I beg to move amendment 10, in clause 3, page 2, line 17, at end add—

'(4) Section 22 of the Justice (Northern Ireland) Act 2002 is amended as follows—

(a) for subsection (2) substitute—

"(2) The Attorney General for Northern Ireland shall be appointed by the Lord Chief Justice and the provisions of section 5 (as amended) shall have effect for the procedure governing such appointment".

(5) In the Justice (Northern Ireland) Act 2002 omit section 41.'.

The Chairman:

With this it will be convenient to discuss amendment 11, in schedule 3, page 15, line 12, at end insert—

'(11A) In section 42 for subsection (1) substitute—

"(1) The Director must exercise his functions under the superintendence of the Attorney General for Northern Ireland in relation to devolved matters and the Advocate General for Northern Ireland in relation to retained matters and is subject to any directions given by either of them thereunder, but a failure to comply with this subsection does not affect the validity of anything done by or on behalf of the Director."'.

We have reached the amendments rather earlier than I had anticipated, but I am not complaining about that. Nevertheless, I want to tell the Government that we are still short of time.

We have talked a lot about strengthening the independence of the judiciary. One of our proposals is that the Attorney-General for Northern Ireland should be appointed by the Lord Chief Justice on the advice of the Judicial Appointments Commission and not by politicians. I know that when Mr. Robinson intervened at an earlier stage, I said that I would return to that point. I have since had a brief word with him to clarify his concern. We have talked about the matter and we feel that our amendment is probably the best way forward. I cannot go into all the details now, as I do not have time, but if we get time later we can return to that point. We have discussed the matter with our shadow Attorney-General. We have had extensive discussions about the amendment and we feel that it would improve the Bill. We believe that the amendment would have the added advantage of strengthening the principle of devolution, as the independent nature of the appointments system, free from political interference, would stabilise a very sensitive process.

We are also concerned about how, under the proposed model, the Director of Public Prosecutions after devolution would be left without supervision or protection by a person accountable to the Assembly. We agree that his role should be made independent and free from politicians, but the Government propose creating a hybrid that, in effect, would leave him entirely unaccountable and unprotected.

The DPP has far reaching powers. His is a very powerful role—for example, he can enter a nolle prosequi application, or decide to prosecute or to stop criminal proceedings—yet he is answerable to no one. He may carry out his functions how he wishes, and he would be removed only in extreme circumstances, such as if he were totally failing to carry out his role. We do not believe that that should be the case. The DPP, like other members of public bodies and the judiciary, should be capable of being held accountable. We propose that he should enjoy the supervision of the Attorney-General for Northern Ireland on devolved matters, and of the Advocate-General on reserved matters.

Our amendment would have the added advantage of providing the DPP with a colleague who could speak for his Department in the Assembly. In Great Britain, the Attorney-General is a member of the Government and can speak in Parliament on behalf of the Crown Prosecution Service, so we feel that the DPP should have the same protection in Northern Ireland. We feel more strongly about this part of the Bill than about most others.

Has the hon. Gentleman had time to consider how he can square the proposals in his amendment with the advice given to the review of the criminal justice system in Northern Ireland? That gave very clear indications as to how the legislation should be set out.

We have not had a huge amount of time, but we have studied the matter to the extent that we were able. We are still persuaded that we are putting forward a better argument.

I know how strongly the hon. Gentleman feels, and I hear that he may be proposing to divide the House over this amendment. That would matter a great deal, as the signal that that would send out is so important.

The advice to which I am referring makes it very clear why the review decided that the separation should take place in the way that is set out in the Bill, and why it should be structured as we propose. The review was carried out in 2000 and published in 2002, which means that, even if they have not drawn it to his attention before today, the hon. Gentleman's advisers have had several years to look at it. His amendment would tear up the proposals in the Bill. Why, given the importance of the future and stability of the criminal justice system in Northern Ireland, does he choose to advocate that?

Well—

Will my hon. Friend give way?

Certainly.

I thank my hon. Friend. Does he agree that the model being adopted is more or less the same as the one that exists in the Republic of Ireland? The model that he is talking about is more like the English one.

rose—

rose—

The Chairman:

Order. I have to maintain some semblance of order here. Mr. Robertson was taking an intervention from Mr. Djanogly, so I think that he has to be allowed to respond to that before he can take any further interventions.

