Justice (Northern Ireland) Bill

Public Bill Committee, 7 February 2002.

Standing Committee F

Clause 46 - Functions of Chief Inspector

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

I beg to move amendment No. 290, in page 26, line 15, after 'inspections', insert

'of the efficiency and effectiveness'.

This addition would make it clear that the role of the chief inspector of criminal justice was to inspect the various criminal justice agencies to ensure that they carried out their functions efficiently and effectively. As it stands, the Bill is somewhat vague about the inspector's role and about the inspections that he should carry out. The amendment would establish parameters within which he could carry out his functions, and similar parameters define the role of other inspectorates. For example, section 41(2) of the Police (Northern Ireland) Act 1998 empowers Her Majesty's inspectorate of constabulary to inspect and report on the efficiency and effectiveness of the Police Service of Northern Ireland. The amendment would tidy the clause up and give it more focus.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to my hon. Friend the Member for Newry and Armagh (Mr. Mallon) for moving what I believe is intended to be a helpful amendment. However, although the sentiments behind it are entirely consistent with the review, it could have unfortunate unintended consequences.

One of the chief inspector's responsibilities is to inspect the Prison Service, but prescribing his role in the way set out in the amendment would prevent him from reporting on the condition and treatment of prisoners and children who were detained in juvenile justice centres or secure accommodation. That is just one example, but I am concerned that the range of bodies to be inspected is such that there may be others.

We must ensure that we do not inadvertently preclude the chief inspector from properly carrying out his functions in relation to all the bodies on the list. I would, therefore, be grateful if my hon. Friend would withdraw the amendment.

John Hayes (Conservative, South Holland and The Deepings)

On a point of order, Mr. Conway. I am sorry to interrupt the Committee's proceedings, but when we last met there was an unfortunate exchange between the Minister and my hon. Friend the Member for Reigate (Mr. Blunt)—you were not in the Chair, although I know that you follow proceedings with

almost legendary diligence. The Minister made allegations about what my hon. Friend had said, and the wiser members of the Committee agreed that my hon. Friend should withdraw his remarks if the record bore out those allegations and that the Minister should do likewise if it did not. I was waiting for the Minister to speak, in the hope that he would withdraw his allegations.

The Minister also made remarks about the possible accuracy of the record:

''I will of course read the record. However, I heard what I heard, and words on the page do not always bear the implications that they clearly bore''.—[Official Report, Standing Committee F, 5 February 2002; c. 227.]

That rather casts doubt on the writers of the Official Report, which is unfortunate and something which I think the Minister will regret.

I know that the Minister is a reasonable and fair man, and that a reasonable and fair spirit has allowed the Committee to be productive. He has now had a chance to read the record, and, with your indulgence Mr. Conway, I simply wanted to give him the opportunity to put matters straight so that we could return to the equanimity and happy state that we previously enjoyed and which I hope that we shall enjoy again.

Derek Conway (Conservative, Old Bexley and Sidcup)

I read the Hansard of the sittings that I do not chair, to make sure that my co-chairmen and I are at least ploughing the same furrow—an unusual thought. The Committee seemed to be getting interestingly frisky towards the end of the last sitting. As far as I can see, the difficulty occurred in columns 226 and 227, with the word ''pejorative''. However, I took the precaution of going to the Library to check the Oxford English Dictionary, and I found that the word was not unparliamentary. It is not a word that the Minister could be required to withdraw. It may be considered hurtful, but it is not considered unparliamentary.

With regard to the Minister's observations on the Official Report, I am not sure that it was his intention to question it. That is not how I interpreted them, but if I misunderstood, I am sure that the Minister will put me right. I consider that I have no cause to require the Minister to withdraw anything he said. He may wish to add some remarks on a point of order, which I would take, but I have no grounds for requiring him to withdraw any remarks he made in columns 226 and 227.

John Hayes (Conservative, South Holland and The Deepings)

Further to that point of order, Mr. Conway. I will not detain the Committee for very long. I accept entirely what you said about the Minister not needing to withdraw remarks in the parliamentary sense. However, given the way that the Minister has conducted himself in the Committee thus far, and the positive and constructive atmosphere that has prevailed, I felt it was appropriate at this juncture to smooth things over. I hope that it is possible, without resort to the formal procedure of withdrawing remarks, to satisfy my hon. Friend the Member for Reigate that his honour and integrity have not been brought into question by the Minister.

Des Browne (Labour, Kilmarnock and Loudoun)

Further to that point of order, Mr. Conway. If I say a few words we may be able to move on from the matter in the spirit described by the hon. Member for South Holland and The Deepings (Mr. Hayes). I accept and recognise his description of the way that the Committee has conducted its affairs up to now. There is no question that the temperature of discussion was raised in the context referred to by the hon. Gentleman.

I have read the words that were said. You were correct to point out, Mr. Conway, that there was no suggestion that the Official Report would not properly record what had been said. Having read the words, and without requiring anybody to get into interpretations, definitions or descriptions, I am happy to put on the record that I accept that the hon. Member for Reigate did not intend that the words he used should have the meaning that I ascribed to them.

At that time, I considered the hon. Gentleman's words, in the wider context of what was going on in Northern Ireland, to be particularly unfortunate and capable of being so interpreted. However, I am happy to accept that the hon. Gentleman did not intend that. If these words restore the honour of the hon. Member for Reigate to the extent that it may have been taken away by something that I said, I hope that we can leave the record as it is without withdrawing anybody's remarks.

Derek Conway (Conservative, Old Bexley and Sidcup)

I am grateful to the Minister and the hon. Member for South Holland and The Deepings for clarifying that matter. Committees do, from time to time, become excitable, and that is perfectly understandable. However, the consideration of the Bill has in general been reasoned, so let us hope that we can proceed on that basis.

Crispin Blunt (Conservative, Reigate)

On a point of order, Mr. Conway. To bring the matter to a conclusion, I am grateful for the Minister's remarks. I will go on accepting entirely what he says, and I hope that he will continue to accord me the same privilege.

Derek Conway (Conservative, Old Bexley and Sidcup)

We can now return to the Minister's contribution.

Des Browne (Labour, Kilmarnock and Loudoun)

I had only one sentence left to deliver, but it may turn into two or three now. I was requesting that my hon. Friend the Member for Newry and Armagh withdraw his amendment. However, I was also offering him the opportunity to continue his debate with me, either in the Committee or outside it, between now and the remaining stages of the Bill's passage. I would like to find out whether he can persuade me that what I fear would be the unintended consequences of his amendment would not, in reality, occur.

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

I thank the Minister for his contribution. If he would suggest what some of the unfortunate consequences might be, it would help me to decide whether to pursue the matter.

Des Browne (Labour, Kilmarnock and Loudoun)

I am anxious to curtail the debate, which is on comparatively narrow matters, but I will make a further contribution. In my short remarks, I

suggested that the amendment would prescribe the inspector's role. I gave the example of the reporting of conditions and treatment of prisoners or children detained in juvenile justice centres or secure accommodation following an inspection by the Prison Service. I also suggested that there might be other examples due to the extensive nature and diversity of the bodies, but that that example was sufficient for me because it involved children. I hope that that helps my hon. Friend.

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

I thank the Minister. I know of his interest in the Bill's dealings with young people, and that his concern is genuine. I am not convinced that the words ''efficiency and effectiveness'' would have detrimental consequences, but I want to have further discussions with the Minister, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Patsy Calton (Liberal Democrat, Cheadle)

I beg to move amendment No. 157, in page 26, line 31, leave out 'must not' and insert 'may choose not to'.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this we may discuss amendment No. 289, in page 26, line 31, leave out 'must' and insert 'need'.

Patsy Calton (Liberal Democrat, Cheadle)

I was interested in the previous amendment, and was concerned that it might reduce the abilities and powers of the chief inspector. Amendments Nos. 157 and 158 are intended to probe the Minister on the powers of the inspector. We want to find out exactly how the Government envisage his role, as there seems to be some confusion as to how he should carry out his duties.

The inspector's function should be either to consider strategically all the organisations listed in subsection (1)—to do so properly, he would need the ability to investigate them all as he saw fit—or, as is suggested under amendment No. 158, to investigate only those matters that have been brought to his attention. Such matters are likely to come from individual cases, so he would need to be able to investigate such cases. The two amendments stand together.

The chief inspector's hands seem to be tied. As a matter of course, he cannot investigate all organisations listed in subsection (1) as he sees fit, and he cannot investigate in individual cases.

Derek Conway (Conservative, Old Bexley and Sidcup)

The hon. Lady referred to amendment No. 158, in clause 47, page 27, line 28, leave out subsection (a), and I will happily add that amendment to the group for ease of debate. I trust that the Committee is content with that.

