HL Deb 01 July 2002 vol 637 cc87-116

Consideration of amendments on Report resumed on Clause 7.

[Amendments Nos. 40 to 43 not moved.]

Clause 8 [Tribunals for considering removal]:

Lord Maginnis of Drumglass

moved Amendment No. 44: Page 6, line 23, leave out "First Minister and deputy First Minister, acting jointly" and insert "Lord Chancellor The noble Lord said: My Lords, this amendment and Amendments Nos. 45 and 46 are in many ways the reciprocal of Amendments Nos. 39 to 41. I beg to move.

Baroness Scotland of Asthal

My Lords, Amendment No. 44 removes the powers of the First Minister and Deputy First Minister to convene a tribunal to consider the removal of the Lord Chief Justice and places this power in the hands of the Lord Chancellor. Amendments Nos. 45 and 46 remove the First Minister's and Deputy First Minister's role in convening tribunals to consider the removal of any other judicial post holder. They instead provide for either the Lord Chief Justice or the Lord Chancellor to convene these tribunals.

The review recommends (at paragraph 6.136) that, removal from office of a judge or lay magistrate should only be possible on the basis of the finding of a judicial tribunal constituted under statutory authority and convened by the First Minister and Deputy First Minister or the Lord Chief Justice, that a magistrate or judge was unfit for office by reason of incapacity or misbehaviour". By removing the role envisaged for the First Minister and Deputy First Minister in this process, these amendments are directly contrary to the review. They also remove the local political accountability which the review was careful to inject into both the appointment and the removal processes.

From other amendments tabled to Clauses 4 and 5 both in Grand Committee and by colleagues in another place, it is clear that the noble Lords are again wary of the role to be played by the First Minister and Deputy First Minister in the appointment and removal process. It is clear that many noble Lords would prefer these powers to remain in the hands of the Lord Chancellor at Westminster with an equal role for the Lord Chief Justice as a nod to devolution.

The Government have faithfully reflected the review in this area. There are also safeguards in that the Prime Minister must be consulted before a tribunal to consider the removal of the Lord Chief Justice and other Lords Justices can be convened, and that the Lord Chief Justice must be consulted in regard to other removals.

We must have faith in the new institutions and give every opportunity for devolution to work. I urge noble Lords to examine these issues in the round and to see that they contribute something of significance, and therefore to withdraw the amendments.

Lord Maginnis of Drumglass

My Lords, I have listened to what the Minister has said. I shall not repeat the caveat that I have applied. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 45 and 46 not moved.]

Clause 9 [Lay magistrates]:

Lord Maginnis of Drumglass

moved Amendment No. 47: Page 8, line 8, leave out paragraph (d). The noble Lord said: My Lords, I may have been wrong in the drafting of this amendment, which seeks to remove paragraph (d) in subsection 5. I made some assumption that the following two lines applied to subsection 5(d). Perhaps I may leave matters to those who have tabled Amendment No. 48, which is grouped with this one. I am generous enough to admit that it is a better amendment than mine.

I turn to Amendments Nos. 49 and 50, grouped with this one. I do not need to argue for Amendment No. 49. It is the repeat of a previous amendment in terms of the wording. Amendment No. 50 seeks to add a new subsection: The Lord Chancellor must remove a lay magistrate from office if he has been convicted of a criminal offence". I have little to add, other than to say that the amendment makes patently good sense. Again, I believe that if the Government are not determined to sever—or at least to weaken—the link between Northern Ireland and the rest of the United Kingdom, they will accept the amendment.

I noted the alacrity with which the Lord Privy Seal sought to avoid my question about whether there is some external arrangement relating to the appointment of High Court judges and other senior personnel. He dodged it like a centre three-quarter by applying the question simply to an amendment that was under discussion at that time. It is a serious question; it is a general question; and one that I might appropriately put again in terms of Amendment No. 50, I beg to move.

Lord Glentoran

My Lords, I am slightly surprised at the weight that is given to the Lord Chancellor in dealing with lay magistrates. In relation to Amendment No. 50 dealing with the removal of lay magistrates by the Lord Chancellor, I should like to think that there would be no difference in criteria as between Northern Ireland and England and Wales. I do not know the answer, but the noble and learned Lord the Attorney-General has now joined us and I am sure that he will be able to enlighten us if the noble Baroness does know, as I am sure she does. I do not know what the Scots do up in the wild Celtic regions, but I should like to think that in this respect the Northern Ireland judiciary will operate through the Lord Chancellor, if that is the way in which the system is to be set up, and that there will be no difference in the way in which lay magistrates are removed from office for similar or identical reasons.

My amendment relates to the Lord Chancellor having a free hand. The noble Baroness said in Committee that if somebody lived 100 yards over the defined border, a decision would be needed on whether they can act. I am not sure whether that is relevant. On the issue of people convicted of a prescribed offence, once again we are trying, in a very difficult climate, to put together a criminal justice system that the whole population can believe in and trust. I warned the Grand Committee that I would go on about this. Whatever happens, we have to attempt not to play politics or to get involved in quid pro quos somewhere way down in the seamy underlying issues of the Bill. We have to be up front and make it clear that there are no overrides such as, unless the Lord Chancellor otherwise determines in the case of a particular person". That is not necessary. It is untidy. In my life as a soldier or in industry, if I produced a document detailing a well thought-out and logically argued case I would not then say at the bottom, "But if I think something different then we'll do something different". I am sure that the same applies to the noble Baroness and to the noble and learned Lord the Attorney-General, yet that happens throughout the Bill. This is another case in which a set of conditions has been seriously prescribed—referring to lay magistrates in this case—right down to subsection (5)(a), (b), (c) and (d), followed by, unless the Lord Chancellor otherwise determines".

Lord Tebbit

My Lords, it seems extraordinary that the Government should seek a discretion of the kind that the amendment of my noble friend Lord Glentoran would rule out.

Like a number of other noble Lords, I served for two years as Chancellor of the Duchy of Lancaster. In that capacity, I had responsibility for the appointment and discipline of the lay magistracy in the county palatine of Lancaster. It was a difficult time, during the disturbances around the question of the community charge. In areas around Liverpool in particular, a number of elected councillors had refused to pay their lawful taxes and had been so convicted.

It never occurred to me—nor did it even occur to their supporters—that the consequence of that should be that they would be dismissed from the Bench. The reasoning was clear. It would be impossible for them, having been convicted of an offence, then to be on the Bench trying somebody else for a similar offence.

I hope that the noble Baroness will tell us what sort of reasons would move the Lord Chancellor to determine that a criminal offence should not disqualify a person from sitting as a magistrate.

Looking at the other amendments in the group, I again find myself in great sympathy with the line taken by the Ulster Unionists, for exactly the same reason. A magistrate cannot run with the hare and hunt with the hounds. It is as simple as that. Unless we uphold that principle, we shall once again create a different standard for the administration of justice in two parts of the kingdom. The more the Government talk about the peace process, the normalisation of affairs in Northern Ireland and the end of the emergency, the more frequently we find them legislating to make permanent a different standard of justice in the two parts of the kingdom. Unless Ministers are fundamentally stupid, which I do not believe to be the case, there is only one conceivable reason why they should do that: because they do not regard Northern Ireland as a part of the United Kingdom like the other parts of the kingdom. That is the ethos behind the Bill. That is why I object to it most strongly.

8.45 p.m.

Baroness Scotland of Asthal

My Lords,I shall deal first with the comment made last by the noble Lord, Lord Tebbit. I understand that this is an area that excites passion and that there are strong feelings on it. However, it is wrong to say that Her Majesty's Government do not see Northern Ireland as a fundamental part of the United Kingdom. It is. However, it is a part of the United Kingdom that has been troubled these past 30 years. Noble Lords in all parts of the House, together with those in Northern Ireland, now have to seek to chart a new path. We need courage to do that. We also need to be temperate and brave in looking at what is best and which road we should all travel on. We are not helped in that difficult task if thebona fides of what we are trying to do together are not properly understood.

We are looking to craft a way forward that will enable us, with safety and with proper safeguards and conditions, to place Northern Ireland in a position in which its people would wish to be within this United Kingdom. The Bill does nothing to detract from that purpose.

Lord Tebbit

My Lords, I am grateful to the noble Baroness for that. Can she assure me that the policy of her party—I hope that she can speak for her party on this occasion—is no longer to seek the union of Ireland by consent, as it has long been?

