Clause 87 - Transitionals and savings

Justice (Northern Ireland) Bill – in a Public Bill Committee am 10:45 am ar 14 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 10:45, 14 Chwefror 2002

I beg to move amendment No. 209, in page 67, line 39, leave out subsection (2).

This amendment and the subsequent one refer to the new office and the new role of the DPP. It has been touched on in debate at various times and in various ways. I regard the clause as crucial and the amendment as an important one.

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

Order. Before the hon. Gentleman develops his theme, let me say that I am happy to group with amendment No. 290 amendment No. 291, in clause 87, page 68, line 13, leave out subsection (4). Both amendments stand in his name, and he will be able to broaden his comments.

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

Thank you, Mr. Conway. The purpose of the amendments is shared.

The review group, whose recommendations we have considered, expressly recommended the establishment of a new, independent prosecution service, with new arrangements for prosecutions and new measures to ensure its accountability. In paragraph 4.174, it foresaw that the implementation of its recommendations would entail

''building upon the responsibilities and work of the existing Department of the Director of Public Prosecutions.''

However, it underlined that it would also involve

''taking on new work, a different approach to aspects of its existing work and substantial organisational change.''

The review group went on to make recommendations about how the new Public Prosecution Service would be staffed and organised to ensure that it would be able to discharge its duties. Those duties include the appointment of the DPP and his deputy through open competition before a selection panel, in accordance with procedures established by the Civil Service Commissioners for Northern Ireland in recommendation 59 of the criminal justice review. Subsection (2) defers the implementation of that important recommendation until some unspecified time in the future. It is worth considering it in detail, because it is not only contrary to the spirit of the review's recommendation but it is ill-defined, so implementation will probably not take place for some time.

The existing DPP might become the new DPP under the new dispensation. Let us assume that he or she is appointed at 35 years of age. That would give him or her ample time to have obtained 10 years' experience. It could therefore be 30 years before that crucial part of the recommendations would be implemented, notwithstanding the possibility that the Attorney-General might extend the period of tenure for the DPP past the age of 65, in which case it could take longer. That point might be a little over-stated, but it is true. We should not agree to defer the implementation of that crucial recommendation.

We do not know who the DPP or the deputy DPP will be when clause 31 comes into force. Whoever it is, the review's recommendation will not be implemented until one or other of those people reaches the statutory retirement age of 65, which may be extended by the Attorney-General. I find that most unsatisfactory because the new beginning and approach of the DPP will be the flagship for the Bill. It will be the flagship for the entire project of establishing a criminal justice system that will command the respect and allegiance of all. If that flagship does not leave port until some point way down the line, the entire project will be damaged.

If my hypothesis is right, I will not live to see the new dispensation in operation, and neither will many hon. Members present. Nevertheless, it is the crucial element of change in the Bill. The clause does not stand up, and should be amended. I made that point in a previous debate and I make it again today. We have already debated the review group's recommendation that the appointment of the DPP should be through open competition before a selection panel in

accordance with procedures established by the Civil Service Commissioners in Northern Ireland. When does that apply? Does it apply to the DPP who is in place and would become the new DPP? It will not happen for some time.

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

I think that my hon. Friend will find the unequivocal answer in subsection (2), and that he wants to omit that subsection because the existing DPP and deputy DPP would otherwise remain in office.

I invite my hon. Friend to address his comments to a more general point. He may agree that the transition cannot be made immediately, but it must not take so long that hon. Members will not be here to see it. Can he suggest how an achievable time frame could be fixed in statute?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 11:00, 14 Chwefror 2002

I thank the Minister for recognising that there is a problem. I am speaking off the cuff, but one way would be for the DPP and deputy DPP to resign formally at implementation, as has happened elsewhere, so that the process recommended in the review can be applied-that is, open competition under the Civil Service Commission procedure. The DPP and deputy DPP may be reappointed but at least the recommendation would have been applied, or better qualified and more suitable people may be appointed, in which case it would be doubly necessary for the recommended procedure to apply.

The Minister would be right to ask about natural justice. Natural justice for the DPP and deputy DPP must be considered, but we are discussing the flagship that will build up support, and if that takes upwards of 30 years, 20 years or even 15 years it will be deficient.

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

I am concerned that there is an inconsistency, which must be highlighted. We are all interested in the transition taking place as quickly as possible, but, other than the current DPP and deputy DPP, who has the expertise necessary to ensure that the transition in Northern Ireland takes place as efficiently and quickly as possible? Who else has the experience of the system in Northern Ireland that will be essential to ensure that the transition takes place speedily and efficiently?

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

The Minister makes a valid point, but what is most important? I do not want the DPP or his deputy to be turfed out of their jobs, but there are various ways of making the transition. A Chief Constable aided the transition in the Police Service by announcing that he would retire. That is not an exact analogy, but does the Minister agree that a long wait for the most important part of the legislation to be operable and seen to be operable will have a substantial effect on reaction to the entire Bill?

