§ 11.13 p.m
§ The Attorney-General (Sir Peter Rawlinson)
I beg to move,That the Prosecution of Offences (Northern Ireland) Order, 1972, a copy of which was laid before this House on 4th April, be approved.This is the first of the Orders in Council relating to Northern Ireland to come before the House under the Northern Ireland (Temporary Provisions) Act following the prorogation of the Parliament of Northern Ireland. I indicated during the passage of that Measure that the Government intended that the first of the Orders in Council would be a provision to create the office and department of the Director of Public Prosecutions for Northern Ireland. It fell into the category of "urgency" for which special provision is made in paragraph 4(1) of the Schedule to that Act and the order was made on 30th March.
There was general and widespread agreement in Northern Ireland that the office of Director of Public Prosecutions, Northern Ireland, should be established—on the grounds, first, of the need for impartiality and, second, of efficiency so as to take from the police much of the burden which they have hitherto been carrying, but it is appreciated that it will take a little time to achieve this end. The Bill, which was before the Northern Irish Parliament, was debated in that Parliament and was nearing the completion of its progress at the end of March. It is an eminently desirable proposal, and it was necessary to get the right man into office so that he could create the Department.
With the prorogation of the Northern Irish Parliament and the combination of the duties of the Northern Irish Attorney-General with my office, it was urgent to ensure that the agreed system should not be varied. On 30th March I nominated the Director of Public Prosecutions designate to act on my behalf during the week after Easter, and he was appointed by the Secretary of State on 10th April as Director of Public Prosecutions Northern Ireland. Although the Director for Northern Ireland bears the same title as the Director for England and Wales, his duties and responsibilities 1058 are different for, as befits an office covering an area much smaller in jurisdiction than England and Wales, his control over and supervision of prosecutions will be closer and more comprehensive than the Director of Public Prosecutions for England and Wales. But he will enjoy a degree of statutory independence in the exercise of his functions in excess of that enjoyed by the Director here.
It appears to have been believed in another place when the order was debated there that the Director for Northern Ireland has no more and no less independence than the Director for England and Wales, but this is not so. The query was raised there, why has there not been established a Procurator Fiscal system as in Scotland? Apart from the problem and the inappropriateness of grafting a Scottish criminal law officer on to our system of criminal law, the Scottish system of prosecution had been recommended against by a working party set up to examine and suggest the best system for prosecutions in Northern Ireland. As one would expect, there has emerged a proposal for a system which is neither wholly English nor Welsh nor Scots, but Irish.
§ Mr. James Kilfedder (Down, North)
Why is it necessary to create a special system for Northern Ireland? Why is the English system not good enough for the people in Northern Ireland? I appreciate that recommendations have been made by the Hunt Committee which recommended a Scottish system, but why cannot we have the English system and help to prepare the way for total integration?
§ The Attorney-General
Perhaps my hon. Friend will permit me to explain that. The proposals which this Order carries into effect are the proposals which were made in Northern Ireland by a Northern Ireland working party and which met with the approval of the Northern Irish Parliament. After the disturbances of 1969, the Government of Northern Ireland commissioned the Hunt Committee, which was an advisory committee, to report on the police. It also included a recommendation for the adoption of the Scots system of prosecution in Ireland, but it went on to sayFurther study than we have been able to give would be needed before the procedure could be precisely settled.1059 After that report, the Government of Northern Ireland set up a further study.
There was a working party under Mr. John MacDermott, Q.C. who decided that it was impracticable to graft the Scottish system on to the Northern Irish system, but it recommended that the principle of the Scottish system of prosecutions by independent public prosecutors should be adopted. Those recommendations were accepted by the Government of Northern Ireland and incorporated in their Bill. In turn, these have been generally incorporated in this Order.
The answer to my hon. Friend is that the proposals in this Order for the Director of Public Prosecutions Northern Ireland enact every one of the recommendations which were made by the Justice Committee Report on "Prosecution Process in England and Wales." That Committee of Justice recommended that there should be certain changes in the English system. Each of its recommendations was incorporated in the Northern Ireland Bill, and now in the Order before the House.
The principal difference between that Bill and the Order comes in Article 3, which provides that, during the currency of the Temporary Provisions Act, the Director in Northern Ireland shall discharge his functions under my superintendence and shall be subject to my directions in all matters. This arises from my new role as Attorney-General for Northern Ireland and my answerability to this House in Westminster. During this period, since I have Parliamentary answerability in Westminster, I shall have superintendence, as I have in England and Wales, but the day-to-day conduct will be that of the Director.
The House will recall that, by the Temporary Provisions Act, when I became Attorney-General of Northern Ireland, I was given the right of audience, but I asked also to be called to the Bar of Northern Ireland. The Northern Ireland Bar, as does the Bar elsewhere in these islands, enjoys a tradition of independence and of the highest professional standards, and I wish to say how very honoured I am now to belong to its number.
The Director in Northern Ireland will enjoy a high degree of statutory indepen- 1060 dence. He will initiate, undertake and carry on when he thinks proper proceedings on behalf of the Crown for indictable offences and for such summary offences as he considers he should. Accordingly, in general, all prosecutions, save for very minor summary matters such as offences against park byelaws, riding a bicycle without lights and offences of that kind, will be conducted by the Director of Public Prosecutions and those nominated by him.
Under Article 5, he may cause to be considered any fact or information supplied to him by anyone, with a view to prosecution. He may receive or call for documents, he may cause further investigations to be made, and he may cause inquiries to be made. In other words, if he has reason to believe that an offence has been, or may have been, committed by anyone, he may call for a report on the facts so as to decide whether to institute a prosecution. Further, he may —in fact, he proposes to do so—establish area offices from which prosecutions will be conducted.
The old system of part-time Crown solicitors prosecuting on behalf of the police will eventually be abolished. There will be established in Northern Ireland a centralised system of prosecution, different from that in England and Wales in that it establishes the principle of a national prosecution department but with machinery appropriate for the administration of the criminal law within Northern Ireland.
Under Article 4, the Director is appointed by the Governor, though by the operation of the Temporary Provisions Act this has been done by the Secretary of State. He holds office during good behaviour, which is the traditional phraseology for the appointment of superior judges.
