Justice (Northern Ireland) Bill [HL]

– in the House of Lords at 3:10 pm on 10th February 2004.

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Clause 4 [Appointment of Lord Chief Justice and Lords Justices of Appeal]:

Photo of Lord Glentoran Lord Glentoran Conservative 3:17 pm, 10th February 2004

moved Amendment No. 1:

Page 3, line 8, at end insert ", and

(c) consult the Lord Chancellor"

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, this group of amendments was tabled on Report but, due to the delayed start occasioned by a Statement and my particular desire to move on quickly to Clause 5, I did not move them. I now return to them because I believe that they are an extremely important part of the Bill and because I believe that Her Majesty's Government have again got it wrong. In principle, the amendments refer to the appointment of the Lord Chief Justice and Lords Justices of Appeal.

There should not be only a single name put forward either jointly or by the First Minister and Deputy First Minister. I suggest that they can and should indicate their preferences and, where these coincide, they should carry significant weight.

According to the Bill, the Prime Minister's duty remains to make the appointment on merit, which I support entirely. He or she must be capable of being satisfied that the paramount requirement—the merit principle—is fulfilled. Any other interpretation would mean that the predominant consideration was political. Therefore the existing practice, at least as it was under my noble and learned friend Lord Mackay and probably under the noble and learned Lord, Lord Irvine, and it is hoped under the noble and learned Lord, Lord Falconer, whereby the field was very carefully surveyed in close consultation with the most senior judiciary, needs to find continuing expression in Northern Ireland and to be a part of the procedure. It should be considered seriously whether not only the Lord Chief Justice should be consulted personally, but also that the views of the Judicial Appointments Commission as a whole should be known.

It is also desirable that the Lord Chancellor should continue to be consulted. As I read the Bill, the Lord Chief Justice of Northern Ireland will have either no or very little input, and the Judicial Appointments Commission absolutely no input. In that context, it may be that, in practice, the convoluted provisions for devising apparently ad hoc procedures for each such appointment set out in Clause 4(5) and (6) will take some or all of the above into account. But the Judicial Appointments Commission is certainly not permitted to recommend names. Both this and what is to happen generally need to be spelt out clearly on the face of the Bill, otherwise there is a real danger that such appointments will lack well informed and carefully considered advice, and degenerate into political horse-trading.

The Government say that they set out to ensure the depoliticisation of judicial appointments in Northern Ireland. But what they have done is the opposite and in my opinion it was done in a cynical way. I believe that most of the Bill has emerged as the result of debate, discussions and negotiations with political parties. Much of what is in it, including these clauses, is at the behest of one or other of those political parties. In anyone's book, that is not depoliticisation; it is politicisation.

We only have to compare this with what Her Majesty's Government think is right for England and Wales. I refer to some of the provisions. For appointments to the Court of Appeal, a senior appointments panel will be established by the Judicial Advisory Commission for England and Wales comprising the Lord Chief Justice, a head of division or other Court of Appeal judge chosen by the Lord Chief Justice, the chairman of the Judicial Appointments Commission or a deputy chosen by him—a lay member, and a further lay member of the JAC chosen by the chairman. This panel will provide one name for the vacancy specified and a list of other candidates who might be suitable.

The Secretary of State—I am not being political in saying that; while the provision refers to the Lord Chancellor's Department, it will involve the Secretary of State for Constitutional Affairs—can ask the panel once to reconsider, and he can reject a candidate once.

For appointments to the head of division, including the Lord Chief Justice, the senior appointments panel will be made up of the most senior of the judges from England and Wales who are members of the Supreme Court from England or a deputy chosen by him; the Lord Chief Justice or, if appointing to the post of Lord Chief Justice, a head of division or other appropriate judge chosen by the senior judge as mentioned above; the chairman of the Judicial Appointments Commission or a deputy chosen by him—a lay member; and a further lay member of the JAC chosen by the chairman.

In conclusion, not only does the Judicial Appointments Commission for England and Wales have a hand in the consultation process, it can recommend the candidates. For Northern Ireland, however, the First Minister and Deputy First Minister consult the JAC only about procedure in making a single recommendation to the Prime Minister. I suggest that this is monstrously inconsistent and very political. I beg to move.

Photo of Lord Monson Lord Monson Crossbench

My Lords, the noble Lord, Lord Glentoran, made a powerful and, I suggest, overwhelming case for these amendments. While there is no problem with Amendments Nos. 1, 2 and 3, I wonder whether there might be a drafting error in Amendment No. 4, which is rather less important than the other three. Should not the word "and" appear after the word "recommendation"?

