Justice (Northern Ireland) Bill

HL Deb 19 January 2004 vol 657 cc844-58

3.8 p.m.

The Attorney-General (Lord Goldsmith)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Goldsmith.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 6 [Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman]:

Lord Goldsmith moved Amendment No.35:

Page 3, line 29. leave out "follows" and insert "set out in subsections (2) to (5)"

The noble and learned Lord said: I wish to speak to Amendments Nos.35 and 41 standing in the name of my noble friend the Lord President of the Council and to Amendment No.40 in the names of the noble Lords, Lord Maginnis and Lord Rogan. These amendments all deal with retrospective investigations by the Police Ombudsman and it seems right to deal with them together.

I start by thanking the noble Lord. Lord Laird, who at Second Reading alerted us that this clause was out of keeping with the Government's policy in relation to time limits on investigations by the Police Ombudsman. Amendments Nos.35 and 41 seek to ensure that referrals under the new clause will be treated consistently with any referrals to which the RUC (Complaints etc.) Regulations 2001 currently apply.

Subject to the exceptions contained in those regulations, they limit the ombudsman to investigating complaints about matters that are no more than 12 months old. The proposed amendments allow the Secretary of State for Northern Ireland to make similar regulations in respect of proposed new subsection (4A) of Section 55 of the Police (Northern Ireland) Act 1998, which will be inserted by Clause 6 of this Bill.

Similarly, Amendment No.40, tabled by the noble Lords, Lord Maginnis and Lord Rogan, is intended to prevent retrospective investigations. I thank them for raising that important issue in Committee, but I hope that they will be satisfied that the Government amendments deal with the substance of the issue. I beg to move.

On Question, amendment agreed to.

Lord Hylton moved Amendment No.36:

Page 3, line 33, leave out "shall" and insert "may"

The noble Lord said: The amendment concerns the independence of the Director of Public Prosecutions, whose duty is to see that those who should be prosecuted are brought promptly to court where evidence exists to justify a prosecution. I want prosecutions of police officers, as well as others, to go ahead whenever there is sufficient evidence. If that is the case, I do not want prosecutions to be postponed to allow the police ombudsman to investigate. The noble Baroness the Leader of the House said at Second Reading: The DPP has no power to conduct investigations".— [Official Report, 16/12/03; col.1118.]

He does, however, have power to bring prosecutions and should not be prevented using that power promptly. If the Attorney-General can assure me that fully justified prosecutions will not be held up as a result of the Bill. I will happily withdraw the amendment. Of course, I do not object to cases that fall into grey areas, especially those justifying only disciplinary proceedings, being looked into by the ombudsman. I want clear cut cases, backed by evidence, to be prosecuted promptly. I beg to move.

Lord Glentoran

I have some sympathy with the amendment tabled by the noble Lord, Lord Hylton. As I understand it, if the clause stands unamended it will, according to the Explanatory Notes: place a duty on the director to refer matters to the ombudsman and Clause 6 makes the necessary amendments to ensure that the recommendation is fully implemented in line with the undertaking of the Government in the Joint Declaration". I am not fussed about that. What concerns me is that the amendment would retain the current discretion for the DPP, rather than having the requirement, as the Bill proposes, for the DPP to refer to the ombudsman any matter in which it appears to him, that a police officer may have committed a criminal offence or, in the course of a criminal investigation "may", have behaved in a manner which would justify disciplinary proceedings". Removing the discretion of the DPP is taking a step too far in the judicial process. Consecutive DPPs have served the Province and the public extraordinarily well and I am sure that they will continue to do so. We will now have a prosecution "department". That will strengthen the hand of the DPP and will increase the clarity and the transparency of the operation of the DPP. Therefore, I am inclined to support the amendment.

Lord Smith of Clifton

I shall speak to Amendment No.37, which is a probing amendment, to ensure that the language is correct in implementing the intention of the updated implementation plan. Clause 6(3), on the duty of the DPP to refer matters of police malpractice to the ombudsman, also falls short of the review and of the promise in the updated plan. The wording confers an excessive degree of discretion on the director to decide whether a matter is one which must be referred to the ombudsman. That degree of subjectivity in assessment could make it difficult for a judicial review of the director. Will the Attorney-General elucidate on that?

Lord Rogan

I, too, have more than a degree of sympathy for Amendment No.36, tabled by the noble Lord, Lord Hylton. If it were pressed to a vote, I would find it impossible not to support the protection of the DPP.

