Clause 31 - Director of Public Prosecutions

Justice (Northern Ireland) Bill – in a Public Bill Committee am 10:30 am ar 5 Chwefror 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 10:30, 5 Chwefror 2002

I beg to move amendment No. 200, in page 18, line 32, at end insert—

'(3A) Subject to subsection (8), the Director and Deputy Director shall be appointed by open competition.'.

First, I express my thanks to the hon. Member for Reigate (Mr. Blunt) for moving the two amendments on Thursday afternoon that were tabled in my name. I appreciate it, because I had to leave early.

Amendment No. 200 is simple and straightforward. Subject to subsection (8), it would require that the Director and Deputy Director of Public Prosecutions should be appointed by open competition. It seems remarkable in this day and age that such amendments should be necessary, especially as the review of the criminal justice system in Northern Ireland is emphatic on the subject. The review states:

''It is particularly important that the process of appointing the head of the Public Prosecution Service is insulated from any possibility or appearance of political influence.''

The review went on to recommend that

''the appointment process for the head of the Public Prosecution Service and deputy be through open competition, with a selection panel, in accordance with procedures established by the Civil Service Commissioners for Northern Ireland.''

There can be no doubt as to the wishes of the review. Not only does it specify what it wants, but it specifies in detail how that might happen.

I believe strongly that it is an important issue. If we are to take a new approach to the criminal justice system with regard to prosecution, the selection of judiciary and so on, why must we keep the anachronism of the DPP not being appointed by open competition? There must be a reason. I could guess at two or three, but I shall wait to hear what it is. I look forward to hearing why the appointment should not be through open competition, because under the new dispensation in the north of Ireland almost all such posts are advertised and made through open competition, with the help of the expertise of the Civil Service Commissioners.

We should know why the Bill does not state that the appointments will be made by open competition. Most importantly, I ask the Minister to give his assessment of the effect that not having open competition for the position might have on public reaction to the Bill.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

Before the hon. Gentleman concludes, will he outline what he means by ''open competition'' in this context? It is an easy expression to use, but I would be interested to hear a little about the thought process behind its use in the amendment.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I claim no credit for the thought process, as I relied exclusively on the recommendation in the criminal justice review. It states without ambiguity that

''the appointment process for the head of the Public Prosecution Service . . . be through open competition, with a selection panel, in accordance with procedures established by the Civil Service Commissioners for Northern Ireland.''

I believe that it is right for all such senior posts to be filled by open competition. That may take a little longer and involve more work for others, but it is ultimately the only way in which transparency and openness can be seen to exist.

I shall end with a more general remark. From our debates and deliberations last week, it was clear that hon. Members from both sides of the Committee recognised the imbalance in the judiciary, and believed that the community must be reflected in all the major changes. If we do not have open competition, it will be hard to avoid the suggestion that the old boy network is retaining its influence, and that will not achieve transparency, be to the good of the Bill and the process that it initiates, or be in the interests of fairness.

That may be a jaundiced view, but it is widespread. The amendment would signpost to the community, especially the part of it that I represent, the fact that change is in the air. If we retain the anachronism of appointing by other means, the signposts will point in another direction—in the direction of a process that is not transparent, that has not been especially successful, and that has forced us into a position in which we have to deal with such a Bill.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I thank the hon. Member for Newry and Armagh (Mr. Mallon) for his kind remarks about our moving his amendments in his absence. If the position were reversed at some stage—in the unlikely absence of all my colleagues and me—I should be grateful if he would return the favour, even if he disagreed with the amendments, so that they could at least be debated. However, I hope that we will not have to rely on him.

The hon. Gentleman's amendment seems eminently reasonable, as the idea behind it is contained in the review. That poses questions as to why the idea was not included in the Bill. Is there a hidden agenda floating around in the background? Most reasonable people would clearly be inclined to support the hon. Gentleman's proposal, and I look forward to the Minister's explanation of why there is nothing similar in the Bill.

There are questions about the relationship between the Attorney-General and the Director of Public Prosecutions and—because the Attorney-General will answer for the DPP in the Assembly—about the confidence that must exist between them. There is, however, no relationship between the Attorney-General's term of office and that of the DPP, and,

under the Bill, an Attorney-General can appoint a DPP who may remain in office permanently until the age of 65. We shall discuss the age limit in the clause stand part debate, and I shall be interested to hear from hon. Members who contributed to our debate on the age limit for the Attorney-General. There are, however, particular problems in this case because the DPP's term of office is unlimited. The review suggests that the DPP should hold his post for a fixed term or until he reaches a statutory retirement age, which leads us to a discussion of the relationship between the Attorney-General and the DPP, which I shall explore in the clause stand part debate.

On the amendment, paragraph 4.176 of the review noted:

''It is particularly important that the process of appointing the head of the Public Prosecution Service is insulated from any possibility or appearance of political influence.''

In the light of that recommendation, I look forward to the Minister's reply to the debate. I should add that the Opposition are inclined to support the amendment tabled by the hon. Member for Newry and Armagh.

Photo of Peter Kilfoyle Peter Kilfoyle Llafur, Liverpool, Walton

I listened with interest to the hon. Member for Newry and Armagh, and I was struck by his arguments against the old boy network and for widening the net when making an appointment. This may or may not be relevant, but his words brought to mind the Government's emphasis on exactly the same arguments in 1997. It was noteworthy that they took exactly the same direction as the hon. Gentleman in their first piece of legislation, which enabled the Lord Chancellor to draw the permanent secretary from a wider selection of people. I look forward to the Minister's comments on the Government's consistency in these matters. I appreciate that we are talking about an entirely different function from that exercised by the permanent secretary in the Lord Chancellor's Department, but the Government must be careful about the mixed messages that have been sent out over time.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I take the point that the hon. Member for Liverpool, Walton (Mr. Kilfoyle) made, but despite the words of my hon. Friend the Member for Reigate, I am not convinced that I am sure of the amendment's implications. I asked the hon. Member for Newy and Armagh what he meant by open competition, and I have yet fully to understand what he thinks it means, although the Minister may well have a better idea.

The net into which the Attorney-General can dip for candidates is fairly limited because the legal profession in Northern Ireland is small in comparison with that in England and Wales and, I dare say, in Scotland. Furthermore, any candidate from within that small class of people must be a barrister or a solicitor of at least 10 years' standing, so there will not be a very big pool into which to dip the net.

