Justice (Northern Ireland) Bill

Public Bill Committee, 5 February 2002.

Standing Committee F

Clause 31 - Director of Public Prosecutions

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

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.

Edward Garnier (Conservative, 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.

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.

Crispin Blunt (Conservative, Reigate)

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.

Peter Kilfoyle (Labour, 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.

Edward Garnier (Conservative, 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.

Edward Garnier (Conservative, Harborough)

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

Mr. Blunt rose—

Edward Garnier (Conservative, Harborough)

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.

Crispin Blunt (Conservative, Reigate)

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.

Edward Garnier (Conservative, 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.

Peter Kilfoyle (Labour, 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.

Edward Garnier (Conservative, 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.

Peter Kilfoyle (Labour, 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.

Edward Garnier (Conservative, 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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

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?

Des Browne (Labour, Kilmarnock and Loudoun)

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.

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.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

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.

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.

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'.

Derek Conway (Conservative, 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).

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).

Des Browne (Labour, Kilmarnock and Loudoun)

I think that it relates to clause 40(3).

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.

Sylvia Hermon (UUP, North Down)

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.

Derek Conway (Conservative, 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.

Sylvia Hermon (UUP, North Down)

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.

Crispin Blunt (Conservative, Reigate)

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.

Sylvia Hermon (UUP, North Down)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Derek Conway (Conservative, 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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Crispin Blunt (Conservative, Reigate)

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?

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Sylvia Hermon (UUP, North Down)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Sylvia Hermon (UUP, North Down)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

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—

Derek Conway (Conservative, Old Bexley and Sidcup)

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

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Edward Garnier (Conservative, 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.

Sylvia Hermon (UUP, North Down)

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.

Edward Garnier (Conservative, 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?

Sylvia Hermon (UUP, North Down)

The hon. and learned Member for Harborough should turn to clause 43.

Edward Garnier (Conservative, 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.

Sylvia Hermon (UUP, North Down)

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.

Edward Garnier (Conservative, 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.

Crispin Blunt (Conservative, Reigate)

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.

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?

Crispin Blunt (Conservative, Reigate)

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.

Sylvia Hermon (UUP, North Down)

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''.

Crispin Blunt (Conservative, Reigate)

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.''

Edward Garnier (Conservative, 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.

Crispin Blunt (Conservative, Reigate)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

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.

Sylvia Hermon (UUP, North Down)

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?

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

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.

Patsy Calton (Liberal Democrat, 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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Sylvia Hermon (UUP, North Down)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Sylvia Hermon (UUP, North Down)

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

Patsy Calton (Liberal Democrat, 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.

Crispin Blunt (Conservative, Reigate)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

I am happy to give the hon. Gentleman the reassurance that he seeks.

Crispin Blunt (Conservative, Reigate)

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.

Peter Kilfoyle (Labour, 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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Andrew Turner (Conservative, 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?

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Andrew Turner (Conservative, Isle of Wight)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Peter Kilfoyle (Labour, 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?

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Clause 32 - Conduct of prosecutions

Crispin Blunt (Conservative, Reigate)

This is an important and practical clause, under which the Director of Public Prosecutions takes over from the police the responsibility for all prosecutions. When do the Government intend to implement the clause? They have the ability to implement various parts of the legislation at different times—unless the House is minded otherwise—and I presume that they intend to move to that position shortly, irrespective of the formal devolution of justice in its totality. I should be grateful if the Minister would tell us his thoughts on that, because it takes place against a certain background. The review states that, in 1997, the DPP carried out 7,262 prosecutions but that the Royal Ulster Constabulary carried out 27,209.

Varying opinions are expressed in the review on the merits of handing so many functions to the DPP from the RUC. Some people say that the RUC prosecutions work well. In my consultations in preparation for the Bill, I encountered the view, not least from the Police Federation, that if it ain't broke, don't fix it. Some people referred to the skill of the police prosecutors, who have dealt with the minor cases that come before the courts. No one seemed to have any major concerns about the conduct of those cases. Furthermore, the fact that the police prosecuting inspector had responsibility for them meant that there were good lines of communication with the police who had prepared the cases and taken decisions about whether to prosecute.

In those respects, the way in which the system has been run until now appears to commend itself. However, the majority view was that it was appropriate for the DPP to take over the conduct of all prosecutions and that the boundary between the police and the DPP must be made clear. The Opposition do not dissent from those general conclusions of the review. Indeed, a resident magistrate told me that, given the current situation faced by the RUC, it was urgent that this clause came into effect sooner rather than later. He said that such was the collapse in the morale of the RUC that it had begun to affect even the pragmatic administration of police prosecuting inspectors. Their hearts are no longer in the job and they cannot continue to perform to their previous professional standards, so there is a pragmatic reason for getting on with the change urgently. That is a worrying reflection of the state of the Police Service for Northern Ireland, but I would do the Committee a disservice if I did not relay what had been said to me about the performance of the police in that particular function.

The transfer of functions comes against the background of the English experience of setting up the Crown Prosecution Service. As the review makes clear, that is seared into the position of the DPP. Paragraph 4.183 of the review states:

''We are aware that the DPP has already considered the applicability of Glidewell to his Department.''

I am sure that there is proper concern in parts of Northern Ireland that this substantial exercise in the transfer of functions—27,000 cases, to take 1997 figures—whereby the DPP will ultimately take on five times as many cases as it currently deals with, will have substantial resource implications. I am intrigued by the Government's reaction. In the criminal justice review, the Government have been assiduous about responding to every recommendation, apart from recommendation 66, which states:

''We recommend that those who are considering the resource implications and the organisational issues arising from our proposals in respect of the prosecution function should examine the Glidewell Report, with a view to seeing whether there are lessons to be learnt from the experience of England and Wales.''

The implementation plan moves neatly from recommendation 65 to recommendation 67. I have yet to find another example of the plan going assiduously through a section of the review without responding to recommendations. Of course, there are now important resource implications relating to the funding of the DPP, which, under pre-devolved relations, are matters for the Minister and his colleagues.

Des Browne (Labour, Kilmarnock and Loudoun)

I do not want to make too big a point of this matter, but I have already suggested that careful reading is helpful. If the hon. Gentleman looks at page 23, he will see that recommendation 66 is assiduously responded to.

Crispin Blunt (Conservative, Reigate)

I am extremely grateful for the Minister's help. It was my fault for expecting recommendation 66 to appear after recommendation 65. There might have been a cross-reference in the document to assist those of us who did not compile it, and do not understand the odd order in which the Government have chosen to put the recommendations to mislead those of us who think numerically.

I am grateful to the Minister for directing me to the response, and I see that the recommendation was accepted. It is no surprise that the Government are

''fully aware of the findings of the Glidewell Report.''

The response goes on to say:

''Resources will be provided to enable the DPP(NI) to manage the transition to the new prosecution service.''

Will the Minister explain his assessment of the resource implications? The review has a stab at it, stating:

''In short their broad estimate of the additional annual costs of the proposed arrangements was in the region of £1.5 million to £2 million, with additional start-up costs of about £2 million. This does not take account of any redundancies that might be associated with the process.''

Finally, putting the proposals into context, it states that:

''The DPP's budget for 1998/99 was just over £7.5 million.''

I wonder whether the costs might have been underestimated, and I should be grateful if the Minister would tell us about any further work that the Northern Ireland Office has done on the matter, given that five times as many cases are to be handled. I accept that the cases that the police have been dealing with are at the bottom end of the range, but they have involved issues as serious as burglary, which have profound implications for the accused and the victims. You will

know from your postbag, Mr. Conway, and from the people who come to see you—as they come to see all hon. Members—that whether people are being properly prosecuted for offences of which our constituents have been victims is a question of continuing concern.

A failure of the transfer of functions to the new CPS was that some prosecutions were dropped simply because there were not the necessary resources to make the transfer work. Given our experience in England, will the Minister give us not only the grand assurance that the provisions will work but the Government's assessment of the scale of resources needed, and their thoughts on how the clause will come into force and responsibility will be transferred in its entirety from the police? The Committee is entitled to have answers to those questions before it decides whether the clause should stand part of the Bill.

Edward Garnier (Conservative, Harborough)

May I underline one or two of the points made by my hon. Friend? It is important that, if the new Public Prosecution Service is to work under the leadership of the Director of Public Prosecutions in Northern Ireland, it must be given adequate resources and be staffed by lawyers and other personnel of sufficiently high quality. To avoid some problems that the CPS and British police forces have had in this jurisdiction, it must be emphasised that proper and continuous communication is necessary between the police and the Public Prosecution Service. Too many cases have failed because of either an unwillingness or an inability of the police and the CPS to communicate adequately. There is anecdotal evidence that, in certain police forces, there is huge professional jealousy and a sense of annoyance that their ability to prosecute has been taken away. I hope that that will not be replicated in Northern Ireland; I am sure that it will not be.

However, it is essential that the Government should give a lead, both through the Secretary of State for Northern Ireland and through the office of the First Minister and the Deputy First Minister in Northern Ireland.

I am concerned, as is my hon. Friend the Member for Reigate, about the financial estimates for the establishment of the Public Prosecution Service. Such costs tend to grow like Topsy. While all Governments need to keep a firm control on public expenditure, if this is to be got right, it might as well be got right from the start—penny pinching will lead to more difficulties in the future and will prevent the DPP from appointing good lawyers and administrators to his staff. The old cliche about paying peanuts is close to our minds. I hope that the same mistakes are not made in Northern Ireland as were made at the outset of the Crown Prosecution Service in England and Wales. It is hugely important that the code under clause 38 addresses many of the issues and concerns that have been exposed by the development of the CPS since the early or mid-1980s in England and Wales. There are lessons for all of us to learn. Northern Ireland has the advantage of coming at it 20 years after England and

Wales. I urge the Government to use all their powers—their financial power in particular—to make sure that the system works.

The final issue on which I should be interested to hear the Minister's views is whether it is intended that the Public Prosecution Service in Northern Ireland should be under one administrative area, covering the whole of Northern Ireland as one prosecuting area, or whether it will be divided into counties or other districts as it is in England and Wales. The hon. Member for North Down mentioned the Glidewell report. It will be interesting to see how that is to be brought into existence in Northern Ireland.

Gregory Campbell (DUP, East Londonderry)

May I ask the Minister for an assurance that the references in subsections (6)(a) to (d) are exhaustive and prescriptive, and that any subsequent body of constables that may emerge will not be included?

Des Browne (Labour, Kilmarnock and Loudoun)

Let me respond to the last point first. The clause defines ''police force'' extensively and exclusively. Anything that is not referred to in that clause could not be a police force under the Bill. I have no knowledge of what the hon. Gentleman thinks is coming that might constitute a police force in Northern Ireland. If that is the reassurance that he requires, I am happy to give it.

Sylvia Hermon (UUP, North Down)

I appreciate the Minister giving way so early in his response. May I ask him again to address the definition of ''police force'' within the meaning of subsection (6). He will recall that, under the Police (Northern Ireland) Act 2000, the name of the body of constables referred to as the Police Service of Northern Ireland, incorporating the Royal Ulster Constabulary, was changed for operational reasons only. Therefore, for legal purposes, including the Bill, definitions should include the words ''incorporating the Royal Ulster Constabulary''.

Des Browne (Labour, Kilmarnock and Loudoun)

I hear what the hon. Lady says, and she makes an ingenious argument. However, the reference to the Police Service of Northern Ireland in the definition of a police force is entirely appropriate and correct. If the hon. Member for East Londonderry (Mr. Campbell) was asking whether further legislation would be required to establish a new body of constables within the terms of that definition, the answer is that legislation clearly would be required.

We may return to some of those issues, but I should move on. I am grateful for the contributions from the hon. Member for Reigate and the hon. and learned Member for Harborough, because the clause goes to heart of the work of new Public Prosecution Service, and it would have been inappropriate to pass over it without debate, even though no one has sought to amend it.