3.15 p.m.

Lord Goldsmith

All the amendments in the group deal with the Director of Public Prosecutions making referrals to the police ombudsman. Amendment No.36, table by the noble Lord, Lord Hyltor, would increase the level of discretion on the part of the DPP. I am grateful to him for his explanation of what lies behind the amendment. He does not want any proper prosecution to be delayed while an investigation by the ombudsman takes place and he seeks my assurance that that is not our intention. I am happy to give that assurance that, where a proper prosecution ought to be pursued in the view of the DPP, then it will be pursued. That must be the priority and I hope that my explanation and assurance will satisfy him.

Responding to the comments of the noble Lord, Lord Glentoran, the decision to table the clause does not reflect in any way on the professionalism of the DPP. I agree wholeheartedly with the noble Lord that the director and, particularly, his predecessor and others have served with distinction, absolute professionalism and objectivity. As I work closely with the director, I know that to be true. I am happy to endorse fully his independence and impartiality, in which I have full confidence. The simple reason for the clause is that it is more appropriate for the police ombudsman to make decisions regarding police conduct, as is the case when matters are raised by the general public. Questions of prosecution will be for the director to decide, as they should be. Questions of disciplinary investigations would be left to the discretion of the police ombudsman. That would be more appropriate and more closely reflect recommendation 21 of the Criminal Justice Review.

I note that the noble Lord, Lord Rogan, has spoken, but not particularly to advance Amendments Nos.38 and 39, which go in rather the opposite direction. I see that he wishes to intervene and I am happy that he should do so.

Lord Rogan

Perhaps I have misunderstood procedure. I was going to speak on those two amendments later. Should I have done so earlier?

Lord Goldsmith

Yes, they are grouped together. I am happy for him to speak to them now.

Lord Rogan

That is extremely kind. Indeed, I wish to speak to Amendments Nos.38 and 39. Amendment No.38 replaces "may have" with "has". It is a different approach to restoring the input in terms of the discretion of the DPP. First, if the DPP is going to direct a prosecution there must be a degree of evidential sufficiency. All matters in which it is possible that an offence has been committed are not necessarily proceeded with. Similarly, with this procedure, there should be something more than a possibility before a referral.

Secondly, the role of the Director of Public Prosecutions is to determine, first, whether an offence has been committed and then to apply tests such as interests of justice and evidential matters before instigating a prosecution. If it does not appear to the DPP that a criminal offence has been committed, why should the matter be referred to the ombudsman for consideration by virtue of new subsection (4A)(a)(i)?

Amendment No.39 removes the disciplinary criteria for referral for one simple reason. The duty of the DPP is to consider criminal offences and criminal matters and one would think that there must be an element of expertise. For example, in terms of knowledge of stop-and-search procedures, the DPP is not and should not need to be an expert on internal police disciplinary matters. It is not the duty of the DPP to be an expert on police disciplinary proceedings. What behaviour would merit such proceedings? This section of the Bill presupposes that he is. I look forward to hearing the Minister's reply.

Lord Goldsmith

I am grateful to the noble Lord for his observations.

The effect of the two amendments would be that the DPP would refer cases to the police ombudsman only where a police officer had been convicted of a crime. It would exclude the alternative limb where in the course of a criminal investigation it appears to the director that an officer may have behaved in a manner which would justify disciplinary proceedings and would limit the power and duty to refer cases where it appeared to the director that the officer had committed a criminal offence and not just might have done so.

If the amendments were accepted, that would move a long way from what the Criminal Justice Review envisaged. Recommendation 21 stated that a duty should be placed on the prosecutor to ensure that any allegations of police malpractice were fully investigated. Amendments Nos.38 and 39 would very much constrain what the director would refer to the police ombudsman.

The noble Lord, Lord Rogan, makes an important point in saying that the director is not necessarily an expert in what would constitute disciplinary conduct on the part of police. But the director is not required to reach a definitive conclusion on that. He is required to consider whether the conduct, when one looks at it, may mean that an officer has behaved in a manner that would justify disciplinary proceedings. I know that the director will want to provide to his staff guidance with assistance from those who are more expert in what those matters would be, but experienced prosecutors who deal with police conduct in the course of investigating and considering prosecutions day in and day out form a view as to what may be conduct that justifies disciplinary action.

