HL Deb 01 May 1972 vol 330 cc626-45

5.42 p.m.

LORD WINDLESHAM rose to move, That the Prosecution of Offences (Northern Ireland) Order 1972, be approved. The noble Lord said: My Lords, before coming on to the content of this Order, I should perhaps explain why it is that the House is being asked to approve the Order on the basis of the urgent procedure which is contained in paragraph 4(1) of the Schedule to the Northern Ireland (Temporary Provisions) Act 1972. Noble Lords who took part in the debates on that measure before Easter may recall that that paragraph reads as follows: Her Majesty shall not be recommended to make an Order in Council under section 1(3) of this Act unless either a draft of the Order has been approved by resolution of each House of Parliament or the Order declares that it has been made to appear to Her Majesty that by reason of urgency the Order requires to be made without a draft having been so approved. Your Lordships will see at the beginning of the Prosecution of Offences (Northern Ireland) Order, which is now before you, the words: Whereas it has been made to appear to Her Majesty that by reason of urgency this Order requires to be made without a draft having been approved by resolution of each House of Parliament.

The Order was made on March 30, and it was forecast in another place by my right honourable friend the Attorney General when he spoke in the course of the debates on the Northern Ireland (Temporary Provisions) Bill. It came into force immediately and it now requires approval by both Houses of Parliament within a period of 40 days. The reason for the urgency was that if the Order had been presented to Parliament for approval before coming into effect in the normal way there would have been no one on the ground in Northern Ireland, for a period of some weeks, with the requisite authority to act for the Attorney General in the matter of prosecutions.

Under the terms of the Northern Ireland (Temporary Provisions) Act, the Attorney General for England and Wales shall for the period of the Act also act as Attorney General for Northern Ireland. This Order therefore enables a Director of Public Prosecutions to be appointed to act in his own right and on his own authority in Northern Ireland, subject to the directions of the Attorney General. In this way decisions regarding prosecutions could continue to be taken quickly, documents could be signed without delay and consents given where those were necessary. Before leaving this point, I should perhaps remind your Lordships that this is still an Affirmative Resolution procedure. It is one of the two alternative procedures which were approved by Parliament for the control of Orders relating to Northern Ireland.

Turning now to the Order itself, noble Lords who were here at Question Time will know from the Question put by the noble and learned Lord, Lord Gardiner, that the new system of public prosecutions in Northern Ireland has its origins in a recommendation of the Hunt Report; that is, the Report of the Advisory Committee on Police in Northern Ireland, Cmd. 535. I should add that the reference to Cmd. 535 applies to Her Majesty's Stationery Office in Belfast. Before going on to quote an extract from the Report, perhaps I should say on behalf of those of your Lordships who are present how good it is to see the noble Lord, Lord Hunt, in his place. We know of the great contribution he has made towards the reorganisation and strengthening of the Police Force in Northern Ireland, and the continuing interest which he takes in their welfare.

Paragraph 142 of the Report to which I have referred reads as follows: It is the practice in Northern Ireland that prosecutions in the lower courts are undertaken by police officers and that the police decide, sometimes after taking legal advice, when prosecutions should be undertaken. While it is the unmistakable duty of the police to make offenders amenable to the law, the impartiality of the police may be questioned if they are responsible for deciding who shall be prosecuted and thereafter for acting in court as prosecutor. This practice can result also in a mistaken impression of the relationship between the courts and the police. We therefore recommend that the Scottish system of independent public prosecutors should be adopted; under this the police are responsible only for the collection of information about offences, all subsequent action with regard to prosecution being undertaken by a solicitor in the public service. In Northern Ireland this might be the Chief Crown Solicitor, but further study than we have been able to give would be needed before the procedure could be precisely settled. Although our principal reason for proposing this change is the improvement of relations with the public, there would be a substantial secondary benefit in that a great deal of the time of District Inspectors and Head Constables is now taken up with court work, and this time could profitably be devoted to the leadership and administration of the police in their districts and to the development of good relations with the community.

