Amendment 1 proposes that the devolved Attorney-General should be appointed by the Lord Chief Justice, instead of by the First Minister and Deputy First Minister, as provided for in the Justice (Northern Ireland) Act 2002.
Amendment 12 proposes that the Director of Public Prosecutions should be under the direction and superintendence of the Attorney-General for Northern Ireland and the Advocate-General for Northern Ireland.
These amendments would also mean that a number of functions would no longer transfer from the Attorney-General for Northern Ireland to the DPP on devolution of policing and justice. These functions include consenting to the institution or conduct of criminal proceedings, entering a nolle prosequi, and referring unduly lenient sentences to the Court of Appeal.
I believe it would be inappropriate for a judge to make an appointment to a post that sat in part of the Executive arm of government. That would be to undermine a fundamental tenet of the UK's constitutional framework—the doctrine of the separation of powers. I appreciate the noble Lord's concern that the Attorney-General should be safeguarded from inappropriate political pressure. In response, I should highlight that the appointment is made jointly by the First Minister and Deputy First Minister. That balance should provide reassurance. The First Minister and Deputy First Minister have also made public who they are minded to appoint to this post, and their proposal has been widely welcomed.
Although the Attorney-General will be appointed by the First Minister and Deputy First Minister, and as such is clearly appointed by politicians, Section 22(5) of the Justice (Northern Ireland) Act 2002 states that:
"The functions of the Attorney General for Northern Ireland shall be exercised by him independently of any other person".
This is in line with the criminal justice review, which recommended that the Attorney-General should be "a non-political figure" and concluded that an Attorney-General appointed under these arrangements was,
"less 'political' than almost all counterparts in other common law jurisdictions".
The Criminal Justice System Review Report, published in March 2000, was the most important and far-reaching survey of criminal justice in Northern Ireland in more than 30 years and flowed from the Belfast (Good Friday) agreement. The Government do not believe there is evidence to support a move away from these arrangements which were approved by Parliament as part of the Justice (Northern Ireland) Act 2002.
Again reflecting the criminal justice review, the 2002 Act provides for a consultative relationship between the DPP and the Attorney-General for Northern Ireland, and between the DPP and the Advocate-General. This was considered the best way of ensuring visible independence of prosecutorial decisions by the DPP. Indeed, giving the Attorney-General the power of superintendence and direction would be contrary to the criminal justice review. Noble Lords will therefore understand why the Government also oppose the removal of Section 41 of the 2002 Act, which transfers certain functions from the Attorney-General to the DPP. The transfer was provided for in the 2002 Act to ensure that the Attorney-General's functions would be consistent with his new consultative role post devolution.
This consultative relationship is a statutory obligation. It allows a wide range of matters to be discussed, with a particular duty to consult on the code of practice for prosecutors which informs so much of the prosecution process. I would expect such discussions to involve challenge and a full and frank exchange in both directions. Also under Section 25 of the Justice (Northern Ireland) Act 2002, the Attorney-General may participate in the proceedings of the Assembly. Although it will be for the Assembly, through its standing orders, to set out how this will work in practice, this will provide a line of accountability from the Director of Public Prosecutions, through the Attorney-General to the Assembly. This is in addition to the fact that the DDP is answerable in Assembly for the finance and administration of the Public Prosecution Service.
Some things have most certainly changed since 2000, when these arrangements were first envisaged. Indeed, a great deal has happened. The reactions to the recent atrocities from both sides of the political spectrum are testament to this. The political progress we have seen since 2000 is something we can all welcome. However, the review group designed these recommendations to ensure that justice could be transferred to the devolved institutions in Northern Ireland on a sustainable basis. The fundamentals of these devolved institutions, including the joint nature of the office of the First Minister and Deputy First Minister and the mandatory coalition that makes up the Executive have not changed.
As the noble and learned Lord, Lord Mayhew, said at Second Reading:
"It comes down to a question of judgment concerning the atmosphere in Northern Ireland today".—[Hansard, 9/3/09; col.974.]
I think that we must respect the views and the judgment of the Northern Ireland Assembly.
The noble Lord, Lord Kingsland, drew our attention to the arrangements for judicial appointments and removals, dealt with in Clause 2 and Schedules 2 to 6 to the Bill. Unlike these arrangements, however, the First Minister and Deputy First Minister have not proposed that the post-devolution arrangements relating to the prosecutorial system should be changed. The Government believe that those who will be taking responsibility for the system are the best judge of whether the time has come to move away from the accountability arrangements put in place in 2002. If, in due course, the Assembly decides that the time has come to put in place new arrangements, they will be able to do so. It is not our job today to pre-empt their decision on the substance or timing of such a change.
I believe that with the commitment of those involved, the arrangements in the 2002 Act will ensure an effective relationship between the Director of Public Prosecutions and the Attorney-General and Advocate-General. The arrangements will preserve the director's independence and promote confidence in prosecutions in a jurisdiction where justice has been a contested space. I am therefore, extremely grateful to the noble Lord for signalling that he would not wish to pursue these amendments and I ask him to withdraw them.