Justice (Northern Ireland) Bill [H.L.]

HL Deb 16 December 2003 vol 655 cc1091-120

5.11 p.m.

Baroness Amos

My Lords, I beg to move that this Bill be now read a second time. When we introduced the first justice Bill for Northern Ireland two years ago, we knew that we were starting out on a journey of reform and modernisation of the criminal justice system there. That Bill did not, and could not, represent the closing chapter on criminal justice reform in Northern Ireland when it received Royal Assent in July 2002.

All justice systems must continue to evolve. They cannot be allowed to sit still and to ossify or they will cease to meet the needs of modern society. As well as being effective, efficient and fair, they must reflect the community they serve and be prepared to change as society changes. This Bill therefore represents a continuation of the journey towards a better, more modern justice system for Northern Ireland. Such a justice system will benefit all the people of Northern Ireland in equal part and will create even higher levels of trust and confidence in the justice system.

This justice Bill continues the themes of openness, transparency and accountability which run through the Justice (Northern Ireland) Act 2002. By further enhancing those characteristics we hope to instil even greater confidence in the justice system. The key elements on which this Bill makes provision are judicial appointments, the prosecution, human rights in the criminal justice system and bail. I will speak on each of its main provisions in turn.

First, the Bill provides for the establishment of a Judicial Appointments Commission prior to the devolution of responsibility for criminal justice matters. The 2002 Act provides for the commission to be established post-devolution, as the Criminal Justice Review recommended. But we see merit in bringing forward the establishment of the commission to ensure that the appointment processes for the judiciary are more transparent and encourage a wider range of applicants than ever before. That should make an important contribution towards enhancing public confidence in the Northern Ireland justice system. The Justice (Northern Ireland) Act 2002 enshrines the principle of continuing judicial independence. The Government remain firmly committed to that.

The Secretary of State for Constitutional Affairs will have ministerial responsibility for the Judicial Appointments Commission prior to devolution of justice functions. Noble Lords are aware that a Bill on constitutional reform will be brought before the House this Session. We are, of course, mindful of the need to ensure that the Justice (Northern Ireland) Bill sits comfortably with any wider constitutional reforms that might be carried in the other Bill. We do not anticipate any difficulties. However, noble Lords have my assurance that we will make any consequential adjustments to the Justice (Northern Ireland) Bill by way of government amendment if it is necessary to do so.

Turning to the other judicial appointments provisions, the 2002 Act stipulates that the lay members of the commission should be representative of the community. The Bill now provides that the composition of the commission taken as a whole will, as far as possible, be reflective of the community in Northern Ireland. I know that the noble Lord, Lord Smith of Clifton, who played a very important part in this, will claim credit for it; I acknowledge the role of the noble Lord. We think that it is right, in principle, to make this change in the interests of enhancing public confidence.

Merit has been and will continue to be the overriding principle for judicial appointments. That is non-negotiable. A key objective of the commission will be to engage in a programme of action to secure a judiciary that is reflective of Northern Ireland society. I want to make it clear that we are not in the business of appointing applicants on the basis of political opinion. Also, reflectiveness applies not just to religious background. There is a strong need for more applications from women and those from an ethnic minority background. Again, this change will help to promote confidence in the judiciary among all the people of Northern Ireland. The duty set out in the 2002 Act—to ensure that a range of applicants reflective of the community is available for consideration by the commission—is retained alongside this key objective.

It is envisaged that the programme of action will focus on any equal opportunity issues that could have implications for the judicial appointments process, as well as how to stimulate interest from a broader range of applicants suitable for judicial office. It is intended to establish an outreach consultative forum which will include representatives of the judiciary, the Bar, the Law Society and the Equality Commission. The forum's terms of reference will be to consult on what measures may be taken to secure a judiciary in Northern Ireland that is reflective of society, consistent with the requirement of appointment on merit. The matters likely to emerge from the forum will include consideration of the scope for part-time working, use of deputies, the present eligibility requirements and the judicial career path.

The 2002 Act placed time limits on lay membership of the commission. We think that it is right that judicial members of the commission should have the same time limits applied to their membership as currently apply to the non-judicial members, and the Bill provides for that.

When appointing the Lord Chief Justice and Lords Justices of Appeal after devolution, the First Minister and Deputy First Minister, acting jointly, will make recommendations to the Prime Minister. The Lord Chief Justice, as the head of the judiciary in Northern Ireland, will be consulted and his views will be made known to the Prime Minister. The Prime Minister will then make a recommendation to Her Majesty the Queen. That improves upon the formulation used in the 2002 Act by bringing it closer to the original recommendation of the Criminal Justice Review.

The 2002 Act provided for the establishment of judicial tribunals to consider the removal or suspension of judges after the devolution of justice matters. This Bill provides that if a tribunal recommends that a judge be removed or suspended from office, the Lord Chief Justice will be consulted. His agreement to the removal or suspension is no longer required.

Again, building on the 2002 Act, a duly is placed on the Director of Public Prosecutions to refer all cases of suspected police malpractice to the Police Ombudsman. That duty places the onus on the Police Ombudsman to make decisions about suspected police malpractice. Again, it more closely reflects the original review recommendation. The 2002 Act asserted the independence of the Director of Public Prosecutions in Northern Ireland. That is another principle that is non-negotiable.

Creating an offence of seeking to influence the prosecution decision-making process will ensure that those who attempt to impinge on the independence of the prosecution will be brought to account. The offence is linked to the idea of perverting the course of justice to ensure that innocent approaches, such as a doctor passing medical information to the director or a person writing in defence of a relative, are not criminalised. It is activities with malicious intent that we are targeting with this offence. An example of that malicious intent might be if someone were to attempt deliberately to mislead the director in making a decision about whether or not to prosecute.

The Criminal Justice Review concluded that human rights and dignity should be a core value of the criminal justice system in all its aspects. The Government fully endorse this view. In order to integrate human rights awareness into the criminal justice system still further, a requirement is placed on criminal justice organisations to have due regard to guidance on relevant international human rights standards in carrying out their functions.

A right of appeal for the prosecution against the grant of bail by a magistrate's court is introduced. The police are keen for this right of appeal to be introduced, bringing Northern Ireland into line with Great Britain. It is also supported by the Director of Public Prosecutions.

The Bill brings arrangements for breach of bail in scheduled cases into line with current practice in non-scheduled cases and makes some minor amendments in relation to the treatment of those on bail in non-scheduled cases.

The independent review of security in Maghaberry Prison conducted by John Steele concluded that republican and loyalist paramilitary prisoners should, on a voluntary basis, be accommodated separately from each other and from other prisoners. That recommendation has been accepted and work to implement it is on-going. The review also recommended that these new separated arrangements should be backed by a range of measures to prevent deterioration into segregation as it operated in the Maze.

The Bill introduces as one such measure a new power allowing the transfer of a prisoner from Northern Ireland to another prison in England or Wales in the interests of maintaining security and good order in prisons. Northern Ireland has only one high security prison and the dispersal of troublesome prisoners within the Northern Ireland Prison Service estate is not therefore possible. The need for the prisoner to remain in England and Wales will be reviewed on a regular basis and he or she will be returned to Northern Ireland as soon as it is assessed that his or her transfer is no longer necessary. Arrangements will be made to ensure that the prisoner will not be disadvantaged as regards family visits or, in the case of remand prisoners, access to legal advice.

The Bill will amend Section 103(2)(e) of the Terrorism Act 2000. The Northern Ireland (Emergency Provisions) (Amendment) Act 1975 criminalised intelligence gathering against those working in the prison service in Northern Ireland. The Terrorism Act 2000 makes it an offence to collect information relating to, a full-time employee of the prison service". This does not offer the same degree of protection to all classes of prison staff. Part-time workers are now protected in line with the recommendations of the noble Lord, Lord Carlile of Berriew, in his independent review of the Terrorism Act 2000.

I turn to arrest without warrant for the offence of driving while disqualified. The Chief Constable of the Police Service of Northern Ireland is anxious to have this power, which exists in the rest of Great Britain. Taking firmer action against the serious problem of disqualified driving is something I hope noble Lords will be able fully to support.

The powers of court security officers, as set out in the 2002 Act, are built on to ensure that all relevant buildings have adequate protection.