The further study which the Committee recommended as to the most appropriate form of procedure for Northern Ireland, took the form of a Working Party chaired by Mr. John MacDermott, Q.C. Mr. MacDermott is the bearer of a famous legal name in this House, as in Northern Ireland. and is himself a recent Chairman of the Bar Council in Northern Ireland. His Working Party reported in April, 1971—the reference is to the Report of the Working Party on Public Prosecutions (Cmd. 554); again, Her Majesty's Stationery Office in Belfast—that an independent department of public prosecutions should be set up which would be responsible for deciding whether or not a prosecution should be brought, and for the handling of prosecutions in all courts of law, such department to be under the control of a Director.


My Lords, has the noble Lord finished the quotation?


No, my Lords, I have not, but I am quite ready to give way to the noble Lord if he would like to intervene at this stage, and then I can answer him either now or at a later stage.


I am sorry; I was not quite clear. Has this document from which the noble Lord is quoting been laid? Is it available to the House?


My Lords, this is the Report of a Working Party commissioned by the Government of Northern Ireland which was presented to the Parliament of Northern Ireland. I have been checking up in the course of the afternoon whether copies are available in this House, and I am afraid to say that, with the exception of a copy which I have made available to the noble and learned Lord, Lord Gardiner, in the course of the afternoon, I find they are not. I shall be discussing, with both the Printed Paper Office and, I think, the Library, what would be the best machinery in the future. We do not want to flood the Printed Paper Office with large stocks of documents which are not going to be asked for, and it may be that something in the Library for reference purposes would be more suitable. But I should like to apologise to the noble Lord if he does not have a copy of this particular publication in front of him.


My Lords, in the circumstances referred to, perhaps the noble Lord could tell us the qualifications of the seven members of the Committee other than Mr. MacDermott.


My Lords, I am afraid I cannot do that without notice. What I should like to do is to continue with my narrative account, having made that apology for the absence of this Report from the Printed Paper Office, where it should certainly have been. It is my fault entirely that I did not think of it in time and arrange for this to be done; but perhaps I could continue, because this is a linked sequence of events. We start with the Report of the noble Lord, Lord Hunt, which is available in the Printed Paper Office and with which noble Lords are familiar. We then come to the further study under Mr. John MacDermott and the recommendations which that Committee made. I will now continue with this sequence of events, because I think it is the most straightforward way to explain it to your Lordships.

A further recommendation of the Working Party was that the system under which police officers act as prosecutors in magistrates' courts should be discontinued except in respect of minor offences. As to the adaptability of the Scottish system, the Committee commented on page 4 as follows: We are satisfied that it would be quite impractical to graft the Scottish system on to our own system of criminal jurisprudence and administration, and we note that nowhere in England or Wales has an effort been made to adopt the Scottish system". My Lords, this Report was accepted by the Government of Northern Ireland, and a Bill implementing its recommendations was in its full stages before the Parliament at Stormont when that Parliament was prorogued. I understand that the Third Reading of the Bill was to have taken place in the Senate on March 28, so it had been right the way through the normal Parliamentary procedures at Stormont but had not obtained the Royal Assent. It is this Bill, therefore, which has now been turned into the Order in Council which your Lordships are considering to-day.

There is only one main difference; that is, that Article 3 provides that so long as the Attorney General for England and Wales also acts as Attorney General for Northern Ireland under the Northern Ireland (Temporary Provisions) Act, he may give directions to the Director of Public Prosecutions. Otherwise, the Director has virtual independence; and considerable security of tenure is envisaged in the method of appointment set out in Article 4(2). After consultation with the Attorney General, the Secretary of State for Northern Ireland has appointed Mr. Barry Shaw, Q.C., as Director of Public Prosecutions, and Mr. Shaw has already taken up his post. Mr. Shaw is a distinguished member of the Bar of Northern Ireland whose ability and integrity are widely respected, and we are fortunate that a man of his calibre is available for a job of this importance.

