, the most important of which—a representative judiciary—cannot be allowed to wait any longer. The hon. Member for Aylesbury asked why that provision cannot be put on ice. I disagree with so little of what he says that I feel quite ashamed to say that I wholly disagree with that. The solutions to the problems in the north of Ireland will not be arrived at by clicking our fingers or switching on a light—there must be an organic process that is built up piece by piece. The establishment of a representative judiciary is one of the key pieces of the edifice that we are trying to build to allow people to live in peace and to fulfil the potential of their lives in a safe environment. Surely, that is not too much to ask—it is what we expect in every one of our constituencies.

Nobody could argue with the fact that a representative judiciary is an essential part of a safe, sane and sustainable civic society. We may disagree about the details, but can we not at least agree with the principle that those who judge us and rule over us should represent the communities that they judge and rule over? That is a basic point on which I hope that the whole House can agree.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke 5:37 pm, 10th March 2004

I am conscious that Mr. Pound will soon wish to return to his multi-tasking. I shall be selective in my remarks, because by this stage of the debate many of the main points have been made, and not all of them bear repetition.

On the hon. Gentleman's comments about recruiting for the Royal Ulster Constabulary, may I put it on the record that I have seldom disagreed more profoundly with any view that I have heard expressed in this Chamber? I urge the hon. Gentleman to re-read the introduction to the Patten report, where he will find Patten accepting that the RUC enjoyed greater cross-community support than many other forces in the United Kingdom.

Mr. Luke, who is not here at the moment, quoted words uttered by Baroness Amos when she introduced the Bill in another place:

"All justice systems must continue to evolve. They cannot be allowed to sit still and to ossify or they will cease to meet the needs of modern society."

I submit that that line of reasoning does not stand up in the present context. As Mr. Mallon and my hon. Friend Mr. Dodds pointed out, we have had three police Bills in the past five years, and this is the second justice Bill. Ossification is not on the agenda. Indeed, it is the rapidity with which the Government have moved from one Bill to another that has brought doubt and challenged the credibility of their approach.

As my hon. Friend Mr. Lidington said, once one has cleared away the debris, the simple truth is that the Bill has not been introduced to promote any great issue of principle. Despite the Government's assertions to the contrary, their primary purpose is not to improve the justice system, although some important changes are proposed, not all of which are controversial. The underlying motive for the Bill is political and involves trying to resuscitate a failed political process and induce an unreconstructed terrorist organisation to look more favourably on the Northern Ireland justice system. We know all that because of the Bill's origins in the Hillsborough negotiations, the purpose of which was to recreate a climate in which the devolved Assembly and Executive could be reconstructed. The joint declaration of the two Governments contained a commitment to the Bill, made on the understanding that at least some of its contents would please the provisional republican movement.

We have been reminded that the criminal justice review in 2000 recommended the establishment of an appointments commission when, and only when, devolution was up and running. The Justice (Northern Ireland) Act 2002 was consistent with that. However, although we are now in the context of suspended devolution, with no early signs of that situation changing, the Government are suddenly and dramatically legislating for the establishment of a judicial appointments commission before devolution. Baroness Amos explained in another place:

"That should make an important contribution towards enhancing public confidence in the Northern Ireland justice system."

I argue that the reverse is the case. Have the Government not yet realised that concessions of that sort are contemptible in themselves and downright objectionable to true democrats? Moreover, that approach is self-defeating because the more the Government make one-sided concessions, the less acceptable the whole process becomes. Parts of the Bill, particularly the first seven clauses, devalue the justice system in Northern Ireland into a bargaining counter. What recipe is that for encouraging public confidence? The Government claim that the Bill will create a

"better, more modern justice system" for the Province, which

"will benefit all the people of Northern Ireland in equal part"— whatever that may mean—and that it will lead to

"even higher levels of trust and confidence in the justice system."—[Hansard, House of Lords, 16 December 2003; Vol. 655, c. 1091–92.]

In fact, it will do no such thing because it will politicise key aspects of Northern Ireland's justice system, especially judicial appointments.

In that regard, one need look no further than clause 1, which empowers the Lord Chancellor, rather than the First Minister and the Deputy First Minister, to establish a judicial appointments commission. That is fine while present arrangements last, but if I understand correctly the debate in another place, the Government envisage circumstances in which those powers will pass to the Secretary of State for Constitutional Affairs. When those powers pass to an ordinary party politician, the scope for political influence will increase enormously.

Much the same goes for clause 4, which will increase political influence in the appointment of the Lord Chief Justice and the Lords Justices of Appeal. The First Minister and the Deputy First Minister will no longer merely be consulted, but will "make a recommendation" to the Prime Minister. In other words, the First Minister and the Deputy First Minister must agree on a candidate to recommend to the Prime Minister who, in turn, will make the recommendation to the Queen. It is hard to envisage a more political process than that for an appointment.

In his opening speech, the Secretary of State declared his intention to resurrect the original clause 5. I urge him to move with great caution. Clause 5, as originally drafted, weakened the power of the Lord Chief Justice in cases of removal or suspicion. Under the 2002 Act, the Lord Chief Justice had to agree before the First Minister and the Deputy First Minister could suspend someone. In the original draft of the Bill, he had merely to be consulted. The key point is that security of tenure for senior judges is one of the most important safeguards of their independence, and we undermine it at our peril.

Much has been said about the guiding principles relating to appointments being made on merit alone, and being reflective of the community. Perhaps I did not make my point quite clearly enough when I intervened on my hon. Friend the Member for Belfast, North. The point that I wished to make, which others have made as well, is that there is, at the very least, tension between those principles. Indeed, they are conflicting principles. I can envisage only one way of resolving that tension, and that is through the creation of a pool of merit. I did not mean to imply that I was in favour of that; indeed, the experiences of the police force warn strongly against the creation of such a pool. My argument is that, as the Bill stands, that is the logical way in which matters will proceed in practice. We should therefore resist the proposal.

