Justice (Northern Ireland) Bill – in a Public Bill Committee at 9:30 am on 14 February 2002.
'The Northern Ireland Act 1998 (c.47) shall be amended as follows-
(1) In section 75(3) after paragraph (c) insert-
''(ca) Northern Ireland Prison Service, Office of the Director of Public Prosecutions, Office of the Lord Chief Justice, Office of the Lord Chancellor, Office of the Crown Solicitors, Office of the Criminal Justice Inspectorate, Northern Ireland Law Commission.''.
(2) In section 76(7) after paragraph (f) insert-
''(fa) the Northern Ireland Prison Service, Office of the Director of Public Prosecutions, Office of the Lord Chief Justice, Office of the Lord Chancellor, Office of the Crown Solicitors, Office of the Criminal Justice Inspectorate, Northern Ireland Law Commission.''.'.-[Mr. Mallon.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
The clause is straightforward. It seeks to amend the Bill to bring the agencies of the criminal justice system within the remit of equality legislation by including the agencies in section 75 of the Northern Ireland Act 1998. Given their important functions, it is entirely appropriate that those agencies should be bound by that statutory duty.
One of the issues that has most undermined public confidence in the justice system is the perception that those in positions of authority do not reflect the community that they serve. Indeed, it seems that they believe that they are outside the remit of the requirement for equality. The fact that a justice review was included in the Good Friday agreement reflected that view. Moreover, I believe that the full implementation of the justice review recommendations will lead to the creation of a justice system that can be identified with and owned by all. In particular, holding the justice system to the same standards of equality proofing that bind government is logical. It will play an important part in the process of confidence building.
I am certain that it will be argued that the exclusion of those bodies is justified on the basis that they perform quasi-judicial functions. However, hon. Members will recognise that it is the policies and procedures of the agencies that would be equality proofed, not individual judgments. As policies and procedures apply, as far as possible, across the board to all agencies in the north of Ireland, and to every Government Department, I believe they should apply
also to the bodies that I have specified in the new clause.
It seems anomalous that the agencies set up by the Government should not be subject to the same equality provisions as the Government Departments that will implement the Bill. It is illogical that those Departments that are responsible for the fundamental decisions that will be required to be made under the remit of section 75 of the Northern Ireland Act should not be subject to the same remit.
My hon. Friend anticipates some of the arguments that I may deploy, but I reassure him that I shall not use the word ''quasi-judicial'', other than in this intervention. Will he consider the requirement for the Director of Public Prosecutions to make decisions on individual cases on merit? Is he concerned-or has he considered-that the requirement on the DPP to apply the considerations in the new clause in individual cases might have an impact on his impartiality?
I spoke privately to the Minister about that before we came to the Committee, because it was one of the issues that worried me. I am still not clear about it, and I would welcome advice.
Section 75 applies to policies and procedures alone, and I cannot see how the DPP or his office could make a convincing case that their policies and procedures should not be equality-proofed. I was at pains to say that the provision would not apply to individual cases brought by the DPP. However, if what we do and what we have already done in many instances in the north of Ireland is to be consistent, the policies and procedures of the DPP's office and of the other offices in the new clause must comply with the equality duty in section 75.
I asked the Minister privately whether there were technical or arcane legal reasons why section 75 should not apply, and I should like to hear about any such reasons. It would contribute much to the public's perception of the agencies if they came within the remit of section 75.
My hon. Friend is correct that we had a private conversation, and I endeavoured to give him a quick response to his legitimate question about whether there was a legal bar-I interpreted that to mean a legislative bar-to his proposals. I must engage him on the issue, however, because the DPP's essential function is prosecutorial. Whether or not one can restrict the application of section 75 in the way that my hon. Friend proposes is a moot point. Regardless of whether one could do so, I am concerned that such a requirement on the DPP would spill over into his decision-making function in individual cases. I do not ask my hon. Friend to solve that dilemma, but to discuss and consider it.
I take the Minister's point, but I am not competent to give examples of the situation that he describes-I simply cannot envisage any. Nor can I envisage the DPP and his office working properly if their policies are not in accord with the equality duty in section 75. I would be greatly disturbed if I thought that the policies or the procedures of the DPP's office
did not comply with that duty. I fail to see the distinction between the operation of the policies and the operation of the procedures, or how those could stray into and affect individual cases in relation to the equality duty. People with more experience of dealing with legal matters might be able to advise us as to how that might happen. I do not see how policies would not be amenable to the equality duty or would affect a case in a detrimental way. The same applies to procedures. I cannot understand why the procedures of the DPP's office and the other agencies would be such that they would not be required to be in accord with the equality duty.