Article 5 of the Order sets out in some detail the functions of the new Director of Public Prosecutions, and Article 5(1)(c) is perhaps the most crucial part of this Order. It makes it a part of his functions: where he"— that is, the Director— thinks proper to initiate, undertake and carry on, on behalf of the Crown proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him;… Article 6 requires various documents to be delivered to the Director of Public Prosecutions, and gives him a statutory right to call for any other information which he may require from the police. This Article has its counterpart in English law, but the Northern Ireland provision is designed to assure the public in quite explicit terms that nothing can be hidden from the Director.

Article 7 relates to various Statutes which require the consent of the Attorney General to prosecutions for various offences. The first two paragraphs provide that, with certain exceptions, such consent may be given by the Director of Public Prosecutions, but during the period of operation of the Northern Ireland (Temporary Provisions) Act the Director will, by virtue of Article 3 of the Order, be subject in this matter also to the directions of the Attorney General for England and Wales. The remainder of Article 7 makes various amendments of a procedural nature in relation to consents to meet difficulties which have arisen from time to time in the Northern Ireland courts. My Lords, when the Department of Public Prosecutions is set up, it will take over all the criminal work at present carried on, on behalf of the Crown, by the Crown Solicitors in Northern Ireland, and Article 8 of the Order makes provision for compensating the part-time officials for the loss of their office. Article 9 makes a number of consequential amendments to Northern Ireland Statutes; and Article 10 makes a minor amendment of a drafting nature in a Northern Irish Statute dealing with prosecutions against corporations.

My Lords, no one can be complacent about the situation in Northern Ireland at this moment, but we can be hopeful, and we can certainly be confident that the provisions of this Order can do nothing but help in the process of reconciliation to which we have set our hands. I am sure that your Lordships will want to wish every success to the newly-appointed Director and his staff. I beg to move.

Moved, That the Prosecution of Offences (Northern Ireland) Order 1972, be approved.—(Lord Windlesham.)

5.58 p.m.


My Lords, we are all grateful to the noble Lord, Lord Windlesham, for the explanation he has given of this Order, and I support his invitation to your Lordships to approve it. I do so with three brief comments about the background to the Order and one qualified reservation about its contents. This is the first Order that we have had before us since the Northern Ireland (Temporary Provisions) Act, which we passed just before Easter, became law, and it is fairly clear that we are now confronted with an onerous new range of responsibilities. It also seems fairly clear that there will need to be some new machinery if the Houses of Parliament are properly to consider the Orders and the legislation which will emerge from the Office of the new Secretary of State.

My Lords, this is not the occasion to go into detail about this problem, but I think we ought to note it. It would seem that we shall have to differentiate between Orders and legislation which are non-controversial and those which embody matters of principle. It would also seem advisable to consider having a form of Committee from the Floor of this House and the Floor of another place which can scrutinise this legislation. Otherwise, it will clearly become something that may conceivably choke us, parliamentarily speaking. I should have thought (and I imagine that Lord Windlesham would agree with me), that if a Joint Committee of both Houses were possible or is possible, or is something that we can discuss, that would be a good thing, although it is conceivable that Members of the other place might well have different views on this point.

It is a little unfortunate that this Order, the first Order under the new Act, does embody a matter of some importance, a matter of principle, and that it has come to us in a way that is possibly not the most straightforward way if we are to be able to look at these Orders adequately. I quite understand the urgency that there was behind this, and I fully accept the explanations which Lord Windlesham has given; but I think that we can take this as being an example of the way not to do these things. If we are to have Orders before us which are not capable of amendment, then some form of consultation beforehand, and certainly some proper opportunity for careful study, is going to be essential.