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

I fully support the amendment. Amendment No. 289, which I tabled, attempts to achieve the same purpose. Amendment No. 157 is probably better, and I support it because although it is essential that the role of chief inspector be defined, he must at least have the opportunity to examine issues and should not be tied by the absolute term ''must.'' The wording of the amendment ensures that. It should be considered in conjunction with amendment No.

158, which in many ways is consequential on it. I recognise the good reasons for the Liberal Democrat amendment, and I support it.

Des Browne (Labour, Kilmarnock and Loudoun)

In amendments Nos. 157 and 289, hon. Members seem to want to give the inspector the discretion to inspect an organisation even if the inspector is satisfied that it is adequately inspected already. In the Government's view, the criminal justice agencies in Northern Ireland should not be overburdened with unnecessary bureaucracy. Nothing more should be imposed on an organisation that is being inspected already. Therefore, I ask the hon. Member for Cheadle (Mrs. Calton) to withdraw the amendment.

Amendment No. 158 would remove subsection (a) of clause 47, which would remove the bar on inspecting individual cases. In our opinion, the review did not intend to confer on the inspectorate the power to inspect and review individual cases. That would profoundly change the nature of the organisation.

Patsy Calton (Liberal Democrat, Cheadle)

Removing the ability to investigate individual organisations might mean that an inspector could not investigate in the round, as he may want to. Without that ability, he might not be able to access information or make clear information that would be germane to any case that he made in the round.

Des Browne (Labour, Kilmarnock and Loudoun)

I accept the hon. Lady's point that the inspector may not be able to inspect regimes, such as that involved in the detention of children, without considering the circumstances of individual cases. However, in my view, the Bill does not preclude the inspector from considering actual cases—I use that phrase advisedly—as opposed as individual cases. He can consider actual cases, which may be sampled at random, to examine the operation of a system in practice. Giving him the power to inspect individual cases would have profound implications for, and profoundly change the nature of, the institution that we want to construct.

The review framed its recommendations on the inspectorate so as to ensure good systems and cost-effectiveness, as my hon. Friend the Member for Newry and Armagh emphasised in the discussion on an earlier amendment. There is a clear distinction between this type of inspection and a complaints authority's or ombudsman's function. That distinction is widely recognised and practised by other inspectorates. For example, separate bodies in England and Wales deal with the inspections of the police and complaints against them in individual cases. That regime will exist in Northern Ireland, too.

I am sure that the hon. Member for Cheadle did not intend some of the more far-reaching consequences of the amendment. If she were suggesting, for example, that the inspectorate should be able to review controversial prosecutions as individual cases, that would make for a different debate. However, I suspect that she is not suggesting that, and that those who support her amendment are not either. That would contradict the review's recommendations on an

independent prosecution service, for example. The inspector already has a challenging role to ensure appropriate standards within the system and that the system works effectively, so that organisations provide best value. It would not be helpful to expand the role of the inspector into this area, which in any event is not his business, so I urge the hon. Lady to withdraw the amendment.

Crispin Blunt (Conservative, Reigate)

I strongly support the Minister in resisting all the amendments. The first amendment tabled by the hon. Lady would result in a lack of clarity in the inspection regime, and the possibility of being liable to inspection by two organisations should be resisted. If it is clear to the inspector that an inspection has been adequately carried out by another organisation, his duty should be as in the Bill, which requires that he ''must not carry out'' a further inspection. That position will be clear to organisations that are being inspected. An inspection is a testing time for any organisation, and its exposure should be minimised to that which is necessary.

Amendment No. 158, which would allow inspections into individual cases, could be thoroughly pernicious, particularly in the case of the Director of Public Prosecutions. The inspectorate should restrict its role to that of general inspections. Allowing individual inspections would lead the inspectorate into areas which the hon. Member for Newry and Armagh was attempting to resist in his previous amendment by making it clear that inspections should be for the sake of ''efficiency and effectiveness''. Sometimes individual cases should be reviewed, and it may be appropriate for people to appeal if they think that they have been on the receiving end of injustice. It should not be for the chief inspector of criminal justice to act as the board of appeal in such cases, which is what the hon. Lady's amendment would lead to, although I am sure that that is not her intention. It should be clear to individuals what their line of appeal should be, and that should not be to the chief inspector.

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

There was no intention on my part to create a situation in which the chief inspector could surf through the areas suggested by the hon. Member for Reigate. However, an urgent issue of public concern could arise in which the inspector might consider that an inspection was justified, even though the agency had already been inspected by another inspectorate. If the inspector cannot make such a judgment, he will be in a weak and difficult position.

Des Browne (Labour, Kilmarnock and Loudoun)

That is why ''adequate'' appears in clause 46(2).

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

I take the Minister's point. However, I do not believe that changing the wording from ''must'' to ''need'' would have the detrimental effect that is envisaged. It makes good sense.

Patsy Calton (Liberal Democrat, Cheadle)

I shall deal with the last point first. It could be argued that the phrase ''must not carry out inspections'' may lead to a situation in which the chief inspector may not consider a matter that gives him cause for concern. In such circumstances, some of the sense of these amendments is needed. I accept the

Minister's assertion that it is not the intention—it is not our intention, either—to insist that the chief inspector should re-examine individual cases that have been adequately inspected. However, the inspector might have cause for concern, and subsection (2) might be used to argue that he has no jurisdiction because adequate arrangements are already in place. Arrangements may be adequate in the round, but may not be adequate in relation to an individual case on which the inspector's hands will be tied.

The Minister's distinction between actual and individual cases left me somewhat confused. I dare say that it has some legal meaning, but it escapes me, and I should be grateful for some further explanation. If I understood the distinction, I might agree with the Minister.

Des Browne (Labour, Kilmarnock and Loudoun)

If it is of any help to the Committee, the distinction was between anonymised cases--which may be helpful to the inspector in working through a regime--and individual cases that refer to a particular personality, which we are trying to avoid.

Patsy Calton (Liberal Democrat, Cheadle)

I am happy to accept that explanation, but I still believe that either one of the amendments to subsection (2)—amendment No. 157 or amendment No. 289—should be accepted to give the chief inspector some flexibility to reconsider cases if he deems it appropriate.

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. So that I can be clear about the hon. Lady's intentions, does she seek leave to withdraw amendment No. 157 or to divide the Committee? If she seeks to withdraw the amendment, we can still proceed to a Division on amendments Nos. 289 and 158, if that is the wish of other hon. Members.

Patsy Calton (Liberal Democrat, Cheadle)

I think that we should go ahead with amendment No. 157.

Question put, That the amendment be made: —

The Committee divided: Ayes 3, Noes 17.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 189, in page 27, line 5, at end insert—

'(6A)No order shall be made under subsection (6) above unless the Secretary of State has consulted the Chief Inspector of Criminal Justice.'

It is nice to be able to welcome you back to the Chair this morning, Mr. Conway.

The amendment would oblige the Secretary of State to consult the chief inspector of criminal justice before making an order that added, subtracted or otherwise altered the list of organisations set out in subsection (1)(a) to (d). I consider it appropriate that the Secretary of State should have the confidence and support of the chief inspector when he makes such changes. In that context, I draw the Committee's attention to clause 47(7), which states:

''The Secretary of State may require the Chief Inspector to provide advice in relation to an organisation specified in section 46.

If the Minister can confirm that the word ''advice'' includes consultation with the Secretary of State when he wants to alter, add or omit an organisation from the list in clause 46(1), I shall be happy to withdraw the amendment.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Lady's amendment is again intended to be helpful. The Government would expect the consultation that she seeks to enshrine in statute to take place in any event. I cannot imagine the relationship between the Secretary of State and the chief inspector being such that consultation would not take place during their normal communications if the Secretary of State proposed to deploy the powers given him under subsection (6).

I am grateful to the hon. Lady for her suggestion, but it is not necessary. My understanding of the word ''advice'' in clause 47 is that it is not intended to be used for the purpose that she suggests. I would be misleading her if I said that it was a catch-all provision. It would not properly include such consultation. The Government anticipate that the Secretary of State will consult the chief inspector. Who better could he go to for advice on whether or not an organisation should be included in the list of those to be inspected? With respect, it is not necessary to put such a provision in the Bill. With that reassurance, I ask the hon. Lady to withdraw the amendment.

Sylvia Hermon (UUP, North Down)

I thank the Minister for that explanation. May I tease out a little more information? What is meant by the word ''advice'' in clause 47(7)? Does it include consultation in relation to those organisations listed in clause 46?

Des Browne (Labour, Kilmarnock and Loudoun)

This provision is included because it is envisaged that, over time, the chief inspector will become the repository of a significant amount of information and knowledge about the organisations that he or she inspects. It seems sensible that the Executive officer—in this case, the Secretary of State—should require such a repository of information to give him advice on a range of matters.