The Minister asked for an answer, but I cannot give him one. I cannot envisage circumstances in which anyone would suggest that the agencies involved in criminal justice should not be required to be compatible with the greatest element of justice in our system, which is the duty on equality in section 75 of the Northern Ireland Act 1998.
As you know, Mr. Conway, I am absolutely delighted to have followed in your footsteps to reach the Committee safely this morning.
I have two points. It may help the hon. Gentleman to know that, under the Northern Ireland Act 1998 (Designation of Public Authorities) Order 2000, the Northern Ireland Court Service is designated under section 75 of the 1998 Act. However, if I were to follow the logic of his argument, would it not be correct to say that the office of the police ombudsman of Northern Ireland should also be included in the equality provisions in section 75?
I believe that all parts of the administration should be subject to section 75, and have argued for that forcefully for the past three years. It is remarkable that aspects of the administration that one would have thought would be no problem, such as universities, have adamantly stayed outside the section 75 duty. We may have persuaded the universities-that is a gentle way to put it-that they were wrong.
I see no reason why the procedures and polices of the ombudsman's office are outside the duty, and no reason why any organisation, especially those that deal with justice, should not be under the remit of that duty.
I will give way, although I suspect that a subtle trap is about to be sprung.
I am not sure whether I am known for my subtlety.
Our interesting discussion is a result of the intervention made by the hon. Member for North Down (Lady Hermon), and I am not intervening because I disagree with anything that has been said by her or my hon. Friend. I merely want to ensure that he understands that section 75 of the 1998 Act cannot be restricted to policies and procedures. It applies to the functions of a body. I mention that as a matter for debate, not as a block to what he sets out to achieve. I
just want to extend the debate to include some of the relevant offices, with an understanding of their functions, which sometimes affect individuals.
This is the heart of the matter that needs to be resolved. I understand what the Minister says, but surely the terms of the required proofing would not apply to specific cases; what must comply are, first, the policies of an organisation and, secondly, the procedures. Stemming from that, those policies would be applied to individual cases, as would the procedure. As to the principles in section 75, how can it be wrong for the principles of equality established in relation to policies and procedures to be applied practically in individual cases?
It is not as if the equality duty would be impartial of itself-quite the opposite. Policies begin to mean something only when they are applied. The highest standard of application is surely the best. The same applies to procedures. They may be efficient and may look good on paper, but they, too, will surely work more beneficially if the highest standard is applied to them. The highest standard of equality is the one specified in section 75.
I remain convinced that applying that standard would be right and that, regardless of any arcane twist of illogicality, it should be in the Bill. I cannot foresee circumstances, in relation to how the Director of Public Prosecutions or ombudsman perform their duties, in which the requirement for equality would be detrimental to the actions of their departments.
What I find interesting about the new clause is the principle put forward by the hon. Member for Newry and Armagh (Mr. Mallon). The Minister's points may be technically correct. I do not want to criticise him, but he sounded a trifle pedantic. If the principle is accepted, there is a case for the change that the hon. Member for Newry and Armagh proposes.
Without wanting to reinforce my growing reputation as a pedant, I want the Committee to consider whether the application of the section to the DPP might impinge on the duty of impartiality in an individual case. That might seem pedantic to us, but if the influence of such a provision on the DPP's duty to examine the evidence on its merits and make an independent, impartial decision affects the decision whether to prosecute someone, the matter will be far from pedantic. It will be highly significant in Northern Irish society.
The Minister will need to show how building in the need to have due regard to the promotion of equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status and sexual orientation and between men and women generally can compromise an organisation's ability to do its job. I suggest that the opposite applies. It would give an assurance to people in those groups-all of us are in one or more of them-that they would not lose out on account of prejudicial behaviour or attitudes displayed by any of the groups or individuals listed in the new clause. I thought that the Minister sounded pedantic
because I do not understand why the Government should resist including something that is already there by precedent as a result of the Northern Ireland Act 1998 for comparable groups and organisations. Why is the Minister not willing to extend it by using what could almost be regarded as a housekeeping amendment to bring all the other organisations into line?
If this new clause or something like it were implemented, it would be unlawful for a public authority to discriminate or to aid or incite another person to discriminate against a person or class of persons on the grounds of, for example, religious belief or political opinion. New clause 5 seems to be an insurance policy against discrimination rather than a barrier to equal treatment. Can the Minister explain why he thinks that it is a barrier, as so far he has not done so?
