Grand Committee Report of 13 June 2002

Official Report of the Grand Committee on the
  Justice (Northern Ireland) Bill

    The Committee met at four of the clock.
    [The Principal Deputy Chairman of Committees (Lord Brabazon of Tara) in the Chair.]
    Clause 10 [Transfer of functions of justices of the peace]:
    The Lord Privy Seal (Lord Williams of Mostyn)moved Amendment No. 98:
    Page 8, line 34, leave out from "function" to end of line 39 and insert "under section 21(3) of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)) (committal where offence committed during suspended sentence etc.),
    (e) the function under Article 5(4) of the Treatment of Offenders (Northern Ireland) Order 1976 (S.I. 1976/226 (N.1. 4)) (committal where offence committed after early discharge),
    (ea) the functions under section 51(8) of the Judicature (Northern Ireland) Act 1978 (c. 23) (committal etc. of person in custody in pursuance of Crown Court warrant),"
    The noble and learned Lord said: Grouped with this amendment are Amendments Nos. 99 to 101. The review, as is known, recommended that justices of the peace should no longer have a role in the criminal justice system. It further recommended the creation of the post of lay magistrate. The Bill gives effect to those recommendations and Clause 10 transfers the powers of justices of the peace to lay magistrates, subject to certain exceptions. The amendments make further purely technical changes to the Bill, in order to give full effect to the recommendations. I beg to move.
    On Question, amendment agreed to.
    Lord Williams of Mostynmoved Amendment No. 99:
    Page 9, line 12, at end insert—
    "(7) In this section references to a function are to a function conferred or imposed by an enactment or instrument passed or made before the time when this section comes into force (including a function conferred or imposed by a provision not in force at that time)."
    On Question, amendment agreed to.
    Clause 10, as amended, agreed to.
    Schedule 4 [Functions of justices of the peace]:
    Lord Williams of Mostynmoved Amendments Nos. 100 and 101:
    Page 84, line 15, leave out paragraph (c) and insert—
    "(c) Articles 44 and 45 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (warrants of further detention)."
    CWH 62
    Page 84, line 20, leave out "(whenever passed or made)" and insert "passed or made before the coming into force of this Schedule"
    On Question, amendments agreed to.
    Lord Roganmoved Amendment No. 102:
    Page 86, leave out line 2.
    The noble Lord said: With this amendment we seek to limit the powers of binding over. Being bound over to keep the peace is a tangible issue and something that one can put one's finger on. However, being bound over to be of good behaviour is much wider. There may indeed be human rights issues for such a wider power. I will defer to the noble and learned Lord's legal experience on this matter. I beg to move.
    Lord Glentoran: I support the amendment. Not being of a legal background, it seems that in a Bill as prescriptive as this one has to be, to bind somebody over for good behaviour is very difficult to define. Iam not sure that it adds anything to this part of the Bill. I support the amendment.
    The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): Amendment No. 102 seeks to leave out the reference to good behaviour. At present, as many Members of the Committee will know, most of the judiciary of Northern Ireland are ex officio justices of the peace and, accordingly, they may exercise the powers of justices to bind over, pursuant to the Justices of the Peace Act 1361.
    The effect of this amendment, therefore, is to remove a power that has existed for centuries and has been exercised without undue difficulty since that time. I appreciate that this law is a mere 600 years old, but there has been a facility during that time to further identify how it should be used. I reassure Members of the Committee that the practice now in the courts, because of the potential difficulty in relation to lack of precision of good behaviour, is that justices of the peace or judges usually specify the sort of behaviour that the person accused must desist from continuing. Thus, the accused will be bound over to keep the peace and be of good behaviour and it is quite usual for that to be specified in particular. The phraseology is perfectly good and we see no reason to change it, bearing in mind the way in which it has been in good usage all these years.
    Lord Maginnis of Drumglass: I heard what the Minister had to say. However, 600 years ago, good behaviour might have been more easily defined. In the environment in which it was meant to be applied, it would have had some relevance. Six hundred years on, we are a very mobile people, nowhere more so than in Northern Ireland, where there are inherent dangers relating to the expectations of the two traditions. Such a vague provision is unhelpful. What may be good behaviour in one part of a town or city may not be deemed necessary in another area.
    Anything that is open to various interpretations, such as this part of the Bill, is, in the context of Northern Ireland, dangerous. It is unnecessary, and I

    CWH 63
    ask the Minister to think again. Rather than protecting the heritage of 600 years, the Minister should consider the necessity for the people of Northern Ireland.
    Baroness Scotland of Asthal: I hear everything that the noble Lord says. I fully understand the sensitivity of the position and the lack of precision. By way of reassurance, I shall say that, during the most troubled times in Northern Ireland, the facility to bind people over to be of good behaviour was there, and it was certainly exercised by the judiciary throughout that period. It does not appear to have caused difficulty.
    I would also like to reassure the noble Lord about more recent practice. It is the practice now for judges to identify the sort of behaviour to which they refer. That would address the difficulty rightly raised by noble Lords and ensure that someone could not subsequently say, "Well, that was a generic term, and I did not quite understand what I was supposed to desist from doing". That is, in practice, how courts seek to address the ambiguity that noble Lords have identified.
    I hope that that will satisfy noble Lords. There is always an opportunity for us to consider the matter. However, there does not seem to be much need in this instance for change.
    Baroness O'Cathain: I would like some clarification. The Minister said that this has been used in Northern Ireland. I do not necessarily seek examples, but I ask whether it is not really another meal ticket for lawyers, so that they can decide what is good behaviour and what is not.
    Baroness Scotland of Asthal: Most certainly not. I know that there is a taste in the House for suggesting that the appetite of lawyers is endless, but I must disabuse noble Lords of that idea.
    The order is often used in this country by lay magistrates and in Northern Ireland by registered justices of the peace to bind someone over to be of good behaviour and keep the peace, usually for relatively minor issues. It is often useful in neighbour disputes, in which there are two parties who have not got on well—it might be six of one and half a dozen of the other—and the court takes the view that it is not necessary to make a finding of facts to decide guilt or innocence. In such cases, the court may bind the parties over to keep the peace and to be of good behaviour. We often find that that works.
    It is not used for complex and difficult criminal offences; it tends to be a useful tool available to a judge dealing with a low order of misbehaviour. Indeed, one can be bound over to keep the peace, even if one has not committed an offence; that is always interesting.
    Lord Rogan: I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Schedule 4, as amended, agreed to.
    Clause 11 agreed to.
    CWH 64
    Clause 12 [Role of Lord Chief Justice]:
    Lord Glentoranhad given notice of his intention to move Amendment No. 103:
    Page 10, line 4, leave out subsection (3).
    The noble Lord said: The amendment was originally tabled to ensure that the order referred to in the paragraph was an affirmative order. The Lord Privy Seal has already made that clear, so I shall not move the amendment.
    [Amendment No. 103 not moved.]
    Lord Maginnis of Drumglassmoved Amendment No. 104:
    Page 10, line 6, after "to" insert "or functions from"
    The noble Lord said: This is a simple and easily understood amendment. Subsection (3) provides the facility to transfer functions to the Lord Chief Justice. I do not wish to suggest for a moment that the Bill is speculative, but I suppose that all new legislation, by nature, must be. If not, there would be a complete transfer of functions at the outset rather than this facility to transfer other functions at a later stage. It appears to me that there should be a reciprocal facility to remove certain functions if necessary. That is the reason for the amendment. I beg to move.
    Baroness Scotland of Asthal: I understand the concern that the noble Lord has identified. The widening of the power in the amendment would allow the Lord Chancellor at any time to move from the Lord Chief Justice functions of any nature that have been transferred. That would give a degree of instability or insecurity in relation to those devolved functions. We do not consider that it would be appropriate to have a power to remove functions that it has been agreed will be exercised by the Lord Chief Justice in the post-devolution scenario. If we are going to devolve authority to the Lord Chief Justice who, after all, will be an extremely senior and competent member of the senior judiciary, he should be entrusted with those devolved functions.
    Lord Maginnis of Drumglass: I am grateful to the noble Baroness for that explanation. Yet again, I am not absolutely convinced, but at this stage I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 12 agreed to.
    Schedule 5 [Transfer of functions to Lord Chief Justice]:
    On Question, Whether Schedule 5 shall stand part of the Bill?
    Lord Maginnis of Drumglass: The schedule comes to the nub of our concerns about parts of the Bill, in so far as it appears almost to go overboard. We shall see other examples of that this afternoon. Rather than devolving powers to the Lord Chief Justice in Northern Ireland, the Bill appears to be almost a preparatory stage for divorce. It suggests to me a separation at least, which is not what the vast majority of people in Northern Ireland would wish. During the

    CWH 65
    previous period of devolution until 1972, the powers that are devolved in Schedule 5 to the Lord Chief Justice were not devolved, but were retained by the Lord Chancellor. We believe that that should remain the case. 'There would he considerable offence and huge suspicion of legislation that so effectively and completely enacted what I call a divorce within the legal process in Northern Ireland. Matters can and should be delegated, but they should not be totally devolved at this level, thus leading ultimately to a form of divorce.
    4.15 p.m.
    Lord Smith of Clifton: I should have thought it was not so much a divorce, but literally a legal separation. As I said on Tuesday, devolution implies that we cannot pick and choose on this and it has to be all of a piece. The appointment of county and magistrate's court judges are quite far down the chain. I should have thought that the Lord Chancellor was rather too far removed from Northern Ireland to have to approve such an appointment, so I oppose the noble Lord.
    Lord Glentoran: I have a lot of sympathy with where the noble Lord, Lord Maginnis of Drumglass, is coming from, but it would be wrong to remove the whole schedule. I made a point in a previous sitting about where the Government's handling of the process had left the confidence of the Unionist Party in particular. The Government should take that on board.
    Now might be a good time for a little more clarification on Clause 86 and the Government's intentions as to timing. As I understand it, that clause leaves the timing of the implementation of this Act open to the Secretary of State and allows him to do it piecemeal. He can select bits of the Bill to implement and other bits not to implement. It would be good to hear—if not now, perhaps when we return to the issue on Report, as I am sure we will—something of the Government's thinking in this matter. I cannot believe that, having gone through the whole Bill and passed it—as I hope that we shall, because I believe it is a good thing to pass the Bill once we have amended it somewhat—we would not then implement it in the fairly short term. If the noble Baroness is able to tell us more, I would be grateful, but if not I would certainly accept that we return to it on Report, when the Government can come forward with something of their thinking and planning in the timing of the implementation of various parts of the Bill.
    Baroness Scotland of Asthal: As I said on Tuesday, when we met last, the devolving of these responsibilities will occur only when it is felt that the administrative structures and the parties are ready for such devolution. However, we have to prepare and we have to be confident. I believe it was the noble Lord, Lord Shutt of Greetland, who said last time that we also have to be optimistic. We are seeking to make clear that level of optimism in the drafting of the Bill.
    The Lord Chief Justice will not be appointed as head of the judiciary until devolution of the justice function takes place. Schedule 5 will therefore not come into
    CWH 66
    force until that time. Of course, separation still means that the marriage persists. It is only with divorce That one ends the legal and binding nature of the union. Separation can, on occasion, help married parties in particular to live in harmony more easily in the long term. I would like Members of the Committee to bear that in mind when we consider those provisions.
    Schedule 5 specifies those functions that are currently exercised by the Lord Chancellor, which will be transferred to the Lord Chief Justice following the devolution of responsibility of justice matters to the Northern Ireland Assembly. The functions with which the schedule is concerned are not those involving the appointment of holders of judicial office, about which we had an interesting debate on Tuesday; rather, the functions are largely of an administrative character and are necessary for the efficient running of the courts. They are currently performed by the Lord Chancellor in his capacity as head of the judiciary. Following devolution of responsibility for the courts, the Lord Chief Justice will be the president of the courts of Northern Ireland and head of the judiciary, as is stated in Clause 12. Given that, we think it is right that the function specified in Schedule 5 should be exercised by him.
    Perhaps it is worth stressing that Schedule 5 contains no role for any Northern Ireland Minister and so preserves the independence of the court administration. We are somewhat surprised that that provision is being opposed. We certainly agree that it is right that, post devolution, the Lord Chief Justice, as the statutory head of the judiciary in Northern Ireland, should be responsible for those matters. We do not see why, post devolution, the judicial functions relating to Northern Ireland should remain in Westminster. The Lord Chief Justice is the person most able to discharge them. I ask Members of the Committee to withdraw their objection to the amendment because we think that post devolution it is going to be of critical importance for the Lord Chief Justice to have that responsibility so that he can demonstrate a nexus between himself and the people with whom he will have to deal.
    Lord Maginnis of Drumglass: The noble Baroness makes a powerful argument and I understand what the Government are trying to achieve. None the less, it is my sad experience that what governments set out to achieve and how they ultimately implement certain powers that they are given are entirely different.
    During the talks leading up to the 1998 Belfast agreement, I heard the most wonderful assurances from Government, particularly in respect of disarmament. I do not wish to deviate from the debate but I have to say that the system that is now implemented in secret brings no reassurance to the vast majority of people in Northern Ireland. Some of us believe that disarmament has taken place but we have no way of reassuring a very disturbed citizenry in Northern Ireland of the Government's integrity in that regard. To return to our debate, I would believe that the assurances that the Minister gave were adequate if I could only believe that, down the road, certain