Sylvia Hermon (UUP, North Down)

I am perfectly happy with that explanation. 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 want to make a brief inquiry, to assist me and other members of the Committee. My question could be asked under any of the clauses setting up the chief inspectorate of criminal justice. When the new institutions are set up, it may be necessary--this may have been overlooked--for them to be listed under schedules 2 or 3 of the Northern Ireland Act 1998 as reserved or excepted matters. Is clarification required in the Bill with regard to the chief inspectorate? Judicial appointments are excepted matters and the criminal law is a reserved matter, but the chief inspectorate sits between the two.

Des Browne (Labour, Kilmarnock and Loudoun)

I think the answer is that the chief inspector falls within provisions covering criminal justice in schedule 3. If the hon. Gentleman is content with that explanation concerning the chief inspectorate, perhaps we could revisit the matter in relation to other institutions as we proceed.

Question put and agreed to.

Clause 46 ordered to stand part of the Bill.

Clause 47 - Further provisions about functions

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

I beg to move amendment No. 288, in page 27, line 13, at end insert—

'(1A) The Chief Inspector must carry out an inspection of each organisation specified in subsection 46(1) at least once in every year, unless he is satisfied that the organisation is subject to adequate inspection by someone other than him.'.

This amendment is straightforward and would ensure that criminal justice agencies are subject to annual review and inspection, and provide the chief inspector with statutory direction in drawing up his programme. It would also allow him to exclude an organisation from his annual programme if he is satisfied that it has been adequately inspected by another inspectorate. In the interests of symmetry, I note that the annual inspection of the Police Service is specified under section 41(2) of the Police (Northern Ireland) Act 1988.

Andrew Turner (Conservative, Isle of Wight)

Prima facie, the amendment would not only provide belt and braces, but would ensure that the trousers cannot fall down. It is excessive and would require a level of inspection that is too detailed. To take an example from this side of the water, inspection of a single school of moderate size probably requires the chief inspector of schools to appoint a team of 10 to 12 inspectors, who spend four, five or more days in the school after substantial preparation by all the staff of the school, hold a lengthy debriefing, followed by a report, which has to be discussed with the school governors. The chief

inspector is moving away from a quadrennial inspection of schools because the burden of inspection on each school is too great. He is moving to a system of more inspections for those schools that need them most and fewer for those that need them least.

The hon. Gentleman proposes a system of inspection for each of the categories, except those inspected elsewhere—the Minister might indicate which those are. That will incur an immense cost, and cause immense disruption to the professional services specified in clause 46 (1)(a) to (j). The level of inspection is too demanding. Inspection is important, but it is not in the interest of those running the service, or their customers, to have that level of disruption imposed on them in their everyday work.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I have a question for the hon. Member for Newry and Armagh. My main concern is the creeping influence of blame culture. There is an advantage to codifying the work of the inspector. However, precedent and etiquette will establish that, and the amendment may be over-prescriptive. Taking into account the comments of the hon. Member for Isle of Wight (Mr. Turner), how does the hon. Gentleman respond to the concerns that the amendment would tie up the inspectors' resources in investigations that will probably turn up nothing, and that it assumes that organisations must be inspected to maintain probity? We should not send that sort of signal to those organisations or the public.

Gregory Campbell (DUP, East Londonderry)

I am perturbed that the investigations under clause 46(1)(a) to (j) are to be carried out on an annual basis. The police, the police reserve, the forensic science department, the state pathologists department, the Public Prosecution Service, the probation board, the Prison Service, the juvenile justice board, four health and social service boards, a multiplicity of health trusts and a compensation agency would all be inspected. I partly agree with the analogy of belt and braces that the hon. Member for Isle of Wight used, but the clause seems to provide belt, braces, staples, nails and anything else one could throw at it. I find the amendment superfluous.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful for the support for my resistance to the amendment. I say to the hon. Member for Isle of Wight, and I am not inviting him to intervene, that I did not understand his allusion to trousers, but perhaps he will explain it to me later. I may be developing a habit of misinterpreting contributions from the Opposition.

As the title of part 3 suggests, the institution is new. The level of scrutiny necessary for any organisation on the list, which may be expanded, will depend on the organisation. It may be appropriate for one organisation at a particular stage of development to have annual inspections, but inappropriate for another. Clause 47 will grant flexibility to the chief inspector, in consultation with the Secretary of State, to produce a programme of inspection that reflects the level of involvement that an inspector must have with any specified organisation. The clause provides for the approval of the programme of inspection through

consultation with the Secretary of State, and for the possibility, to which I have already alluded, that the list from the review of the organisations that need to be inspected is not exhaustive. For example, the powers that are exercised by Consignia, to which the hon. Member for North Down (Lady Hermon) referred, have a potential impact on the criminal justice system. The period between inspections will be determined by experience, consultation and the body of knowledge that will be built up in the inspectorate.

At this stage, it would not be helpful to require all such organisations to be inspected annually. That would be a disproportionate level of inspection for some, if not all, and would generate an unrealistic programme of work for the body. I urge the hon. Gentleman to withdraw the amendment.

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

Ironically, I agree with the view of the hon. Member for Isle of Wight. In many cases, requirements for inspections are taken to absurdity and there is a counter effect because some organisations, such as schools, spend more time preparing for inspections than doing what they should do, which is help young people to acquire knowledge.

That is not the objective of the amendment—far from it. It is to try to ensure that there is an adequacy of inspectorates other than the chief inspector. I am not sure that in all instances that is the case; we can be reasonably sure that it is not. One example touches on what was discussed yesterday, and I will not go back over it in detail. Some appointments to important areas are not subject to any form of scrutiny: for example, the chief electoral officer for Northern Ireland and the ombudsman, who are appointed by the Queen. Unless the position has changed recently—if it has, I shall be delighted to hear about it from the Minister—the chief electoral officer for Northern Ireland is not subject to scrutiny by a Minister, Parliament or anybody. That is not satisfactory. You may ask what that has to do with the amendment, Mr. Conway.

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. I was just about to do that.

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

I use the amendment to make a point. I am not totally satisfied that, until a problem is obvious, scrutiny or investigation—I do not like using those words—exist for many of the specified areas. A problem that is not dealt with in an ongoing fashion becomes an issue. If the amendment is formalised in legislation, it may have the effect of encouraging other means of inspections to take place more often and more effectively. Had it applied to some in the past, and had there been the possibility of pressure from the chief inspector asking, ''Have you done it and, if you haven't, when and how well will you do it?''—perhaps previous years' inspections had not been good—some problems may not have arisen. I am talking not about security problems, but about problems in other areas. I take the logic of the point, and in essence I agree with it.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The amendment helps us to establish an important principle. We are saying that the inspectorate must be proactive when there is a case for inspection, rather than inspecting organisations on an automatic, cyclical basis. I believe that I am right in thinking that a light-touch inspectorate would be brought in when it is suspected that there is something to be looked into.

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

I take that point.

Another valid argument that has not been made is that an inspectorate cannot deal with some things on a yearly basis, because it may take two or three years to reach a pattern of conclusions. I shall not pursue the amendment, but it was right to move it because it raises important points, not least the one that arose yesterday about the chief electoral officer. There are anomalies throughout the system for which the amendment would not cater and the Bill does not cater. When a chief inspector is appointed, I hope that it will not be a titular position. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 190, in page 27, line 18, after 'State', insert

'or the First Minister and Deputy First Minister, acting jointly'.

The amendment does not indicate a rush of blood to my head, but it provides a constructive illustration of where it would be appropriate for the First Minister and the Deputy First Minister to act jointly. However, if I understood the Minister correctly on Tuesday, there is a distinction between the pre-devolution position and the post-devolution position, and the amendment is therefore inappropriate.

Des Browne (Labour, Kilmarnock and Loudoun)

On devolution of the criminal justice system, we would transfer those functions by a transfer of functions order under the Northern Ireland Act 1998. The distinction that the hon. Lady has made is entirely correct.

Sylvia Hermon (UUP, North Down)

With that clarification, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 ordered to stand part of the Bill.

Clause 48 - Powers of inspectors

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 191 page 27, line 42, at end insert—

'(ba) any person to state, to the best of his knowledge and belief, where any such document is to be found, or'.

I enjoy the exercise because I do not get it in any other shape or form, Mr. Conway.

The chief inspector of criminal justice should be able to require three things during an inspection: first, that documents be produced, which is covered in subsection (2)(a); secondly, that such documents be explained, which is covered in subsection (2)(b); and, thirdly, that a person be required to state where documents are to be found, subject to

''the best of his knowledge and belief'',

so that the bland wording of subsection (2)(c) is clarified. The three steps for the documents produced are identification, explanation and information as to where they are to be found, to the best of a person's knowledge or belief. Thus there are three steps and three requirements.

I took a useful example from the Competition Act 1998, in which inspectors who seek to detect breaches of European Union competition rules have those three clear requirements when carrying out an inspection. A chief inspector of criminal justice should have powers equal to those of an inspector who seeks to find out whether competition rules have been breached.