The new clause would amend the Northern Ireland Act 1998, designating the listed organisations for the purposes of sections 75 and 76. Section 75 creates a duty on public authorities to have due regard to the promotion of equality of opportunity between each of the nine categories of person. I thank the hon. Member for Montgomeryshire (Lembit Öpik) for listing them. Section 76 makes it unlawful for a public authority to discriminate or to aid or incite another person to discriminate on the grounds of religious belief or political opinion.
My hon. Friend the Member for Newry and Armagh said, in essence, that it is important in the context of what the Bill seeks to achieve to give a clear message on the issue. I welcome his general welcome for the Bill and the implementation of the review provisions. He is supported by the hon. Member for Montgomeryshire. The Government, who were responsible for introducing the provision in the 1998 Act in the first place, share that view. However, care needs to be taken in imposing statutory duties. I sought, in relation to one of the categories, to engage the Committee in debate as to whether that careful attention in relation to the DPP might reveal issues that were at least worthy of consideration. When I intervened, I did not say that that would necessarily be a block to the application of the provisions to the DPP. However, I was seeking to engage people in debate about whether they had thought the process through, particularly in relation to my hon. Friend's concerns about the section 75 obligations. I pointed out that they could not be restricted in the way in which he thought because of policies and procedures. If it were simply a matter of policies and procedures, with no concern about possible consequences, it might be more straightforward.
Some of my hon. Friend's concerns, which are reflected in the new clause, have been dealt with already. For example, the Northern Ireland Prison Service is already bound by sections 75 and 76 of the 1998 Act by virtue of being an agency of the Northern Ireland Office. It does not require separate designation. The Lord Chancellor and his Department are already bound by section 76, by virtue of section 76(7)(a) and (b). The Lord Chancellor
does not need to be covered by section 75 because, as the hon. Member for North Down said in an intervention, the Northern Ireland Court Service is covered instead.
I understand that there is some confusion, which is reflected in the new clause, about who and what is covered under the important sections of the 1998 Act. That shows the importance of addressing the difficulties of getting the designation right. The other bodies listed would have to be considered individually to assess the extent to which they can affect equality of opportunity and community relations, consistent with their primary duties. That is relevant to the office of the Director of Public Prosecutions, which primarily carries out prosecutorial functions. I have no doubt that other administrative functions are appended, but most of the DPP's policies relate to prosecutorial functions and are designed to deal with individual cases. Those cases are decided by the DPP on merit, and there could be difficulties-some would say that there will obviously be difficulties-in reconciling the principle of impartiality and the duty to pay regard to equality considerations in the DPP's decision-making processes.
I repeat, because it is an important point, that section 75 applies to bodies designated in carrying out the functions. Although policies and procedures are covered, the provision is wider than that. I also repeat that the DPP's essential function is a prosecutorial one. Insufficient regard has been paid to that point, although I have tried to widen the debate.
What value can be added by designating the Lord Chief Justice's office, which comprises only three people? That is another legitimate question. Nor have I become any clearer, between the time the new clause was tabled and this debate, about the scope for the Crown Solicitors' work to affect equality of opportunity.
In respect of the criminal justice inspectorate, we should also reconsider what value would be added by designation. It might be more straightforward in the case of the Northern Ireland Law Commission, but some consideration must be given to including that body in relation to section 75. Detailed consideration has been undertaken of all the bodies that are part of the list to which the sections already apply.
For the reasons that I have given, we should take full account of the implications of bringing within the scope of the statutory duties under the 1998 Act the agencies listed in the new clause. If, having considered every case, we believe that there is scope for them to affect the quality of community relations, we shall designate them under section 75(3)(a) and (b) of the 1998 Act. If appropriate, we shall table an amendment to section 76 in due course. We are not ruling out the prospect of amendments in the context of the Bill's progress. On the understanding, therefore, that we will look into that in more detail, I ask my hon. Friend to withdraw his new clause.
The Minister is right that there is some confusion on my part. The core of the problem seems to be his assertion that it would be possible, for what
he described as consequences of policy and procedure, for adherence to the equality duty to impinge on individual cases. That seems to suggest that he believes that a case that must be decided on merit-I am at one with him on that; the DPP must decide on merit-could somehow be weakened by adhering to the equality duty. I think that that is the Minister's suggestion, but I am still keen to find out how the merit of a case that has been decided by the DPP could be weakened if the equality duty were applied.