Photo of Peter Robinson Peter Robinson DUP, Belfast East

Does not the experience of the Police Service of Northern Ireland show that, in order to get the required composition, the standards for entry into the pool of merit are lowered, and we end up with a lower standard of candidate as a result?

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I am sure that my hon. Friend is right. That point also featured in their lordships' debate. It was a matter of worry to several Members of that House that, were such a pool system to emerge, even de facto, it would automatically result in a lowering of standards. I agree with my hon. Friend on that. I should also like to make the wider point that, in practice, having organisations reflect and represent the community has, over the years, meant disadvantaging the pro-Union people of Northern Ireland.

Another justification for the Bill has been that it will lead to higher trust and confidence in the judicial system. I submit that there is no need whatever to aspire to that. I was amazed by the comments of the hon. Member for Dundee, East on that point. I look back over the last 30 years or so, and I try to recall occasions on which there has been a serious lack of public confidence in the judiciary, but I cannot think of any. I am sure that they were minimal, at the very least. In that regard, I bow to the experience and judgment of the noble Lord Mayhew, who, both as Attorney-General and as Secretary of State, had long experience in these matters. He concluded, in a debate in the other place, that

"the judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law."—[Hansard, House of Lords, 16 December 2003; Vol. 642, c. 1107.]

The truth is that public confidence in the judiciary is deservedly very high, and has been so over the years. There is no need whatever for that issue even to feature on the Government's agenda.

The 2002 Act required only lay members of the appointments commission to be representative of the community, but the Bill extends the requirement to all members. It provides that membership of the commission must reflect the community in Northern Ireland. We have yet to hear from the Government a clear reason for the change. Why are judicial members now to be subject to the requirement? Why is the change proposed so soon after the 2002 Act? We are entitled to speculate that we know the answer. It lies in Hillsborough and the purpose of the ensuing joint declaration.

How are we to define the community in Northern Ireland? Sinn Fein is now the dominant non-Union party, and it remains what it always has been: indivisible from the Provisional IRA, whose failure to decommission and renounce violence caused the suspension of devolution.

The criminal justice review was right to recommend that an appointments commission should be established only once devolution was in place. So long as devolution is suspended, it is a fundamental mistake to believe that public confidence in the judiciary will somehow be enhanced by trying to make it more reflective of Northern Ireland's fractured society. It cannot be right to amend the judicial system to try to make it more acceptable to those who break the law.

The Bill was originally drafted to make the judicial system in Northern Ireland more acceptable to the provisional republican movement. It has subsequently been caught up in the hasty and ill-thought-out decision to abolish the office of the Lord Chancellor. It should be rejected on both scores.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley 5:51 pm, 10th March 2004

Several references have been made to the Bill's origins and the political motivation behind it. My hon. Friend Mr. Hunter referred to Hillsborough, which is in my constituency, and the joint declaration that emerged from the discussions that took place there on implementing the Belfast agreement, and issues that arose after the agreement.

Many aspects of the joint declaration go much further than the Belfast agreement. It introduced proposals that the agreement did not envisage and were therefore not the subject of the referendum that was held immediately afterwards. No one can claim that the proposals that emerged from the joint declaration have any democratic legitimacy through the referendum. Aspects of the Bill fall into that category. They are additions to the provisions and regulations of the Justice (Northern Ireland) Act 2002.

Almost all major legislation in recent years has dealt with implementing the Belfast agreement, correcting mistakes in it or adding to its provisions. Clearly, the Bill has a political origin and is not simply about tidying up or improving arrangements for dispensing justice in Northern Ireland. It is about satisfying specific political agendas.

The Minister knows that confidence in the justice system is important to ensure that it operates effectively. Some hon. Members have questioned the confidence of at least one section of the community in it and suggested that that at least partly justifies the Bill. I have yet to learn of any significant body of evidence—presented here today, or presented in any other form—that supports the accusations suggesting that our judicial system and the judges who are part of it are unfair and biased.

Like every other MP, I am visited now and then by constituents who bring complaints. They feel that they were treated unfairly as a result of a court hearing, or they are the victims of a crime and do not feel that the court went far enough in applying the rule of law and imposing a sentence. I am currently dealing with the case of a young lad in my constituency who was seriously assaulted by four youths. He has been in hospital for a long time with significant brain damage; the four youths were eventually sentenced for causing an affray, and were given sentences that the victim's family felt were wholly inadequate in terms of reflecting the damage done to their son.

It so happens that that family is Protestant. Many of my Protestant constituents come to me from time to time to complain about some grievance involving the application of the law. Any suggestion that the Protestant community is entirely satisfied with every aspect of the judicial system and that the Roman Catholic community is not constitutes a complete misrepresentation of the position. Any kind of poll would establish that most decent, law-abiding people in Northern Ireland support the judicial system. Only those with something to fear from the law have a grievance. I am afraid that at least part of the Government's intention is to assuage the so-called concerns expressed by some of those who have never really recognised our system of justice in Northern Ireland.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

My hon. Friend is right. A number of us have mentioned the composition of the High Court and the Court of Appeal in Northern Ireland. Is it not the case that there is no basis for any perception of imbalance in terms of the religious background of the judiciary?