Finally, the Bill deals with the fact that, at present, barristers in Northern Ireland cannot enter into contracts for the provision of their services, whereas in England and Wales they can do so. The Bill brings the situation in Northern Ireland into line with that in England and Wales.

The Government look forward to the day when decisions on the local justice issues that matter to local people will be placed in the hands of local Ministers. We are confident that that will happen when the time is right—when we have a stable Assembly and executive, when there is an enabling security environment and when the local parties are ready to make the devolution of justice a reality. In the mean time, we have a responsibility to prepare the way by improving and modernising the criminal justice system in Northern Ireland in a way that maximises public confidence and political support.

I believe the provisions contained in this Bill mark an important further step in the reform and modernisation of the justice system in Northern Ireland. The Bill will help to provide for an even fairer, more efficient and more effective justice system. The Bill will provide for a justice system that is more transparent, open and accountable; a justice system that will instil even greater levels of confidence in all parts of the community. I commend the Bill to the House.

Moved, That the Bill be now read a second time.— (Baroness Amos.)

5.24 p.m.

Lord Glentoran

My Lords, I thank the noble Baroness for setting out so clearly the details of the Bill before your Lordships' this afternoon. I also thank her for giving me the courtesy of a short discussion about it, and her officials for their considerable help in briefing noble Lords on this side of the House who are interested in this legislation.

It was clear from the opening speech of the noble Baroness that the origins of the Bill owe very little to the merits or otherwise of the individual measures it proposes. The Bill has not been brought forward as a result of any issue of great principle.

As a result of the Belfast agreement we had a major review of the criminal justice system which reported to the Government in the spring of 2000. The Government then spent more than a year considering that review and discussing its contents with all the relevant parties. The results of those deliberations appeared in the Justice (Northern Ireland) Bill which was introduced in the other place in December 2001, almost two years ago to the day. It received Royal Assent on 24th July last year. That was the conclusion of a process that, despite our disagreement with some elements of the final outcome, had evolved over a period of roughly three years.

So, what fundamental flaw in that process, and what error of judgment, has caused the Government to have to return to Parliament with a second justice Bill in the space of a little over a year? Why is it that the Government believe that now is the right time to bring forward such a Bill?

The answer is quite straightforward. The reality is that the primary motivation for the Bill is not the justice system, although it does make some important changes on which I shall comment and support later. The real motivation for this measure is politics; it is about maintaining the momentum in the peace process and trying to induce republicans into supporting the Northern Ireland criminal justice system as a precursor to the hoped-for devolution of justice during the lifetime of the current Northern Ireland Assembly, a matter just referred to by the Minister.

As noble Lords will be aware, the real origins of this Bill lie in the negotiations that took place at Hillsborough on 3rd and 4th March this year and which culminated in the Joint Declaration by the British and Irish Governments. The declaration also made clear that the Government would bring forward, a second criminal justice Bill which will bring forward the creation of a judicial appointments commission and make further provision to promote a human rights culture in the criminal justice system in Northern Ireland". The Joint Declaration was intended to establish a basis on which the Assembly and the executive could be reconstituted following elections in May 2003. As we all know, those elections had to be postponed. In October the Government tried again to piece together a deal, but that too failed. Eventually, elections were held on 26th November this year.

The DUP and Sinn Fein emerged as the largest parties within their respective communities; the moderates had lost. We wish the Government well in their talks this week with the parties, but the sombre reality is that the task of restoring the Assembly and the reforming of an executive looks even more difficult than ever.

I say that much more in sorrow than anger because this is a direct and predictable consequence of the tactics that Her Majesty's Government have used over the past five-and-a-half years. The strategy of appeasement began with the release of prisoners with no quid pro quo undertaking, and I am afraid that that strategy is not yet finished. This process has caused Her Majesty's Government to lose the support of the majority of the Unionist population, which it had at the time of the referendum. Sinn Fein is seen among nationalists as the party that delivers and the Unionists see a process of one-sided concessions and side-deals that undermine their confidence in the political process.

We also question the timing in the context of the Government's proposed constitutional reforms, including a Judicial Appointments Commission for England and Wales and the planned abolition of the Lord Chancellor. I thank the Minister for giving the undertaking, as she assured me she would, in relation to changes that might be needed for Northern Ireland as a result of legislation for England and Wales.

Turning to the details of the Bill, Clause 1 proposes to give the Secretary of State the power to establish a Judicial Appointments Commission for Northern Ireland, rather than the First and Deputy First Minister, following devolution, as contained in the current Act. The Secretary of State is not specified, although we are told it means the Secretary of State for Constitutional Affairs. The noble Baroness made that clear this afternoon. That is fine as things stand, as the Secretary of State for Constitutional Affairs is currently the Lord Chancellor and he, by convention, is a legal figure of some standing who has taken the judicial oath. Yet what happens if the Government get their way and abolish the Lord Chancellor? The Secretary of State for Constitutional Affairs will not be the Lord Chancellor but simply another party politician. He need not even be a lawyer, or have any legal background at all. As such, it is difficult to see how political influence in the judicial appointments process is reduced. Would it not be sensible, therefore, to delay the Bill until the role of the Lord Chancellor is clarified?

The Government insist that appointments to the judiciary will be made solely on merit, and that is explicitly set out in Clause 3. Yet the same clause also states that, the Commission must engage in a programme of action designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in Northern Ireland". What is meant by a programme of action? How will it operate in practice? And how can placing such a duty on the commission be squared with the principle of appointment solely on merit? There is clearly a contradiction here. The merit principle must be absolute. As the noble Lord, Lord Hutton, a distinguished former Lord Chief Justice of Northern Ireland, said on Second Reading of the 2002 Act: It is clearly vital that a judge should be appointed on merit alone and that appointments should not be influenced by political considerations. That is all the more important in the highly charged political atmosphere of Northern Ireland. If judges are not appointed on merit the administration of justice will suffer, as will public confidence in that administration".—[Official Report, 3/5/02; col. 969.] It appears to us that the Government are weakening the merit principle at the same time as strengthening the political influence in appointments that the noble Lord, Lord Hutton, rightly warns us against.

What is meant by, "reflective of the community in Northern Ireland"? Does it refer to Protestants and Catholics? As the Minister is aware, Catholics have always been very well represented among the senior judiciary in Northern Ireland. Or is it Unionist and nationalist?

Moreover, judicial appointments will never strictly be reflective of the community, due to the nature of those who become solicitors or barristers. Northern Ireland, like other parts of the United Kingdom, has a criminal community, as well as communities of both persuasions still mainly under the influence of paramilitaries. Surely the Minister is not suggesting that they be reflected among the judiciary. However well intentioned, the aim is simply unachievable and could result in endless judicial reviews over appointments.

Clauses 4 and 5 increase the political influence in the appointment of the Lord Chief Justice and the Lord Justices of Appeal and in the removal or suspension from judicial offices. In the appointment of the Lord Chief Justice and the Lord Justices of Appeal, the First and Deputy First Minister are no longer to be merely consulted, but henceforth will "make a recommendation" to the Prime Minister. I note that the noble Baroness spoke of recommendations—however, the Bill refers to "a recommendation". In other words, before an appointment can be made, the First and Deputy First Minister must agree on a candidate to recommend to the Prime Minister who, in turn, makes a recommendation to the Queen. If this does not increase the potential for political influence, I do not know what does.

"A recommendation" obviously implies a single candidate. But what happens if the First and Deputy First Minister fail to agree, which is, I suggest, not beyond the bounds of possibility if the DUP and Sinn Fein hold those offices? And what if the Prime Minister rejects that recommendation? What happens then? The clear perception will be that the process is politically influenced. The "my turn now, your turn next time" syndrome comes into play.

Clause 5 weakens the power of the Lord Chief Justice in relation to the suspension from listed judicial offices at the expense of the executive. In the 2002 Act, the Lord Chief Justice has to agree before the First and Deputy First Minister can suspend a person. In this. Bill, he merely has to be consulted. I suggest that the independence of the judiciary is undermined; the influence of politicians is clearly enhanced.

These are the Opposition's criticisms of the Bill, and naturally we hope that the Government will reflect on them and agree to amend the Bill as it makes progress through the House. We do not object to the remainder of the Bill and can support some parts of it. We strongly welcome the fact that the Government have listened to some of the recommendations put forward by the Chief Constable of the Police Service of Northern Ireland, Hugh Orde, particularly on bail. There is also the power to arrest disqualified drivers, another concern of the Chief Constable.