The clause will require the service to conduct all prosecutions that are instituted on behalf of any police force for summary and indictable offences in Northern Ireland. As the hon. Member for Reigate noted, the police presently carry out the majority of prosecutions

in Northern Ireland, and the most up-to-date figure for police prosecutions is 30,000. The hon. Gentleman referred to the proportion of cases handled by the different bodies, but the burden that the new Director of Public Prosecutions will have to carry is about right. Police prosecutions involve exclusively summary cases, which are tried in the magistrates court, while the department of the Director of Public Prosecutions prosecutes only indictable cases and a limited number of summary cases.

To accommodate the definitions in clause 44 of when proceedings are considered to have begun, the clause will require the Public Prosecution Service to take over proceedings that are instituted by the police. It is important to note that, in all cases, the PPS will determine whether to institute proceedings and what charge to put to the court. The clause also requires the DPP to give police forces advice, which will, of course, be limited to prosecutorial matters.

The hon. Member for Reigate raised some important points, and his contribution neatly encapsulated the reason why we cannot give him the firm date that he seeks. A significant amount must be done to facilitate the transition from the present position to that set out in the Bill. The expansion of the Public Prosecution Service and the transfer to it of police prosecutions can start before devolution and will be well advanced by 2003.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Do the Government envisage a halfway house as regards the implementation of the provisions? To take a hypothetical situation, could the Northern Ireland Assembly refuse to accept its responsibility under the Bill? Are the Government in danger of starting a process that it is not within their power to finish?

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to my hon. Friend for giving me the opportunity to clarify the position. The Government intend that the transition to an independent prosecution service will take place with or without devolution. It is our aspiration, hope and intention that the stability of the institutions of devolution in Northern Ireland will be such, post the 2003 general elections in Northern Ireland, that they will be able and will want to accept responsibility for the devolution of justice. In those circumstances, the Government will be a willing partner in the transfer of functions to the devolved institutions.

Whether the devolved institutions want the transfer or whether there is stability, the process of change to an independent prosecution system will proceed. The Government intend to achieve the objectives of the review in that regard. For the reasons that the hon. Member for Reigate so ably set out—they were encapsulated in his short speech, but were set out in full in the Glidewell report—the Government are conscious of the dangers of a big-bang approach. A significant number of the problems experienced in England and Wales were due to the fact that the transfer took place when the system was not ready for it.

We have come to the conclusion, advised by Glidewell, that a big-bang approach would be a mistake, as would an over-hasty roll-out of the provisions. We intend to learn the lessons that have been pointed out to the Committee by various hon. Members, and implement the provisions at an appropriate pace to ensure not only that they work in practice, but that the system of prosecution retains the confidence of the people of Northern Ireland, especially those with whom we charge the responsibility of investigating crime.

I am grateful to the hon. Gentleman for referring to the way in which the police presently deal with matters. The review does not criticise police handling of cases, and nor do the Government. The issue is not the present handling, but whether the present structure of prosecutions in Northern Ireland is appropriate to a modern criminal justice system. To bring Northern Ireland into line with England and Wales, and for that matter Scotland, through an independent prosecution service is now universally agreed to be appropriate to a modern criminal justice system.

Sylvia Hermon (UUP, North Down)

The Minister swept aside my point about the police force as an ingenious argument—I hope that I quote him correctly. When the Minister is on better form, perhaps over lunch, I invite him to check that the title of the Police Service of Northern Ireland was changed for operational purposes only. If he cares to look up the recent legal challenge by Mr. Mark Parsons, he will find that the legal title is

''the Police Service of Northern Ireland (incorporating the Royal Ulster Constabulary)''.

Des Browne (Labour, Kilmarnock and Loudoun)

If that was an invitation to lunch, I am grateful to the hon. Lady and would be delighted to accept. Unfortunately, I have a lunch appointment today, but I am sure that we will find a mutually acceptable gap in our respective diaries some time in the near future. I am also grateful to her for pointing the issues out to me, but I think that I made my position clear.

I want to move on to finance, which is important. The hon. Member for Reigate asked some reasonable questions on the subject. In partnership with the DPP, we have examined the likely cost implications of the reforms. The Government believe that the DPP will need more money than the review envisaged, and that the likely cost of the transition was underestimated. I can, however, reassure the Committee that the Government understand the resource implications and accept their responsibility to meet the requirements for resources. That is clearly set out in the implementation plan.

In the 2000 spending review, the sum of £13.5 million over three years was allocated for the DPP. Discussions are about to commence on further funding, but the Government are very conscious of the cost implications. They accept that the review may have underestimated the necessary resources, and are prepared to accept responsibility for making the necessary resources available.

I hope that, in those few words, I have answered all the points that were raised. I have a sneaking suspicion that I have not answered the point raised by the hon. and learned Member for Harborough. If so, I will write to him on the matter.

Question put and agreed to.

Clause 32 ordered to stand part of the Bill.

Clause 33 - Discontinuance of proceedings before court appearance

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 176, in page 20, line 7, at end insert—

'(c) the victim or victims of the offence, or in event of their being deceased or mentally incapacitated, their next of kin'.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to consider amendment No. 177, in page 20, line 8, at end insert—

'(2A) Where proceedings against a person in relation to an offence are discontinued under subsection (1), the Director must give reasons for the discontinuance of proceedings to those persons listed under subsection (2), unless in the Director's judgement to do so would be against the interest of justice or the public interest.'.

New clause 2—Provision of reasons not to institute or continue proceedings

'(1) Where the Director decides not to institute proceedings against a person or discontinues such proceedings he shall provide the Attorney General with reasons for his decision.

(2) The Attorney General shall, if requested by a person properly connected to the matter, provide a copy of those reasons to that person unless to do so would be against the interests of justice or the public interest.'.

Crispin Blunt (Conservative, Reigate)

This is an immensely important amendment, because it goes to the heart of victims' rights and the information that they receive during the prosecution process. Amendment No. 176 is designed to place a duty on the Director of Public Prosecutions, when he decides to discontinue a prosecution, to inform not only the person being prosecuted and the court, but the victim. Amendment No. 177 qualifies that by stipulating that the director must judge whether supplying the victim with the reasons for the discontinuance of the prosecution is against the interests of justice or the public interest.

Every Member of Parliament, once they have been here for more than a month, starts to receive representations from constituents concerning prosecutions of which the conduct, as far as the victim is concerned, is seriously in doubt. I would like to use an example from my own experience to illustrate my point, and to show why new clause 2 and the recommendation arising from the review do not go far enough.

I was burgled, and the item that was stolen had my name on it. Two villains were discovered attempting to enter another property. Unwisely, they had chosen to do that in the Chester square area, where the diplomatic protection squad of the Metropolitan

police observed them going from door to door, attempting to force their way into various houses. They were arrested, their properties were searched, and my property was found in their possession.

Most people would have thought that that case would be pretty easy to prosecute, and that a charge of possession of stolen goods could have been proved, if nothing else. I went on and on about the case to the police officers who were handling it, asking them when it was coming up, what would happen with it and when those involved would be held responsible. To my great concern, I eventually discovered that the CPS had decided not to prosecute. Like many other victims in such circumstances, I was distinctly unimpressed by the CPS and its decision, and was very aggrieved. However, I would not have been in a position to judge had I not sought out the information.

The debate about how victims of crime should be dealt with is beginning to recognise that they have a right to a certain amount of information. That is reflected in clauses 67, 68 and 69, under which the Government will give victims of crime information about the sentences and the release dates of prisoners who have been sentenced for the offences that involved them.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

The hon. Gentleman makes a powerful case. Has he thought about the circumstances in which cases have been withdrawn because key witnesses have been intimidated? Such cases show the complications that might arise, because disclosing information might subject such witnesses to violent retribution by those who were angry with them.

Crispin Blunt (Conservative, Reigate)

There are two separate issues. The first is that the victim has a right to know that proceedings have been discontinued, regardless of the reasons. With respect to the hon. Member for Newry and Armagh, a victim should not have to make an inquiry in order to obtain that information, as new clause 2 is framed. Just as a victim might be invited to be a witness at a trial, he should be told if there is not going to be a trial because the proceedings have been discontinued.

The second issue is the disclosure of the reasons for the discontinuance, and on that I agree with the hon. Member for Hemel Hempstead (Mr. McWalter). There are endless circumstances in which there could be concern about giving reasons. The review acknowledged that, and so did the Government in their response to the review. It is therefore appropriate that the test be for the DPP to come to his own conclusion about how best to serve the interests of justice and the public interest.

Des Browne (Labour, Kilmarnock and Loudoun)

I want to be sure that the hon. Gentleman appreciates that the relevant clause is very restrictive in its application. It deals with the discontinuance of proceedings before a court appearance. Because of the way in which the system operates in Northern Ireland, there is a very short period between the proceedings being commenced by the police and handed over to the prosecutor and an administrative decision by the prosecutor as to

whether the accused needs to appear before the court. That is what the clause is designed for; it is not about the discontinuance of prosecutions.

Crispin Blunt (Conservative, Reigate)

If there is a better way, within the Bill, to ensure that we place a duty on the DPP to inform the victim of the discontinuance of proceedings and to give the reasons for the discontinuance, I shall be grateful for the Minister's advice. The Minister pointed to the hon. Member for Newry and Armagh, who muttered ''new clause 2'', so it might be useful to put that on the record. New clause 2 does not seem to place a duty on the prosecutor to tell the victim that proceedings have been discontinued. I would be happy to reformulate the amendment, but it is important that we establish the principle. I do not see a particular difficulty. Indeed, I am anxious to proceed by agreement, because all those who represent the victims of crime want a better flow of information.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I largely agree with hon. Gentleman that the onus rests with the aggrieved person. However, the review specifies that

''the prosecutor should seek to give as full an explanation as is possible without prejudicing the interests of justice or the public interest.''

Are not those interests legally the preserve of the Attorney-General, rather than the DPP? Should not the Attorney-General be included to protect both those interests?

Crispin Blunt (Conservative, Reigate)

I do not agree, because the Attorney-General will not be involved in the prosecution of individual cases. Decisions about the public interest and the interests of justice will be taken on individual cases. I deliberately phrased amendment No. 177 to allow for times when the DPP might come to such a conclusion. It states:

''Where proceedings against a person in relation to an offence are discontinued under subsection (1), the Director must give reasons for the discontinuance of proceedings to those persons listed under subsection (2), unless in the Director's judgement to do so would be against the interest of justice or the public interest.'.

I worded the amendment in that way so that the director's judgment could be tested by judicial review. People who were unhappy with the director's decision would at least have the opportunity to question it. The amendment would ensure that the DPP was under a duty to give his reasons to the victims of crime.

We have given the DPP a wide discretion to make such judgments, but if the victims of crime were sufficiently dissatisfied to want to take the matter further, it would be appropriate to test it before a judge. That would involve public interest immunity certificates, and the judge would have to decide what information it was appropriate to release. However, that is not a new situation, and it is well tested. It is probably the best way to ensure not only that the DPP has wide discretion but that his discretion can be tested. We do not want a blanket application of the DPP's personal test of what the public interest is or of what the interests of justice may be. It would be appropriate to refer such matters to a judge. I hope

that that would give victims additional comfort if they did not receive information that they believed they were entitled to when proceedings were not continued.

