Schedule 3 — Court Security

Orders of the Day — Justice (Northern Ireland) Bill [Lords] – in the House of Commons at 8:15 pm on 26th April 2004.

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Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 8:15 pm, 26th April 2004

I beg to move amendment No. 2, in page 18, line 3, at end insert—

'(aa) a statutory officer (within the meaning of section 70 of the Judicature (Northern Ireland) Act 1978) who is exercising functions in the building,'.

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

With this it will be convenient to take Government amendment No. 3.

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

Schedule 3 as presently drafted allows judges, magistrates, coroners, social security commissioners and High Court masters responsible for taxing and for enforcement of judgements to give directions to court security officers, by virtue of the fact that those office holders are defined as "persons in authority" in paragraph 3(6). However, there are other masters of the High Court, for example in bankruptcy, who are not designated as "persons in authority". They would therefore not be able to give directions to court security officers, but might need to do so, for example to direct that a person be removed from a court. Accordingly, amendments Nos. 2 and 3 ensure that all masters and district judges are able to give directions to court security officers.

Amendment agreed to.

Amendment made: No. 3, in page 18, line 4, leave out', (c), (d) or (e)' and insert 'or (c)'.—[Mr. Spellar.]

Order for Third Reading read.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 8:29 pm, 26th April 2004

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

The criminal justice system in Northern Ireland is undergoing a journey of reform that was started by the criminal justice review, and today's debates represent another important step in that journey. The post-review criminal justice environment in Northern Ireland is characterised by a commitment to reform and modernisation. That can be seen not only in the Bill, but in the range of initiatives being taken elsewhere.

The new Public Prosecution Service has two pilots up and running—one in Belfast and one in Fermanagh and Tyrone. The Public Prosecution Service will build on the work of the Department of Public Prosecutions to maintain the highest levels of objectivity, professionalism and consistency in prosecution decisions. Under the remit of the Youth Justice Agency, youth conferencing services have been introduced, which are based on the principles of restorative and reparative justice. Youth conferencing will help young offenders take responsibility for their actions and will allow victims a role in that process. At a local level, the community safety unit is working through community safety partnerships to devise and implement local plans for community safety. That includes programmes targeting burglaries and safety for the elderly.

Given how far we have come since the criminal justice review was published in March 2000, we can be proud of the progress that has been made, but that should not breed complacency. I hope the fact that the Government will bring forward measures to tackle antisocial behaviour and hate crime, as we discussed earlier, will reassure hon. Members that we remain committed to providing the responsive, effective and efficient criminal justice system that the people of Northern Ireland deserve and need.

When I speak of the effectiveness of the criminal justice system, I do not only mean that it should have coherent and workable procedures. I refer also to ensuring confidence in the system and providing proper levels of accountability. In particular, as the history of Northern Ireland has shown, to achieve effectiveness the criminal justice system must command the acceptance of all parts of society, from whatever tradition or background. The challenges of the past 35 years have created a degree of professional dedication that is, as was rightly said during the debate, the envy of the world. Moreover, the criminal justice system operates in partnership in a way that would be difficult anywhere else. I believe that those factors lie at the heart of the work to improve and develop the system for the benefit of the community as a whole.

We are fostering a culture of continual improvement. Our goal is to develop a system that serves the people of Northern Ireland with fairness and efficiency. The Government recognise that the Justice (Northern Ireland) Act 2002 is not the final word. Although the provisions before us stand on their own merits, the Bill builds on the work that has already begun to enhance the openness, transparency and accountability of the criminal justice system. We addressed a number of important issues in Committee and some today.

The Bill is built on a number of fundamental beliefs, which I am sure we share with hon. Members. The independence of the judiciary is a cornerstone of our constitution and one of the principal guarantees of our liberty. It is in turn underpinned by the professional security that judges enjoy. We believe that the provisions set out in the Bill reflect and build on that basic position.

The issue of securing a reflective judiciary was debated extensively. There was concern that doing so would somehow compromise the principle of appointment on merit. We do not believe that that is the case. Merit and reflectiveness are not mutually exclusive. The 2002 Act makes it clear that individual appointments must be made

"solely on the basis of merit".

That said, there may be equal-opportunity issues that have implications for the judicial appointments process. If the Judicial Appointments Commission is successful in addressing these issues, it follows that it should be possible to achieve a more reflective judiciary without compromising the merit principle.