It is a shame, however, that the Government could not have included other changes to the law that the Chief Constable believes are essential to tackling Northern Ireland's public order problem. For example, he has asked for the Crime and Disorder Act 1998 to be extended to Northern Ireland. Why can this not happen? If it is not possible to have the Act in full, he has set out certain measures that would be beneficial, such as anti-social behaviour orders, parenting orders, local curfew schemes, racially aggravated offences and the removal of truants to designated places.

We appreciate that there are some administrative difficulties in that the functions of local authorities in Northern Ireland are quite different from those in England and Wales. Yet these difficulties should not be insurmountable—and surely what is good law for England and Wales ought to be good law for Northern Ireland. I believe that, in this respect, Her Majesty's Government have missed an opportunity.

This is our approach to the Bill. We look forward to working with the Government to improve it when we return in the new year.

5.37 p.m.

Lord Smith of Clifton

My Lords, I, too, thank the noble Baroness the Lord President of the Council for introducing the Bill with clarity. We on these Benches were critical of one of its predecessors, the Justice (Northern Ireland) Act 2002, in that it created an extraordinarily complex judicial infrastructure for the size of the population it serves of some 1.5 million. It mimicked that of England and Wales in every way and every detail. An opportunity was missed to produce a system commensurate with the size of Northern Ireland which would have been more streamlined, efficient and cost-effective.

This side of the pearly gates—and even, dare I say, the other side of those gates—Northern Ireland is a lawyers' paradise. It will be interesting to see whether the provisions of Clause 17, allowing barristers to enter into contracts for the provision of their professional services, will be seen as adding further enhancement to that paradise.

I accept the analysis of the noble Lord, Lord Glentoran, of the timing of the Bill, although I put a different construction on it. I hope that it will encourage Sinn Fein to join fully in Northern Ireland's legal and judicial system, and I believe it will, with goodwill, help to maintain the momentum of progress for the Belfast agreement.

While we broadly accept and welcome the Bill, we have some concerns. With regard to Clause 1, we welcome the decision to press ahead with the establishment of the Judicial Appointments Commission before devolving responsibility for criminal justice matters to the Assembly. It is good to have a transparent process as soon as possible. However, we stress again the importance of lay members not being seen as political appointees. We asked a series of questions during the passage of the 2002 Act, which could be raised again. We believe that Assembly Members and Members of Parliament should be excluded—but should lay members be councillors or members of a political party? Should they be members of the security forces or of the police? Should they be on a district policing partnership? Should they be involved in community safety organisations? How will the Secretary of State ensure that the lay members do not suffer from a clash of interests? How will he or she ensure that the lay members of the Judicial Appointments Commission are representative in terms of gender, as the report of the Criminal Justice Review suggested, or of other ethnic minorities?

On Clause 2, I thank the Minister for generously acknowledging our contribution to the lexicon of Northern Ireland by talking about reflectiveness rather than representativeness. I note that the noble Lord, Lord Glentoran, sees the matter in a different light, but we believe that it is not merely an attempt to dilute things. In fact, it gives a greater precision in the sense that the word "representative" does not easily translate across the Irish Sea. In Northern Ireland, it tends in our view to mean something more like a delegate. We believe that "reflective" is a better way in which to describe the sort of balance that one would want to achieve between both communities, and gender and, if necessary, disability. I am glad that the Northern Ireland Office has taken our concerns on board.

Clause 4 deals with the appointment of the Lord Chief Justice and Lord Justices of Appeal. I tend to agree with the noble Lord, Lord Glentoran, in that the Bill somewhat dilutes the roles of the First Minister and Deputy First Minister in the appointment of those posts, but I differ in the interpretation. The Prime Minister must consider their recommendations, whereas previously the Prime Minister was to make appointments on the basis of their recommendations. Why has that change come about?

Clause 6 deals with the duty of the Director of Public Prosecutions to refer certain matters to the Police Ombudsman. The review states: We recommend that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated, [para. 4.133]". Any member of the public may report allegations of police malpractice to the Police Ombudsman. It would then be for the ombudsman to decide whether or not it would be appropriate for an investigation to take place. The Act added the head of the prosecution service to the list of those statutory office holders able to refer such matters to the ombudsman. The Government have given a commitment to introduce fresh legislation to place a requirement on the director to refer to the Police Ombudsman all cases in which a member of the police force may have committed an offence or behaved in a manner which would justify disciplinary proceedings. The timescale for that will coincide with the commencement of the phased implementation of the new Public Prosecution Service, following the pilot projects.

The Criminal Justice Review said: The early involvement of the prosecutor in a case raises the question of his or her role if he or she were to suspect malpractice on the part of the police investigators. We recommend that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated. This would be consistent with human rights guidelines and is in line with present practice. As for whether evidence secured in such circumstances should be deployed in court, that is a matter for the prosecutor who would take account of the human rights imperative of a fair trial and the need to avoid abuse of process. It would not necessarily be in the interests of justice for all such evidence to be excluded in all circumstances. The prosecutor, in deciding whether to use evidence obtained through malpractice or unlawful means, would make a judgment on whether it was likely to be regarded as admissible in court and on whether it would be proper in all the circumstances to use it". Clause 7 relates to influencing a prosecutor. We welcome the clause, which is an essential ingredient of the Bill.

Clause 8 deals with the criminal justice organisations on human rights standards. We have always been committed to upholding the highest standards of human rights, so will want to see some of the questions that the CAJ raised answered. The area of concern relates to the Bill's failure to reflect sufficiently the review and the guarantees in the updated plan in relation to the role of international human rights standards in the reform process. The updated plan stated that all criminal justice agencies would be under a duty to have due regard to international human rights standards. However, that has translated rather differently in the published Bill.

The Bill proposes a curious and convoluted formulation whereby it will be for the Attorney General for Northern Ireland to issue guidance, as and when he or she thinks fit, to the listed criminal justice agencies, on the exercise of their functions, in light of relevant international standards. It is concerning that the provision has been drafted in terms of the Attorney General for Northern Ireland, since that office is not yet operational and will come into effect only on the devolution of justice powers to Northern Ireland.

Given the huge degree of uncertainty over when justice powers will be devolved, it seems highly inappropriate that the section of the Bill on the role of international human rights standards should be made dependent on the creation of the local Attorney General. That raises doubts over the genuine commitment of the Government to find a greater role for the application of international human rights standards in the criminal justice system in Northern Ireland, and, possibly, hints at some sort of delaying tactics in that regard.

It is also worth commenting that Section 8(8) exempts the Prosecution Service from having any regard to human rights guidance issued by the Attorney General for Northern Ireland where that guidance would be inconsistent with a code of practice issued under Section 37 of the 2002 Act. It is difficult to foresee how the new and first ever code of practice for the Prosecution Service, which is due to be published in draft form this month, long before the operation of this new Bill, would be inconsistent with international human rights standards.

It is important that those three clauses are amended during the passage of the Bill in order fully to reflect the Criminal Justice Review and meet the promises made by the Government in the updated plan.

I was heartened to have the Minister's assurance on Clause 13 and the transfer of prisoners. We trust that transfer will be a last resort. It is desperately important to maintain security in prisons in Northern Ireland and to ensure safety of staff and other prisoners. However, we are concerned at the difficulties that will be placed on families being able to visit prisoners, and for their ability to have adequate legal representation. However, I am very reassured by the Minister's comments.

On my final point, I endorse the remarks of the noble Lord, Lord Glentoran. I am at a loss to understand why there has not been some attempt to apply the Crime and Disorder Act 1998 to Northern Ireland, as the Chief Constable requested. He made a very convincing case for the transfer of that Act, so that it would apply to Northern Ireland. Perhaps the Minister could explain why the opportunity has not been taken to incorporate it on this occasion.

5.49 p.m.

Lord Laird

My Lords, as you are aware, Ulster Unionists are wholly committed to the removal of anomalies from and improving the effectiveness of our criminal justice and justice systems both in Northern Ireland and indeed throughout the United Kingdom. We share such commitment with right-minded thinking people in Northern Ireland and indeed many in this House.