Of course, the decision is in no way final and the whole point is that the matter is then referred to the ombudsman. The discretion will lie with him and the expertise will be with the ombudsman to decide whether the conduct merits disciplinary activity. The provision therefore delineates the respective roles of the DPP and the police ombudsman by ensuring that any decisions which might need to be taken about the conduct of the police are referred to the appropriate authority; that is, the police ombudsman.

I hope that that provides a sufficient explanation of what lies behind the clause and the justification for it and that therefore the amendments will not be pressed.

Lord Glentoran

I have a comparatively small point to make. We are slightly at odds because I asked the noble and learned Lord whether we want to be in a situation in which every suspicious case is referred to the ombudsman by the DPP. I suggest that the DPP has other things to do in respect of criminal investigations and processing a potential prosecution, instead of looking over his shoulder at whether the policemen involved in the investigation have performed directly according to the rules and regulations. If it hits him in the face that they have clearly done something wrong, that is a good reason why the case should be referred to the ombudsman.

I am concerned that if the Bill remains as drafted, there will evolve a way of life within the DPP's department where one is always looking to see whether the police have done something slightly wrong and whether one ought to be pushing everything on to the police ombudsman.

I should have mentioned a small point in relation to Amendment No.40 and perhaps the Committee will allow me to do so. I am afraid I was talking to my Chief Whip on a detail of timing. Amendment No.40 relates to timing. It asks that only conduct which took place after the Act has achieved Royal Assent will be referred. Will the noble and learned Lord be good enough to comment on that? We do not want to go back in time in these situations.

Lord Rogan

Perhaps I, too, may comment on Amendment No.40 which stands in my name. As printed, it states: No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coming into force of this section". I understood that I had—

Baroness Farrington of Ribbleton

We have dealt with the first group of amendments, but it is open to a noble Lord to speak to an amendment in its place on the Marshalled List. If we now go through the amendments in the second group, noble Lords can raise their points when we reach Amendment No.40. I think that that would be helpful.

Lord Goldsmith

The noble Lord, Lord Rogan, will be able to make his points on Amendment No.40 in a few moments and I will defer my response to the points made by the noble Lord, Lord Glentoran, on that amendment.

I see that the noble and learned Lord, Lord Mayhew of Twysden, wants to intervene, but perhaps I may deal with the first question raised by the noble Lord, Lord Glentoran. He asked whether we want a situation in which every suspicious case is referred to the ombudsman. The burden on the DPP and his staff—and I am grateful for consideration of them—is the lesser under the drafting of the clause. No one has to make a decision about whether, in accordance with criteria that have been laid down, a case is the right kind or not. The only question is: is it one in which it appears that a criminal offence may have been committed? Is it one in which it appears in the course of a criminal investigation that the officer has behaved in a manner which would justify disciplinary proceedings?

That threshold being established, all that needs to be done is to hand the papers, or whatever, to the ombudsman and the burden of considering whether it should be the subject of time and investigation falls to him. Therefore, this may be a more desirable approach in terms of burden on the DPP so that he and his staff can get on with the important job of prosecuting cases.

Lord Mayhew of Twysden

It is the important job of the DPP to prosecute important cases and I suggest that it is his sole job. I am a little perturbed by the provision which gives an administrative, or quasi-executive, function to the DPP and in a case where there has not been a complaint. As I understand it, the jurisdiction of the ombudsman in Northern Ireland—I may be inaccurate about this—derives from a complaint of maladministration. If the DPP is or has been considering a matter of criminal prosecution but there has not been a complaint—there is no shortage of people to make complaints about anything under the sun in Northern Ireland—I need to be persuaded that a duty should be imposed on him to refer such a matter to the ombudsman in case the ombudsman believes that something has gone wrong.

The position of the DPP, as the noble and learned Lord the Attorney-General knows so well, is a very delicate one. I entirely endorse the graceful comments that have been made about the holders of that office. It is important that they should not be given anything to extend the duty that they have to prosecute cases and to bring an entirely independent and judicial mind to bear on matters. I realise that it is Recommendation 21 of the Criminal Justice Review, but in itself that is not decisive. I should like to hear a little more about the Government's thinking on that matter before the issue is concluded.

3.30 p.m.

Lord Goldsmith

The experience of the noble and learned Lord, Lord Mayhew, in the office that I am privileged enough to hold, and otherwise in Northern Ireland, gives him particular knowledge of how the DPP operates.