I can respond very simply to my hon. Friend Mr. Djanogly. We have of course discussed the matter, and I agree entirely with him.

Surprise!

Our great difficulty with the Bill as it stands is that we believe that the DPP will be accountable to no one, and we cannot accept that. We also see that he will be completely unprotected by anyone able to report to the Assembly. That is the basis for our argument.

My hon. Friend the Member for Huntingdon has momentarily left his seat, but I know that he will be seeking to catch your eye, Sir Alan. Perhaps he and the Secretary of State will be able to attack each other without me having to act as referee, but I have set out the basis for our objection to the Bill as it stands.

I am always delighted to engage with the hon. Gentleman, but with huge respect, given the importance of the issue, the signal that the amendment sends and the work of the criminal justice review, before he decides to divide the House, may I suggest that if he and his advisers are not up to speed with the criminal justice review—it can happen to any of us—they take the time to get up to speed, before we send what would seem to be a very destabilising signal to the criminal justice system in Northern Ireland?

I am grateful for the way in which the Secretary of State is attempting to persuade me not to press the amendment to a Division, but we have discussed the issue as far as parliamentary time would allow. He tried, very gently, to persuade me not to push the case, so I will respond as gently as I can: we have all been put in a difficult position, not only by today's unnecessarily tight timetable, but by the timetable under which the Bill was laid before Parliament. I know that the Secretary of State delayed its introduction for one week, but we still had very little time to discuss it. Nevertheless, we have certainly consulted the document to which he refers, and we are concerned about the fact that the DPP would be in a difficult position if our amendment were not carried.

I want to be helpful. I understand my hon. Friend's concern, and I admire his assiduous work for Northern Ireland considerably, but we are in a very unsatisfactory situation. The timetable is ridiculous. Would it not be sensible to confer with our friends in the other place, and then perhaps table an amendment? [Interruption.] If I could have my hon. Friend's attention for half a second, if there is to be a Division, let it be after further mature consideration in the other place.

I understand my hon. Friend's concerns on the matter. We have carried out a great deal of consultation on the subject. The advice that we were given, which may contradict the advice in the document to which the Secretary of State refers, was that we really should revisit a situation in which the DPP is unsupervised and unprotected.

I genuinely really want to help the hon. Gentleman. With huge respect, again, the criminal justice review is not just some document, or some piece of consultation. It is the document on which much of the present and future judicial system in Northern Ireland is based. If the hon. Gentleman's advisers have failed to consult the document—they have had seven years to do so, and not just the afternoon—I honestly advise him not to press the amendment. It is in the interests of the people of Northern Ireland that he gives himself and his advisers time to reflect on the matter.

I understand that we have 17 minutes left, and I know that one or two other hon. Members wish to contribute to this debate. Of course, we will listen to what they have to say, but I think that I have made the case for what we are proposing, and I shall leave the matter there.

I will not detain the House long. I have a lot of sympathy for the predicament in which Mr. Robertson finds himself. The Secretary of State is right that the review has been around since 2002, but it is only 10 days ago that we knew how it would affect the legislation. I do not think that the hon. Member for Tewkesbury is to be criticised for probing the issue in the way that he has done.

I come to the question as a former career prosecutor. My experience informs me that the independence of the prosecution service is important. The reasoning behind the conclusions of the review were sound, and they ought to be supported. They should not be dismissed lightly. There is certainly a case to be made for ensuring proper accountability for the Public Prosecution Service, particularly in respect of its use of resources. That accountability is best done as it is in the Scottish model by the Lord Advocate answering questions in Parliament. I do not know whether the DPP has some audience rights within Stormont. If not, that would be the obvious cure for the defect identified by the hon. Gentleman and by others. Beyond that, the independence of the prosecution services in going about their work is of supreme importance and I would caution the hon. Gentleman against pursuing this matter too far.

It is sufficient to say that I am not entirely persuaded by the argument that has been advanced so far. I will speak for only a few minutes, which may give the opportunity for a strategic withdrawal to be arranged, which would be sensible in the circumstances.

The amendment that I want to touch on relates to the Attorney-General. The Opposition spokesman is right that I intervened earlier to say that the Lord Chief Justice would be put in a difficult position by that proposition. The Lord Chief Justice would be asked to appoint an Attorney-General—one of the QCs, no doubt, who would be a member of the Bar—and any time that the Attorney-General would appear before the Lord Chief Justice, the Lord Chief Justice would be hearing the case from his chosen one, the one whom he had favoured, and unquestionably there would be people who would doubt the independence of any decision that would arise therefrom.