    CWH 67
    unethical pressures will not be brought to bear on the Government to expedite matters. That would result in a system that was flawed because of that unseemly attempt to expedite matters. However, at this stage, I shall not press the issue, although it is my intention to return to this matter at a later stage.
    Schedule 5 agreed to.
    Clause 13 [Presiding county court judge]:
    Lord Maginnis of Drumglassmoved Amendment No. 105:
    Page 10, line 18, at end insert—
    "(4) No appointment under subsection (1) may be made without the approval of the Lord Chancellor."
    The noble Lord said: Amendments Nos. 106 and 107 are grouped with the amendment. Again, the proposal is very much in line with what I have said previously. It is our desire to ensure that the link between the judiciary in Northern Ireland and in the United Kingdom as a whole is retained. The amendments would ensure that no appointment under Clauses 13, 14 and 15 was made without the approval of the Lord Chancellor.
    That approach would not confer on the Lord Chancellor or allow him to retain any powers that the Minister and the Government wish to devolve; rather, it retains the link or association. I believe that it also helps to retain the confidence of the people for whom this legislation has been drafted. I beg to move.
    Baroness Scotland of Asthal: I understand why the noble Lord is wary about the change. As I said before, the change is an integral part of devolution and it is not going to happen until we are sure that the time is right.
    The other assurance is that we are not giving the powers to the First Minister or the Deputy First Minister; we are giving them to the Lord Chief Justice of Northern Ireland. There is a unanimous view that each holder of that office in the past has held it with distinction and courage, has been robust and has operated the law without fear or favour to either side of the divide between the communities in Northern Ireland. We are going to entrust these very delicate administration functions to that senior legal officer and to no one else.
    The Lord Chief Justice of Northern Ireland remains a member of the senior judiciary of the United Kingdom; that will not change. The close nexus and co-operation between the senior judiciary of the United Kingdom will remain. It is right to say that we would anticipate that the consultation and free flowing of information between those senior members of the judiciary will also remain. None of that will be expunged.
    When we consider the institutions that have retained the confidence of the people of Northern Ireland throughout their troubled times, one gives us all pride—the judiciary has stood firm. It has stood above the partisan practices of others with courage and bravery, which has cost several judges their life. The judiciary did that without fear or favour. That is why the Government feel that there can be some confidence
    CWH 68
    about entrusting those duties and the discharge nature of those duties to the Lord Chief Justice, if and when—I emphasise when—the powers are transferred.
    Clauses 13 to 15 provide that the Lord Chief Justice must appoint one of the county court judges, resident magistrates and lay magistrates, to be presiding county court judge, the presiding resident magistrate and presiding lay magistrate with responsibility for the other judges or magistrates. Those clauses are not intended to take effect until after the devolution of responsibility.
    The senior judge who knows judicial officers the more nearly will be the Lord Chief Justice of Northern Ireland. The noble and learned Lord the Lord Chancellor would place huge reliance on the recommendations, the advice and the indications given to him by the Lord Chief Justice, who will have intimate knowledge of the practitioners and the judges in that jurisdiction that the Lord Chancellor cannot properly and fairly be expected to have.
    If I can put it colloquially, after devolution, there will be a transfer of responsibility to the person who knows the most about it, and that is all. We are not seeking to undermine or change in any way the independence, the robustness or the courage of any future Lord Chief Justice. We would not expect a person of a lesser calibre to replace the Lord Chief Justice. Members will also know that the Lord Chief Justice's appointment will not be devolved in the way in which High Court judges' appointments will be devolved to the Lord Chief Justice. There is a second security blanket.
    Amendments Nos. 105 to 107 would impose a requirement on the Lord Chief Justice to obtain the approval of the noble and learned Lord the Lord Chancellor before making such appointments. One can just see what would happen. The Lord Chief Justice would make the recommendation and tell the Lord Chancellor who, he thought, was the most able to do the job. The Lord Chancellor would then take that advice and act upon it. Now, what will happen is that the Lord Chief Justice will speak to himself, if you like.
    The noble and learned Lord the Lord Chancellor is, of course, able to make a different decision from that suggested by the Lord Chief Justice, but, in reality, the strength of the relationship and the trust between them would make it unusual for him to disagree with the Lord Chief Justice without very good reason. We can therefore be confident that we are not doing anything that will seriously impinge on the administration of justice in a way that would be to the disadvantage of the people of Northern Ireland.
    It is of equal importance for all the people of Northern Ireland that the judges be above the difficulties and can deliver parity of treatment to all citizens. I reassure the noble Lord that that is the intent of Her Majesty's Government. We will be unshakeable on that. The changes involve investing trust that this is possible, but we will transfer the powers only when we are sure that it will work and are confident that it is safe to do so.
    4.30 p.m.
    Lord Maginnis of Drumglass: The Minister has taken considerable pains to reassure me on this point. Once again, I follow her argument, although, if I wanted to split hairs, I could say that it was in some respects contradictory, in so far as she has held up, for example, the process that I wish to retain. It is not a new idea that the Lord Chief Justice of Northern Ireland brings forward recommendations to the Lord Chancellor. The Lord Chancellor and the Lord Chief Justice in partnership have succeeded over very difficult and dangerous years in maintaining integrity among the judiciary. I wish to acknowledge that. I join the Minister in recognising and paying tribute to the sacrifice that has been made by a number of people—not just judges—at other levels within the legal and judicial stratum of our society.
    The Minister will understand it if I keep coming back to my desires in this regard. I come from Northern Ireland and have worked in another place on behalf of the people of Northern Ireland. She is absolutely right, as I have already acknowledged. The Lord Chief Justice makes recommendations with which the Lord Chancellor would seldom disagree, but none the less there is that relationship and linkage. However much reassurance I receive—and I accept the response of the Minister—I shall look to see where the people of Northern Ireland are getting less than they might reasonably expect as a region of the United Kingdom in terms of the linkages that exist. I have made my point and I shall have the opportunity to make similar points as we go through further amendments. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 13 agreed to.
    Clause 14 [Presiding resident magistrate]:
    [Amendment No. 106 not moved.]
    Clause 14 agreed to.
    Clause 15 [Presiding lay magistrate]:
    [Amendment No. 107 not moved.]
    Clause 15 agreed to.
    Clause 16 [Complaints about holders of judicial office]:
    Lord Smith of Cliftonmoved Amendment No. 108:
    Page 11, line 12, at end insert—
    "( ) The Lord Chief Justice shall consult with the Northern Ireland Human Rights Commission before preparing the code of practice.
    ( ) The Lord Chief Justice shall have regard to the relevant international human rights standards when preparing the code of practice, including the United Nations Basic Principles on the Independence of the Judiciary."
    The noble Lord said: This amendment is almost identical to Amendment No. 110 in the name of the noble Lord, Lord Desai.
    The Bill gives the Lord Chief Justice sole responsibility for devising the codes of practice relating to the handling of complaints against the judiciary. We do not believe it is good practice to leave the judiciary unfettered in investigating its own wrong doings in the rare cases that may occur. We believe that
    CWH 70
    the Lord Chief Justice should consult with the Northern Ireland Human Rights Commission before preparing a code of practice and that he or she shall have regard to the relevant international human rights standards when preparing the code of practice, including the United Nations basic principles on the independence of the judiciary. I beg to move.
    Lord Laird: I have the highest possible regard for the noble Lord, Lord Smith, for his colleague the noble Lord, Lord Shutt, and for the noble Lord, Lord Desai, who has tabled a similar amendment on human rights, and I am a strong supporter and advocate of human rights. We are talking about the whole concept of the independence of the judiciary. People may argue with the reasoning, but unfortunately it is a fact of life that the Northern Ireland Human Rights Commission is not regarded highly in Northern Ireland and is regarded as one-sided. That is because of its composition and some actions that it has undertaken in recent years.
    The word "consult" is very loose. One could consult on the telephone over a cup of coffee and then simply not take into consideration the advice that has been given. The Government have done that before with the Northern Ireland Human Rights Commission and I approve of that. However, to refer in a document to the impartiality of the Northern Ireland Human Rights Commission is, in the parlance that is current this month, an own goal.
    Lord Desai: As the noble Lord, Lord Smith, said, my amendment is identical and for that reason it should really be taken as an amendment to Clause 16, not Clause 17, as printed on the Marshalled List. In response to the noble Lord, Lord Laird, the clause says that the Lord Chief Justice shall consult. He does not have to agree with the Northern Ireland Human Rights Commission or anyone else. The problem is that a human rights perspective needs to be borne in mind when we are devolving power as well as reforming the criminal justice system. This was what the review said. The Committee on the Administration of Justice, which is a Northern Ireland NGO known for its human rights work, has recommended that some such clause be put in. I find it quite a reasonable request.
    Lord Maginnis of Drumglass: I oppose Amendments Nos. 108 and 110. First, I believe they are contradictory. Secondly, from a practical point of view they are mixing reality, perceived reality and everything else that attaches to the Northern Ireland Human Rights Commission. Many of us are sad that the Northern Ireland Human Rights Commission is held in such low esteem by a majority of people. There are some very fine individuals in the Northern Ireland Human Rights Commission, but it is far too political for the Lord Chief Justice to be involved in consultations with it on matters legal.
    Amendment No. 109, to which I have added my name, is grouped with Amendment No. 108. I have no doubt the noble Baroness will explain to me fully, as she has done previously this afternoon, why we should

    CWH 71
    not oblige the Lord Chief Justice to consult with the Lord Chancellor on this section. If we are not to consult with the Lord Chancellor, who is a senior judicial figure, I see no justification for the Lord Chief Justice being relegated to dealing with—I shall choose my words tactfully—a group of people who have become so much identified with political and sectional matters in Northern Ireland. As I have said, it would take away from the independence of the Lord Chief Justice to accept Amendments Nos. 108 or 110.
    4.45 p.m.
    Baroness Park of Monmouth: We are talking about a code of practice, not a mission statement. The code of practice is something that the Lord Chief Justice would be well placed to think about and would be able to consult a wide range of people. I see no reason why we should have to put on the face of the Bill one organisation which, as the previous discussion demonstrated, is in any case considered to be somewhat biased.
    Furthermore, so far as I know, all judges in the United Kingdom have had to take account of the Human Rights Act and are well aware of its provisions. It is wholly unnecessary to make a point of putting one organisation, which is much more political than professional, into the Bill and thus not trust the Lord Justice to do his job in the proper way.
    Lord Glentoran: I rise to say only that my noble friend Lady Park of Monmouth has put the point far better than I could.
    Lord Molyneaux of Killead: The difficulty is with the Human Rights Commission as it is presently constituted. That is an important point. Therefore it is bound to be devoid of any acceptance or reality in many of its outpourings. I do wish that it would become a little more realistic and less what might be called para-political in its activities.
    With regard to United Nations basic principles, the problem there is that we have almost as many interpretations of those principles as there are members of the United Nations—and that is saying something.
    Lord Hylton: I have always found the Northern Ireland Human Rights Commission to be a helpful body in such dealings as I have had with it and with its predecessor, the former committee, on that subject. However, these amendments may not be strictly necessary.
    Lord Fitt: The noble Baroness who has replied on behalf of the Government, along with other Members of the Committee who do not reside in Northern Ireland, may find it strange that noble Lords who live and reside in Northern Ireland are insisting that the final authority for any decisions taken should rest with the Lord Chancellor. I supported this on Tuesday about a particular appointment.
    CWH 72
    Running through these amendments one can see the insecurity between the two communities in Northern Ireland. That is always going to be there. When legislation went through both Houses in the recent devolution in Scotland, there was no disagreement between the Scottish Members. They wanted every facet of the devolutionary powers that could be given to Scotland to be given with full support. However, Scotland does not have a divided political and religious society. There is no question of the constitutional position being brought to the forefront in Scotland as it is in Northern Ireland, where the existence of the state is called into every discussion that takes place.
    We have Unionist Members from Northern Ireland. They have not said it overtly; they have not said it in any way. But I, as someone who lives in Northern Ireland, can understand why they say that the final authority for many of the decisions set out in this Bill should be retained by the Lord Chancellor. As they see it—I am not sure that I agree with them on every occasion—there has been an erosion of their way of life and of everything that they hold dear in many facets of the legislation that has gone onto the Northern Ireland statute book, such as the Police (Northern Ireland) Act 2000, the change to the name of the police and the setting-up of the Northern Ireland Human Rights Commission.
    I have not met any of the members of the Northern Ireland Human Rights Commission, and I am not sure that the commission is as overtly political as some noble Lords said this afternoon. However, I know that, among the Unionist community, it is seen as one-sided. That is why they say that, when any decisions are taken or consultations take place, the final yes or no should be given by the noble and learned Lord the Lord Chancellor. They ask for a guarantee that nothing will happen in human rights legislation or be done by the commission that will, in any way. further erode their position in Northern Ireland.
    We are dealing with a very sensitive subject, totally unlike any of the issues that are raised in the Scottish Parliament or in the Welsh Assembly. Although the Unionists have not said it this afternoon, I know that they want to maintain every vestige of the link that has existed—which they hope will continue to exist—with Britain. They view with concern anything that erodes that link or gives authority in Northern Ireland to someone who may at some time or other disagree with their perception of Northern Ireland and how it exists today. That is the reason for the amendments, and I suggest to the Government that they take those fears into consideration.
    Lord Dubs: I appreciate that the noble Lord, Lord Laird, is not the greatest fan of the Northern Ireland Human Rights Commission. I regret that. The commission is a brave attempt by the British Government to deal with their obligations under the Belfast agreement and to reassure all sectors of the community there about the commitment to human rights. We could argue about the membership, but this is not the time to do so.

