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Clause 5 - Duty of Director of

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 4:15 pm on 25th March 2004.

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Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke 4:15 pm, 25th March 2004

I beg to move amendment No. 25, in

clause 5, page 3, line 30, after 'shall', insert 'within his discretion'.

This is the second of three amendments that I tabled on behalf of the DUP. Again, it is a quest for the reason for a change, although in this instance it returns, without apology, to the 2002 Act. As the explanatory notes to the Bill make clear, section 34 of that Act amends section 55 of the Police (Northern Ireland) Act 1998, and places on the Director of Public Prosecutions a duty to refer matters to the police ombudsman. The Committee will be aware that recommendation 21 of the criminal justice review stated that the DPP should have a duty to refer to the ombudsman. The clause therefore makes the necessary amendments to ensure that the recommendation is fully implemented in line with the undertakings that the Government made in the Hillsborough joint declaration, which the explanatory notes obligingly confirm and emphasise.

It is highly questionable whether an attempt to achieve a political deal is the right basis for sound legislation. The primary purpose of the clause is therefore self-evident. It is also rather worrying, as it

re-enacts the provision in section 34 of the 2002 Act, which was designed to operate after devolved government was up and running in the Province. We have already debated that theme in another context today, but it is disturbing to see that provisions that were intended, under the review, to be enforced only after devolved government was in place, are now to be enforced before. It stands to reason that the DPP should be able to exercise his or her judgment on the referral of matters to the police ombudsman. The previous provision for discretion was sensible and practical and, with this amendment, I seek its restoration.

The DPP exercises discretion in comparable matters, such as whether to prosecute. What is the intrinsic difference in this matter? Why should not the DPP exercise discretion? It is hard to think of a legitimate reason. Assessing the strength of a case and the likelihood of obtaining a conviction is the essence of the DPP's job. Why is that freedom of action being denied? The independent DPP should have discretion to decide whether he has sufficient evidence to bring a prosecution. If he has, the prosecution should go ahead, thus avoiding the further delays that are inevitably created by imposing on him a duty to report the incident to the ombudsman. The Government have yet to explain convincingly why the ombudsman should have a role in the first place. The matter should be determined by the DPP and should result in criminal prosecution, internal disciplinary processes, or no action at all.

On Second Reading in another place, Viscount Brookeborough saw clause 5, which was then clause 6, as another instance of the Government

''eternally tweaking the law ahead of the planned timescale in order to appease''—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1105.]

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

The hon. Gentleman asked why the ombudsman should have a role in the first place, but he will recognise that the amended Police (Northern Ireland) Act 1998 provides that the DPP, along with the Policing Board, the Chief Constable and the Secretary of State may refer ''any matter'' to the police ombudsman. The ombudsman already has a role, and I am surprised that he is concerned about that.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I am aware that the 1998 Act was amended by the 2002 Act. I am concerned that the ombudsman has a role in what I believe to be a matter for the DPP alone. It is unnecessary to bring in the additional dimension of the ombudsman's activities, because the matter could be dealt with by the DPP, whose primary job is to assess whether there is any evidence, and whether the case is strong enough to proceed.

The amendment relates to the duty that was imposed in the 2002 Act, which is repeated in the Bill. On that basis, I repeat the argument that the DPP should have the supreme role. To reduce it to simplicity, he should have the discretionary powers to refer to the ombudsman. On that, I rest the case.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I do not necessarily agree with everything that the hon. Gentleman said, but he is

largely right that this is something in respect of which the DPP ought to have discretion. I do not particularly like the form of words in the amendment—instead of ''shall'' it should state ''may'', which would have achieved the same end. However, inasmuch as the DPP is a professional exerciser of discretion, there may be circumstances in which a matter is de minimis—for example, when it is not in anyone's interests for it to be referred in the way envisaged. He ought to have the power not to refer it. That is not in the measure as things stand. Accordingly, there is merit in the hon. Gentleman's argument.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Why does the hon. Gentleman believe that the clause as drafted does not provide what he wants?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The Bill states:

''The Director shall refer to the Ombudsman any matter which''.

To my mind, that does not leave him any scope not to refer a matter. Can the Minister see any scope for discretion?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Paragraph (a) uses the words ''appears to the Director''. How does the hon. Gentleman interpret that?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

If it appears to the director that the police officer has committed, or may have committed, a criminal offence or has done something that will encompass disciplinary proceedings, he is obliged to refer the matter to the ombudsman. The point about having discretion is that circumstances may appear to the DPP to indicate that a police officer has committed an offence or done something that will lead to disciplinary proceedings, but it still may not be something that he thinks appropriate to refer to the ombudsman. Surely in such circumstances, which would probably be rare, the DPP ought to have the power not to refer a matter.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I rise to support the amendment and to agree with what has been said about it. The Minister's intervention was interesting because he queried whether the phrase

''which appears to the Director''

introduced any element of discretion. I am not sure that it does, because to whom else would it appear? This is a duty being placed on the director, so it can operate only in respect of something that ''appears'' to him.