Does the hon. Gentleman not accept that there are conventions that deal with such conflicts?

That would mean removing the Lord Chief Justice, the most senior Law Officer, from the most important cases; no doubt, those being taken in defence of the Government. That would not be a wise move.

Much of today's debate has been on what appeared to be the unanimous decision of the House that greater independence was needed and that politicians should not be in the job of appointing judges. Now we have the proposition that the judges should appoint those who will go into the political arena to answer questions in the Assembly and to represent the politicians in the Government, and that is not a good way forward either.

The actual outcome was one of the easiest for the Deputy First Minister and I to come to an agreement on. I think it took only a few hours for us to agree who the best person might be for the post of Attorney-General when the moment came to make such an appointment, and we publicly said that our choice was John Larkin, QC. I have not heard one word of disagreement from any section of the community about that choice. The politicians were able to make that choice in a way that was responsible and would have merited confidence in the community. I suspect that the proposition offered by the Conservative party would not do that.

rose—

The Chairman:

I am sorry to have to say it in open Committee to the hon. Gentleman, but it is not permissible for two members of the Front-Bench team to speak in the debate or to intervene, so it is rather unusual for him to seek to speak when the amendment has already been moved from the Front Bench.

On a point of order, Sir Alan. My hon. Friend Mr. Djanogly is not a member of the Northern Ireland Front-Bench team.

The Chairman:

The instruction given on the Bench Note is that the Committee stage Front-Bench team would comprise the hon. Members for Tewkesbury (Mr. Robertson) and for Huntingdon (Mr. Djanogly). As the amendment has been moved from the Front Bench, we must rest at that.

My hon. Friends the Members for Tewkesbury (Mr. Robertson) and for North Shropshire (Mr. Paterson), who speak from the Opposition Front Bench, are being given advice by their adviser, my hon. Friend Mr. Djanogly, who sometimes speaks from the Front Bench, so they cannot hear the advice that I am trying to give them, but I earnestly beseech them to recognise that, after due consideration, they have hit upon an important point, which clearly merits further consideration. I hope that, having heard what the First Minister said—I am sure they did—they will take carefully to heart his gentle, persuasive advice, have further discussions with our noble Friends who will debate this Bill for two whole days and arrange for a proper debate on a similar amendment in another place.

In the meantime, due consideration could be given to all the literature on this subject—particularly to the seminal document to which the Secretary of State referred. It can then be decided whether the proposal is sensible or whether it would be better to make another one. I urge my hon. Friends to ponder those points, and not to press for a Division.

It is time for a pause, to breathe and reflect. If Mr. Robertson wishes to intervene to tease this issue out a little further, I will be more than happy to give way. However, like the Secretary of State, I have to put it to the hon. Gentleman that if he were to insist on a vote, he would seek to overturn a fundamental principle and part of the Northern Ireland criminal justice review of 2000 and the subsequent legislation. That would be a significant step.

The fact that there was a review several years ago does not bind us today. That said, we try to deal with these matters on a cross-party basis. Given the advice of the Secretary of State, the Minister, the First Minister and the Chairman of the Northern Ireland Affairs Committee—and given the misunderstanding, no doubt our fault, that led to my hon. Friend the Member for Huntingdon not being able to contribute—we would like to reserve the right to return to the issue in another place. I will not press the amendment to a Division.

I am grateful for that. The hon. Gentleman and I spend a lot of time in Committee together, and I have always found his approach to such issues entirely practical. I thank him for that. The issue is as significant as I have set out, so I am pleased that he is taking further time to reflect. As Members of the other place consider the issue in the days ahead, I am sure that they will look at what the review document says.

The Minister keeps referring to the review. Although we appreciate that there has been a review and although, in contrast to what the Secretary of State said, we did read it, does the Minister not appreciate that we are still entitled to debate the issue? The Minister speaks as if we are not allowed to.

Any party is, of course, entitled to raise debate in this place; that is what this place is about. However, we also have to respect and recognise that in the process of improvement and change towards peace and progress in Northern Ireland, certain key staging posts have been reached. A very important staging post was the criminal justice review in 2000 and the subsequent legislation that went through the House. We have to respect that. Without that settlement, much development of the criminal justice process in Northern Ireland that has happened since would not have happened.