I was not here at Question Time. I do not know the answer which the noble Lord gave my noble and learned friend Lord Gardiner. I will leave it to my noble and learned friend to take up the point that has been made about the procedure to be followed in the case of these prosecutions. To me it had seemed that the Order runs contrary to the recommendations of paragraph 42 of the Hunt Report in which, as the noble Lord himself has said, it was quite definitely recommended that the Scottish system of independent public prosecutors should be adopted. I noted what the noble Lord said about there being no alteration as yet in the system applied in the English and Welsh courts; but surely the fact that we have not made progress in England and Wales is no reason why we should institute this less satisfactory system in Northern Ireland. This does not seem to me to be a conclusive argument.


My Lords, I am sorry that the noble Lord was not here when I answered the Question of the noble and learned lord, Lord Gardiner, because in a supplementary question, the noble and learned Lord put exactly that point. What I said in reply was that the principle of the Hunt recommendation had been adopted. The principle was that there should be in Northern Ireland an independent system of public prosecutors, independent of the Government and independent of the police. That is exactly what this Order is doing. The actual form it has taken resulted from the further study given by the Working Party under Mr. MacDermott. The principle behind these recommendations has been accepted by the Government.


My Lords, as I have said, I will leave it to my noble and learned friend to comment on this. All I will say is that it is not apparent from the Order that this is the case. I have no doubt that we shall give this aspect further consideration. So much for the qualified reservation, as I call it, of the content of the Order.

My second general comment concerns the local background to this proposed system of prosecutions. I cannot but reflect on the way justice is being dispensed in certain parts of Ulster at the present time. We in this Chamber considering this Order must find it almost incredible that within Ulster human beings are now being sentenced to be shot in the leg, that women are being sentenced to be tarred and feathered and are being shorn of their hair. To us, in this Chamber, considering the niceties of one form of public prosecution or another, it seems almost impossible to comprehend that human beings in that part of the country should be behaving in the way they apparently are behaving.

My Lords, I cannot but make this additional comment. The last time we discussed Irish affairs I said that among those who ought to be consulted about the future of that part of Ireland were the British people. I have never had such a large postbag as I have had since making that statement, which was to some extent reported in the Press. It is obvious to me, from the expressions of opinion I received, that the majority of British people cannot understand why others, for example, in Londonderry, were being persuaded to remain in the United Kingdom. Their feeling was, "Why should we be concerned with people who behave in this way?" Nevertheless, we have accepted certain duties, and my final comment is that I have absolutely profound admiration for the way in which Mr. Whitelaw has conducted himself in Northern Ireland since he assumed his duties there. My mind went back to the time when Sir Hugh Foot undertook certain responsibilities in Cyprus, when there was a conflict between the two communities there. The very high standard of behaviour set by Sir Hugh Foot in that unhappy case seems to me to have been followed by Mr. Whitelaw. I wish him well, as I do the Attorney General, to whom reference was made by the noble Lord, Lord Windlesham. We can only hope that our efforts in this regard will bear some fruit and that there will be a spread of reason. I agree that we should give this Order our approval.

6.7 p.m.


My Lords, Parliament has said that subordinate legislation of this kind must have the approval of both Houses of Parliament. This is the first House before which this Order has come: it is not, I understand, to be considered by the other House until next week. It seems to me that we should look at it. It has already transpired that a very relevant document is not obtainable in the Printed Paper Office and is not in the Library; so it may be that the Question that I asked earlier this afternoon has in a sense already justified itself.

Before saying anything about the Order, may I make it plain that the last thing I wish to do is in any way to embarrass the Government in relation to Northern Ireland? I have the greatest possible admiration for what is being done by both the Secretary of State and the noble Lord, Lord Windlesham. It seems to me that they have taken a series of wise decisions, and they have my support.