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

Indeed. I made that point to Mr. Luke when he argued that the Bill was essential because of a widespread lack of confidence in the judicial system and the appointment of the judiciary in Northern Ireland. He gave no evidence to support his argument, and, as my hon. Friend says, the reality does not reflect it.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

There are other ways in which the judiciary can often be unrepresentative or imbalanced. It is not just a question of religion. The hon. Gentleman himself has identified a number of difficulties with the judicial process. The drift of legislation over the past 20 years has been towards fettering judicial discretion because of a perceived lack of representativeness. That legislation merely treated symptoms, whereas this Bill strikes at the disease itself.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

I would accept that but for the fact that my argument is not really that the system cannot be reformed. Every system can be reformed and improved. Like other Members, I continually receive letters from people throughout the United Kingdom who are campaigning for justice—for this, that and every other cause—because of some perceived injustice perpetrated on them by the courts. If Mr. Carmichael analysed the judiciary in Northern Ireland, I dare say that he would discover that few of them come from working-class, Protestant backgrounds. I will not suggest that because that is the case we should necessarily radically reform the appointments system. We are not arguing against the principle of the appointments system; it is the political motivation behind it that concerns us.

In his opening remarks, the Secretary of State discussed the benefits that have accrued from the Belfast agreement, and he laboured the point on policing. I say to the Minister—and through him to the Secretary of State—that if he were to take a poll in my constituency of community attitudes to policing institutions today and compare it with polls taken in 1997 and 1998, he would find that there is greater dissatisfaction today with policing than there was before the Belfast agreement. That is because of growing criminality, antisocial behaviour and paramilitary activity and the fact that the police cannot respond because they do not have the resources.

I get more complaints about the lack of police response to crimes in my constituency than I did when the Royal Ulster Constabulary was policing my local community. On the ground, that is the reality of the Patten report and the downsizing of the police in Northern Ireland, and it is also the reality of the impact of 50:50 recruitment. The police have not been able to recruit as many officers as they have lost, and many of the district command units are significantly under-resourced, which is the case in Lisburn in my constituency.

Photo of Iris Robinson Iris Robinson DUP, Strangford

Does my hon. Friend agree that the stance taken this evening by Mr. Trimble is breathtakingly hypocritical?

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I think that the hon. Lady should withdraw that remark. It is not a term that we use in relation to any hon. Member of this House.

Photo of Iris Robinson Iris Robinson DUP, Strangford

I am happy to withdraw that particular comment. I am against the shocking and disappointing 50:50 recruitment policy in the Police Service of Northern Ireland. The right hon. Member for Upper Bann says that he is against 50:50 recruitment, but his former colleague for Fermanagh and South Tyrone, Ken Maginnis, recommended it.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

I thank my hon. Friend for her intervention. If she had used the term "stretching credibility", it would have made her point. I recently read comments by Monsignor Dennis Faul in the Belfast News Letter, who pointed to the fact that 50:50 recruitment was first proposed by Lord Maginnis of Drumglass, who was then the hon. Member for Fermanagh and South Tyrone. As a member of his party at that time, I knew that he advocated 50:50 recruitment, and that point came out in the Patten report. We remember that he welcomed the appointment of Chris Patten to chair the independent commission on policing, and he has lived to regret that welcome. It stretches credibility for Ulster Unionist Members to campaign against 50:50 recruitment when the former hon. Member for Fermanagh and South Tyrone first advocated it.

On policing, the problem is about confidence not only in the judiciary but in the rule of law generally. The SDLP is pushing hard for its proposal that the full-time police reserve should be wound up in 2005. In the Lisburn district command unit in my constituency that would mean that 80 full-time reserve officers would be removed. Who will replace those officers in an already under-resourced police service that cannot respond to many of the calls that come in to the police station—some of them 999 calls? While the Secretary of State will trumpet what he regards as the progress that has been made on policing, district commanders—I mean no reflection on the quality of the police officers that we have—do not have the resources needed to cope with the levels of crime, antisocial behaviour and paramilitary activity on our streets.

We have previously stated that we do not in principle oppose the idea of greater independence in judicial appointments. Transparency, accountability, openness and independence at all levels of government and in the administration of government are to be encouraged. Of course, the Northern Ireland Office has not always practised such transparency in government. One thinks, for example, of the operation of the Anglo-Irish—now the British-Irish—intergovernmental conference, which has lacked transparency in its deliberations. We could do with a bit more transparency in government in Northern Ireland.

Our difficulty with the Government's approach to constitutional reform is that it is often ill thought out and inappropriate in terms of how it implements change. As I have said, the motivation behind the introduction of the Bill is the joint declaration, which was agreed between Her Majesty's Government and the Irish Government, with the involvement—to some degree—of some of the political parties who were present at Hillsborough during the negotiations.

We have been talking this evening about justice and confidence in the system of justice. However, a key proposal in the joint declaration is an amnesty for IRA terrorists who are on the run from justice. That is a travesty of justice. It undermines confidence in the rule of law in Northern Ireland to suggest that a terrorist who has committed a serious crime—up to and including murder—can effectively walk free without fear of going to prison for that crime. That is what the Government propose in the joint declaration, which is also the source of the Bill.

We hear lectures from hon. Members on the other side of the House about the need to build confidence in the judicial system. Can they explain to my constituents who have been the victims of IRA terrorism how it upholds the rule of law and our system of justice to grant a de facto amnesty to IRA terrorists who have committed some of the worst atrocities during what was known as the troubles in Northern Ireland? That is what the joint declaration does. How will that build confidence in our system of justice, especially in the Unionist community, which suffered probably more than most at the hands of the IRA. There is no justice in such cases.

Let us be frank about saying that the Government will bend over backwards to assuage the concerns of the nationalist community. They will introduce Bill after Bill to address those concerns, but they heap coals on the heads of the Unionist community with the proposal in the joint declaration for an amnesty for IRA terrorists who are on the run. The DUP will not support, endorse or give credence to such a proposal. Indeed, we will oppose it vigorously and it will continue to be a major problem for political progress in Northern Ireland. I urge the Government to scrap any notion of an amnesty for IRA terrorists on the run. That, I believe, in a single move, would help to increase Unionist confidence in the rule of law and the system of justice in Northern Ireland.

