Part of Northern Ireland Bill – in the House of Lords at 3:33 pm on 11th March 2009.

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Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament 3:33 pm, 11th March 2009

I, and all Members who sit on this side of the Committee, echo everything that the Lord President said about the ruthless and cowardly killing that took place between Second Reading and today. It is tragic that on the first two occasions when the House has addressed this Bill, we have had to begin proceedings by expressing our condolences in that way. Let us hope that it will not happen again.

I had an opportunity at Second Reading to outline the substance of my amendment. I merely intend to underwrite those remarks by providing your Lordships with a little more detail. In this group of amendments we have Amendment 1 and Amendment 12. It might be helpful to the Committee if I began not at the beginning but at the end, by reading out the text of Amendment 12.

This amendment seeks to amend Section 42(1) of the Justice (Northern Ireland) Act 2002, which refers to the independence of the Director of Public Prosecutions for Northern Ireland. As many of your Lordships are already aware, the subsection reads:

"The functions of the Director shall be exercised by him independently of any other person".

Amendment 12 seeks to amend Section 42(1) as follows:

"The Director must exercise his functions under the superintendence of the Attorney General for Northern Ireland in relation to devolved matters and the Advocate General for Northern Ireland in relation to retained matters and is subject to any directions given by either of them thereunder, but a failure to comply with this subsection does not affect the validity of anything done by or on behalf of the Director".

Your Lordships will be familiar with the relationship between the Attorney-General and the Director of Public Prosecutions in England and Wales and, indeed, at present, in Northern Ireland. This amendment simply mirrors our own constitutional practice. We believe that Section 42(1) needs this amendment because if it were not so, the Director of Public Prosecutions for Northern Ireland is likely to be exposed to an unacceptable degree of political pressure over at least some of the prosecutorial decisions that he will have to make. In particular, I fear that he is likely to be accused of bias. Under the 2002 Act, the director has no access to the Northern Ireland Assembly to explain and justify his prosecutorial decisions.

That brings me to the other amendment in this group, Amendment 1, which is in substitution of Section 22(2) of the Justice (Northern Ireland) Act 2002. It may be helpful if I read out that subsection before I come to the amendment. It states:

"The First Minister and deputy First Minister, acting jointly, must appoint a person to be Attorney General for Northern Ireland".

So the Attorney-General is appointed, in effect, by a political deal between the two leading politicians in Northern Ireland. That deal does not even have to be sustained or justified by any reference to the Assembly, because there is no requirement in the 2002 Act to refer the deal to the Assembly.

We submit that that subsection should be replaced by the following:

"The Attorney General for Northern Ireland shall be appointed by the Lord Chief Justice and the provisions of section 5 (as amended) shall have effect for the procedure governing such appointment".

Section 5 provides that listed judges, and that includes High Court judges, shall be selected in the following manner. After interviews, they will be nominated by the Judicial Appointments Commission in Northern Ireland. That appointment will then be endorsed by the Lord Chief Justice. That is the selection procedure for High Court judges and below. We propose that that procedure should now be used also to appoint the Attorney-General for Northern Ireland.

I think that it is plain to your Lordships why we have done this. Superintendence works in this country because, although the Attorney-General is a member of the Government by constitutional convention, in our jurisdiction he is nevertheless under a quasi-judicial duty to exercise his superintendence over the Director of Public Prosecutions entirely independently of political pressure. That constitutional convention does not exist in the Northern Ireland jurisdiction, or will not exist once devolution occurs. Therefore, this amendment is intended to inject our convention into the devolved system of justice in Northern Ireland.

Once Amendments 1 and 12 are read into the 2002 Act as a result of amending the Bill today, we will have injected into devolution precisely the same arrangements as we have here. That means that, in an often highly charged situation, the Director of Public Prosecutions in Northern Ireland will have the proper protection in relation to his decisions that our own Director of Public Prosecutions receives here.

The Government have taken issue with this and set out their reasons for doing so in the debate on Second Reading. The basis of the Government's view is that the 2002 Act is the consequence of an investigation which took place right at the end of the previous century and crystallised itself in to what is termed the Northern Ireland Criminal Justice Review. The review was completed in 2000 although it was not published until 2002. The 2002 Act is, in effect, a carbon copy of the Criminal Justice Review. The Government contend that it would be a monumental mistake to seek in this Bill to change the conclusions of that review, as the Lord President said unequivocally to your Lordships' House on Monday.

Our response is twofold. The first, which was extremely eloquently expressed by my noble and learned friend Lord Mayhew, is that the review was completed nine years ago and a great deal has happened since then; and it would be a mistake to lash ourselves to the tiller of the review without giving ourselves any room for manoeuvre to respond to the many events that have happened since.

My second response is that, in any case, in one significant manner, this Bill alters the recommendations of the Criminal Justice Review 2000 and the content of the Justice (Northern Ireland) Act 2002. It changes the way in which High Court judges are selected, and much for the better. If your Lordships glance at Schedule 3 to the Bill, you will see that, once judicial matters are devolved in Northern Ireland, judges will be selected by a procedure that differs significantly from the 2002 Act. In the 2002 Act, High Court judges are selected first by the Judicial Appointments Commission, and then endorsed or otherwise by the First Minister and Deputy First Minister. We deplored that at the time and have continued to deplore it in a variety of amending Acts.

I congratulated the Government on what they have done in Schedule 3. The Northern Ireland Bill has removed the First Minister and Deputy First Minister from the selection procedure and replaced them with the Lord Chief Justice of Northern Ireland. This is a very significant change. Here is a major example of the Government being prepared to think again about the 2002 Act. If they can think again about a matter as significant as that, why can they not think again about the relationship between the Attorney-General for Northern Ireland and the Director of Public Prosecutions?

We are of course in some difficulty in dealing with this Bill today, as many noble Lords said at Second Reading. It is emergency legislation and takes place against a backcloth of recent events which give rise to great concern—although not, I hope, about the future of devolution. I remain confident that we will achieve that objective. Certainly, it is not a time to start tearing apart arrangements that have been carefully crafted over a long time, even if some of us disagree with some of those arrangements. After all, the implementation is not yet to take place and we may have other opportunities to change the character of the 2002 Act.

That consideration—together with the fact that under Section 22(2) of the Justice (Northern Ireland) Act 2002, the First Minister and Deputy First Minister have already chosen the person who is to become the first Attorney-General for Northern Ireland under these arrangements—has led the Opposition, despite our strong support for this amendment, to take the view that it would be wrong, at this juncture, to press this amendment to a vote. However, I hope that we will get another opportunity to look at this in calmer legislative circumstances. I beg to move.