Baroness Scotland of Asthal

My Lords, the noble Lord knows well that every Minister who speaks from this Dispatch Box does so on behalf of Her Majesty's Government. The Government's policy is clear. If we needed any further clarity, we find it in the Good Friday agreement and in the review, which was undertaken with great skill and fortitude by the members who were charged with this difficult task. Notwithstanding the passions and the difficulties, we are not assisted in helping to craft this new path by expressions that seek to undermine the bona fides of that effort.

One of the points that was clear in Grand Committee—and I think that we all took comfort from it—was agreement on the fact that we all want the same things. We may have expressed our objectives in different ways, but our aim—what we all seek to achieve—was identical. I notice that the noble Lord, Lord Tebbit, is shaking his head. I hope that he will not do so when I say that it was hoped that we would be able to secure a good and secure way forward which would enable devolution and to create conditions which would enable the system of justice in Northern Ireland to continue on the safe path down which it had started. There cannot be any disagreement about that.

Let us turn to this group of amendments. These amendments were tabled initially in Committee and address the important issue of qualifications for lay magistrates. I welcome the opportunity to repeat the reasons why they should be resisted. Amendment No. 47 removes from the list of disqualification provisions for lay magistrates, which can be waived by the Lord Chancellor, the paragraph stating that candidates who have been convicted of a prescribed offence are disqualified.

The review recommended that the criminal justice functions of justices of the peace should be undertaken by the new office of lay magistrate. The Bill will allow the Lord Chancellor to prescribe, within parameters, the circumstances in which a person would not be eligible for appointment as a lay magistrate. Amendment No. 48 seeks to remove the Lord Chancellor's discretion in applying these qualifications. The Lord Chancellor has this discretion in making justice of the peace appointments in England and Wales.

If this amendment were accepted, the Lord Chancellor would not, for example, be able to appoint candidates who departed in even the smallest way from the eligibility criteria. This would exclude, for example, a candidate who lived just five miles beyond the prescribed distance. The Government believe that such flexibility is essential, and therefore ask that this amendment be withdrawn.

Amendment No. 49 provides that a person convicted of a criminal offence will be disqualified without the caveat that it may be waived by the Lord Chancellor. Amendment No. 50 requires the Lord Chancellor to remove a lay magistrate if he is convicted of a criminal offence. The effect of the provisions would be, first, to remove any discretion the Lord Chancellor has to prescribe offences which might merit disqualification, so that even minor driving offences would be caught; and, secondly, to remove any discretion to set aside convictions in deciding to appoint such an individual as a lay magistrate. It might therefore be said that those knowingly or unknowingly driving with a defective headlight, for example, should not sit as magistrates. Although I shall not do so, one could cite other such examples. There are minor issues which the Lord Chancellor is quite properly entitled to disregard.

Lord Tebbit

My Lords, the noble Baroness may correct me, and she almost certainly will, but would that not be an offence under the Road Traffic Acts which did not qualify as a criminal offence?

Baroness Scotland of Asthal

My Lords, that is precisely right. However, the prescription which the amendment provides covers any conviction that occurs in a criminal court such as a magistrates' court. Those caught with a defective headlight are summoned to the magistrates' court, dealt with for the offence and perhaps fined. So all such minor infringements are caught by the amendments.

Lord Glentoran

My Lords, what is the difference between the Lord Chancellor's powers to remove magistrates in England and Wales and those which are proposed in the Bill for removing magistrates in Northern Ireland?

Baroness Scotland of Asthal

My Lords, as I understand it, the Lord Chancellor's powers are not materially different from those which prevail in England and Wales; they are exactly the same. It is only parity; we are not doing anything unusual. I understand the suspicion which some feel that somehow, through sleight of hand, something else may be happening. I can only reassure your Lordships that that is not the case.

I also understand, if I may put it colloquially, where noble Lords are coming from. However, the Bill has struck a balance, and we believe that it is the right balance. Lay magistrates play a relatively modest, if important, role in the justice system. We think that it would be regrettable if there were no flexibility to disregard relatively minor criminal convictions if the case for appointing an individual were otherwise overwhelming. We are not making it something that "shall happen"; it merely gives the Lord Chancellor a discretion to say that, in an appropriate case, it may happen.

As the Leader of the Opposition has noted in another place, just because a person has a past, that does not mean that he or she cannot play a role in the future. If I may respectfully say so, that sentiment has been very graphically displayed today in the very generous comments of the noble Lords, Lord Tebbit and Lord Alton, about those who have turned over a totally new leaf after a very troubled past. We support that sentiment. We disagree with these amendments which seek to remove that possibility.

Lord Maginnis of Drumglass

My Lords, I have listened to the Minister's reply, but again I am not convinced. The point made by the noble Lord, Lord Tebbit, about motoring offences seemed to contradict the Minister's point. Especially in these circumstances, I regret to say that I am not a legal mind. I hope that the noble Lord, Lord Glentoran, will press his Amendment No. 48. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 48 to 50 not moved.]

9 p.m.

Schedule 4 [Functions of justices of the peace]:

Lord Maginnis of Drumglass

moved Amendment No. 51: Page 86, leave out line 36. The noble Lord said: My Lords, in Grand Committee we had an interesting debate on the issue of binding over to keep the peace and binding over to be of good behaviour. On that occasion I was totally overwhelmed by the Minister's citation to me of a 600-year-old law which I believe was the Justices of the Peace Act 1361. Even I do not remember that.

It was to some extent the fact that we were going back so far to justify something that appeared to me on the surface to be an infringement of human rights; that is, the binding over to be of good behaviour, that persuaded me to look at the measure more carefully. I was also moved by the fact that in the opening minutes of the Committee stage the noble Lord, Lord Smith of Clifton, berated the Government for the lack of awareness of human rights in the Bill. I thought that perhaps I could motivate those who sit adjacent to the noble Lord to some excitement over the issue on this occasion.

I discovered—I hope that I have interpreted it correctly—that binding over to keep the peace dates back to yesteryear and that, as the noble Baroness reassured me, it is often made subject to a condition, for example, that the person bound over to keep the peace shall not possess, use or carry a firearm. That measure pertains to the Firearms Act 1968. I discovered that formerly there was power to bind over a person to be of good behaviour in cases where that person's behaviour did not amount to a breach of the peace but was found to be contra bonos mores, which has been described as conduct which is, wrong rather than right in the judgment of the majority of contemporary citizens". That may be a contravention of Article 10(2) of the European Convention on Human Rights.

I draw the noble Baroness's attention to the judgment in Hashman and Harrup v UK (2000) 30 EHRR 241. I do not know what those figures mean, but the noble Baroness will. In that case, the European Court of Human Rights said that, the nature of requirements imposed on a person bound over to be of good behaviour was insufficiently precise to qualify as a `restriction … prescribed by law' under the ECHR, Article 10(2), so that binding over the applicants to be of good behaviour had been a breach of their rights under that Article". Further investigation suggests that the power to bind over to be of good behaviour is not 600 or so years old but dates back only to the Justices of the Peace Act 1968. It is therefore for the Government to decide whether new legislation—particularly the new legislation we are discussing—should incorporate within it that vague and ill-defined binding over to he of good behaviour. If the conditions applying to that are wrong rather than right in the judgment of the majority of contemporary citizens, and if that is the basis on which the bound over to be of good behaviour element is included, one has to ask whether we are talking about contemporary citizens in terms of a specific area, or an area that would encapsulate the entire area of Northern Ireland, or whether it would extend beyond that into the United Kingdom as a whole. That judgment of contemporary citizens must be exceedingly hard to define.

I am certain that the learned noble Baroness will understand that over 30 years elements within Northern Ireland have become particularly litigious and will find any weakness or contradiction in the law and use it as a route to a metaphorical goldmine. On that basis, I appeal to the Government to look carefully at whether they are prepared to go to the wire on this particular issue, or whether a binding over to keep the peace which can be qualified by other legislation is the way forward. I beg to move.

Lord Smith of Clifton

My Lords, I am impressed by the diligence with which the noble Lord, Lord Maginnis, has researched into the legal archives. Although I agree with him that human rights are of vital importance and should be a crucial leitmotif throughout the Bill, without notice I do not have recourse to expert advice in order to form a judgment on what the noble Lord said. I look forward to hearing the learned noble Baroness enlighten me.