The Bill could politicise the system of appointing judges in Northern Ireland. I fully support the amendment tabled by the official Opposition, and I endorse the remarks of Mr. Lidington. It is important that the Government reflect on the proposals and think again, especially on the political motivation behind the proposals in the Bill. We support a system of judicial appointment that is truly independent, transparent and fair, and free from political motivation and politicisation. We know the difficulties that that can cause in Northern Ireland. The Bill as currently drafted does not meet those tests, as my hon. Friend Mr. Dodds said.

Some of the proposals in the Bill clearly have merit. It should be noted that, if they are important to the functioning and administration of criminal justice in Northern Ireland, they should have been included in the 2002 Act. I have not heard a clear explanation from the Government as to why they were not. There are key aspects that have been implemented in England and Wales that we are waiting for in Northern Ireland—antisocial behaviour orders, for example. I recently sent to the Minister my party's response to the consultation document on antisocial behaviour. I urge him to act quickly, because such behaviour is becoming endemic in many parts of Northern Ireland, some of it fuelled by the paramilitaries, but much of it not. We need action on that.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Will the hon. Gentleman at least give us credit for having compressed the consultation period, precisely so that we can introduce legislation and get it through before the summer?

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP, Lagan Valley

I will give the Minister credit when the legislation comes before this House—and the quicker the better.

The Bill grants the Prison Service greater options in respect of transferring prisoners. I am currently dealing with a case involving a prisoner with severe psychological problems who needs professional help that he cannot get within the prison system in Northern Ireland. The Bill may help with other aspects of the Prison Service, but, like my hon. Friend the Member for Belfast, North, we hope that the power will be used only as a last resort, to prevent unnecessary hardship for relatives in respect of visitation rights.

The Bill gives the Attorney-General the power to issue human rights guidance to criminal justice organisations, advising them on how to carry out certain functions. That appears on the face of it to be uncontroversial, but the critical matter will be the nature of the advice given. While an offence of influencing a prosecutor seems uncontroversial, we are not sure how it will work in practice. It is hoped that the measure will not be used to prevent legitimate representations from being made or elected representatives from making justified public comment.

Elements of the Bill are sensible, but the fact that we are debating them only two years after the 2002 Act clearly highlights the Government's disjointed approach to key issues in Northern Ireland. They seem to operate and legislate for Northern Ireland on the basis of meeting the demands that are wheeled out from time to time by some of the more vocal elements in our society, and that is why some aspects of the Bill are flawed and they need to take more time to reflect on them before pressing ahead.

The Government have acted in haste in constitutional reform generally, and in the Bill in particular. They must start to learn from some of the mistakes that have been made. The people of Northern Ireland will not be well served if this legislation needs to be amended because of the Government's haste in appeasing those who are, and have always been, very vocal in their criticism of the justice system in Northern Ireland, without any real justification.

It is clear that it is not the right time, politically or constitutionally, to proceed with key elements of the Bill. The Opposition's amendment therefore has much merit, and I urge the Minister to consider it carefully.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down 6:15 pm, 10th March 2004

The debate has ranged far and wide and occasionally rather far from the Bill's terms of reference, but that is to be expected given the Bill's context and the circumstances in our communities in Northern Ireland.

As my hon. Friend Mr. Mallon said, we welcome the Bill, which is the second or third attempt to get right and implement the criminal justice review, allied as it was to the reform of the Police Service of Northern Ireland. Such numerous attempts to get matters right while accusing other parties of not fulfilling their obligations under the Good Friday agreement ring very hollow indeed, particularly when it is a Government source who is exhorting others to perform to the fullness of that agreement.

I welcome the Bill because it endeavours to bring about at least partial real reform, and to ensure that we have a reflective judiciary. There is a duty on criminal justice agencies to have regard for international human rights standards, and the Bill makes it an offence, among other things, to influence the Director of Public Prosecutions. But three elements that were omitted from the previous legislation have been omitted again from the Bill. When I asked the Secretary of State about the DPP's referring to the police ombudsman cases involving allegations of police misconduct, I was less than enthused by his answer. In essence, he said, "Don't expect me to answer that question now, but we'll take it up in more detail in Committee." Clarity of thought at this stage would have been very desirable, in order to provide proper interpretation of what is a multi-interpretable provision.

The situation was very simple. The review proposed that if the DPP encountered an allegation of misconduct, it should be referred—properly, constitutionally and statutorily—to the police ombudsman. However, a new concept and new wording has been added, to the effect that such an allegation needs only to "appear" to be proved. That means that the DPP has a judicial decision to make virtually of his own accord. We hope that that will be remedied in Committee.

There is also the question, which was raised earlier, of the appointment of the panel of senior judges. The First Minister and Deputy First Minister will make joint recommendations to the Prime Minister, who in turn will take cognisance of, and have due regard for, those recommendations. The proposal in the criminal justice review report seems not to have been straightforwardly and fully implemented, in that another layer of decision making has intervened between the recommendations of the First Minister and Deputy First Minister, and the ultimate appointment as made by the Prime Minister.

As I said earlier, the Bill is part of the process of fulfilling undertakings made in the Good Friday agreement. There are other matters that remain unfulfilled—they have been referred to in somewhat emotive terms, and correctly so—in respect of the other parties that signed up to the agreement.

Much has been said time and again—and I can only emphasise it on the basis of my own experience and the experience of those in my constituency—about the continuation of horrendous punishment beatings and worse in my community. We are faced with the audacity, the offence, that elected representatives of Sinn Fein—let me be blunt about it—to the Assembly have recommended to my constituents, to the old people who have suffered attacks and burglaries in my constituency, that they do not under any circumstances approach the PSNI, but should instead address their problems of justice to something called "restorative justice".

"Restorative justice" is a very worthwhile and important aspect of community, particularly in Northern Ireland, but it is embryonic and has not had its conditions laid down. Yet we have growing up in our constituency communities groups calling themselves "restorative justice" groupings, which are simply fronts for quasi-paramilitaries and sometimes not so quasi paramilitaries. Fulfilment of the requirement for restorative justice, allied to the police as restorative justice is, should be dealt with as a matter of grave urgency.