Although the amendment is designed to deal with run-of-the-mill cases and the victims of crime whom we all represent from time to time, it also applies to the most high-profile cases. For instance, it would apply when the DPP declined to prosecute a member of the security forces if the alleged failure of the prosecution and judicial system to bring people to justice had caused significant dissatisfaction in the community. It

would provide an extra test, which could reinforce confidence in the system. It would ensure that people were brought to justice in the most high-profile cases, which had caused enormous concern across the whole community, and in cases of burglary, aggravated traffic offences and the other wrongs that are regularly brought to our attention.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

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

Standing Committee F

Clause 33 - Discontinuance of proceedings before court appearance

Peter Pike (Labour, Burnley)

I remind the Committee that with this we are considering the following: Amendment No. 177, in page 20, line 8, at end insert—

'(2A) Where proceedings against a person in relation to an offence are discontinued under subsection (1), the Director must give reasons for the discontinuance of proceedings to those persons listed under subsection (2), unless in the Director's judgement to do so would be against the interest of justice or the public interest.'.

New clause 2— Provision of reasons not to institute or continue proceedings—

'(1) Where the Director decides not to institute proceedings against a person or discontinues such proceedings he shall provide the Attorney General with reasons for his decision.

(2) The Attorney General shall, if requested by a person properly connected to the matter, provide a copy of those reasons to that person unless to do so would be against the interests of justice or the public interest.'.

Crispin Blunt (Conservative, Reigate)

I welcome you to the Chair, Mr. Pike, and extend a welcome to the hon. Member for Montgomeryshire (Lembit Öpik).

Before lunch, the Minister intervened in my speech to emphasise just how limited the amendment was.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I thank the hon. Gentleman for his concern and for his evident delight at my return, but such is my confidence in my hon. Friend the Member for Cheadle (Mrs. Calton) that I have only popped into the Committee to check up on things.

Crispin Blunt (Conservative, Reigate)

In previous sittings, it has usually been the Minister who has been speaking when we have adjourned for lunch. On one occasion during consideration of a previous Bill, he was able to go and consult his notes on the issue of national insurance numbers and find some arguments that he did not have in the morning. I am glad to say that, on that issue, the Government are now acceding to the wish of the majority of the parties represented on that Committee.

Having had a chance to go and consider the substance of the Minister's intervention before lunch, I have reinforced my conviction that amendments Nos. 176 and 177 should be accepted. They place a duty on

the prosecution to disclose the discontinuance of proceedings when the prosecution has responsibility for handling a case and when the Director of Public Prosecutions has the ability to discontinue proceedings without the victim being aware of it. Of course, once the proceedings have gone to court, they have, in a sense, become public. Therefore amendments Nos. 176 and 177 deal with the situation in which the victim has no capacity to know what is happening and place a duty on the prosecutor to tell the victim.

I also took the opportunity to look at new clause 2, tabled by the hon. Member for Newry and Armagh (Mr. Mallon), which I will press to a vote if he does not. The new clause covers the wider position when the responsibility shifts from the police to the prosecutor to the court, at which point a judge could direct that proceedings be discontinued.

My amendments address the situation where the prosecutor is firmly in the lead and the victim would otherwise be unable to get a handle on the process or understand what is happening. New clause 2 would put a duty on the prosecutor to provide information when someone requests it. In circumstances where a victim has no direct involvement in the process before a case goes to court, it is reasonable to place a duty on the prosecutor to give the victim the information, but once the case has gone to court and gone public, it is reasonable for it to be up to those with a necessary interest to request that information from the prosecutor.

Amendments Nos. 176 and 177 and new clause 2 stand together as a group and should all be supported by the Committee so that such a duty will be placed on the prosecutor. I want to draw to the Committee's attention the whole background to the issue. If Committee members look at chapter 13 of the review, as well as chapter 4, which deals with the specific requirements on the prosecution, they will see that the entire shape of the debate about the rights of the victim is moving in the direction of giving victims information. The presumption in the review is that victims should get the information that the amendment would make it a duty on the prosecutor to provide. The amendments would provide an opportunity for the House to place a duty on the prosecutor to provide victims of crime with information about the discontinuance of proceedings. New clause 2 provides the opportunity for those who request that information

''if requested by a person properly connected to the matter''.

Edward Garnier (Conservative, Harborough)

In order fully to understand my hon. Friend's proposal, can we assume that, under amendment No. 177, the reasons given by the director for discontinuing and the director's judgment are matters that can be tested in court?

New clause 2(2) states:

''The Attorney-General shall, if requested . . . provide a copy of those reasons to that person unless to do so would be against the interests of justice or the public interest.''

Can we also assume that the Attorney-General—or someone, at least—would have to set out why to continue a prosecution would be against the interests of justice or the public interest, which would also be justiciable?

Crispin Blunt (Conservative, Reigate)

That would be my assumption. As I said earlier, the process must be justiciable and subject to judicial review. That would address the concern that high-profile prosecutions, such as those against the security forces in Northern Ireland, simply do not happen.

Finally, I draw the Committee's attention to paragraph 13.47 of the review, which states:

''We recommend that wherever possible victims should be informed and consulted about the development of their cases. But when and how to consult them, particularly those who are witnesses, must be a matter for the professional judgement of the prosecutor.''

Nothing in the amendments that I have tabled violates the question of judgment that it is proposed is given to the prosecutor, who may make a proper judgment about the

''interest of justice or the public interest''.

The amendments capture entirely the tenor of the review and the wider debate about the involvement of victims of justice, and would give victims the information that they deserve at the beginning of the prosecutorial process, especially when it has been decided that prosecutions are not going to happen. The amendments are also consistent with other parts of the Bill that we shall discuss, including those relating to youth justice and information about the release of sentenced prisoners. They would make the Bill consistent and place victims at the forefront throughout the criminal justice process.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I would prefer to speak after the hon. Member for Newry and Armagh in order to hear his views, but I shall put my question in the hope that he will address it in his comments.

Although I have a great deal of sympathy with what the hon. Member for Reigate said about the importance of including victims' needs explicitly in legislation, I think that there is one difference of substance between amendments Nos. 176 and 177 and new clause 2. My interpretation is that there is conditionality in new clause 2, in the sense that the Attorney-General should inform persons connected with the case about why it was dropped only if they requested that information, and so long as it would not be against the interests of justice or the public interest. The Liberal Democrats believe that that condition makes sense and does not contradict the intention expressed by the hon. Member for Reigate (Mr. Blunt). I hope that the hon. Member for Newry and Armagh will clarify first whether our understanding is correct and, secondly, what he considers to be the relation between amendments Nos. 176 and 177 and new clause 2.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I shall try to address the point raised by the hon. Member for Montgomeryshire. It is an attempt to adhere to recommendation 49, paragraph 4.167 of the review, which states that

''where information is sought by someone with a proper and legitimate interest in a case on why there was no prosecution, or on why a prosecution has been abandoned, the prosecutor should seek to give as full an explanation as is possible without prejudicing the interests of justice or the public interest.''

The review says that the information should be sought, but that does not necessarily mean that that is the only way in which to handle the matter. The hon. Member for Reigate argued that it should not wait to be sought, but should be dealt with without being sought. That is the reason for the wording in the new clause.

In general, I would be at ease with the two amendments of the hon. Member for Reigate. I have a little problem in that they apply to two types of case, in one of which the victim, an individual, has not had redress or satisfaction. Even in an individual case, there could be an issue of public interest and the interests of justice. Under the Bill, that is the responsibility of the Attorney-General, who should present a report to the First Minister and Deputy First Minister, acting jointly. They are to present the report to the Assembly. I included the Attorney-General in the new clause to cover such circumstances. If it were left with the Director of Public Prosecutions alone, not using the Attorney-General as a conduit, there might be difficulties. I await the Minister's comments, but I believe that the provision would give people the right to a response that would set out the reasons for the DPP's decisions in as much detail as the DPP considered to be appropriate.

The review group considered, in paragraph 4.164, that

''Giving reasons for decisions to the public or interested stakeholders such as victims or the relative of victims is the most direct form of accountability in the explanatory sense.''

That type of accountability is at the heart of the amendments and the new clause. There is a further dimension in that public confidence in the prosecution service would be greatly enhanced if people could understand the reasons behind a decision not to prosecute. That would be particularly so in Northern Ireland. The overall effect would be in the best interests of justice.

Sylvia Hermon (UUP, North Down)

I am delighted to see you back with us this afternoon, Mr. Pike.

I sympathise with the hon. Gentleman's compassion about contacting victims' next of kin, but will he discuss the increased burden of administration on the prosecution service, as well as the increased financial burden on it?

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

There probably will be such burdens, but I ask the hon. Lady and others to try to assess the damage done when there has been no explanation. Let me give the example of the murder of Pat Finucane. Despite nearly 15 years of investigation, no one is yet any the wiser. The same applies to the case of Robert

Hamill, who was kicked to death in Portadown. Before hon. Members rise to speak, I should say that there are many other cases.

Inestimable damage has been done to the process of justice as a result of the failure to satisfy the public as to why prosecutions have not taken place. When that is weighed against an increase in cost or the administrative burden, I have no doubt where the balance lies. It lies in favour of an accountable system that is as transparent as possible and consistent with the interests of justice and of the public, and that above all makes the victim the priority. That would be utterly valuable. The hon. Member for Reigate spoke earlier of a personal incident.

Edward Garnier (Conservative, Harborough)

I do not know the answer to two questions, so I shall ask them. [Interruption.] The hon. Member for Cleethorpes (Shona McIsaac) is a tremendous adornment to our Committee; I am pleased that she can contribute so wisely to our deliberations.

Have the two cases to which the hon. Gentleman referred—Finucane and Hamill—not led to prosecutions because the investigations, no matter how long they have been going on, are continuing, or because a positive decision not to institute proceedings has been taken? If the former, they provide us with two examples that would fall outside his new clause.

That will do for the moment. I shall wait until the hon. Lady prompts me again.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank the hon. and learned Gentleman for the question, but I am not sure that I know the answer. The Minister will be aware that circumstances prevented a prosecution from taking place in the Hamill case. Has information on that been made available to inform the philosophy behind the amendments? I suggest not.

When the negotiations on the Police (Northern Ireland) Bill were concluding, those two cases and others had to be dealt with outside the legal process. That was the only means used to try to deal with them. It is better for the DPP, Attorney-General and the judicial process to deal with such matters openly and transparently. If they have to be dealt with in political negotiations, that may involve judicial figures, but not judges, the DPP and the Attorney-General.

Edward Garnier (Conservative, Harborough)

The second question that I want to ask is what category of person does the hon. Gentleman contemplate being persons

''properly connected to the matter''?

Does he mean only the immediate family of the victim—or the victim himself in non-fatal cases? Or does he mean that victim interest groups may also have some standing in the matter? It is quite important, because the courts can sometimes get clogged up with cases that are brought in order to make a political point rather than to find out something that an individual or family needs to understand.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Over a considerable number of years, I have not noticed the courts being clogged for that reason. I think primarily of the victims and their families, but also of the wider interest that will provide

the context within which the Bill will work to the optimum. Of course, there will be victims' groupings—there is no scarcity of them—but there will not be any if the cases surrounding victims are dealt with transparently, openly and accountably. That is the surest way to ensure that there are no victims' groupings. I hope that that will put into context what I intend by the new clause.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

I agree with my hon. Friend's response to the intervention of the hon. Member for North Down (Lady Hermon). It has been far too common for economic considerations to preponderate over the rights of victims, and I welcome his attempt to redress the balance.

Would my hon. Friend address the point that I made initially to the hon. Member for Reigate? Clearly, a prosecution could be withdrawn if publication of the reasons for withdrawal—such as the intimidation of witnesses—would compromise the safety or welfare of innocent persons. Would my hon. Friend not agree that under such circumstances his new clause goes a little too far?

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank my hon. Friend. He suggests that the new clause might go too far, yet the hon. Member for Reigate said that it did not go far enough. I think that they are both right in a certain contradictory sense. The reality is that when a witness to a crime is threatened with violence, it is often the crime's victim and the victim's family who suffer—along with the whole process of justice. It is conceivable that there will be such cases in future, but that pattern has not developed over the past 30 years, and I do not see it developing now.