    CWH 73
    I suggest that, if the noble Lord, Lord Laird, happened to he the Lord Chief Justice or if the noble Lord. Lord Maginnis of Drumglass, happened to be the Lord Chief Justice, they would behave as the amendments say and would consult the commission. They would probably also consult the Lord Chancellor and, as the noble Baroness, Lady Park of Monmouth, said, a range of other bodies. That is what they would do, whether or not they liked the Human Rights Cornmission, because it goes with the responsibility of the post.
    Having said that, I am inclined to agree with the noble Baroness, Lady Park of Monmouth, that it would not be proper to put in the Bill a detailed obligation as to who should he consulted. I have faith that the Lord Chief Justice would consult widely and sensibly.
    Baroness Scotland of Asthal: As so often, I agree with the sagacious remarks of the noble Baroness, Lady Park of Monmouth. It is right that the Lord Chief Justice is able to consult with whomsoever he considers most appropriate. In the ordinary way, one would anticipate that, as my noble friend Lord Dubs said, he would consult with all or any of those groups and many more. It would be wrong to specify in the Bill a limit on the number of people that he should consult.
    I listened with great care to everything that was said by the noble Lord, Lord Fitt, and all other noble Lords about the sensitivity of the issue in Northern Ireland; I understand that. I also understand that the Human Rights Commission, whose members have done sterling work all over the world, appears to have caused a degree of consternation on the part of some in Northern Ireland. This may not be the most appropriate time or place to bandy words about the commission's merits—or demerits, as others would put it.
    It would not be appropriate to put such matters in the Bill. We should leave it to the Lord Chief Justice's good judgment as to whom he may from time to time consult.
    Lord Smith of Clifton: Having heard the Minister's explanation, I shall withdraw the amendment. Before I do so, I must endorse what the noble Lord, Lord Dubs, said. The concerted and concentrated attack by the Ulster Unionists on the Human Rights Commission is out of all proportion. There are some very distinguished people on the commission, including Professor Brice Dickson, who was a colleague of mine at the University of Ulster. I have put it on record before and I do so again now that he is a man of tremendous expertise in the field of civil rights and a man of complete integrity. Having said that, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 109 not moved.]
    Clause 16 agreed to.
    Clause 17 [Secretaries to Lord Chief. Justice]:
    [Amendment No. 110 not moved.]
    Clause 17 agreed to.
    Clause 18 agreed to.
    [Amendment No. 111 not moved.]
    Clause 19 [Judicial oath or affirmation]:
    Lord Glentoranmoved Amendment No. 112:
    Page 13, leave out lines 11 to 22 and insert "take the oath of allegiance and the judicial oath or make the appropriate affirmation"
    The noble Lord said: Amendment No. 112 is grouped with Amendments Nos. 113 to 116, which. I do not believe it should be.
    Noble Lords: No, it is not.
    Lord Glentoran: I apologise to the Committee—my list is out of date. I am delighted that it is not.
    The main thrust of my argument is that oaths, affirmations and all sorts of other things are very emotional, very sensitive, and, when tinkered with in Northern Ireland, almost invariably cause trouble and give reason for trouble.
    The Belfast agreement clearly states that it is not necessary to interfere or change sensitive symbols and that each of the parties is entitled to its own, as is the nation. By devolution, we are not sanitising Northern Ireland from the United Kingdom. We are not, as the noble Baroness said earlier, divorcing ourselves completely and utterly from the rest of the United Kingdom. Quite the reverse—we are, and I hope we will remain for many years to come, very much an integral part of the United Kingdom.
    The criminal justice system that we are devolving and setting up for Northern Ireland is very much a part of the Queen's realm and the Queen's justice system. It is unnecessary to change the oath or affirmation in the Bill. I see no reason why it needs to be changed. Given all the sensitivities that are attached to the issue, to mess about is not in any way helpful. I beg to move.
    The Principal Deputy Chairman of Committees (Lord Brabazon of Tara): If this amendment is agreed to, I cannot call Amendments Nos. 113 to 116 inclusive.
    5. p.m.
    Lord Mayhew of Twysden: I have one or two reflections to offer, beginning with an apology for coming late to the Committee—which was necessitated by various transport difficulties.
    I support the amendment. There is a great deal of symbolism involved in this issue. If anyone had any doubt about the importance of symbolism and its capacity for being abused in Northern Ireland, they would only have to travel down the Cregagh Road in Belfast, as I did last night, to have those doubts allayed.
    Symbols are important. There is hardly any part of the world where they are more important than in Northern Ireland. Sometimes they are of value and sometimes they can be abused. In this case, I believe

    CWH 75
    there is both valuable symbolism and more than symbolism in the present judicial oath and the arrangements attached to it.
    If one can try to identify some common ground in this difficult and fraught issue, then it might be this: it cannot be right in principle for serving judges in the High Court to have taken different oaths or made different affirmations. Some would have taken the existing one while others—if this proposal is carried—exercising the same jurisdiction, will have taken another. That cannot be desirable.
    Therefore, one looks to see whether principle lies behind the proposal. I do not believe there is principle, but there may well be expedience. I believe that principle points very firmly to staying with what we have. After all, in our system of law it is beyond question that justice flows from the Crown.
    Let us take a parallel illustration using our position as Members of this House, or the position of our colleagues as Members of the other place. We owe our jurisdiction and ability to serve to the command of the Sovereign; to attend and to advise her. In those circumstances it has always been insisted upon that those who wish to become Members of the legislature should swear an oath of allegiance. That seems to be absolutely right in principle, as well as being necessary. Both Houses have always insisted on that and continue to do so.
    Should it be different in the case of judges? I do not see how it can be different. First, the would-be judges are seeking employment under the Crown from the Crown. The employment they seek is the jurisdiction to dispense justice which flows from the Crown. Therefore, principle must point firmly in the direction of retaining the present arrangements.
    What is the argument for change? One finds it in the review report at paragraph 6.142. For a change, a proposal so fraught with emotion and consequences and symbolic significance as this, it seems to have been only faintly argued. The group states that it accepts that it is one of our tasks to identify and, where possible, to deal with any blockages which might inhibit people from applying for judicial appointments.
    It has been represented to us by some that the judicial oath and oath of allegiance, or the equivalent affirmation, required to be taken by judges, magistrates, JPs and lay panellists on appointment could constitute such a blockage.
    At paragraph 6.125 is a recital of the various sides of the argument: on the one hand, on the other and so forth. Then at the end, the group declares that, on balance and in all the circumstances, it comes down in favour of the recommendation which is sought to be implemented in the Bill. Why should that be justified? Of course, it derives from sensitivity towards nationalist candidates or potential candidates who have a political aspiration. There is nothing wrong in that aspiration; it is one which they are perfectly entitled to hold. There may come a day when the
    CWH 76
    majority of people living in Northern Ireland will share that aspiration, in which case democracy will take its effect and that will be that.
    Why should it be seen as in some way dishonouring that aspiration that they should take the oath or make the affirmation—something which must be done at the moment—to uphold the Sovereign from whom their jurisdiction will flow? I do not think it can be argued that in any way would there be a dishonouring of their political aspiration were they should do that. I say that particularly when the constitutional status of Northern Ireland, as part of this kingdom—ruled over in constitutional theory by the sovereign— is guaranteed by statute in the very law that judges will have to administer. I can see nothing there, in a democracy that has declared time and again that the democratic process, now and henceforward, will determine the constitutional status of Northern Ireland.
    There is no principle that can provide a foundation for the undesirable situation of some judges having taken one oath and some another. On the other hand, as we well know, what is suggested, what is envisaged and what will ensue from this proposal being implemented will be the cause of very profound affront to those who hold Unionist principles in Northern Ireland. It is important not to add to the causes of affront, actual or perceived, that abound in Northern Ireland, unless it is absolutely necessary in principle as well as in practice and expediency. I do not believe that either of those tests is fulfilled here.
    Lord Maginnis of Drumglass: I am reticent to rise to my feet after listening to the noble and learned Lord, Lord Mayhew, but I do so in order to agree wholeheartedly with the sentiments that he has expressed and the good common sense that he has enunciated. We have just come through a situation in which we had the challenge of dealing with people who have already taken an oath and then suggesting that that oath is inadequate and they should take a new one. That happened with the police in Northern Ireland. We have the anomaly of a police service in which one group has taken one oath and another group has taken a different oath. As the noble and learned Lord, Lord Mayhew, intimated, that was done to please republicans—not necessarily constitutional republicans, but the less desirable element of that persuasion—who have very clearly responded by saying that it does not matter what oath the police have taken, because they going to treat them exactly as they have always treated them. They are not going to recognise the police. The police are going to be the enemy. These people intend not just to try to dissuade the young members of the nationalist community from joining the police, but actively to persuade them—and I think we understand what that means—not to join. This pandering to that element in our society has not done any good for society as a whole and has been deemed to be a sign of weakness.

    CWH 77
    I therefore support the noble Lord, Lord Glentoran, and those who have brought forward the amendment. I ask for guidance on Amendments Nos. 113 to 116, which were grouped with Amendment No. 112 on my list.
    Noble Lords: They are not.
    Lord Maginnis of Drumglass: I am grateful.
    I simply implore noble Lords—because this is an important issue—not to tinker with the obligation of members of the legal profession, as the noble and learned Lord, Lord Mayhew of Twysden put it, to the Sovereign from whom they are given their authority. It did not work with the police. In fact it has had to be changed and tinkered with to such an extent that the whole thing, which was meant to have a certain dignity about it, has been brought into disrepute.
    The Deputy Chairman of Committees (Lord Burnham): Perhaps I may assist the noble Lord. I shall repeat the remarks made by my predecessor as Deputy Chairman of Committees. If Amendment 112 is agreed to. I shall he unable to call Amendment Nos. 113 to 116.
    Lord Fitt: I believe we may be in danger of trying to bolt the stable door from which the horse has already escaped. In Northern Ireland a few months ago this issue had a great deal of publicity when two senior barristers refused to take the oath on being elevated to Queen's Counsel. They actively refused to do so. The case went to the High Court in Northern Ireland. That court came back with a decision in their favour. It said that they were not going to be compelled to take the oath of loyalty to Her Majesty, which they had refused to take. So those are two people who have already changed the law.
    Oaths have been laden with symbolism in Northern Ireland throughout its long history. They were used by the Northern Ireland Unionist Party to debar people from taking up positions where they would have had to take the oath of allegiance.
    I remember well when I was elected as a councillor to the Belfast Corporation as it then was. You had to sign a declaration of loyalty to Her Majesty—this was three or four years after she had become Her Majesty—before you could become a Belfast City councillor. Furthermore, in those days you were not paid for being a member of the local authority.
    The same was true even for the most menial of jobs, such as a refuse collector. People taking jobs of that kind with the local authority of the City of Belfast had to take the oath of allegiance. That meant that, even though there was severe unemployment and many people wanted to take a job, they certainly were not going to be forced into the position of swearing an oath of allegiance just to get such a menial position. As I say, this issue has been laden with symbolism in Northern Ireland.
    I do not take offence at the oath which is now in the Bill. I do not believe that it would be possible to return to the oath as it was previously because, as I have said,
    CWH 78
    two senior barristers refused to take that oath. The matter went to the High Court in Northern Ireland and the High Court decided on it. We already have a fail accompli and we have to accept it.
    Lord Desai: The Minister may clarify this problem when she comes to reply. It is not possible to pretend that Northern Ireland has not been a divided society and that we have not made a tremendous effort to make it as united as we can by recognising that differences exist. Those differences have to he accommodated. We cannot go on pretending that things are just as they were for a long time arid that all we are doing is making a few minor changes. We are not. In effect, the Belfast agreement is an international treaty. We have taken on board certain obligations to change the culture and nature of that society.
    It is as a part of that effort that the oath has to be rethought. I do not believe we can escape the difficulties by saying that we can do exactly the same in Northern Ireland as was done in Wales and Scotland. If that were the case, then we would riot have been through the past 32 years of history. In that sense, as well as through historical circumstances, we have—apart from the noble Lord, Lord Fitt—no representation of the nationalist community in your Lordships' house. Therefore those views are not expressed with anything like the authority that they should be. That is because we are, as it were, pale substitutes for what should be said.
    In the 19th century, a man was thrown out of Parliament several times because he did not want to swear allegiance. He had to run for office again and again. That was silly. It was said that it was riot possible to make an affirmation because that would he a denial of the Sovereign's connection with God. Today we have no problem with affirmation. Things have to change and we have to recognise that if something offends a substantial minority in a society, then it cannot be sustained. We cannot pretend that it is possible simply to go back to square one and pretend that nothing has happened.
    5.15 p.m.
    Baroness Park of Monmouth: The noble Lord, Lord Desai, cited the Belfast agreement. After all, that agreement states that,
    "while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland. the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union".
    A little further on in the agreement, on page 20, it states:
    "All participants acknowledge the sensitivity of the use of symbols and emblems for public purposes, and the need in particular in creating the new institutions to ensure that such symbols and emblems are used in a manner which promotes mutual respect rather than division".
    I would submit that we have become used to the tyranny of the minorities. In this case we are looking at what the majority wants and what that majority has voted for so far. When the day comes that that majority changes, then perhaps it would be