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, I am aware of the concerns of the noble Lord, Lord Glentoran, about this issue. It is clear that the noble Lord is seeking to build in safeguards in relation to senior judicial appointments to minimise his concerns about the possible scope for political influence.

Perhaps I may say at the outset that throughout our examination of the Bill we have sought to ensure that the independence of the judiciary is upheld. The noble Lord referred to what would be relevant in England and Wales. I should say to him that there are common principles relevant to all three jurisdictions of the United Kingdom—Northern Ireland, Scotland, and England and Wales. These are the ideals of enduring judicial independence, transparency, accountability and high public confidence in the judiciary.

However, the fact that there are three jurisdictions means that certain differences in approach will be taken at the operational level. In practice these differences are right, proper and necessary to reflect the differences between the jurisdictions. Moreover, one point that has been made abundantly clear in our discussions about the Bill is that there are particularities in Northern Ireland which we need to take into account. So I am sorry that the noble Lord is not convinced that the procedure on devolution for senior judicial appointments is sufficiently robust.

Amendments Nos. 1 and 3 seek to provide for statutory consultation with the Lord Chancellor when making senior judicial appointments. The Prime Minister will make a recommendation to Her Majesty after considering the recommendation of the First Minister and Deputy First Minister. The Lord Chief Justice will be consulted, as provided for in the Justice (Northern Ireland) Act 2002. His views will be made known to the Prime Minister. Further, there is nothing to stop the Prime Minister or the First Minister and Deputy First Minister consulting the Lord Chancellor.

However, I must remind noble Lords that we are discussing senior judicial appointments in a post-devolution criminal justice environment when the Lord Chief Justice will be head of the judiciary in Northern Ireland, not the Lord Chancellor. I would therefore propose that it is not necessary to provide for statutory consultation with the Lord Chancellor.

Amendment No. 2 seeks to specify that when making senior judicial appointments, the First Minister and Deputy First Minister will supply a list of at least three names to the Prime Minister. The clause as it stands gives the Prime Minister flexibility over the number of names he might require from the First Minister and Deputy First Minister. Of course the Prime Minister might ask for three names, or he might ask for fewer than three. The Prime Minister can decide in each case. We believe that this flexibility is important and should be maintained.

The effect of Amendment No. 4 would be that the Judicial Appointments Commission, as well as advising the First and Deputy First Ministers on the procedure to adopt when making senior judicial appointments, would also advise on the substance of the recommendations. Recommendation 85 of the Criminal Justice Review states:

"The First Minister and Deputy First Minister should consult with the Judicial Appointments Commission over the procedure to be adopted in appointments to the positions of Lord Chief Justice and Lords Justices of Appeal".

The review did not recommend that the commission should provide advice on the substance of recommendations to the Prime Minister. This would give the commission a role in individual appointments to senior judicial offices which was never intended. They are currently required to advise the First Minister and Deputy First Minister on a general process to be used for making recommendations about senior appointments.

I said at the beginning that what we have put in place is robust. Of course we wish to maintain the independence of the judiciary. This is not about political influence or interference. The review was very clear with respect to the Judicial Appointments Commission's direct involvement in appointments. It should cease at the level of the High Court judge. I hope that in the light of this explanation the noble Lord, Lord Glentoran, will feel able to withdraw his amendment.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the Lord President. I hear what she says in relation to my Amendment No. 1 on devolution. I am afraid that her arguments on Amendment No. 2 are not acceptable. As a member of the Northern Ireland community, as a Member of your Lordships' House and in my role at the Dispatch Box, I find it quite incongruous that Northern Ireland's judicial system should be downgraded and politicised to the extent that it has been by this Government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Glentoran Lord Glentoran Conservative

moved Amendment No. 2:

Page 3, line 8, at end insert—

"( ) Any specification by the Prime Minister under subsection (3)(a) in relation to recommendations from the First and Deputy First Minister must specify that the recommendation shall contain no fewer than three candidates."

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I wish to test the opinion of the House. I beg to move.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 106; Not-Contents, 156.

Division number 1 Private Parking: Ports and Trading Estates — Justice (Northern Ireland) Bill [HL]

Aye: 104 Members of the House of Lords

No: 154 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 3 and 4 not moved.]

Clause 5 [Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman]:

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, both in Committee and on Report I indicated that my party and I are unhappy with the Bill, largely because we suspect that it will not work for the greater good of the people of Northern Ireland. It is a very political Bill. In his remarks earlier, the noble Lord, Lord Glentoran, intimated that he feels likewise.