Like the hon. Member for Reigate, I believe that we have the opportunity to address this serious concern in a way that would both strengthen the institutions of the state and build public confidence by ensuring that the justice system is transparent and accountable, and that there is a presumption of innocence. I seek support for new clause 2 and for the two amendments. I believe that they have a lot in common.

I was talking about the Bill to some friends at Munster. Sometimes we get too bogged down in the details. The real question is whether it will be possible to create a workable system of justice that will be supported by the people of Northern Ireland and give the quality of justice that we seek. If we ask that question, I have no doubt that the provisions are a large step on the way to gaining public confidence in that aspect of the Bill.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to hon. Members for tabling the amendments and the new clause. It has given the Committee the opportunity to consider some very serious issues. I will treat them seriously, but if the Committee will bear with me for a few moments, I should also like to recount an anecdote. The hon. Member for Reigate told us about the villains who stole his good name, or rather something with his good name on it, and that reminded me of a young man charged with theft, whom I defended when I was a young solicitor. He was not the brightest individual. He stole an expensive pen and did what all of us do

when we get hold of an expensive pen—he tested it. Unfortunately, he wrote his name on the desk blotter before he took off.

Amendments Nos. 176 and 177 are designed to require the prosecution service to give the court, the accused and the victim of the offence the reasons for the withdrawal of charges. I intervened on the hon. Member for Reigate to point out the context of the clause 33. I understand, on reflection, that despite what I said the hon. Gentleman still considers that the amendment is effective. It is important, however, to understand that the clause would operate in a comparatively small number of cases—arguably in only a tiny number—in which a person had been arrested under the Police and Criminal Evidence (Northern Ireland) Order 1989 and the prosecutor wished to withdraw the charges prior to the first remand.

The provisions concern the discontinuance of proceedings before the court appearance. In many cases, though not all, the withdrawal of the charge will not be the final decision on the case. In fact, the withdrawal of the charge may be designed to allow further preparation and necessary investigation, or consideration of the appropriate charge and marshalling of the evidence.

The withdrawal of the charge is likely to mean only that the prosecutor does not wish to pursue the matter at that point. That is why subsection (4) retains the option of prosecuting at a later date. The giving of reasons required by the amendment would be particularly inappropriate, because in the majority of cases the prosecutor, in deciding to withdraw, would be saying only that he had not yet made a decision about whether to prosecute the case.

Crispin Blunt (Conservative, Reigate)

Plainly, in those circumstances, the victim of the offence has a right to know that proceedings have been stayed. The Minister has made a perfect case for the prosecutor exercising his judgment about the interests of justice. It would clearly not be in the interests of justice to explain the reasons for withdrawal in such cases. That makes the case for the amendment.

Des Browne (Labour, Kilmarnock and Loudoun)

With respect, that is an ingenious argument. The hon. Gentleman cannot think of any circumstances in which reasons could be given. The amendment requires reasons but says that they do not need to be given in certain cases.

The clause is not designed to provide for the giving of information. It is designed to address the administrative requirements and consequences of the decision made by the prosecutor. It is designed to ensure that the accused, who must be told certain information, does not have to appear before the court and that the court does not schedule a hearing when the charge has been withdrawn. The purpose of the clause is not to require the information behind decisions to be given out. Arrangements for informing those involved in the case will be dealt with in the code

of practice of the prosecution service. Clearly, various people will need to be told certain things but the code of practice will deal with that.

Crispin Blunt (Conservative, Reigate)

The Minister seems to be asking the Committee to accept that there should be a duty on the prosecutor to inform the person who is required to appear in connection with the offence—the defendant— but no duty to inform the victim that the proceedings have been discontinued. That is grotesque. I am sure that, with a moment's reflection, the Minister would agree that the victim should have that information.

Des Browne (Labour, Kilmarnock and Loudoun)

New clause 2 would impose a more general duty on the prosecution service to give reasons. In each case where a prosecution has not been instituted or has been halted, the new clause would require a copy of the reasons for that decision to be passed to the Attorney-General, who could make those reasons available on request to any person who had a valid interest in the case.

Paragraph 4.167 of the review deals with the issue raised by the hon. and learned Member for Harborough (Mr. Garnier). It states:

''We suggest that those regarded as having a legitimate interest in a case be confined for the most part to victims and their families.''

Edward Garnier (Conservative, Harborough)

I want to return to the Minister's point about the code under clause 38. Without wishing to undermine the thrust of my hon. Friend's argument about the pressing need for victims to be taken into account in the prosecution process and the administration of justice, I accept the Minister's suggestion that the code is a more appropriate place to set out in writing provisions dealing with those concerns. However, will the Minister say whether at least a draft code will be ready for consideration by Parliament before the Bill completes its passage through both Houses? Obviously, the Minister and his team have been thinking about the Bill for some time because they have considered the review and the reply to it, so I dare say that they might have some idea about the contents of the code, especially relating to information to be given to victims by the Public Prosecution Service.

Des Browne (Labour, Kilmarnock and Loudoun)

This is a detailed provision, which will have wide-ranging effects. It has caused significant additional work for officials in the Northern Ireland Office and for the DPP. I know that work on several aspects of the code is continuing, but, unfortunately, I do not know the position off the top of my head. I undertake to write to the hon. and learned Member about that.

Edward Garnier (Conservative, Harborough)

Given that we are having a brief exchange about the code now, it might be encouraging if the Minister would undertake to consider the points made by my hon. Friend the Member for Reigate in support of his amendments.

Des Browne (Labour, Kilmarnock and Loudoun)

I have no difficulty in giving such an undertaking. Those issues will exercise the mind of the director responsible for drawing up the code. That is why I referred to it in the context of my response to the amendment proposed by the hon. Member for Reigate. I cannot say when the code will be available in draft or any other form—it is not my direct responsibility to produce it—but I can say that the issues that the hon. Gentleman raised will be considered by the director who would, I am certain, have done so in any event.

Edward Garnier (Conservative, Harborough)

I do not know what plans my hon. Friends on the Front Bench have for the amendment. However, if needs be I shall encourage the Committee to divide in order to keep the Minister up to the mark so that, when he looks back on this day, he will be encouraged to do what he ought to do.

Des Browne (Labour, Kilmarnock and Loudoun)

I assure the hon. and learned Gentleman that he does not need to divide the Committee to keep me up to the mark; I have a track record. Although I have not been a Minister for long, I have not failed in my duty when it comes to giving undertakings. However, if he feels that he must do that, it is a matter for him.

I was dealing with new clause 2 and had set out what I understood to be its import. The debate has made it clear that the issue of giving reasons for non-prosecution is complex, and that is borne out by the number of occasions on which it is dealt with by the review. Accordingly, Government policy in that area has been set out in detail in the criminal justice review implementation plan. The Government's position is that the interests of the victim must be balanced against other interests, such as those of the witnesses, and concerns such as damage to the reputation of or other injustice to an individual, the danger of infringing on the presumption of innocence and the risk of jeopardising the safety of individuals. Committee members will understand that the latter is particularly pressing in certain cases in Northern Ireland.

In each individual case in which reasons are requested, the prosecution service must come to a view as to whether it is possible to give reasons for non-prosecution. Where a proper balance can be struck between the concerns that I have outlined, the Director of Public Prosecutions will endeavour to answer a request for reasons for non-prosecution. The position is broadly similar to that in England and Wales and in the Republic of Ireland—in fact, I think that it is identical to that in the Republic. The review group acknowledged the importance of coming to such a balanced judgment. I am grateful to my hon. Friend the Member for Newry and Armagh for pointing out the respective provisions and to the hon. Member for Reigate for rehearsing them.

Recommendation 238 of the review acknowledges that consultation with victims should be

''a matter for the professional judgement of the prosecutor''.

The Government agree with that. However, notwithstanding the view of the hon. Member for Reigate, the amendments remove the scope for the

prosecutor to apply his professional judgment in such cases, and they are unnecessarily restrictive. More importantly, the full consequences could be regarded as contradictory to some other important aspects of the review. For example, new clause 2 would give the Attorney-General an operational role in the prosecution of offences.

I accept that neither the hon. Member for Reigate nor my hon. Friend the Member for Newry and Armagh will go to the death on the exact wording, and that they argue the principle. However, that operational role would contravene and undermine the relationship of oversight that the review envisaged.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

In relation to the interests of justice and the public interest, do not the role and function lie with the Attorney-General anyway? Is not the responsibility his? If so, how is that to be viewed as an operational involvement in every circumstance?

Des Browne (Labour, Kilmarnock and Loudoun)

My hon. Friend makes an important point. A distinction must be understood. The prosecutor must decide whether prosecution will lead to conviction, which involves an assessment of the sufficiency of credible and reliable evidence. Then there must be an assessment of the public interest in relation to an individual case, and a general assertion that a law officer has responsibilities and accountabilities in the public interest or the interests of justice.

The Government believe that the decision in relation to public policy and sufficiency of evidence is for an independent prosecutor. To superimpose a role on the Attorney-General would involve him directly in the issues and the transfer of information in certain circumstances. It is an operational role for the Attorney-General to decide whether it is appropriate to transfer information in the context of individual cases. Doing so would not be to exercise a general public policy role or a general role that the Attorney-General may have in relation to his accountability to the Assembly.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

My hon. Friend makes a powerful point, but does he agree that a general duty on the Attorney-General or the DPP to have due regard to such matters could be included in the Bill? It could be made explicit rather than implicit.

Des Browne (Labour, Kilmarnock and Loudoun)

I accept my hon. Friend's point, which covers the important principle of the argument in which we have all engaged. By reference to the Government's position, which has been in the public domain since the implementation plan was drafted, I have sought to show that there could be another amendment in a different context, perhaps with other arguments deployed for or against, but I am trying to tackle the new clause.

My final point is comparatively short. The amendment covers only one aspect of interest to victims, which is the giving of reasons. When we consider later provisions, we shall have an opportunity to consider other steps that have been taken, to which we have already alluded, that set a general context for improving the position of victims in the context of the

criminal justice system. However, I regret to say to my hon. Friend the Member for Newry and Armagh and to the hon. Member for Reigate that, in the current context, and bearing in mind that there is that general context in the Bill, I am unable to accept the amendments.

Crispin Blunt (Conservative, Reigate)

I am distressed by the Minister's rejection of the amendments, because they provide an opportunity to advance victims' rights in a particular respect. I fully accept that, in other respects, the Bill does exactly that—especially in relation to youth justice and the passage of information about the release of prisoners. However, it seems extraordinary that the Government are prepared to resist a general tendency at a stage in the process that is most invisible to victims, when the prosecutor is assembling the case and the case simply disappears beyond the victim's purview. The victim has gone to the police and made a complaint and, almost certainly, a witness statement, and will be expecting something to happen. The victim will know that someone is being questioned and on the receiving end of the police and prosecution authorities for the offence, but he, or she, has no rights to that information under the Bill.

We are not asking the Government to do something completely new. The Minister said that such a proposal would make the situation analogous to that of the Irish Republic, but the review states:

''We note that in the United States District Attorneys tend to be very open in explaining their approach in cases of major public concern, perhaps in part because of their elected status. The experience in Germany and the Netherlands has also shown that it is possible to formulate a system of giving reasons without prejudicing the cause of justice.''

We would not prejudice the causes of justice or public interest, as they are the tests in my amendments and the new clause.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I listened to the case put by the Minister. Does the hon. Gentleman agree that he is being somewhat intransigent in rejecting sensible proposals? The Minister even gives the impression that the Government are not willing to reconsider the matter on Report, despite the case made by the hon. Gentleman and the hon. Member for Newry and Armagh.