That also applies to the intimidation and other activities—punishment beatings, drug trafficking and protection rackets—carried out by the other paramilitaries: the loyalists, the Provisional IRA, the Real IRA, the dissident IRA, and any other groups one cares to mention. These are all aspects of non-fulfilment of terms of reference in the agreement. That is why it is important that we take our opportunity in Committee to address the matters that are missing from these proposals, so that we can sign off for the criminal justice review.

At least the Government could then say, "We fulfilled our part in that aspect of the Good Friday agreement", and they would not have egg on their face because of the counter-accusation, "Why do you talk about us not fulfilling things? Why do you talk about the DUP refusing to participate in the Executive, the joint Administration? Why do you talk about the UUP withdrawing from the structure set up under the Good Friday agreement?" There are deficiencies all round. At least the Government should remove their own deficiencies.

In speaking to the reasoned amendment, Mr. Lidington presented little argument for its terms, but gave a wide-ranging discourse on many aspects of justice, policing, security and even constitutional matters in Northern Ireland. That is fair enough. They all have to be put into their context.

I should like to refer to one aspect that the hon. Gentleman dealt with: the separation of prisoners at Maghaberry prison. He quoted at length from the Northern Ireland Affairs Committee, which dealt with the matter, and emphasised, although he did not look me straight in the eye, that its decision was unanimous and that therefore I as a member was party to it. I made a written submission objecting to the Committee's conclusion. That objection was put to the Committee and rejected. I did not think that I would have the audacity to file a minority report on a single issue like that, but my record is there in writing.

I do not think that that decision was made on the basis of political expedience. I think that there was a real danger to prisoners, because in Maghaberry there are not only republican and loyalist political prisoners, but also so-called ordinary, decent criminals, as they are referred to in Northern Ireland, as well as illegal immigrants in custody. So there are at least four categories, and if one divides the loyalist paramilitaries and the republican paramilitaries into further sub-groups, one has a mess. It was to do with the danger to criminals within the prison that the separation, rather than segregation, was made. I have a very clear understanding of the difference.

To return to the Bill, it is an attempt—the third, I believe—to make the judiciary in Northern Ireland more understanding and more open to the public so that what is happening is clearer to the ordinary man in the street. Justice cannot be seen as a person with a long wig sitting in England dictating what happens in the system. That is putting it rather crudely, but that is the image that many people have, and the Bill is an attempt to introduce some transparency in the way in which people are selected for judicial appointments. I agree with everyone who has said that selection must be based clearly on merit, but it must also be seen to be open and not an old boys' network. I hope that the provisions will help to achieve that. They are part of an ongoing process that I hope will successfully conclude, in respect of the criminal justice review, when the Bill is passed.

There are many other issues. I am tempted to go down the road of speaking about various aspects of policing that have cropped up in this evening's debate. As a member of the Northern Ireland Policing Board, I give a strong indication, if not of a financial interest, at least of a vested opinionated interest in its workings.

Mr. Donaldson referred to 50-50 recruiting. If, under the new dispensation, we want to convert a police force that was something like 93 per cent. Protestant and make it acceptable to, and representative of, the entire community in a reasonable time, what is the alternative? Even with 50-50 recruitment it will take some 15 to 18 years for community proportionality to be reflected in the Police Service of Northern Ireland. Without the 50-50 arrangement, we would have to double that period, but can the whole community afford to have such a substantial number of people withholding their consent and failing to support the police?

As it is, it will be an uphill struggle because of Sinn Fein's non-involvement, for its own particular reasons, in policing. I state clearly that it is attempting to establish its own police services in our communities through the so-called restorative justice committees, which are accusing, convicting and executing people—particularly young people. There are many tragedies such as multiple suicides of young men in parts of Belfast, which are brought about by the continued pressure of paramilitaries on those communities. It is also reflected—perhaps less dramatically—in the problems and behaviour of young people right across our communities, both nationalist and Unionist.

Photo of Iris Robinson Iris Robinson DUP, Strangford

Does the hon. Gentleman accept that the failure of Catholics to join what was then the Royal Ulster Constabulary was down to the Catholic Church's encouragement not to support the state, as well as the threat of violence from the IRA?

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down

The hon. Lady asked a legitimate question, the second part of which I can accept. Particularly in the last 30 years, anyone in the Catholic community who had the audacity or the bravery to join the RUC took a severe risk, but many did—many, but not enough. However, I do not accept that the first part of the hon. Lady's question is justifiable. I must say, even though it may cause offence to Unionist Members, that the RUC was seen—rightly or wrongly—to be a Protestant police force for a Protestant people. That was traditional in our community and was handed down in the expressions of the fathers of the Unionist parties at the time. They advised their people not to employ Catholics. The atmosphere created was that Catholics were not welcome to join the police. Theoretically and statutorily, they all had rights—

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down

No, I have only one minute to go.

Everyone had rights theoretically, but in practice it was a very chill house for Catholics, and people must accept that.

In addition, there was the whole burden of the troubles. We must remember that it was the Catholic community who mainly suffered from the Provisional IRA's campaign, and they who, in turn, paid the price for it through what were sometimes extremely one-sided actions by the then RUC. Innumerable honourable men and women performed their duties exceptionally well, but the general ethos was anti-Catholic. That is why we must have the 50–50 split, and why it must continue if we are to have a police service that reflects the community.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Shadow Spokesperson (Communities and Local Government) 6:30 pm, 10th March 2004

It is a privilege to follow my hon. Friend Mr. Lidington in supporting our reasoned amendment. The debate has been well informed, but sadly, it takes place against the background that Mr. McGrady has so ably described. The sad situation in Northern Ireland is that the punishment beatings, the racketeering, the exclusions and even the pressure towards suicide among young people have all got worse since the joint agreement.