§ Rev. Ian Paisley (Antrim, North)
One of the main recommendations of the working party on public prosecutions, led by Mr. MacDermott, was that the appointment should be made by an independent body such as the Civil Service Commission. That important recommendation has been completely departed from in the legislation placed before the Stormont Parliament and now in this Order.
§ The Attorney-General
That is correct. The proposal incorporated in the order, 1061 taken, as the hon. Gentleman says, from the Northern Ireland Bill, was that he should be appointed by the Governor. Someone has to appoint this independent officer. The Governor will have the power to appoint, and the power to remove will rest also with the Governor, upon the advice of the Privy Council for Northern Ireland. As I was saying, the Director holds his office during good behaviour, the traditional phraseology for the appointment of superior judges.
Under the provisions of the Bill his removal will be by the Secretary of State and thereafter, when the Act expires, it will be on the advice of the Privy Council of Northern Ireland to the Governor. Since the Privy Council is a matter for the Prerogative it is not proper or possible to lay down by order the composition of the Privy Council that would give such advice to the Governor. When the Bill was before the Northern Irish Parliament the Attorney-General there, Mr. Kelly, gave an assurance on Third Reading, which he said would be recorded, that if and when his Government's advice was ever sought by the Governor, it would advise summoning a Council in which judges and ex-judges would be in the majority. In other words, if the removal ever had to be considered it would be by the majority advice of judges and ex-judges. I draw the House's attention to that assurance.
§ Mr. John Biggs-Davison (Chigwell)
Can my hon. and learned Friend inform the House how the English Director of Public Prosecutions may be removed from office?
The Attorney General
He is appointed by the Secretary of State and he can be dismissed by the Secretary of State. I am answerable for him in this House. To that extent the Director in Northern Ireland is in a very different position.
Under Article 4(3) the Director's staff will be recruited for the department under his control and will be recruited under the supervision of the Northern Ireland Civil Service Commission. It may be that some of the Crown Solicitors, those part-time officers who now conduct prosecutions on behalf of the police, will apply for posts in the new department. They will undergo the normal recruitment procedure if they wish to be considered 1062 for such appointment. The staff will be subject to the directions and control of the Director. The Director proposes to have his office and the Belfast area office in the Law Courts at Belfast and to have four area offices of his department to cover the rest of the province.
I referred earlier to Article 5 which gives him a more extensive role than the Director in England. Basically the difference is that the Director in Northern Ireland will have greater control over the police, control which is not enjoyed by his English counterpart. The MacDermott Working Party Report stated that inevitably, and so as to avoid delays, minor summary cases will still be prosecuted by the police. As the report said, if this were not so the system would not work in practice. Paper work would be vastly increased and inevitably delays would arise which would not be in the public interest. Until the Director in Northern Ireland has his department fully operational it is inevitable that the delay will continue, as will the Crown Solicitors, but the Crown Solicitors are abolished on the day to be appointed by the Ministry of Home Affairs when the Director will take over.
Under Article 6 there is a duty on the police to inform, and a power of the Director to call for, information and to require investigation. Under Article 7, unless I otherwise direct, consents will be those of the Director of Public Prosecutions but I have kept specific reservations on the Official Secrets Acts consents and the Special Powers Act prosecutions. The object of the proposals is to ensure that prosecutions are in the hands of an independent and impartial authority, which is the object we all seek to achieve. Since 17th April in my role as Attorney-General for Northern Ireland I have paid two visits to Northern Ireland, on 17th-19th April and on 1st-2nd May, and I shall be visiting Northern Ireland this week, on 10th-11th May. I propose at this time, when the office has only just been established, to pay frequent visits every week or every other week.
Apart from my visits, the Director of Public Prosecutions has twice visited me here in London, and I have an Assistant Legal Secretary seconded to me in Belfast. I have arranged with the Director 1063 of Public Prosecutions in England and Wales for one of his officers full-time, and a senior officer on occasions, to assist in Northern Ireland.
There is much to do, but already the framework has been established and a machinery set in motion, although, as with any new system, problems and difficulties must be overcome.
It was on 10th April that the Secretary of State appointed to the post of Director of Public Prosecutions for Northern Ireland, Mr. Barry Shaw, Q.C., a distinguished and experienced leader of the Northern Ireland Bar, who won the confidence of all sections of the community when acting as the leading counsel to the Scarman Tribunal. It is very fortunate that he has agreed to serve. He was the Director of Public Prosecutions-designate, and his appointment has been very widely welcomed in Northern Ireland in every quarter. His tasks are formidable—to take over all the current prosecutions, which are now at their various stages, and to create and set working a new department.
As the deputy Director the Secretary of State has appointed Mr. Bernard McCloskey, an experienced solicitor of the highest reputation, who likewise commands very wide confidence. He served with distinction in the Scarman Tribunal. He was appointed on 25th April and took up his duties on 1st May.
No one will under-estimate the extent of their task. Between 1968 and 1971 indictable crimes known to the police in Northern Ireland increased from 16,000 to 31,000—almost double. There are many cases of great gravity coming before the courts. Before the present Belfast City Commission in the two weeks 24th April—5th May, there were, for instance, 17 pleas of guilty, two involving firearms. There was a disagreement in a firearms case and three acquittals in firearms cases. There were five convictions after trial, four of which concerned explosive substances or firearms offences. In one firearms case there was a sentence of 10 years' imprisonment, and in the second five years' imprisonment. In the two explosive substances cases the first sentence was 10 years' imprisonment and the second was five years' imprisonment.
§ The Attorney-General
The aim of myself, Mr. Shaw and Mr. McCloskey is to ensure that the prosecutions, their initiation and their conduct will be carried out in accordance with the principles which apply to prosecutions in this country, those applied by the Director of Public Prosecutions in this country, and without fear or favour.