The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Desmond Browne): I should just make it clear that the Government accepted the recommendation that there should be open and fair competition in the context of the implementation plan. For the very reason of definition, the commitment to open and fair competition does not lend itself to statutory expression.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

The Minister and I are pushing at the same door. I do not wish to be a pompous lawyer.

Mr. Blunt rose—

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough 10:45, 5 Chwefror 2002

Before my hon.--and, I am sure, had he remained in the armed forces for longer, gallant--Friend speaks, I caution the Committee against getting overenthusiastic about warm words. They have eventually to be interpreted by a court or by those who are adjudicating the competition, and we need to be careful.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

The answer to the question of my hon. and learned Friend and to that of the Minister is clear. The recommendation is that the appointment process be

''through open competition, with a selection panel, in accordance with procedures established by the Civil Service Commissioners for Northern Ireland''.

I am not certain why that cannot appear in the legislation.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

We are moving into an era of aspirational legislation. It is becoming a bit continental—I do not mean that in a disparaging sense. In the legislative system of the United Kingdom, black letter law does not, or should not, include clauses that express hopes or desires. It should say what the law is and what a person or a public body may or may not do. If we add the expression ''open competition'', I am not sure that that will assist in the selection process. For example, the DPP for England and Wales was selected on merit. He happens to be an old Etonian and to have gone to Oxbridge. Nowadays, many members of the selecting class deem both of those educational advantages to be disadvantages. None the less, David Calvert-Smith, QC, an extremely good criminal barrister, has performed his job as DPP in this part of the UK with great aplomb and skill. I have no doubt that whoever chooses the DPP for Northern Ireland will be able to select the best man or woman, regardless of whether the words ''open competition'' appear in the Bill. We do not need to hobble the selectors by adding words that make us comfortable that we have done something good, but which achieve little.

Photo of Peter Kilfoyle Peter Kilfoyle Llafur, Liverpool, Walton

I am a little puzzled by the hon. Gentleman's argument. The clause is specific about who can be appointed to the positions. Surely that is the antithesis of the aspirational type of legislation to which he refers.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I apologise to the hon. Gentleman. I am not sure that I follow his point. If he is suggesting—I do not think that he is—that anybody of good standing should be allowed to be appointed DPP of Northern Ireland, that is not what we want. Perhaps I have misunderstood him.

Photo of Peter Kilfoyle Peter Kilfoyle Llafur, Liverpool, Walton

I am not suggesting that. I recognise that these are specific jobs, requiring specific talents and qualifications. The hon. and learned Gentleman has referred to the fact that there is a small pool of people from which to draw for appointment to those functions. Although the deputy director will stand in for the director, it is specified that one must a barrister and one a solicitor. That further refines the numbers from which they can be chosen.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

That is merely a function of the job and of the people from among whom the appointed person can be selected. The deputy will have to have been a member of the legal profession for seven years; the director for 10 years. I doubt whether anyone who is appointed director or deputy director will just scrape past those minimums. If they are to have the authority and experience necessary to carry out their jobs, they are likely to be people of many years' standing. However, I agree with the hon. Gentleman about the lack of symmetry. The Attorney-General can continue in the job until the age of 70, but the director must stop at 65. It may be that the Attorney-General will retire on his 70th birthday but will appoint the Director of Public Prosecutions to succeed him, giving him another five years in office.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am grateful to my hon. Friend the Member for Newry and Armagh for tabling the amendment, because it has given us the opportunity to highlight the relevant recommendation in the review, recommendation 59, and to discuss an important issue relating to the qualification and independence of the Director of Public Prosecutions and to the system of his appointment.

As I pointed out in response to the hon. and learned Member for Harborough (Mr. Garnier), the Government fully accepted the recommendation of appointment by open competition, with the qualifications set out in the recommendation, and did so explicitly on page 33 of the implementation plan published at the same time as the Bill. We fully endorse the principle of open and fair competition for such posts. Indeed, it is the status quo in relation to a large number of public appointments that the Government have made in Northern Ireland.

The Commissioner for Public Appointments has approved the process that the Civil Service Commissioners for Northern Ireland have established. I am not in a position—as some hon. Members wish me to be—to set out the specific details of that process as they relate to the post that we are discussing. However, I can tell the Committee that it includes the public advertisement of the post, so that all those who qualify may consider whether to apply for the job; an independent element on the interview panel; and, in relation to some posts, predetermined questions, so that everyone is asked the same questions at interview.

A significant amount of pre-planning takes place, and the procedure is submitted to the Commissioner for Public Appointments for approval to ensure that it qualifies as open and fair competition.

Of necessity, because some of the posts are unique—or comparatively unique, if that is possible—it is impossible to set in stone a procedure that should apply to every post. To some extent, the procedure must be individually designed for each post. For those reasons, the Government believe that it would be impossible to include a statutory definition of ''open and fair competition'' in the Bill. Given that that is now the standard appointments procedure in Northern Ireland for such posts, as my hon. Friend the Member for Newry and Armagh said, the Government believe that it is unnecessary to state in legislation that appointments should be made in that way. In any event, it would be unusual to state in legislation the appointment procedure for a particular job. I know that this legislation sets out a complex procedure, by way of the Judicial Appointments Commission, for the appointment of the judiciary in Northern Ireland, but I hope that the Committee will understand why that must be set out in statute.

The details that the amendment would insert are unnecessary. The status quo already ensures that the appointment will be made by open and fair competition as a result of procedures that are already well established in Northern Ireland.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

When the Minister refers to the status quo, is he saying that the method that will be used will be by public appointment?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

It is probably my fault, but I did not understand my hon. Friend's question. The Government have appointed people to public appointments in Northern Ireland by a process that fits the description in the recommendation, which refers to the procedures established by the Civil Service Commissioners for Northern Ireland. The recommendation is couched in those terms because the review was aware of the procedures established by the Civil Service Commissioners for Northern Ireland. The Government intend that those procedures, which are set out in general terms, will apply to this post. Such procedures have recently applied in relation to appointments in Northern Ireland.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I have listened with interest to the Minister's remarks, and his reference to an implementation plan. Some of us have experience of implementation plans from other Bills, and know that people should not too readily believe that what is in an implementation plan will be implemented as the legislation requires. I profess that I am sceptical about implementation plans.