One should consider the words of the noble Lord, Lord Dubs, at Report stage. He said about this part of the Bill:

"The Government gave their commitment at Hillsborough in the Joint Declaration. It would be a sad day if the Government were to renege on a promise they made to the Northern Ireland parties".

The only matter I take issue with on that is that it was not a commitment given to "the" Northern Ireland parties; it was a commitment given, secretly and without agreement, to "a" Northern Ireland party.

The noble Lord, Lord Dubs, continued:

"It would be a sad day if the House were to say, 'Never mind what undertakings the Government made; we think differently'. The situation in Northern Ireland, with the start of the talks today on the review of the Good Friday agreement, is sensitive. It would be unhelpful if this House were to change the Bill in the way the amendment suggests".—[Official Report, 3/2/04; col. 597.]

We simply do not believe that secret and clandestine arrangements made outside the House—by whoever—override the interests of those of us who come here to legislate for the good of society as a whole. That is why Amendment No. 5 seeks to leave out Clause 5.

The clause relates to the duty of the Director of Public Prosecutions to refer certain matters to the Police Ombudsman. I cannot look at the clause without wondering where the powers of the Police Ombudsman end. Is the Police Ombudsman to be all powerful? Is the Police Ombudsman's influence to override the influence of the command of the Police Service of Northern Ireland; the influence of the Policing Board; the influence of Her Majesty's Inspectorate of Constabulary; and, in a way, the influence of the Office of the Director of Public Prosecutions?

I acknowledge that I have received a letter from the noble and learned Lord, Lord Goldsmith, the Attorney-General, in which he sought to reassure me on this point. However, I am not reassured in any way.

New subsection (4A) in Clause 5(3) states:

"The Director shall refer to the Ombudsman any matter which . . . appears to the Director to indicate that a police officer . . . may have committed a criminal offence".

If it is believed that a police officer has committed a criminal offence the matter will obviously be referred to the Director of Public Prosecutions, who will make a considered judgment based on the evidence before him. If there is a good chance that he will achieve a conviction, he will take the matter to court. If there is a 50-50 chance, he may decide to take the matter to court. If there is a 40 per cent chance, he will make an assessment.

But let us consider the case where the Director of Public Prosecutions looks at the information and evidence brought before him and decides that there is a 5, 10 or 15 per cent chance—in other words, a case where he would not recommend prosecution through the courts. That should be the end of his responsibility. It is not for him then to ask questions that impinge on the responsibility of the police command, Her Majesty's Inspectorate of Constabulary and the other institutions to which I have referred. Never have the police been so policed as they are now. We should not regard the Police Service of Northern Ireland as a body that needs to be passed from one invigilating authority to another.

Let us return to the case where the DPP has decided that the policeman will not be taken to court; that he will not give or require the opportunity, as the case may be, for the policeman to account for his behaviour before a jury of his peers. I have already acknowledged that the Attorney-General has written to me. Whatever he may say, is it not a form of double jeopardy?

When the DPP says, "What has come before me does not appear to me to necessitate prosecution, but I shall relegate the judgment on this case to the police ombudsman", the policeman will not in fact be tried or examined by a jury of his peers. Yet, when that case is passed to the ombudsman, is there not—because of its source, which is the office of the Director of Public Prosecutions—to some extent an obligation on her that would not have been on her had the matter arrived on her desk through the system that she controls? Is there not a greater likelihood of more severity and greater pressure being brought to bear in respect of a policeman? The same situation occurs in terms of new subsection (4A)(a)(ii). That new subsection refers to the possibility that it may appear,

"to the Director to indicate that a police officer . . . may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".

I have experienced a poorly prepared prosecution coming out of the DPP's office. If that happened, and there is an "inquest" into why a prosecution has failed, is there not likely to be a natural fall-back position, asking the police ombudsman to examine the evidence that the police provided in bringing the prosecution in the first place?

Again, it is very much a matter of who minds the minder. Quite simply, I do not believe—and many people would agree with me—that the DPP's role and responsibility should be that of message boy or girl, as the case may be, for the police ombudsman. We have adequate supervision of policing at every level. To impose this particular clause on top of all that has gone before and all that currently exists is to create double jeopardy, however Government Ministers may try to explain it away. I beg to move.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I shall be brief. The Bill would be better without this clause. We have a new police force in Northern Ireland, the PSNI. It has new cultures developing and evolving. In Northern Ireland, we are desperately short of trust between all the organisations: political parties, religions, police forces and various other aspects and parts of the judicial and criminal services. They have links with the British Army. There are huge numbers of interlinks and interfacing organisations, all attempting to cope with extraordinarily difficult levels of crime and terrorism. I do not see what is only a provocative clause achieving anything very much; the Bill would be better off without it.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I too can be brief because we debated this clause at some length in Committee and on Report.