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

I thank my hon. Friend for his patience yet again. The analogy that he draws with the Chief Constable is strong and good. There is no question but that the successful transition to the Police Service of Northern Ireland has been greatly aided by the significant expertise and ability that the Chief

Constable has brought to the job. He knew where the force would be, and he knew where he wanted it to go. We are all grateful to him for the way in which he assisted. We need to keep such abilities in the system to ensure the transition. The other important aspect of the analogy is that it is a decision for him when and if he retires.

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

I do not dispute the essence of the point that the Minister makes. Perhaps we could have avoided the impasse had some previous amendments been taken a little more seriously, but that did not transpire.

The far-reaching proposals for the new prosecution service were expected to be implemented rapidly. Many see the early and complete introduction of the new arrangements as a fundamental and crucial test of the determination of the Government to create a criminal justice system that can command the support of all. Page 33 of the implementation plan states that the new

''arrangements will apply to appointments taking place after devolution''.

However, nothing in the criminal justice review suggests that they should be deferred until then. On the contrary, the review group specifically referred to the need for a new approach for substantial organisational change. Subsection (2) is an example of selective implementation of the recommendations, and should be removed.

Following your ruling, Mr. Conway, I would like to make observations on amendment No. 291, which would leave out subsection (4), the provisions of which cast grave doubt on the commitment to break with the past and introduce real change to the prosecution service. Subsection (4) will allow the service to defer indefinitely the full implementation of one of the key recommendations of the report. It will allow the DPP-in all probability, barring natural wastage, it will be the DPP who was in place before the change-to comply only partially with the duty to take over the conduct of criminal prosecutions from the police. It is a fundamental weakness that he has to consider whether it is ''reasonably practicable'' for him to do so.

One of the Minister's arguments for the transfer of the existing DPP into the post is that it would provide continuity. One assumes that in the intervening period the administrative procedure and work would have taken place, and that the loose term ''reasonably practicable'' should not apply. Under the Bill, the DPP can fulfil as much or as little of the duty as he wants. It will be entirely for him to decide when he is prepared to comply with his statutory duties, which is bound to be unsatisfactory in every sense.

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

The provision is qualified by reasonable practicability. It is not a carte blanche for the director not to do what he is required to do under the other provisions; it gives him the necessary flexibility, under a programme that is rolling out, to take on responsibility for the work from the police service as and when it is practicable and reasonable to do so.

What my hon. Friend says is right; in fact, progress has already been made on preparations for the roll-out, and we expect that they will be well advanced by the end of next year. I can give the Committee and others who need it reassurance that there will be considerably more detail in the new implementation plan that we will publish after the Bill receives Royal Assent.

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

Yes, but that is not compatible with the recommendation of the review group. Recommendation 17, which is about the prosecution service, is unambiguous:

''in all criminal cases . . . responsibility for determining whether to prosecute and for undertaking prosecutions should be vested in a single independent prosecuting authority.''

However, the provision allows the DPP the latitude to determine whether it is reasonably practical and allows him to take on as much or as little as he decides. That is indicated by the wording of subsection (4), which is worth a read in the interests of the English language, if nothing else:

''If on the coming into force of subsection (1) of section 32 it is not reasonably practicable for the Director to comply with the duty imposed by that subsection to its full extent, until it is reasonably practicable for him to do so that subsection is to be taken to impose on him a duty to take over the conduct of such descriptions of the proceedings specified in that subsection as it is reasonably practicable for him to conduct.''

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

It is as clear as can be. The subsection says, in a convoluted way, that the new DPP will implement the crucial element of the measure when he decides that it is reasonably practicable to do so.

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

My hon. Friend's ability to paraphrase the subsection clearly, if not in legislative language, demonstrates just how well written it is. I understand his arguments, but the review recommendations must be turned into practical reality. Who should make the decision?

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

I had always thought that we would decide some of the important aspects as part of the legislative process rather than leaving a crucial element such as this to the DPP. The Minister knows that the measure is also contrary to the report's recommendation on when the new arrangements should be introduced.

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

I am following the discussion with interest. At present, the DPP is responsible for about a quarter of the prosecutions, which are for serious offences. That is the practical reality. At the moment, some three quarters of prosecutions are the responsibility of the police, nearly all for minor offences. We shall go through a period of transition when the DPP takes responsibility for all of those. The clause simply puts a practicality test on the least important prosecutions currently conducted by the police with regard to when the bulk of that work can be taken over by the DPP. It enables the transfer of functions and the devolution of justice to happen earlier than would be the case if the practical transfer were not yet possible because the DPP did not have the resources to make those decisions and take on all those cases.

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

I take the point, but is it not much more important that we recognise recommendation 30 of the review group on timing? It states:

''the timing of commencement of legislation that will flow from our recommendations''-

that means what we have been doing for the past three weeks-

''should be planned so as to ensure that all necessary resources, preparation and training are in place and completed before procedural changes are introduced.''