Des Browne (Labour, Kilmarnock and Loudoun)

Perhaps I should have anticipated that I would need to consider the Competition Act 1998 to prepare myself for the debate, but unfortunately I did not. Perhaps, since the 1998 Act was drafted—

Crispin Blunt (Conservative, Reigate)

Passed.

Des Browne (Labour, Kilmarnock and Loudoun)

No. Since the 1998 Act was drafted, those who draft legislation —they provide an excellent service—might have taken the view that what the hon. Lady referred to as a ''bland provision'' is broad enough to cover the exact circumstances that she expects. I do not know whether that is the case, but I can speculate.

We could argue about the interpretation of the clause and what the words ''such document'' in the amendment refer to. By using that expression, the amendment could be seen as referring to the word ''document'' in subsection (2)(b). Those would be pedantic arguments, as the hon. Lady has made the reason behind the amendment clear.

My response to the mischief that the hon. Lady seeks to tackle is that the phrase

''that other information be provided''

covers the eventuality to which she refers and others. If it is appropriate for an inspector to know where such a document may be found, that is merely ''other information'' that they may require, and they have the power to ask for it in the broad terms of the clause.

Andrew Turner (Conservative, Isle of Wight)

I cannot speak for my hon. Friend the Member for North Down, but it seems to me that the amendment would be appropriate in circumstances such as those that we have heard about in the recent Victoria Climbie inquiry. In that case, the local authority might have done its best to produce documents, but was not able to do so until they happened to turn up in a filing cabinet.

The amendment is useful, because it entitles the inspector to ask ''any person''. The Minister will correct me if I am wrong, but I guess that the powers of the inspector in the rest of this part of the Bill relate to the authority rather than to any person within or outside it. If an individual had left the employment of the authority, the amendment would permit that person to be asked. The other provisions of this part of the Bill suggest that the power is in relation to the authority rather than to a person who might have left the authority.

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. While the Minister reflects on that, may I say that although the hon. Gentleman was making a perfectly valid observation, it would have been better made as a proper contribution to the debate. Interventions should be specific; I will call hon. Members to make their contributions in the fullness of time.

Des Browne (Labour, Kilmarnock and Loudoun)

Without wishing to contravene your instructions, Mr. Conway, subsection (1) provides that the powers relate to ''any premises''. I can see no such restriction elsewhere in the clause, but we may come back to the question on clause stand part.

I am seeking to address the argument put forward by the hon. Member for North Down. I have exhausted the arguments that I marshalled in anticipation of this debate, although I may find some hidden away in the Competition Act. I hope that she is persuaded by the arguments that I have put before her thus far.

Crispin Blunt (Conservative, Reigate)

The Minister exhausted his arguments fairly abruptly in response to the hon. Member for North Down. If I may, I shall stretch them further, although I do not intend to repeat myself when we debate the other amendments to the clause. Indeed, I think that the amendments should be taken together. I rather prefer the work done by the hon. Lady in putting together this collection of amendments, and I urge the Minister to consider them carefully.

Even if the Minister was correct in saying that amendment No. 191 was otiose because subsection (2)(c) states that ''other information be provided'', it is better that it should appear in the Bill because it would then make clear what power was available to the inspector and what questions he could ask to which he should expect an answer. The Minister may be right about subsection (2)(c), but it is extremely important that the inspector's duties should be transparent and clear to those who are on the receiving end.

I do not want to delay the Committee. I think that the amendment is a careful construction. The hon. Lady and those advising her seek to make the clause stronger and clearer. Considerable work has been done on what defences are available for refusing or failing to supply the information to the inspector. I therefore hope that the Minister will take the amendments as a group and give real consideration to whether or not they would improve the clause. That is certainly my view.

Sylvia Hermon (UUP, North Down)

The hon. Member for Reigate is absolutely right that this series of amendments hangs together. Are we able to take them together?

Derek Conway (Conservative, Old Bexley and Sidcup)

Yes. If the hon. Lady is content that we debate all four together, it will facilitate the Committee's progress. Is the Minister content with that?

Des Browne (Labour, Kilmarnock and Loudoun)

Yes.

Derek Conway (Conservative, Old Bexley and Sidcup)

With amendment No. 191, we shall debate the following amendments: No. 192, page 28, line 1, leave out 'commits' and insert 'is guilty of'.

No. 273, in page 28, line 2, leave out 'without reasonable excuse'.

No. 191, in page 28, line 5, at end insert—

'(3A) If a person is charged with an offence under subsection (3) in respect of a requirement to produce a document under subsection (3), it is a defence to prove—

(a) that the document was not in his possession or under his control; and

(b) that it was not reasonably practicable for him to comply with the requirement.

(3B) If a person is charged with an offence under subsection (3) in respect of a requirement—

(a) to provide information,

(b) to provide an explanation of a document, or

(c) to state where a document is to be found,

it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.'.

Sylvia Hermon (UUP, North Down)

I appreciate the Committee's co-operation.

Amendment No. 192 is a probing amendment. Subsection (3) refers to a person who commits an offence, while subsection (4) refers to

''A person guilty of an offence''.

Is there intended to be any difference between the terminology? I suspect not.

The more important amendments that I tabled relate to the offences. When I first read the clause, I was struck by the fact that insufficient weight had been given to the seriousness of the offence of obstructing the inspector in the process of inspecting any of the organisations listed in clause 46(1).

It occurs to me that I have grouped all the amendments together now—I have begun to discuss amendment No. 195. Well, it seemed like a good idea at the time.—[Laughter.]

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. To help the hon. Lady, to whom we are being a little unfair in driving her so forcefully, I think we should deal with amendments Nos. 191 to 194 first before we discuss amendment No. 195, with which she may like to debate amendments Nos. 196 and 197. I hope that helps her—it certainly helps me.

Sylvia Hermon (UUP, North Down)

Amendment No. 195 shows the seriousness with which I view obstruction of the inspector in the course of his duties.

The clause does not deal with intentionally and wilfully destroying or hiding documents when the chief inspector is conducting an inspection. I am especially concerned about the level of punishment that will be meted out to a person guilty of an offence under subsection (3). The Bill is drafted so that a person

''guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.''

I do not pretend to be a criminal lawyer, but I think that the level of fine is equivalent to that meted out to someone convicted on a charge of drunk and disorderly behaviour. Intentionally or recklessly obstructing the inspector in the course of an inspection merits a much more severe punishment.

Andrew Turner (Conservative, Isle of Wight)

It may help the hon. Lady to know that the Education Bill, which received its Third Reading last night, makes it an offence wilfully to obstruct Her Majesty's Inspector of Schools. A person guilty of that offence is liable, on summary conviction, to a fine not exceeding level 4.

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. Before the hon. Lady responds to that intervention, which was in order, may I point out that we should stick to the first group of amendments rather than wander into a discussion of subsection (4), as we are in danger of doing? We shall come to that under the next group of amendments. Rather than taking a great raft of amendments together so that no one knows where we are, we should confine ourselves to amendments Nos. 191 to 194, if the hon. Lady is happy with that. We shall discuss the standard scale next.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Am I right to assume that the points that the hon. Lady has just made primarily refer to amendment No. 194, which seeks to stiffen the offences or penalties for obstructing an inspection? Did her point not relate to that amendment, rather than to the group that comes after it?

Sylvia Hermon (UUP, North Down)

I know that the hon. Member for Montgomeryshire (Lembit Öpik) had the best of intentions in supporting amendments Nos. 194 and 273, but I do not intend to press those amendments. I shall explain why. I tabled the long amendment No. 194 because I wanted to toughen up the offence, or to tease out an explanation of what was meant by ''reasonable excuse.'' However, last night, when I examined that carefully constructed amendment—I am being sarcastic—I noticed that the final line states that

''it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.''

That is tautologous, so I do not want to speak to amendments Nos. 194 and 273. I have spoken to the other amendments in this little bunch. We need to consider the seriousness of intentionally obstructing the inspector during an inspection.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

In attempting to assist the hon. Lady, I managed to harm myself, and I apologise for talking about a later amendment.

I would be interested to hear the Minister's thoughts on the intention behind amendment No. 194, although it seems that the hon. Lady does not intend to press it to a vote. She made a very persuasive point, however, when she said that it would make explicit something that the Bill leaves to the courts to determine. Perhaps the Minister could consider that issue before Report stage.

Des Browne (Labour, Kilmarnock and Loudoun)

I have sought in my contributions to this short debate to deal with amendment No. 191, so I shall not return to it.

If I understood the comments that the hon. Member for North Down made in support of amendment No. 192, she seeks to highlight the distinction between subsection (4), which uses the word ''guilty'', and

subsection (3), which uses the phrase ''commits an offence''. She will, however, not be surprised to learn that we made that distinction deliberately.