It is right to record that we are not proposing for the first time that the Director of Public Prosecutions should refer matters to the police ombudsman. We have already taken that step because under Section 55 of the Police (Northern Ireland) Act 1998, as amended by the Justice (Northern Ireland) Act 2002, the director is already empowered, along with the policing hoard and the Secretary of State, to refer certain matters to the police ombudsman. Perhaps I may put the point in this way: the proposition that it is wrong that the director should do anything outwith the business of prosecuting is a bridge that has already been crossed. Here we are concerned with whether, following Recommendation 21 to a large extent, although not precisely, he should be under a duty to refer matters that come to his attention.

As I said in answer to the noble Lord, Lord Glentoran, it seems to me that one advantage of phrasing the clause in this way is that it makes a clear distinction between the jobs. It does not leave the director in a position of having the job of deciding what the criteria are by which he should decide that something needs to be investigated; for example, for a disciplinary matter. It simply says that if he comes across something in the course of his primary work, he should refer it to the ombudsman for the ombudsman to take on the job of examining it and deciding whether there is anything further with which to deal.

I hope that that explanation helps to show that the director will not be put in a position that is difficult for him—I certainly would not want that—that it does not cast doubt in any way on his independence or professionalism and essentially that it leaves him to get on with the principal job of prosecuting.

Lord Rogan

I appreciate the indulgence of the Committee in allowing me to speak.

Baroness Farrington of Ribbleton

I am sorry, but we need to deal with the group of amendments before us now. If the noble Lord, Lord Rogan, seeks to speak to Amendment No.40, he should do so when Amendment No.40 is called. Although the amendment will not be moved, I am sure that the Committee will be indulgent enough to allow noble Lords to speak to it.

Lord Hylton

I am grateful to the noble and learned Lord for his reply to me. I particularly appreciated his assurance that there will be no delays in prosecuting serious, solid cases when there is plenty of evidence. I believe that the noble and learned Lord went on to say that overall the discretion that now resides with the Director of Public Prosecutions will be preserved. If I am wrong, I am sure that he will correct me. If I am right, I ask the Committee to give me leave to withdraw Amendment No.36.

Lord Goldsmith

If I do not intervene, the noble Lord will have put me in the position of appearing to accept what he has said. When he talks of the discretion that remains with the director, I believe he means the discretion of the director whether to prosecute or not. I see the noble Lord nodding. If that is so, I can certainly give that assurance. That remains unchanged.

Amendment, by leave, withdrawn.

[Amendments Nos.37 to 39 not moved.]

Lord Rogan had given notice of his intention to move Amendment No.40:

Page 3. line 41, at end insert— ( ) No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coming into force of this section.

The noble Lord said: Amendment No.40 as printed on the Marshalled List contains the words, took place before the coming into force of this section".

I actually tabled the word "after". I apologise if that is my error.

Clause 6 makes yet another structure within our society—the office of the Director of Public Prosecutions, which should be independent and immune from interference—subject to conditions that will be dictated by the police ombudsman and it interferes with the chief constable's right to set, modify and impose appropriate standards of discipline.

There is a practical aspect to my amendment. Already we have seen the so-called Bloody Sunday inquiry moving at enormous cost towards a conclusion that I predict will satisfy no one in Northern Ireland. It has impinged on police resources. Now in the aftermath of the Corrie report we are bound for four more major inquiries.

In terms of police resources, neither manpower, money nor time are geared to cope with those huge extra burdens which I predict will be fruitless and inconclusive exercises that will satisfy no one. How, then, can we seriously consider adding another police ombudsman requirement for use of scarce police resources to what is already potential organisational mayhem?

Lord Glentoran

I am not sure that I follow or agree with the noble Lord, Lord Rogan. Perhaps I missed what he said in relation to what is printed as the amendment. As I understand it, the amendment states: No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coming into force of this section". My notes say, "Only conduct that took place after the Act has received Royal Assent will be referred". I believe that is the same thing. I believe we are trying to say that if we pass Amendment No.40 only conduct that took place after this Act has received Royal Assent will be referred to the ombudsman. May I have clarification on that point?

Lord Goldsmith

The amendment of the noble Lords, Lord Maginnis and Lord Rogan, as it appears on the Marshalled List, states that: No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coining into force of this section". I understand that to mean that only conduct that took place before the coming into force of the Act or this section could be the subject of a reference. Although the record may suggest that the noble Lord, Lord Rogan, expressed the wording the other way round. it may be that when he used the word -after" rather than "before", or "before" rather than "after", he meant the amendment to include the word "before".