My Lords, we have to look at this Order on the merits. This is a very small island, and we have in this island two entirely different systems of prosecution. In England we have the police, subject to a Director of Public Prosecutions, and in Scotland the Procurator Fiscal. Reading from the document, with which the noble Lord has supplied me, I see that it states: The Procurator Fiscal is central to the Criminal Administration of Scotland because:—

  1. "a. He is responsible for the investigation of all crime in his district from Murder downwards (excepting such minor crimes and offences as are normally tried in the Police and J.P. Courts).
  2. "b. He is responsible for the personal prosecution of crimes and offences tried in the Sheriff Court either on Summary Complaint or on indictment before a Jury.
  3. "c. He is responsible for all preliminary procedure in cases to be tried in the High Court. He must prepare the case for trial in the High Court and assist Crown Counsel at the trial.
  4. "d. He is responsible for the investigation of all sudden unexpected and suspicious deaths."
It seems to me most unlikely that it can be the case that each of two entirely different systems—one in the North of the island and the other in the South—is the better. I should have thought it was obvious, almost without saying, that one or the other would be the better.

I have always been impressed by the fact that while there are not many people who are familiar with both systems, everyone I know who is familiar with both systems thinks the Scottish one is much the better. There is a report to that effect from Justice. And why? Well, my Lords, they give a number of reasons, putting their heads. They say: (a) The honest, zealous and conscientious police officer who has satisfied himself that the suspect is guilty becomes psychologically committed to prosecution and thus to successful prosecution. He wants to prosecute and he wants to win.… (b) The decision to prosecute does not and should not always fall to be determined solely by the likelihood of a conviction. Public policy and individual circumstances are rightly to be taken into account. They say they do not think that ought to be for the police.

The report continues: (c) So far as the committee is aware, the English system is the only one in Europe where the interrogation of suspects, the interviewing of witnesses, the gathering and testing of scientific evidence, the selection of evidence to be laid before the court, the decision as to what charges shall be brought and the conduct of the prosecution may be entirely under the control of the police. (d) The question of whether to prosecute partakes of the nature of a judicial decision.… (e) Once a prosecution is commenced the extent of police involvement—in terms of prestige; fear of public criticism …the possibility of an action for malicious prosecution…may…influence the decision as to whether the prosecution ought to be dropped. … (f) The dominance of the police in the prosecution process exposes them to temptation. … (g) Cases do occur in which pressure is brought on counsel to take a hard line against his better judgment. I was therefore interested, my Lords, when I read in the Report of the Committee of which the noble Lord, Lord Hunt, was the distinguished Chairman that he recommended that in Northern Ireland they should go over to the Scottish system; partly of course on grounds of good relations, or better relations, between the public and the police. I am not very familiar with what happened after that. Of course, the then Government and the Opposition, and I know the Government of Northern Ireland, specifically accepted the Hunt Report.

I did not know, until the noble Lord, Lord Windlesham, kindly supplied me with a copy of its report, that there had been this Working Party. As I understand it, this is entirely a Northern Ireland Working Party; perhaps the noble Lord will tell us when he replies how many of the seven members, apart from Mr. MacDermott arc of Northern Ireland; and whether all, or which of them, are Northern Ireland police. What they say is that they do not think that the Scottish system would be practicable. I am not quite clear why, but they say that, as in England, there should be a Director of Public Prosecutions. They go on to say that the Director should prosecute in the major cases and that the police could go on with the minor ones. Then there is a paragraph about the line between serious and minor cases, and they set out eight different classes of cases which should be regarded as serious and therefore, I assume, cases in which the Director would prosecute.

My Lords, when I read the Order I could not find this anywhere at all. It sets up a Director of Public Prosecutions. Well, we have one here; that is the English and not the Scottish system. The only relevant parts of the Order that I can find are, first paragraph 4(7) The Director may employ a solicitor to act as his agent in the conduct of any prosecution … Then paragraph 5(1) Without prejudice to the operation of the succeeding provisions of this article, it shall be the function of the Director— … (c) where he thinks proper to initiate, undertake and carry on, on behalf of the Crown proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him. This is nothing remotely like what Lord Hunt's Committee contemplated. It does not put any obligation on him to prosecute anybody so far as I can make out, because it is subject to the words, "where he thinks proper". The sub-paragraph reads: where he thinks proper …for indictable offences and for such summary offences …as he considers should be dealt with by him. It is entirely within his discretion. He is not bound, even in indictable cases, to have anybody except the police to prosecute. Then paragraph 5(3) states: Nothing in this Order shall preclude any person from initiating, undertaking or carrying on any criminal proceedings, but the Director may undertake at any stage the conduct of those proceedings if he thinks fit. Not having had very long in which to consider the Report of the Northern Ireland Working Party, I would respectfully say that the Order as it stands appears to be nothing remotely like that envisaged by the noble Lord, Lord Hunt. It does not even go nearly as far as the Working Party recommended. They did, after all, specifically recommend, in effect, that the police should not continue to prosecute except in the cases which they said were not serious. That is not very satisfactory, because a vast number of cases of great importance to the citizen are what might be called minor cases; but when it comes to the Order there is no restriction on the police at all unless the Director, as in England he can in many cases, decides to take over the case himself.