The question of independence is important. I return to what the document itself says:

"in the particular circumstances of Northern Ireland, we believe that this independence should be further strengthened, by ensuring that the relationship between the Attorney General and the head of the prosecution service, while containing elements of oversight, is consultative and not supervisory. In other words, there should be no power for the Attorney General to direct the prosecutor, whether in individual cases or on policy matters."

Indeed, reference was made to Lord Mayhew's comments during the passage of the Justice (Northern Ireland) Act 2002:

"Given the highly charged atmosphere of Northern Ireland—to use a well-chosen word that appears in the review—it is important that this enormously invasive prosecution arm of the state should be exercised in Northern Ireland by an official who is entirely independent. That is a departure from the current system in England and Wales and in Northern Ireland."—[ Official Report, House of Lords, 13 June 2002; Vol. 636, CWH 93.]

So it is a different system, but a system that, following the review, was felt to be highly appropriate for Northern Ireland. That does not mean that the Attorney-General and the Director of Public Prosecutions do not have a relationship: they do; it is a very strong relationship that is bound by statutory consultation. As I said earlier, there will be robust exchanges between the Attorney-General and the Director of Public Prosecutions in drawing up the code of practice for prosecutors. They have a statutory relationship in terms of consultation but not in terms of superintendence or direction.

I am pleased that the Minister is admitting that we will now be pulling away from the system that exists in this country, which did not seem to come across in his earlier remarks, but who is the DPP going to answer to?

The DPP will be answerable to the Assembly for the use of resources and the administration of its office—that is very clear—but not for individual prosecution decisions, which are entirely for the independent DPP. It is important at the point of devolution that that is made absolutely clear and enshrined in the institutions.

I chaired the Assembly and Executive Review Committee for a time. When we considered these matters, it was our understanding that when the Director of Public Prosecutions presented his annual report he would come to the Justice Committee in the Assembly and be subject to questioning, and the Committee would have the opportunity to consider his report. A degree of accountability is therefore built into the system.

The right hon. Gentleman is entirely right. This does not apply only to producing the annual report. If a Committee, particularly the Justice Committee, wished to take evidence from the DPP, the DPP could be invited to attend and such evidence could be given. Indeed, the DPP gives evidence to Select Committees in this House, as the Chairman of the Northern Ireland Affairs Committee will know.

It is also worth pointing out, further to the intervention by my right hon. Friend Mr. Donaldson, that when all these issues were considered in the Assembly, I do not remember a single Member or party raising any concern on this particular point. The issue of independence, which we discussed in relation to a previous clause, has been accepted in Northern Ireland.

Indeed, it is broadly accepted, certainly in the conversations that I have with the Lord Chief Justice, the Director of Public Prosecutions, or anybody else. The issue of independence is absolutely written through the whole system and is seen as highly significant.

It is not only the DPP who may be invited to give evidence and have to produce an annual report—the Attorney-General, too, may be so invited. Indeed, both will have speaking rights in the Assembly and be able to speak to and respond to Assembly Members, whether in the Assembly or in Committee. There is a very clear structure of relationships both between the Attorney-General and the Director of Public Prosecutions and between those office holders and the Assembly.

Mr. Robinson touched on the appointment of the Attorney-General and pointed out the difficulties that would be faced were the Lord Chief Justice to make that appointment. There would also be a difficulty given that the Attorney-General has always been seen as somebody who would have a wider advisory role in giving legal advice, perhaps advising the Executive on certain key issues. It would be very uncomfortable, I suggest, for the Lord Chief Justice to appoint the person who would then advise the Executive. Any Lord Chief Justice would approach such a scenario with extreme caution. Of course, it is very important that the Attorney-General has independence, which should be safeguarded from inappropriate political pressure. The appointment of the Attorney-General, therefore, is made jointly by the First Minister and the Deputy First Minister, and the choice of John Larkin is, as far as I can tell, generally and widely welcomed.

As previously indicated, and for the reasons that I gave, we will not press the amendment to a vote. We reserve the right to consider it further over the next few days, but we will not press it to a vote tonight.

Debate interrupted (Order, this day).

The Chairman put forthwith the Question already proposed from the Chair (Order, this day), That the amendment be made.

Question negatived.

The Chairman then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Order, this day).

Clause 3 ordered to stand part of the Bill.

Clauses 4 and 5 ordered to stand part of the Bill.