It is against that background, and following the elections in October and the suspension of the Assembly, that we are considering the Bill, which has its antecedents in the joint declaration of 2003. The joint declaration makes it clear that the devolution of policing and criminal justice should take place

"within the lifetime of the next Assembly"— that is, assuming that the Assembly is up and running—

"on a basis that is robust and workable and broadly supported by the parties."

Clearly, that is not the case.

Paragraph 5 of annexe 2 says:

"The Annex is written on the basis that arrangements for devolving policing and justice will need to be agreed between the parties"— we have seen clearly tonight that the parties do not agree about them—

"and subsequently between the British Government and the Executive, and that these arrangements must be robust and workable. The British Government will wish to give careful consideration to the views of the parties on all of the matters below."

Then comes the important sentence at the end of paragraph 5, which says:

"Definitive acts of completion, independently monitored, would provide the necessary context for addressing and agreeing the practicalities of such further devolution as quickly as possible."

The Opposition say to the Government that the Bill is therefore premature.

The debate has been well informed, and it is a pity that the situation in Northern Ireland is not more settled. I defer tonight to all the Members who represent the Northern Ireland people, because they understand what is happening there. Many of them have lived with it for many years, and they understand the horrors and difficulties of what is going on in the Province.

It is sad that this House, through debates such as this, and through all the statutory instruments that we deal with in Committee, must effectively govern the Province of Northern Ireland, although we would like to see a devolved institution making its own decisions.

Many constructive speeches have been made tonight. I take on board in particular the bravery of the two speeches by SDLP Members, who so robustly and graphically told us what the situation is like now. Mr. Dodds talked about, among other things, the transfer of prisoners to the mainland.

I shall deal with one or two matters that are not in the first seven clauses of the Bill, because I want to deal with the minor matters first and then the first seven clauses, because they are the most controversial. First, I want to talk about the transfer of prisoners. My hon. Friend the Member for Aylesbury quoted from the Northern Ireland Affairs Committee report on the Steele commission's segregation decision concerning Maghaberry prison, and I shall do the same. My hon. Friend and I visited that prison and we saw for ourselves what went on there.

I shall quote from paragraph 44 of the Select Committee report. I accept that the hon. Member for South Down produced his own minority report, and it is interesting that Mr. Pound, who supported the Government's decision in the Steele review, signed up to it.

Paragraph 44 of the Select Committee report states:

"Nonetheless we have to record our belief that the decision—taken, as we see it, contrary to the balance of the facts and arguments presented to us—was a dangerous one, most especially for the public servants who will have to implement it and live with its consequences."

The situation in Maghaberry prison is potentially very difficult. We will want to look carefully at those clauses in the Bill that deal with the transfer of prisoners to the mainland. We will want to strengthen them to ensure that any such transfer happens only when really necessary, in an emergency situation. The prisoners involved must also agree to such a transfer, so that their safety can be protected.

Photo of David Burnside David Burnside UUP, South Antrim

Does the hon. Gentleman accept the excellent idea offered by my hon. Friend Lady Hermon? Her suggestion was that republican prisoners in Northern Ireland should be transferred to our neighbours in the Irish Republic. Under the jurisdiction of the Republic, those republican prisoners could return to their ancestral home, and serve out their time under the authority of the south. That would be an excellent example of cross-border co-operation.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Shadow Spokesperson (Communities and Local Government)

I do not accept that idea, as the quid pro quo would be that the Republic would require us to take some of their more dangerous prisoners into the north. The provision that dangerous prisoners may be transferred to the mainland must be used sparingly.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I just want to point out that the suggested course of action would be against a law passed by the previous Conservative Government.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Shadow Spokesperson (Communities and Local Government)

I am glad that my predecessors shared my sensible view of the matter.

The Bill is being presented against a background of political uncertainty. In Standing Committee, we will need to examine carefully its raison d'être. The words of Lord Mayhew are worth bearing in mind in that regard. He has immense experience, both of Northern Ireland and of the post of Attorney-General. He told the other place that

"Throughout the past 30 years, the judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has earned a superb reputation for its fairness and impartiality".

We will therefore want to examine why the criminal justice system is being politicised, as our reasoned amendment contends. Lord Mayhew usefully added:

"Nor could anyone point to any significant or telling imbalance in the staffing of the High Court or the Court of Appeal in Northern Ireland. Their members were appointed by the Lord Chancellor, solely on merit and I am sure always consulting the Lord Chief Justice of the day. In my experience it so happens that, if anything, marginally more appointments were made from those with Catholic backgrounds."—[Hansard, House of Lords, 16 December 2003; Vol. 665, c. 1107–08.]

That final remark is especially pertinent.

We will want to look carefully and in detail at why the Bill proposes to set up a separate judicial appointments board, and why it will alter the way in which the Lord Chief Justice and the Lords Justices of Appeal are appointed.

I shall return to those controversial clauses in a moment, after I have commented on some of the excellent contributions to the debate. I was very struck by the remark made by Mr. Trimble—my right hon. Friend—who said that the Belfast agreement committed the parties to equality of treatment and opportunity, not equality of outcome. That is probably one of the most pertinent remarks to have been made in the debate. Citing his experience as a lawyer who used to be in favour of the appointments commission, he said that he had changed his mind and considered the proposal dangerous. When a Member of Parliament of such experience says that, the rest of us must sit up and take note.

Mr. Luke, who is a member of the Northern Ireland Affairs Committee, also made a good speech. He said that the proposal to transfer prisoners to the mainland—and he thought that they would go to Scotland in particular—could be regarded by the nationalists as akin to transportation. He said that the provision could become a political weapon for paramilitaries. Other hon. Members made the same point.