In those circumstances. the intention is as I understood it, which is what I said when I spoke to this amendment during debate on the first group of amendments—that is, to prevent retrospective referrals, or referrals of things which happened previously. I see that the noble Lord, Lord Rogan, nods his head. I intervened in order to clarify the noble Lord's amendment, but I leave the noble Lord, Lord Glentoran, to complete his remarks unless he has already done so.

Lord Glentoran

I thank the noble and learned Lord. I had completed them; I simply wanted clarification.

Lord Goldsmith

The amendment concerns the issue of retrospection. As I said in moving government Amendment No.35, we accept, and were grateful to the noble Lord, Lord Laird, for pointing out, the need to deal with the possibilities of full retrospection. The way in which we propose to do so—indeed, it is the way that the Committee has accepted because we have now agreed to the amendment—is through Amendments Nos.35 and 41.

Those amendments would provide the same approach to time and retrospection in this situation as any referrals to which the RUC (Complaints etc.) Regulations 2001 apply. I shall simply repeat what I said then: that is. subject to certain exceptions contained in them, the regulations limit the ombudsman to investigating complaints about matters that are no more than 12 months old. The amendments which the Government propose would allow the Secretary of State for Northern Ireland to make similar regulations in respect of this new subsection.

Therefore, the government amendments are also intended to deal with retrospection. They do not deal with it in the same way as the noble Lord, Lord Rogan, proposes. They provide for greater consistency with the RUC complaints regulations than does his amendment. However, perhaps I may respectfully point out that his amendment could not be passed in the form in which it presently stands as it would do the opposite to what he seeks.

[Amendment No.40 not moved.]

Lord Goldsmith moved Amendment No.41:

Page 4, line 4, at end insert— (6) In section 64(2A)(b) of the Police (Northern Ireland) Act 1998 (Ombudsman not to investigate matter referred under section 55(1), (2) or (4) if it took place more than the prescribed period before the date of referral) for "or (4)" substitute ". (4) or (4A)".

On Question, amendment agreed to.

On Question, Whether Clause 6, as amended, shall stand part of the Bill?

Lord Rogan

I have been trying to outline the iniquity of this entire clause, which legislates for something that is unnecessary, unproductive and, I believe, unachievable. Perhaps I may give an example of a potential outcome regarding Clause 6 where subsection (3) inserts new subsection (4A)(a)(ii). A police officer investigates a crime and the result of the investigation is considered for prosecution by the Director of Public Prosecutions. The DPP somehow becomes aware that the investigation was delayed by a week when the officer concerned took sick leave but was, in fact, watching a football match in Europe.

That matter would justify disciplinary proceedings and, I imagine, would be dealt with fairly severely through internal police procedures. But it does not affect the outcome of the investigation; nor does it impede the prosecution in any way. Therefore, why should the independent Director of Public Prosecutions be obliged to inform the ombudsman and thus precipitate a welter of work for other hard-pressed officers, whose primary responsibility is to serve the public?

I hope that Members of the Committee realise that this provision can be retrospective and that that would place an even greater demand on police time and resources. The police have an obligation to meet every request made by the ombudsman.

On Thursday last, my noble friend Lord Maginnis, as I have done today, sought not to allude to other political parties as villains of the piece. However, I suggest that Clause 6, the intent of which was rejected by the Minister, Des Browne, is designed by the Government merely to help the nationalists. Your Lordships will neither want to legislate for the unachievable nor allow anyone to impinge on the efficiency and independence of the offices of the Director of Public Prosecutions or the chief constable. That is why I oppose the clause.

3.45 p.m.

Lord Goldsmith

As we discussed during debate on the preceding amendments, the purpose of the clause is to place a duty on the DPP to refer all cases of suspected police malpractice to the police ombudsman. I also indicated that the d rector is already empowered to do that under the Justice (Northern Ireland) Act 2002.

I make clear, first, that I very strongly support the independence and professionalism of the director and his staff. I have made that clear already and f shall make it clear in debate on subsequent clauses, too. As the superintending Minister for the director's work, I feel that very strongly. I recently had the great pleasure of being able to commend his work and that of his predecessor when talking about the steps that were being taken to develop the new Public Prosecution Service for Northern Ireland. I believe that it will he an independent, professional and efficient service which will serve the people of Northern Ireland extremely well.