What we do not share, however, is this Government's persistent green agenda in the field of criminal justice. We have witnessed the introduction of three Police Acts in the space of six years and now are confronted with a second justice Act in only two years. Only two explanations are possible for repetitive legislating. Either there is negligent or incompetent translation of policy into the draft legislation—and so it follows that we, in the system of checks and balances, have failed to pick up on these failures, or indeed have been unable to halt their introduction—or the goals are continually shifting. Perhaps the truth in relation to this continuous legislating for criminal justice in Northern Ireland must be a bit of both.

Provisions on bail in Clause 10 regarding the right of appeal for the Crown where a defendant is granted bail in the magistrates' courts are welcome. However, I look forward to pressing the noble Baroness the Lord President of the Council on why the proposed appeal system should differ from that provided for England and Wales by the Bail (Amendment) Act 1993.

Equally welcome are provisions contained in Clause 15 which remove a rather peculiar anomaly in relation to the offence of driving while disqualified—one of the most serious of road traffic offences, certainly in terms of punishment.

However, there is no reason whatsoever why either Clause 10 or Clause 15 could not have been contained in the original justice Bill published and enacted last year. These are certainly not new matters which have arisen in the space of the past few months, and their inclusion here gives this Bill the strong whiff of a mopping up exercise in curing omissions. I do not expect that the Government will be bringing forth, for example, a new Criminal Justice Bill for England and Wales next year to cure incompetent or negligent omissions from the Bill passed in the last Session, with which your Lordships are well familiar. The reason for that is simple, and I say this irrespective of the merits of aspects of that Bill: in the mind of the Government at least, they got it right first time. Surely, Northern Ireland and the people there deserve the same level of competence and care first time too.

Indeed, for that very reason I supported devolution in Northern Ireland, and in the right circumstances I would endorse devolution of criminal justice too. However, I do not in any way support the devolution of judicial appointments, whether or not we have effective devolved government. Devolution in Northern Ireland places it in a similar position to our other regions—Scotland and Wales. Devolution of appointments does not happen there. Furthermore, one does not go hand in hand with the other, and the noble Baroness the Lord President of the Council may be aware of that strongly held view from when we last debated these issues two years ago.

Indeed, questions were posed on that occasion, in this House and in another place, as to what would happen to these proposals if devolution was not effective. The Government's stock answer was that they do not plan for failure. Of course, it is failure that has brought the Government to have to legislate for appointments during suspension: failure of the republicans to desist from paramilitary activity; their failure to disarm; and failure of republicans to disband, standing down their paramilitary machine once and for all.

Indeed, given the current climate, even if those obligations were to be fulfilled, it may well be that devolution would still not be viable. Yet this Government continue to pursue the green agenda that has brought us to such a position. Clause 8, for example, covers issues that the SDLP fought and lost in the debate on the Police (Northern Ireland) Act 2000. Yet the Government continue to seek to indulge Northern Ireland's fourth party.

To me—though I will defer to the greater knowledge of your Lordships with legal expertise—Clause 7 adds nothing whatever to the offence of attempting to pervert the course of justice. If my instinct is correct, why is this clause here? What is its source? Is it another SDLP request? I hope that the noble Baroness the Lord President of the Council is able to reassure us in that respect. If not, I fear that we have reached a position where the quality of the law is secondary to whoever requested it.

Clause 6 further undermines protection from retrospective investigating by the office of the ombudsman. Time and again the SDLP has called for increased powers of the police ombudsman, and time and again the Government have assured us that her office cannot act retrospectively. That is clearly not the case here. I hope that the Government do not intend to introduce such a provision now.

Ulster Unionists, as I have indicated, do not support this devolution of judicial appointments, and we do not support this Judicial Appointments Commission. It sets us apart in a manner in which we do not wish to be set apart and it puts into legislation the shackles of phrases such as "reflective" and "taken as a whole". Given the broad composition of the judiciary, such provisions will actually guarantee that the lay membership will be anything but reflective.

We will not acquiesce in any attempt to politicise judicial appointments. Nor do we accept that judicial appointments should be based on anything other than merit.

It is time for the Government to ditch the continuous pandering to the agenda of the SDLP and Sinn Fein with regard to criminal justice. The noble Baroness the Lord President of the Council knows that this agenda will never satisfy the insatiable appetite of republicans, and they now represent the majority of nationalists. Have the Government learnt nothing from the results of the Assembly election last month?

It is, albeit late in the day, time for the Government to makes moves to restore Unionist confidence in devolution and restore Unionist confidence in the Belfast agreement. This Bill must change in order to reverse the Unionist drift away from the agreement. Otherwise I fear that in its current form the Bill will not only continue the drift but accelerate it.

5.57 p.m.

Viscount Brookeborough

My Lords, I do not see much harm in the Bill; in fact there is much good. On balance, however, I would not give it my wholehearted support at this time as it is yet more concessions in certain areas for no reciprocation from the hardliners. I do not wish to repeat everything that previous speakers have said about the critical issues, but I should like to make a few points, which noble Lords will be glad to hear are short ones. I shall leave the more technical aspects to subsequent speakers who will deal with them much better than I.

Clause 1 creates a Judicial Appointments Commission. This clause in particular should not be here at this stage. I believe that, 16 months ago, the then Minister in another place—without quoting him word for word—said that, in line with the recommendation of the Criminal Justice Review, the creation of this commission would not take place prior to the reinstatement of devolution. It was to be one of the carrots, if you like, for the hardliners to come on board for decommissioning and for support of the police and so on. We know what has happened since then.

I would add just one point to the comments of the noble Lord, Lord Glentoran, about appointing judges on merit and the matter of reflecting the make-up of the community—and at this point I must declare an interest as a member of the policing board. The one area where that has actually been practised is in the appointment of police trainees. The only way that the Government can satisfy both those demands—and one of them they will not satisfy completely—is by creating a merit pool. However, the number of judges is not so great that the merit pool will be very great anyway. However, they will have to say that those people have reached a standard. What standard is that, when we are talking of having the best of the best, at the top of that peak of experts?

That is all that I would say on that point. It has been practised before. The Government cannot reply to this and say, "We will find a way; don't worry". There is only one way, and that is by creating a level at which different people from the different communities in Northern Ireland who are judges or are going to be judges can attain a level above a certain line. It is impossible to work that entirely on merit. We have seen that, and in policing we accept it. However, as regards the judiciary, I hesitate to say that most people do not accept it.

Clause 6 seems to fall into the same category— eternally tweaking the law ahead of the planned timescale in order to appease hardliners who do not reciprocate. The position at present is that whenever there is a complaint against any member of the police, it goes directly to the Police Ombudsman. Whenever a member of the police is involved in a situation where there is no complaint but where someone has died, it is automatically referred to the Police Ombudsman. The DPP has always had the right to refer such matters. Therefore, this clause is not as important as it might seem. It ensures only that less serious matters—when there is no complaint or death and when the DPP does not wish to refer them, which he readily does—will have to be referred to the Police Ombudsman. The measure is of little consequence except for the timing, but it is clearly a concession to those who do not reciprocate.

The Government will no doubt say that they, as always, know what they are doing. I wonder whether they are right. I do not deny that all the communities in the Province are not in some way responsible to a great extent for what has happened in the past 33 years. However, the Prime Minister and the NIO were surprised and shocked by the failure of the system that they put in place finally to resolve decommissioning and to restore devolution. That has led to a complete polarisation, the election result and stalemate. The Government must realise that that is the single most damaging miscalculation that has occurred within the process over the past few years. Hindsight is, of course, a great thing, but I believe that I know what happened. When General de Chastelain first approached the IRA, it agreed to co-operate provided that it held the veto on transparency. I suspect that General de Chastelain reported back to the two governments, who agreed without realising that when the end game—the last move—came about, the IRA would still hold the veto on transparency.

In my case it is normal hindsight, or lack of foresight, but we have the right to expect that our Government will have the ability to outwit the terrorists and not the other way round.

Just over two months later, they are at it again— concessions for no gain from the hardliners. For those reasons I cannot give full support to the Bill. It is a question of the timing, not the content.

6.3 p.m.