    CWH 79
    appropriate to consider a change of oath; that is, a different appreciation of the position of the Sovereign. However, at the moment the majority wishes to stay in the United Kingdom. Therefore the majority, by inference, wishes to remain the same as other members of the United Kingdom.
    Perhaps I may also point out that the SDLP and the Catholics who form an important part of that minority do not seem to have had any problem about joining the Army and taking the oath or in joining the police, where they would probably have been prepared to take it. Those Catholics who were brave enough to join in the days before the Belfast agreement took the oath. We are in danger of committing ourselves perpetually to pleasing the minority and forgetting the rights of the majority; those are legitimate rights.
    Lord Rogan: I wish to echo the words of the noble Baroness, Lady Park of Monmouth. The noble Lord, Lord Desai, is correct. I agree with him completely when he says that one should not offend, annoy or disenfranchise the minority. However, in setting out to achieve that aim, noble Lords should be careful that we do not offend, annoy or disenfranchise the majority.
    Lord Shutt of Greetland: I too should like to quote the Belfast agreement of 10th April 1998. The first words of the "Declaration of Support" state that:
    "We, the participants in the multi-party negotiations, believe that the agreement we have negotiated offers a truly historic opportunity for a new beginning".
    That means a fresh start in many areas. The work we are doing on the Bill is a part of that fresh start.
    Lord Smith of Clifton: When we talk about minorities and majorities, with reference to the contribution of the noble Baroness, Lady Park of Monmouth, I believe I am right in saying that among the younger elements in both branches of the legal profession, there is now a majority of Catholics. Thus, ahead of any demographic change that may take place, we shall certainly encounter among the up and coming young barristers and solicitors an increasing number of Catholics. That will highlight the problem referred to by the noble Lord, Lord Fitt. Many of them will feel unable to take the existing oath. Hence, the Bill's provisions. I entirely support what was said by the noble Lords, Lord Desai and Lord Fitt.
    Baroness O'Cathain: The noble Lord, Lord Smith, said by implication that Roman Catholics would not wish to take the oath, that they would not wish to be members of the judiciary where they have to take the oath, that they may take the oath in any case and that they are not necessarily Unionists. That is not true.
    Lord Hylton: I record my support for the remarks made by the noble Lords, Lord Desai and Lord Smith of Clifton. I venture to disagree with the noble Baroness, Lady Park of Monmouth, on the grounds that what has been described as the current minority is in fact a local majority in a considerable number of
    CWH 80
    cities, towns and districts. I suggest that those provisions in the Bill that one may think might protect the present minority may become useful safeguards for any future minority.
    Baroness Scotland of Asthal: If the debate in relation to oaths has demonstrated anything, it has demonstrated the acute sensitivity that surrounds this issue in relation to the divide. The noble Lord was right when he said that we are looking for a new beginning. I listened with great sympathy to what the noble Baroness, Lady Park, said about the right of the majority and what she described as the tyranny of the minority. However, one has to recognise that minorities and majorities have much to give one another if they are to live in harmony.
    What we therefore seek to do in this Bill—indeed, this was attempted in the Good Friday agreement—is to chart a new path along which majority and minority communities can walk in harmony and in unison together. We therefore have to look with a very jealous eye at all those provisions that may cause a stumbling block on the joint journey that both parts of the community must travel along.
    Members of the Committee know that the whole purpose of the review in relation to criminal justice and the system in Northern Ireland was to try to chart a road through such that, at the end—if devolution were possible—there would be a degree of comfort for the majority community and the minority community. We are therefore all obliged to consider the provisions in an holistic way as opposed to a piecemeal way. Once we start to pull at a thread, we may find that much else will be unravelled. There are parts that cause discomfort on one side, and other parts which doubtless cause discomfort on the other side. We are of course aware of that.
    The noble Lord, Lord Fitt, raised the case of QCs. That case is in fact slightly different because it concerns the change in the declaration taken by Queen's Counsel, not an oath, although the similarity should certainly be considered. The Lord Chancellor decided to change the form of the declaration to that recommended by the Northern Ireland Bar Council. However, he made that decision himself and it was not the result of a High Court order. Perhaps it demonstrates, as my noble friend suggested, that there can be a blockage of the sort that I am sure no one in this Room would seek to make. I invite Members of the Committee to look with care at the oath that is proposed. The essential elements of the oath remain the same. If Members of the Committee troubled to look at it with me, they may find in those words some of the reassurance that Members of the Committee seek. The review, which took, if I am not mistaken, about two years, would have looked carefully at the very delicate question of oaths before making its recommendation. The oath that all judges are invited to take is to swear that they,
    "will well and faithfully serve in the office",
    and that they,
    "will do right to all manner of people without fear or favour, affection or according to the laws and usages of this realm".

    CWH 81
    That oath recognises the reality that is Northern Ireland. Northern Ireland is a realm—it is part of the United Kingdom and Her Majesty the Queen is the Sovereign of that realm. In that oath there is a recognition and acknowledgement of the reality that is Northern Ireland.
    The affirmation, which appears in Clause 19(3), reiterates the same thing in very similar terms. It is important for us to build a future in which both sides of the community feel a degree of comfort and will swear to, and that all judges who undertake to swear the oath and thereafter do so. They will be bound by the laws and usages of this realm known as the United Kingdom, which includes England, Scotland, Wales and Northern Ireland—nothing has changed.
    One needs to have a degree of moderation as we are not just dealing with yesterday or today; we are dealing with our tomorrow, and we wish Northern Ireland to have the joy and felicity of having a union of people who have the capacity to live in harmony. It is our job, if I may most humbly and respectfully suggest, to chart a path that will enable each individual citizen in Northern Ireland to walk along the same road in security and to honour the reality that is Northern Ireland.
    Departure from the wording in this regard would have much greater resonance than perhaps in almost any other area, because it is—and I say so plainly—a compromise. Some might feel that the compromise one way or the other has gone too far. I suggest that the balance is about right. It allows the Unionists—be they Catholic or Protestant—the reassurance they need; that is, that the unity of this Kingdom is recognised in the oath. It does not impose on those who are republicans, be they Protestant or Catholic, the imposition of the direct, as opposed to the indirect and implicit reference to Her Majesty. We have a way which allows people a state in comity and that is what we are striving for.
    I would suggest that we seek to do nothing in the clause that would cast the slightest shadow of doubt on Northern Ireland's constitutional status As I have said, the word "realm" reflects the United Kingdom's position as a constitutional monarchy. I hope that that will assure the noble and learned Lord, Lord Mayhew, and the noble Lord who moved the amendment and others who have spoken in relation to this matter.
    Amendment No. 112, which seeks to reinstate the judicial oath and the oath of allegiance, would undermine that aim. For the reasons that I hope I have explored fully, I ask Members of the Committee not to go down that path. We have an opportunity to do something quite extraordinary in this Bill and I invite noble Lords to seize the opportunity, to have the courage that many have demonstrated on both sides of the divide—which was needed to make the Good Friday agreement possible, as it was needed to undertake this review—and say that, albeit that this may be a compromise, it is a fair and honourable compromise with which the noble Lord can properly be content.
    5.30 p.m.
    Lord Glentoran: The noble and learned Baroness has been no less eloquent than I would have expected. Her speech was very special. However, I feel that she has not necessarily argued successfully against the eloquence of my noble and learned friend Lord Mayhew. In fact, she has hardly tackled his objective arguments. She has appealed to emotions arid to reason, but not to objectivity. I shall not say what I was about to say because it would be not right.
    The points made by my noble friend Lady Park and my noble and learned friend Lord Mayhew, and those from noble Lords on the Unionist Benches are still very real. I am not convinced that there is a reason to change the oath at all.
    I shall touch on the basic point. The only people in Northern Ireland who will not take the oath or join the judicial system are members of Sinn Fein/IRA. Members of the SDLP sit at the other end; they operate within Her Majesty's realm—as do others—and do not ask for special favours or treatment. As my noble friend Lady Park pointed out, they have bravely joined the police force and our Army bravely for years, and still continue to do so. Only one very small minority group in Northern Ireland wishes on every occasion to attempt to persuade and bully—they do both; they still have their guns in their pockets and their hands out for the ballot box—the Government of this country to give them special favours. Creepingly and slowly they seek to sanitise Northern Ireland of any tinges of royalty, of the United Kingdom and so forth.
    It is neither right nor necessary in this Bill to compromise the judicial system of Northern Ireland in this way for such a small minority of the population. There might be one, two or three people—there might even be 10— but still it will be a small minority. Furthermore, they will certainly belong to only one party, which at the moment is not one of the largest parties in the kingdom. However, today is not the day for divisions and decisiveness. We shall almost certainly return to the matter on Report. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Lord Roganmoved Amendment No. 113:
    Page 13, line 16, leave out "according to" and insert "upholding"
    The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 115. With these simple amendments I wish to strengthen the oath and the affirmation. Every person appointed to an office specified under Schedule 6 must be seen to be upholding the laws, not simply acting according to the laws and the usages of this realm. I beg to move.
    Lord Desai: Amendments Nos. 114 and 116 stand in my name. As I said before, the Committee on the Administration of Justice proposed them as good..1 do not wish to speak to them at any great length. There was a good debate on the previous amendment. I speak to them to make it clear that there is another view out there. Because of that, we would be failing in our duty

    CWH 83
    as legislators if we did not register that there is another view which says—even with all the good reasons given by my noble friend—the word "realm" is offensive to some people. For that reason, I believe that it could be replaced. I do not intend to press the amendment further but I put on record the fact that such an amendment would be desirable in the eyes of many people.
    Lord Maginnis of Drumglass: I am almost beguiled by the Minister and the way in which she put her argument. She wishes for peace and harmony no more than I do but as we move further through the Bill, we will see an inconsistency in her argument that the Bill is intended to balance between the two interests. I do not want to go back over what has been debated. In relation to Amendments Nos. 113 and 115, I simply point out that if Government stick with the present drafting of the Bill, the phrase "according to" is weak. Unlike the word "upholding" it does not convey any permanency. To uphold the law is to prevent it from being weakened or taken away; it conveys a rightness about the law that "according to" fails to do. "According to" suggests something passive in terms of the law, not something that is proactive. One thing that has been important to us over the past 30-odd years is that the judiciary has been proactive in upholding the law under the most difficult circumstances. I therefore support my noble friend Lord Rogan in pressing the Minister to look at the amendment and to consider whether we could strengthen the legislation in that way.
    I find myself at variance with the noble Lord, Lord Desai, once more. I suggest that whether or not the noble Lord presses his amendment, the word "realm" is appropriate. It conveys what is meant but "jurisdiction" does not. "Jurisdiction" is a flexible word; it may mean territory, but if it were enshrined in legislation it could be taken to mean to control, influence, sway. Hence, I would be bound to oppose anything which I felt weakened the legislation in this manner.
    Baroness Scotland of Asthal: Much of what I will say about the amendments relates directly to what I have already said. If I may respectfully say so, the proposals involve tinkering in one way or another: "upholding" the laws and usages of the realm rather than acting "according to" them. I understand what the noble Lord says but the way in which the oath is currently phrased is perfectly plainly understood by all those who have to take it. One has to bear in mind the fact that persons who are going to be invited to take the oath will be judicial officers—judges in due course. There is no difficulty in understanding that the exercise of their duty has to be in accordance with and pursuant to the law of the land.
    If one looks at other statutes, the definition of "according to" is clear, and "upholding" does not add anything to that understanding. I quite understand that the noble Lord may prefer it as a word. In fact, there is equality in relation to it.
    CWH 84
    The current oath which we have discussed does not use any other word than that suggested here. Of course, the current oath is,
    "I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors according to law".
    If one looks at what the judges have been doing to date, they have been doing it according to the law. We are simply replicating the wording that has been well understood in relation to that matter in this oath.
    As I said earlier, the essence of that oath is precisely the same as the oath that has been proposed. I know that the noble Lord, Lord Glentoran, said that I did not directly deal with the point made by the noble and learned Lord, Lord Mayhew. In relation to the difference of the oath, the wording may be slightly different but the import is exactly the same. I see that the noble and learned Lord, Lord Mayhew, is nodding in agreement with that sentiment.
    While I do not object to some of the words that have been suggested, there are dozens of potential ways of expressing the same thing. If we were agreed on the underlying aim, which we are, there is not much point in accepting drafting changes for change's sake. Therefore, we would prefer to stick to the wording of the Bill as it stands.
    Amendments Nos. 114 and 116 also seek to amend the judicial oath and the judicial affirmation respectively to substitute for the word "realm" the word "jurisdiction". My noble friend Lord Desai will say that "jurisdiction" accurately describes the situation, that we are a realm and, therefore, "jurisdiction" implicitly includes Northern Ireland. We understand that nuances are important, and it is clear that there is, perhaps, advantage in using "realm" as opposed to "jurisdiction", although I understand that, as the noble Lord put it, that, in fact, accurately describes the situation.
    For the same reason, we suggest that the formulation arrived at by the review balances those nuances carefully and appropriately. For that reason, too, we would say that using it in exactly the form suggested by the review is, perhaps, the better way forward. It reconciles the differing views that have been expressed and explored here. We invite noble Lords to think again about Amendments Nos. 113, 114, 115 and 116 and withdraw them.
    Lord Rogan: I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 114 to 116 not moved.]
    Clause 19 agreed to.
    Schedule 6 agreed to.
    Clause 20 [Crown Solicitor]:
    Lord Smith of Cliftonmoved Amendment No. 117:
    Page 13, line 35, leave out "may" and insert "must"
    The noble Lord said: This amendment was tabled by my honourable friends in another place, but the guillotine fell before it was reached. It is just a probing amendment.

    CWH 85
    The Bill states that the Crown Solicitor for Northern Ireland "must" make his services available to any Minister or department of the Government of the United Kingdom but only "may" make his services available to any Northern Ireland Minister or Northern Ireland department or any other public body or holder of public office. I am interested to know why there is a difference in the treatment of United Kingdom Government Ministers and Northern Ireland Ministers, and why the Crown Solicitor is given that discretion. I beg to move.
    5.45 p.m.
    Baroness Scotland of Asthal: The reason for the word "may", which makes it permissive, is that it would not otherwise be compatible with the core function of the Crown Solicitor, which is to provide legal advice and services to the Westminster Government in respect of Northern Ireland. The amendment could put the Crown Solicitor in an awkward position. If there were to be a dispute between the devolved administration and Westminster, he would have a conflict of interest. The current drafting makes it clear where his primary responsibilities lie, while allowing him to make his services available to the devolved administration as appropriate.
    Lord Smith of Clifton: I thank the Minister for that lucid explanation, and I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clauses 20 and 21 agreed to.
    Clause 22 [Attorney General]:
    [Amendment No. 118 not moved.]
    Lord Williams of Mostynmoved Amendment No. 119:
    Page 14, line 15, at end insert—
    "(2A ) The Attorney General for Northern Ireland is to be funded by the First Minister and deputy First Minister, acting jointly.
    (2B) The Attorney General for Northern Ireland may appoint staff, but subject to the approval of the First Minister and deputy First Minister as to—

    (a) numbers,

    (b) salary, and

    (c) other conditions of service."