While, therefore, I could not for a moment propose that the House should not approve the Order, I would venture to hope that before it goes before the other House the Government, and others interested and perhaps concerned, ought to realise how far the Justice report and the Hunt Report were both in favour of the Scottish system as being preferable to the English system; and that it is quite impossible to say that this Order, as it stands at the moment, is anything even remotely like the Scottish system. It may be that the Government may be well advised to give the form of the Order some further consideration before it goes to the other House so as at least to place some limit on both the police and also the Director as to the classes of case in which they should respectively prosecute.

6.17 p.m.


My Lords, I rise to speak because I feel that I ought to say something, if it is in order for me to do so. I shall speak briefly because what I wanted to say has been said very much better—I am grateful to him—by the noble and learned Lord, Lord Gardiner. Perhaps I should preface my one or two remarks by saying to the noble Lord, Lord Windlesham, that I greatly appreciate the very generous remarks about my Report.

My Lords, in paragraph 142 of the Report we were concerned more with effect than method and we had no time, as we made clear in the Report, to go into method. But it is, as regards method, possibly worth noting that my colleagues included Mr. Robert Mark, the present Commissioner of Police, as well as Sir James Robertson, who was then Chief Constable of Glasgow. Although I am not now, and certainly I was not then, an expert in these matters, Mr. Mark and I fell in very readily with Sir James's advocacy of the Scottish system, for the simple reason that it removed completely from the police any responsibility for prosecutions of any kind. As I understand, the matter was dealt with by the Procurator Fiscal and we suggested that it might be put in the hands of the Chief Crown Solicitor.

My Lords, I share the doubts voiced by the noble and learned Lord, Lord Gardiner, about what residual responsibility for prosecuting will remain with the police if this Order is approved; because the two reasons we gave why we thought the police should be relieved of responsibility for prosecuting at all are reasons which I think will remain valid. As regards our first reason—and this is the kind of deep mistrust which pervades the whole situation in Northern Ireland in one community or another—I think it can be said that there should be no grounds for mistrust, even if they were to have some residual responsibility for prosecuting, now that they are no longer seen to be an executive arm of the executive permanent Unionist Government, but have their responsibility to the police authority which is widely reflecting every shade of relevant opinion in Northern Ireland.

I should have thought that it must be important to remove any vestige of doubt about the impartiality of the police: and I am not in any way indicating that there was any reason for us to think that they were not entirely impartial up to the time that we made our Report. I also think that the police need every moment they can spare for their other and primary duties, particularly perhaps in the middle grade of police officers, who get so involved in court work, who have responsibility for leadership in general, for collecting information, detecting crime, administration, and not least, perhaps, in Northern Ireland, for improving public relations. The concern I have in this matter has been enhanced on listening to the noble and learned Lord, Lord Gardiner, when pointing out the items omitted from this Order which were in the Report of the Working Party.

6.22 p.m.