Crispin Blunt (Conservative, Reigate)

I am grateful to the hon. Gentleman for his remarks, which explain why I am distressed at the Minister's opposition to the amendments. The Government and the Committee may successfully resist them at this stage, although we hope that they do not, as it is not really a party issue, and I hope that members of the Committee will surprise us by exercising their own judgment.—[Interruption.] I am grateful for the intervention of the Government Whip, who can tell when the Government's cause is weak, as it has been on other Northern Ireland issues on which we have eventually persuaded them to change their mind.

The whole climate of opinion is moving in the direction of the amendments, so, if the Government resist them at this stage, I hope that we shall be able to reconsider the matter later. However, I certainly intend to press the amendment to a Division.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I want to make it clear that I shall seek a separate vote on new clause 2.

Peter Pike (Labour, Burnley)

Order. May I give the hon. Gentleman some guidance? We shall take new clause 2 when we reach the appropriate point in the Bill, but I take note that he will want to move it formally at that stage.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I am responding to advice from the Clerk, but I take your judgment on the matter, Mr. Pike.

Peter Pike (Labour, Burnley)

That is the procedure. We will deal now with amendments Nos. 176 and 177. New clauses are dealt with once we reach the appropriate place in the Bill. We have properly debated new clause 2 with this group of amendments, but it cannot be moved formally until we reach that stage. Only then can the Committee divide on it.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Thank you, Mr. Pike, for that advice.

In any society, especially that of Northern Ireland, which has such experience and such division, the public make a judgment about the degree to which justice is seen to be done not just on the number of cases prosecuted but on those that are not prosecuted. I would be concerned about the effect that that could have on public opinion. I am not convinced by the Minister's argument that a presumption in favour of disclosure would preclude particular consideration in relevant cases. I am not convinced that the presumption of disclosure would prevent decisions being made in the public interest and in the interests of justice. For those reasons, I await with interest our debate on schedule 8.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

If a vote is called, the Liberal Democrats will support the amendment to make the principle point that it is not clear why the Minister is so resistant to what seems a sensible argument. We feel more comfortable with new clause 2, although I understand that it comes later. I am disappointed that the Minister was not more sympathetic to a common-sense proposal that seems genuinely sympathetic and is in the interests of victims.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 12.

Clause 35 - Police complaints

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I beg to move amendment No. 201, in page 21, line 14, at end insert—

'(3A) In section 55 (Consideration of other matters by the Ombudsman), after subsection (1) insert

''(1A) The Director shall refer to the Ombudsman any matter which—

(a) appears to the Director to indicate that a member of the police service may have—

(i) committed a criminal offence; or

(ii) behaved in a manner which would justify disciplinary proceedings; and

(b) is not the subject of a complaint.'''.

Peter Pike (Labour, Burnley)

With this we may discuss amendment No. 202, in page 21, line 15, leave out

'in subsection (1) (in each place) and'.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

The amendments are directly connected. They attempt to clarify what the DPP must do if he receives information to suggest that a police officer has committed a criminal offence or has

breached discipline, but a formal complaint has not been made. The DPP must refer such matters to the police ombudsman.

The amendments are intended to give statutory effect to recommendation 21 of the review, which states:

''We recommend that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated.''

Accordingly, the amendments would strengthen the Bill, which gives the DPP only discretionary authority to bring a matter to the ombudsman's attention. The review is fairly explicit. We believe that that recommendation—it also appears in paragraph 4.133—will strengthen not only the DPP and his office, but the position of the police.

In effect, the amendment is an attempt to avoid police bashing, and to avoid criticising the process of justice. Instead, it is an attempt to strengthen both the police and that process, to allow for maximum confidence in their operation and perception. I recommend the amendments.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Once again, I am sorry to say that my questions for the hon. Member for Newry and Armagh might have been better in an intervention.

The hon. Gentleman's intention is clearly to objectify and codify when something will be referred to the ombudsman. Nevertheless, the amendment does not do that, because somebody would still be required to make a judgment about whether an offence had been committed. The subjective nature of such a judgment could simply be bumped up one level, so that if the Secretary of State and the police authority were so inclined they could state that, in their judgment, there was no such indication.

Does the amendment achieve the hon. Gentleman's goal, or does it simply increase the pressure on the Secretary of State and the police authority to say, on occasion, that there is not sufficient indication that a member of the police force has committed a criminal offence or behaved in a manner that would justify disciplinary proceedings? If my concern is founded, that could serve to increase stress on the police authority, and that would worry me.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I do not believe that to be the case. The amendment is consistent with the review's clear recommendation that a duty be placed on the prosecutor, and it attempts to define that duty. I know that it may not be the best way to approach the matter, but is it conceivable that, in some instances, the director should not ensure that an allegation of malpractice on the part of the police is fully investigated? If so, we shall need to make it clear in what circumstances he should not do so.

Sylvia Hermon (UUP, North Down)

The hon. Gentleman has kindly outlined why he would prefer a duty to a discretion with reference to the review. Section 55 of the Police (Northern Ireland) Act 1998, which the clause amends,

not only treats the Secretary of State's power as discretionary, but states that matters should be referred to the ombudsman

''if, after consultation with the Ombudsman and the Chief Constable, it appears to the Authority or the Secretary of State that it is desirable in the public interest that the Ombudsman should investigate the matter.''

That section requires a consultation process. Will the hon. Gentleman tell the Committee why such a process is omitted from his amendment?

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Mainly because I am not writing the Bill. The amendment is designed to ensure that, in circumstances where a police officer breaches the rules or does something that would lead to disciplinary proceedings, but is not yet the subject of a complaint, the DPP would have the power and the duty to deal with that.

The hon. Member for Montgomeryshire asked what effect the amendment would have on the Policing Board. Let me be honest: if the Policing Board is not strong enough to maintain the highest standards in the police, then it will not survive. I am convinced that it will, and that openness of the type contained in the amendment will help it to do so.

The essence of the amendment is clear. We are in the midst of something new. We have had a horrific 30 years in terms of Northern Ireland society. Allegations have been made against the police and there has been mistrust of the courts. Those things will not disappear overnight; as legislators, we shall have to deal with them through the law that we write and the type of arrangements that we are making under the Bill.

I venture to suggest that, if we were dealing with any other country in the world except Northern Ireland, there would not be a whimper about the matter. I am not sure that there would be any reaction. However, I am aware that the issue raises hackles and causes concern. I do not live in a vacuum. I am aware of the attitudes that exist towards policing, the police ombudsman and the judiciary, but if the Bill is to work, we must place ourselves many steps above those attitudes.

I ask hon. Members to judge the measure on its merits. Is it not right that, if a police officer commits a criminal offence or behaves in a manner that justifies disciplinary proceedings, the DPP should have a duty to investigate? I am not sure that anybody in the Committee would disagree with that solely on its merits, but there are many connotations that might prevent such agreement.

Des Browne (Labour, Kilmarnock and Loudoun)

As my hon. Friend fairly says, the amendment is designed to impose a duty on the director to refer matters to the police ombudsman for investigation if circumstances seem to indicate that a police officer has committed a criminal offence or has behaved in a manner that would justify disciplinary proceedings and that police officer is not the subject of a complaint.

As the hon. Member for North Down pointed out, the clause amends the Police (Northern Ireland) Act 1998 to allow the director to refer such matters to the police ombudsman. As she said in an intervention on my hon. Friend the Member for Newry and Armagh, the clause puts the director on an equal footing with the Policing Board and the Secretary of State in such matters. Committee members should also understand that the power that the clause gives to the director, and the powers capable of being exercised by the Secretary of State and the Policing Board, are additional to the ombudsman's own power to intervene and investigate such instances as come to her attention.

It is not clear to me, other than by reference to the bold words of the review's recommendation, why my hon. Friend the Member for Newry and Armagh should wish to put the DPP in a more rigid position in relation to a set of circumstances than those responsible for the delivery of policing in Northern Ireland. The hon. Member for North Down made that point, and it is important. Perhaps, in responding to the debate, my hon. Friend can articulate why he thinks the DPP should be put in a more rigid position than the Secretary of State and the Policing Board.

The argument for the absence of rigidity in relation to the Policing Board and the Secretary of State cannot simply be that if the board does not run the system properly, things will, in any event, go badly for Northern Ireland. I am not seeking to disparage my hon. Friend's argument by paraphrasing it wrongly, but I have yet to hear a convincing argument that the DPP should be put in a more rigid position and should not be allowed the discretion that both the Policing Board and the Secretary of State would be able to exercise, should the same circumstances come to their attention.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Is it conceivable that there have been instances over the past 30 years in which the Secretary of State and the police authority did not proceed where there was a criminal offence, or where members of the police force behaved in a manner that would justify disciplinary procedures? There is a difference between rigidity and the type of fluidity that will not add to the authority or the stature of the DPP. The ordinary person will accept the type of decision that we have made and will make about the DPP. The ordinary person will also want to see what will be done about potential offences by members of the police service. If the situation does not change, the nuances of the Minister's argument will not be conclusive where attitudes to the new system are concerned. The Minister should reconsider what will be required of ordinary people like myself in relation to the final outcome of the Bill.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to my hon. Friend who, with due respect to all other members of the Committee, recognises better than any of us the nuances of arguments. In the short time in which I have been in the House, I have tried to learn from people like him how to deploy the nuances of arguments. It is important that the subtleties of this

argument are understood. I shall try to explain the thinking behind our attempt faithfully to implement the review's recommendation.

The recommendation is not that subtle; it expresses a duty to ensure investigation. When it comes to me, as the Minister responsible, to be translated into a statutory provision, that has to be done in a context in which the people of Northern Ireland live and other public officials in Northern Ireland operate. One of those officials is the ombudsman. A bald interpretation of the recommendation would cut right across the ombudsman's responsibilities, because she is charged with a duty to investigate in many such circumstances. Skill and nuances had to be adopted in order to turn the interpretation of those recommendations into a statutory provision. That is why the statutory provision that we are dealing with could not be seen to be usurping the position that the ombudsman already enjoys in relation to the investigation of complaints against police officers. There must be a balance. What does one do? How does the DPP ensure full investigation in those circumstances?

One can ensure full investigation by referring the matter to the ombudsman, but that is not the only way in which matters can be investigated. My hon. Friend suggested that there were no circumstances in which it would be palatable for the DPP to do anything other than refer the matter to the ombudsman, but there are trivial infractions of disciplinary codes. My hon. Friend's amendment would require the DPP to send a trivial infraction of a disciplinary code to the ombudsman for investigation, although it could easily be investigated and dealt with by the Chief Constable. The DPP would be prevented from applying his discretion and common sense to a set of trivial circumstances.

The second possibility is that if the DPP intended to prosecute a police officer on the strength of evidence in a certain set of papers, he would not be able to do so because the provision would oblige him to refer the matter to the ombudsman for investigation. In fact, the prosecution of a police officer for a criminal offence, if there were sufficient evidence and a clear public interest in prosecution, would be delayed by referral to, and investigation by, the ombudsman.

The Government share my hon. Friend's objective of implementing the review recommendations, but when we take into account trivial and very serious cases and the existing role of the ombudsman, the matter is not as simple as it first appears and contains some nuances.

For those reasons, we believe that the provision is sufficient to allow the director to fulfil the duty that the review recommended should be placed on him to ensure that those matters that find their way to his desk are investigated properly, but not exclusively by the ombudsman.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

It should be noted that the amendment says ''refer'' to the ombudsman—nothing further. I completely agree with the Minister about a lesser type

of matter, which would, under present legislation, be dealt with by the Chief Constable. I do not envisage that such a disciplinary matter should be dealt with by anyone other than the Chief Constable, but we need to ensure that the stringency that we place on the DPP in relation to the entire community also applies in this instance.

The Minister makes a strong case, and part of its strength lies in the fact that the ombudsman can choose to become involved, but surely the process will be more transparent if someone of the stature of the DPP is involved in referring a case to the ombudsman—I am not talking about trivial disciplinary matters. I do not think that that would have the implications that the Minister envisages.

Peter Pike (Labour, Burnley)

I call Mr. Browne.