A person can be sentenced only when he has been found guilty, which is why subsection (4), which deals with sentences, uses the word ''guilty''. Subsection (3), however, describes the constituent elements of an offence, and it will be for the court to determine whether a person is guilty. That is why the phrase ''commits an offence'' is used. I have read numerous statutes in my life, but I have never before picked up on the fact—perhaps it was obvious—that they commonly make such a distinction when describing an offence and the penalty for it. I hope that that reassures the hon. Lady.

As I understand it, the hon. Lady does not want to press amendment No. 194, but it might be possible to deal with some of her concerns in the context of amendment No. 273. Subsection (3) includes the phrase ''without reasonable excuse'' because it does not deal with an absolute offence. When charged, people can offer the defence that they had an excuse based on reason for not preventing something that would otherwise have constituted an offence. The offence set out in the clause is not absolute, unlike some road traffic offences. One is guilty of such an offence if particular circumstances prevail in relation to the state of a motor vehicle, whether or not one could have prevented them. The onus is, therefore, on the person to prevent such circumstances from arising.

The inspector will mostly be seeking the co-operation of civil servants on public bodies, who will have a duty to co-operate. Someone who has an excuse based on reason for being unable to respond to a request for information from the inspector could offer it as a defence. That is why the phrase ''without reasonable excuse'' is included. We do not seek to create an absolute offence or to stipulate that a person is guilty of an offence where information is not passed on, whether or not that is their responsibility.

Andrew Turner (Conservative, Isle of Wight)

I would like to go back to the analogy that I used in respect of amendment No. 191. One of the authorities covered by the inspector commits an offence by failing to provide a document without reasonable excuse. That document has been taken home by a former employee of the authority. The authority has a reasonable excuse for not producing the document, because it neither has it nor knows where it is. However, I wonder why the inspector should not be able to go and extract it. That seems to be the weakness of clause 48 in general.

Des Browne (Labour, Kilmarnock and Loudoun)

I do not accept that that is a weakness. In his earlier contribution, the hon. Gentleman suggested that the clause was designed to allow the inspector to exercise his powers in relation to authorities but not individuals, when it is clear from the provisions that a person commits the offence. There is anticipation that individuals as well as organisations may be required by the inspector to respond. That is why subsection (3) uses such phraseology.

We may need to return to this matter at some stage, and I would be happy to do so, but at the moment I am not persuaded that there is a problem. I do not have anything further to say about the amendments. We should move on to consider the nature and scale of the penalty, if you will allow that, Mr. Conway.

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. Before I call the hon. Member for North Down to wind up the debate, I should make it clear that, if she were to seek to withdraw amendment No. 191, and the Committee were to agree, that would not prevent her from pressing any of the other amendments in that group to a Division, if she so wished. I expect her to give an indication of her intentions in her concluding remarks.

Sylvia Hermon (UUP, North Down)

Thank you, Mr. Conway—

Des Browne (Labour, Kilmarnock and Loudoun)

I understood that the hon. Lady had said that she did not intend to move amendment No. 194. That is why I structured my remarks in the way that I did. I did not address the matter in detail.

Derek Conway (Conservative, Old Bexley and Sidcup)

The trouble with messing around with groups is that it can confuse everyone. The debate formally concerns amendment No. 191, but the other amendments have been grouped with it, so amendment No. 194 has not, technically, been moved. It would have to be formally moved if it were to be pressed to a Division. As far as the Chair is concerned, it has not been moved as such, even though the debate has centred on it.

Sylvia Hermon (UUP, North Down)

Thank you, Mr. Conway. I also thank the Minister.

I recommend, as bedtime reading, the Competition Act 1998. It is a useful way to get to sleep—at least in my experience. To recap, I do not propose to divide the Committee on the amendments. The Minister kindly said that he may return to the matters. I suspect that that was a commitment to do so. We may have difficulties when we re-read this morning's discussions, but he has adequately addressed the issue for my purposes. However, when we discuss the next group of amendments, I shall want to return to the seriousness of obstructing the inspector in the course of his inspections. Therefore, I am happy not to press amendment No. 191 to a Division and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 195, in page 28, line 6, leave out from 'subsection' to end of line 7 and insert

'(3)(a) is liable—

(a) on summary conviction to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to a fine'.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this we may also take the following amendments: No. 196, in page 28, line 7, at end insert—

'(4A) A person is guilty of an offence if, having been required to produce a document under subsection (2)—

(a) he intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or

(b) he causes or permits its destruction, disposal, falsification or concealment.'.

No. 197, in page 28, line 7, at end insert—

'(4B) A person guilty of an offence under subsection (4A) above is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.'.

Sylvia Hermon (UUP, North Down)

I tabled the amendment so that I might ask the Minister why the offence of intentionally obstructing the chief inspector of criminal justice will attract such trivial punishment. Frustrating the chief inspector should be seen as a serious offence, but that is not reflected in the Bill. The penalty under clause 48(4) is a fine not exceeding level 3 on the standard scale, which is also the statutory maximum punishment for being found drunk and disorderly.

We should not trivialise the seriousness of obstructing or frustrating the chief inspector during his inspections. I believe that falsifying, destroying or concealing information, intentionally or recklessly, should attract a serious penalty. That is why amendment No. 197 proposes that the punishment for such offences should include the option of imprisonment for a term not exceeding two years. I am not suggesting that that term should always be imposed, but that it should be a maximum.

I seek some recognition from the Minister that the matter is serious. We should send out the message that co-operation will always be expected when the chief inspector carries out an inspection of any of the organisations listed in clause 46(1).

Crispin Blunt (Conservative, Reigate)

I rise to support the hon. Member for North Down and I look forward to hearing the Minister's remarks about amendment No. 195. I am slightly confused by the language used in the amendment because it differs from that used in amendment No. 197. The hon. Lady's amendments refer to a statutory maximum, but would it be better to refer to level 5, and is that the statutory maximum? I would be grateful if the Minister would assist me on that.

The amendment raises an issue about consistency across the piece, which was illustrated by the earlier intervention of my hon. Friend the Member for Isle of Wight. It seems bizarre that someone who obstructs the investigation of a school inspector should be liable to a level 4 fine, but that someone who obstructs an investigation surrounding the issue of justice should be liable to only a level 3 fine. That appears to be inconsistent, so I should be grateful if the Minister would reflect on the matter and consider whether an amendment should be tabled on Report. In my judgment, a level 5 fine or the statutory maximum, as proposed by the hon. Lady, would be more appropriate.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

As the inspection regime depends on a level of deterrence, it seems sensible to toughen up the consequences of trying to cheat the system. Does the Minister feel that that is something for which he could

find space in the Bill, either now or on Report? The onus is on the Government to explain why they feel that the current penalties are sufficient to achieve the intended deterrent.

Des Browne (Labour, Kilmarnock and Loudoun)

From the conduct of the debate, I gather that Committee members understand how the fine structure is applied across offences. When levels of fines were introduced into the system, they were designed to address the issues of proportionality and recording the seriousness of offences—albeit in broad groupings—that the hon. Member for North Down raised. I am interested in her reference to the offence of being drunk and disorderly. In my experience of representing clients who have been charged with it, that offence is a broad church—it is a bit like breach of the peace in that it covers a wide range of behaviour. Being drunk and disorderly cannot be described as a trivial offence per se, although it might be in certain circumstances. The objective of the amendments is germane to the structure of fines, which is designed to narrow down the opportunity for disparity and disproportionality between fines for different offences. It also makes it easier to increase or move fines, so that it is not necessary to amend a whole range of statutory offences in relation to penalties; that can be done by reference to penalty provisions in relation to standard fines.

In response to the hon. Member for Reigate, I confirm that the phraseology and shape of the amendments are correct. The statutory maximum is level 5, which is £5,000, but that relates only to a summary conviction. There is no statutory maximum in relation to convictions and indictments, so the wording is entirely correct and reflects the penalties available.

The onus is, of course, on the Government to show the argument in relation to proportionality. I pray in aid the fact that the choice of the level of penalty and the decision not to include imprisonment were informed by the penalty that was passed by Parliament in 1998 in relation to a directly analogous set of circumstances, namely obstruction of an inspector of a juvenile justice centre or attendance centre in Northern Ireland. We adopted those penalties in the Bill knowing that they had been considered appropriate in that situation.

I take on board what the hon. Member for Isle of Wight said. As he knows, the Education Bill is not yet law. I also accept the point of the hon. Member for Reigate. I am not pretending that I was aware of it, and I am grateful to him for bringing it to my attention. However, the Bill is not yet law. We may need to revisit these matters, but I do not know whether Parliament will retain that penalty in the measure. I prefer to look for support in fixing penalties at a certain level by referring to existing legislation.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

As the Minister has said in other debates, we are dealing with an environment in Northern Ireland in which there is particular incentive for some organisations to try to pervert the law. In the past, exceptions have been made for the Province in that regard. Does the Minister not feel that this is one

of the occasions on which we might wish to introduce a tougher package of penalties because of the particular situation in Northern Ireland?