My Lords, rather like my noble friend Lord Hunt, I feel that as I happen to be here I ought to say a few words, and any remarks that I make will be of a peripheral nature not connected with the actual content of the Order. I should like, first, to say to the noble Lord, Lord Windlesham, that I think it would be wise—and he obviously has already raised this point—in future, when matters of this kind are being considered, that the necessary documentation should be available in this House, because otherwise I fear that substance will be given to the remarks of Mr. Faulkner at the time when the Government and Parliament were prorogued, when he described the activities of Her Majesty's Government in their treatment of the Northern Ireland situation as if they were dealing with a "coconut colony". If there is no documentation here at Westminster when Orders in Council are being considered, then this may produce some substance for that idiotic charge.

Secondly, I am not aware whether we shall be faced with further Orders based on legislation which had reached a certain stage in the Stormont Parliament before its prorogation. But if we are to be faced with these in the weeks and months that lie ahead, I hope that the Minister will appreciate that there was no Opposition at Stormont from last July when they withdrew from the local Parliament. It would not be correct to say that matters had been fully debated by that Parliament, because there were people sitting just on one side of that House of Commons after last July, and particularly after the disastrous policy of internment, which unfortunately was agreed to by Her Majesty's Government.

Then I should like to remind the Minister that the other day in this House, when we were discussing Northern Ireland affairs, I suggested that the Government should consider the Scottish system for governing Northern Ireland. I appreciate that in this there are a great many difficulties, but I hope that in this particular small matter that we are considering today the Government are not going to down-turn the Scottish system on the ground that it is something that must never in any circumstances be applied to Northern Ireland. Just as for the last two or three years every action which the Government have taken has been designed to avoid having to introduce direct rule, which has led to all this trouble, so now I hope that we are not going to enter into a period where every action they take is designed to do nothing to copy what is done by St. Andrew's House in Scotland. It may well be that that is the right way to handle it. If I may make a small addition here, I do not think the most rabid Protestant in Northern Ireland imagines that Stormont is going to be restored in its former state at the end of one year. Therefore, if Scotland provides a good example for doing things in Northern Ireland in a certain way, then I hope that the Government will not rule it out of order.

Finally, I want to associate myself with the remarks of other noble Lords. The Secretary of State for Northern Ireland has undertaken the most appallingly difficult role. I hope that neither he nor the noble Lord, Lord Windlesham, will so overstrain themselves by flying backwards and forwards to Northern Ireland three or four times a week (I know what it is to do it twice a week) that they will find they cannot adequately attend to their jobs. I fully appreciate the great difficulties under which they are labouring. The only sad thing is that the extremists on both sides in Northern Ireland who criticise the Secretary of State in his efforts do not begin to appreciate that he took on this job out of a feeling of patriotic duty: there was no need whatever for him to take it on. Anybody who has been trying to do that kind of job himself at an earlier stage knows how difficult it is to bring about any agreement about anything. I hope that one day the extremists on both sides in Northern Ireland will appreciate that the Secretary of State and his Ministers took on this job purely as a patriotic duty. I cannot imagine anybody applying for such a job.

6.28 p.m.


My Lords, I dare say the noble Lord, Lord Windlesham, would feel that to draw these very fine legal distinctions is rather far-fetched, in view of the fact that the reception in Ireland in general of the three judicial Reports which have been before this House does not suggest that fine legal distinctions between fact and surmise, for example, are often appreciated. Yet I think there is something important in the proposition that the noble and learned Lord, Lord Gardiner, was making. Even if Irishmen would not be persuaded that the adoption of the Scottish law was likely to produce greater impartiality on the part of what they regard as the occupying force, nevertheless the point that the noble Lord, Lord Hunt, made is I think significant; namely, that if that Scottish system were adopted it would help the police by relieving them of certain duties which otherwise will have to fall upon them. I hope that the point will be considered.

6.29 p.m.