Baroness Scotland of Asthal

My Lords, I am most happy to do so. The noble Lord, Lord Maginnis., accurately referred to the case of Hashman and Harrup., but I want to put the matter in context. I explained the situation in Committee but I am more than happy to help again.

As noble Lords know, the amendment deals with the question of whether someone should be bound over to keep the peace and to be of good behaviour. In brief, Amendment No. 102 seeks to amend new Section 103A of the Judicature (Northern Ireland) Act 1978, to remove the power given to courts of record to bind over to be of good behaviour, but not to change the power to bind over to keep the peace. The noble Lord's memory was right: I said, and I say again, that this power has been available since the Justices of the Peace Act 1361. The effect of the amendment, therefore, would be to remove a power that has existed for centuries.

The purpose of new Section 103A is simply to put beyond doubt the fact that courts of record exercising a criminal jurisdiction will retain any power to bind over persons before them, which they currently possess. It is expected that a court, when making such an order, would be careful to specify what is required of a person, to be of good behaviour", in any particular case before it. The difficulty, as I understand it, with the Hashman and Harrup case was that there was a general assertion to be of good behaviour but no specification of how that good behaviour should manifest itself. The proposal is that when courts bind a person over to keep the peace and to be of good behaviour, they go on to specify, "In that, you are to refrain from or fail to do A, B, C and D". That will be the proper basis on which the exercise of that judicial function will be made. Then we confidently expect that any judicial officer so doing would be ECHR compliant.

Lord Maginnis of Drumglass

My Lords, I am not convinced that this is not a very liberal interpretation of the law. I detect that the Minister is slightly amused by my layman's assertion. Within the duality of this provision, binding over to keep the peace is adequate. It will, because it can be qualified, serve the purpose. Binding over to be of good behaviour is vague in terms of its qualification and geography, to the extent that I wish to press the amendment to a vote.

The Deputy Speaker (Lord Ampthill)

My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it.

On Question, amendment negatived.

Clause 19 [Judicial oath or affirmation]:

Lord Glentoran

moved Amendment No. 52: Page 13, leave out lines 28 to 39 and insert "take the oath of allegiance and the judicial oath or make the appropriate affirmation The noble Lord said: My Lords, the amendment goes back to the thorny problem of the oath of allegiance. I am back on my harpsichord, as it were. We should let sleeping dogs lie. We should stay in line with the agreement.

Why do the Government have to push the politics too far in this technically legal Bill? It is clear in the Northern Ireland agreement that various matters do not need to be—and, indeed, cannot be—changed. Northern Ireland is, despite the Good Friday agreement—within that agreement and outwith it—an integral part of the United Kingdom. That argument can be used in relation to a number of issues raised in the second half of the Bill. But the one part of the democracy of Northern Ireland which has to be independent is the judiciary. Criminal justice is part and parcel of a "totally independent system". By that we mean a system which is totally divorced from and independent of party politics and national politics of any kind.

Therefore, why should those in the judiciary carrying out their daily work in Northern Ireland operate under any conditions different from those which pertain in England and Wales? The answer is that there is absolutely no need. There is no need as regards politics. There is no need as regard the Good Friday agreement. Unless there are some funny, hidden ideas of which I know nothing, there is no obvious need. As the noble Baroness, Lady Scotland, knows only too well, the power and independence, and all that goes with that—the majesty of an independent judiciary—has to stem from a power somewhere within our realm. That power is our sovereign. No logical objective rhyme or reason has been given in Committee, or in any debate that I have heard in this House, as to why this part of the judicial system needs to change.

Judging by earlier remarks in debate, the situation could arise with judges sitting together in an appeal court who have operated under a different system. It breaks the unanimity of the British judicial system. Why do our Government wish to do so? I fail to understand. I beg to move.

9.15 p.m.

Lord Rogan

My Lords, I support the noble Lord. In doing so, perhaps I may speak also to Amendments Nos. 53 and 54.

The affirmation will be taken by the most senior office holders in Northern Ireland. There is a distinction between "upholding" and "according to". "Upholding" is a more positive assertion of interest than simply "according to". Although I may not take the issue to a vote, I suggest that the amendments tabled have validity. Those with responsibility for the administration of justice must uphold the continued independence of the judiciary.

Lord Mayhew of Twysden

My Lords, at this time of night, perhaps one may be forgiven for allowing one's mind to turn towards the words of the Magnificat which are relevant to the amendments referred to by the noble Lord, Lord Rogan: Lord, now lettest thou thy servant depart in peace according to thy word". "Upholding" is not exactly right. 1 part company with him there.

Earl Ferrers

My Lords, if I may interrupt my noble friend, I believe that he was quoting the Nunc Dimittis and not the Magnificat.

Lord Mayhew of Twysden

My Lords, that is absolutely right. The Magnificat would not have met the point. It is because of the lateness of the hour to which I have already alluded.

I support the amendment moved by my noble friend Lord Glentoran and supported by the noble Lord, Lord Rogan, for this reason. A good deal of symbolism is involved with the oath of allegiance. We have all noted previously that Northern Ireland has a good deal of symbolism. Some can be abused but some are very important. I believe it to be important that the oath of allegiance should continue to be taken in Northern Ireland for the point recently made by my noble friend Lord Glentoran. It is important that there should be no unnecessary departure from what is common to the remainder of the United Kingdom.

As we all recognise, there are circumstances in Northern Ireland that are separate from those that obtain in the rest of the United Kingdom. Therefore, to change the oath in the way provided by the Bill may not perhaps matter if it was not going to cause affront. However, I am afraid that it will cause affront to people who actually represent about two-thirds of the population of Northern Ireland, and who uphold the Union with the United Kingdom.

One looks, therefore, to see whether there is any principle behind the proposal. I cannot see what principle there can be; indeed, principle points in the opposite direction because, forseeably, you will have a court sitting with a judge who has taken one oath while the other judge may have taken another. That is not just untidy; it is undesirable for rather obvious reasons. So what about expedience? Where does the expedience lie? One should perhaps consider the report of the review body. As I said in Grand Committee, the review body argued this case extraordinarily faintly. Indeed, if any noble Lord has the document to hand, the relevant paragraphs are 6.125 and 6.142. It is very much a case of, "Well, it's possible … but on the one hand … and, on the other … it could be an obstacle to people taking the oath".

I have never heard of anyone who has been inhibited from accepting judicial office because of the oath, but perhaps the Minister will be able to enlighten us in this respect. It seems to me to be a wholly disproportionate affront to those who represent the Unionist persuasion in Northern Ireland, which, as I said, is the great majority. It is not an irrational affront. By acceding to this rather tentatively argued case in the review report, the Government would, by implication, be accepting that there was something rather shaming—something that could be criticized—in the oath as it is at present administered. That would be a very grave wrong; it is a wholly rational objection that I believe Unionists take to this proposal. I hope that noble Lords will agree that the downside is wholly disproportionate to whatever advantage there may be to this proposal.

I have one further point to raise. I believe that the Minister may be able to deal with it because the noble and learned Lord the Attorney-General is sitting next to her on the Front Benches. It is not suggested that there should be some alleviation of the requirement to take the oath for Northern Ireland judges who are appointed at the Court of Appeal. As we have been reminded today, those who sit in the Court of Appeal become Privy Counsellors. When you become a Privy Counsellor, perhaps the noble Baroness will confirm that you take an oath of allegiance and then go on to take another rather blood-curdling oath about secrecy and what will happen if you do not observe it. It is not suggested that the Northern Ireland judges should be relieved of that obligation. I wonder why.

Lord Hylton

My Lords, I understand that the form of oath required of police constables and, I believe, of Queen's Counsel in Northern Ireland has already been modified. Therefore, there seem to be good precedents for also modifying the oath that applies to judges and other judicial officials.

Lord Tebbit

My Lords, while I sat here in the Chamber listening to this short debate the following thought came to my mind. I wonder what our American friends would make of it if a proposition were brought forward that judges in, say, Hawaii took a different oath from that taken by judges in California, or in New York State. Perhaps I may bring the idea a little closer to home. What would he thought if judges in, for example, the Basque Country took a different oath from that taken by judges in Madrid? What conclusions might come into the minds of Basque people, whether they were in favour of the activities of ETA, or peaceable citizens?

Let us take the matter a little further. If the oath put forward by Her Majesty's Government is so good, and if it is an oath that is suitable for the people of Northern Ireland, why do the Government not seek to introduce it in the remainder of the kingdom? By such a method they could ensure that all judges took the same oath. I can only assume that they see profound reasons why such an oath should not be introduced here and why the present oath taken by judges in England should not be changed in the way that they propose to change the oath in Northern Ireland.