    The noble and learned Lord said: Amendment No. 119 clarifies two matters. It is important that, in establishing the new Attorney-General, we avoid as far as possible any potential ambiguities. First, the amendment clarifies that funding for the new Attorney-General is to be provided by the First and Deputy First Ministers, who would fund the Attorney-General from money appropriated by Act of the Assembly. Secondly, the amendment clarifies that the Attorney may appoint staff, subject to appropriate approval, as to numbers. salary and other terms. Such staff would become civil servants on appointment. The amendment is in response to the Executive's view that
    CWH 86
    the new Attorney will need such provision to carry out his duties. This amendment is therefore intended solely to clarify the position. I beg to move.
    On Question, amendment agreed to.
    Clauses 22 and 23 agreed to.
    Clause 24 [Removal of.Attorney General]:
    [Amendments Nos. 120 and 121 not moved.]
    Clause 24 agreed to.
    Schedule 7 [Functions of Advocate General]:
    Lord Roganmoved Amendment No. 121A:
    Page 94, line 26, leave out "Public" and insert "Crown"
    The noble Lord said: I shall speak also to Amendments Nos. 122A, 161A, 175A, 178A and 178B. It is accepted that the purpose of this part of the Bill is to draw a clear distinction between the functions of prosecution and the functions of investigation in order to enhance public confidence and support in the criminal justice system. It is a distinction in proposals with which I agree.
    I assume that the Government are being careful not to annoy republicans, by having given us the Public Prosecution Service for Northern Ireland, or PPSNI, which is a body to prosecute, and the Police Service of Northern Ireland, or PSNI, which is the body to investigate. When republicans back home in Northern Ireland begin to talk about the PPSNI or the PSNI, how muddled, in terms of titles, will these two bodies be?
    The Government may feel unable to accept this amendment, although some thought must be given to the problem of possible muddle. If the Government are unable to accept the amendment, for whatever reason, and they remain deeply committed to the Public Prosecution Service of Northern Ireland—PPSNI—then potential confusion could be avoided by amending the name of that other body, the Police Service of Northern Ireland. Off the top of my head, I suggest it could be called the Royal Ulster Constabulary. I beg to move.
    Lord Maginnis of Drumglass: I am sorry that the noble Baroness has vacated her seat, because I gave some warning that I would come back on some of the assurances that she gave in respect of balance.
    Lord Williams of Mostyn: I wonder if I can assist the noble Lord. I said at the outset that, because this Bill is of such importance, it was intended that the noble Baroness, Lady Scotland, would deal with Part I and the Attorney-General would deal with Part 2. That is the reason for the division.
    Lord Maginnis of Drumglass: The noble and learned Lord has taken my comments slightly too seriously, but I am grateful. My point is that we have had reassurances throughout today about the effort that is being made to give balance to the Bill, but if ever there was an example of where that balance has totally, completely and utterly disappeared, it is by the adoption of the word "public" when "Crown" should be on the face of the Bill. In respect of those words, once again I ask the question that I posed earlier: does

    CWH 87
    anyone believe that the small minority to which the noble Lord, Lord Glentoran, referred will be at all moved by such pandering to its sensitivities? The noble Baroness, Lady Scotland, indicated that the judicial system in Northern Ireland is derived from the position of Northern Ireland within the United Kingdom and from the authority which emanates from the Crown. Yet that word is to be removed.
    If the Government have their way, soon everything that identifies the majority of people in Northern Ireland and everything to which an even greater number of people in Northern Ireland have assented through the Belfast agreement, will be eroded or withdrawn. That there shall be no change in the status of Northern Ireland until the people of Northern Ireland so decide is to be eroded. Slowly—perhaps almost imperceptibly—but cumulatively, it is something that will have a huge impact.
    I shall listen with interest to what Government Ministers and the Attorney-General have to say about the reason for effecting this diminution of the place of Northern Ireland within the United Kingdom. There can be no justifiable excuse for a government not to be willing to stand by those things to which they put their hand in April 1998.
    In bringing forward these amendments, we have not talked about the consequential amendments that, if they are accepted, would have to be applied. In Clause 29(2) is the term, "the Director of Public Prosecutions". That title would need to be examined again. In Clause 36(1)(a) is the term "public prosecutor". I know that refers to "any" public prosecutor but I would imagine that under the circumstances of our amendment being accepted, it would be the Crown prosecutor.
    I am not a lawyer. I simply draw attention to the consequences of what we propose in this set of six amendments. I shall listen with interest to how the Government believe that they can justify this insult to the people of Northern Ireland.
    Viscount Brookeborough: I am inclined to support the amendment, but perhaps for its perception and what people will think of it. The term, "the Crown", has always been used in matters where an organisation or subject is politically neutral in every sense of the word. In the public's perception—or at least in mine—public bodies or institutions are those that are generally directed by an executive or a government. I would rather see the Crown, because it is overtly entirely neutral politically and not a public body, as it might be perceived.
    Lord Laird: I very much support the amendment. Much of what we have heard here today and on Tuesday has focused on images and perceptions of things in Northern Ireland. That is important to us all.
    The problem we have is that the Belfast agreement does not work unless it brings a range of people who are Unionist with it. That is a simple fact. The Minister of Foreign Affairs in the Government of the Republic of Ireland said at a meeting at the Northern Ireland
    CWH 88
    Office a year ago that his government's policy was to hollow out every piece of Britishness from Northern Ireland. The problem is that when the word or concept of the Crown is taken away, taking away the concept of Britishness, it seems that the Government here are playing the tune of the Government of the Irish republic. That does more damage to the Belfast agreement than anything else, because if the Belfast agreement does not have the support of the Unionist section of the community, it is going nowhere.
    6 p.m.
    Lord Glentoran: I support the amendment, albeit maybe obliquely. The noble and learned Lord the Attorney-General may not be used to Northern Ireland affairs and may think that the amendment and those grouped with it are petty.
    The points have been made extremely clearly by noble Lords in the Ulster Unionist Party. As I have said on a number of occasions both here and in the Chamber in other debates, the Government are riding the agreement into the ground. My party is having extraordinary difficulty in hanging on to some sort of bipartisanship, not because we are particularly pro-Unionist, but solely because we believe that the behaviour of the Government and their machine is eroding the good faith that there was in the agreement that was reached on that Good Friday.
    You have to be there and talk to all the people—I know that the Lord Privy Seal has been there regularly—to understand that what the noble Lords, Lord Maginnis and Lord Laird, are saying is very real. The amendment talks about a word—the difference between a Crown prosecution service and the public prosecution service. That is very important in the perception that the majority of the people in Northern Ireland will interpret. They will pick it again and they will see it as one more little piece of sanitisation and appeasement to Sinn Fein/IRA and the republican movement, who will not play in our judicial system anyway. We shall have to come to that later in the Bill when we talk about other things to do with youth justice, which is excellent, but we have to make sure that everything in the Bill is able to stay with the proper legal judicial system.
    Lord Hylton: I am conscious that, in the speeches so far made on this group of amendments, we have listened to some very sincere expressions of opinion. However, it seems to me that the content of the Bill should be directed towards creating shared institutions and, consequently, shared symbols. Here we can take heart and be encouraged by the wisdom of the Northern Ireland Assembly, which chose as its logo or symbol the flax flower. That seems to have been accepted wholeheartedly by everybody. I am glad that that should be so. I cannot support the thrust of the amendments.
    The Attorney-General (Lord Goldsmith): I start, if I may, by making it very clear that I for one do not for a moment doubt in any way the sincerity of those who have spoken or the importance of the points that they

    CWH 89
    made. I respectfully say to the noble Lord, Lord Glemoran, that as Attorney-General for Northern Ireland, which I am at the moment, I regularly visit Northern Ireland and claim to have some little understanding of the matters that are there involved.
    This group of amendments has proceeded in the debate—if I may put it this way—as if we were removing a word that presently exists or proposing to change the name of the prosecution service of Northern Ireland from the Crown Prosecution Service to something else. That, however, is not what is happening. The present position is that the only name that exists is that of the Director of Public Prosecutions in Northern Ireland. What the Bill proposes elsewhere, however, is a radical and important change in the function of his office, so as to give it a far greater responsibility for cases. The number of cases that the service will be dealing with will be significantly higher. The review recommended in those circumstances, for very good reason— Members of the Committee will no doubt agree that the name should reflect the fact that there would be a prosecution service covering all of those cases—that the name should be changed to that of the Public Prosecution Service for Northern Ireland. To those Members of the Committee who suggest that this is an erosion of confidence—or a "sanitisation", to use the word of the noble Lord, Lord Glentoran—I say that nothing of the sort is taking place because that is a sensible statement of what the service will be doing.
    There is no risk of the confusion to which the noble Lord, Lord Rogan, referred. I very much doubt that anyone would have any difficulty in Northern Ireland. They would recognise the prosecution as being conducted by the prosecution service. They would recognise that the police were carrying out a different function. If there were to be any risk of confusion at all, it would be if the service in Northern Ireland, which would be carrying out its functions in a somewhat different way from the prosecutors in England and Wales, were to carry exactly the same name.
    If there is—I respectfully suggest that there is not—any question of symbolism in the name, I agree entirely with the sentiments of the noble Lord, Lord Hylton, who expressed the view that it must be important in these circumstances to have a statement which is a shared symbol. What could be clearer—what could be more shared—than a prosecution service that recognises that it is the Public Prosecution Service? It is a prosecution service for the public, and therefore totally apolitical, because it is the public interest that is being promoted. It was, as I say, the review that recommended the change. The name "Public Prosecution Service for Northern Ireland" was widely welcomed during the consultations when the review, report and the draft legislation were published. The wide not universal—support that the name "Public Prosecution Service" has received from the people of Northern Ireland should be respected. I hope that Members of the Committee agree. While I respect the sentiments that noble Lords have expressed on the amendments, the approach is not pandering to sensitivities; the name is sensible and properly reflects
    CWH 90
    the very important function that the service will have. Against that background, I hope that the amendment will not be pursued.
    Lord Maginnis of Drumglass: I am grateful to the Attorney-General for what he has said, although I am not in the slightest convinced by his argument. He and the noble Lord, Lord Hylton, have very much missed the point —I hope that that was not deliberate—that I was trying to raise. I have tried to take a panoramic view of the Bill. There is evidence that one small section of society has been considered, and considered in detail, whereas the interests of society as a whole have been grossly neglected. There is a barrenness in this Bill in terms of the way in which it conveys a sense of Britishness—a sense of what we agreed in the Belfast agreement in April 1998.
    I hope that the noble and learned Lord does riot think I am some kind of mad extremist who has no time for or consideration of others within our society; that is not the case, nor is it the case with my noble friends who sit beside me. However, we are left with a feeling of neglect and of having been ignored. If I do nothing else this evening, I want to convey the feeling of neglect and of diminution that the Bill brings to us, insofar as there is nothing—but nothing—with which I can associate myself. There is nothing tangible in terms of who I am, and who a great number—a majority of people in Northern Ireland—have agreed they are in terms of the April 1998 agreement.
    Lord Rogan: I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Lord Williams of Mostynmoved Amendment No. 122:
    Page 95, line 17, at end insert—
    "24A In section 6(5) of the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41) (proceedings for offences under that Act), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland"."
    The noble and learned Lord said: This is a short technical amendment which adds a further offence to the list of those in relation to which the Advocate General for Northern Ireland must give consent. Prosecutions under the Marine, &c., Broadcasting (Offences) Act 1967 have an impact on international relations. That has two consequences. First, offences under this Act fall within the excepted field in Northern Ireland and, secondly, the giving of consent for such prosecutions should therefore remain with the Advocate General for Northern Ireland at Westminster. I beg to move.
    On Question, amendment agreed to.
    Schedule 7, as amended. agreed to.
    Clauses 25 to 28 agreed to.
    Clause 29 [Public Prosecution Service]:
    [Amendment No. I22A not moved.]
    6.15 p.m.
    The Deputy Chairman of Committees: We come to Amendment No. 123. If this amendment is agreed to, I cannot call Amendments Nos. 124 and 125.
    Lord Smith of Cliftonmoved Amendment No. 123:
    Page 17, line 35, leave out paragraphs (a) and (b) and insert—"(a) the Attorney General"
    The noble Lord said: In speaking to Amendment No. 123 and the consequential group of amendments, I must state that devolution, which I entirely support, means having arrangements that are appropriate to the region in question. In the Bill, we have exactly the opposite: the Bill merely slavishly mimics the judicial infrastructure of England and Wales, giving no thought to what is appropriate for the relatively small size and scale of Northern Ireland.
    I raised the point at Second Reading, and I asked why it was felt necessary to have both an Attorney-General and a Director of Public Prosecutions who, in any case, would report to the Attorney-General. Because of time constraints, the noble and learned Lord the Leader of the House did not answer the question. I subsequently wrote to him, and, characteristically, he replied quickly and fully. I greatly appreciate that. However, the reply did not convince me, hence the tabling of the amendments.
    The noble and learned Lord wrote:
    "Of course, the responsibilities of the proposed Attorney-General for Northern Ireland in relation to criminal matters is only one aspect of a much wider role he plays in relation to the administration of justice. Just as in England, the Attorney-General for Northern Ireland has important functions in relation to contempt. vexatious litigants, family law, the appointment of amici curiae. charities and vesting orders affecting public rights of way".
    The inventive officials in the Northern Ireland Office might also have padded out the list by adding the opening of fetes, umpiring cricket matches and the like. The functions are so onerous that, in the past, they were easily discharged by successive Attorney-Generals for England and Wales acting as Attorney-General for Northern Ireland, including, in his time, the noble and learned Lord, Lord Williams of Mostyn, and his successor, the noble and learned Lord, Lord Goldsmith. They say that they visit regularly, but I suspect that it is not too frequently nor for too long a time. I doubt that the Northern Ireland matters that crossed their desks took up as much as 10 per cent of their time. I would be pleased to be contradicted on that, but I would want evidence.
    The proposed Attorney-General for Northern Ireland could easily discharge the duties and effectively assume the role of Director of Public Prosecutions. As he is non-political, the independence of the prosecution service from political interference would be adequately safeguarded.
    At Second Reading, I also asked what additional costs would he incurred if the Bill were enacted as it stood. I was told that it would be some £30 million. Given that huge sum, it is incumbent upon us to see that there is no unnecessary extravagance. By combining the twin roles of Attorney-General and
    CWH 92
    Director of Public Prosecutions, a significant saving could be made. That is the sole purpose behind the amendments. The amendment will attract the total hostility of the lawyers' trade union, but most taxpayers would support it. I beg to move.
    Lord Glentoran: I fear that I may show my ignorance once again. I would like to support the noble Lord, Lord Smith of Clifton, except that, if I understand things correctly, the Attorney-General for Northern Ireland is responsible for giving advice to the Northern Ireland Government on all legal matters. If that is so, it would be somewhat incompatible that the Attorney-General, giving his advice on legal matters to the Government of Northern Ireland, should also be the public prosecutor. Am I correct in that assumption?
    Lord Goldsmith: The noble Lord. Lord Smith of Clifton, invited me to call evidence as to the amount of time that Northern Ireland matters take up for the Attorney-General. Indeed, three Members of the Committee who either do or have held this post are presently in the Chamber. Therefore I cannot call evidence because I cannot choose between calling my noble and learned friend Lord Williams of Mostyn and the noble and learned Lord, Lord Mayhew, to deal with it. The fact is that the legal affairs with which the Attorney-General has to deal are substantial and they take a considerable time. A member of my office in Belfast attends every week. Thus it would not he right to assume that these were not important and onerous matters.
    I want to say a word about the two posts dealt with by the amendment. The review group recommended, and the Government support—I do not think that there is any opposition—the notion that an independent person should be responsible for prosecutions in Northern Ireland. Under the terms of the Bill, that person is to be the Director of Public Prosecutions.
    The review group also saw the need for and recommended a post of Attorney-General for Northern Ireland, as there is at the moment. As the noble Lord, Lord Smith, pointed out, there are duties that have nothing to do with prosecutions, but which are currently carried out by the Attorney-General for England and Wales as Attorney-General for Northern Ireland. Those duties cover matters relating to civil law, the public interest in contempt cases, family law cases and in charity cases. The list is extensive and considerable and it is a quasi-judicial role. I believe that I can say without contradiction that the Attorney-General carries out an important public interest role. It goes much wider than simply the question of prosecution.
    What else the Attorney-General for Northern Ireland might do would he a matter for others to decide. I turn specifically to the question raised by the noble Lord, Lord Glentoran. It would be a matter for the Assembly and the Executive to decide whether they wanted the locally appointed Attorney-General also to act as a legal adviser, in the same way that I have the privilege to act as a legal adviser to the Government in