This is an important and urgent reform. The principle and detail of it were debated in Northern Ireland before the passage of the Northern Ireland (Temporary Provisions) Act. It is urgent, because all have an interest in bringing to trial suspected offenders, and it is important because the efficiency of the machinery plays a large part in speedy justice, and it will permit more police to concentrate on their true police duties. But above all it is important because it establishes this independent and impartial officer whose appointment and terms of service will be welcomed by everybody including the very many who want to see the criminal law effectively and fairly administered in the interests of all.
§ 11.34 p.m.
§ Sir Elwyn Jones (West Ham, South)
This is not the first time that the House has had to debate at a very late hour and for only a short time an order of cardinal importance. Whereas on some matters we are as profligate as the prodigal son in our misuse of parliamentary time, on others our procedural rules crib, cabin and confine us as we are confined tonight. If he catches your eye, Mr. Deputy Speaker, my hon. Friend the Member for Leeds, South (Mr. Merlyn Rees) will later be inviting consideration of the matters which the House is to deal with in this difficult period when the Northern Ireland (Temporary Provisions) Act imposes very special and important responsibilities on the House in dealing with such matters as this important order.
The order is certainly important, because it is not simply a temporary expedient. It seeks to change the form and the substance of the conduct of prosecutions in criminal cases in Northern Ireland. The Attorney-General has explained that it seeks to achieve its purpose in two ways. The first is by establishing in Northern Ireland the office 1065 of Director of Public Prosecutions and making it independent of both the Government and the police. That seems to me to be the right course. The second is by providing that prosecutions shall be conducted by the Director of Public Prosecutions and his staff and presumably —perhaps the Attorney-General can confirm this—certainly in the interim phase, by lawyers instructed by him instead of by the Royal Ulster Constabulary. In so far as these are the purposes of the order, we on this side of the House give it our strong support because we venture to think that it may well play a part in helping to achieve reconciliation. What concerns us, however, is whether the order achieves those purposes.
As to the independence of the Northern Ireland Director of Public Prosecutions, the right hon. and learned Gentleman has reminded us of the provisions of Article 4(2) of the order which provides, among other things, thatThe Director and the deputy Director shall each hold his office during good behaviour but each may be removed from his office by the Governor upon the advice of the Privy Council for Northern Ireland ".On the face of it, that did not seem very reassuring to some of us at least. Presumably the members of the Privy Council—no doubt many of them are men of admirable quality—are former holders of high political office in Northern Ireland. I am bound to say that in the light of recent political history there, that is not necessarily reassuring.
It was, therefore, reassuring to learn from the Attorney-General that the intention at any rate was and is that if there is any question of the removal from office of the Director of the day in Northern Ireland, the advice that the Governor must seek for this purpose is advice from the members of the judiciary or former members of the judiciary who are Privy Councillors in Northern Ireland.
§ Rev. Ian Paisley
Would not the right hon. and learned Gentleman agree that the undertaking as given in HANSARD by an Attorney-General speaking at the Dispatch Box in Stormont has no legislative power whatever and that this undertaking that we have been told about tonight does not bind any Government to limit the Privy Council to its judicial members?
§ Sir Elwyn Jones
I do not criticise the hon. Gentleman for anticipating what 1 was about to say. With true ecclesiastical foresight he has anticipated my observations, because I was going to invite the Attorney-General to consider whether, if that is indeed the intention. and in view of the great importance of this matter, this should not have been written into the order.
As the House knows, in considering orders like this we have no power to amend the order, but there is power in the Government to give thought to the views of the House on occasions like this and I am disposed to agree with the hon. Member for Antrim, North (Rev. Ian Paisley) that this should be written into the terms of the order in a subsequent version of it.
§ Captain L. P. S. Orr (Down, South)
Surely all this is academic in the light of paragraph 1(6) of the Schedule to the Northern Ireland (Temporary Provisions) Act, which says:No provision requiring the advice of any minister…or of the previous Government of Northern Ireland…in relation to any action of the Governor shall be taken to apply in connection with the discharge of the Governor's functions by the Secretary of State…So it would appear as if the Secretary of State now has power to dismiss the Director.
§ Sir Elwyn Jones
I think that is absolutely right, but happily no kind of prospect of that happening would arise. An admirable member of the Bar in Northern Ireland has been appointed Director and I share the good wishes expressed to him by the Attorney-General for his success. During the interim phase, it is quite right to say that theoretically, on the face of the order, the Secretary of State could dismiss the newly-appointed Director, whose appointment he presumably approved of if he did not make it himself. But this is, as I have said, a permanent Measure. It contemplates permanence and it provides for a future when one hopes that a state of affairs in Northern Ireland will permit a return to normality and the ending of the reign of the Secretary of State. I am sure that no one will be as delighted as the right hon. Gentleman himself if and when that event comes to pass. 1067 There is also the assurance we have had from the Attorney-General. But I do not think that it is enough and perhaps the right hon and learned Gentleman will take on board which I and the hon. and gallant Member for Down, South (Captain Orr) have suggested.
We welcome the proposal to transfer all the prosecutions in criminal cases from the police to the Director and the lawyers on his staff or those he instructs. I think the police will welcome it too. Indeed, I think the police would welcome it here because at present the police have got to be diverted from what ought to be their primary job of detecting and punishing crime to long hours of court advocacy, for which they have had no training and for which they are not equipped—this at a time when there is, of course, a shortage of police officers.
There is a more important aspect, which is highlighted in a few concise words in the report of Lord Hunt's Committee on the police in Northern Ireland. Paragraph 142 says:…the impartiality of the police may be questioned if they are responsible for deciding who shall be prosecuted and thereafter for acting in court as prosecutors. This practice can result also in a mistaken impression of the relationship between the courts and the police.That view was put by the Royal Commission on the Police in 1962 in this way:In general we think it is undesirable that police officers should appear as prosecutors except for minor cases. In particular we deplore the regular employment of the same police officers as advocates for the prosecution. Anything which tends to suggest to the public mind the suspicion of an alliance between the court and the police cannot but be prejudicial.The Hunt Committee recommended that the Scottish system of independent public prosecutors should be adopted. Under that system, the police are responsible only for the collection of information about offences and all subsequent action with regard to the prosecution of the case is undertaken by a solicitor in the public service and within the staff of a Procurator Fiscal. I feel there is a good deal to be said for that system. It is significant that it was recommended by the Justice Committee's report to which the right hon. and learned Gentleman referred, in its conclusion. 1068. that the time has come for the appropriate changes in basic procedures to be made and a system of public prosecution broadly following the lines of the Scottish system introduced.There are differences, as the right hon. and learned Gentleman has said, but substantially the "Justice" Committee did make a recommendation that the Scottish system should be followed in Northern Ireland.