The clause continues that the director shall refer any matter which appears to him ''to indicate'' that an officer ''may have'' committed a criminal offence. That sets the bar very low indeed. A low standard is being set and there will be a huge number of referrals. The director is not required to be satisfied that an offence has been committed, or to have reasonable grounds for believing that an offence has been committed. It is sufficient if it appears to him that it may have been committed. To set the standard so low without giving the director discretion over whether to refer is an alarming development.

It is interesting that the Minister referred to the phrase

''which appears to the Director'',

which drew a lot of comment on Second Reading. Some hon. Members were concerned that it contained a discretion, and they did not want any discretion at all. I sometimes think that we are creating a crazy legal system in Northern Ireland, and one of the craziest parts, in all senses of that word, is the operations, role and remit of the police ombudsman's office. The provisions will give a huge power to the police ombudsman's office. The director will be placed under a duty to refer every case where there is any indication that an offence may have been committed. The standard is remarkably low. Persons will be subjected, as we know from experience, to oppressive proceedings.

Anyone who is concerned about maintaining an effective and efficient police service would recoil in horror at the provision. It would be best to give the director a discretion. That proposal could be reinforced with some later amendments, although I shall not discuss those now. I merely argue now for a discretion to be given to the director. Otherwise, a huge number of cases will be referred in which there are no real grounds for investigation. That is not a wise move.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall in due course speak at greater length on clause stand part, but I completely sympathise with what the hon. Member for Basingstoke is trying to achieve. I understand the clause—that is not the problem—but I am bound to say that it troubles me. It is not the job of the Director of Public Prosecutions to cross-reference to anybody else in respect of the decisions that he must make on whether to initiate public prosecutions. The matter is as simple as that.

Ombudsmen are there for another, important purpose. I do not disagree that the Northern Ireland police ombudsman has an important role in reassuring the public that the police always act properly. However, I do not understand the reason for the clause. I suspect that this specific clause is needed because the Government have realised that without it the DPP might well say that passing to third parties material relating to the process that he must undertake of deciding whether to prosecute is none of his business. That is exactly what the rule should be. It is not the business of the DPP to tip off Government or quasi-autonomous ombudsmen about material that comes before him. It is important both that that should be the case and that he should not be contaminated with administrative roles that are separate from his role in bringing prosecutions or deciding not to. For that reason alone, I would favour the amendment. In fact, I go much further and think that the entire clause should be deleted.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

As the hon. Member for Basingstoke rightly said, the amendment would give the Director of Public Prosecutions a discretion over whether he should refer a case of suspected police malpractice to the police ombudsman. I should like to make it clear at the outset that the current terms of the clause are no reflection whatever on the professionalism of the Director of Public Prosecutions. The Government are obviously quite happy to endorse fully the

independence and impartiality of the director, in whom we have every confidence.

The Government believe that the clause accurately meets the recommendation of the criminal justice review, which was that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police be fully investigated. I am sure that no hon. Member would dispute the importance of such a provision. It is worth reminding ourselves of the context in which the review made its recommendation. Recommendations were made that the prosecutor and the police should operate effectively together, with the prosecutor being involved in a case early. The clause was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct.

Although the discretion will lie with the ombudsman, the clause allows for the director to exercise some judgment—he is not simply an automaton or postbox. That would not be the effect of the amendment. It is also worth pointing out that the provision does not in any way impinge on the director's role in prosecutions, for which the decision about whether to prosecute lies with him. That is different from matters relevant to the ombudsman, who will deal with suspicion of police wrongdoing.

Accordingly, I ask the hon. Gentleman to withdraw the amendment.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke 4:45 pm, 25th March 2004

I acknowledge that the wording of amendment No. 25 may not be the best possible to achieve the desired objective. On that basis alone, I shall ask the Committee's leave to withdraw it. However, I believe that the amendment, imperfectly

though it may have been worded, has drawn attention to fundamental issues to which we are entitled to return on Report.

The Minister seemed to be in two minds, at one point beginning to argue that the discretion already existed in new subsection (4A) before moving to a different ground. I do not believe that the ombudsman should have a role in the offences covered in clause 5, as they should be the responsibility of the Director of Public Prosecutions, and if the ombudsman is to have a role, it should be at the director's discretion.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

Towards the end of the Minister's comments, he made a reference to the criminal justice review, and I have been able to turn up what appears to be the relevant passage:

''We recommend that Article 6(3) of the 1972 Order be supplemented with a provision enabling the prosecutor to refer a case to the Police Ombudsman for investigation''.

The word ''enabling'' shows that the provision is a discretion, not a duty. Once again, the Minister has referred to the review but is not acting in accordance with it.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

The right hon. Gentleman makes the point emphatically: the situation is not as the Minister describes.

I rest my case. Although I am unconvinced by the Minister's response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Vernon Coaker.]

Adjourned accordingly at thirteen minutes to Five o'clock till Thursday 1 April at ten minutes past Nine o'clock.