On senior judicial appointments, we had a debate about the Prime Minister's discretion when making a recommendation to Her Majesty the Queen. Hon. Members raised concerns on both sides of the argument—that the Prime Minister would have too much discretion, and that he would not have enough. We believe that we have got the balance about right.

I consider the Bill's provisions for promoting the human rights culture within the Northern Ireland criminal justice system to be another step in the right direction, rather than an innovation.

The Attorney-General's guidance on international human rights standards will provide an invaluable tool for the various criminal justice authorities to which it applies.

We had an extensive debate on the duty of the Director of Public Prosecutions to refer cases of suspected police malpractice to the police ombudsman. Some hon. Members were concerned that the Government are stepping away from what the review intended, but in fact we are implementing recommendation 21, which states:

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

Besides those clauses, the Bill makes a number of important improvements to bail provisions and other issues that are, perhaps, less challenging. However, we should not lose sight of those improvements: new rules for court security officers; providing barristers with the right to enter contracts; the power to transfer prisoners for the maintenance of good order; extending the protection afforded to prison staff against paramilitary intelligence-gathering; and providing for arrest without warrant for driving while disqualified. Those improvements did not exercise hon. Members much, but they are important, and as such they are welcome, not only in this House, but in the criminal justice community in Northern Ireland and throughout the law-abiding community.

The principle of recommendations from the First Minister and Deputy First Minister for judicial appointments caused some concern, and it raises the question of prime ministerial discretion. The purpose of the Prime Minister's discretion is not to allow him to disregard either the recommendation, if one is forthcoming, of the First Minister and Deputy First Minister, or the Lord Chief Justice's advice. It is difficult to conceive of his not basing his recommendation to Her Majesty the Queen on those recommendations to him. It would be wrong to deprive him of all discretion, however, and that was not envisaged in the review:

"responsibility . . . should lie with the Prime Minister", who should make recommendations

"on the basis of recommendations from the First Minister and Deputy First Minister."

We do not legislate for failure, but we should allow for an unhappy although not impossible situation in which no recommendation were forthcoming from the First Minister and Deputy First Minister, for example. It is extremely difficult to anticipate every circumstance and prescribe a process for it in primary legislation.

I encourage hon. Members to agree that the Bill provides the Northern Ireland criminal justice system with a further improvement on already impressive proposals for reform. The process does not stop here, however, and the criminal justice system must continue to evolve in order to meet the changing needs of society. We will continue to safeguard the independence of the judiciary and the prosecution, and will continue to ensure that the system commands the respect of the vast majority of people in Northern Ireland.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West 8:38 pm, 26th April 2004

I thank the Minister and all the members of the Committee. We debated the Bill extensively, and I extend my thanks to the Clerks, who were helpful during those proceedings.

We voted against the Bill on Second Reading, since when it has got worse rather than better. We do not oppose the principle of the devolution of criminal justice, but it is premature to proceed when there is no Assembly or functioning Executive. The expedient of devolving the criminal justice system will be achieved by transferring the roles of the First Minister and Deputy First Minister to the Lord Chancellor. We know that the Government have plans, which are unclear, for the Lord Chancellor's office, and to proceed with that double uncertainty strikes me as monstrous.

The Bill is a missed opportunity. It turns the unobjectionable principle of a judiciary that reflects the community into a threat to the principle of appointment on merit.

The Minister said that that was not so, but we believe that the Bill turns a legitimate expectation into a duty. That compromises the very important principle to which the Minister himself drew attention. When the Lord Chief Justice of Northern Ireland, Lord Hutton, spoke during the Second Reading of the 2002 Act to which we have so often referred today, he 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 the public confidence in that administration."—[Hansard, House of Lords, 3 May 2002; Vol. 634, c. 969.]

As we explained earlier, the Bill will give rise to instances whereby affirmative action will step beyond the proper bounds and compromise that principle of appointment on merit.

The Bill compromises the principle of the independence of the judiciary by removing from the Lord Chief Justice his veto over the suspension or sacking of a judge. That veto was given to the Lord Chief Justice only 18 months ago in the 2002 Act. Now the Minister is taking it away—not on the basis of any experience of the system having bedded in and been found wanting, or of some new logic, but merely on the entirely spurious grounds that a judge can be removed only on the basis of the findings of a tribunal. That is already the case. It is a necessary condition, but it might not be a sufficient one.

Why was the veto given in the first place? The Minister has been silent on that—he has been unable to explain it. We believe that the provisions of the Bill are redolent of some special pleading to which we have not been privy during proceedings in Committee or on Report. The removal of the veto is an unwelcome addition to the Bill that would alone be sufficient grounds for me to ask my hon. Friends to oppose it.