I refer specifically to the implementation plan drawn up under the Police (Northern Ireland) Bill and to the assurances given in this, or a similar Room, by my right hon. Friend the Member for East Kilbride (Mr. Ingram), the then Minister. He was an honourable man who honoured his commitments in relation to everything that he said, but had not the type of control to ensure that others acted equally honourably.

Therefore, I am not enamoured of, or impressed by, this Minister's recourse to an implementation plan, nor will I be persuaded by it.

We should not lose sight of the fact that these measures are proposed in preparation for devolution. The director who is appointed will not live forever. When, subsequent to the first elements of devolution, appointments must be made again, is it not incongruous that the system of open competition that is applied by the Northern Ireland Assembly and Executive will not pertain? If something is important, it should be put in the Bill, using all the skills available.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead 11:00, 5 Chwefror 2002

Is my hon. Friend not persuaded of the Minister's emphatic endorsement of the philosophy underlying the amendment? If an appointment were unsatisfactory, the Minister's words as recorded in Hansard would clearly show Parliament's intention that the procedure be open and fair. I should have hoped that that would sufficiently convince my hon. Friend that the substance of his amendment has been accepted.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank my hon. Friend for that point. I regard the Minister as a honourable man, but when the Bill emerges from the Committee, he will not have the final say on the matter. We know that from experience. We are debating the Bill, but I would be surprised if there were not negotiations on it taking place elsewhere. I would also be surprised if, on Report, a rabbit or two is not pushed into or pulled out of a hat, depending on the direction in which the political wind is blowing.

I cast no aspersions on the Minister's honour. However, I have no confidence that, when it comes to dealing with such important matters, assurances given will ultimately be honoured. I do not mean to imply that the Minister would not honour them, but others may not. That has happened before—Bills have been guillotined on Report without even being debated. In spite of my hon. Friend's best efforts to convince me that the plan would be implemented, I cannot withdraw the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 12.

Rhif adran 9 Adults Abused in Childhood — Clause 31 - Director of Public Prosecutions

Ie: 7 MPs

Na: 12 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I beg to move amendment No. 207, in page 18, line 41, leave out '40(3) or'.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

With this it will be convenient to consider amendment No. 206, in clause 40, page 23, line 32, leave out subsection (3).

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

This amendment is consequential on the amendment No.205 that I have tabled to clause 40(2).

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank the Minister.

The essence of the amendment is the belief that there should be no power for the current Attorney-General to direct the prosecutor, whether in individual cases or on policy matters. The clear recommendation in the review at paragraph 4.162—recommendation 45 in the summary—was that

''there should be no power for the Attorney General to direct the prosecutor, whether in individual cases or on policy matters.''

That is how things should be, and I see no reason why the ending of the power should await the devolution of justice responsibilities. Nor do I see why any such power should remain in the hands of the Advocate-General for Northern Ireland. Accordingly, I oppose clause 40(3). There may be an explanation for not adhering to the recommendation in the review, but we have yet to receive one. I regret that I have had to come at the matter by way of a consequential amendment, but it has enabled me to explain my thinking on the issue.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I am delighted to begin the week in Committee in agreement with the hon. Member for Newry and Armagh. I agree with the amendment, but for very different reasons.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Order. It is not Lady Hermon's fault, but I think there is some confusion in the Committee about what is being debated and I should perhaps explain. I have had some discussion with the Clerk about the contents of the amendment paper, and I think that it might be helpful to discuss in this group amendment No. 205, in clause 40, page 23, line 18, leave out subsection (2), which was also tabled by Mr. Mallon—provided the hon. Gentleman is happy to proceed in that way. The amendments are related and we have already gone off on that tack, to some extent. That would pull together what has been said and enable the Committee to make sense of the matter. I hope that the hon. Lady will forgive me, but I think what I have suggested might help us to go in the same direction.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

Thank you, Mr. Conway. Of course I forgive you.

The hon. Member for Newry and Armagh has identified yet another inconsistency in the Bill. He wants clause 40(3) to be deleted completely. That subsection states:

''The Attorney General for Northern Ireland may remove the Director or Deputy Director from office on the ground of misbehaviour or inability to perform the functions of the office.''

That is the first method for removing the director or deputy director. However, clause 43 sets outs an alternative method by which the Attorney-General for Northern Ireland could remove the director or deputy director if a tribunal had been convened for the purpose. I am prepared to be corrected, but there appears to be no link between clause 40(3) and clause 43.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

If I may help the hon. Lady, I understand that clause 40 applies only as long as justice is not devolved, so that the Attorney-General for Northern Ireland is the Attorney-General for England and Wales. Clause 40(1) sets that out. The crux of the debate is that the Attorney-General has different responsibilities, or powers, before devolution of the administration of justice and after.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I appreciate that intervention; it was helpful and has clarified the point. Will the Minister clarify the inconsistency that arose earlier in relation to High Court appointments? I raised the matter in Committee last Thursday and he undertook to look into it. This is the second inconsistency regarding High Court judges. The First and Deputy First Ministers, acting jointly, can appoint High Court judges, or, under the list of judicial officers, may do so on the recommendation of the Judicial Appointments Commission. Those are inconsistent methods of appointing High Court judges. Will the Minister deal with that concern? With the clarification provided by the hon. Member for Reigate, I wait to hear how the Minister addresses the amendment, but I reserve the right to return the matter.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

To understand the correlation between clauses 40, 41, 42 and 43, which have to be taken together, one has to make the distinction pointed out by the hon. Member for Reigate.

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Order. So that the Minister does not go down the wrong alleyway, we shall come to clauses 40, 41 and 42 separately and in due order. The Committee may want to discuss them on clause stand part, as no amendments have been tabled to them. While the Minister may refer to the amendments as they refer to different clauses, the Committee cannot yet discuss the merits of clauses 40, 41 and 42.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am obliged for your direction, Mr. Conway. I shall endeavour to follow it. Perhaps you will allow me some latitude while I try to set the statutory scene in order to explain some of the apparent inconsistencies that have been highlighted. I am also grateful for your direction that we should consider amendment No. 205, which seeks to amend clause 40, as does amendment No. 206. I shall try not to generate a clause stand part debate. However, it is important for me to respond to some of the contributions that have been made.