I shall respond first to the points made by the noble Lord, Lord Maginnis. This amendment is not about the powers of the ombudsman; those are not at issue. It is about the Director of Public Prosecutions passing matters across, in certain circumstances, to the ombudsman. It does not touch on what powers the ombudsman has when he or she—presently she—receives that information. It is not about overriding the Director of Public Prosecutions. So far in these debates, I have made two points clear. First, that the director's independence, professionalism and integrity are beyond doubt and, secondly, that the decision on prosecution remains absolutely and completely that of the director, not of the ombudsman. It is only after the director has made a decision, one way or another, that the matter will go to the ombudsman, if it goes at all.

I said that in my letter to the noble Lord, Lord Maginnis, which he was generous enough to acknowledge today. I shall quote what I said to him, so that your Lordships are aware of it too. I wrote:

"It may help if I make it absolutely clear that decisions as to prosecutions are, and will remain, the responsibility of the Director of Public Prosecutions for Northern Ireland. The responsibility of the Police Ombudsman is to investigate allegations of criminality by police officers or of behaviour that may justify disciplinary proceedings".

That is the disciplinary side.

That takes me to my second point. The noble Lord, Lord Maginnis, was worried that the Director of Public Prosecutions, having made his proper decision about prosecution, might need to ask questions—I noted his words as,

"impinging on questions of the police command and so forth".

No, after the decision on prosecution is made and executed, it will not be for the director to do that. If it falls within this clause, it would be for him to pass the matter across to the police ombudsman and it would then be for the police ombudsman, if appropriate, to make further enquiries. It may well not be appropriate. That would be for the ombudsman to decide.

The third point that he made is that, because an issue has been put before the ombudsman by the Director of Public Prosecutions, that would somehow give it greater gravity or require her to deal with it with greater severity. I do not see that at all. The ombudsman will be obliged to consider the material before her on the objective basis of that material and its strength, and not on the basis of the provenance of the material. That is particularly so because the director will be passing the information over as a result of a duty—that is the very thing that this clause imposes—not as a result of a judgment by him that the matter is one that deserves consideration by the ombudsman.

The noble Lord, Lord Maginnis, was concerned, on the previous occasion at least, about what he described as double jeopardy. Another matter dealt with in the letter that I wrote to him responded to a question that he sought to ask on the previous occasion. A police officer is not in a different position from that of many other people who belong to professional bodies. After trials of all sorts, people in professional bodies may find themselves referred to their professional bodies or to other disciplinary bodies for consideration. As a barrister, that is certainly something that would undoubtedly happen to me. I have experience of other professionals too, such as solicitors and doctors. Police officers are not in that regard in a unique position in any respect.

Moreover, this issue is more likely to arise in circumstances where the officer is not the subject of the investigation but is the investigating officer or is involved in the course of investigating somebody else. If Mr A is on trial, but it appears that the police officer has misconducted himself, there is no question of double jeopardy so far as the officer is concerned. For those reasons, I respectfully suggest that the concerns of the noble Lord, Lord Maginnis, are not well founded.

I heard what the noble Lord, Lord Glentoran, said about there being a shortage of trust in Northern Ireland. As Attorney-General for Northern Ireland, I understand what he means by that. However, I invite him and those on the Benches opposite carefully to consider this: is not one of the reasons for the lack of trust in some parts of the communities a belief, however ill founded, that wrongdoing on the part of particular people is covered up and not passed over? Having a clear obligation on the Director of Public Prosecutions that says, "If you come across this sort of conduct, you must pass it to the Police Ombudsman", gives many people in the community a sense of trust that there can be no question of that sort of material being seen by someone in the DPP's office and covered up simply because they prefer not to expose to daylight any misconduct.

I agree with the noble Lord, Lord Glentoran, that trust is important. This clause will increase trust within the community. I warmly urge him and those on the Benches opposite to consider that, in accordance with his objective of increasing trust, which I share, the right thing to do is to support this clause.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench 4:00 pm, 10th February 2004

My Lords, the noble and learned Lord the Attorney-General has outlined very clearly the technical aspects of the matter that I raised. However, he has not clarified at all—it is impossible to clarify—the fact that the DPP is concerned with criminality. Criminality is different from professional inadequacy or carelessness. The people who deal with those things are the ombudsman, Her Majesty's Inspectorate of Constabulary, the police officer's own senior command and the Policing Board. There is no such cross-fertilisation in the case of the solicitors, doctors and accountants that the Attorney-General mentions in his letter. Those professional bodies make a judgment that is separate and apart from the judgment of criminality made by the Director of Public Prosecutions. Hence, I have not had a satisfactory explanation of why, in this specific case, there should be that overlap between criminality and professional inadequacy, misjudgment or carelessness.