I make a second point clear. I do not consider it likely that, where the director has taken a decision about prosecution and where there has been a thorough and complete police investigation, the ombudsman will consider a new investigation to be necessary. Of course, as I indicated to the noble Lord, Lord Hylton, previously, a decision to prosecute or not to prosecute remains a matter for the director.

The noble Lord, Lord Rogan, was concerned that the director's independence might somehow be affected by having to judge certain questions, and he gave an example of what might have been a disciplinary offence by an officer pretending that he was on sick leave when he was, in fact, watching a football match. However, the merit of the clause as it stands is that the director does not have to judge such questions; he simply has to form a view on whether or not it may mean that the officer has behaved in a manner that would justify disciplinary proceedings. If he comes to such a decision, he passes the case to the ombudsman. Whatever difficult decisions may arise for the ombudsman in considering whether further disciplinary investigations should take place, those decisions are for the ombudsman and not for the director. Therefore, I hope that the assurances that I was able to give previously will satisfy noble Lords that opposition to the clause standing part of the Bill can be withdrawn.

Lord Glentoran

Before the noble Lord, Lord Rogan, makes a final decision on what to do about the clause, can the noble and learned Lord the Attorney-General give us an assurance that, before we reach the Report stage, one or two small parts of the clause can be softened somewhat so that a little more discretion is allowed? I think of changing "shall" to "may" and other similar single-word changes. I hope that the noble and learned Lord may be able to encourage us that, before Report stage, the Government will consider one or two small areas; for example, those such as in Amendment No.38, which states: line 35, leave out 'may have' and insert 'has'".

Lord Goldsmith

As noble Lords who take part in debates on this legislation know, the Ministers concerned with Northern Ireland business are always happy to meet noble Lords to discuss any aspects of the Bill and to give further assurance or explanation. Of course I am happy to do that, but I would not like to hold out hope that any changes are likely to be made to the clause. Essentially, the clause simply says that where we come across conduct in the director of this sort or that sort—or which may be conduct of this sort or that sort—one should send the matter to the ombudsman for him to exercise his statutory discretion on whether to pursue it.

There is a discretion as to whether the matter should be pursued; but it is a better discretion for the ombudsman to operate than the director. It avoids the director being directly involved in questions of whether a matter is worthy of further consideration and helps to preserve his independence. That is as far as I am able to go, but I hope that the noble Lord finds at least my last remarks of some comfort.

Lord Glentoran

I thank the Minister. I hate to inject an element of real Northern Ireland politics into this very cultured debate, but I suspect that in various parts of the police force there are those who might start to look on the DPP as a spy on them.

Clause 6, as amended, agreed to.

On Question, Whether Clause 7 shall stand part of the Bill?

Lord Glentoran

I have opposed the inclusion of Clause 7 in order to probe the Government on its purpose. According to the Explanatory Notes, Clause 7 creates an offence of seeking to influence prosecution decisions without legitimate cause. We are told that the measures were suggested in the Criminal Justice Review at recommendation 46.

New Section 32A(1) and (2) make it clear that guilt depends on intention to pervert the course of justice. Thus it would appear that an offence would already be committed under common law. The Minister knows far more than I about these matters, but my advisers ask what is added by the Bill. Is it an offence for which the Director of Public Prosecutions for Northern Ireland has been calling? What sort of examples have prompted it?

Lord Mayhew of Twysden

I support the comments of my noble friend Lord Glentoran. Paragraph 19 of the Explanatory Notes states: Case law concerning the common law offence of perverting the course of public justice is likely to be of use in the interpretation of this new offence". That strikes me as a polite way of saying that the provision is not necessary, but it simply applies the existing law explicitly to this set of circumstances. If that is the case, it seems superfluous to legislate in particular for this context. We should be trying to avoid unnecessary legislation. If I am wrong, I should be glad to hear why.

Lord Phillips of Sudbury

I identify with the remarks of the two Members of the Committee who have spoken. I wait to hear the Minister's persuasive explanation. Subject to that, the public is growing a little dissatisfied and anxious about the plethora of new criminal offences created by the Government—some 600-plus offences since they came to power. Do we really need to create a new offence where a common law offence already exists?