The Minister said that the Bill does several desirable things, and he listed them. He is right. The prosecution's right of appeal against magistrates granting bail is desirable. The power of the transfer of prisoners for the maintenance of good order is necessary, too, although that is because of the entirely regrettable abandonment of the integrated regime at Maghaberry prison. Making driving while disqualified an arrestable offence is of course desirable.

But what else might the Bill have done against a whole range of antisocial behaviours? The Minister made the grotesque announcement that in the next few weeks we can expect him to bring in antisocial behaviour orders by statutory instrument—that is, on the "take it or leave it" basis of a two-and-a-half hour debate Upstairs. The complexity of the orders, the experience of trying to implement them on the mainland and the different circumstances in Northern Ireland cry out for primary legislation. The Bill was the ideal opportunity, but that chance has been missed. It has been rushed through—and for what? What is so urgent as to require that haste and that missed opportunity?

Although the Bill does some desirable things, it muddles others. In seeking to reinforce the seriousness of the offence of perverting the course of justice, it creates a statutory offence with a much lower penalty, which achieves an effect that is precisely the reverse of what was intended. It clouds the human rights advice that can inform the criminal justice system with nebulous concepts of infinite elasticity, which are not subject to our scrutiny and agreement, and it provides unwelcome intrusions into the proper role of the public prosecutor.

In summary, the Bill reeks of concessions to special pleading. It is without any powerful motor, yet it stands to compromise the independence of the judiciary and to undermine confidence in it. I urge all hon. Members to oppose it tonight.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 8:45 pm, 26th April 2004

It is my intention to vote with the Government on the Bill. I have voted with them on it throughout, for a number of reasons. I am dissatisfied with the issues that I identified earlier, on which there has not been the kind of approach that might have been of benefit further down the road. However, when we look at the context of the Bill, we see that it is the second in two years, and if we include the three policing Bills, it is the fifth broadly to relate to justice in as many years. One can only accept that advances have been made, that enormous steps have been taken and that improvement is distinctly possible.

Of course there will be differences of opinion. There will always be a debate about the role of the judiciary vis-à-vis the political process. That debate has been going on since both began and it will continue long after this Bill is history. It is part of the body politic and the act of devising the way in which we live together and make laws for ourselves, which we then hand over to others to implement on our behalf. That is what I call the privilege of those involved in the judiciary. It is also a privilege for those involved in the political process to grapple with the problems involved, as we have done on the Floor of the House and in Committee, on this Bill and on others relating to criminal justice.

However we measure it, this Bill represents a substantial advance, but I want to put it into a broader context. The essence of good justice is that it is available to people. In reality, as Mr. Trimble suggested earlier, there are parts of Northern Ireland in which justice is not available, and in which justice of this nature is not an option for people in the community. The justice that is available to them has not been legislated for; it is delivered by a baseball bat, a gun, a brick or whatever implement happens to be at hand at the time.

The challenge for us is not just to draft legislation but to ensure that good law is available to the entire community, to afford it the protection of the law that we have been drafting tonight and to protect people from the barbarity of the approach that they have to live with and under. It is essential that we create a context in which these elements of legislation—however much we dispute their detail—are not just for the few lucky people who happen to live in certain areas where it will be available to them. It is the responsibility of the political process, not that of the judiciary or the police, to ensure that every single person in the north of Ireland has access to the justice in this legislation and to the protection that that affords each and every individual. Therein lie the difficulties and the problems that we face.

As politicians, we could—and, in any forum, we often do—get ourselves het up over some of the detail. We have our own pet theories as to who should have what power and how it should be exercised. Ultimately, however, we have to ensure that we do what we can to ensure that every single person in the north of Ireland can avail himself or herself of this law.

I stress this point, which I cannot stress often or strongly enough: in my constituency, I see people being treated in a way that is abhorrent and blood curdling but they cannot go to the police as the consequences would be even worse. To whom do they turn? What law protects those people in their own homes, townlands and villages? While it is good and right that the changes should be made in the criminal justice process, in policing and in the broad body of law, until we grapple with that question and unless we bring law to the doorstep of people who need it most, there will remain a touch of the academic about that.