I am sure that the noble Baroness believes that my own experiences have led me to a particularly jaundiced view of Northern Ireland legislation. I assure her that what leads me to a jaundiced view of the legislation is that it continues and exacerbates the situation in which there are two standards of law, two standards of justice, two standards by which we judge criminals within one kingdom. To my mind that is not acceptable. Nor is it acceptable to me that judges in one part of the kingdom should take one oath and in another part of the kingdom a different oath.

The Minister will probably quote Scotland to me, but she will recollect that a different history applies there—a history of how the two kingdoms were united. There is also the manner in which Scotland has been allowed, within the kingdom, to maintain its own systems of law ever since the union of the two kingdoms. This provision does not merely allow something that exists to continue, but it introduces a new difference, a new division, a new schism, to which I object most profoundly.

Lord Monson

My Lords, I agree with the Government and the noble and learned Lord, Lord Mayhew, about Amendments Nos. 53 and 54. I do not see how one can easily uphold a usage. I believe that the phrase "according to" is adequately firm and unequivocal. However, the important amendment in this group is Amendment No. 52. I wholeheartedly agree with the noble Lord, Lord Glentoran, and those who support him from various parts of the House. I do not want to prolong the debate at this time—although it is not particularly late—or to repeat points that have been made in Grand Committee.

However, I remind noble Lords that no concessions at all have been made to the sensitivities and sentiments of Unionists south of the border. So be it. There is nothing that we can do about that, but sauce for the goose is sauce for the gander. Why should we lean over backwards to pander to the sentiments of hard-line republicans who, as public opinion poll after public opinion poll have demonstrated, comprise no more than 12 or 12.5 per cent of the population of Northern Ireland?

Lord Tebbit

My Lords, there is a simple answer to that. The republicans in this kingdom have guns and bombs and they are willing to use them. The Unionists in the Republic of Ireland do not have guns and bombs and they do not wish to use them.

Lord Monson

My Lords, the noble Lord has made an excellent point.

Lord Kilclooney

My Lords, the point has been made that because the oath for members of the Police Service of Northern Ireland and QCs has been changed that is a good precedent to follow. I have never heard such a foolish argument in my life. There is no definition of how it was a good precedent. It has been a most unfortunate precedent. It has helped to bring about the demise of the Belfast agreement. I am afraid that the Government do not realise the damage that this Bill continues to do to the Belfast agreement. I warn them yet again that the Belfast agreement is in great danger of collapse. This Bill and this particular provision form a further nail in its coffin.

9.30 p.m.

Baroness Park of Monmouth

My Lords, at the risk of repeating what I said in Committee, perhaps I can say briefly that I feel very strongly that, since in any case there are a number of references in this Bill, rightly, to the Crown, it is extremely difficult to understand why, in the major issue of the oath, we wish to behave as though the sovereign did not exist. In the Belfast agreement, as has been said, we are committed to allowing the majority to decide their fate; so long as they choose to stay in the United Kingdom they are entitled to have the same relationship with the sovereign as the rest of us.

On the police oath, I believe I am right in saying—though I shall have to check—that the police oath for Wales still swears allegiance to Her Majesty. Therefore that is not necessarily a precedent. But the important point is that, in relation to the Belfast agreement, the people have a right to stay within the United Kingdom, with all that that implies, including allegiance to the Crown, for as long as they wish.

Baroness Scotland of Asthal

My Lords, of course this short debate provokes similar passions to those it evoked in Committee, and indeed many of the points made then have been made again this evening. I shall try not to go over everything I said in Committee. I am sure noble Lords will have the benefit of reading it if they so choose.

Let me say straight away to the noble Lord, Lord Tebbit, that judicial and police matters are fully devolved in the Basque country; it is one of the ways they sought to resolve some of their difficulties. I regret to tell the noble Lord, therefore, that in terms of lighting upon that as an example of similarity, it was perhaps an unhappy choice. In the Basque country they have done exactly what we are seeking to do in relation to Northern Ireland.

Lord Tebbit

My Lords, I am grateful to the Minister for giving way. Perhaps she can tell us whether it solved the problems of the Basque country.

Baroness Scotland of Asthal

My Lords, if I may respectfully say so, that is not a terribly helpful approach to take and I know that that was not the noble Lord's intent. But that must be his difficulty and not mine.

The issue here must be taken extremely seriously. We are trying to chart a new way. Many noble Lords are anxious to keep to the old way, but we hope that the new way will be a little better. The noble and learned Lord, Lord Mayhew, is right in saying that we are not changing the Privy Council oath. That perhaps underlines the difference we were speaking of earlier—the difference between those who become Privy Counsellors and those who do not.

But one must examine the oath carefully. The oath in Clause 19 replicates exactly the wording recommended by the review. In recommending this oath the review group recognised the need to take account of the independence of the judiciary as well as Northern Ireland's wider constitutional status. Noble Lords will be aware that the review body examined the implications of this recommendation in considerable detail, and the Government fully support its findings.

I hear what the noble and learned Lord, Lord Mayhew, says in relation to the section which deals specifically with this recommendation. But one must look at it in the round. I took a little trouble, after the comments made by the noble and learned Lord, to look again at the report. The noble and learned Lord may find it helpful to cast an eye on the introduction to the report which deals with the modus operandi adopted by the review, particularly in relation to the matters taken into account. If the noble and learned Lord looks at paragraphs 1.5 through to 1.31, it will be seen that, in coming to its recommendations, the review body took a holistic approach to the information it culled from various sources. Its investigation into this area was extensive. Its firm recommendation—and we see no reason to gainsay it—was that the oath that has been devised and put into the clause would be the most appropriate.

In Committee, we dwelt for some considerable time on the importance of the word "realm", which I believe noble Lords accepted encapsulates the reality of this kingdom; namely, a United Kingdom of England, Wales, Scotland and Northern Ireland. The word "realm" can only he given that definition.

So the oath is a more modern oath. It does not specifically mention Her Majesty, but it still encapsulates by the way it is phrased the reality that this is a kingdom. The clause brings it much more into the modern day age.

I turn to Amendments Nos. 53 and 54. I agree with the comment made by a number of noble Lords that "according to law" is the more accurate phrase. Indeed, "according to law" is the phrase adopted in the current oath of allegiance and the judicial oath. We see no reason to change it. Therefore, for all those reasons, hut more particularly for the reasons I gave at great length in Committee, I invite the noble Lord to withdraw the amendment.

Lord Glentoran

My Lords, I thank the noble Baroness for that reply and I thank all noble Lords who have supported the amendment. I believe that once again the intellectual argument in relation to the oath has been won by this side of the House. I was not in any way debating whether the oath in the Bill was any better than any other oath. What I wished to debate, and the purpose of my amendment, was to maintain the status quo. I have said a number of times throughout the passage of the Bill that it has gone overboard politically when it is a technical judicial Bill. It seeks to change the environment in the judicial affairs of Northern Ireland. That is wrong.

I have said again and again that my colleagues on this side of the House and I are doing our best to advise the Government on the best way to maintain the peace agreement which they set up so successfully, but which, perhaps in hindsight, was set up in rather too short a space of time and with insufficient small print clearly defined. However, they set it up. It was a great achievement. It was welcomed and it was supported. It is no longer welcomed or supported by a large majority of the population. The Government must take that on board. Not only must they take it on board, but they must realise, and I wish they would understand, that day-by-day they are destroying the peace agreement which they set up in my province. This is yet another way of doing it. It is yet another little nail into the coffin of that peace agreement.

I just wish I could get through to someone in Government and get them to believe that what we are saying from this side of the House is in relation to sensitivities, not in relation to great dramatic changes in what the Government wish to do. We are totally behind the Bill in what it seeks to do. What we are upset about are the political nuances which are getting under the skin, upsetting and continuing to destroy the confidence of people who need the reverse done to them.

Those noble Lords who know me, know that I speak sincerely. I believe totally in what I am saying. I cannot accept the Government's rejection and I wish to test the opinion of the House.

9.39 p.m.

On Question, Whether the said amendment (No. 52) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 98.