We must understand the distinction that the hon. Member for Reigate pointed out to the hon. Member for North Down (Lady Hermon), namely that clause

40 is intended to apply to circumstances pre-devolution and clauses 41 and so on are intended to apply post-devolution. There is no inconsistency in the sense that there are no competing methods of discipline or removal. There are two distinct methods; one intended to apply pre-devolution and the other post-devolution. Both are intended to respond directly to the recommendations of the review. I hope that that clears up the apparent cause for concern.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland) 11:15, 5 Chwefror 2002

In the Minister's remarks about the necessary inconsistencies between the positions pre-devolution and post-devolution, will he address the issue of the relationship of the Director of Public Prosecutions and the Attorney-General? In pre-devolution mode, the Attorney-General can direct the DPP, whereas presumably he will not be in a position to do so post-devolution, yet he will still be accountable to the Legislative Assembly. Will he specifically focus not on the misbehaviour of the director, or on his inability to carry out his functions, but on him pursuing a prosecution policy towards particularly classes of criminal? Am I right that the Attorney-General will not be able to give him directions under the devolved system, but that he can under the present system? Might that not be a problem for the devolved administration of justice?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I thank the hon. Gentleman for that helpful intervention—if it proves to be so. I shall endeavour to deal with the amendments as I had planned. If, in doing so, I give hon. Members the answers that they want, we shall not need to discuss the hypothesis posed by the hon. Member for Reigate. The danger of that, Mr. Conway, is that it will lead me into the very area that I have been cautioned not to enter, which is a general discussion about the clauses.

Amendments Nos. 206 and 205 are related. My hon. Friend the Member for Newry and Armagh paid less attention to amendment No. 206 than to amendment No. 207, and I understand why. The latter amendment seeks to do away with the Attorney-General's power to remove the Director of Public Prosecution or his deputy from office on the grounds of misbehaviour or inability to perform the functions of the office.

It is important to understand that clause 40(3) would apply only before devolution. Its removal would cause a lacuna. Without it, the Attorney-General would have no way, pre-devolution, of removing the DPP if he was misbehaving or was unable to perform the functions of his office. It may not be my hon. Friend's intention to leave the director independent to the extent that he could not be removed from office whatever his actions, his state of mind or his physical condition. It does not take much hypothesis to imagine circumstances in which that could have serious consequences for the administration of justice in Northern Ireland. The provision that my hon. Friend seeks to remove is necessary, but it applies only prior to devolution.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I appreciate the Minister's explanation of the pre-devolution position. Post-devolution, we shall have a tribunal to consider the removal of the director or deputy director. The composition of the tribunal is clearly set out in clause 43(5). Why cannot we have a tribunal pre-devolution? That may meet the concerns of the hon. Member for Newry and Armagh.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The hon. Lady causes me to look to the recommendations of the review. The principle purpose of the Bill is to implement as safely as possible, but subject to translating the recommendations into workable provisions, the review's recommendations on the system of public prosecution. Those recommendations were substantially accepted by the people of Northern Ireland and by the political parties there. Significant changes include removing the power of direction, to which the hon. Member for Reigate referred, and the creation of a tribunal for discipline purposes and for removal from office. The recommendations will come into effect post-devolution. Pre-devolution, we have sought to give statutory expression in the Bill to the status quo. No tribunal currently exists, but it is intended that one will exist post-devolution, which is the reason for the distinction.

My hon. Friend's amendment would remove the relationship of superintendence and direction between the Attorney-General and the DPP, but the clause that provides for that relationship is intended to apply only before devolution. On devolution, the relationships set out in clauses 42 and 43 will come into force, and they will be different and reflect the review's recommendations. I should tell the hon. Lady and my hon. Friend that the review group saw direction ending only in the context of devolution. As with other aspects of the relationship between the Attorney-General and the DPP, we have reproduced the current position, which will apply before devolution.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

The Minister has kindly drawn our attention to the fact that much will depend on devolution. That brought to mind the foreword by the Secretary of State for Northern Ireland to the criminal justice review implementation plan. As one would expect, the wording is very careful. The Secretary of State says that the Government intend to devolve justice and policing functions, but adds:

''A final decision to devolve these functions can only be taken at the time taking account of security and other relevant considerations.''

I do not want to appear unduly pessimistic, but I should record my disappointment. If we are to wait and wait for devolution, there should be tribunals to remove the DPP or the deputy DPP. That would resolve the difficulties that the hon. Member for Newry and Armagh has with the proposed pre-devolution position.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I understand and take the point that the hon. Lady makes, and I see the force of her argument. Whatever qualifications apply in determining the appropriate time to devolve responsibility for policing and justice to the politicians

of Northern Ireland—to the Assembly and the Executive—the faithful interpretation and implementation of the review's recommendations requires that the provisions before us be introduced after devolution. Clause 40, to which the amendments relate, replicates the current relationship between the Attorney-General and the prosecution service, as set out in the Prosecution of Offences (Northern Ireland) Order 1972.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

That is part of the difficulty, because there seems to be an imbalance. Before devolution, the DPP will, somehow or another, undergo a remarkable metamorphosis, which will require superintendence and direction by the Attorney-General. The person will continue as DPP after devolution, but the same provisions will not apply. I seek the Minister's advice. Does that apply to the Prosecution of Offences Act 1985, as it applies to England and Wales? That Act states:

''The Director shall discharge his functions under this or any other enactment under the superintendence of the Attorney-General.''

For England and Wales, the word used is ''superintendence'' while, for Northern Ireland before devolution, the Bill seems to refer to the ''superintendence'' and ''direction'' of the Attorney-General. If I am wrong, may we have clarification? That is my understanding—

Photo of Derek Conway Derek Conway Ceidwadwyr, Old Bexley and Sidcup

Order. The intervention has been very long. If the hon. Gentleman is wrong, the Minister will no doubt tell him.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am delighted to tell my hon. Friend that he is right. We shall discuss in more detail the distinction to which he refers under other amendments and clauses. For the purposes of this clause, I can only repeat that clause 40 endeavours to reproduce the status quo, pre-devolution, in statutory form. I recognise that there are issues in that respect, which the hon. Member for North Down and my hon. Friend have raised. Those issues no doubt exercised the review group, which clearly recommends that the changes be implemented post-devolution.