My own feeling, although it may not be directly germane to the order, is that there is much to be said for an inquiry into our set up in England and Wales. I do not commit myself to the adoption of the procurator-fiscal system, but there is much to be said for a consideration of our own system, and I say that in no way critical of Sir Norman Skelhorn and his admirable staff.
When I read the report of the working party in Northern Ireland, I did not see the detailed reasons for rejection of the Scottish system spelled out in terms that were very clear to me, but the important thing is that the proposal in the order goes a good deal of the way, subject to certain questions that I shall ask in a moment. towards achieving the independence of the office of director and taking the main responsibility for the conduct of prosecutions out of the hands of the police and putting it into the hands of those employed by an independent director.
While I commend the broad aims and purposes of the order, my queries arise because it seems to leave a great many loose ends. For instance, there is nothing in the order to ensure that prosecutions will be taken out of the hands of the police. On the contrary, Article 5(3) provides:Nothing in this Order shall preclude any person from initiating…any criminal proceedings…and that of course includes policemen. Under article 5(1)(c), the Director is given power only where he thinks it proper to initiate Crown proceedings for indictable offence. That means that the police may still as a matter of law initiate proceedings for indictable offences. The House ought to be told what indictable offences are still to be handled by the police.
It is said that the Director may deal with such summary offences as he considers should be dealt with by him. Where is the line to be drawn between minor 1069 summary offences that the police will still prosecute and the rest? It is clearly necessary, for instance, that, certainly for the foreseeable future, all cases with political undertones, or cases of political prosecutions, should be taken out of the hands of the police. I should like to know whether the Attorney-General can give us an assurance about that.
Will the Director draw the line by doing so formally in the form of regulations, which is what the Justice Committee suggested, those regulations setting out what cases the police will prosecute and those they will not? The working party set out a list of cases in which the Director should prosecute, but this is an aspect of the matter that has been left at large.
After all, so-called minor summary cases could easily destroy a reputation or, in the conditions of Northern Ireland, instigate a riot. I am unhappy, and this unhappiness was expressed in another place, about the looseness and lack of precision of the order in this important respect. We may be able to get some assurance from the Attorney-General before the order leaves the House.
Nevertheless, now that those questions have been asked, the Opposition feel that the order should help to achieve an improvement in the administration of justice in Northern Ireland. Confidence in the fairness and impartiality of the administration of justice is vital everywhere, and never more so than in Northern Ireland today.
§ 11.50 p.m.
§ Captain L. P. S. Orr (Down, South)
The right hon. and learned Member for West Ham, South (Sir Elwyn Jones) opened his speech with some felicitously worded comments about the time, the fact that we are "cribb'd, cabin'd, confin'd" and taking a matter of great importance by way of Order in Council at this time of night. I will develop that a little because he indicated that his hon. Friend the Member for Leeds, South (Mr. Merlyn Rees) would deal with it in winding up. We are dealing by Order in Council with something that ought to be legislation. This is a new law enacted by the House to deal with the administration of justice in Northern Ireland. It is fundamentally wrong that it should be done in this way. It is an effect of 1070 the Northern Ireland (Temporary Provisions) Act and we have to accept that the House has passed the parent Act and we are in this extreme difficulty.
This Measure has had a fair amount of debate in the Northern Ireland Parliament before coming here and so the difficulty does not arise so acutely on this the first Measure as it will undoubtedly arise on later Orders in Council initiating legislation which the electors of Northern Ireland have had no opportunity through public representatives of discussing in the ordinary parliamentary way. The difficulty was illustrated by a question I put to the right hon. and learned Member just now. He was dealing with the point made by the Attorney-General about the dismissal of the Director of Public Prosecutions.
My right hon. and learned Friend was suggesting that the dismissal procedure would be unique to Northern Ireland. In his words he would be in a very different position from the Director in England. That would be the case if this was legislation in the ordinary sense, if we were enacting the words contained in Article 4(2)(a) to the effect that the Director could be removed from his office by the Governor upon the advice of the Privy Council of Northern Ireland. But that is not to be the case so long as the parent Act is in being. We do not know for how long it will be in being. It is in being for a year but it could be renewed. Anything may happen at the end of that time. There is no guarantee that when the parent Act disappears the Parliament of Northern Ireland will be resuscitated. We do not even know whether there will continue to be a Privy Council for Northern Ireland. In a sense we are legislating for something when we do not know whether it will occur. This underlines the fact that this is perhaps one of the worst methods of legislating that could possibly be devised.
Having made that point and the point about parliamentary time which I hope other of my hon. Friends will develop. perhaps I—
§ Mr. Deputy Speaker (Mr. E. L. Mallalieu)
Order. I hope that the hon. and gallant Member's Friends will not develop that point. They would be out of order.
§ Captain Orr
Discussion of time could be relevant because of paragraph 4(3) of the Schedule of the parent Act. This order comes forward under the phrase in the middle of that paragraph which says what happens ifit appears to the Secretary of State that by reason of urgency the regulations require to be made without a draft having been so approved ".That suggests that discussion of the time involved and the question of urgency would be in order—
§ Mr. Deputy Speaker
Order. I am very reluctant to interrupt the hon. and gallant Gentleman, but he must confine himself to what is in the order.
§ Captain Orr
I was coming to the question of whether it is proper that this order should be dealt with under the emergency procedure.
§ Rev. Ian Paisley
On a point of order, Mr. Deputy Speaker. Surely the order refers specifically to the situation that the hon. and gallant Member has just mentioned because it says that it is made without a draft having been approved by Resolution of each House. This is a peculiar order, and surely we are entitled to discuss why it has been brought forward in this manner.