Lord Hylton

My Lords, the noble Lord, Lord Glentoran, was at his gloomy best in criticising the timing and some of the content of the Bill. Perhaps I can give him just a crumb of comfort by asking the noble Baroness the Lord President of the Council the following question. In future will the Secretary of State for Constitutional Affairs, who will have a responsibility under this Bill, also have a duty to serve the interests of justice? That is something which has gone on for generations when these kind of duties have been in the hands of successive Lord Chancellors. That, I suggest, should be clearly spelt out in the future legislation that is still to come. There should also be a guarantee that the Secretary of State for Constitutional Affairs will always have a seat in the Cabinet, and can thus make representations at the highest level.

I turn now to the Bill that is before us. There are just two points to which I wish to draw attention. They concern Clauses 6 and 13, and we shall certainly have to return to them in Committee. Clause 6 requires the Director of Public Prosecutions to refer to the Police Ombudsman anything indicating that a police officer may have committed a criminal offence. Surely the independent DPP should have discretion to decide whether he has sufficient evidence to bring a prosecution. If he has, the prosecution should go ahead, thus avoiding further delays caused by proceeding through the ombudsman.

The Government may argue that the Joint Declaration and the implementation plan call for this particular procedure, and there may be merit in some cases in investigations conducted independently of the police service. Her Majesty's Government may like to reflect whether the word "may" would be preferable to "shall" at line 33 of page three of the Bill.

As to Clause 13, I spent about seven years campaigning, eventually successfully, to enable prisoners to be transferred voluntarily between England, Northern Ireland and the Republic. I do not now want to see prisoners transferred compulsorily between jurisdictions. I believe that one has to consider the interests of their families and their own prospects of rehabilitation.

Of course I realise that problems of discipline and internal safety can still be very acute inside prisons in Northern Ireland, as the noble Baroness, Lady Amos, indicated in her opening remarks. There may well be cases when a strong sanction is needed. As the noble Lord, Lord Smith of Clifton, put it, this should, however, be used only as a last resort. I therefore suggest to the Government the inclusion of words in Clause 13(2) such as, because of his serious misconduct, or, with his consent, for his own protection". I should also like to ask, what kind of order is intended at line one of page nine? Will it be subject to parliamentary scrutiny? Further, why is there no mention of transfer to Scotland? That might well be more satisfactory and more appropriate for many of the families. Finally, will the consent of the receiving jurisdiction always have to be obtained before a transfer is made?

I conclude by saying that many provisions of the Bill will be welcomed in Northern Ireland, not least, as has already been mentioned, that dealing with the arrest of disqualified drivers.

6.8 p.m.

Lord Mayhew of Twysden

My Lords, the most far-reaching provisions in the Bill are those that relate to the judiciary in Clauses 1 to 5. Although it pains me to say so, as everyone who has held responsibility for Northern Ireland looks with sympathy upon those who succeed them, I believe that these provisions will lead us into a surreal world. In one respect they will lead us into a more dangerous one.

I preface what I want to say with the remark that security of tenure for senior judges is one of the most important safeguards for their independence and for the rule of law. Only last year the Government thought that it was a proper protection that the Lord Chief Justice's agreement would have to be obtained for the removal of a senior judge. Now it is to be sufficient only that he be consulted. He may disagree with the proposed removal but he can still be overridden. I hope that the noble Baroness the Lord President of the Council—I know that she has many responsibilities—will find it possible to answer the following questions. Why has that change been brought about after so short an interval? Who prompted it and in what circumstances? What was the attitude to the change of the Lord Chief Justice of Northern Ireland, Sir Robert Carswell, before he announced his retirement this week?

The Explanatory Notes suggest that the Criminal Justice Review's recommendation will be more closely matched, but the Criminal Justice Review was published two years before the 2002 Act, which is now proposed to be changed. There must be more to it than that. Whatever it is ought to be made known. It really is not enough for the noble Baroness the Lord President to say in introducing the Bill—I think that I accurately recall her saying—that every legal system has to evolve and cannot be allowed to ossify. That is a bit much. The ink is hardly dry on the statute of 2002. There is not much ossification going on; it is not even jelly. We would like the answers to those questions.

The driving force behind the remaining provisions in that part is said to be the objective of enhancing public confidence in the judicial appointments system and the judiciary. I want to examine that, but I would like first to pause. In five years as Secretary of State for Northern Ireland and four years before that as the Attorney-General for Northern Ireland, I do not recall any serious lack of public confidence in the judiciary ever manifesting itself. I suggest that there was a very good reason for that. Throughout the past 30 years, the judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law. I am glad to say that I responded more constitutionally and less petulantly than Mr Blunkett when, as Secretary of State, I found myself on the wrong end of a judicial review.

Nor could anyone point to any significant or telling imbalance in the staffing of the High Court or the Court of Appeal in Northern Ireland. Their members were appointed by the Lord Chancellor, solely on merit and I am sure always consulting the Lord Chief Justice of the day. In my experience it so happens that, if anything, marginally more appointments were made from those with Catholic backgrounds than a strict reflection of the demography of Northern Ireland at that time would have warranted.

It is true that, at county court level, the picture was different, and probably still is, with Catholic backgrounds significantly under-represented. But that was principally, I believe, because county court judges could be required to take their turn sitting as Diplock judges in the High Court trying terrorist cases. Those with Catholic backgrounds, understandably perhaps, found that less attractive, as it was rewarded with neither status nor salary.

I believe that true public confidence in the judiciary has been deservedly very high. That surely has a bearing on whether we ought to change the way in which it is now appointed.

All the same, the Criminal Justice Review of 2000 recommended the establishment of a Judicial Appointments Commission when, but only when, devolution was in place, including devolution of justice matters. That derived in turn from the Belfast agreement, whose purpose was to secure devolution on a fair foundation underpinned by consent, something to which we all wholeheartedly adhere. It made some sense, although it wrongly discriminated against High Court judges, for instead of a Westminster Minister going on appointing judges at High Court level and below, they would be appointed by the First Minister and Deputy First Minister, acting jointly with other specified office holders. I can see the bones of a public confidence argument there, although I for one would have preferred the Lord Chancellor to have kept the responsibility, even after devolution.

What is proposed in the Bill is the institution of the appointments commission here and now, notwithstanding that devolution is suspended and looks like going on being suspended, unfortunately. There is and will be no First Minister or Deputy First Minister, so their places among those responsible for making nominations to the commission are to be taken by the Secretary of State. That will go on until devolution is restored and justice matters devolved within it. It is very hard to see how a recipe for enhancing public confidence can be found there.

The matter does not end there; in fact, that is only the beginning. Look at what the commission is charged with doing. It must make, arrangements in connection with the exercise of their functions … as will, so far as is practicable, secure that the membership of the Commission is reflective of the community in Northern Ireland". That applies to all the members, note—the judicial ones as well as the lay ones. The 2002 Act—only a year old—stipulated a qualification for only the lay members, who were required to be representative of the community. Why the change? Why are the judicial members now to have that qualification brought in? Why is the change proposed so soon? The commission itself, once in place, would have to do likewise to secure that the judiciary reflected the community similarly, consistently—it is true—with appointment being on merit.

But how, your Lordships may ask, after the recent elections do we define the "community in Northern Ireland"? Sinn Fein is now the majority party in the nationalist community, yet it is still inexorably and inextricably linked with the Provisional IRA, whose failure to decommission and to renounce so-called punishments like banishments and maimings was the cause of devolution being suspended. The Unionist parties were unable to go on working with Sinn Fein and still are.

The Criminal Justice Review was right to recommend an appointments commission, if at all, only once full devolution was in place. So long as devolution is suspended, and for the reason that it remains suspended, I am afraid that it is surreal to suppose that public confidence in the judiciary will somehow be enhanced by such a method of trying to make it reflective of the fractured community within Northern Ireland. I cannot dismiss the suspicion that the real reason for the proposals lies in the unplanned and feckless decision to abolish overnight the office of Lord Chancellor, which is where the responsibility for the time being should remain.

6.18 p.m.

Baroness Goudie

My Lords, I wish to declare an interest as the patron of the Northern Ireland Community Foundation, supporting people, strengthening communities and building peace.

I generally welcome the publication of the new Bill, which will undoubtedly advance the implementation of aspects of the Criminal Justice Review. I am particularly supportive of the fulfilment of the Government's commitment, in the Joint Declaration of April 2003, to bring forward the introduction of the Judicial Appointments Commission in advance of devolution of justice powers to Northern Ireland, as provided for in the Bill. I feel it important that the Government should be clearly seen to be proceeding with the implementation of essential aspects of the peace process in Northern Ireland. Confidence-building in the process requires no less.