Des Browne (Labour, Kilmarnock and Loudoun)

I accept the hon. Gentleman's reasoning, but not what he said. We are dealing with public agencies and, by and large, with civil servants. I have answered the proportionality question. In doing so, I was informed by a decision, which is no more than three years old, of this Parliament on the level at which such fines should be fixed.

Let me deal now with amendments Nos. 196 and 197. Amendment No. 196 is designed to set out a particular kind of offence. The hon. Member for North Down is concerned that the Bill does not already cover certain behaviour. I can reassure her that subsection (3) already covers it. If a person were to do the sort of things that the hon. Lady envisages, that would constitute a clear, intentional obstruction. If it could be proved, it would lead to that person being convicted of an offence. I do not think that the hon. Lady intended to do more than elicit the reassurance that that sort of behaviour was already covered.

I have already dealt with the issue of the penalty raised by amendment No. 197.

Andrew Turner (Conservative, Isle of Wight)

I am grateful for the Minister's explanation. Just as he is not an expert on the Competition Act 1998, I was not reading the Education Bill last night before I went to bed. However, I would like to refer back to existing education legislation. The Education Bill has just received its Third Reading. The paragraph to which I referred deals with the obstruction of an inspector conducting an inspection of an independent school. Existing legislation already makes it an offence to obstruct an inspector while he is conducting an inspection of a maintained school, and I would be surprised if the fine for that offence was not equivalent to that for the offence that has yet to become law.

I wonder if the Minister might consider that and, more particularly, whether this level is appropriate for this purpose, bearing in mind the distinction—again, I do not speak from a great deal of knowledge—between a juvenile justice centre, which is perhaps equivalent to a school, and bodies such as the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland, which is more equivalent to a local education authority, though it is larger and considerably more important in the lives of the people of the Province.

For those reasons, I hope that the Minister will find time between now and Report stage to re-examine the level of the fines. There is a good case for doing so.

Des Browne (Labour, Kilmarnock and Loudoun)

I am anxious not to expand the debate or lengthen it unnecessarily, but I do not want to be seen as misleading the Committee or leaving it with a wrong impression. The debate is interesting and raises questions about how one supervises the proportionality of penalties to offences. All of us could, no doubt, talk at length on the matter. The Government have a duty to keep such matters under

review. I will feed this debate into that process, particularly the observations of the hon. Member for Isle of Wight about the apparent disparity between inspection in education and the Bill's provisions on inspection in the area of criminal justice.

My argument is that recent decisions by Parliament on Northern Ireland are not directly analogous, because if they were we would not need this inspectorate. In analogous circumstances, however, there is a strong argument for proportionality in the Bill. The wider issue must be dealt with in a wider context. I am not giving an undertaking to the Committee that I shall bring the issue back on Report, but there is nothing to stop other Committee members raising it.

Sylvia Hermon (UUP, North Down)

I find it disquieting, to put it mildly, that the Minister has read my mind. I was going to ask him whether the phrase, ''intentionally obstructs a person'' in clause 48(3)(b) includes the falsification, destruction or concealment of documents. He pre-empted that by explaining that ''intentionally obstructs'' covers those issues. I am happy with his explanation, which was welcome.

The other issues that concern me are the level of fines and the seriousness of obstructing the chief inspector in the course of an inspection. The Minister gave a helpful and comprehensive explanation of the background to the clause. There is a previous example of an inspection of a juvenile justice centre in Northern Ireland, and I must add it to my reading list.

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

I thank the hon. Lady for giving way. I have listened with great interest to the points made by her, the Minister and other members of the Committee. The point that she makes is correct in that these are serious offences that should be dealt with. I am not competent to debate the legal issues, but as a lay person I have a feeling that obstruction in this area is serious, and that it should be treated seriously. I ask the Minister take the matter seriously, as he is doing.

Sylvia Hermon (UUP, North Down)

The hon. Gentleman is correct: we all take the view that it is a serious matter to obstruct a chief inspector carrying out an inspection of any of those listed organisations. However, I must say with knowledge of the jurisprudence of the European Court of Human Rights in Strasbourg that there is a great emphasis on the word ''proportionality'', and the punishment must be proportionate to the offence. I would not want us to rush into a series of cases in which this legislation was struck down on the grounds that it is disproportionate to the seriousness of the offence. I appreciate his intervention, but the proportionality principle is fundamental, and it is recognised in the Bill. The discussion has been useful, and we have extracted a lot of background information from the Minister, which is always helpful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Andrew Turner (Conservative, Isle of Wight)

I should like to pursue the question of whom the inspector is not allowed to inspect. The Minister explained that the Bill in no way restricts the inspector's sphere of operations. I am uneasy with his explanation because, although the Bill does not restrict the inspector's sphere of operations, I wonder how the courts would interpret its provisions if Her Majesty's Inspector of Criminal Justice in Northern Ireland knocked on my door and asked questions about the inspection of the Prison Service. I would be entitled to say that I was not prepared to have him in my house, or answer his questions, and that should be an end to the matter. That is an obvious distinction. Some people associated with the Prison Service in Northern Ireland would feel the same.

Inspectors may feel that they have knowledge pertinent to their inspections, despite the fact that they are no longer, or never were, employed by the Prison Service. For very good reasons, the widow of a former member of the Prison Service may resist being questioned about the activities of her husband in that service, and the way it was being run. In those circumstances, a court would find it hard to say that that individual was automatically subject to the inspector's powers. The inspector may have to go to court to demonstrate that he has those powers. The individual may want to go to court to demonstrate the opposite.

The powers are subject to somebody, who would probably work for the institutions described in clause 46 (1)(a) to (j). If one used to be employed by the compensation agency, the inspector would have to prove that he had a good reason for asking questions and demanding papers. In supplying that reason, he may reveal elements of his line of inspection. I am expressing unease; I want the Minister to reflect on that and consider whether it is appropriate to give an inspector broad powers without specifying their extent. The inspector should have those powers. It is right that he could ask a former serving member of one of the institutions what happened to a particular document, for example. However, it would be helpful if that were clearer.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. Member for Isle of Wight for allowing us to return to that point, which I thought we would return to in the context of clause stand part. His contributions have been helpful because they have outlined potential circumstances. Every time he gets to his feet, he produces another set of circumstances, as he imagines the possibilities. He demonstrates the futility of trying to anticipate every set of circumstances. The Bill is a substantial document. It would be twice the size if we were to cover every potential circumstance relating to inspections.

The draftsmen, and the Government, intend to provide inspectors with the relevant powers, knowing that they will be subject to the sort of arguments that the hon. Gentleman imagines will take place in extremis on doorsteps or in courts. It is for the courts to interpret the extent of the inspector's powers and functions. That will depend largely on circumstance. It is clear from the context that the premises that are referred to are intended to, and probably will, be

restricted to premises of those in the list of organisations subject to inspection. I do not anticipate that ''premises'' will be interpreted more widely than that, but I can figure a set of circumstances in which premises are no longer occupied by such an organisation, but a store of files has been left there. Common sense tells us that the inspector would not be unreasonable in arguing that his powers extended to those remaining files—in a situation similar to the earlier analogy of the hon. Member for Isle of Wight . It is right to have such flexibility, because we cannot anticipate every circumstance.

Subsection (3), which refers to persons who can commit an offence, was clearly drafted with employees in mind. I will refer to the analogy that the hon. Gentleman used of ex-employees taking documents home. The powers relating to documents are intended to be used for documents and the information therein. We home could get into an interesting argument about whose property the documents are if they are taken by an employee who becomes an ex-employee; he or she may forget to return a briefcase of documents to the agency, or perhaps intended to hold on to it because it contained information that they did want to see the light of day.

The powers clearly relate to the documents and, although I do not ever expect to be instructed by the inspector to argue this, I can easily construct the framework of an argument for the court, and for the doorstep, that says that a power in the Act allows the inspector, or his agent, to have access to documents. Unless criminality or malpractice is being covered up, I do not imagine that anyone will have to go to court. I want to reassure the hon. Gentleman that the framework and the context of the powers are restrictive enough not to have someone going around Northern Ireland with powers over any person. The courts will be sufficiently informed that, to make the appropriate decisions at the margins, there may need to be arguments about how far the powers extend.

Andrew Turner (Conservative, Isle of Wight)

I understand that my comments may appear to be fanciful flights of my imagination, but the problem is that situations already arise in the case of, say, the local government ombudsman in England. He is constantly frustrated in the investigations he attempts by the fact that staff have left the local authority and refuse to appear. If the situation is something as insubstantial as that in the Isle of Wight, it is likely to be far more substantial in an allegation brought or an inspection undertaken in Northern Ireland.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman is unduly sensitive. His were not flights of fancy, but interesting issues and I was congratulating him on his ability to use his imagination in debate to figure circumstances that could have basis in reality. I understand his analogy, but we cannot cover every eventuality in the Bill. If he knows of a specific eventuality that would not be covered except by statutory provision, I shall be happen to debate it in the context of an amendment. Statute law does not seek to cover every eventuality,

but to create a framework in which a statutory authority works, and powers to allow that authority to carry out inspections to the necessary extent. That is what the clause seeks to do.