Des Browne (Labour, Kilmarnock and Loudoun)

I am not sure that that was an intervention, Mr. Pike, but I will treat it as such. I thought that I had finished, which is probably why I was so relaxed, and now I must wind myself up again.

My hon. Friend argues persuasively, but the strength of the argument is in my favour. For the reasons that I have given, including that relating to the most trivial and the most serious cases, the DPP should continue to enjoy some discretion, but we are giving him no more discretion than the Secretary of State or, more importantly, the Policing Board already enjoys in this context. That is a powerful argument.

Sylvia Hermon (UUP, North Down)

May I try to give the hon. Member for Newry and Armagh some peace of mind? I listened carefully to his earlier remarks, particularly his mention of the Hamill and Finucane cases. We are discussing section 55(1) of the Police (Northern Ireland) Act 1998, but I would like to quote subsection (2). It states:

''A Chief Constable shall''—

it is clearly a duty—

''refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person.''

When a death has occurred, the Chief Constable already has a clear duty to refer such serious cases to the ombudsman.

Des Browne (Labour, Kilmarnock and Loudoun)

I suspect that cases do not come any more serious than that, but it may be of some comfort. I am sure that my hon. Friend knows the genesis of that provision. It was thought necessary in Northern Ireland to give the ombudsman a compulsory power to investigate in certain circumstances. It is not the only matter that is required to be referred to the ombudsman by the Chief Constable in which the former has an investigatory or supervisory power. I merely encourage my hon. Friend the Member for Newry and Armagh to consider this provision as part of a complex web of provisions that are designed to meet the objective that both he and the Government seek. However, they can come into conflict with each other if they are not drafted so as to fit into the existing legal structure.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

I congratulate my hon. Friend the Minister on the power and energy of his argument. Would he agree that in addition to escalating trivial cases, the amendment could have the serious effect of escalating cases of malicious accusation, which is another important consideration?

Des Browne (Labour, Kilmarnock and Loudoun)

We are all conscious, from our experience as Members of Parliament, of the dangers of malicious complaints. Society is becoming more skilful in dealing with them, but we have to trust the people to be appointed to such positions, particularly the person who will occupy the position of the DPP, of being capable, from their substantial experience in that area of the law, of identifying malicious complaints. I can see the merit in my hon. Friend's argument that we must be alert to malicious complaints, but I would rather trust in the abilities of the people who are appointed to such positions than in legislation to give that protection.

I cannot usefully add to my argument. I hope that I have convinced my hon. Friend to withdraw the amendment. That is not to say that we cannot revisit the subject. Should he find a formulation that has the necessary nuances, I would be happy to debate it with him, but I hope that I have convinced him that he can safely withdraw the amendment.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I must state that the Minister made a powerful argument. He made three convincing points—at least they began to convince me. The first was about the power of the ombudsman to involve himself. The second, which was valid, was about the constraints that the amendment might put on the DPP with regard to the action that he could take—not with regard to referrals but in terms of his position. The third point was about the Policing Board. Those three points, together with the point raised by the hon. Member for North Down, lead me, reluctantly and against my better judgment, to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.

Clause 36 - Information for Director

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 178, in page 22, line 2, at end insert—

'(6) Where the Director is not satisfied with the information provided to him by the Police he may refer the case to the Police Ombudsman for investigation.'.

This is a philosophically not dissimilar amendment to the ones that we have just debated, tabled by the hon. Member for Newry and Armagh, in that it gives the Director of Public Prosecutions power to invite the police ombudsman to conduct an investigation. Clearly, there must be some passage of information from the police to the director in order for him to be able to put a prosecution together. He may not be satisfied that he is getting the necessary information from the police. It is idle to conjecture about all the circumstances in which that might arise, which might

include the professional incompetence of some policemen in putting briefs together, or relate to wider problems of the police obstructing a prosecution for reasons of their own.

These matters may be covered in other legislation, so I shall listen carefully to the Minister's reply. However, it struck me on reading the Bill that the DPP should have some form of power at his disposal to be able to ferret out information, if he is not getting it from the police, and that it would be difficult for him to do that directly. Although it is essential that the relationship between the police and the DPP works well, individual circumstances may exist when it does not work well.

I do not imagine that the DPP would use the power that the amendment would give him with anything other than the greatest hesitation, given the damage that it would do to the relationship between the relevant part of his office and the part of the police force that was investigated. The amendment would simply reinforce the director's position, giving him the power to search for information when he thought that he was not being properly served by the police.

As with the amendments tabled by the hon. Member for Newry and Armagh that we have just debated, this is in no sense meant to be an anti-police measure. It is merely meant to give the DPP the opportunity to have some investigatory force to go after information, if circumstances require. If the power exists elsewhere within the system, I am content to withdraw the amendment.

Des Browne (Labour, Kilmarnock and Loudoun)

I am happy to reassure the hon. Gentleman that, in the Government's view, what he seeks to do is achieved elsewhere in the Bill. The debate on the previous group of amendments concentrated on the mechanism that is used to give the DPP the power to refer matters for investigation to the police ombudsman, if the director considered that they would amount to a disciplinary offence. That is achieved by an amendment to section 55 of the Police (Northern Ireland) Act 1998, which is contained in clause 35(4). The mechanism is to add the DPP to a shortlist of bodies, people , the Secretary of State and the Policing Board, thus empowering him at his discretion to report matters to the ombudsman for investigation.

If that reassurance is sufficient for the hon. Gentleman, perhaps he can be persuaded to withdraw the amendment. I understand that in some circumstances the DPP may think that he does not get sufficient information, but I am not sure that it is the intention to use the ombudsman as a police service to investigate the individual circumstances of an alleged offence. That would be entirely inappropriate.

The ombudsman can investigate the failure of the police to carry out their duty. That is how the Bill is structured. One would hope that, if there ever were such a situation—I cannot imagine it developing, but I understand the hon. Gentleman's desire to cover all bases—the complaint would work in the following way. If a report to the ombudsman were upheld, the

police would be compelled to carry out an investigation and provide information in relation to the reported offence to the DPP.

The amendment suggests that if the police are not prepared to investigate and provide information to the DPP, an ombudsman should be used to do that in a normal policing investigative role. That is not what the hon. Gentleman wants, so he should find comfort in clause 35(4) and its interaction with section 55 of the 1998 Act. If he does not, I shall listen to him carefully again as to what role he thinks the ombudsman can play in an individual case.

Crispin Blunt (Conservative, Reigate)

I have found comfort, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Crispin Blunt (Conservative, Reigate)

It is appropriate to discuss disclosure in the light of the Bill. There is wide concern, especially among the legal profession in Northern Ireland, that a duty of disclosure will be placed on the police and the DPP to give information to the defence. A submission from the Law Society and comments by the Criminal Bar Association showed that those organisations were anxious that the duty should appear in the Bill. If it were to be included, it would be in the clause.

The review and the Government's response to it both kick the issue off to a law commission. Paragraph 4.143 of the review is about disclosure, and concludes that

''we believe that the present disclosure provisions should be reviewed and suggest in Chapter 14 that this might be one of the matters for consideration by a Law Commission.''

The subject is clearly of concern to the profession, and it has obviously been difficult to phrase a requirement on disclosure that could appear in the Bill satisfactorily. I have not been able to do so—I have not had sufficient time or resources—or I would have tabled an amendment on the subject. However, it is appropriate to flag up the issue in this clause stand part debate, and to ask the Government whether they actively considered a formula to meet the disclosure requirement sought by the legal profession.

There may be reasons for the Government to continue to resist such a formula, even after a law commission has considered it. However, it is appropriate to ask them where they stand on disclosure, as they seem to have taken a rather neutral position. The review found it difficult and kicked it off to a law commission. When matters are kicked off to commissions of any variety—law, royal or anything else—the ball disappears into extremely long grass. Frequently, it never returns to visibility. What is the Government's thinking on disclosure?

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman rightly points out that the clause is about the orderly circulation of court papers. Like all other parts of the Bill that relate to the criminal justice system in Northern Ireland, it is about what lawyers call procedure. Issues to do with

disclosure are in a different body of the law: that of evidence. No part of the Bill deals with the law of evidence.

That does not mean that we cannot mention disclosure in the context of information, as the hon. Gentleman appropriately did with reference to paragraph 4.143 of the review. I am not privy to the review's discussions on the issue, but I sincerely doubt whether a review that involved the passing of information could take place in any jurisdiction without the legal profession raising disclosure. Even with reference to full disclosure, I am sure that the legal profession would raise the subject for discussion. In practice, it is a complex aspect of the law.

The review did not consider disclosure, but I do not accept that it ducked the issue. It flagged it up as something for consideration by those with expertise. We should bear in mind the fact that the review recommended that such people be formed into a commission, as they had the skills to consider such complex matters. In the face of that recommendation, it is incumbent on the Government to set up a law commission to do such work. The Secretary of State will then remit certain matters to that law commission to consider, and the Committee can rest assured that when priorities are set for it, issues specifically referred to by the review such as disclosure will be considered for priority.

Other bids for priority will be made from other sections of the community of Northern Ireland. I can guarantee that at least three or four bids will be made from lobbies to do with children, suggesting that a law commission address the welfare of children as a matter of priority. The Secretary of State will then need to apply some consideration as to what is priority. That is the Government's position. It is not a position of no action—

Sitting suspended for a Division in the House.

On resuming—

Des Browne (Labour, Kilmarnock and Loudoun)

I shall conclude my remarks on the case advanced by the hon. Member for Reigate. The rules of disclosure are important, which is why they occupied the review group's time. It is the Government's intention that they will be a priority for a law commission when one is convened, subject to other priorities. I can guarantee that whatever recommendations are made will be complex and will require extensive consultation, not only with the legal profession. At the end of that process, I hope that there will be an opportunity to revise the rules of disclosure in Northern Ireland, and that the Assembly will be able to do that work.

Question put and agreed to.

Clause 36 ordered to stand part of the Bill.

Clause 37 ordered to stand part of the Bill.

Clause 38 - Code for Prosecutors

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I beg to move amendment No. 203, in page 22, line 30, at end insert—

( ) The Director must consult with-

(a) the First Minister and Deputy First Minister;

(b) the Northern Ireland Human Rights Commission; and

(c) any other person appearing to the Director to have an interest in the matter, before finalising, or making alterations to, a code.'.

Amendments Nos. 203 and 204 are linked, and are intended to bring the Bill more closely in line with recommendation 50 of the review group. That included the recommendation that the DPP be required by statute—

Peter Pike (Labour, Burnley)

Order. I am prepared to accept the two amendments as being grouped together if that will facilitate the process.

Amendment No. 204 reads: in page 22, line 30, at end insert—

'( ) In exercising his functions under subsections (1) and (4), the Director must have regard to the United Nations Guidelines on the Role of Prosecutors.'.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I am sorry if I was out of order, Mr. Pike. The DPP would be required by statute to publish codes of practice and ethics, the latter being based in part on the standards set out in the United Nations guidelines. The new Northern Ireland Policing Board, which has various types of representation, is drawing up codes of practice in terms of its remit, which are essential given the importance of the DPP's position.

The United Nations guidelines on the role of prosecutors are especially relevant. In line with the review group's recommendation, it is important to place a duty on the DPP to have regard to the guidelines in drawing up codes for the prosecution service. The first part consultation with the First Minister and the Deputy First Minister is an attempt to ensure cross-community support for the code of ethics that I hope will be proposed by the DPP. The Northern Ireland Human Rights Commission will ensure conformity with human rights and standards. There are further implications because the Equality Commission and the Human Rights Commission might include in that consultation non-governmental organisations and agencies. Enormous strength could derive from this if it is done well and handled properly.