Division No. 3
Attlee,E. Maginnis of Drumglass, L.
Blatch, B. Marlesford, L.
Brooke of Sutton Mandeville, L. Mayhewof Twysden, L.
Burnham, L. Miller of Hendon,B.
Byford.B. Molyneaux of Killead, L.
Cope of Berkeley, L. [Teller] Monson, L.
Dixon-Smith, L. Northbrook, L.
Ferrers, E. O'Cathain, B.
Park of Monrnouth, B.
Glentoran, L. Patten, L.
Greenway, L. Renton, L.
Henley, L. Rogan, L.
Kilclooney, L. Seccombe, B. [Teller]
Kingsland, L. Shrewsbury, E.
Laird, L. Stewartby, L.
Lyell, L. Tebbit, L.
MacGregor of Pulham Market, L Vivian, L.
Wilcox, B.
Acton, L. Grenfell, L.
Addington, L. Grocott, L. [Teller]
Alton of Liverpool, L. Hamwee, B.
Amos, B. Hardy of Wath,L.
Andrews, B. Harris of Haringey, L.
Archer of Sandwell, L. Harris of Richmond, B.
Bach, L. Hilton of Eggardon, B.
Barker, B. Hogg of Cumbernauld, L.
Bassam of Brighton, L. Hollis of Heigham, B.
Berkeley, L. Howells of St. Davids, B.
Blackstone, B. Hoyle, L.
Borrie, L. Hughes of Woodside, L.
Brennan, L. Hunt of Chesterton, L.
Brett, L. Hylton,L.
Brooke of Alverthorpe, L. Jones, L.
Brookman, L. Lea of Crondall, L.
Burlison, L. Lester of Herne Hill, L.
Campbell-Savours, L. Lipsey, L.
Chandos, V. Lofthouse of Pontefract, L.
Clark of Windermere, L. Macdonald of Tradeston, L.
Crawley, B. McIntosh of Haringey, L. [Teller]
David, B.
Davies of Coity, L. McIntosh of Hudnall, B.
Davies of Oldham, L. MacKenzie of Culkein, L.
Desai,L. Mackenzie of Framwellgate, L
Dixon, L. Maddock, B.
Donoughue, L. Massey of Darwen, B.
Dormand of Easington, L. Mitchell, L.
Dubs,L. Morgan, L.
Elder, L. Pendry, L.
Evans of Parkside, L. Pitkeathley, B.
Evans of Temple Guiting, L. Ramsay of Cartvale,B.
Farrington of Ribbleton, B. Rennard, L.
Faulkner of Worcester, L. Rogers of Riverside, L.
Gale, B. Rooker, L.
Gibson of Market Rasen, B. Roper, L.
Gilbert, L. Russell, E.
Golding, B. Sainsbury of Turville, L.
Goldsmith, L. Scotland of Asthal, B.
Goodhart, L. Sharp of Guildford,B.
Gordon of Strathblane, L. Shutt of Greetland.L.
Goudie, B. Simon, V.
Gould of Potternewton, B. Smith of Clifton, L.
Smith of Leigh, L. Whitty,L.
Stone of Blackheath, L. Wilkins, B.
Symons of Vernham Dean, B. Williams of Crosby, B.
Taylor of Blackburn, L. Williams of Mostyn, L. (Lord Privy Seal)
Thornton, B.
Tomlinson, L. Williamson of Horton, L.
Wakefield, Bp. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.50 p.m.

[Amendments Nos. 53 and 54 not moved.]

Schedule 7 [Functions of Advocate General]:

Lord Laird

moved Amendment No. 55: Page 95, line 20, leave out "Public" and insert "Crown The noble Lord said: My Lords, I do not want to take up too much time today because much of the argument has already been rehearsed and time is moving on. In moving Amendment No. 55, I want to speak also to Amendments Nos. 57, 59, 62 and 70. The effect of the amendment is to move the word "Public" and insert the word "Crown" in the concept of the prosecutor's service for Northern Ireland. It will then be the "Crown Prosecution Service" for Northern Ireland.

This may seem to be another occasion on which the Unionists are trying to produce more British symbols and to enhance those which exist. That returns us to the point made with great passion by the noble Lord, Lord Glentoran, in relation to an earlier amendment, that the situation in Northern Ireland is not very good. It is extremely poor and fragile.

I greatly fear for the Belfast agreement. It is a difficult situation for those of us who from the Unionist perspective have put a great deal of political stock, time, emotion and effort into working the Belfast agreement. We now find ourselves on extremely difficult territory. We are on crumbling territory; a quicksand which is likely to suck us in to our detriment. Large sections of the Bill do not come into effect until after the Assembly elections next year. I share the concern of noble Lords that the result of the Assembly elections will be such that the Bill will never be brought into force in Northern Ireland.

It is not merely a case of asking for the word "Crown" to take the place of the word "Public" in order to be in line with the rest of the kingdom. It returns to the basic point and to the difficulties we have in Northern Ireland in trying to keep together a community that has been under threat. It has undergone extreme difficulties and believes that its way of life, the basis by which it calculates its day-to-day activities and its values have been taken from it.

The use of the word "Public" is yet another example of that and it has produced a difficult situation. The Government, in trying to create a situation in which public prosecutors are separate from the police service, have produced two sets of initials which are almost identical. To members of the public, the public prosecution service and the Police Service of Northern Ireland will seem to be the same organisation. That is how ludicrous the situation is. In my view, and in the view of most people in Northern Ireland, the change is being made simply to appease the Irish republicans and because, as the noble Lord, Lord Tebbit, said, they are armed to the teeth and we are not.

That is a fact of life and it is very sad and difficult. I say to noble Lords that when as a result of this Bill and other actions the Belfast agreement tumbles down, please do not come around and say that you were not warned. Please do not come around and ask what we can do about it. We have done a lot to save the situation but we cannot work miracles. I beg to move.

The Attorney-General (Lord Goldsmith)

My Lords, the purpose of this amendment is to name the new prosecution service the "Crown prosecution service for Northern Ireland" rather than the "public prosecution service". We discussed the matter in Grand Committee. In response to the noble Lord, Lord Laird, I wish to make three points.

First, there never has been a Crown prosecution service in Northern Ireland. This is not a case of changing the name of something that already exists. Indeed, there has not been a service of the kind intended under the provisions of the Bill. At the moment the Director of Public Prosecutions runs a much smaller office than the new public prosecution service will be. As noble Lords know, under the Director of Public Prosecutions, the new prosecution service will take over the conduct of and be responsible for all prosecutions in Northern Ireland. So this is not a case of changing the status quo; it is a question of giving a name to a new organisation.

Secondly, why has that name been chosen? It is the name proposed by the review. It was widely welcomed during the consultations following the publication of the review report and the draft legislation. I understand that only one party had any difficulty with the name. As I pointed out in Grand Committee, the name states exactly what the service will be: it will be a public prosecution service. The name emphasises that it will be a neutral prosecution service for the public and in the interests of the whole public. It is an entirely appropriate name, not least because the head of the service will be the Director of Public Prosecutions, and thus a public prosecution service makes sense.

Thirdly, I refer to the confusion that has been suggested by the noble Lord, Lord Laird. I beg fundamentally to disagree. I suggest that no one in Northern Ireland will be the slightest bit confused. The police will be called the "police", while the prosecution service will be called either the "public prosecution service" or, if an acronym is preferred, it will be the "PPS", like the CPS in England and Wales. That will not under any circumstances be confused with the police service. Therefore I do not believe that there is any good reason for changing the name because of the risk of confusion.

While I respect and understand the sentiments expressed by the noble Lord, this is not an occasion for any concern about the name. I invite him to withdraw his amendment.

Baroness Park of Monmouth

My Lords, before the noble and learned Lord sits down, perhaps I may direct him to Schedule 8 to the Bill, on line 21 of page 99. He will notice that the office referred to is: Her Majesty's Chief Inspector of the Crown Prosecution Service". Is that a slip?

Lord Goldsmith

My Lords, I am happy to answer the question put by the noble Baroness, although I do not think that it arises out of anything that I have said. It is a reference to the Crown Prosecution Service which exists in England and Wales and therefore it relates to that and not to anything else. I hope that that helps the noble Baroness.