Andrew Turner (Conservative, Isle of Wight)

I appreciate the Minister's words, and accept the explanation that, in his view, there is sufficient power.

Question put and agreed to.

Clause 48 ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.

Clause 50 - Law Commission

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 198, in page 28, line 35, after 'Court', insert

'either in Northern Ireland, England and Wales or Scotland.'.

The law in Northern Ireland is fragmented with old Acts from the time of Stormont, Orders in Council from the awful time of direct rule, and now Acts of the new Northern Ireland Assembly. I am delighted that we are to have a law commission and I welcome that.

However, when the criminal justice review team made a comparative analysis of law commissions in other jurisdictions, including the Republic of Ireland, England and Wales, and elsewhere, it came to the interesting conclusion in paragraph 14.55 that

''From experience of law reform bodies and other jurisdictions, it is clear that the involvement of at least one person engaged full time on law reform quickly enhances the productivity and credibility of the organisation. However, in the context of a jurisdiction the size of Northern Ireland, we believe that it would be sensible to start with an entirely part-time membership.''

Despite that conclusion by the review team, the Bill does not suggest that we are starting with an entirely part-time membership. On the contrary, under clause 50 the Law Commission will have five members and my understanding is that they will be full-time members.

The Law Commission for the Republic of Ireland, which is a larger jurisdiction, has five full-time members. The Law Commission for England and Wales, which is a much larger jurisdiction, has only five members. It is clear from clause 50(3) that the chairman of the Northern Ireland Law Commission must be a High Court judge and I remind hon. Members that in Northern Ireland we have only seven judges in the High Court.

Des Browne (Labour, Kilmarnock and Loudoun)

Will the hon. Lady give way?

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. I am sorry to interrupt the Minister and the hon. Lady. I am required now to adjourn the Committee, but the hon. Lady will have the Floor when we return this afternoon and the Minister may then intervene.

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

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

Standing Committee F

Clause 50 - Law Commission

Sylvia Hermon (UUP, North Down)

I am delighted to see you back in the Chair, Mr. Pike. The Minister wants to intervene, but I shall recap for your benefit and say that we are talking about the establishment of the Law Commission in Northern Ireland. The purpose of the amendment is to widen the pool of High Court judges.

Des Browne (Labour, Kilmarnock and Loudoun)

Before we adjourned this morning, I sought to intervene on the hon. Lady but ran out of time. I am not now in the presence of some of those who were in the Room then, especially the Front-Bench spokesman for the Conservative party, the hon. Member for Reigate (Mr. Blunt), so I am conscious that I may have to repeat myself later. I wanted to intervene to point out that the flexibility in the Bill allows for part-time or full-time appointments. We intend to follow the review's recommendations and make a part-time appointment.

Sylvia Hermon (UUP, North Down)

I appreciate the Minister's intervention, although I am not sure that I agree with it. Lest anyone have the impression that we in Northern Ireland live in something of a legal quagmire, I should explain that the Law Reform Advisory Committee for Northern Ireland has operated since 1989. Its remit has been to scrutinise the civil law of Northern Ireland, with some exceptions, and to submit reform proposals to the Secretary of State for Northern Ireland. It is composed of part-time members.

I find it extraordinary that the possibility of a commission in Northern Ireland with five full-time members is still being contemplated. I explained this morning that, in the much larger jurisdiction of England and Wales, there are only five full-time members. In the Republic of Ireland, there are also five full-time members. Will the Minister explain why the Bill cannot state that the intention is for part-time members? How can he justify the possibility of five full-time members in such a small jurisdiction?

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

I have two points in relation to amendment No. 198. I tend to agree that the provision should be widened.

I find it difficult to understand the remarkable omission from the amendment of Ireland itself. As the years go on, I have no doubt that harmonisation of

law on the island of Ireland, whatever shape or form it takes, will increase substantially and will be relevant and beneficial to its people as a whole. I ask that that be taken on board, as it is crucially important. In many instances, harmonisation of law has started to proceed. We should bear that in mind when considering what may happen on the subject.

My second point is one of clarification of clause 51(4)(c). What is the official term for the Republic of Ireland? I assume that legislation always uses official terms.

Sylvia Hermon (UUP, North Down)

In a later amendment, I shall try to widen the scope of consultation to incorporate other law reform bodies, including the Law Reform Commission of the Republic of Ireland. The amendment is confined to High Court judges in Scotland or in England and Wales because, as presently proposed, one member of the five-member commission will be a lay member, so only four members will have legal expertise. The Republic of Ireland has a written constitution and its legislation is quite different. It therefore seemed better to have a High Court judge from Scotland or from England and Wales.

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

I thank the hon. Lady. It is not inconceivable that the commission will be chaired by a High Court judge from Ireland, especially in light of the fact that a past Chief Constable of the Royal Ulster Constabulary was from Dublin. I am not making a political point, but in the interests of developing harmonisation, which will help everybody, we should keep doors open rather than close them.

Des Browne (Labour, Kilmarnock and Loudoun)

With respect to my hon. Friend the Member for Newry and Armagh (Mr. Mallon), I am sure that we shall have an opportunity to debate the issue that he raised in connection with clause 51(4)(c). If you, Mr. Pike, call the amendments relevant to that provision, we shall have the opportunity to deal with some of those issues.

The hon. Lady draws our attention to what she suspects would be an unnecessary reduction of a scarce resource—that of High Court judges in Northern Ireland—by forcing one of them to become a full-time member of the Law Commission. That is not the import of the clause, nor is it the Government's intention. The hon. Lady does not seek to restrict it to a part-time appointment, but seeks to open it to judges from England and Wales, or Scotland. She would widen the pool of judges from whom the commission chairman could be drawn in order to ensure that the provision did not have the unintended effect that she suspects.

I thank the hon. Lady for her short description of the differences between the bodies of law applicable to Northern Ireland and to England and Wales, while recognising the significant similarities between them. That difference is important, but the system in Scotland, if not entirely different, is significantly different from that in England and Wales and Northern Ireland.

Sitting suspended for a Division in the House.

On resuming—

Des Browne (Labour, Kilmarnock and Loudoun)

Before we had to suspend, I was talking about the different nature of Northern Ireland law. It is common, if not universal, for bodies such as the Northern Ireland Law Commission to be chaired or presided over by a judge of the jurisdiction, who has skills and experience relevant to the application of the body of law that operates in that jurisdiction. It is presumably for that reason that the review—following the model that I think operates in England and Wales, and which certainly operates in Scotland—recommended that the commission be chaired by a High Court judge of Northern Ireland. It is certain that the skills and experience necessary to cope with the different nature of Northern Ireland law will reside in such a person. Although such skills and experiences might reside in a person from the other jurisdictions mentioned in the amendment, it is by no means certain that they would.

Mr. Edward Garnier (Harborough) rose—

Des Browne (Labour, Kilmarnock and Loudoun)

I shall conclude this part of my argument before I take an intervention from the hon. and learned Member for Harborough (Mr. Garnier). The Government's position is in line with the review recommendation that it would be appropriate for the commission to be chaired by a High Court judge of Northern Ireland.

Edward Garnier (Conservative, Harborough)

I apologise if the Minister, or other members of the Committee, have covered the following point already. Is the chairman of the commission a full-time appointment or a position that the High Court judge will hold at the same time as sitting as a judge on the bench? I ask only because the jurisdiction is small, although the legal issues may be interesting and complex. In London, the chairman of the Law Commission is a High Court judge on a full-time appointment. I cannot remember whether the appointment is for three, four or five years, but he ceases to sit as a judge.

Des Browne (Labour, Kilmarnock and Loudoun)

That is a fine example of the incisive ability of senior counsel. If the hon. and learned Gentleman had been present this morning, he would know that that was the nub of the argument that the hon. Member for North Down (Lady Hermon) advanced to the Committee. However, no doubt it bears restatement.

The answer to the hon. and learned Gentleman's question lies in schedule 9, which relates to the Law Commission. Paragraph 2(1) states:

A person who holds judicial office may be appointed as a Commissioner without relinquishing that office.

That provision will allow a High Court judge who chairs the commission to be on a part-time appointment, whose terms will reflect paragraph 2(2).

The hon. Lady asked, reasonably, why it was not specifically stated in the clause that the appointment

would be part time. As it stands, the statutory framework allows flexibility. If it were specifically stated that the appointment was part time, that flexibility would not be allowed. I am aware that the Law Commission is intended to serve the people of Northern Ireland not only in the immediate future but for a long time to come. That flexibility may one day be welcomed by the people of Northern Ireland—indeed, it may be welcomed by the hon. Lady—if there is a particular issue that needs attention.