§ Captain Orr
With great respect, I suggest that it is exactly the same point. I was coming to the question why no draft of this order was laid. The order was made and came into operation on 30th March. We are now debating it on 8th May—five weeks later. [An. HON. MEMBER: "Why the delay? ".] Exactly. Why is it now brought forward as a matter of great urgency and without a draft having been laid? On the one hand, the order has been laid without our having seen a draft because, we are told, the matter is urgent. On the other hand, the Director which this legislation empowers to proceed to his duties was appointed five weeks ago and the House is dealing with the matter only now. Perhaps my right hon. and learned Friend would explain the delay.
We have 1½ hours in which to deal with something for which normally a Bill would have been produced, with Second Reading, Committee and Report stages. 1072 My approach to this legislation, if this were a Second Reading debate, would be to say that it was unexceptionable in principle and that the principle had been conceded and therefore it had our support. But we find ourselves in great difficulty because there are many points and loose ends which, if there had been a Committee stage, we would have wished to debate in detail—not in a general sense, but on properly formed Amendments, each of which could have been debated. In effect, we are having a Third Reading debate on legislation which is taken to have gone through its other stages. This is a most unsatisfactory way of dealing with the matter. I see that you are becoming restive, Mr. Deputy Speaker, so I shall not pursue the matter.
On the question of time, as this is the first of the Orders in Council coming under this procedure, one ought to say that this is highly unsatisfactory. This order is largely agreed, but future legislation may be highly contentious, it may not have been seen in draft or in any other way, and it would be wholly inappropriate to deal with it in this way.
§ Mr. Kilfedder
Would my hon. and gallant Friend like to comment on the fact that the report of the working party on public prosecutions was printed in April, 1971, by order of His Excellency the Governor of Northern Ireland but no copy of it is available in the Vote Office, and only two copies are available in the Library? My hon. and gallant Friend might like to protest about that.
§ Captain Orr
I am grateful to my hon. Friend for reminding me of a matter that I had intended to raise, namely, the non-availability of papers.
We are in the position, and will be increasingly so as these orders come forward, that the House as a whole will have to refer to reports which were made at Stormont and reports made to the Government of Northern Ireland Every relevant document should normally accompany any draft Order in Council, or any Order in Council such as the one before us tonight, so that the House can study everything that led up to it. I know the difficulties that my hon. Friends and others have had in trying to get hold of the MacDermott Committee's Report. 1073 and difficulties may arise with future Orders in Council.
I was a little surprised that the Attorney-General did not pay some tribute to the patient work that had been done at Stormont before the prorogation. This order is uncontentious because it had already appeared at Stormont and a great deal of work had been done on it. It is a product of the Stormont Parliament.
§ The Attorney-General
If my hon. and gallant Friend casts his mind back he will recall that I said that this order had been fully debated, that it was eminently desirable, that it had been a Northern Ireland Government Bill, that they wanted it on the ground of impartiality, and that they wanted it on the ground of efficiency. I specifically set that out when I introduced the order.
§ Captain Orr
I concede that my right hon. and learned Friend said that, but I still think that the words themselves were not as generous as they might have been.
I thought, too, that it might have been as well to put on record, and perhaps I might do so, one aspect of the MacDermott Committee's Report which, while advocating the changes being made and proposed in this order, paid tribute to the system which existed before and the impartiality of the conduct of prosecutions on behalf of the Crown in Northern Ireland prior to the bringing in of this legislation. One would not wish it to be thought that this legislation was necessary because of any malpractice or lack of partiality on the part of those who initiated prosecutions before the change over.
The MacDermott Committee said:We would recall that these observations and recommendations are in no way to be taken as any reflection on the manner in which the office of Attorney-General has been discharged over the years… It is our unanimous opinion, formed from a wide variety of personal experience, that the Royal Ulster Constabulary have discharged this burden which they have borne for so long with absolute integrity and a degree of competence which has always been remarkably right.That should be on the record in case anyone thinks that this legislation, desirable though it may be, casts any reflection on the system that pertained before it or on those who had the duty of administering it.
1074 It is surprising that nothing whatever has been said about cost. If this were a normal piece of legislation coming forward in the normal way there would have been some indication, through a money provision or from the Minister, of the costs involved. What is the estimated cost of setting up the new department and its running costs? What saving will result from the abolition of the Crown Solicitors'? In other words, what will be the net result for the taxpayer? How is it envisaged that this House will scrutinise the financial aspects of this whole exercise?
I hope that the changes will make it possible for the high degree of impartiality in the administration of justice in Ulster to continue. It is vital that the administration of the law should be above reproach, I believe it to have been so in the past. I concede that these provisions will make it not only just and impartial but make it be seen to be just and impartial. In that respect I welcome them in general principle. I regret the manner in which they have been dealt with in the House, but I am prepared to see them passed.
§ Several Hon. Members rose—
§ 12.8 a.m.
§ Mr. John Mendelson (Penistone)
On a point of order. Are you aware, Mr. Deputy Speaker, that I was on my feet when you called the hon. Member for Chigwell (Mr. Biggs-Davison) to speak? Is it not the custom for the Chair to call an hon. Member first from one side of the House and then from the other?
§ Mr. Deputy Speaker
That rests with the discretion of the Chair and I did call the hon. Member for Chigwell (Mr. Biggs-Davison).
§ Mr. Biggs-Davison
I would gladly defer to the hon. Gentleman, but I bow to your ruling, Mr. Deputy Speaker. I promise to be brief.
I was about to say that this is the first time that delegated —
§ Mr. Mendelson
On a point of order. Could the Chair be persuaded to explain why an hon. Member on this side was not 1075 called following an hon. Member on the benches opposite?
§ Mr. Biggs-Davison
I dare say that the hon. Gentleman will be able to catch Mr. Deputy Speaker's eye as we proceed.
I was trying to say that this is the first time that delegated legislation is not receiving either full debate or is not subject to the possibility of amendment. I quite agree with my right hon. and learned Friend the Attorney-General that this is an important and urgent Measure. In any part of the realm it is desirable that there should be a prosecuting agency independent of the police. That is particularly desirable in Northern Ireland.
