I am most grateful to the noble Baroness for her full response, which, it is fair to say, reflected the observations that she made two days ago at Second Reading. I should like to respond briefly to her remarks, as well as to the observations made by the noble Baroness, Lady Harris.
I cannot overemphasise the degree of isolation of the DPP in the system. I have already drawn your Lordships' attention to Section 42(1) of the Justice (Northern Ireland) Act 2002 which refers to the obligation on the director to exercise his functions,
"independently of any other person".
That is starkly underlined by Section 22(5), to which the noble Baroness briefly drew our attention. It states, almost in the same terms as Section 42(1):
"The functions of the Attorney General for Northern Ireland shall be exercised by him independently of any other person".
To the extent that he makes any remarks about prosecutions—he is allowed only to make observations about the prosecutorial system generally, not about particular prosecutions—he is not in any way obliged to take the view of the DPP. This underpins the degree of the DPP's isolation.
Moreover, Section 42(3) states:
"The Attorney General for Northern Ireland and the Director may (from time to time) consult each other on any matter for which the Attorney General for Northern Ireland is accountable to the Assembly".
The Attorney-General for Northern Ireland is not accountable to the Assembly for particular prosecutorial decisions taken by the DPP. So the DPP is forbidden by Section 42(3) from even consulting the Attorney-General if he has some concerns about a decision he is making.
Some concern was expressed—it was cast under the grand principle of "separation of powers", which I remember being referred to frequently by the Government in the course of the Constitutional Reform Bill—about the selection of the Attorney-General under our amendments as being made by the Lord Chief Justice. Actually, that is not in practice so. We are suggesting that the appointment of the Attorney-General should mirror the appointment system for High Court judges under Section 5 of the 2002 Act, as amended by this Bill. The selection of the Attorney-General would be as follows: the name, after interviews, would be put forward by the Northern Ireland Judicial Appointments Commission. The Lord Chief Justice would either accept it automatically or refer it back. But if the same name is put forward again by the JAC, the Lord Chief Justice has to accept it—he has no alternative. It is exactly the same as the new system for High Court judges introduced by the Constitutional Reform Act. So although the Lord Chief Justice appears to have powers in relation to the selection of judges, in practice the real choice is made by the Judicial Appointments Commission. With respect to the noble Baroness, it is not fair to apply the analogy of the separation of powers to this process.
However, I agree with the noble Baroness on perhaps the most important thing that she said: these are testing times. It may be that we will have an opportunity in future to influence the devolution process on this matter. After all, although we are talking about a devolved Administration, this is an alteration to the United Kingdom constitution and we have a duty to consider it in that context. However, for the reasons that I gave when I moved the amendment, this would not be an appropriate time to vote on it. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Clause 3 agreed.
Clauses 4 and 5 agreed.
Schedule 1: Northern Ireland department with policing and justice functions
Moved by Lord Maginnis of Drumglass
1A: Schedule 1, page 5, leave out lines 7 and 8 and insert—
"(i) made by the First and Deputy First Minister acting jointly, and"