I shall try to be more specific, because we should try to tease out the issue.
The designation under section 75 of the 1998 Act would require the DPP, for example, to have regard to the desirability of promoting good relations between persons of different religions. Some thought must be given to how that fits into the process of deciding whether there is sufficient evidence to prosecute someone and whether it is in the public interest to do so.
What is the balance between the other duties of the DPP and this new statutory duty? I am not suggesting to my hon. Friend that it is impossible to reconcile the two, but it is an important issue.
I thank the Minister for those remarks. Of course, in those circumstances, the DPP must surely decide on merit. There is no doubt about that. However, the need to make a decision on merit does not prevent him from applying the other requirements under section 75. It is stretching the argument too far to suggest a hypothetical situation in which the DPP is wrestling to decide a case on its merits and at the same time wondering what the effect might be on community relations. I cannot imagine any DPP who is worth his salt looking at a case in that way. I am grateful to the Minister for his intervention, but I am still not convinced.
I want to make two other points. The first concerns perception. We have a new Bill that introduces a new approach to justice in a new political dispensation in a new millennium and century-
I do not want to prolong the discussion, but I want to put one argument to the hon. Member for Newry and Armagh, because the Minister made a fair point. Section 75 of the 1998 Act states:
''A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity . . . between men and women''.
If the DPP has more men to prosecute than women, how can he possibly comply with section 75? It is incompatible with his duty to prosecute.
I have been impressed by the legal arguments put during the past three weeks by the hon. Lady and the Minister, who are professionals in that field. However, this is one argument by which I am not terribly impressed because, at the end of it all, the hypothesis is facile. It is facile to argue that, under section 75, the DPP would somehow or other find himself required to ensure that an equal number of men and women were prosecuted, or that he would
have to prosecute a certain percentage of people from ethnic groups as opposed to people who have always lived in Northern Ireland.
We could take the hypothesis to an extreme and ask how many Catholics were prosecuted last year, as opposed to Protestants. What is the percentage? How many nationalists were prosecuted during the past two years as opposed to Unionists? The argument is moot, but it is facile because the duty in section 75 would inform the DPP's decisions, but not in a way that would demerit them.
Does the hon. Gentleman agree that this is a matter not of quotas but of preventing individuals being mistreated on the basis of prejudice? That is at the core of the new clause. To interpret it any more pedantically is to miss the point. Exactly the same criticisms could be made of sections 75 and 76. It is not viable to argue that such measures are okay for the areas already dealt with by those sections but not for those in the new clause.
I agree with the hon. Gentleman. The last point that I want to make on the matter is that we can take all types of hypotheses to absurd extremes. However, I have no desire to do that. The way in which the legislation is perceived in Northern Ireland is important. The omission of the agencies dealing with justice from the section 75 requirement on equality will be noticed. The moot points that have been made will not be considered elsewhere. The question will be asked, ''If this is a new system of justice, with a whole new approach, why, of all the agencies in Northern Ireland, including the Government, who will be subject to section 75, do those that deal with justice escape the net?'' Many will come to the conclusion that the process of justice escapes all the requirements, and they will ask why.
It may be helpful to restate the implications of the Human Rights Act 1998, which are not well understood in Northern Ireland. That Act guarantees a fair trial, but through article 14 of the European convention it also guarantees a fair trial without discrimination on the grounds of sex, religion, creed or any other status. Article 14 is a wonderfully useful aspect of the Act and is combined with the article that guarantees a fair trial. Those provisions are already in Northern Ireland legislation, and the hon. Member for Newry and Armagh may draw some consolation from the fact that the statute book will provide for a fair trial without discrimination, even if we do not include his provision in the Bill.
That is a valid point, but the perception will be important. That point is not confined to Northern Ireland. We should always have it in mind that something remarkable is happening and will continue to happen: the Good Friday agreement is rightly becoming a template for conflict resolution in other parts of the world. It has been used in various places, and everything that derives from it-the work on policing, the criminal justice review, the arrangements and the institutions-will be part of that template. I do not want the Bill to be defective because of the omission that I have identified or to be perceived as defective in Northern
Ireland or-this will become much more important-more widely.
However, I respect the Minister and his judgment. I hope that I am not being pedantic or straining to read this into his comments, but he tells me that he will have another look at the issue. As he feels that it is worth another look, I shall not press the motion to a vote. It will have to be discussed again, and more convincing arguments for its inclusion will have to made and will be made. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.