The hon. Lady rightly says that there is a problem, in that none of us can give a fixed date for devolution. However, all parties in Northern Ireland have approved, in conversation with me, the formula used in the implementation plan as regards the point at which the Government are prepared to devolve responsibility for justice and policing. I do not claim that the hon. Lady has done so, but members of all parties in Northern Ireland have approved that formula. It depends on a degree of stability for devolution, which will enable the people of Northern Ireland to have confidence that politicians there will be able to take on the responsibility for policing and justice. I have no criticism of that formula; indeed, I have been encouraged by the fact that people have given me specific definitions as to when it should apply.

The hon. Lady asked a specific question about judicial appointments, which was a point that arose earlier in our proceedings. From good manners, I seek your indulgence, Mr. Conway, in answering her

question, although it may not be in order in relation to the amendment. After devolution, only one way of appointing High Court judges will be possible. The Judicial Appointments Commission will make a recommendation to the First Minister and Deputy First Minister, who will pass it on to Her Majesty for appointment. The First Minister and Deputy First Minister may, however, recommend only those candidates recommended by the Judicial Appointments Commission. I refer the hon. Lady to the provisions in clause 5(2) for clarification in that regard.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I agree with the Minister's last remark. It might be instructive if those who tabled and supported the group of amendments took time to study the relationship between the Attorney-General and the Director of Public Prosecutions in this country, better to understand such words as ''supervision'' and ''direction.''

A constitutional device is used to make the prosecuting authorities accountable to Parliament. The fact that the Attorney-General is a Member of Parliament from either the Lords or the Commons—currently he is from the Lords, although I would prefer him to be from the Commons—means that the prosecuting authorities are accountable to the elected representatives of the people. The relationship between the Attorney-General and the director in this country is not such that the Attorney-General telephones the director and tells him what to do, nor does the Attorney-General involve himself in the day-to-day running of the Crown Prosecution Service. The relationship is mature and sensible, but it exists to provide a constitutional release valve, so that the hon. Member for Newry and Armagh and I can question the Solicitor-General—for five or 10 minutes once a month, or whatever it is—in the House of Commons. I have all sorts of complaints about how Parliament treats the office of Law Officer. This Government in particular have downgraded its importance or allowed others to misunderstand the constitutional role of the Law Officers, but that is another issue. However, I say to those who support the amendment that a little study of the situation here should relieve some of their fears about the proposed set-up for the Director of Public Prosecutions and the Attorney-General in Northern Ireland. I have no doubt that their roles will be conducted properly and within the parameters that pertain in England and Wales, which I have outlined.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs) 11:30, 5 Chwefror 2002

Part of the difficulty and the reason for this misunderstanding is that, pre-devolution, the words,

''The Director must exercise his functions under the superintendence . . . and is subject to any directions'' apply, but suddenly, post-devolution, those words will not appear. That has given rise to much concern and ill ease.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I can see what it says in clause 40, but will the h Lady direct me to the relevant clause, which reveals the absence of those words post-devolution?

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I am not sure that I share the h Lady's worries. If one supports the process of devolution, one is looking for a constitutional chain between the director, who carries out the day-to-day work of the relevant prosecuting authorities in Northern Ireland, and the Attorney-General for Northern Ireland, who is answerable to the Assembly. The DPP is not answerable to the Assembly, so Members of the Assembly will not be able to cross-examine him about the policies of the prosecuting authorities, although they will be able to question the Attorney-General for Northern Ireland—and I hope that they will be given more than five minutes every month in which to do so.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

It is precisely that connection between the director and the Attorney-General that I should have liked to see sustained post-devolution. The fact is that the words

''the superintendence of the Attorney General for Northern Ireland''

''is subject to any directions given by him'' are not repeated in the legislation that will come into effect post-devolution. I want to maintain that link and am disappointed that those words will not apply post-devolution.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I do not think that I can help the h Lady. Perhaps her arguments are reinforced by clause 42, which states:

''The functions of the Director shall be exercised by him independently of any other person.''

I do not wish to argue with the h Lady. I simply want to reassure those who have such concerns, irrespective of whether the post-devolution dispensation is controlled by particular words in the statute, that the relationship between an Attorney-General and the DPP, either here or in Northern Ireland, will be open to public scrutiny. The person whom the Assembly, in Northern Ireland, or the House of Commons, in the United Kingdom, can cross-question is the Attorney-General of each jurisdiction. I am beginning to repeat myself, which is not necessarily helpful given the somewhat restricted timetable under which the Bill is being managed. I leave the problem for the hon. Lady, and no doubt the Minister will write to her or speak about it, but I think that I have said quite enough.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

My hon. and learned Friend has made clear the strengths of the British constitution and the way in which it has developed, as against the efforts of the review and the Government to introduce a written framework in the Bill to replace it. The specific issue is the accountability of the DPP, and this is an appropriate moment to discuss it. Our discussion will lead in to the clause stand part debate, which will deal with the tenure and term of office of the DPP.

Post-devolution, it will be possible to remove the DPP only by a tribunal that makes a decision about misbehaviour or inability to perform the functions of the office. Those are the grounds for dismissal by the Attorney-General. The Attorney-General is

accountable in this Parliament and the DPP operates under his superintendence. Therefore, if the prosecutorial policy of the DPP gives rise to great public concern, that can be shown directly to the Attorney-General or the Solicitor-General in our Houses of Parliament by elected representatives or Members of the other place. By virtue of being a Member of this Parliament, the Attorney-General is held directly accountable here for that policy. He has some ability to put it right, because the DPP operates under his superintendence.

There are nuances in the use of language as to what superintendence and directions mean, and as to what is exactly appropriate for the Attorney-General to tell the DPP. That is a necessary grey area in which boundaries are not explicit. The Bill attempts to set up a situation in which boundaries are specified, given that this legislation lays down the independence of the DPP in absolute terms post-devolution.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

What the hon. Gentleman says is interesting. He described the distinction between superintendence and directions as a grey area, but we must consider more than the word ''directions''. The DPP is

''subject to any directions given by'' the Attorney-General, which is fairly unambiguous.