    CWH 93
    Westminster. That would be a matter for them to decide and, if they decided that that was appropriate, it would for them to pay for such legal advice. It is not for me to say, but it could well he that the result would be an Attorney-General for Northern Ireland, locally appointed, who would have substantial advisory functions in relation to the devolved administration.
    In those circumstances, it seems to me entirely appropriate that there should be both an AttorneyGeneral—in this case, in accordance with the review, a non-political Attorney-General but one who would provide a line of accountability to the Assembly in Northern Ireland; accountability is a very important aspect or this—as well as, separately, a Director of Public Prosecutions who will be independent and who will not report. I must disagree with the formulation of the noble Lord, Lord Smith, on this. The relationship of consultation is carefully set out in the Bill because the independence of the Director of Public Prosecutions is to be preserved.
    The end result is the proposal will not slavishly follow the infrastructure in England and Wales. Indeed, it is not the same infrastructure as in England and Wales. There are certain important differences which the review considered appropriate, having regard to the situation and circumstances in Northern Ireland. In the light of the combination of the explanation given by my noble and learned friend the Lord Privy Seal in his letter and what I have now attempted to say, I hope that the noble Lord, Lord Smith, may be persuaded that there is enough for two people to do and that it is entirely appropriate for there to be two posts.
    Lord Mayhew of Twysden: It is not entirely in the interests of solidarity with the lawyers' trade union that 11 rise to support the words of the Attorney-General. The amendment touches on an extremely important and very sophisticated area of relationships. In England and Wales the Attorney-General superintends, by statute, the Director of Public Prosecutions, who in turn heads a very large department which is now principally called the Crown Prosecution Service. He has no powers to give directions.
    As we have been reminded, since the assumption of direct rule the Attorney-General here has also been the Attorney-General for Northern Ireland. He superintends the director and has the power to give him directions, although in modern times none has ever been given, if any has ever been given. The Bill proposes that the Director of Public Prosecutions shall be independent. I believe that to be right.
    Given the highly charged atmosphere of Northern Ireland— to use a well-chosen word that appears in the review—it is important that this enormously invasive prosecution arm of the state should be exercised in Northern Ireland by an official who is entirely independent. That is a departure from the current system in England and Wales and in Northern Ireland.
    Running a prosecution service will be a very substantial task. The director currently has about 40 lawyers in his department, but I understand that he
    CWH 94
    will probably need about 140 or 150 to take over all the prosecutions that are currently run by the police. It would be nearly impossible for the Attorney-General for Northern Ireland to combine the function of running that, as the amendment proposes, with his other extremely important functions. The Attorney-General is the guardian of the public interest in Northern Ireland and I trust that he will remain so. As in England, it is high among his responsibilities to make sure that the Government stay within the law. In modern times, there have been a number of instances in which the Attorney-General has been obliged to insist upon this. That is incompatible with being the executive head of a substantial prosecuting service.
    While respecting any attempts to reduce the number of people on the public payroll, I respectfully suggest that this proposal is practically impossible to operate and would strike seriously at the important and delicate role that the Attorney-General in our system of government exercises.
    Lord Brooke of Sutton Mandeville: I am not a lawyer. I shall not say that again during the course of this Grand Committee.
    Lord Mayhew of Twysden: And do not say, "Thank God" either.
    Lord Brooke of Sutton Mandeville: My noble and learned friend knows that on the previous occasion when I said that in the Chamber, I did not say "Thank God". However, everything I say at any stage in the Grand Committee must come with that health warning. I do not have the advantage of my noble and learned friend, not only in terms of the offices he has held, but also in terms of his legal practice. However. the delicate operation that has to be set up in Northern Ireland is a sophisticated construction. Speaking as a bystander and from some distance, I admire it. For that delicacy and I hope that the Liberal Democrats will not feel it necessary to press this point, because the balance that has been achieved is a very good one.
    Lord Goldsmith: Before the noble Lord, Lord Smith, replies, I would like to make one very small observation, which has no effect on the amendment. The noble and learned Lord, Lord Mayhew, commented on the power of the Attorney-General in England and Wales to direct the Director of Public Prosecutors here. I ought to put on record that l do not entirely agree with his assessment of that. I have in mind statements made in another place by Sir Michael Havers—when I think that the noble and learned Lord might have been Solicitor-General—and the subsequent statements of the position in another place and also in the Glidewell review. That does not affect the very powerful points that he made, but it is right that I note that point of disagreement, lest in some other debate about England and Wales, it became relevant to consider it.
    Lord Smith of Clifton: It was with some trepidation that I listened to three QCs. I knew I was not going to win to their satisfaction.

    CWH 95
    This humble juror does not find the case entirely proven, because, as my noble friend Lord Shutt of Greetland reminded me, the Belfast agreement was to create a fresh start. That means that we might have had a bit of lateral thinking, not the same old panoply that England and Wales are left with. Of course, we do not expect lawyers ever to have lateral thinking when it comes to their own emoluments. They should declare interests. I may well press this on Report, but at the moment I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 124 and 125 not moved.]
    6.30 p.m.
    Lord Williams of Mostynmoved Amendment No. 126:
    Page 17, line 37, at end insert—
    "( ) The Service is to be funded by the Secretary of State."
    The noble and learned Lord said: This is a technical amendment. It makes it clear on the face of the Bill that the Secretary of State for Northern Ireland will be responsible for the funding of the prosecution service prior to devolution of justice functions. At the time of devolution, this provision will he amended to put the responsibility for funding on to the devolved administration.
    Concerns were expressed in the House of Commons that the Bill was not clear enough. This amendment is to provide that clarity. I beg to move.
    On Question, amendment agreed to.
    [Amendments Nos. 127 to 131 not moved.]
    Clause 29, as amended, agreed to.
    Clause 30 agreed to.
    Clause 31 [Conchal of prosecutions]:
    [Amendments Nos. 133 to 138 not moved.]
    Lord Williams of Mostynmoved Amendment No. 139:
    Page 19, line 37, at end insert "or section 57 of the Civil Aviation Act 1982 (c. 16)"
    The noble and learned Lord said: The amendment expands the existing definition of police force to include special constables appointed under Section 57 of the Civil Aviation Act 1982. The Director of Public Prosecutions will be required to take over proceedings instituted by the police forces defined in this clause. I beg to move.
    On Question, amendment agreed to.
    Clause 31, as amended, agreed to.
    Clause 32 [Discontinuance of proceedings before court appearance]:
    [Amendments Nos. 140 and 141 not moved.]
    Lord Glentoranmoved Amendment No. 142:
    Page 20, line 3, at end insert "and
    ( ) the victim or victims of the offence or, in the event of their being deceased or mentally incapacitated, their next of kin"
    CWH 96
    The noble Lord said: This group of amendments concerns victim's rights and information flow associated with that during a possible prosecution process. This is a very important amendment because it goes to the heart of victims' rights and the information that they may receive during the prosecution process.
    The first amendment is designed to place a duty on the Director of Public Prosecutions when he decides to discontinue a prosecution to inform not only the person being prosecuted in the court, or by the court, but also the victim.
    I accept that Amendment No. 143 may be a little more sensitive. It would qualify that by stipulating that the director must judge whether supplying the victim with the reasons for the discontinuance of the prosecution is against the interests of justice and the public interests generally.
    The new clauses in Amendment Nos. 239 and 240 give these issues the prominence that we feel is entirely appropriate.
    These amendments attempt to adhere to recommendation 49 in the review. For once it is our side that is coming in for the attack using the review. Paragraph 4.167 of the review states,
    "where information is sought by someone with a proper and legitimate interest in a case on why there was no prosecution, or on why a prosecution has been abandoned, the prosecutor should seek to give as full an explanation as is possible without prejudicing the interests of justice or the public interest".
    I beg to move.
    Lord Mayhew of Twysden: I want to comment briefly on Amendment No. 143. The reference by my noble friend Lord Glentoran to recommendation 49 was helpful. I do not read that as recommending that there shall be legislation in the form in which we have it.
    One has to be very careful in imposing an obligation, even in general terms, to give reasons why a prosecution has been discontinued. There is a very practical and serious risk that damage will be done to the reputation of other people which they will not have any means of redressing. It is very difficult to explain why, in respecting the importance of not doing that, a prosecution has been discontinued. It may be because there are many practical impediments and one can then leave the impression very strongly in the public mind that whoever one was going to prosecute is as guilty as sin, and he or she would have no means of securing redress from that. That is the danger here and it may be better that that should be done through some administrative direction rather than by legislative requirement.
    Lord Goldsmith: The interests of victims are enormously important in the criminal justice system. That is something that the Government entirely accept. In Clause 67, there is already an important series of provisions relating to the giving of information on the release of offenders. There has been a substantial increase in funding for victim support in Northern Ireland to help with the funding