There are a few points that I wish to make and comment on. The first is with regard to Clause 4 and concerns the appointment of the Lord Chief Justice and Lords Justices of Appeal. In the event of effective devolution in Northern Ireland, the role of the First Minister and Deputy First Minister—acting jointly— in the appointment of the Lord Chief Justice and Lords Justices of Appeal should be strengthened rather than minimised. It is crucial that a devolved Assembly should have a sense of commitment to, and ownership of, the judicial system.

Clause 4, as published, arguably fails to meet expectations raised by the Government in their updated implementation plan, when they held that the Prime Minister would appoint persons to those positions, based on the recommendations of the First and Deputy First Minister". Instead, the Bill before us today requires the Prime Minister only to "consider" any recommendation for appointment made by the First and Deputy First Minister.

I would argue that where there is agreement between the power-sharing First Minister and Deputy First Minister on the issue, the Prime Minister should then make the appointments based on this recommendation. However, where such an agreement cannot be reached, it might be feasible to empower the Prime Minister to consider the names put forward by both the First Minister and the Deputy First Minister. This, however, should be a position of the last resort.

I also welcome the provision under Clause 6 concerning the duty of the Director of Public Prosecutions to refer matters to the Police Ombudsman. I have had considerable personal contact with the office of the Police Ombudsman for Northern Ireland and I am constantly impressed with her work. However, I am concerned that the wording of Clause 6(3) confers an excessive degree of discretion on the Director of Public Prosecutions to decide whether a matter of alleged police malpractice should be referred to the ombudsman. I would welcome further clarification as to the objective test on what might "appear" to the director as grounds for warranting reference to the ombudsman.

The other part of the Bill about which I must express certain concerns is Clause 8, with regard to the guidance for criminal justice organisations on human rights standards. The updated implementation plan stated that all criminal justice agencies would be under a duty to have due regard to international human rights standards. I support this approach, as I regard human rights standards as a protection for all— irrespective of their community background or political perspective. This, I feel, is particularly important in such a divided and contested society that Northern Ireland still remains.

The Bill as it stands, however, is less clear cut about the implementation of this provision. It proposes a rather curious formulation whereby it would be.for the Attorney-General for Northern Ireland to issue guidance, as or when he or she thinks fit, to the list of criminal justice organisations on the exercise of their functions in the light of relevant international standards.

However, there seem to be a number of difficulties with this provision. First, the office of the Attorney-General for Northern Ireland is not in existence and will come into existence only on the devolution of justice powers to Northern Ireland. Secondly, given the current uncertainties over the time-scale of any such devolution of justice powers, it is extremely problematic that this important section of the Bill on the role of international human rights standards should be made dependent on the creation of the local Northern Irish Attorney-General. Provision should be made for the effective application of these standards prior to the establishment of the local office of the Attorney-General for Northern Ireland.

Finally, I want to comment on Clause 13 concerning the transfer of prisoners. While I accept the thinking that gave rise to this provision, I would draw attention to the inevitable human cost of transferring prisoners from Northern Ireland to serve a term of imprisonment in England or Wales. The human cost of such transfer will most likely be borne by the family of the individual involved. I believe that any such course of action should be taken only in the most extreme circumstances, and I worry that the current stated conditions, which state, in the interests of maintaining security or good order in any prison in Northern Ireland", are drawn too widely and may not take account of the disproportionate cost to the families involved. And we all know only too well the starkly adverse political influence of a disturbed prison situation in Northern Ireland. I commend the Bill to the House.

6.24 p.m.

Lord Fitt

My Lords, as ever with legislation concerning Northern Ireland, it is obvious that even with today's small attendance in the House the Bill is not uncontroversial. Some people in Northern Ireland believe that the production of the Bill, which emanated from Hillsborough, is the result of serious political pressures placed on the Government. The cement which holds together a society or a community in the democracies of these islands is respect for the police and law and order. It is obvious, even from what I have heard today, that consent is not readily available.

It appears that too many concessions have been made to one section of the community in Northern Ireland and that will bring a reaction from another section. We see that reflected in the results of the elections which were held a fortnight ago. There is no great support—not 100 or 90 per cent—from the population for the Bill.

On appointments, I have listened to the lawyers speak here today. I want merely to indicate that the subject of the appointments commission will arise in the Committee. I remember discussing an issue in Committee some years ago and I believe that the noble Lord, Lord Glentoran, was also present. I shall have to obtain Hansard for that occasion but I want to repeat what I then said. Between 1966 and 1970—I recall the years better than the people involved—a vacancy occurred for a Lord Chief Justice in Northern Ireland. One of the applicants for the position was a man who had given loyal service during the war years, receiving military commendations for the part he played. It seemed to everyone that he was the ideal candidate for the promotion. Then someone told me of rumours that there was no way in which he would get the promotion because he did not support the Unionist community.

I made recommendations to the then Lord Chancellor and the Attorney-General. I had a great deal of paperwork relating to the identity of the judge and they agreed with me that he appeared to be a good candidate for the post. They came back to me a fortnight later and said that there was no way that the Northern Ireland Government would agree to the appointment.

The argument went on for weeks, and eventually they came to me and said, "There's only one way out of this; we will appoint two judges". The Northern Ireland Government had to get their judge and another one was also appointed. That is an indication of what was happening at that time and it is why I believe that an appointments commission may now be essential. I shall say much more about that in Committee.

My final point relates to the transfer of prisoners. Why can prisoners be transferred only to England and Wales but not to Scotland? Is it because of the devolution? Scotland would be a more appropriate place because it also has its religious and sectarian differences. I put that down merely as a marker because we shall debate the issue in Committee.

6.28 p.m.

Baroness Harris of Richmond

My Lords, a number of views have been expressed about improvements to the criminal justice system in Northern Ireland. As my noble friend Lord Smith of Clifton said at the outset, we broadly welcome the measures.

It is not a large Bill, but its content is important for the people of Northern Ireland to be able to see clearly how their judicial system is working. My noble friend Lord Smith asked a question on the importance of lay members, which I want to reiterate. Who might be excluded from taking part in the process of the Judicial Appointments Commission so as not to be seen as political appointees? Would they be people such as Assembly Members or Members of Parliament, and what about members of the police or the security forces? On the other hand, who might be included? Would they be those involved in community safety organisations or members of a district policing partnership? How will the Secretary of State ensure that the lay members do not suffer from a clash of interests? Finally, how will he ensure that the lay members of the Judicial Appointments Commission are reflective of the community in terms of gender or ethnicity?

The noble and learned Lord, Lord Mayhew, expressed concerns about the tenure of judges. Like the noble Lord, Lord Glentoran, he would prefer the Lord Chancellor to have responsibility for choosing members of the judiciary. It is a matter of regret that devolution of responsibility has not yet been achieved. However, we look forward to the day when it will be. Until then, the Secretary of State must take responsibility for ensuring that the Judicial Appointments Commission is set up. I hope that he will do it speedily and with full consultation with the various bodies which need to be involved in its formulation.

The noble Lord, Lord Glentoran, expressed disappointment that the Lord Chancellor will not take responsibility for judicial appointments. However, in other jurisdictions, ministers of justice are not necessarily lawyers, and non-lawyers can certainly bring a fresh perspective to issues. I hope that that might be considered.

I agree with the noble Baroness, Lady Goudie, that the roles of the First and Deputy First Ministers are strengthened. Together, they will be able to give the people of Northern Ireland confidence that the highest judicial posts in the land have been agreed across political divides. That is important and will certainly be a challenge to all the leaders in Stormont.

I move on to the changes in the Bill which alter responsibility for dealing with a police officer who may have committed a criminal offence or who, in the course of a criminal investigation, may be subject to disciplinary proceedings. The noble Lord, Lord Hylton, referred to that issue. I stress that it is better for the Police Ombudsman than the Director of Public Prosecutions for Northern Ireland to deal with those matters. However, a number of noble Lords reiterated that the Bill is not entirely clear about the way in which that is to be undertaken. Perhaps the Minister can clarify the position—particularly in relation to when the DPP has discretion on whether or not to refer a matter to the Police Ombudsman. My noble friend Lord Smith of Clifton referred to that point, as did a number of other noble Lords.