I will not die at the ditch over the wording of the two amendments because I recognise that there are difficulties. They could be tidied up, but I want to put them on the record. I strongly urge the Minister to examine how the principles underlying them may best be applied. If he can give me such an assurance, I shall not press the amendment, but I shall wait for inspiration from him or hope that somehow I am able to raise that inspiration at a later stage.

Sylvia Hermon (UUP, North Down)

I am glad to be able to record that the hon. Member for Newry and Armagh and I have found ourselves in agreement this afternoon.

However, the agreement was, alas, only in part, and I should not want to build up false hopes. I shall give the good news first, and then come to the bad news.

Des Browne (Labour, Kilmarnock and Loudoun)

That is a nuance.

Sylvia Hermon (UUP, North Down)

That is right.

In paragraph 3.25 of the criminal justice review, the review team recommend that

''human rights issues should become a permanent and integral part of training programmes for all those working in criminal justice agencies, the legal professions and the relevant parts of the voluntary sector.''

On the basis of that recommendation I am happy to support the part of the amendment of the hon. Member for Newry and Armagh that refers to consultation with the Northern Ireland Human Rights Commission. Given my track record of criticism of it, that is a major advance on my part.

The bad news is that I am concerned by the reference to the First Minister and the Deputy First Minister. I am specifically concerned by it because of the terms of reference that the review team lays down in the agreement, which are usefully quoted on page 2. The review group was duty bound under its terms of reference to consider

''arrangements for the organisation and supervision of the prosecution process, and for safeguarding its independence.''

Quite frankly, I do not believe that it is appropriate that the First Minister and the Deputy First Minister—I notice that on this occasion they do not have to act jointly—should consult on the code for prosecutors when two MLAs are being consulted.

Paragraph (c) of the new subsection proposed by the hon. Member for Newry and Armagh concerns me because it is open-ended and too wide. It mentions

''any other person appearing to the Director to have an interest in the matter''.

I would like him to give some idea of the scope of the provision and of the people who are covered by that paragraph.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I welcome the hon. Lady's support for the consultation with the Northern Ireland Human Rights Commission. I take it from the UN guidelines that the role of prosecutor is very important. I welcome that. I note what the hon. Lady says about the First Minister and the Deputy First Minister. The reason why ''acting jointly'' is not included is because theirs is a passive role. The function rests with the DPP. The hon. Lady said that she would go home and read the Northern Ireland Act 1998 carefully and note whether, when there was reference to passivity, it was different from that which was a function. I know that she is going to score an interesting point now; let us hear it.

Sylvia Hermon (UUP, North Down)

I gave an undertaking that I would refresh my memory about the agreement. My concern was that subsequent legislation might have extended its meaning. When I read the agreement, I noticed that it said:

''Key decisions requiring cross-community support will be designated in advance, including election of the Chair of the Assembly, the First Minister and Deputy First Minister, standing orders and budget allocations.''

Those are very definite categories in which there should be cross-community support. In other cases, such decisions could be triggered by a petition of concern brought by a significant minority of Assembly Members. Nowhere in the agreement, which I have signed and which the vast majority of people supported in referendums both north and south, are the First Minister and the Deputy First Minister tied together at the hip.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank the hon. Lady for her contribution. She is right about the decisions of the Assembly. The decisions that are to be made with cross-community support are specified as those on the election of the First Minister and the Deputy First Minister, budgetary arrangements and the human rights content of the agreement. There may be another.

My crucial point is that the functions of the First Minister and Deputy First Minister are joint. What comes as a more terrible shock is that they are not only joint, but joint and equal. That takes some people by surprise, but that is what is in the legislation, which was written not by the First Minister and Deputy First Minister, but by Parliament. That is the reality, and if we are to get to grips with the essence of the Bill and other legislation, we must realise that they hold a joint equal office, reflecting the joint equal decision-making process and what was known in the negotiations as parallel consent.

The hon. Lady asked about other organisations. I immediately think of the Equality Commission for Northern Ireland, the Northern Ireland Human Rights Commission and several others that may be able to make an input. The Probation Board for Northern Ireland may be another. All those organisations need to be explored, and I agree with the hon. Lady that there is an open-ended quality about the amendment that encourages me not to press it to a vote at this stage.

Crispin Blunt (Conservative, Reigate)

I sympathise with my hon. Friend the Member for North Down in principle, if not entirely. She is right that the First Minister and Deputy First Minister should not have a role in the proceedings precisely for the reasons that she adduced about political independence. That he must consult with

''any other person appearing to the Director to have an interest in the matter''

is the ''Uncle Tom Cobbleigh and all'' paragraph. One must trust the director a little. If one is simply unable to name the people with whom he will have to consult, they are already in clause 42(3), which requires him to consult with the Attorney-General and the Advocate-General before bringing the code of ethics into play or altering it. That strikes me as the appropriate balance, as the Advocate-General will remain accountable in this country, and the Attorney-General will be able to answer questions in the Assembly. However, that also means that the director retains his independence in framing the code.

It is not appropriate to name the Northern Ireland Human Rights Commission above and beyond many other bodies that also have a legitimate interest. One must assume that when the director frames the code, he will consult where he considers it appropriate to do so. Those whom he consults are likely to be appropriate consultees. I depart slightly from the hon. Lady's view in that it would be incorrect to put the Human Rights Commission on a pedestal that was equivalent to the Attorney-General and the Advocate-General.

My views on amendment No. 204 offer more comfort to the hon. Member for Newry and Armagh. The director should have regard to the United Nations guidelines on the role of prosecutors. It is appropriate for that to be included in the Bill, so that the Director of Public Prosecutions will take that as his starting point in framing the code of ethics. Combining that with the requirement to consult with the Attorney-General and the Advocate-General for Northern Ireland meets the aims of the Bill. If the hon. Gentleman wants to press amendment No. 204 to a vote, he will have my support. He does not have my support for amendment No. 203.

Des Browne (Labour, Kilmarnock and Loudoun)

When I first spoke to the amendments, my original view was that the provision for consultation with the Attorney-General and Advocate-General, to which the hon. Member for Reigate referred, was sufficient as set out in clause 42. Like the hon. Gentleman, I thought that it would not be appropriate to be more prescriptive on consultation at this stage. However, I have considered the provision further and, for the reasons that all hon. Members have articulated in the debate so far, I can see a role for the Northern Ireland Human Rights Commission in the consultation. The hon. Member for Reigate can also see such a role for the commission in the consultation, which was the thrust of his argument--until he explained that he did not think that it was appropriate because it would put the commission on a par with the Attorney-General and the Advocate-General. I accept that point. I can see a role, but for the reasons that have already been articulated, I cannot see a role for the First Minister and Deputy First Minister in this process. I certainly cannot see a role for an unlimited group of people who are not capable of definition.

On amendment No. 204, the Government endorse recommendation 50 of the review that the code of practice and ethics should be based on the UN guidelines on the role of the prosecutor. The guidelines will provide an invaluable benchmark for standards in the prosecution of offences. It is inconceivable that the Director of Public Prosecutions would not consider such an instrument when he is compiling a code of practice or ethics. Whether it would be appropriate or necessary to put that—

Sitting suspended for a Division in the House.

On resuming—

It being after Seven o'clock, The Chairman proceeded, pursuant to Sessional Order D [28 June 2001] and the Orders of the Committee [29 and 31 January 2002], to put forthwith the Question already proposed from the Chair.

Question put and negatived.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Clause 38 ordered to stand part of the Bill.

Clauses 39 to 44 ordered to stand part of the Bill.

New Clause 2Provision of reasons not to institute or continue proceedings

New Clause 2 - Provision of reasons not to institute or continue proceedings

Schedule 8 - Chief Inspector of Criminal Justice

Crispin Blunt (Conservative, Reigate)

I do not have many issues to raise, but I want to follow up the question of payment. The Secretary of State will presumably appoint the chief inspector both before and after justice is devolved. Paragraph 2 of schedule 8 places a duty on the Secretary of State to pay the chief inspector's salary, allowances and pensions. Under paragraph 3 the chief inspector employs staff subject to the Secretary of State's approval.

After justice is devolved, I assume the responsibility for paying the chief inspector will remain with the Secretary of State and not be given to the Legislative Assembly. Will the Minister confirm that, and explain how to differentiate the provisions under paragraph 2 and others where the responsibility for payment devolves? Does the responsibility for food and rations, payment of the chief inspector and so forth remain with the Secretary of State? If it is devolved, why is that, given that the Secretary of State makes the appointment and is responsible to this place rather than to the Legislative Assembly? If the devolved Administration assumes responsibility for budget provisions and payments, the Secretary of State will be taking decisions about the size of the chief inspector's salary for which he is not accountable to the Legislative Assembly. An apparent contradiction in accountability arises. Will the Minister make the position clear?

Des Browne (Labour, Kilmarnock and Loudoun)

I shall endeavour to do so in response to that reasonable question. Where functions do not come into effect until post-devolution, the Bill clearly states that the First Minister and Deputy First Minister have responsibilities for the aspects of the schedule that the hon. Gentleman highlighted. Where the Government intend to put a chief inspector in place before devolution, the Bill establishes the responsibilities of the Secretary of State. When the functions are subsequently devolved by order under the Northern Ireland Act 1998, the relevant Minister in the Executive rather than the Secretary of State will be responsible. The order achieves the devolution.

As the chief inspector is expected to be appointed before devolution, for the period leading up to devolution, the schedule details the Secretary of State's responsibilities and the relationship between the chief inspector and the Secretary of State. When matters are devolved, the order will transfer functions to the relevant devolved authority. I hope that that is clear. The function of appointing the chief inspector will be devolved. Although the first chief inspector may be appointed by the Secretary of State, the function of appointing subsequent chief inspectors will be devolved, as will all the other functions spelled out as belonging to the Secretary of State.

Crispin Blunt (Conservative, Reigate)

That is extremely clear. Am I correct in my understanding that none of the references in the Bill to the Secretary of State will survive if the entire justice function is devolved? I have been under the impression that some residual functions in the Bill have been left with the Secretary of State. I may have misunderstood the position and misdirected myself, but I have been anxious that we make those responsibilities clear in the Bill. Will the Minister confirm that after devolution references to the Secretary of State will be replaced by First Minister and Deputy First Minister, usually acting jointly?

Des Browne (Labour, Kilmarnock and Loudoun)

That is a demanding question to ask even a Minister about a Bill of this size. However, I can answer it in respect of the principles involved. When

responsibility is devolved, what the hon. Member for Reigate suggests is by and large correct. In the event of an interregnum before devolution, that will not apply to all the references in the Bill to the Secretary of State. I shall check that. At this stage of consideration of a Bill of this size, I am not prepared to answer categorically. However, the principle that I enunciated and that the hon. Gentleman kindly said was clear applies to all cases in which something will change before devolution and devolution follows. That is the best that I can do at the moment. That does not apply to the Secretary of State's functions in the excepted field or the reserved field. Functions in the reserved field that relate to criminal justice will, by and large, be devolved.

Crispin Blunt (Conservative, Reigate)

I am grateful for that clarification. I am left with just a hint of opaqueness in my understanding of precisely which areas will be devolved and which will be reserved. I appreciate that the Minister cannot give a comprehensive answer now, but I invite him to write to member of the Committee well before Report, so that there is time to table amendments if the position is unclear and hon. Members want to change responsibilities between the First Minister and Deputy First Minister and the Secretary of State. The Bill needs to be clear about which areas automatically relate to devolution of justice and which do not, and at the moment it is not.

Des Browne (Labour, Kilmarnock and Loudoun)

I should make myself clear, because I am not sure that the last few sentences of my contribution were exactly enlightening. All references to the Secretary of State in the schedule relate to the reserved field, which will be devolved when criminal justice is devolved. The hon. Member for Reigate can replace the Secretary of State in the schedule with the devolved Minister, although I am not in a position to say who that will be since other provisions in the Bill imply that other decisions must be made.