Will the hon. Gentleman refer to the anomaly that only the superintendence of the Attorney-General applies in England and Wales, yet pre-devolution in Northern Ireland the superintendence and direction of the Attorney-General applies, and post-devolution neither will apply? That is part of my problem in trying to figure out, if only for the sake of interest, what the DPP could do if he had been in the office for a long period to merit the Attorney-General having a different power from that in England and Wales?

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I am grateful to the hon. Gentleman, as his intervention goes precisely to the relevant issues. The relationship between the Attorney-General and DPP in England relates to superintendence and not to directions, but the Bill refers to superintendence subject to directions. I am not an expert, but I suspect that that is because one can read into the word ''superintendence'' a degree of necessity to respond to the directions. However, it is opaque. We are dealing with the meaning of words and the weight that will be given to them. Presumably, if actions become open to judicial review, judgments will be made about what is or is not reasonable with respect to superintendence. The Government have been specific in using the word ''directions'' in the Bill, which apparently is different from what happens in England at present. The approach is, I think, a reflection of the difficulty of trying to make the Bill clear about exactly what has been established by practice.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I want to clarify some of the greyness and opaqueness around the word ''superintendence'', which was studied in some depth in the Glidewell report. The review of the criminal justice system in Northern Ireland commented at paragraph 4.104:

''As for what is meant by 'superintendence', the issue is examined in some depth by the Glidewell report. In short, the relationship between Attorney General and DPP is in practice primarily consultative in nature, enabling the Attorney to retain a general overview of prosecution policy and be aware of potentially contentious or important cases''.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

None of those words are absolute. The passage states that the relationship is primarily consultative—which, of course, it will be, normally. The Director of Public Prosecutions will not pursue a prosecution policy such as will cause sufficient public concern to lead to representations being made to the Attorney-General in this place. However, although the relationship is primarily consultative, the language used in the provision allows for the Attorney-General to do something about it if such a situation were to arise. That approach is absent from the Bill with respect to the devolved administration of justice.

We are now leaping forward to other clauses, including clause 42(1), to which the Minister drew the Committee's attention, which states:

''The functions of the Director shall be exercised by him independently of any other person.''

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

We are having an interesting discussion, but I am not sure that it is terribly helpful to the development of public policy with respect to the relationship between the new Attorney-General for Northern Ireland and the new Director of Public Prosecutions. We are becoming bound up in a problem of our own making, which is not necessarily conducive to the development of good legislation.

Clause 40 deals with the interim arrangement. The current regime allows the Attorney-General for England and Wales to double up as the Attorney-General for Northern Ireland with, so to speak, a colonial direction of the Director of Public Prosecutions for Northern Ireland. As a Conservative Member of Parliament, I use the word ''colonial'' deliberately—exaggerating to make my point. What I have outlined is reflected in clause 40. I ask hon. Members please not to be upset about my use of the word ''colonial''; I used it deliberately.

With the move into the new dispensation, under which justice will have been devolved to Northern Ireland, the relationship between the Advocate-General for Northern Ireland—currently called the Attorney-General for Northern Ireland—and the Director of Public Prosecutions will be one of greater equality. Those two will consult each other on any matter for which the Advocate-General for Northern Ireland is accountable to Parliament.

In any of the consultations a tripartite relationship of some maturity must be presupposed. I know that you, Mr. Conway, are about to invite me for a consultation without coffee for going on for too long. My banging on for so long about the tripartite relationship between the Attorney-General, the Advocate-General and the DPP suggests that even I am not being helped by the discussion. Perhaps we should move on.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

The discussion was important in that it prepared us for what follows, and I am grateful to my hon. and learned Friend for drawing attention to

clause 40. Although the clause places a requirement on the Attorney-General for England and Wales, who is currently also the Attorney-General for Northern Ireland--he will be the Advocate-General for Northern Ireland post-devolution--to consult with the DPP, there is no superintendent or directive relationship between those two posts. However, there is a consultative arrangement.

Presumably, because the duty appears in the Bill, it might be possible to raise issues in this House about the prosecutorial policy in Northern Ireland post-devolution. It will be interesting to see where that leads us, and I should be grateful to the Minister for some indication. Given clause 42(4), if there were concern, post-devolution, about the prosecution policy in Northern Ireland, would it be appropriate in this House to question the Advocate-General for Northern Ireland on the conduct of that policy? That might provide the constitutional safety valve to which my hon. and learned Friend referred. The degree of independence given to the DPP after devolution is such that problems might arise because of the difficulty of getting him to account for the policy that he follows. That concern leads into my worry about the length of time for which he is appointed, which we shall debate shortly. I look forward to the Minister's response.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 11:45, 5 Chwefror 2002

I accept the invitation to say a few words. As we might return to the matter in the context of other clauses, I shall try not to widen the debate so that it becomes unmanageable, as the hon. and learned Member for Harborough, perhaps, fears.

The hon. Member for Reigate referred to clause 42(4). A similar provision—clause 42(3)—relates to the Attorney-General for Northern Ireland. To understand the difference between superintendence and direction pre-devolution and post-devolution, one must accept that the decision for there to be no superintendence post-devolution clearly implies an element of independence recommended by the review in respect of the Director of Public Prosecutions for Northern Ireland. One cannot ignore the political position of post-devolution Northern Ireland. The review's recommendations were intended to reflect that reality.

The independence of the Director of Public Prosecutions in post-devolution Northern Ireland will be an attribute that has to be jealously guarded and clearly protected in that very political environment. That is what the provisions seek to do, and that is why there is a difference—it is not an accident. In consultation on the review and on the Government's interpretation of the review in terms of the draft Bill and the implementation plan, there was almost universal approval from Northern Ireland of the structure that had been designed to achieve and protect that element of independence.

The question put by the hon. Member for Reigate then arises: how are the Attorney-General for Northern Ireland and the Advocate-General for Northern Ireland to be accountable to Parliament? The provisions relating to their accountability are set

out separately in the Bill. The consultative relationship between them and the Director of Public Prosecutions is designed not to interfere with the DPP's independence. Therefore, the answer to the hon. Gentleman's question is that their accountability to the Assembly and to Parliament respectively cannot be in contradiction to the independence of the DPP, which is clearly set out in clause 42(1).