I think that the hon. Member for Belfast, North made the point that the Bill could be turned into a bargaining position as part of the political process in due course. That is one of the reasons why we proposed our amendment; we believe that the Bill is part of a political process whereby too many concessions have been made to the IRA and its satellites without receiving from them in return enough commitment to the peace process. My hon. Friend the Member for Aylesbury was exactly right about that. If organisations want to participate in the democratic process they have to demonstrate democratic credentials in return.

I shall return to the controversial clauses—clauses 1 to 7—and especially to the paradox shown by the provision under clause 2(1) where it is stated that the appointments commission has to be "representative of the community" while clause 3 states that appointment is to be solely

"on the basis of merit".

Those two statements cannot both be true at the same time; either the commission can represent the community or it can be appointed on merit.

That gives rise to a degree of doubt about the true impartiality of the new appointments procedure. The commission is to be made up of a chairman—the Lord Chief Justice—seven members of the legal profession and five lay members. The only way that it could work, as several Members have pointed out, would be if there were a pool of judges from whom to select, but as there are not many judges in Northern Ireland, it will be quite difficult to ensure that we select the best possible candidates.

A core value of our justice system is that it is independent of all political interference. My fear is that appointments under the Bill will be seen as subject to political interference. The appointment of the Lord Chief Justice and Lords Justices of Appeal through recommendations to the Prime Minister, who may or may not accept such recommendations and who then makes a recommendation to the Queen, makes it look as though political interference could affect the criminal justice system.

With the Bill, we are going backwards, not forwards. It is a great pity that the Government did not do what they set out in the joint agreement. They should have consulted all the parties properly to see whether it was realistic to introduce the Bill. It is a poor way to legislate. We have had three police Bills over the past six years; this is the second criminal justice Bill in the past three years. The Government are proposing measures that are not properly thought out and we shall want to examine the Bill in great detail in Committee. I hope that we shall be able to amend it.

In considering the whole process, the Government need to find a way to ensure that the devolved Assembly is brought back into operation as quickly as is reasonable in the circumstances to return stability and normality to the Province. Having heard the Secretary of State on the "Today" programme this morning, I have some fears; the Government are not coming up with proposals for moving the process on.

We fear that, if we do not move the process on, it will move backwards, which would be a great pity. Although the situation in the Province remains serious, the number of killings and bombings and the most serious terrorist offences has reduced—[Interruption.]—dramatically. Indeed; I accept the Minister's sedentary comment. It will be a great pity if we get the Bill wrong and confidence in the criminal justice system in Northern Ireland went backwards because it was seen as politicised.

I urge the House to support our amendment.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 6:44 pm, 10th March 2004

I am grateful to hon. Members who have participated in the debate, although I expect that a greater number will attend Northern Ireland questions next Wednesday, prior to the Budget. A considerable number of points have been raised, and I shall address them in Committee if I cannot cover them all in the time available. I shall deal with the regrettable Opposition amendment in a brief rant towards the end of my speech.

I certainly take the point raised very strongly by Mr. Dodds about the ongoing activity of the Provisional IRA, although we need to reflect, as was indicated in the exchange with Mr. Clifton-Brown, on the considerable improvement that has taken place. We always need to get that balance right. I obviously depart from the hon. Member for Belfast, North on the conclusions that he draws. He implies that the provisions are somehow concessions to those groups. That is not the case at all. Indeed, a number of the controversial issues that we are describing involve the timing of matters that were already agreed in 2002, when the Justice (Northern Ireland) Bill was passed. The hon. Member for Belfast, North and other hon. Members also asked questions about other legislation, comparing it with needs on the ground, and I strongly reject the implication that we were not responding.

Mr. Lidington rightly talked about the problems of racial attacks. Indeed, only today, a regrettable, racist anti-Chinese leaflet has been circulating in south Belfast. Not only have I issued a very strong condemnatory statement, but the police are taking strong action. The hon. Gentleman ought to acknowledge the proactive role that the police are taking, and there has been a sizeable dip in the number of racial attacks.

We recognise that there is considerable scope to improve legislation. That is precisely why we have published our legislative proposals on giving courts increased sentencing powers in respect of attacks that are provoked by hatred of one form or another. That sends a clear message to the perpetrators and a great message of reassurance to those who could be victims, as well as putting a weapon in the hand of the judiciary. Consultation ends on 9 April, and we want to introduce the proposals as soon as possible afterwards.

Of course antisocial behaviour is also a significant problem, and Mr. Donaldson rightly raised the concerns that his constituents have expressed. I suspect that similar concerns are raised by constituents of Members of Parliament right across the United Kingdom. As I told a delegation from Magherafelt recently, we face a paradox: the number of recorded crimes has declined with proactive police action, but there is greater insecurity in many areas as well. A lot of that is linked not just to what is defined in legislation as crime, but to antisocial and intolerable behaviour.

It is true that we could not do a straight read-across from the legislation in England and Wales, because of the different administrative and local government structures. To be blunt, I do not think that we moved quickly enough on that, but I take the point that has been made a couple of times by Lady Hermon and Mr. Trimble. We have moved on the issue: we had the consultation in principle, which has already developed into major support, and we now have the consultation in detail. As I have indicated, I am bringing that forward to 9 April, precisely so that we can deal with it as quickly as possible. I know from the experience in England and Wales that we will then need to ensure that all parts of the prosecution and justice system use their powers under antisocial behaviour legislation. That is equally important in terms of diminishing paramilitary activity.