    CWH 97
    of victims' groups because, again, the interests of victims are extremely important. It is no different in England and Wales where there is a much greater concern to ensure that victims are protected properly throughout the criminal justice system.
    I do not in any way dissent from the underlying point that the interests of victims must be properly taken into account. However, both amendments that were spoken to by the noble Lord, Lord Glentoran, are inappropriate for legislation and certainly for legislation in this form. Let me take the first of those proposals, which involves the provision of information to victims on the progress of their case, if I can put it that way. It is not quite technically their case, but it is very easy to understand why it is so regarded. It is absolutely right that in the past we all too often forgot the interest of the victim and treated the victim simply as a witness to a crime and not someone who was fundamentally and in a very direct and personal sense involved in what should take place.
    The review group was conscious of that and made a number of recommendations with that in mind. However. to deal with that matter in legislation is not the right way to approach it. It is a complex matter. The review group was clear, as has been said—recommendation 238, to which reference has been made. states that the provision of information to victims about the progress of a case should be,
    "a matter for the professional judgement of the prosecutor".
    That is important. In a moment I will come to the question of the giving of reasons.
    The clause would give the prosecutor no room in which to exercise that judgment if it was amended in the way in which the noble Lord seeks. It does not include, for example, the safeguards that Clause 67 includes when giving information about the release of an offender, to have regard to the potential issues relating to the safety of the victim or any other person. I can. however, tell the noble Lord this, and hope he will be comforted by it: that work is being taken forward by the prosecution service's implementation team, in consultation with the police—that is obviously important—in order to determine the precise point at which responsibility for liaising with victims will pass from the police to the prosecutor. As part of that work, they are considering the circumstances in which consultation with victims will be held, what can properly be discussed with victims and what information can be provided. I can further tell the noble Lord that when that work is completed, the details will be set out in the prosecution service's code of practice. I have been very involved in the work that has been done in England and Wales on implementing precisely that approach. I hope that the noble Lord will be comforted by that.
    I turn to the question of the duty proposed to give reasons. It is, as the noble and learned Lord, Lord Mayhew, said, with his very great experience, a very difficult and complex matter. The Government policy in this area has been set out in some detail in the criminal justice review. One has to balance the interests of the victim against other interests, such as those of
    CWH 98
    witnesses and the potential damage to the reputation or some other injustice to an individual. The noble and learned Lord gave one extremely good example of that: there may be a purely technical reason for not prosecuting. That may be the reason why the prosecutor cannot continue. To say, however, that that is the reason why the prosecution is not continuing carries with it a very clear message that in the belief of the prosecutor the suspect is guilty. Members of the Committee will see that the accused can effectively be convicted in the public eye without ever having had a trial to clear his name. It would be very easy to interpret that as if the accused were actually guilty.
    I will offer another example: the reason why the prosecutor may not wish to continue, or believe it not to be right to continue, is because of a concern as to the credibility of a key witness— perhaps the complainant or the victim. The reason why the prosecutor may believe that the testimony will not stand up in court might be very personal to that person; it may be a very proper decision to take—that does happen. However, to put the prosecutor—the director—under a statutory duty to disclose the reasons, which could result in disclosing that very personal reason why the credibility of that key witness is not sustainable, could give rise to serious injustice to that individual.
    The end result—it is the present position in Northern Ireland—is that the director recognises that the propriety of applying a general practice of balancing very carefully what are the reasons in favour and the reasons against giving reasons in more than general terms. The director currently accepts—I have discussed this matter with him on a number of occasions—that he has to consider the applicability of considerations that militate against providing detailed reasons, together with any other considerations which seem to him material to the particular facts and circumstances of the case in question. Where a proper balance can be struck, the director will endeavour to give reasons for non-prosecution. That position is not dissimilar—it is broadly similar—though not identical, to that in England and Wales and in the Republic of Ireland. I have no doubt that it will continue to evolve in accordance with review, legal advice and developments in the law. On 1st March, I provided in answer to a Parliamentary Question a statement about the policy of giving reasons in particular categories of case.
    The position is complex. I entirely agree that it is legitimate and important to consider the interests of victims, but it would be, as the noble Lord, Lord Glentoran, generously accepted, a sensitive area in which to impose a statutory duty. It might give rise to more cases of judicial review of whether there was, in the particular circumstances, a duty to give reasons.
    I hope that the noble Lord will see in those answers a response that is sympathetic to the underlying concern but which puts forward a good and important justification for not putting such complex, sensitive and difficult matters into the form of a rather bald statutory duty.
    6.45 p.m.
    Baroness Park of Monmouth: I do not, in any way, dispute what the noble and learned Lord said, but, for information, I ask him what the position would be if the reason for discontinuing the prosecution was that the public prosecutor and the police knew that threats had been made that made it impossible to take the matter further. Is there any provision for that to be noted and recorded, if it does not put the life of the victim at risk?
    Lord Goldsmith: The noble Baroness, Lady Park of Monmouth, has given another example of a case in which it may be difficult to give reasons. It arises not infrequently that the reason why a prosecution cannot continue is that the life of an important witness—perhaps an intelligence source or an informant—might be put at risk by proceeding. It would be a dangerous step in those circumstances to announce that the reason why we do not want to prosecute is that we are frightened that, if we do, it will become apparent that so-and-so is a police informant. That is another good example of a case in which it would not be appropriate to give reasons. It would be difficult to impose a duty to do so.
    Lord Glentoran: I thank the noble and learned Lord for that careful and cautiously judged response to the amendment. I am delighted with almost all of what he said and with the fact that the Government take the matter so seriously. It is good that—after a lot of work and consultation—there is a proposal to put something into a code of practice. Overall, I have found the Government's answer satisfactory.
    I would, however, give one rather obvious word of warning. Northern Ireland is such a small place that rumour abounds in every direction. Little happens without somebody knowing why it has happened. As part of my consultation input, I say to the noble and learned Lord that, on most occasions, it would be better to communicate than not to communicate, because the chances are that, otherwise, the evil vine will do it for us and will do it maliciously. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 143 and 144 not moved.]
    Clause 32 agreed to.
    Clause 33 [Consents to prosecutions]:
    [Amendments Nos. 145 to 147 not moved.]
    Clause 33 agreed to.
    Clause 34 [Police complaints]:
    [Amendment No. 148 not moved.]
    Lord Williams of Mostynmoved Amendment No. 149:
    Page 21, line 10, leave out "Authority" and insert "Board"
    The noble and learned Lord said: In moving Amendment No. 149, I shall speak also to Amendment No. 151. They are technical amendments, changing references to the Police (Northern Ireland) Act 1998. When the Policing Board was established and the
    CWH 100
    Police Authority dissolved, references to the Police Authority were changed to refer to the Policing Board. The amendments reflect those changes. I beg to move.
    On Question, amendment agreed to.
    [Amendment No. 150 not moved.]
    Lord Williams of Mostynmoved Amendment No. 151
    Page 21, line 12, leave out "Authority" and insert "Board"
    On Question, amendment agreed to.
    [Amendment No. 152 not moved.]
    Clause 34, as amended, agreed to.
    Clause 35 [Information for Director]:
    [Amendments Nos. 153 to 159 not moved.]
    Lord Glentoranmoved Amendment No. 160
    Page 21, line 42, at end insert—
    "( ) Where the Director is not satisfied with the information provided to him by the police he may refer the case to the police ombudsman for the investigation."
    The noble Lord said: This amendment again concerns relationships. In the past I have been critical of the ombudsman. That was not because I was against having a police ombudsman; quite the reverse. I was critical of the way the duties were being carried out in that department in the early stages. I should make that quite clear.
    The amendment would give the Director of Public Prosecutions power to invite the police ombudsman to conduct an investigation of the police. Clearly there must be some passage of information from the police to the director in order for him to be able to put together a prosecution. The Director of Public Prosecutions may not be satisfied that he is getting the necessary information from the police. Should the Director of Public Prosecutions have some form of power at his disposal to be able to ferret out such information if he is not receiving it?
    Although it is essential that the relationship between the police and the Director of Public Prosecutions works well, circumstances could arise where it might not. This is in no sense an anti-police measure. It seeks simply to give the Director of Public Prosecutions the opportunity to have some investigatory force to pursue information, should circumstances require it. In other words, if the Director of Public Prosecutions, in the pursuit of evidence when putting together a case, feels that he is getting less than co-operation from the police force or a section of it, he can appeal to the police ombudsman. Obviously it would then be for her and her department to decide whether to have any input. I beg to move.
    Lord Maginnis of Drumglass: For the first time this evening I find myself in disagreement with the noble Lord, Lord Glentoran. If he had had my experience of the police ombudsman, he might consider that she has too much power already. I am not in a position to suggest an alternative, but I should have thought that within the judicial process itself, within the powers of the Director of Public Prosecutions, there would be sufficient clout to deal with a situation where a police

    CWH 101
    officer was not properly co-operating. To enshrine in legislation further powers for the police ombudsman would be a mistake.
    I conclude by saying that my objection to this springs from a practical point of view; that is, from a knowledge of how that department has grown to an inordinate extent. I want to guard against any further powers or responsibilities being devolved to that organisation.
    Lord Goldsmith: Perhaps I may say that I agree entirely with the underlying sentiment expressed in the contribution of the noble Lord, Lord Maginnis. One would hope that the sort of situation to which the noble Lord, Lord Glentoran, refers would arise only very rarely. The mature and responsible prosecution service and police service would not find themselves in a situation in which difficulties were not resolved. I entirely agree with that well founded hope.
    I draw attention to Clause 34(4), which is one of those provisions, because it amends the Police (Northern Ireland) Act 2000. Its purpose may not be immediately apparent, but it adds the director to those people who may refer matters to the police ombudsman. The power to make a reference of the sort of matters to which the noble Lord, Lord Glentoran refers, exists already under the Bill without the need for the additional clause. However, I emphasise that I share the hope that the sort of circumstance he has in mind will be extremely rare and that, as the noble Lord, Lord Maginnis, says, matters should be resolved without ever needing to reach that stage.
    I hope the noble Lord will feel reassured by what I have said about the provision in the Bill.
    Lord Glentoran: I thank the noble and learned Lord for pointing out Clause 34 to me—I admit that I had not fully understood the implication of that. I also share his hopes that that sort of situation will never arise—although it is bound to, occasionally. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 35 agreed to.
    Clause 36 [Exercise of functions by and on behalf of Service]:
    [Amendments Nos. 161 to 163 not moved.]
    Clause 36 agreed to.
    Clause 37 [Code for Prosecutors]:
    [Amendments Nos. 164 to 168 not moved.]
    Clause 37 agreed to.
    Clause 38 [Reports by Director]:
    [Amendments Nos. 169 to 171 not moved.]
    Lord Desaimoved Amendment No. 172:
    Page 23, line 13, at end insert—
    "( ) The annual report must contain details on the community background. gender and ethnicity of those persons against whom proceedings have been taken by the Chief Prosecutor for Northern Ireland."
    CWH 102
    The noble Lord said: This is a very straightforward amendment. We are interested in transparency and openness. The amendment says simply that the report that is to be published by the director should contain details about the community background, gender and ethnicity of people. That is necessary because suspicions and fears will arise otherwise that one or other community is not getting its full due of justice. Therefore, more openness and more information will lead to greater accountability, which is what we want. I beg to move.
    Lord Laird: As I explained earlier, I have a high regard for the noble Lord, Lord Desai—where he is coming from and where he trying to get to. However, the amendment is political correctness gone mad and we cannot support it. It would lead to league tables and the need to boost some particular gender, ethnicity or community background. I am not sure where this would stop. Would it go on to sexual orientation and so on?
    Baroness O'Cathain: Could someone tell me what ethnicity means? What is the ethnic background of a nationalist or someone from the Republic of Ireland who is married to a Unionist? I ask that for personal reasons.
    Lord Rogan: Amber.
    Baroness O'Cathain: Amber, thank you.
    Lord Hylton: I have one or two doubts about how such an amendment would work in practice. It occurs to me that, from year to year, there might be considerable swings in the direction of one community group, gender, or ethnicity. From those swings, the public might draw very incorrect conclusions.
    Lord Desai: I always thought that ethnicity was part of the character of a person, an individual. regardless of who he or she was married to. However, Members of the Committee will be aware that a great deal of debate in Northern Ireland concerns one part of the community feeling that somehow they are not getting proper justice from the system. The circumstances should be more open and information should be gathered. That is what we would do in England. Wales or Scotland. It is not mysterious or something that I would seek to impose, as it were.
    More information is good. Furthermore there is a provision in subsection (4) of the clause which would allow the Attorney-General to prevent publication of parts of the report if he felt that such publication would be against public interest. Any potential difficulties are provided for. I am not saying that this is likely to inflame passions. However, surely that community, if it is going to stay together, needs more information. No doubt there will be swings arid roundabouts, but I think more information is always helpful.
    Baroness O'Cathain: Perhaps I may point out to the noble Lord, Lord Desai, that both parts of the

    CWH 103
    community in Northern Ireland feel they are not getting justice. That feeling is not restricted to one part of the community.
    Lord Desai: I agree absolutely with the noble Baroness.
    Lord Goldsmith: This debate has highlighted some of the difficulties in the rather stark proposal put forward by my noble friend Lord Desai. What the review recommended—this was accepted by the Government—was that a strategy for what is described as "equity monitoring" should be developed and implemented in the criminal justice system. In other words, the review sought to be satisfied—I cite the language used in the report, not my own—that people would consider that the justice system was treating equitably and in a proper fashion different members of the community. The results of such monitoring emanating from the strategy should then be published. That was the recommendation of the review and the Government accepted it.
    However, I would suggest to my noble friend, Lord Desai, that it is not a simple matter of one criminal justice agency publishing some statistics about what it itself has done. The Criminal Justice Board, comprising the heads of the six organisations which make up the criminal justice system in Northern Ireland, is currently considering how equity monitoring could operate in practice. For the reasons given by noble Lords such as the noble Lord, Lord Laird; namely, that it is a complex task, it is important that the process should not compromise the independence of the judiciary; it should not compromise the independence of the prosecution; and it should have regard to individuals' rights to privacy.
    The amendment, if passed, would have two effects. First, it would pre-judge the results of the work. However, that work may result in a scheme which my noble friend Lord Desai might find entirely satisfactory, innovative and practical. Secondly, to impose this obligation on a single agency and require it to produce a single set of statistics in its annual report would go against the trend of having a joined-up criminal justice system. For those reasons, the Government could not accept this amendment. I hope that, on reconsideration, my noble friend will see the force of the points that I have made.
    Lord Desai: I am grateful to my noble and learned friend for his detailed reply. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clauses 38 and 39 agreed to.
    Clause 40 agreed to.
    CWH 104
    Clause 41 [Independence of Director]:
    Lord Desaimoved Amendment No. 173:
    Page 24, line 5, at end insert "and the Northern Ireland Human Rights Commission"
    The noble Lord said: In view of our previous debates, I will simply say that the amendment is straightforward and makes a great deal of sense. I beg to move.
    Lord Laird: It will not surprise anyone to hear me say that we will not be supporting the amendment. I take the opportunity to say that it is not that I have a bee in my bonnet about the Northern Ireland Human Rights Commission. Nothing would suit me more than to be totally in support of the Northern Ireland Human Rights Commission. However, its record to date is extremely bad and it does not represent the entire community. That issue has to be addressed at some stage. It would certainly be appropriate to refer to the Northern Ireland Human Rights Commission in a clause dealing with independence.
    Lord Goldsmith: My noble friend Lord Desai moved the amendment with considerable brevity. I will respond with similar brevity. We would suggest that there is no reason to put the Northern Ireland Human Rights Commission into a special position in relation to consultation on the best code of practice. It is right that the two law officers, the attorney and the advocate, should be specifically consulted because they have specific responsibilities, including, as my noble friend noted, the ability to exclude certain matters from an annual report. It makes sense for them to be consulted.
    No doubt, in drawing up the code of practice, many others will be consulted. The Bar Council and the Law Society come to mind—the views of those two bodies on the code of practice will be particularly important. I suggest that there is no reason why the Northern Ireland Human Rights Commission should be put into a specially privileged position. I have little doubt that its views will be taken into account. That is not the same as imposing a particular statutory duty to consult.
    Lord Desai: I thank my noble and learned friend. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 41 agreed to.
    Clause 42 agreed to.
    Lord Desaimoved Amendment No. 174:
    After Clause 42, insert the following new clause—
    "EQUALITY OF OPPORTUNITY
    (1) The Northern Ireland Act 1998 (c. 47) shall be amended as follows.
    (2) In section 75(3) after paragraph (c) insert—
    "(ca) The Public Prosecution Service for Northern Ireland, the Chief Prosecutor, the Advocate General and the Attorney General.""
    The noble Lord said: Again, this is a straightforward amendment which puts the obligation of pursuing equality of opportunity on the Public