If we adopt this clause, we give the Police Ombudsman a second opportunity to find evidence against a policeman which, in turn, may lead to a prosecution, because if she finds something within the scope of her investigations that suggests criminality, she is bound to refer the matter back. The situation will be such that, having considered the case against the policeman, and decided that there is no case to answer, the case is passed to the ombudsman and then handed back. The DPP has to make the same judgment on a second occasion. That is absolute nonsense. If it is not double jeopardy, it is what I always believed double jeopardy to be.

I am not satisfied that this clause is beneficial. I should like to seek the opinion of the House.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 81; Not-Contents, 170.

Division number 2 Private Parking: Ports and Trading Estates — Justice (Northern Ireland) Bill [HL]

Aye: 79 Members of the House of Lords

No: 168 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I take issue with the Attorney-General and with Clause 6, which was Clause 7 on Report, and question whether it should not more properly be struck out of the Bill.

I remember saying on Report that I accepted the Attorney-General's arguments, but would take advice from my legal team. I am here because my legal team was not satisfied with the arguments put forward by the noble and learned Lord on Report.

I shall not go through the issues at length as we have discussed them both in Committee and on Report. Unfortunately, on neither occasion did the Attorney-General and I agree. On Report I said:

"This is a new offence of influencing a prosecutor. It is neither necessary nor wise. The Government rightly realised that, for it to have legal certainty, an essential of any such criminal offence is that it must be done with the intention of perverting the course of justice. Any attempt to influence a prosecutor with such an intent is already a criminal offence at common law, and the proposed statutory offence adds nothing to it".—[Official Report, 3/2/04; col. 607.]

I beg to move.

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

My Lords, it is not my intention to intervene in the substance of the discussion, but I have a procedural point to make.

It is strange that noble Lords are trying to remove a clause on Third Reading that stood part in Committee. I am sure that that is not what Third Reading is about. There may be occasions when that can happen, and this may be one of them. I do not know enough about the subject of the clause.

We must be careful about how we proceed at Third Reading. I have been saying for a long time privately—and possibly publicly—that there are far too many amendments at Third Reading. Noble Lords will see that the Companion is quite strict about that. I am sure that it has been accepted by the Clerks in the general way in which the House deals with such matters. I simply want to raise a caution. Clauses that stand part in Committee should not really be struck out at Third Reading unless there is some very significant change between those two stages.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, the noble Lord, Lord Tordoff, has made a very important point. I doubt that this afternoon is the moment to attempt to respond to the significance of what he said, but I am sure that the fact that he said it—and that he in particular said it—needs to be considered further by those who consider the procedures of our House. If he will permit me, I shall make no further observation on it, other than that I have great sympathy with what he said.

We have debated the issue at some length. It is always a regret for any lawyer to find that other lawyers disagree with him. I explained fully in Committee and on Report my reasons why I think it proper and wise to keep the clause in the Bill. I said then, for example, that bringing the offence would require the consent of the director himself. Perhaps I should have added that there are circumstances in which the deputy director can act in his stead, but I imagine that that would be only if the director himself were away.

I do not think that I can add anything to what I have said before. The noble Lord, Lord Glentoran, dealt with the amendment very quickly and I adhere unrepentantly, I am afraid, to my views that the clause is good and proper and should be kept in the Bill. I hope that noble Lords will agree.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, before responding to the noble and learned Lord, I should like to say to the noble Lord, Lord Tordoff, that I will certainly take note of what he said. If I have tabled an amendment that I should not have tabled, I apologise unreservedly to the House and to those concerned, and I shall seek advice from the Clerks in future with more diligence.

I know that the noble Baroness, Lady Farrington, does not want us to get involved too heavily in speeches on whether the Bill do now pass. However, as it is a Northern Ireland Bill and there is always a lot of passion and argument on Northern Ireland Bills, I should like to thank those on the Government Front Bench who have so patiently dealt with all our criticisms. I also thank my noble and learned friends and noble friends who have supported us and, last but by no means least, the officials from the department, who have been very patient with me when I have badgered and bullied them in corridors, airport lounges and other places to get more information or to change something.

I thank the noble and learned Lord for what he said, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

An amendment (privilege) made.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Amos.)

On Question, Bill passed, and sent to the Commons.