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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.
''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.]