Lord Laird

My Lords, I am most grateful to the noble and learned Lord the Attorney-General for setting out his reasons for not accepting the amendment. I must say that there was nothing surprising in what he said, but the debate has allowed me the opportunity to make my points. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith

moved Amendment No. 56: Page 96, leave out lines 35 to 43 and insert— 32 In section 9(1) of the Official Secrets Act 1989 (c. 6) (proceedings for offence under that Act), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland". 33 In Article 8(11) of the Iraq and Kuwait (United Nations Sanctions) Order 1990 (S.I. 1990/1651) (as substituted by the Iraq and Kuwait (United Nations Sanctions) (Second Amendment) Order 1990 (S.I. 1990/2144)) (proceedings for offence under that Order). for "Attorney General for Northern Ireland or" substitute "Advocate General for Northern Ireland or the Attorney General for". 33A In section 31(1) of the Chemical Weapons Act 1996 (c. 6) (proceedings for offence under section 2 or 11 of that Act), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland". 33B In section 117(3)(b) of the Terrorism Act 2000 (c. 11) (proceedings for offence committed for purpose connected with affairs of country other than United Kingdom), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland". 33C In—

  1. (a) section 55 (proceedings for offence under section 47 or 50), and
  2. (b) section 81(1) (proceedings for offence under section 79 or 80),
of the Anti-terrorism, Crime and Security Act 2001 (c. 24), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland". The noble and learned Lord said: My Lords, I beg to move this amendment standing in the name of my noble and learned friend the Lord Privy Seal. It is a technical amendment which adds further offences to the list of those in relation to which the Advocate-General for Northern Ireland must give consent before a prosecution can be undertaken.

As your Lordships will recall, after devolution the new local Attorney-General will have no power to consent to prosecutions. The Director of Public Prosecutions will exercise most consent provisions, but a very few—for example, in the fields of national security and international relations—will be exercised by the Advocate General for Northern Ireland. Schedule 7 lists the offences for which the Advocate General's consent will be required. I beg to move.

On Question, amendment agreed to.

Clause 29 [Public Prosecution Service]:

[Amendment No. 57 not moved.]

10 p.m.

Lord Goldsmith

moved Amendment No. 58: Page 18, line 36, at end insert— (8) The Director may set up and maintain such offices, in such places in Northern Ireland, as he considers appropriate for the exercise of his functions. The noble and learned Lord said: My Lords, the criminal justice review recommended that the Public Prosecution Service should establish local offices from which the bulk of the prosecutorial work in their respective areas would be conducted.

We had originally thought it unnecessary to provide specifically for this in the Bill. However, given that such a power exists in the Prosecution of Offences (Northern Ireland) Order, we have now taken the view that we should replicate this in the Justice (Northern Ireland) Bill for the purposes of clarity. There is an equivalent provision in the Prosecution of Offences Act 1985 in respect of the English and Welsh Crown Prosecution Service. I hope that your Lordships will agree that the amendment is fully consistent with the review and can therefore be accepted. I beg to move.

On Question, amendment agreed to.

Clause 36 [Exercise of functions by and on behalf of Service]:

[Amendment No. 59 not moved.]

Lord Goldsmith

moved Amendment No. 60: After Clause 37, insert the following new clause—

"EQUALITY AND NON-DISCRIMINATION (1) Section 75 (duty on public authorities to have regard to need to promote equality of opportunity and good relations between different groups) and section 76 (discrimination by public authorities) of the Northern Ireland Act 1998 (c. 47) are amended as follows. (2) In subsection (3) of section 75, after paragraph (cc) insert— (cd) the Director of Public Prosecutions for Northern Ireland;". (3) After subsection (4) of that section insert— (4A) The references in subsections (1) and (2) and Schedule 9 to the functions of the Director of Public Prosecutions for Northern Ireland do not include any of his functions relating to the prosecution of offences. (4) In subsection (7) of section 76, after paragraph (e) insert— (ea) the Director of Public Prosecutions for Northern Ireland;". (5) After that subsection insert— (8) This section does not apply to a decision of the Director of Public Prosecutions for Northern Ireland not to institute, or to discontinue, criminal proceedings or, where such a decision has been made, to any act done for the purpose of enabling the decision whether to institute or continue the proceedings to be made or for securing that the proceedings are discontinued. (9) No injunction may be granted in respect of a contravention of this section by the Director of Public Prosecutions for Northern Ireland unless the court is satisfied that it would not prejudice any decision to institute criminal proceedings or any criminal proceedings. (10) Where a party to proceedings for a contravention of this section applies for a stay of those proceedings on the ground of prejudice to a decision to institute criminal proceedings, or of prejudice to particular criminal proceedings, the court must grant the stay unless it is satisfied that continuance of the proceedings for the contravention would not result in the prejudice alleged."

The noble and learned Lord said: My Lords, during Grand Committee, the noble Lord, Lord Desai, drew to our attention the issue of whether the office of the Director of Public Prosecutions should be designated under Section 75 of the Northern Ireland Act. I am grateful to him for raising that point. A similar amendment had been tabled in another place by the honourable Member for Newry and Armagh in respect of designation for both Section 75 and 76 purposes.

As noble Lords will be aware, Section 75 places a statutory duty on bodies to, have due regard to the need to promote equality of opportunity", between groups within the nine categories of people set out in the Northern Ireland Act. It also requires them to, have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group".

Section 76 makes it unlawful for a body to discriminate on the grounds of religious belief or political opinion.

In response to the comments of the noble Lord, Lord Desai, I explained that the Government kept the list of bodies subject to designation continuously under review. We thought it right that as many bodies as possible should be subject to such duties but that we needed first to consider the consequences that designation might have on bodies such as the prosecution service.

I drew attention to the fact that a decision to prosecute must be made independently and based on the facts alone, as I am sure all noble Lords will agree. While we supported the idea of designation in principle, we needed to give careful thought to how the independence and integrity of the director and the prosecution process could be maintained.

As I told noble Lords who participated in the debate in a letter last week, I am pleased to say that we have made good progress in looking at that issue. I am grateful to the Director of Public Prosecutions and his colleagues, who have played a significant role in working through these issues. The progress has been such that we are now in a position to use the Bill as a vehicle for designating the Director of Public Prosecutions for the purposes of both Sections 75 and 76, rather than waiting to do so through another vehicle.

We have identified certain limited safeguards which will give the protections necessary to ensure the continuing independence of the Director of Public Prosecutions and the even-handedness of the prosecution process. With those safeguards in place, these duties can now be accepted.

So far as concerns Section 76, what we have done is essentially to replicate the exceptions that are made for the English and Welsh Crown Prosecution Service, which is subject to a similar statutory duty in respect of race relations.

There is no exact equivalent to Section 75 for the English and Welsh Crown Prosecution Service, but we have applied the same principle of safeguarding the prosecution process. That is done by seeking in both cases to put the prosecution process into a different category.

For the absence of doubt, I should make it clear that the obligation under Sections 75 and 76 will apply to the Director of Public Prosecutions in relation to the recruitment of public prosecutors. That is an important part of what the amendment is designed to achieve.

In Grand Committee, I said that the normal vehicle for designating bodies under Section 75 was a designation order. But, as I hope noble Lords will agree, the benefit that we have by bringing this forward is that, by using the Bill before us, we are able to include the exceptions to which I have referred, and for the reasons I have identified. That makes it sensible to bring this proposal forward at this stage. I hope that noble Lords will agree that this is a beneficial amendment. I beg to move.

Lord Mayhew of Twysden

My Lords, it seems to me that the exceptions that have been explained to us by the noble and learned Lord the Attorney-General are sensibly drafted. They are certainly necessary, and I am reassured by the fact that apparently Sir Alasdair Fraser, the DPP for Northern Ireland, is entirely content with them. I believe this to be a very satisfactory amendment.

Lord Brooke of Sutton Mandeville

My Lords, I wish my remarks to be treated as being generous and not to be misunderstood. The noble and learned Lord the Attorney-General was not present at another part of the Grand Committee proceedings where I alluded to the slowness with which these issues were addressed in terms of Section 75 at an earlier stage of the period after the Belfast agreement. I am grateful to the noble and learned Lord for the phrase "under continuous review". At that stage, "continuous review" appeared to some of us to be bordering on eternity. On this occasion, eternity has been swept away. It has been done extremely briskly, and I congratulate the Government on having done it.

Lord Desai

My Lords, I thank my noble and learned friend for taking on some issues that I raised in Grand Committee.

Lord Goldsmith

My Lords, I can only thank the noble and learned Lord, Lord Mayhew, and the noble Lords, Lord Brooke and Lord Desai, for welcoming the amendments. I am very glad to have managed to achieve something which appears to produce such favour in the House.

On Question, amendment agreed to.