No doubt, due to their accountability, the Attorney-General and the Advocate-General will be asked questions that relate to policy decisions that might be made by the DPP. However, neither the Attorney-General nor the Advocate-General will have the power to direct the DPP in relation to that policy.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

We have been debating this for some time, but clarity has not yet descended on me. I find it difficult to understand the reasoning. The hon. and learned Member for Harborough probably got as near to it as we are going to get when he described the ''colonial'' aspect of the legislation as it applies to Northern Ireland. I would have been much too reticent to make such a statement.

If the legislation before devolution were the same as that in England and Wales, I would probably save myself and everybody else a lot of trouble. However, there must be a reason why, in the period before devolution, something that does not apply in England and Wales, exercisable by the Attorney-General, is introduced into the Bill. Words do not appear in legislation for no reason. The concept of ''superintendence'' is logical because it is compatible with the situation in England and Wales. However, to add the phrase

''and is subject to any directions given by him''-- that is, the Attorney-General, makes the provision at odds with that which applies through the Attorney-General in England and Wales and completely at odds with that which applies post-devolution. That is part of the difficulty. If there were another bite of the cherry, and the phrase

''subject to any directions given by him'' were not there, there would be consistency in terms of the Prosecution of Offences Act 1985.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

May I clarify one point? Does the hon. Gentleman gain any consolation or reassurance from the short phrase in clause 40(2):

''but a failure to comply with this subsection does not affect the validity of anything done by or on behalf of the Director''?

Does that give him some consolation, if the Minister is not prepared to support the amendment?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The hon. Lady asks a good question, but I would prefer to think for a little while before I answer. The Minister said earlier that something did not lend itself to legislative expression. In that respect, I continue to wonder why ''superintendence'' is added to ''direction'' by the Attorney-General. I have heard nothing that leads me to believe that there is no reason for that wording. I simply fail to see why the Bill is not in accord with the legislation that applies in England and Wales. The Minister will know that I am always

at pains to ensure that Northern Ireland is at one with England and Wales--we do not even aspire to be at one with Scotland.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The provisions in the Bill are a restatement of the provisions in the 1972 order. They are merely a restatement of the status quo—the words are those used in the 1972 order.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The Minister is absolutely right, but the status quo is the very thing that I am complaining about. The amendment relates to a status quo that will not last for ever and that is at odds with the powers of the Attorney-General in England and Wales. I am sure that we shall have an interesting debate about the situation post-devolution in respect of the DPP, his relationship with the Attorney-General and other aspects of the Bill. However, the apparent need for the wording relating to direction by the Attorney-General puzzles and worries me. If one regarded the matter in a colonial sense, as the hon. and learned Member for Harborough said, one could accept the logic of it even if one deeply disliked the lessons of it. That is not the case, however, so we shall have to remain bemused until we debate later clauses.

In the interests of speed and because I am now a little confused about the matter, and with the hope that I shall be able to table an amendment to clause 40 at a later date, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Patsy Calton Patsy Calton Democratiaid Rhyddfrydol, Cheadle

I beg to move amendment No. 156, in page 19, line 16, after 'finances', insert ', management'.

I shall be much briefer than speakers to previous amendments. This is a probing amendment. Will the Government clarify whether the Director of Public Prosecutions will be required to answer questions relating to case conduct? I suspect that that would not be covered in the phrase

''finances and administration of the Service''.

The Assembly should be able to question the Public Prosecution Service about the way in which it conducts cases. I look forward to the Minister's reassurance that there will be a way to probe the conduct of cases.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am grateful to the hon. Lady for explaining the amendment so concisely. I had thought that the word ''management'' was covered by the word ''administration'', but I suspected that the debate might spread to the accountability of the director to the Assembly. One can be in no doubt about the review's recommendation that the independence of the director should not be undermined by making him accountable to politicians for his decisions on any individual cases. As we have already discussed, the review group decided that the proper channel for accountability to the Assembly on prosecution policy was the Attorney-General for Northern Ireland. That accountability for policy will not be allowed to undermine the independence of the Director of Public

Prosecutions. The review considered and discarded other mechanisms on the ground that they might infringe the director's independence. I would argue that to make the director accountable to the Assembly for the management of, and decisions on, individual cases would undermine his independence and lead to improper questions being asked. The Bill seeks to avoid that.

I do not know whether that satisfies the hon. Lady or whether the independence of the Director of Public Prosecutions is that important to her or her party, but it is certainly important to the Government, which is why we shall resist the amendment. As I have already said, the word ''management'' is just a subdivision of the word ''administration'', so I hope that she will withdraw the amendment.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs) 12:00, 5 Chwefror 2002

I regret to find myself disagreeing with the Minister once again. I wish to speak in support of the amendment tabled by the hon. Members for Cheadle (Mrs. Calton) and for Montgomeryshire (Lembit Öpik).

We are keen to ensure that the director is as accountable as possible without compromising the independence of the prosecution service or disclosing details about individual cases. If the Minister cares to reflect on paragraph 4.163 of the review, he will see the following recommendation:

''We recommend that the head of the prosecution service should be accountable to the appropriate Assembly Committee for financial and administrative matters relating to the running of the service.''

I accept that those words are reflected in the Bill. However, I should like the Minister to consider going a little further to include the word ''management'' in the Bill. His fears that the Assembly might encroach on the independence of the service are dealt with in the review, which continues:

''In this event it would be important that Standing Orders made clear the limitations on questioning which might impinge on individual cases.''

It does not seem to be beyond the bounds of possibility that the Assembly might draft Standing Orders that would allow management matters, but not individual cases, to be questioned.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

It now appears that there are two interpretations of the amendment's import. As I understand it, the hon. Member for Cheadle seeks to provide for a mechanism whereby the DPP will be accountable to the Assembly for the management of individual cases, whereas the hon. Member for North Down seeks the opposite. My answer to the latter is that the word ''management'' is subsumed in the word ''administration'', so it is unnecessary to insert it. ''Administration'' covers ''management'' in the sense in which it is meant by the hon. Member for North Down. In the sense in which the hon. Member for Cheadle defines ''management'', the amendment is resisted. I hope that that is clear.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I appreciate the Minister's explanation. It is enormously helpful that we all now know that ''management'' is included in ''administration''.