Are we satisfied that that recommendation is being met and shall be met? Are those of us charged with producing the legislative changes satisfied that our time frame and the time frame to be given to the incumbent DPP will not be restricted by the open-ended way in which the new DPP-who will be the old DPP-can decide about when it is reasonably practical to take on all prosecutions, including those now dealt with by the police? The Minister might have some views on that, and I shall be interested to hear them.

The implementation plan openly envisages that

''the new service will extend its role on an incremental basis''.

When I see phrases such as ''incremental basis'' in implementation plans, I wonder about the speed at which matters will operate. I have seen implementation plans promise incremental change before, and speed was not then of the essence.

I believe that the provision is a flaw in the Bill and that it is not what the review group recommended. I ask that we change it so that we have full and speedy implementation of the new arrangements for conducting prosecutions. We expect the necessary resources to be made available for that to happen. That is the minimum requirement if people are to believe that there is real change in the system. We do not want delay, nor do we want piecemeal implementation. Subsection (2) is, in many ways, an open invitation to those who want to resist change, which some people want, including some in the justice system. To leave things as they are, under the pretence that a new dispensation is taking place, will be fatal to the entire project's prospects of success.

I believe that we who are charged with drawing up the legislation should make decisions that do not allow lax, open-ended, arbitrary, incremental decisions to be made by someone given the absolute authority to implement a crucial, core element of the Bill.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland) 11:15, 14 Chwefror 2002

A detailed case has made for the big bang theory, for having a day-zero start date for prosecutions by installing a new Director of Public Prosecutions and transferring the responsibilities lock, stock and barrel on one particular day. That is what the Crown Prosecution Service experienced in England and Wales, and it is not an experience that I invite the hon. Member for Newry and Armagh to take to Northern Ireland.

The test will be between delay and piecemeal implementation, and the hon. Gentleman will not be able to meet both the objectives that he set himself by saying that we do not want either. A sensible, practical approach will have to be taken to handing over full

responsibility for all cases to the new DPP. The Government are right to be fully aware of the findings of the Glidewell report. If we do not learn from our experiences, there is not much point in having them. We should not repeat the mistakes that have been made in other jurisdictions.

I anticipate that the Minister will resist the amendment. I understand the philosophical point that the hon. Gentleman is attempting to make about the need for a new start. I do not wholly share the sentiments behind the amendment, but I understand part of the argument. No one has suggested any inadequacy in the present DPP in Northern Ireland. No one has ever made that suggestion to me. I am pretty certain that the hon. Gentleman is not making that suggestion-

Mr. Mallon indicated dissent.

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

The hon. Gentleman shakes his head. We are dancing on the head of a pin. The Bill will deliver the objectives that we all seek without the amendment. I hope that he will withdraw it.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

The hon. Member for Newry and Armagh is aware of this, but from where I sit the window is behind him when he stands to speak. I therefore see a silhouette bathed in an almost spiritual light. I hesitate to tussle with a saint. I have faith in the hon. Gentleman, but I am more agnostic about the text. Was religion ever otherwise?

The hon. Member for Reigate expressed concern about the big bang theory. Knowing something about astronomy, I know that the alternative is the steady state theory, where nothing ever changes. I understand why the hon. Gentleman is concerned that, as things stand, the new start of which the hon. Member for Newry and Armagh has often spoken could be delayed. Nevertheless, I am persuaded by the Minister's intervention that there needs to be some opportunity to sustain continuity in the DPP's office. Indeed, subsection (4) allows some flexibility with

regard to when the new provisions should come into effect.

As the hon. Member for Reigate said, the philosophical standpoint expressed by the hon. Member for Newry and Armagh is consistent with his previous statements and is robust. None the less, on the basis of other experience, I feel that the new start will not be unduly compromised by the built-in flexibility. 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)

I note what the hon. Member for Montgomeryshire says. I know that he has an interest in and knowledge of astronomy, but I found it mildly amusing to have a Liberal Democrat talk about a steady state. I am sure that his understanding of it has been of no political assistance to him.

Amendment No. 209 would remove the provision that would continue the appointment of the current Director and Deputy Director of Public Prosecutions in the new Public Prosecution Service for Northern Ireland. Like the hon. Member for Reigate, I understand the opinion of my hon. Friend the Member for Newry and Armagh that the new prosecution service should represent a completely fresh start with new personnel. I understand why he makes those arguments, although I do not agree with all his reasons. What my hon. Friend suggests is not practicable or desirable.

The department of the Director of Public Prosecutions for Northern Ireland is a new department and, as the hon. Member for Reigate noted, it will be going through a massive expansion. It will also be taking on a large range of new functions. As I said in an intervention on the hon. Member for Reigate, the knowledge and experience of the current director and deputy director will be crucial in ensuring that the change is successful.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.