Clause 45 [Functions of Chief Inspector]:

Lord Glentoran

moved Amendment No. 61: Page 27, line 2, leave out from "of" to end of line 17 and insert "all organisations in possession of criminal investigatory powers The noble Lord said: My Lords, we have come rather late at night to a part of the Bill which I view as especially important. Perhaps progress on it is slightly unclear. If it is, that is probably my fault. I was hoping—perhaps hope against hope—that after Grand Committee the Government might come forward with an amendment to solve the problems. I sensed that the noble and learned Lord the Lord Privy Seal agreed—I apologise if I am wrong—that, to put it politely, the functions of the chief inspector in Clause 45 need a little work. They need tidying up. I sensed that Members on all sides of the House, including the Government, felt that the list was not complete. Perhaps it could not be complete. I had hoped that we might be able to include an all-encompassing clause with examples, as has happened elsewhere in the Bill. Amendment No. 61, which would add, all organisation in possession of criminal investigatory powers", was drawn up after much thought, not just by myself, but by some rather brighter brains down the corridor.

Unless the Government are inclined to table their own version, I would rather reserve the main thrust of the debate and any decisions on the amendment until Third Reading. To some extent this depends on what the Government want to do. I have said that I have no intention of dividing the House tonight, but I wish to be in a position to press the amendment on Third Reading if we cannot reach an accommodation before then.

Unless the noble Baroness or the noble and learned Lord the Lord Privy Seal tell me that it will not be possible, I feel that we can go forward on the issue before Third Reading. I know that there are sensitivities relating to the police ombudsman and others and I know that Mr Des Browne from the other place has done some work behind the scenes. If noble Lords in the Unionist party agree, I would prefer not to press the amendment tonight. If the Government wish to come in, far be it from me to stop them. I beg to move.

The Deputy Speaker (Lord Lyell)

My Lords, advise the House that if Amendment No. 61 is agreed to, I shall not be able to call Amendments Nos. 62 to 66 inclusive.

Lord Maginnis of Drumglass

My Lords, I shall be brief at this time of night. I agree with the substance and the sentiment expressed by the noble Lord, Lord Glentoran.

I shall make a similar point to that which the noble Lord made on the Government's slowness in tabling amendments to Clause 45 that they have recognised are necessary. I am particularly, but not exclusively, concerned about the position of the Police Ombudsman for Northern Ireland, who has extremely limited accountability at present. The only alternatives to what the police ombudsman may decide are judicial review or an annual report to the Secretary of State for Northern Ireland. That was not the intention of Dr Maurice Hayes, whose report led to the establishment of the police ombudsman.

I do not want to speak for or appear to put words into the mouth of Dr Hayes, but it appears from some of his comments that he is not a little disquieted by the lack of accountability from the Police Ombudsman for Northern Ireland.

It is essential that the remit of the new chief inspector of criminal justice is as comprehensive as possible in order that he or she can properly fulfil his or her functions. As the noble Lord, Lord Glentoran, intimated, the Parliamentary Under-Secretary of State for Northern Ireland, Des Browne, accepted that point in Committee in another place. Therefore, in my interpretation, the Government have already accepted that the list of organisations which should he inspected by the chief inspector should be as comprehensive as possible. Why is there such tardiness in completing the list?

From correspondence which I have seen, I understand that, before the end of April, an additional 19 organisations including the police ombudsman were consulted about their possible inclusion in the list of organisations in Clause 45. As there has already been proper consultation, and as the Minister in another place has accepted the need for a comprehensive list of organisations, it is now wholly appropriate that the chief inspector's remit should be extended to include that list of defined organisations.

The point is particularly important in so far as, in Committee in another place, the Minister indicated that the role of the chief inspector of criminal justice would be to "cross cut" various organisations in the course of his or her inspection. Therefore. if a given case involved, for example, the Police Service of Northern Ireland, the forensic department and the pathology lab as well as the police ombudsman, the chief inspector should be able to trace the case right through all those organisations. Currently, however, the chief inspector's cross-cutting inspection would be curtailed and the trail would run out when he or she reached the office of the police ombudsman.

Such a position is wholly unreasonable and untenable. It really is beyond my comprehension, as I imagine it is beyond the comprehension of many noble Lords, that the Government have been so tardy in trying to complete the list of organisations that will fall under the remit of the chief inspector of criminal justice.

At this time of night I shall not pursue other issues such as Consignia or the Financial Services Authority. I should hope that all such organisations will be included on the Government's list, which we hear about, of 19 other organisations. However, on the basis of events already occurring daily in Northern Ireland, of all those organisations, none has a greater impact and causes more concern in relation to unaccountability than the office of the police ombudsman.

10.15 p.m.

Lord Williams of Mostyn

My Lords, I am grateful for the approach of the noble Lords, Lord Glentoran and Lord Maginnis. Perhaps I can remind the House that this group of amendments comprises Amendments Nos. 61, 63, 64, 65, 66 and 67. Amendment No. 61 is distinct and I shall deal with it separately if I may. However, Amendments Nos. 63 to 67 inclusive deal with a wish to include specified organisations.

The noble Lord, Lord Maginnis, said that the Government had been tardy. Nothing could be further from the truth. We are in a process of consultation with about 20 bodies, with a view to adding to the list of specified organisations at Clause 45(1). My colleague, Des Browne, wrote to the organisations concerned on 28th February inviting responses by 19th April. We have had a number of meetings and interim correspondence with various of those organisations but many of them wanted more time to consider the issues. My colleague, Des Browne, agreed that the deadline should be extended to the end of June.

We are still having consultation with many of the possible candidates. Further organisations can, of course, be added by order by virtue of Clause 45(6). Because of the suggestion from the former Delegated Powers and Deregulation Committee—to which, I have said on many occasions, we pay careful attention—we have put down a government amendment to Clause 89 making that order-making power subject to affirmative resolution, which constitutes a protection for the interests of this House.

I am sorry to say that Amendment No. 61 is misconceived but I understand from the spirit of the approach of the noble Lord, Lord Glentoran, that essentially it is a questioning if not a probing amendment. The trouble with Amendment No. 61, were it to be carried, is that the chief inspector could inspect only organisations in possession of criminal investigatory powers. However, that would exclude most of the organisations mentioned in subsection (1) of Clause 45. It would exclude, for example, the Compensation' Agency, health and social services boards and health and social services trusts, the Juvenile Justice Board, the Probation Board for Northern Ireland and so forth. The desired outcome would not be achieved by Amendment No. 61.

I believe that I set out the position as regards Amendments Nos. 63 to 67 inclusive. The Government have not been tardy. Organisations have understandably asked for a little more time and my colleague rightly gave it to them. I hope that that explanation is of assistance.

Lord Glentoran

My Lords, I thank the noble and learned Lord the Lord Privy Seal for those comments. He is right to say that Amendment No. 61 is entirely probing, as I said in my opening remarks. However, I hope that the Government will have something significant, solid and prescriptive in the form of an amendment by Third Reading.

Lord Williams of Mostyn

My Lords, I simply want to help the noble Lord as he is always extremely courteous and helpful to me. I do not believe that the consultation will be concluded by Third Reading. I do not want any misunderstanding to creep in.

Lord Glentoran

My Lords, I thank the noble and learned Lord for that comment. Perhaps we could have some further meetings between now and then outside the Chamber. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62 not moved.]

The Deputy Speaker

My Lords, I have to advise your Lordships that Amendment No. 63 is identical to Amendment No. 66. Therefore, I shall not be able to call Amendment No. 66.

[Amendments Nos. 63 to 68 not moved.]

Clause 46 [Further provisions about functions]:

[Amendment No. 69 not moved.]

Clause 48 [Reports]:

[Amendment No. 70 not moved.]

Clause 50 [Duties of Commission]:

Lord Rogan

moved Amendment No. 71: Page 30, line 40, leave out paragraph (c) and insert— () In performing its duties, the Commission may consult any equivalent national law commission. The noble Lord said: My Lords, at this late hour I beg your Lordships' indulgence to speak briefly to Amendment No. 71. Your Lordships will be aware that perceptions count for much in Northern Ireland. A perception which I am afraid will gain credence in Northern Ireland is that something strange is going on; in other words, that murky dealings are going on as regards the requirement for the Law Commission to be obliged to consult the Law Reform Commission of the Republic of Ireland.