I turn to the subject of human rights. The ability of the police to be guided by one document on the implementation of human rights should be brought into effect now and not left for any revision of their code of ethics. Can the Minister give us reassurance on that point? As we have already heard, human rights guidance will not come into effect until the office of Attorney-General for Northern Ireland has been created and justice powers have been devolved. My noble friend spoke of the convoluted way in which that is being handled. Again, can we be reassured that the Government do not intend to delay the introduction of human rights standards through the criminal justice system? The noble Baroness, Lady Goudie, also raised concerns on this issue. She was not clear about the implementation of the standards, and we on these Benches share that concern.

I repeat a question asked by my noble friend Lord Smith of Clifton. Can we have further clarification on why the prosecution service appears to be exempt from having regard to human rights guidance, which will be issued by the Attorney-General for Northern Ireland, where that guidance would be inconsistent with a code of practice issued under Section 37 of the justice Act? As we heard, the new code of practice for the prosecution service is due to be published very shortly, but it seems strange that there could be any inconsistency with international human rights standards.

With regard to the transfer of prisoners—again, an issue referred to by my noble friend Lord Smith—we certainly want reassurance from the Minister that such transfers would be undertaken only as a last resort rather than as a first reaction. The noble Lord, Lord Hylton, reminded us of the work that he has done on prisoners' voluntary transfers. He asked us not to take on compulsory transfers as a first reaction. It is desperately important to maintain security in prisons in Northern Ireland—we all believe that—and to ensure the safety of staff and other prisoners. However, we believe that it is still important to consider the rights of the prisoners' families. It should be as easy as possible for them to see their relatives in England and Wales. In that, I share the view of the noble Baroness, Lady Goudie.

The noble Lord, Lord Laird, welcomed Clause 15, which deals with arrest without warrant for the offence of driving while disqualified. I did not detect any other enthusiasm for the Bill. No doubt as we go through its various stages, we shall examine the concerns that he expressed. I was pleased to hear the noble Viscount, Lord Brookeborough, cautiously welcome the Bill, but he also voiced the same concerns about its timing rather than its content.

The noble and learned Lord, Lord Mayhew, was concerned about the tenure of judges and gave us a very detailed run-through of how he sees that aspect being improved. The noble Lord, Lord Fitt, said that the Bill was not uncontroversial. He also echoed other noble Lords who spoke about the political aspect of the Bill, and he felt that too many concessions had been given.

We shall examine all those concerns in the Committee. We shall carefully consider any amendments tabled in Committee and later stages. However, generally, we feel that the Bill is a necessary step forward in Northern Ireland's justice provision and one which, as I said at the beginning, these Benches will support.

6.37 p.m.

Lord Kingsland

My Lords, the Bill seeks to make additions and amendments to the Justice (Northern Ireland) Act 2002. My noble friend outlined the areas that give us cause for particular concern: the definition of the Secretary of State; the extent to which merit, as an exclusive criterion for appointment, is being undermined by the addition of other criteria; the changes in the rules for the appointment of the Lord Chief Justice and the Lord Justices of Appeal; and the weakening in the power of the Lord Chief Justice in respect of the removal of listed judges, who include, as a category, newly appointed High Court judges.

Although much will be said on the first three of those issues in Committee and on Report, I wish to limit my Second Reading observations to the fourth—the dismissal of listed judges. In doing so, I have had, as have all your Lordships, the benefit of the characteristically perspicacious observations of the noble and learned Lord, Lord Mayhew of Twysden.

I make no apologies for repeating the words of the noble and learned Lord, Lord Hutton, expressed in the debate on the Second Reading of the Justice (Northern Ireland) Bill last year and already cited by my noble friend: It is clearly vital that a judge should be appointed on merit alone and that appointments should not be influenced by political considerations. That is all the more important in the highly charged political atmosphere of Northern Ireland. If judges are not appointed on merit, the administration of justice will suffer, as will public confidence in that administration".—[Official Report, 3/5/02; col. 969.] What the noble and learned Lord said about the influence of political considerations on appointment applies, in my submission, a fortiori to the influence of political considerations on dismissals.

Until that Bill became law later in 2002, High Court judges in Northern Ireland could be dismissed, like High Court judges in England and Wales, only on an Address to Her Majesty by both Houses of Parliament. For reasons that were deplored by many of your Lordships in the course of Committee and Report stage debates, the Bill removed that protection, a protection that has existed since the Act of Settlement of 1701; that is to say, for over 400 years.

Following the implementation of the Justice (Northern Ireland) Act, all subsequently appointed High Court judges will be dismissable by the First Minister and Deputy First Minister jointly, following a tribunal recommendation that they be so removed on grounds of misbehaviour. However, the First Minister and Deputy First Minister could not so act, without the agreement of the Lord Chief Justice", a person who himself remains removable only on an Address presented to Her Majesty by both Houses of Parliament.

Even with the blocking power of the Lord Chief Justice, I remain at a loss to understand why the Government wished to make the changes in the rules for the dismissal of High Court judges that they made in the 2002 Act. The High Court judges are the cornerstone of criminal justice in Northern Ireland and their reputation for courage and independence has never been questioned by this or any previous Government. Yet now it appears that the Government wish to go even further than the 2002 Act by replacing the expression, without the agreement of the Lord Chief Justice", in the existing law, with the Clause 5 proposal, "except after consultation with" the Lord Chief Justice. In other words, the safeguard of the Lord Chief Justice's consent to dismissal is to be removed.

What conceivable reason can the Government have for making that further revision so soon after the previous legislation had found its way on to the statute book? The noble Baroness said in her opening remarks that the justice systems should not be allowed to ossify; but as the noble and learned Lord, Lord Mayhew of Twysden, has already observed, as yet we have no experience at all as to how the 2002 Act will operate. Moreover, the proposed clause seems to move away from one of the cardinal principles of the Convention on Human Rights, the independence of the judiciary; a principle which, together with other principles contained in the convention, is purported to be the whole basis for these further changes.

6.42 p.m.

Baroness Amos

My Lords, I thank noble Lords who have spoken in this debate. We have had a very good debate, covering some very important issues of principle: the independence of the judiciary and the prosecution and the need to ensure that respect for human rights is at the heart of the justice system.

I shall start by dealing with the wider political context, which was raised by the noble Lords, Lord Glentoran and Lord Laird. We are clear that the agreements remain the only viable political framework that is capable of securing the support of both communities in Northern Ireland. A clear majority of the people who voted in the election—70 per cent— voted for pro-agreement parties. The vast majority of the people of Northern Ireland want to see devolved government.

A number of noble Lords including the noble Lords, Lord Glentoran, Lord Smith of Clifton and Lord Laird, raised the issue of the timing and asked why a second justice Bill is necessary. As I said in my opening speech, the Bill represents a continuation of the journey towards a better and a more modern justice system for Northern Ireland. It stands on its own merits and I would contend that it will bring forward changes that should be to the benefit of all in Northern Ireland. We have already embarked on a massive programme of criminal justice reform backed by widespread public support and we want to sustain that momentum and promote a culture of continued improvement.

The noble Lord, Lord Glentoran, pressed me about the relationship between this Bill and the Bill that will be brought forward by the noble and learned Lord the Lord Chancellor with respect to changes in the constitutional reform Bill. We are mindful of the interrelationship between those two pieces of legislation. I have listened carefully to the concerns of the noble Lord and we shall ensure that there are no unjustified inconsistencies between the Bills provisions for a Judicial Appointments Commission in Northern Ireland and any wider constitutional reforms.

We shall also be mindful of the Government's decision on a Judicial Appointments Commission for England and Wales and the future role of the Secretary of State for Constitutional Affairs. We remain committed to the principle of an independent judiciary. I must underline that to all noble Lords.

With respect to the appointment of the Lord Chief Justice and Lords Justices of Appeal, which was raised by the noble Lords, Lord Glentoran and Lord Smith of Clifton, and the noble Baroness, Lady Goudie, the Criminal Justice Review recommended that the responsibility for making recommendations to Her Majesty the Queen would lie with the Prime Minister, as now, but on the basis of recommendations from the First Minister and the Deputy First Minister. That is what is being put in place.