Her Majesty's Government have not so far paid any but the most perfunctory tribute to the late Northern Ireland Government, against which they had no complaint to make of either omission or commission. Therefore, I am glad that my right hon. and learned Friend acknowledged the origin of the order in more than one reforming Administration at Stormont. But I ask this question: in what colonial territory, in what period of Irish or imperial history since, perhaps, the seventeenth century, would legislation such as this be put through without full scrutiny, without the opportunity to alter one title or flourish of the drafting, either in this Parliament or a subordinate legislature?
This should be a Statute. One may say that this is a Second Reading debate which is lasting 1½ hours. There will be no Committee stage. That point was referred to in another place by the noble Lord, Lord Beswick, who led for the Opposition. He said that he feared that this accumulation of Northern Ireland Measures might choke us, in a parliamentary sense. He said that there was need for some form of Committee in the other place and in this place to deal with this sort of legislation. We still await the Government's intentions in this matter.
I know that my right hon. Friend the Leader of the House is indisposed. We hope that he will soon be fully recovered. 1076 But we might have heard something from him or from another occupant of the Treasury Bench about how we are to deal with this legislation before we embark on this first Northern Ireland Order under the Northern Ireland (Temporary Provisions) Act.
In this case, there has been full discussion at Stormont. However, that will not be the case with other Measures which will come before us. Although it may seem a small point, it is a very material matter that copies of the Stormont HANSARD and Mr. MacDermott's report are not available to hon. Members
§ The Attorney-General
I have had this matter checked. Reports are available in the Library. There are still some there which have not been taken out.
§ Mr. Kilfedder
On a point of order, Mr. Deputy Speaker. I have been unable to obtain a copy of the report of the McDermott Working Party on Public Prosecutions from the Vote Office. There is none available, despite the fact that this was mentioned in the other place on 1st May, when strong protest was made by the former Lord Chancellor and assurances were given by the Government spokesman that the reports would be made available. I went to the Library about 15 minutes ago and was told that only one copy was available, which has been sent into the Chamber for me now. It is an utter disgrace that the report of an important committee of this kind is not available to hon. Members in the House.
§ Mr. Deputy Speaker
It is not the responsibility of the Chair to see what is available to hon. Members in the House. It is up to the House to decide whether it wishes, in the circumstances, to pass the order.
§ Mr. Biggs-Davison
I am much obliged to my hon. Friend the Member for Down, North (Mr. Kilfedder) for what he said. It is not your responsibility, Mr. Deputy Speaker, but what has passed will have been heard by the Treasury Bench. We must try to get our Irish business into some order, and we must know that the proper documents will be provided. If they cannot be provided in the Vote Office, we must have enough copies in the Library. My 1077 right hon. and learned Friend can shrug his shoulders, but it is a serious point.
§ The Attorney-General
I was certainly not shrugging my shoulders. I am sorry that my hon. Friends have been inconvenienced. I made that inquiry and reported what I was told, that there were copies in the Library. I am making further inquiries to see whether there are further copies. But I very much regret it if any of my hon. Friends have been placed in difficulty.
§ Mr. Biggs-Davison
I am much obliged to my right hon. and learned Friend. This is a point as much for the future as for this present debate, and I know that he will do his best to see that everything is in order in future.
The point about what seemed to be the arbitrary power of the Secretary of State in regard to the Director of Public Prosecutions for Northern Ireland, and the possible dismissal of that officer—although that is most unlikely—has been most adequately dealt with by my right hon. and learned Friend, because it appears that he will be in very much the same position as the English Director of Public Prosecutions in relation to the Secretary of State for the Home Department. I may be wrong, but that is how it seems to be, in which case we cannot offer any complaint.
But my right hon. and learned Friend referred rather hurriedly—and I am sorry if I did not catch all the details—to some additional staff. As far as I can make out, that staff seems to come from this side of the water rather than the other. Of course, the best men must be chosen, but I hope that as a result of the suspension of Stormont we shall not see an empire-building exercise in Great Britain at the expense of good men in Northern Ireland. I know that my right hon. and learned Friend and his right hon. Friend the Secretary of State for Northern Ireland will not allow that to happen.
I conclude by saying that I consider that the way in which Irish business is being handled at this time is a constitutional outrage.
§ 12.17 a.m.
§ Mr. John Mendelson (Penistone)
Time is short, so I shall concentrate on two material points only. Those who have sat through recent debates since the right hon. Member for Penrith and 1078 The Border (Mr. Whitelaw) was first appointed Secretary of State for Northern Ireland have a duty to the people of Northern Ireland of all political persuasions to take part in the process of acting as watchdog, so that as far as is humanly possible the parliamentary representation in this House of the people of Northern Ireland is fully maintained That duty includes timing, because time is of the essence of the parliamentary process.
My first point is, therefore, that I can see some good reason why this matter should be dealt with at this hour on this occasion. I say that partly in view of what has already been said about the amount of parliamentary time previously spent on the subject in another Parliament, and partly because there are other good reasons for doing so. But this is the occasion to put on record also the point of view of people—and not only on the one side of the House—that it would be highly desirable that the Government should find time in future to bring matters relating to the administration of Northern Ireland, and particularly anything that introduced considerable changes, however desirable, to the House early in the afternoon so that a debate could take place in the presence of a normally larger attendance of hon. Members. That would also serve to persuade the people of Northern Ireland that we are anxious to see that the largest possible amount of time, and of the best parliamentary time, is given to their affairs.
My second point is that, along with many other hon. Members, I receive correspondence from time to time from people in Northern Ireland. Anyone who has visited Northern Ireland in the last few years, either as a member of a commission or as an individual Member of Parliament, has made many contacts, and one of the good things about such contacts is that people continue to write to one. I have been asked by a number of people to question the Government on what is considered to be the difference between minor and other offences. I hope that we shall have a detailed reply on this question.
I hope that hon. Members opposite who have some criticism to make will not put themselves in the contradictory position of believing that a good deal of 1079 parliamentary work has already been done on this matter and also feeling a little sour about its introduction now. Such an attitude would weaken their case.