Photo of Patsy Calton Patsy Calton Democratiaid Rhyddfrydol, Cheadle

In those circumstances, it is right that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I do not intend to go over the ground that we have already explored about the independence of the DPP in the devolved settlement, but some issues arise from it. I shall clear one out of the way. Subsection (9) places a duty on the Secretary of State to pay for the DPP. I assume that that refers only to the pre-devolution state of justice, as covered in our previous discussions. I should be grateful if the Minister would reassure me about that.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I am grateful. The clause will cease to operate after devolution, so the responsibility for paying for the DPP, which was addressed in the review, will then revert to the Legislative Assembly, which will vote on the necessary moneys. It will therefore be the responsibility of the First Minister and Deputy First Minister.

The review offered two choices on the appointment of the DPP: to appoint him either until a statutory retirement age or for a fixed term. The Government have come down in favour of a statutory retirement age of 65, which takes us back to the arguments that we had at a previous sitting about whether 65, 70, 75 or another limit would be appropriate for an individual position. This appointment is different due to the nature of the relationship between the Attorney-General and the DPP, and the period that can be spent in office.

We have explored the subject of independence. The Committee can safely conclude that, under the devolved system, the DPP is plainly more independent than he was under the pre-devolved settlement of justice. Within the period up to a DPP's retirement age, his framework of policy will be, in effect, indefinite. It will not relate to the term of office of the Attorney-General or of the Parliament, as is the case in England. Under the devolution of justice settlement, we have made the DPP more independent.

That has consequences. The DPP can be removed only as a result of misbehaviour or an inability to carry out his functions. Therefore, if the DPP follows a specific prosecutorial policy in deciding which cases to bring, it is difficult at this stage to find a remedy for it unless it stretches into the area that can be defined as misbehaviour. There is therefore a problem with appointing the DPP for an indefinite period. We are trying to find a way to institute checks and balances on a DPP who is wholly independent and responsible for

the conduct of prosecutions, and who makes decisions about whom and what cases to prosecute. It is difficult to find a remedy.

Shortly, we shall discuss victims' right to information. At the moment, no one has any such rights. It is extremely difficult—impossible, as far as I can see—to bring the Director of Public Prosecutions to heel in the informal way that happens in the current set-up, because of the relationship between the Attorney-General and Parliament. That is why I am drawing attention to the issue of the set term to the age of 65.

At least a term is set--although there is a different debate to be had in that the director could still be perfectly capable of carrying out his functions at 65, giving rise to questions of judgment about the appropriateness of choosing that age. I should have preferred the Government to come down on the side of setting a term of five, 10 or however many years for the DPP, instead of an age limit. Why did they go for an age limit rather than a term limit, given that the director's independence is so firmly entrenched in the Bill and the devolved system? We may want to return to the issue on Report.

Photo of Peter Kilfoyle Peter Kilfoyle Llafur, Liverpool, Walton

I do not want to labour the point, but would like to contribute following the argument of the hon. Member for Reigate. Last week, the Committee had a protracted and serious discussion about the mandatory retirement age for the Attorney-General. Indeed, the Opposition wanted the retirement age raised to 75, and that was in the context of fixed-term appointments anyway. Clause 31 introduces a different age limit, of 65, but with the caveat that the Attorney-General could raise it—it does not specify by how much. Perhaps I have missed something obvious, but it seems that although the Bill specifies the age of 65, the Attorney-General has great discretion to extend the appointment beyond that age. I hope that I have missed something.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The Government chose an age limit as opposed to a term of office, albeit an age limit qualified in the way pointed out by my hon. Friend the Member for Liverpool, Walton, precisely to reinforce the independence of the Director of Public Prosecutions, but also because 65 is the current retirement age for the director. There is a status quo and a person in post. We shall arrive at consideration of that person's future shortly in relation to other provisions.

The clause reinforces the independence of the director constitutionally because the appointment extends to a particular age rather than for a fixed term and it reproduces the provisions that already apply under the Prosecution of Offences (Northern Ireland) Order 1972, which I mentioned to my hon. Friend the Member for Newry and Armagh earlier.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

Would the Attorney-General be entitled to specify a retirement age at any point during the tenure of office, or would he have to do so before the director took office?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

On my reading, the provision is clear. There is no limit on the time at which the Attorney-General may specify the retirement age. As my hon. Friend the Member for Liverpool, Walton pointed out, the Attorney-General has a wide discretion. However, it would not help to tie down when and where it could be applied, because the discretion would be lost if it was not exercised as specified.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight 12:15, 5 Chwefror 2002

Does not the Attorney-General's ability to make a specification for an individual rather than for the office leave him open to allegations of perpetuating an individual's term of office or of having some other motive? That would not be possible if the specification were made for the office rather than the individual.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

With respect, I have no doubt that any aspect of any provision in any statute that allowed discretion would result in accusations being made about how the discretion was exercised. The responsibility on us as parliamentarians, and on me as a Minister, is to create a structure in which people are properly accountable for the exercise of the powers that they are given. The Bill should allow a proper line of accountability between the Attorney-General and the Assembly.

I firmly believe that, in the very remote likelihood that an Attorney-General would have a motive that could lead him to behave in the way suggested by the hon. Gentleman, the processes of parliamentary accountability would ensure that such a person would desist. In any event, I cannot imagine circumstances in which the Attorney-General would behave in that fashion.

Let me reinforce one aspect of the clause. I repeat that subsection (11) ensures that the director is directly accountable to the Northern Ireland Assembly for financial and administrative matters only. I also repeat that the Attorney-General will be accountable also for policy to the Northern Ireland Assembly.

Photo of Peter Kilfoyle Peter Kilfoyle Llafur, Liverpool, Walton

I am still not clear. Subsection (5) states:

''or such later time as the Attorney General for Northern Ireland may specify.''

Could that be one year or two? Could it be five years?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The honest answer is yes. The statutory provision ''or such later time'' is not limited. By implication, I have already tried to answer my hon. Friend's question. He will recollect, during our debate on the retirement age of the Attorney-General, that I undertook to reflect and consult. I shall indeed do so, but this provision is different. The clause is a restatement of existing provisions, which are set out in the 1972 order. I accept the inconsistency between them, but my response was to reflect on the issues raised in the previous debate.

Question put and agreed to.

Clause 31 ordered to stand part of the Bill.