The noble Lord, Lord Glentoran, asked what would happen if there were a disagreement between the First Minister and the Deputy First Minister. We cannot plan for failure. Justice will be devolved only when it is clear that the local parties are able to work together. That is part of the process in which we are engaged now.

The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Kingsland, pressed me particularly on the issue of security of tenure. The noble Lord, Lord Kingsland, devoted his speech to that one issue. The 2002 Act provides a robust system to safeguard the independence of the judiciary. The provisions on removal are a part of that. A member of the judiciary cannot be removed without the recommendation of an independent tribunal which will include members of the judiciary. I underline that because I heard the concerns that were expressed around the House. Of course, I share the admiration of the noble and learned Lord, Lord Mayhew, of the judiciary in Northern Ireland and the way in which it has served the community, sometimes in very difficult circumstances. The words used by the noble Lord were that public confidence in the judiciary in Northern Ireland is high.

The noble Lords, Lord Glentoran, Lord Laird and Lord Fitt, the noble Viscount, LordBrookeborough, and the noble and learned Lord, Lord Mayhew, all raised questions about the issue of merit. Section 5(8) of the 2002 Act, as amended by this Bill, continues to make very clear that appointments must be made, solely on the basis of merit". It could hardly be more plain. As I made clear in my opening remarks, we are not in the business of appointing applicants on the basis of political opinion. I say to the noble Baroness, Lady Harris of Richmond, that in seeking to ensure reflectiveness, we are trying to encourage a wider range of people to put themselves forward for consideration.

The noble Lord, Lord Smith of Clifton, and the noble Baroness, Lady Harris, pressed me on the issue of lay members and possible conflicts of interest. I fully expect that the commission will command the respect of all sections of the Northern Ireland community. The reason why we are talking about "reflective" rather than "representative", which was pushed by the noble Lord, Lord Smith of Clifton, is that we do not see members of the commission as representing any particular interest. I underline that.

The noble Viscount, Lord Brookeborough, raised the issue of the establishment of the Judicial Appointments Commission before devolution. Recommendation 77 of the Criminal Justice Review envisages the establishment of a Judicial Appointments Commission post-devolution of justice. However, it is not against the early establishment of such a commission. We seek to put this in place because we feel that things have moved on.

On bail, a matter raised by the noble Lord, Lord Laird, it is inevitable that there are some differences between provision in Northern Ireland and the corresponding legislation for England and Wales. For example, an appeal of a magistrate's decision lies to the Crown Court in this jurisdiction but would fall to the High Court in Northern Ireland. The provisions we have included on bail have been developed at the request of the Chief Constable and supported by the Director of Public Prosecutions.

Similarly, the power of arrest for driving while disqualified was brought forward at the request of the Chief Constable. It is the first legislative opportunity to resolve this anomaly.

The noble Lord, Lord Laird, asked why we have created a new offence of seeking to influence a prosecutor in Clause 7. We have linked the offence with the idea of perverting the course of justice so as to be clear about what would constitute criminal behaviour and avoiding criminalising apparently innocent behaviour.

The noble Viscount, Lord Brookeborough, my noble friend Lady Goudie and the noble Lord, Lord Laird, asked questions about the duty to be placed on the Director of Public Prosecutions to refer all cases of suspected police malpractice to the police ombudsman. The review recommended that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated. The onus is now placed on the police ombudsman—and I was pressed on this point by the noble Baroness, Lady Harris of Richmond—rather than on the director to apply discretion on how to deal with a police officer who may have behaved in a manner which would justify disciplinary proceedings or who may have committed a criminal offence.

The noble Lord, Lord Laird, pressed me on that duty. We do not intend it to apply retrospectively. We are creating this duty by amending Section 55 of the Police (Northern Ireland) Act 1998.

The noble Lord, Lord Hylton, was concerned that the duty to refer should not delay prosecutions. We do not envisage Clause 6 delaying the prosecution process. We simply want to ensure that any police behaviour which the ombudsman has an interest in investigating is drawn to her attention. It is right that any such necessary investigation is conducted by the ombudsman, who is independent of the police. The DPP has no power to conduct investigations.

The noble Lord, Lord Hylton, pressed me on whether the Secretary of State for Constitutional Affairs would have a duty to serve the interests of justice. Section 1 of the Justice (Northern Ireland) Act 2002 provides: Those with responsibility for the administration of justice must uphold the continued independence of the judiciary". That, as I have stressed many times, continues to be our position.

With respect to other concerns raised by the Chief Constable, which were mentioned by the noble Lords, Lord Glentoran and Lord Smith of Clifton, discussions are continuing with the Chief Constable on his request. We are looking specifically at anti-social behaviour orders in Northern Ireland. We are also looking at racially aggravated offence legislation, which will be brought forward separately by order in council. We continue to work closely with the Chief Constable, in the same way as we have on bail provisions, to ensure that he has the tools he needs to tackle crime.

The noble Lord, Lord Smith of Clifton, my noble friend Lady Goudie and the noble Baroness, Lady Harris of Richmond, raised the issue of the commitment given to human rights. The Criminal Justice Review stated that listing human rights treaties and agreements on the face of a Bill would lead to confusion and unproductive litigation. Before devolution my noble and learned friend Lord Goldsmith will be responsible for producing guidance to draw attention to the correct provisions in treaties or agreements. After devolution this role will be passed to the Attorney-General of Northern Ireland. I can say to my noble friend Lady Goudie that the clause on human rights guidance is not dependent on devolution. The post of Attorney-General of Northern Ireland does exist: the office is currently filled by my noble and learned friend Lord Goldsmith.

A number of noble Lords asked why the human rights guidance does not apply to the DPP. The guidance will apply to the DPP's office.

I turn to the issue of the transfer of prisoners, which was raised by a number of noble Lords. I was pressed to say that this would happen only as a last resort. It will not be used if the particular prisoner could be dealt with in another way. The noble Lord, Lord Hylton, my noble friend Lady Goudie and the noble Baroness, Lady Harris of Richmond, spoke of the human cost involved. Prison rules already require that special attention should be paid to the maintenance of relationships between the prisoner and his family. The Northern Ireland Prison Service attaches great importance to the maintenance of family links and will meet the reasonable travelling expenses of those going to England, for example, to visit a transferred prisoner.

I turn to the issue of why the power does not include Scotland, a matter raised in particular by the noble Lords, Lord Hylton and Lord Fitt. If the power were to include Scotland, a Sewel Motion in the Scottish Parliament would be required. We would not want to presume the outcome for such a Motion, so the Bill does not at present make provision for transfer of prisoners to Scotland.

I should be very happy to arrange further briefings before we move into Committee to address specific points raised by noble Lords. I am confident that the programme of change set out in the Bill will help us to achieve our aim of enhancing public confidence by creating an even fairer, more efficient and more effective justice system in Northern Ireland.

Lord Smith of Clifton

My Lords, before the Lord President of the Council sits down, does she agree that now would be an appropriate time to welcome the appointment of Sir Brian Kerr as Lord Chief Justice of Northern Ireland and his immediate predecessor on his appointment as a Law Lord in this House?

Baroness Amos

My Lords, I totally endorse the comments of the noble Lord, Lord Smith of Clifton. I thank him very much for drawing the matter to the attention of the House.

Lord Mayhew of Twysden

My Lords, before the noble Baroness sits down, she will recall that a number of noble Lords have raised anxious questions about the change in the role of the Lord Chief Justice in the context of the removal of senior judges. Perhaps she will recall that I asked her some specific questions. Just now she said that the Bill stands upon its own merits. Why were those merits not perceived as recently as the legislation of last year and the Act of 2002? The noble Baroness will recall that I asked her some questions and I have not heard any answers as yet.

Baroness Amos

My Lords, I had hoped that I had made the position clear in my comments on our continuing commitment to the independence of the judiciary; the fact that there would be an independent tribunal which would look at the issue of the removal of judges. I apologise to the noble and learned Lord that I did not make it clear that—and this is partly in response to the noble and learned Lord's questions— we have continued to look at these issues since the 2002 Act. We see this very much as a dynamic process. I shall be very happy to write to the noble and learned Lord to give him some further detail on the specific questions he has raised and to meet him to talk about these questions in a little more detail before we get to Committee.

On Question, Bill read a second time and committed to a Committee of the Whole House.