I remind your Lordships that the Bill states: In performing its duties the Commission must consult". What is the special reason why the Law Reform Commission of the Republic of Ireland should be put in the same privileged position as the Scottish Law Commission and the Law Commission? For what reason is the Republic of Ireland placed ahead of any other Commonwealth country and any other member state of the European Union? I again ask the noble and learned Lord the Minister to explain fully why the Government included the Law Reform Commission of the Republic of Ireland as a compulsory consultee. My fear is that there may be a resulting perception—or perhaps misperception—in Northern Ireland. That would be prevented if noble Lords agreed to the amendment. I beg to move.

Lord Maginnis of Drumglass

My Lords, most noble Lords would be surprised if I did not endorse the amendment that was moved by my noble friend Lord Rogan.

Earlier this evening, I asked the noble and learned Lord the Lord Privy Seal a specific question about external influences in Northern Ireland in respect of judicial appointments and other matters pertaining to the judiciary. I have no doubt that the noble and learned Lord understood the nature of my question. With respect, he bypassed it by alluding only to the specific amendment that I had moved.

It is important for us to discover here and now why there has to be a particular and specific reference to the Irish Republic in this context. We have to discover what part the Irish Republic currently plays—directly or indirectly—through government, government agencies, the law commission of the Irish Republic and any other way in the day-to-day work and structure of the judicial process in Northern Ireland. We need to know what the future intentions are. Will that arrangement be increased? If it currently exists—many of us suppose that it does—what are the intentions with regard to regularising it? It is totally and utterly unacceptable that such a situation should, in some opaque fashion, be allowed to occur.

There is a lack of confidence in Northern Ireland at the moment. There is a feeling that the efforts that we made to reach an equitable and fair agreement in the Belfast agreement in April 1998 are being constantly, deliberately and callously eroded to the extent that the whole process is in great danger. I therefore hope that, despite the late hour, the noble and learned Lord will give us a full and detailed answer about the dilemma that is facing us.

Lord Mayhew of Twysden

My Lords, I expect to hear from the noble and learned Lord the Leader of the House that there is a provision in the Good Friday agreement or in some predecessor agreement that explains and justifies the inclusion of the Law Reform Commission of the Republic of Ireland in this little group in Clause 50(4). If there is such a provision, I am sure the noble and learned Lord will identify it. if there is not, I express my support for the amendment. That is not out of lack of sympathy for the need in appropriate cases to consult with and to act congenially and consistently with the legal processes in the south, in the Republic. I say "where appropriate" because there will be circumstances where it is not.

Having had some involvement over quite a. long time in the negotiations which reach their culmination in what has been described rightly as the great achievement of this Government in 1998, the Belfast agreement, I have long recognised the need, where appropriate, for consistency with what is happening in the Republic; and for bringing into consultation organisations in the Republic.

However, I have also a vivid recollection of the suspicions and anxieties of which the noble Lord spoke in moving the amendment. If there is no specific provision in any agreement which is responsible for and explains the inclusion of the Republic of Ireland's Law Reform Commission in this group, I anticipate that those suspicions will be fuelled. We can all regret the fact that they exist but, equally, I am sure we agree that there is a duty on all of us not unnecessarily to reinforce them.

10.30 p.m.

Lord Williams of Mostyn

My Lords, the answer to the noble and learned Lord, Lord Mayhew of Twysden, is plain. The document where one finds this recommendation is the review recommendation 245. It is quite plain and unambiguous that that is what should be done and we have accepted that. Whether or not one agrees with every recommendation, the noble and learned Lord's experience of the review is that it was certainly a painstaking and wide consultative exercise carried out with a composition which was widely representative of different views in. Northern Ireland. I believe that its conclusion is right. It strikes me as being particularly appropriate because there is a close historic and legal common tradition in different ways—not altogether a tradition of uniformity but a legal, cultural and historical tradition—which has in the past united the Republic, Northern Ireland, Scotland and England and Wales. Perfectly fairly, the noble Lord, Lord Rogan, asked me why it should not include the Commonwealth or the European Union. My answer is plain. What similarity of legal tradition is there between our legal and judicial system and that of France, Germany, Spain, Italy or Belgium? There is virtually none. They are not accustomed to jury trials. They are accustomed to inquisitorial not accusatorial trials. Their entire tradition, I think I can say about France and Belgium, has been post-Napoleonic. That has not, happily, been our experience.

I suggest to noble Lords that it is necessary to understand that this is not exclusive. There is nothing in the Bill to prevent wider consultation. Indeed, certain state jurisdictions in the United States might be helpful; otherwise the descendants of the Napoleonic code and tradition in the United States would not be suitable. So it is perfectly simple. There is no conspiracy. There is no hidden agenda. The louder I say it, and the clearer and more unambiguously I say it, the better.

I believe that the noble and learned Lord also asked whether there was interference in any other way in the day-to-day judicial process in Northern Ireland. There is not. If there were any attempt to interfere improperly in any way from any quarter—whether Republic of Ireland, or other—with the judicial process in the Province, I know that the noble and learned Lord would be the first to join me in saying that it would encounter a very prompt bloody nose from the judges. There is no conspiracy. It is perfectly sensible to look at the traditions that we have shared. I have in mind legal traditions that are not entirely uniform; they are sometimes diverse.

The suggestion here is based on recommendation 245, which brought about the requirement in the legislation that these relevant—I stress the word "relevant"—law commissions in countries with a similar common judicial and legal tradition should be consulted. One can find conspiracies everywhere, even a conspiracy of one. But, I am sorry to say, there is no conspiracy—even at this hour of the night.

Lord Maginnis of Drumglass

My Lords, before the Minister sits down, perhaps I may say that I am reassured to a degree by his response. However, under the present arrangement is a High Court appointment bounced off the Irish authorities before it is implemented? Is that what is happening? Is that what this provision in the Bill is intended to perpetuate?

Lord Williams of Mostyn

My Lords, perhaps I may explain the position again. What we are looking at here is the Law Commission, which has nothing at all to do with the appointment of judges. That is a matter for the Judicial Appointments Commission. However, they share one characteristic—namely, a common noun—but they share no other. I do not believe that I can explain the position any more plainly.

The commission that we are discussing is the Law Commission. It is a scholarly body that seeks to reform the law. I appreciate that it must be regarded as an uphill struggle, because many of its reports in the United Kingdom have not been dealt with for the past 20 years. I repeat: this has nothing to do with the appointment of judges. Law commissions consider the substance, the structure, and the process of law. They do so in a detached, dispassionate, academic and scholarly way. They produce their reports, after which a draft Bill is produced. Then, 20 years later, someone does something about it—on a lucky day with a following wind. At this point, your Lordships will understand that I am not, in any circumstance, talking with a word called "taxi" on my mind.

When we introduce and act upon the forthcoming excellent "red report" from the Leader's group on working practices, which I commend to the House, and after it has received unanimous acceptance on 17th July, there will be opportunity in September for Grand Committees to sit and scrutinise Law Commission Bills. Indeed, only those—I speak directly to the noble Baroness, Lady O'Cathain—who have a pulsating interest in law reform Bills would be expected, let alone required, to attend.

This provision has nothing to do with the appointment of judges. However—a famous word in your Lordships' House—if it did have to do with the appointment of High Court judges, to use the noble Lord's graceful phrase, High Court appointments are not "bounced off" the Irish Government. They are not the business of the Irish Government, any more than it is our business to try to interfere with who the Chief Justice of the Republic of Ireland is, excellent though he may be in every way.

Lord Rogan

My Lords, I believe that the Minister said that this Bill would in no way prevent the Law Commission from consulting any other common law jurisdiction. I have no difficulty with that. However, if that is the case, why specifically put into the Bill the Law Reform Commission of the Republic of Ireland? Why not leave it in the same way as any other common law jurisdiction to which reference could be made?

Lord Williams of Mostyn

My Lords, under the duties of the commission, as specified in the Bill, it is directed—rightly, one would have thought—to consult with relevant proximate law commissions. That is why the Law Reform Commission of the Republic of Ireland is not singled out; it is included with the Law Commission of England and Wales—an excellent body—and the Scottish Law Commission. I repeat that it is not directed to look at Italy, Spain, France, Germany, Belgium or even Luxembourg because, even with the best telescope in the world, it would be difficult to find any benefit in mandatory consultations with them. So we are looking for proximate and relevant jurisdictions; in other words, the voice of reason is speaking however quietly.

Lord Rogan

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at eighteen minutes before eleven o'clock.