Mr. McGrady mentioned those who try to refer cases outside the justice system. There will now be an effective mechanism to deal with those cases, which are causing such problems. We have been doing more than that: we have also introduced reparation orders in youth justice matters, and we have been involving the perpetrators with their victims. Again, that is starting to have an impact on changing people's behaviour and the atmosphere on the ground. So it is not true that we are ignoring those very significant problems. We are considering a number of issues that we need to tackle, and we are doing so in the Bill.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The Minister has dealt very well with matters that are not in the Bill but could be in it. Will he address one matter that is in the Bill and perhaps should not be—clause 6 on influencing a prosecutor? I asked the Secretary of State whether he could explain the difference between that and the common-law offence of attempting to pervert the course of justice, but he did not do so. I have since noticed that there is one difference. The maximum penalty on conviction on indictment is five years, which is significantly less than the penalty available for the common-law offence. Is the signal that the Government seek to send that this is, somehow or other, a much less important species of attempting to pervert the course of justice?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

No it is not. We have specifically written the provision into the Bill to make clear our disapproval of such behaviour. Rather than it just being a common-law offence, it will become an explicit statutory offence. That is why we are putting it in the Bill.

The hon. Gentleman said that some matters that are not in the Bill could be in it. That point has been made by several hon. Members. If there is a broad sense that the feeling of the House is that we should look at the consultative procedures that we undertake with regard to some of the provisions in the Bill in order to compress their time scales, hon. Members should perhaps say that and put that as a proposition. I become frustrated and share the concerns of the electorate at the time that we take, but I recognise that we need to engage with those who want to make representations and to express their views when we examine proposals. I therefore ask colleagues to reflect on whether we need to compress the time scales so that we can deal with pressing problems on the ground in a shorter time.

I do not take away our responsibility for dealing with matters administratively in a short time or for trying to do work in parallel when that is possible. However, some of the approach is simply set down by the procedures for consultation—not particularly in this case, but in others—because we are operating direct rule on matters that were previously devolved. We need to reflect on the broader issues involved and accept that the matter is not as simple and straightforward as some colleagues suggest.

I come now to the early clauses on the judicial appointments commission. Originally, the commission was laid down in previous legislation to come into effect when devolution of justice took place. Therefore, the principle of a judicial appointments commission has already been established by the House and enshrined in statute. We are now in the position in which those powers are being moved to the Lord Chancellor until devolution of justice takes place. I do not see a great issue of principle with having a judicial appointments commission to put views to the Lord Chancellor as opposed to one that makes recommendations to the First Minister and the Deputy First Minister. It is perfectly creditable for the right hon. Member for Upper Bann to take the position, "I previously thought one thing about it, but now I have a different view." However, I do not see a great issue of principle between having the commission as originally envisaged in the Justice (Northern Ireland) Act 2002 or as it is proposed in the Bill.

As we have said several times, we are putting forward a Bill providing for a justice appointments commission in England and Wales. Indeed, there is already a Judicial Appointments Board in Scotland, as Mr. Carmichael said. It was established in 2002, and it seems to be working reasonably well. I accept the questions that have been raised about the board, and I will obviously have further discussions with Scottish representatives on that matter so that we can deal with the issue in Committee. Again, it appears that the issue has been dealt with adequately in Scotland without creating a great deal of difficulty.

The question has been asked whether the commission will affect impartiality, but does that imply that the Northern Ireland judiciary is not already impartial? We do not agree with that because we believe that the Northern Ireland judiciary should be commended on its professionalism and impartiality, as has been said several times. That is why the Justice (Northern Ireland) Act 2002 refers specifically to the continued independence of the judiciary. The criminal justice review, which the Bill builds on, is about modernising the system of appointments in line with the changing needs of society. As Mr. Hunter rightly said, that was highlighted by my right hon. Friend the Leader of the House of Lords.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Shadow Spokesperson (Communities and Local Government)

The Minister says that the criminal justice system in Northern Ireland is currently impartial and working well. If that is the case, why do we need the Bill and a whole new appointments commission with all the difficulties and downsides that that entails?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

We already have provision for a judicial appointments commission. That was agreed when we considered the 2002 Act.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am grateful to the Minister for giving way because I have been trying to contain myself for quite a while. He is bound to know that the criminal justice review team that the Government put in place recommended that there should be a judicial appointments commission, but only after devolution, which was the whole purpose of the report. We do not have devolution, so why is he cherry-picking the report?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

That is not really the case because we have already agreed provisions on a judicial appointments commission that could make recommendations to the First Minister and the Deputy First Minister. We will now have a commission that will improve transparency and confidence in the system and make recommendations to the Lord Chancellor. The principle has already been agreed, so we are currently considering the time scale.

I shall move on quickly to the Conservative amendment. The hon. Member for Orkney and Shetland said that he was perplexed by it, but he should not be. He asked several questions about it, but the answers are straightforward. The two members of the Conservative Northern Ireland Front-Bench team are decent and sensible individuals who take a considerable interest in Northern Ireland—they are a considerable improvement on their predecessors. However, the amendment was tabled for a straightforward reason, which was partly to do with events on Monday and also because of the style of the Conservative Opposition. The hon. Gentlemen were instructed by the Tory politburo to move such an amendment and take its approach.

The Conservative approach is fundamentally wrong for two reasons. First, it moves away from the bipartisan approach that parties have taken on Northern Ireland, which is regrettable. Secondly, it represents lousy opposition. Conservative Members quote the mantra of Churchill that the duty of Oppositions is to oppose, but we know from 18 years' experience that that is a good way of staying in opposition because credibility is lost among serious people. I congratulate the two hon. Gentlemen on making the best of a bad job with some pretty thin arguments, but there are serious issues to discuss, which we will address in Committee. We need to ensure that people know that we understand the problems and difficulties and that we have a way of moving ahead to improve conditions for people in Northern Ireland. Indeed, I suggest that those of us in England and Wales could then learn lessons from Northern Ireland, rather than only taking lessons learned to Northern Ireland from England and Wales. I hope that the Committee will provide a better opportunity to consider such issues and look forward to seeing hon. Members who participated in the debate when we consider the Bill there.

Question put, That the amendment be made:—

The House divided: Ayes 145, Noes 366.

Division number 83 Justice (Northern Ireland) Bill [Lords]

Aye: 145 MPs