I see these things on a weekly basis in my constituency. The awful thing is that there is nothing that I can do about them because when a paramilitary group has a stranglehold on a community, it determines how people approach the way they have been treated. Perhaps we should have a look at the responsibility not just of the judiciary, but of the political process. There is a remarkable responsibility on us to ensure that, when we draft law, we also make it available to the most vulnerable in our society.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change) 8:52 pm, 26th April 2004

There is little in the remarks of Mr. Mallon that we could take exception to, but, having listened to him with care, I have to say that I have some difficulty in marrying his rhetoric with the rather prosaic nature of the widely divergent provisions in the Bill.

I join Mr. Swayne in expressing my gratitude, and that of my party, for the efforts of those who made possible what were good Committee proceedings in many ways, in particular the Clerks and the other Officers of the House. I also thank the other members of the Committee, who dealt very well and responsibly with the issues. There was a remarkable lack of filibustering, as is reflected in the fact that we managed to get through the business without reaching the end of the final sitting.

In that regard, if it is not too much of an embarrassment or a blight on his career, I congratulate Vernon Coaker, the Government Whip, who deals a lot with Northern Ireland business and does much to facilitate its smooth running. He is always conscientious in dealing with all the parties that are involved in Northern Ireland business, and his time and trouble are much appreciated. He is an example for a Whip of what a Minister might be. I say no more than that.

I also thank my hon. Friend Lembit Öpik, who undertook the duties that I had intended to undertake on Report. I have spent the day trying to get here from my constituency; since getting here, I have done little other than regret my success. It is a cliché to say that it is better to travel in hope than to arrive, but when I say that today it is absolutely heartfelt.

The Liberal Democrats indicated on Second Reading that we would support the Government. I can indicate that we will again support the Government on Third Reading, but that is despite rather than because of the Government's efforts since Second Reading. When the time comes to go through the Lobby, I shall look for a quiet moment, take a deep breath, pinch my nose and run through it. I shall not support the Government with any great enthusiasm. I shall support them because much in this Bill is important and because the Liberal Democrats are generally supportive of the creation of an independent judicial appointments commission. We see the importance of the provisions on bail, transfer of prisoners, arrest without warrant in relation to disqualified driving and that great new Labour clarion call, the right of barristers to enter into contracts for the provision of their services.

So much in this Bill could have been done differently and better. The little improvement that had been made in the other place has sadly been reversed. Not only have we not progressed, but in some respects we have gone backwards. We spend a lot of time Upstairs regretting that so much Northern Ireland business is dealt with through secondary legislation and that so much goes through without the proper opportunity for amendment or even full discussion. To that extent, I must agree with the hon. Member for New Forest, West that this Bill could have been much better. There could have been so much more to it and what is in the Bill could yet be so much better. It is merely commitment to the principles behind the important clauses, and general acceptance of the less important clauses, that will take my right hon. and hon. Friends through the Lobby with the Government tonight.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 8:57 pm, 26th April 2004

I associate myself with the comments of the hon. Members for Orkney and Shetland (Mr. Carmichael) and for New Forest, West (Mr. Swayne) on the conduct of proceedings in Committee and with the compliments that they paid to the Clerks and the Whip. With regard to the Minister, the most optimistic thing that I can say is that I hope that things will get better, as I do not think that they could possibly proceed in the other direction. However, that is either-way.

We are really considering two Bills—one containing a number of controversial provisions that have been introduced for party political reasons and the other containing a number of modest provisions that are improvements. One can distinguish between the two because we have this evening debated amendments to the bad part and no amendments other than the Government's tidying-up amendment have been tabled to the sensible part.

With regard to the sensible part of the Bill, I agree entirely with the comments of the hon. Member for New Forest, West: this legislative vehicle having been available, why did the Government not make good use of it? There were plenty of things that could have been done. I will not repeat what has been said, but it is a pity that we have not seen more substance in the sensible part of the Bill.

With regard to the other part of the Bill, I do not want to repeat what has been said, but there are some salient points to emphasise. As I made clear on Second Reading, I have come to the view that the very concept of a judicial appointments commission is bad. The same negative effects might not be seen in Scotland or England and Wales, but it would certainly be bad in Northern Ireland because it opens the door to political influence. Ironically, these provisions remove the important safeguard that existed under the Government of Ireland Act 1920, which established devolution and operated in Northern Ireland from 1921 through to 1971, whereby the most senior judicial appointments were reserved to the Lord Chancellor, and the devolved body had no power with regard to them.

That was a very important safeguard for the independence of the judiciary, but it has been swept away. We now have an appointments commission that will constitute a channel via which political influences will start to seep into the administration of justice in Northern Ireland.