My Lords, I should like to thank noble Lords for what they have said about my right honourable friend and for the support that they have given to his general policies, and also to thank the noble Lord, Lord Beswick, for the advice that he gave to noble Lords on his side of the House to accept the Order that is before us this evening. I think there may have been a little misunderstanding about the responsibilities and functions of the Northern Ireland Director of Public Prosecutions. I hesitate to say this to the noble and learned Lord, Lord Gardiner, a former occupant of the Woolsack, but I have a feeling that words have been used here in different ways and that the responsibilities of the Director of Public Prosecutions in Northern Ireland are going to be different from those of his namesake in England. What I shall do in the later part of my concluding remarks is to describe how it is intended that his Department will operate. That will be available on the Record before this Order is considered by Members in another place, and I hope it will be helpful to them when they come to study it.

I think it will be found that Ireland, as so often before, is going to have neither the English nor the Scottish system, but its own system. I come back to the point that I made earlier this afternoon in my Answer to the Question of the noble and learned Lord, Lord Gardiner, at Question Time. The new system will contain the ingredients which the noble Lord, Lord Hunt, was after in his Report, which is a system of initiating or taking over prosecutions independent both of the Government and of the police. The proposal of the Working Party chaired by Mr. John MacDermott which was accepted by the Government of Northern Ireland and incorporated in the Order, is that the Director of Public Prosecutions would not take directions from the Attorney General. So here is a major difference between the system in this country and that in Ireland.

Before I go on to describe how the new Department will work, I think I should answer the question which the noble and learned Lord, Lord Gardiner, put to me about the composition of the Working Party. Apart from Mr. John MacDermott, the other members were as follows: a resident magistrate, the chief clerk of petty sessions in Belfast, the then solicitor to one of the county councils, a senior civil servant, a solicitor in private practice specialising in magistrates' court work and two senior police officers. That was the composition of the Committee.

I should like now to describe how it is envisaged that the Department of the Director of Public Prosecutions will operate in Northern Ireland. It will be the primary task of the Director to initiate and undertake, where he thinks proper, proceedings on behalf of the Crown for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him. This is in Article 5(1)(c). As the noble and learned Lord pointed out, it is left to his discretion; and in deciding how he should use that discretion he will no doubt have in mind the criteria which were set out in the MacDermott Report. Provision is also made for the abolition of the Office of Crown Solicitor and for the transfer to the Director of Public Prosecutions of the functions of that office connected with criminal proceedings. Accordingly, an independent Department of Public Prosecutions has now been established, to which all papers relating to the possible commission of any offence, other than a summary offence of a minor nature, will be referred. As I mentioned, Parliamentary responsibility in the interim period covered by the Temporary Provisions Act will rest with the Attorney General for England and Wales.

The new system, when fully operational, will have three main advantages. First, the initiation and conduct on behalf of the Crown of prosecutions for all but very minor summary offences will be centralised in the new D.P.P.'s Department. Unlike the rest of the United Kingdom, Northern Ireland will have a national prosecutions department, responsible for the initiation and conduct of all prosecutions on behalf of the Crown, including prosecutions on behalf of the police, of the Northern Ireland Government and of United Kingdom Government Departments. Secondly, the new Department will not be open to the same allegations of bias—and I was interested in what the noble Lord, Lord Hunt, said about the impartial way in which the Royal Ulster Constabulary had conducted prosecutions at the time of his Report—which were directed against those concerned with the initiation and conduct of prosecutions in Northern Ireland. Thirdly, the police will, when the new Department is fully manned, be relieved of the onerous burden of conducting prosecutions in courts of summary jurisdiction in Northern Ireland. Eventually only proceedings in summary cases of a very minor nature will be conducted personally by members of the Royal Ulster Constabulary.

My Lords, if your Lordships will agree to accept the Order, as I hope you will, I shall draw the attention of my right honourable friend the Attorney General to the remarks of the noble and learned Lord, Lord Gardiner. There will be some time for me to do that because I understand that the Order will not be discussed in another place until next week. So, particularly in the matters to which he referred, such as the exercise of discretion, the drawing of the line between minor matters and matters of great importance, the Attorney General may have the benefit of what the noble and learned Lord has said and discuss it with the Director of Public Prosecutions in Northern Ireland.

On Question, Motion agreed to.