    CWH 105
    Prosecution Service. Again, it is straightforward because we would like such good things to be pursued by the Public Prosecution Service. I beg to move.
    Lord Mayhew of Twysden: I ask the noble Lord, Lord Desai, to expand a little on the consequences of his proposal. We are all supporters of encouraging equality of opportunity in any areas in which it is possible to influence that by legislation.
    Am I right in thinking that this will give the director the duty to promote equality of opportunity, and that there is a possibility of carry-over into prosecution policy? In other words, it is not possible simply to promote equality of opportunity within his own staff. May he not find himself under some obligation to take into account equality considerations when determining prosecution policy? Is that an unrealistic possibility to raise? If so, I should be glad to hear it.
    Lord Desai: Not being a lawyer, I would guess that that would not be the implication of this amendment. It does not say that he has to deal with an equal number of cases on gender and ethnicity when he comes to prosecute. In the prosecution service as it is built up, equality of opportunity should be one of the goals in the quality of services.
    Lord Goldsmith: What has just passed between the noble and learned Lord and my noble friend shows some of the difficulties with the amendment. I entirely agree with the noble and learned Lord that we are all committed to equality of opportunity. I know that my noble friend will accept that the Government are committed to that. However, some thinking needs to be done about the practical implications of imposing this duty in this form on a prosecuting service.
    We have the opportunity to add bodies under the Northern Ireland Act 1998 without the need for primary legislation, because that is provided in any event under the Northern Ireland Act. Another body or person can be designated by order made by the Secretary of State. It is possible to continue to consider this question and that will be done.
    To take one example, in the broad range of categories referred to in Section 75, age is one of the equality of opportunity considerations. Sadly, statistics show that the majority of offences are committed by young men. One has to consider carefully whether imposing a duty might somehow affect that. The important point is that the Northern Ireland Act contains the ability to add a body. The Government want to keep under review the list of bodies designated under Section 75. The prosecuting authorities obviously need to be considered as well.
    Lord Desai: I thank my noble and learned friend for that explanation. I am not seeking a quota system on how many people are prosecuted. However, in building up a prosecution service, there are issues of equality of opportunity to be pursued. Since he assures me that that can be done through another device, I am happy to beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    CWH 106
    Clause 43 [Interpretation]:
    [Amendment No. 175 not moved]
    Clause 43 agreed to.
    Clause 44 agreed to.
    Schedule 8 agreed to.
    Clause 45 [Functions of Chief Inspector]:
    [Amendment No. 175A not moved]
    Lord Glentoranmoved Amendment No. 176:
    Page 26, line 30, at end insert ", and
    ( ) the police ombudsman for Northern Ireland"
    The noble Lord said: The amendment is to do with those organisations coming under the remit of the powers of the chief inspector of criminal justice. It is a probing amendment at this stage. Clause 45 lists a whole number of people who should come under the jurisdiction of the chief inspector of criminal justice. We feel that that list is incomplete. My two amendments would add a few more names to it. However, I do not think that that is the right way to go about dealing with this situation. My purpose is to ask the noble and learned Lord to come hack on Report with a rather better and more comprehensive phrasing of the clause. It would be preferable if the Government did so, but if they will not, we shall come back with an amendment. Perhaps we could discuss the issue with the noble and learned Lord outside the Committee. I beg to move.
    7.15 p.m.
    Lord Williams of Mostyn: I know that several amendments are grouped here, but they are all based on the theme that the noble Lord, Lord Glentoran, explained so tactfully. It might be helpful if I gave my response to all noble Lords. The point that they make is common, although the bodies that they wish to have included are different. If that is of assistance to the Committee, I shall say one or two helpful words.
    Since the review was published, there has been general agreement that the organisations that were specified by the noble Lord, Lord Glentoran, should be inspected. However, I readily appreciate that there were suggestions that the list should be expanded. Even the organisations in the amendments—there are quite a few of them—are not wholly exhaustive of organisations with some involvement in the criminal justice system.
    Because of the concerns raised by your Lordships informally and some questions raised in the House of Commons, a review of a list of organisations that it might be appropriate to subject to inspection by the inspectorate is being undertaken by my colleague, Mr Des Browne. He has written to a wide range of organisations, including those identified in this group of amendments. Several of those organisations have asked for extra time to make their submissions as to whether they ought to be included. That is a reasonable thing to do. It is important and fair that organisations that might be proposed for inclusion should, at least, have the opportunity to make their views known.

    CWH 107
    The presently designated organisations have had plenty of notice. I hope that I am being helpful in inviting noble Lords to withdraw their amendments, on the specific understanding that the list of organisations is being reviewed and consultations with a view to adding to the list are continuing. Certainly, I am more than happy to meet any of your Lordships to give a progress report. I cannot, at this stage, promise that the list will be definitively concluded on Report, but I can say that the process is being taken forward.
    Lord Rogan: I welcome what the noble and learned Lord, Lord Williams of Mostyn, has said. I am certainly prepared not to press my amendment, but, before I do so, I want to amend an amendment. "Consignia" should now read "Royal Mail plc". I thank the noble and learned Lord for his comments.
    Lord Glentoran: I thank the noble and learned Lord for his response and I beg leave to withdraw.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 177, 177A, 177B and 177C not moved.]
    Clause 45 agreed to.
    Clause 46 [Further provisions about functions]:
    Lord Smith of Cliftonmoved Amendment No. 178:
    Page 27, line 13, at end insert—
    "( ) In carrying Out inspections, the Chief Inspector shall measure an organisation's compliance with the aims of the criminal justice system and with internationally accepted human rights standards."
    The noble Lord said: We believe that the inspector's criteria should allow for measurement against benchmarks that recognise the aims of the system and the core importance of human rights. Such a modus operandi would contribute to the development of a human rights culture in Northern Ireland, which we support. I beg to move.
    Lord Monson: I wonder whether there are any such things as internationally recognised human rights standards. Even if we confine ourselves to democracies, standards vary to some degree. For example, Greece, Israel and the United States all have human rights standards that are rather different from ours, as recent events demonstrated. Subjectively, we each believe that our standards are the right ones; objectively, who can be certain who is right?
    Lord Williams of Mostyn: The noble Lord, Lord Monson, has a point there. This is aspirational, rather than workable, if I may respectfully say so. I do not dissent from the noble Lord's purpose, but I do not believe that it is a workable requirement. I pray in aid, not for the last time, the pithy words of the noble Baroness, Lady Park of Monmouth, upon which I cannot improve. It is for the chief inspector to carry out his work appropriately, using operational standards which would of course be required to be compliant with human rights obligations.
    CWH 108
    I do not believe that the amendments are workable for another reason. I do not believe that an inspector can be directed in statute to carry out every inspection, whatever its nature, quality and extent, to be measured against the standards proposed. I sympathise with the thought behind the amendments, but I believe they are neither workable nor desirable.
    Lord Smith of Clifton: I thank the Minister for that explanation and I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 178A not moved.]
    Clauses 46 agreed to.
    Clause 47 agreed to.
    Clause 48 [Reports]:
    [Amendment No. 178B not moved.]
    Clause 48 agreed to.
    Clause 49 [Law Commission]:
    Lord Maginnis of Drumglassmoved Amendment No. 178C:
    Page 28, line 35, at end insert "either in Northern Ireland, England and Wales or Scotland"
    The noble Lord said: The amendment pertains to the composition of the Law Commission. It would widen the base from which the Law Commission may draw on High Court judges to include judges from Scotland, England and Wales.
    I accept that a judge from the High Court in Scotland may well not be the proper equivalent. I am not a lawyer and I am not certain of the detail. Somebody has told me that the Scottish equivalent should be a Principal High Sheriff. However, the principle should be articulated.
    The Deputy Chairman of Committees (Viscount Allenby of Megiddo): I am sorry to interrupt the noble Lord, but a Division has been called and the Committee stands adjourned for 10 minutes.
    Lord Glentoran: May I suggest that we do not reconvene?
    Lord Williams of Mostyn: We have very little to finish on Part 3. We have only a couple of brief amendments to deal with and my answers will he short. I think that we can easily finish Part 3 this evening.
    Baroness O'Cathain: Between now and the Division?
    Lord Williams of Mostyn: No.
    [The Sitting was suspended for a Division in the House from 7.22 to 7.32 p.m]
    Lord Maginnis of Drumglass: I was about to point out—this has previously been stated—that there are seven High Court judges in Northern Ireland. One judge will have obligations in respect of the Judicial Appointments Commission; that leaves remarkably few, considering the other duties that will have to be undertaken by High Court judges, to act as chairmen.

    CWH 109
    In contrast, it appears that, with more than 100 High Court judges in England and Wales and in view of the number in Scotland, we should expand the choice. It is not as though there are any duties specific to Northern Ireland to be carried out. In Clause 50(1) there is a list of the duties of the commission. They are general duties for which judges from any of the four jurisdictions would be well fitted. I beg to move.
    Lord Williams of Mostyn: I think that this work is a Northern Ireland-specific task. The statute books are similar but everyone in this Room knows, because of the legislation and the different orders we have ourselves put forward, there are differences in law and practice. The noble Lord, Lord Maginnis, rightly said that the whole of the legal system in Scotland is completely different. We want one of the eight High Court judges in Northern Ireland to carry out this work on the basis of experience, legislation, orders, subordinate legislation and practice, which differs. It is intended that it should he a part-time position; for the rest of the year the designated Northern Ireland High Court judge will sit as a High Court judge and carry out his usual duties. I hope that that explanation satisfies the noble Lord. I ask him to withdraw the amendment.
    Lord Maginnis of Drumglass: I am grateful. I beg leave to withdraw the amendment.
    Amendment. by leave, withdrawn.
    Lord Maginnis of Drumglassmoved Amendment No. 178D:
    Page 29, line 4. leave out from "who" to end of line 6 and insert "may hold or have held judicial office or may be a solicitor or barrister or teacher of law at a university"
    The noble Lord said: This is a probing amendment. On the four other commissioners, the conditions in paragraphs(a), (b) and (c) of Clause 49(4) are specific and positive. Subsection (4)(d) is prescriptive and specifically precludes a person,
    "who does not hold (and has never held) judicial office and is not (and has never been) a barrister, solicitor or teacher of law in a university".
    I believe that I am right in suggesting that that arrangement will be peculiar to Northern Ireland and that there is no lay member of the Law Commission in England and Wales. To preclude someone because of a position that he may have held is probably not very wise. There is nothing in the amendment that would dictate what the person may be; in contrast to the Bill, the fourth member of the Law Commission may in fact be someone who can bring the benefit of legal experience to the commission. I beg to move.
    Lord Williams of Mostyn: I am so very pleased that the noble Baroness, Lady O'Cathain, is here for this historic moment, which I ant about to relish! I am going to read out the names that will live in infamy: the noble Lords, Lord Rogan, Lord Maginnis of Drumglass, Lord Laird and Lord Kilclooney. All of them put their names to the amendment, which could be described as the lawyers' trade union amendment. The point of this proscription of those dreadful people
    CWH 110
    who might be qualified lawyers is to make absolutely certain that there should be one lay member— unsullied, untainted and unpolluted—to sit on the commission.
    Lord Smith of Clifton: Given the battering that I have received from legal representatives in the Committee this afternoon, I acknowledge the force of the argument of the noble and learned Lord. 'There is a case, occasionally, for a lay person to have a look at legal matters.
    Lord Maginnis of Drumglass: I hear the determined tone in the voice of the noble and learned Lord the Lord Privy Seal. I am happy to withdraw the amendment. I know when I am beaten.
    Amendment, by leave, withdrawn.
    Clause 49 agreed to.
    Schedule 9 agreed to.
    Clause 50 [Duties of Commission]:
    Lord Smith of Cliftonmoved Amendment No. 179:
    Page 29, line 26, at end insert "and consult as widely as possible on such proposals"
    The noble Lord said: The review recommended in Recommendation 245 that the proposed Northern Ireland Law Commission should be able to commission research and that it should consult as widely as possible on proposals for reform. We believe that consultation is important in making changes so that public confidence in the system is enhanced. Before we hear the ritual incantation from the Minister that of course all reasonable people will consult as widely as possible, I believe that, on this occasion, that there is some point in putting it on the face of the Bill to ensure that they do consult. The question of law revision is something that should not be simply the preserve of the Law Commission itself.
    I should be happy to withdraw the amendment if the Lord Privy Seal was willing to Meant once more and tell us that, in short, the commission will consult as widely as possible. I beg to move.
    Lord Maginnis of Drumglass: I wish to speak briefly to Amendment No. 179A. What I have to say is in line with some of the points I made earlier this afternoon. I have some reservations and know the suspicion that will derive from Clause 50(4)(c), where the Law Reform Commission of the Republic of Ireland is specifically named.
    I do not set about preventing a proper consultation from taking place but, given that we are members—for better or for worse—of, for example, the European Union, it would be preferable to specify that:
    "In performing its duties the Commission may consult any equivalent national law commission".
    Why should we seek to single out in a way that will be totally misunderstood the Law Reform Commission of the Republic of Ireland, and then not include the opportunity to consult with other equivalent national law commissions?

    CWH 111
    I would have thought that this would be an area where the sensitivities would be recognised by the noble and learned Lord the Lord Privy Seal and that he would see the common sense of approaching the matter on a broader base. I beg to move.
    Lord Brooke of Sutton Mandeville: At this late hour I rise to offer as counsel to the noble Lord, Lord Maginnis, the great and eloquent words of the late leader of the Monster Raving Loony Party who, in the 1992 general election, enchanted the whole nation with the main slogan of his party, "Why only one Monopolies Commission?".
    Viscount Bridgeman: I should not like to anticipate the incantation of the Lord Privy Seal. However, we feel that an unspecific requirement to consult, as in Amendment No. 179, is not appropriate for the Bill.
    Lord Williams of Mostyn: I wish that the noble Lord had not made that reference to "Why only one Monopolies Commission?" because there will be an amendment down on Report if we are not careful.
    The incantation is exactly the one that the noble Viscount, Lord Bridgeman, gave. "Consult as widely as possible" on such proposals is in the category of mom and apple pie. It is not capable of being enforced and should not be in statute. However, I take the point made by the noble Lord, Lord Smith of Clifton. Plainly, any responsible body of commissioners will consult as widely as possible.
    Amendment No. 179A relates to recommendation 245. In my experience over many years—I am sure the noble and learned Lord, Lord Mayhew of Twysden,
    CWH 112
    will endorse this—law commissions have never been tainted with political partiality. I see that my noble friend—if I can call him that—Lord Maginnis of Drumglass is smiling quizzically, not to say Delphically, but I know of no example in these commissions that are specified on the face of the Bill in which political partiality has played any part, although there may be differences about the outcome of their deliberations.
    These are obviously common law jurisdictions with history and traditions significantly in common. It is plainly sensible that the Law Commission should consult with the three designated ones.
    I take the wider point made by the noble Lord, Lord Maginnis of Drumglass, that the commission may consult any equivalent national law commission. It has that power and discretion in any event. We ought to leave it in the way that the Bill has been drafted.
    Lord Smith of Clifton: I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 179A not moved.]
    Clause 50 agreed to.
    Clause 51 agreed to.
    Lord Williams of Mostyn: It may be convenient for us to adjourn until Tuesday at 3.30 p.m.
    The Deputy Chairman of Committees: The Committee stands adjourned until Tuesday 18th June at 3.30 p.m.
    The Committee adjourned at thirteen minutes before eight o'clock.