The same criticism can be made again and again. All the amendments that the Minister has made to the bad part of the Bill share a tendency to open the door to political influence in the context of appointments to, and operation of, the judiciary. That is why we have opposed those provisions and will continue to oppose them now. I could say more, but we all know where the provisions come from. The Government would not have included them of their own volition. They result from party political pressure and a sordid political fix. They are not in the Bill on their merits, for they have no merits. That was demonstrated abundantly when the Minister found himself flannelling at the Dispatch Box, unable to respond coherently to the points that were being made to him.

Mr. Mallon reminded us that this was the fifth occasion on which we had considered legislation dealing with justice matters—in the broad sense—during the last few years. It will not be the last. One of the things that lie behind the Bill, and indeed the criminal justice review, is the hope that justice matters can be devolved to the Northern Ireland Assembly. I made clear some time ago my party's belief that there was not a sufficient basis on which we could contemplate devolution of justice matters. I make it clear now that, should such matters arise in future, if my party and I have any say in the matter, we shall insist on significant changes to this and other legislation to ensure that the independence of the judiciary is absolutely clear, that the merit principle in appointments is absolutely clear with no question of political influence and that the criminal law is absolutely clear about the rights of those who appear before the courts, particularly those confronted by some of the more novel procedures in the Bill, being adequately safeguarded.

If these matters are devolved, we shall find ourselves here again. I hope that on that occasion we shall see a better result.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke 9:02 pm, 26th April 2004

I endorse every word said by Mr. Trimble and I understand that that is also the position of the Democratic Unionists.

As the right hon. Gentleman says, this is a Bill of two parts. The second part, consisting of clauses 8 to 17, is largely unobjectionable. It is uncontroversial and introduces a number of measures that are broadly welcome, and with which we have no quarrel. It is the first seven clauses that inject a strong element of controversy.

In his winding-up speech, the Minister urged us to see the Bill as a whole and the first seven clauses in particular as a further landmark in the evolution of a judicial system in Northern Ireland. He spoke of the need to reflect a changing society. That does not convince. Cynics—among whom I count myself—will say that the first seven clauses serve a political agenda rather than modernising a judicial system. That agenda emerged, to a considerable extent, from promises and pledges made to various parties at Hillsborough in March 2003.

The Minister said tonight, as he said in Committee and as Government spokesmen said in another place, that it was important for the Northern Ireland judicial system to command public confidence.

Frankly, the Government have, by their own criterion of judgment, failed dismally, because the Bill does not command the confidence of the elected representatives of the majority of Northern Ireland. Of course, there is nothing new in that state of affairs. It is another landmark in a process that we have witnessed time and again since 1985.

Not only does the Bill not command confidence but it undermines existing confidence. There are a number of reasons why it does so. One is that it contains an unacceptable move away from the sound principle of equality of opportunity and embraces the discredited concept of equality of outcome. It also enshrines the concept of being "reflective of the community". I shall not repeat the arguments at this stage because I outlined them in the debate but, in respect of both appointments to the commission and of judicial appointments themselves, the Bill is fundamentally flawed. There should be no room for any consideration other than merit when it comes to either set of appointments.

We look forward to the day in Northern Ireland when religious affiliation is irrelevant. The Bill yet again institutionalises sectarianism. Just as apartheid in South Africa institutionalised racism, the present Government's policies in Northern Ireland institutionalise sectarianism and that is unacceptable.

The Bill decreases the power of the Director of Public Prosecutions, in absolute contradiction of the recommendations of the criminal justice review. It advances the powers of the ombudsman at his expense, which is unacceptable. One of the remarkable things about the Bill is the way in which the Government are cherry-picking from the criminal justice review when and as that review furthers their preconceived political agenda, in particular when it meets and coincides with the demands of the SDLP.

The Bill devolves the justice system before devolved government has been re-established. We note also the Minister's persistent refusal to give an unambiguous yes or no answer on whether the Government envisage Sinn Fein being "reflected" in the composition of the commission. In all, the Bill marks a further step in the politicisation of Northern Ireland's judicial system. That is why we will vote against it.

Question put, That the Bill be now read the Third time:—

The House divided: Ayes 294, Noes 102.

Division number 147 Orders of the Day — Justice (Northern Ireland) Bill [Lords] — Schedule 3 — Court Security

Aye: 294 MPs

No: 102 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Bill read the Third time, and passed.