Lord Rogan

It is a wise principle that in legislation one does not over-legislate; nor does one legislate unless the current legislative provision is insufficient. I can see no need for legislation in relation to Clause 7. Obviously I shall defer to Members of the Committee who are experts in law, but I ask the Minister where the offences created by Clause 7 differ from the common law offence of perverting the course of justice. The provision limits the sentence for the offence, unlike the common law offence, which carries a greater term of maximum imprisonment.

Furthermore, the common law offence can be tried only in the Crown Court. Will the Minister tell the Committee in which circumstances attempting to influence a prosecutor with the intention of perverting the course of justice is not an act tending or intended to pervert the course of justice? Interference with jurors or witnesses at common law in an attempt to persuade them to change their evidence is sufficient to constitute an act; therefore, so must be attempting to influence a prosecutor.

The Minister will know that common law offences do not activate only after the instigation of proceedings, as may apply, for example, to a police officer's activities before the commencement of proceedings. Unless substantial justification is forthcoming, this clause should not remain in the Bill. If the explanation is that it was an undertaking given to the SDLP at Hillsborough, that is not sufficient justification for its inclusion in the Bill.

Lord Goldsmith

One thing stood out in our discussions on the previous amendments: a view shared on all sides of the Committee that the independence of the DPP and his staff was critical to the functioning of the justice system in Northern Ireland. Changes to the justice system in Northern Ireland will mean that that independence is even more warmly to be cherished. The role of Attorney-General will be changing: the director will be standing as an independent person with a different relationship to the new, local Attorney-General for Northern Ireland and indeed the Advocate General for Northern Ireland, which the English Attorney-General will continue to be.

In those circumstances I am sure all Members of the Committee would agree that it is extremely important that we send a clear message that the director's independence shall not be interfered with without proper reason. In Clause 7 we seek to make it abundantly clear that improperly seeking to influence the Director of Public Prosecutions will be an offence.

I can envisage many circumstances in which providing information to the director, even making representations, perhaps on behalf of a relative—I do not constrain the examples—would be perfectly proper and it would be proper for the director and his staff to be able to take them into account. But there will come a point at which an attempt to influence a decision will cross a boundary and begin to move into the area in which the director's independence is being subverted.

At that point we believe that an offence should be created. We found it useful in those circumstances to have regard to an existing body of law in relation to the common law offences of perverting the course of justice, which help to identify what the point is. To my mind—I hope that Members of the Committee will agree—given that the director's independence will be at the heart of his role in the criminal justice system in Northern Ireland, it is right and desirable that we should specifically underline that through the creation of an offence.

We have not followed precisely the proposals of recommendation 46 of the Criminal Justice Review, which proposed the creation of an offence, because we wanted a clearer provision that had regard to existing law that would enable people to judge whether conduct would break the law. I have consulted the Director of Public Prosecutions closely on this clause to ensure that it is workable and fair, and he is content with it.

I invite noble Lords to view this as an important protection. One thing on which we are all agreed is the need to safeguard as much as possible the independence of the Director of Public Prosecutions. That independence is the bedrock on which prosecution decisions will be made and accordingly of a fair and effective justice system for the people of Northern Ireland. That is why I shall ask that Clause 7 stand part of the Bill.

Lord Mackay of Clashfern

Can the noble and learned Lord the Attorney-General illustrate circumstances in which there would be a breach of this clause and yet not of the common law provisions?

Lord Goldsmith

I am disinclined to speculate on all the kinds of circumstance in which someone might attempt to form a view as to what would constitute a common law offence. The noble and learned Lord, Lord Mackay of Clashfern, will know perhaps better than anyone that the surrounds of the common law can be a little imprecise. However, I can say that it will be clear both in terms of a message and an offence that if, with the intention of perverting the course of justice, someone seeks to influence the director, the deputy director, a public prosecutor, a barrister or a solicitor to whom certain matters have been assigned, that will be an offence. Stating that clearly on the face of the statute will send a clear message to everyone as to the need to safeguard the independence of the Director of Public Prosecutions and will be very beneficial in that regard.

Lord Glentoran

I thank the noble and learned Lord for that clear explanation as to where the Government stand. It is clear that they have sound reasons. However, listening to my noble and learned friend Lord Mackay of Clashfern and to others, the legal debate could go on for a long time. I think it would be wise on this occasion to beg leave to withdraw my opposition to the Question that Clause 7 stand part.

Clause 7 agreed to.

Baroness Farrington of Ribbleton

I beg to move that the House be resumed in order to take a Statement on railways.

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

House resumed.