Where the Bill refers to the Secretary of State in the excepted field—off the top of my head, I am not sure where that happens, but I will have it checked—those responsibilities will not be devolved. Any reference to the Secretary of State in the context of excepted matters will continue to be read as a reference to the Secretary of State. I am more certain in myself that that is clear now; whether others understand it is a matter for them.

Crispin Blunt (Conservative, Reigate)

I am sure that the point is startlingly obvious, but when one reads the Bill, how can one identify what is excepted and what reserved?

Des Browne (Labour, Kilmarnock and Loudoun)

This is becoming a ping-pong match. The hon. Gentleman will have to read another Act of Parliament. The reader needs to know his way around the Northern Ireland Act 1998. It is the same in Scotland: to work out what is devolved and what reserved, the reader has to know his way around the Scotland Act 1998. By referring to the Bill and the

Northern Ireland Act, the hon. Gentleman will be able to answer his question. He will have a good Wednesday doing that.

Question put and agreed to.

Schedule 8 agreed to.

Clause 46 - Functions of chief inspector

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 31, in page 26, line 30, at end insert—

(k) the police ombudsman for Northern Ireland.'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take the following amendments: No. 181, in page 26, line 30, at end insert—

'(k) Consignia,

(l) the Police Ombudsman for Northern Ireland,

(m) the Financial Services Authority,

(n) the Inland Revenue.'.

No. 188, in page 26, line 42, at end insert—

'(5A) An inspection carried out by the Chief Inspector of Consignia, the Financial Services Authority or the Inland Revenue may cover only functions relating to the Criminal Justice System in Northern Ireland.'

Crispin Blunt (Conservative, Reigate)

The amendment is straightforward. I look forward to hearing arguments from the hon. Member for North Down about the inclusion in the chief inspector's remit of Consignia, the Financial Services Authority and the Inland Revenue as well as the police ombudsman for Northern Ireland. I approach the hon. Lady's amendments with an open mind, and if her arguments are as convincing as I expect them to be, I shall withdraw my amendment in order to allow hers to be put to the Committee.

The major issue before us is the role of the police ombudsman. It is important that she and her office should be brought within the chief inspector's remit. The reasons for that are blindingly obvious. The ombudsman has an important role in the administration of justice in Northern Ireland. Regrettably, she got off to a somewhat unhappy start in her relationship with the Chief Constable and the controversy over her investigation into the Omagh bombings. Clearly, that is to be regretted. The Committee have debated whether to give the police ombudsman additional responsibilities, and I have tabled amendments to that effect. If the ombudsman is to have the important role that she has been given—and perhaps an enlarged role as time goes on—it will be necessary to have some form of inspection to ensure that that office is performing its functions in, at the very least, an administratively effective and competent fashion. That is one of the remits of the inspectorate.

It would seem odd that the ombudsman should stand outside the chief inspector's remit. Given all the other bodies that will be subject to the inspectorate, I should hope that the ombudsman and her office would not object to some form of outside inspection of how they carry out their role. That is important. There is also a sense of fairness. Because the role given to the police ombudsman is important in the criminal justice

area, there is concern, certainly within the Police Service for Northern Ireland, that it may be possible for that office to behave in a perhaps capricious fashion. It is terribly important that that notion is corrected. If there is some sense in which the police ombudsman can be subject to a set of standards and inspection by the chief inspector, that would help to address the issue of the professional competence of the ombudsman and her staff.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I suggest that the legislated-for role of the police ombudsman would have all credibility removed from it if the amendment were carried. It would render the office inoperable. I do not suggest that the hon. Gentleman wants that, but perhaps some people do. After all, who inspects the chief inspector? That is the logical question if the chief inspector is to inspect the ombudsman. Finally, no one from the ombudsman's office is present to refute any allegation or imputation against it. I take it on myself to do so—

Peter Pike (Labour, Burnley)

Order. This is an intervention and they must be brief.

Crispin Blunt (Conservative, Reigate)

The answer as to who inspects the chief inspector is that he is accountable to those who appointed him—the Secretary of State before devolution, and the First Minister and Deputy First Minister thereafter. They in turn are held accountable by Parliament or the Assembly. I have half a notion of the Latin phrase for ''Who guards the guardians'', but I shall not try it.

The hon. Gentleman was quite right to say that this issue relates to confidence in the office of the ombudsman. I do not think that it is appropriate for the ombudsman to sit unregulated outside and above the whole criminal justice framework. Because it has an investigatory function, it is necessary that certain standards of investigation are adhered to. It is a unique role, and the ombudsman and her office are finding their way within the law as laid down. It is necessary, precisely because we need confidence, to be able to say that the standards of conduct in the ombudsman's office are subject to some outside vetting and inspection.

That is why I have moved the amendment. The same principle applies to other bodies that have roles in the criminal justice field and there are limited roles for the groups named in the amendments tabled by the hon. Member for North Down. As I have said, I have an entirely open mind about supporting those. If those organisations have a role in criminal justice, they should come within the purview of the chief inspector.

Sylvia Hermon (UUP, North Down)

To enlighten the hon. Gentleman, I have included Consignia, the Financial Services Agency and the Inland Revenue because I have it from the most reliable of sources—the House of Commons Library—that all those bodies have criminal investigatory powers. Consignia, for example, can investigate postmen who might dispose of letters. I mean, of course, no criticism of postmen.

Crispin Blunt (Conservative, Reigate)

The hon. Lady gives us a preview of the remarks that she will make on her amendments. She has gone most of the way towards convincing me that her amendment is better than mine. It properly addresses the issue of who has a prosecutorial or investigatory role in the criminal justice system, and it is clear to me that those bodies should come within the ambit of the chief inspector.

The purpose of the chief inspectorate is to give people confidence in the institutions that will be subject to its attentions. It would be good for the ombudsman to be brought within the ambit of the inspectorate because that would reinforce the confidence of the whole community, especially of the police, that proper standards were being applied. I know that the Police Service for Northern Ireland, at representative level in organisations such as the Police Federation and among the chain of command, is anxious for the amendment to be made. Given the delicate nature of morale in the police service, the amendment would be good for the ombudsman and for the police, because it would reinforce their confidence that the system by which the Police Service for Northern Ireland is be judged will operate fairly.

Sylvia Hermon (UUP, North Down)

I rise to speak to amendments Nos. 181 and 188.

I considered the functions of the chief inspector as far back as last autumn, so my comments predate Omagh and everything that has happened since then.

Des Browne (Labour, Kilmarnock and Loudoun)

I am sure that no one doubts the hon. Lady's word, but I can confirm that I had a conversation with her before the most recent controversy about these issues, as matters of principle rather than matters relating to any individual.

Sylvia Hermon (UUP, North Down)

I am grateful to the Minister for putting that on the record because that is how matters stood last autumn, and that remains the case.

I am concerned that the functions of the chief inspector should be set out in a comprehensive list that includes all organisations that have criminal investigatory powers. Last autumn, I suggested that the office of the police ombudsman should be included in the list, which already includes Forensic Science, Northern Ireland, the State Pathologist's Department, the Police Service for Northern Ireland, the Probation Board for Northern Ireland, health and social services boards, health and social services trusts and the Compensation Agency. It is a long list, but my amendment would make the list comprehensive. Let us get the Bill right now instead of waiting and having to amend it.

I know that the Minister is likely to draw my attention to clause 46(6), which states:

''The Secretary of State may by order amend subsection (1) by—

(a) adding any organisation having a role in the criminal justice system in Northern Ireland...

(b) omitting an organisation, or

(c) altering the description of an organisation.''

I am aware that that provision is available to the Secretary of State, but I thought that it was intended to cover organisations that might be created in the future.

The current position is that Consignia, the Financial Services Authority, the Inland Revenue and the police ombudsman for Northern Ireland all have criminal investigatory powers. To remind hon. Members who may not have been present when I raised the matter with the Minister on Second Reading—although given their great interest in Northern Ireland and the reform of the criminal justice system, I hope that they were present—he said:

''That issue has exercised the hon. Lady for some time and she and I have discussed it previously. I can give an assurance that the organisations that will be subject to inspection by the inspectorate will be kept constantly under review. That is why the clause has been drafted as it has . . . All organisations that have criminal investigatory powers and powers to prosecute in Northern Ireland are being considered for incorporation in the list.''—[Official Report, 21 January 2002; Vol. 378, c. 690.]

We have the opportunity to make the list comprehensive. Amendment No. 188 makes it obvious that the power of the chief inspector to investigate is limited to the criminal justice functions that might be performed by Consignia, the Financial Services Authority and the Inland Revenue. The wording is similar to that used for the limitation on the investigation into the health and social services boards and health and social services trusts. It is not a free-for-all; there are defined limitations. I want the Bill to be right. We have the opportunity—let us make it comprehensive.

Patsy Calton (Liberal Democrat, Cheadle)

The hon. Member for North Down has made the point, but I would emphasise that it seems only right for any organisation with an ability to bring prosecutions or to investigate matters that could lead to a prosecution to be investigated by the chief inspector. Amendment No. 188 stipulates that the chief inspector should only investigate matters pertaining to Consignia, the FSA and the Inland Revenue if they relate to Northern Ireland, as the hon. Lady said. I support the amendments.

Des Browne (Labour, Kilmarnock and Loudoun)

This debate is important for a number of reasons, not least of which is that it gives me an opportunity to dispel some of the concerns of the hon. Member for Newry and Armagh about the functions and roles of the chief inspector. It is a pity that the debate is taking place in extra time because, for example, the hon. Member for Reigate is accompanied only by his Whip, the Liberal Democrats have only 50 per cent. representation and the hon. Member for East Londonderry (Mr. Campbell) is not here. His absence particularly concerns me because of the lengths to which I went to ensure that his party was represented in Committee in response to what I thought was a reasonable concern that it had not hitherto been represented in debates and had a contribution to make. It is a pity that the hon. Gentleman's party has not taken up that opportunity, except to put one minor question.

The issue before us is important. The other point—

Crispin Blunt (Conservative, Reigate)

Will the hon. Gentleman give way?

Des Browne (Labour, Kilmarnock and Loudoun)

No. The hon. Member for Reigate might want me to give way, or to add to what he has to say, when he hears my comments. This is a helpful opportunity for debate. It is unfortunate that the hon. Gentleman used it—for blatant political reasons—to make a pejorative remark about the ombudsman, although he cannot possibly have had the opportunity to read in full either the ombudsman's report or the Chief Constable's response to that report. He cannot have done so since they are not in the public domain and are not available to him.

I have had that opportunity. Even having done so, I find the complexity of the matter and the sensitivity of the issues to be such that I would not make any qualitative remark about the report until I had given it considerably more thought. I say that with a background of professional involvement in investigations that have ranged over a year and have produced detailed reports, such as those in relation to Omagh. It is a great pity that people take it upon themselves to make ill-informed, pejorative and partial remarks. They ought, first, to consider the effect on the people of Omagh, who were the victims of that atrocious—

Crispin Blunt (Conservative, Reigate)

Will the hon. Gentleman give way?

Des Browne (Labour, Kilmarnock and Loudoun)

No, I will not give way. The hon. Gentleman should content himself. He will get an opportunity to come back, but I shall not give way at this point. He raised the issue and then sat down. I deplore the fact that he raised it in this context, especially as he could not have informed himself in sufficient detail to be able to reach the judgment that he offered, and I deplore the fact that he did it apparently without regard for the effect that it would have on the people most directly affected. I say publicly that I will deplore it if he does that again. We should all think long and carefully about what we do and say on such important matters. I am not taking sides. I want to be absolutely objective. The Secretary of State will make public his views on the matter in due course. It helps not a jot to throw such spanners into the works. I have no doubt that the hon. Gentleman will want to share that part of Hansard with certain people, but he can share this bit as well.

The rest of the debate is in Hansard.