We should know in detail what is in the minds of the Attorney-General and his colleagues about the definition of "minor offences ". If that point can be elaborated, at any rate some of those who are concerned about this question will feel more satisfied about what is to happen under this new form of administration.
§ 12.20 a.m.
§ Rev. Ian Paisley (Antrim, North)
I am in entire agreement with the remarks made by the hon. Member for Penistone (Mr. John Mendelson). The House, if it is to convince the people of Northern Ireland that it is interested in their future and their wellbeing, will have to find suitable time to discuss matters that are of importance to the wellbeing of all the people of Northern Ireland.
I point out that hon. Members who have made a tremendous song about the appointment of a Director of Public Prosecutions for Northern Ireland—I am talking about Members representing Northern Ireland constituencies—are not even present tonight to show that they have an interest in a matter which affects not only the people they claim to represent but all the people of Northern Ireland.
I emphasise what my hon. and gallant Friend the Member for Down, South (Captain Orr) said. The MacDermott Report quotes this statement by the Incorporated Law Society of Northern Ireland, which is well known as a forthright and independent body, following an investigation the Society made into the dealings of the police:The President and Secretary were invited to meet Lord Hunt and his Committee. Before doing so they canvassed the views of members frequently practising in the High Court, County Courts and Magistrates' Courts regarding their views on the impartiality or otherwise of the police as prosecutors and witnesses to confirm or not their own opinions. These views from practitioners, each of 20 years experience and upwards, were unanimous regarding the fairness of all ranks "—in the RUC—and their readiness to assist the legal practitioner.1080 It should be put on the record that the police did a good job.
I agree with the principle of the Bill concerning the appointment of a Director of Public Prosecutions for Northern Ireland, but I am far from happy about the fact that, when the Northern Ireland (Temporary Provisions) Bill ceases to have effect, the Privy Council in Northern Ireland will be able to tender advice and to remove the Director from office. I should have liked to read to the House the list of the members of the Privy Council of Northern Ireland, all of whom, save the members of the High Court, held office in the Northern Ireland Government. It should be written into the order that the judicial members of the Northern Ireland Privy Council should have a say in discharging the Director, if he is to be discharged.
I agree with the Attorney-General that Mr. Shaw is a man of great integrity. As he got me five months in Crumlin Road prison, I am perhaps better able to say that than anyone in the House.
Two Northern Ireland Members have been able to speak in this debate. When these matters come up again, my attitude will be one of showing the Ulster fighting spirit when it comes to demanding our rights as public representatives in the House. There are many matters about the order which should be carefully scrutinised by the House. It should be said, with all respect to those who have praised the parliamentarians at Stormont, that the Stormont Measure was not discussed as fully as it should have been. I hope that when the next Order in Council comes before this House both the Vote Office and the Library will be able to supply us with the necessary documents and that adequate time will be given by the Leader of the House for us to discuss those matters which affect the destiny of the country part of which I represent in this House.
§ 12.25 a.m.
§ Mr. Merlyn Rees (Leeds, South)
I was glad to hear the hon. Member for Antrim, North (Rev. Ian Paisley) speaking with conviction about the need for a new form of Director of Public Prosecutions in Northern Ireland.
My right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) dealt with the legal aspects of this 1081 order, and all I wish to say on this point is that overall we accept and welcome what is contained in it. It is important that the relationship of the police to the courts should be clearly separated. My right hon. and learned Friend showed that this is not clearly done, and we hope that in these minor respects the Attorney-General will give us some assurance in the albeit short time that he will have later.
I should like to say this about the Royal Ulster Constabulary: the activities of the security forces must be kept strictly within the law. It is not as easy as all that, given the stress under which the security forces operate and the much greater atrocities and outrages which are perpetrated in Northern Ireland. It is important that we all see both sides of this question. But this changed relationship of the RUC to the courts, which is implied to an important degree in this order, is vital, and this is the basic reason why we support the order.
I wish to turn to the matter of procedure. This order illustrates the need to get the procedure right. I appreciate the urgency aspect which was implied in the Act that we passed recently, that where there is urgency special measures have to be taken. But, as has been said, little urgency has been shown in bringing this matter to the House. There could have been time for fuller scrutiny. It is our hope that orders such as this will have much greater opportunity for discussion on the Floor of the House.
I should like to turn to the subject of preparation. I have had difficulties which other Members have illustrated today. It has been said that the copy of the working party report is not in the Vote Office. In another place the Minister apologised for this. This is not just a niggling point. If we are to debate the problems of Northern Ireland properly, a document such as this should be freely available for consultation. My right hon. and learned Friend had one made available to him, and that is excellent, but as a generality I am sure that the Government must make better arrangements so that we as Members can make better preparations for discussion.
I understand that there was a Private Member's Bill sponsored, I believe, by a member of the Northern Ireland Labour 1082 Party, on this matter. I should have liked to consult it to see what bearing it has on this order. I should like to know what discussions there have been in the Northern Ireland Parliament. In another place a speaker said that he did not wish to flood the Vote Office, and nor do I, but there is a difference between flooding and providing the necessary documentation to enable us to do our job properly, and we have not been able to do it in the context of this order.
§ Mr. John E. Maginnis (Armagh)
Is the hon. Gentleman aware that Committees in this House have been adjourned for days until the necessary documents could be made available?
§ Mr. Rees
I am obliged to the bon. Gentleman. He reinforces my argument. We on this side have no wish to use the question of procedure and the problem of Northern Ireland in order to pre-empt time, but the Government's difficulties with time should not prevent proper discussion of these important matters. This is not the occasion to go into the various procedures which could be evolved, but we cannot allow it to pass without stressing the need for major issues of this kind to be debated on the Floor at a proper time.
What matters, above all, is that we are all able, on both sides, to consider the matter carefully and to influence the Government's mind. We have not been able to do that tonight. Obviously we shall not vote against the order—we welcome what the Government have done—-but we feel it right to emphasise that this occasion illustrates the difficulties which will arise in the coming months on wider problems unless we can find means within our rules to enable the House to do its job properly.
Not only will that call for discussions about procedure, but we hope that the Government will take due care to ensure that all the necessary documents are freely available and in good time. The arrangements made for this order have not met that requirement, though, happily, they are generally accepted. There is an implied warning here, however, and we put it to the Government in as helpful a way as we can at this too-late hour of the night.
§ 12.32 a.m.
§ Mr. James Kilfedder (Down, North)
I echo what has been said by the hon. Member for Leeds, South (Mr. Merlyn Rees), taking up the point which I made earlier about the absence of copies of the report of the MacDermott Working Party on Public Prosecutions. A rather sorry outlook for the future is presented. More time has been given in the past to the ill treatment of animals than has been given to this important Measure—a debate of only 1½ hours, and that without the documents which would enable us to do our job properly. Only two copies of the report are in the Library, and there is nothing available in the Vote Office.
§ The Attorney-General
I am sorry that my hon. Friend did not have a copy of the report. I sent for one two or three minutes ago and obtained it.
§ Mr. Kilfedder
A copy was eventually sent in to me from the Library. My point is that, unless copies are available in the Vote Office in the ordinary way, Members will not be able to discuss legislation of this kind properly.
The order has my support, because anything which helps to put an end to the Republican lies which have been so freely broadcast in Northern Ireland about the partiality of the police and the judiciary is to be welcomed. What I am protesting about is the limited time for debate in the House. As I say, more time is given to the ill treatment of dogs. As the hon. Member for Leeds, South said, terrible atrocities are being committed in Northern Ireland today. IRA gunmen are holding their own courts martial, as we read in yesterday'sSunday Telegraph,shooting people in the legs, ill treating them, cutting off the hair of young girls, tarring and feathering them—
§ Mr. Kilfedder
And torturing, as the hon. Member says. We are considering a serious topic, yet we are restricted both in time and in the material available to us.
The Government have elected not to adopt the Scottish system recommended by the Hunt Report in the first place. I see nothing wrong in that. There were many grave defects in the Hunt Report, though it is, perhaps, right to say that 1084 there was something worthwhile in its recommendation for a Director of Public Prosecutions. But the Hunt recommendation on the lines of the Scottish Procurator-Fiscal has not been implemented. Fortunately, the working party, under the chairmanship of Mr. MacDermott, scotched that suggestion—if the House will forgive the phrase—showing, perhaps, that the then Northern Ireland Government should not have been so ready to swallow wholesale all the recommendations and opinions of the Hunt Committee.
I welcome the Order in Council because it helps to put an end to the lies and allegations which have come from the republicans in Northern Ireland. But I ask my right hon. and learned Friend the Attorney General whether, if he can recommend this system for Northern Ireland, he will put it forward for England and Wales? Why should there be this difference? Northern Ireland always seems to be treated differently and the former Prime Minister, Mr. Brian Faulkner, said that the Westminster Government were treating Northern Ireland like a coconut colony. We should not be treated any differently from any other part of the United Kingdom. I ask the Government to ensure that the people in Northern Ireland enjoy the same system and the same rights as are enjoyed by people here.
I may have taken longer on my speech than I was asked to take. Three hon. Members from Northern Ireland have been able to talk tonight and we have had to restrict the time for the debate. I ask the Government to provide more time in the future.
§ 12.37 a.m.
§ The Attorney-General
I am sorry that my hon. Friends were in difficulty over the report of the Working Party on Public Prosecutions. Copies were in the Library—
§ Reverend Ian Paisley
On a point of order. Surely the Attorney-General can speak only by leave of the House?
§ The Attorney-General
I thought that as I was moving an order I was entitled to speak again in reply. I seek permission of the House to reply.
1085 I am sorry about the Working Party Report. Copies were in the Library and I obtained one from there only a short time ago. I am sure that my hon. Friends from Northern Ireland are well aware of the Hunt Report and the Working Party Report on Public Prosecutions. They have been matters of considerable debate in Northern Ireland and I have no doubt that firm views have been formed about whether the Hunt Committee proposal or the MacDermott Committee proposal is the best for Northern Ireland.
To my hon. Friend the Member for Down, North (Mr. Kilfedder) I say that having regard to the size of the jurisdiction in Northern Ireland, the proposed system improves on the system in England and Wales. It carries out every single recommendation that the Justice Committee Report said should be introduced in England and Wales. The opportunity was taken by the Northern Irish Government, and under this order these recommendations will be carried out.
To my hon. and gallant Friend the Member for Down, South (Captain Orr) I say that imitation is the sincerest form of flattery. The order incorporates what was a Northern Irish Bill which had received its Second Reading, passed its Committee Stage and its Report Stage and received its Third Reading. I appreciate the points raised on both sides about the amount of time which the House will require, particularly in cases where there has not been such full debate in Parliament and in public in Northern Ireland on a subject. My right hon. Friend the Parliamentary Secretary to the Treasury has been sitting through the debate and has taken into account what has been said. He will report to my right hon. Friend the Leader of the House.
The order brings forward the best system of prosecution, having regard to the area of jurisdiction. It will produce what Northern Ireland itself has called for through its Parliament and public debate—the system of the impartial and independent prosecutor.
I can say in reply to the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) that it is right that the Director will instruct lawyers.
1086 With regard to the Director's drawing the line formally, administrative directions will be made, but the proposition is that all indictable offences and all summary offences which he thinks he should take, save for the most minor and most summary, will be taken by the Director of Public Prosecutions.
I was asked about cost. The net cost will be about £100,000, taking into account the saving on the present prosecuting system.
I commend the order. I appreciate the points made by hon. Members, but I think their complaints are directed to the Northern Ireland (Temporary Provisions) Act. My duty now is to commend a system of prosecution which I think will reflect to the credit and benefit of the whole of the people of Northern Ireland.
§ Question put and agreed to.
§ That the Prosecution of Offences (Northern Ireland) Order, 1972, a copy of which was laid before this House on 4th April. be approved.
§ Mr. Deputy Speaker
I should like to offer a formal apology to the Attorney-General. It was a substantive Motion. and not an order, as I had supposed.
§ The Attorney-General
I am much obliged for your gracious comment, Mr. Deputy Speaker. I had thought that for once I was right.