The review anticipated that the immediate needs of the people of Northern Ireland in respect of the Law Commission required a part-time appointment, but there is no point laying down a statutory framework that requires a definition of part time when we can do otherwise and allow flexibility.

I give the hon. Lady a clear undertaking that all her points have been recognised and that it is intended to make the appointment part time. I am sure that she is in favour of flexibility, so that the Law Commission can respond to any future needs, and that she will allow the Bill to remain drafted as it is.

Sylvia Hermon (UUP, North Down)

I appreciate the Minister's lengthy and comprehensive explanation. My confusion arose from the fact that I managed to squeeze in time to examine the Law Commissions Act 1965. The Bill reflects the 1965 legislation establishing the Law Commission for England and Wales, which is deemed to comprise five persons who are intended to be full-time appointments. However, I appreciate the Minister's undertaking that it is anticipated that the commission will be part time, because I was worried about the fact that there are only seven High Court judges to service the entire jurisdiction of Northern Ireland. I appreciate the fact that he has taken that on board, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 199, in page 29, line 4, leave out from 'who' to end of line 6 and insert—

'may hold judicial office or may be a solicitor or barrister or teacher of law at a university.'.

The composition of the Law Commission, as anticipated by the Bill, will be—as we now understand—a part-time High Court judge and four other commissioners. Those other commissioners are listed in subsection (4). One will be a barrister, one a solicitor, one a legal academic and the other one will be someone who

does not hold (and has never held) judicial office and is not (and has never been) a barrister, solicitor or teacher of law in a university.

The fifth member of the commission is expected to be a lay person.

My concern arises from the duties of the commission, which are listed in clause 51(1). It is an onerous responsibility.

The Commission must keep under review the law of Northern Ireland with a view to its systematic development and reform, including in particular by—

(a) codification,

(b) the elimination of anomalies,

(c) the repeal of legislation which is no longer of practical utility, and

(d) the reduction of the number of separate legislative provisions.

That is a heavy burden.

Again, I draw the Committee's attention to the comparison with other Law Commissions. The commission in the Republic of Ireland has five commissioners, and paragraph 14.29 of the criminal justice review makes the point that all of them are lawyers. Likewise in England and Wales, the Law Commission is made up entirely of lawyers. It is clear from paragraph 14.21 of the review why it is useful for all the members of those commissions to be experienced lawyers. In examining the working methods of commissions, it says:

The Commission's work is based on thorough research and analysis of case law, legislation, academic and other writing, law reports and other relevant sources of information both in the United Kingdom and overseas. It takes full account both of the European Convention on Human Rights and of other European law.

That places on the fifth member—the lay member—the huge burden of having to consider the codification and elimination of anomalies, and having to have the ability to analyse the jurisprudence of the European convention on human rights, which is a huge and fast-developing area of law. The European convention has been incorporated into the Human Rights Act 1998, which applies in Northern Ireland. It is a heavy responsibility and, in fairness, we should know what contribution we can rightly expect from that lay member, without placing too onerous a burden on him or her.

Crispin Blunt (Conservative, Reigate)

I support the hon. Lady's amendment and implore the Committee to execute an act of mercy in accepting it. If it does not, it will place the poor statutory layman—

Sylvia Hermon (UUP, North Down)

Or woman.

Crispin Blunt (Conservative, Reigate)

Or woman. Legislation usually states these things in the male gender, on the understanding that both genders are properly represented. The layperson—to assuage the hon. Lady's sensitivity—will be placed in the company of lawyers who are dealing with an area of legal expertise. That might be a condign punishment if he is a volunteer rather than a pressed man, but it peculiar to insist on the qualification in the Bill.

I am happy to accept that the fifth person need not hold judicial office, but the arguments that we heard earlier as regards the Judicial Appointments Commission apply even more strongly in this instance. The role of commissioner requires a level of expertise that the layperson will have to acquire if the qualification remains as it is in the Bill. That is a heavy burden to place on anyone, although people will no doubt want to take on that role. I cannot imagine that a serving barrister or solicitor with a successful practice will want to be the fifth person on the Law Commission, given that the professions will already have nominated their own candidates, but a properly qualified person who meets the requirement of not being in a judicial appointment and who wants to take on the role of commissioner should be able to do so.

The Committee should have mercy and allow the fifth person on the commission—if, by chance, they have a qualification—to make a proper contribution and to be respected by the other members. The amendment would not rule out the possibility of there being a lay member without qualifications, as laid out in the Bill. It would, however, give the fifth member of the commission a fighting chance of making a proper contribution, rather than simply being seen as the statutory lay member, which would be a pity. I know that a lay member is recommended in the review, which the Minister will no doubt quote, but qualifications are clearly called for, and the Bill should not rule them out when they have been acquired.

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

I find the points that have been made most interesting and, at times, rather disturbing. I do not believe in the mystique that is commonly held to surround the law, because I do not believe that the law belongs to lawyers. It is formulated by lay people like us, and then given to the lawyers to implement. Nor do I share the notion that someone with no expertise in a certain area has nothing to contribute. If that were the case, few Members of either House would be competent to make the law or to sit on Standing Committees, which do just that every day of the week.

That is relevant because there is, and always must be, a place for lay opinion, no matter how exalted the company in which it may be expressed. I recognise that many of the points that have been made are, on the face of it, valid. I know that they are not meant to imply any intellectual or professional arrogance, but I believe that there is a role for a layperson. Many lay people could contribute the common sense and impartiality that might not always be present if the commission were comprised exclusively of people involved in the law. I shall add a rider to the term ''impartiality'' lest it be misunderstood. Lawyers tend to talk to each other, probably more than any other profession, and I know that because my daughter, nephews and nieces are lawyers and they talk to each other almost to the exclusion of any lay person who happens to be sitting in the same room. However, it is noticeable that when it comes to making a decision, they usually revert to the lay person for the commonsensical advice that is often needed. I believe that, in a place like Northern Ireland, where the law has been out of the touch with the community for so long, it is doubly essential that a layperson should be a member of the Law Commission and every other commission.

The capacity to bring a sense of community and a layperson's perception to the process far outweighs the technical expertise that it will also be necessary for members of the commission to show. The hon. Member for North Down asked what contribution we could expect from a layperson, and I know that she did not mean to be disparaging. I believe that lay people can make various contributions. Apart from the ability to reach the heart of an issue as quickly as a person with the relevant expertise but without the jargon, the layperson will not be—I do not want to be pejorative, so I am searching for the right term—part of the legal network in Northern Ireland. The legal network in Northern Ireland is very powerful and

privileged and not always open to those outside it. The clause provides an opportunity to break through that and will permit views to be expressed other than those coloured by legal perceptions, although decisions will still have to be made on a legal basis.

The Government will be seen to be right in providing for the inclusion of a layperson on the commission, and I hope that, as the years go by in Northern Ireland, lay people will become involved more often. The more that happens, the stronger the law will be and the more deeply rooted in the community that it serves.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Member for Reigate was right to point out that the review's recommendations for the composition of the commission, as set out in paragraph 14.55, are directly reflected in clause 50. Its recommendations are not surprising, given the discussion and the information it gleaned from throughout the world. It was fulfilling its remit in the Belfast agreement, which included a requirement to consider measures to improve the responsiveness, accountability and lay participation in the criminal justice system. Lay participation was part of its remit and it responded to that, as it responded to other recommendations in the review.

The hon. Lady was right to point out that some Law Commissions are made up entirely of lawyers, whether judges, barristers, solicitors or academics, but that is not universal. There is a clear example in Canada where one commissioner is described as a director of corporate development for Island Telecom Inc. That does not fit the description that the hon. Lady wants to include in the Bill.

Many of the changes in the law that the hon. Lady and I have welcomed during the past 20 years, especially in relation to children and victims, have been driven not by lawyers or law commissions, but by demands made by Parliament in response to lay people's appreciation and understanding of, and sometimes dissatisfaction with, the shape and application of the law.

Under clause 51, the Law Commission is required to deal with other matters, including simplification and modernisation of the law. Simplification can sometimes be achieved by involving people who are not steeped in the traditions of the law and its vocabulary, but who can provide a different view.

The commission will examine practice and not just complex black letter law. It will have a staff whose qualifications and research abilities will help to inform the commissioners. I do not want to leave the Committee with the feeling that the five commissioners will have the burden of all the commission's work. They will be supported with appropriate resources and staff.

The hon. Lady said rightly that care must be taken when appointing the fifth member of the commission to ensure that they have the skills not only to hold their own with the legally qualified members, but to

bring a welcome and complementary perspective to the commission's work. The Government believe that the opportunity to involve a skilled layperson is an improvement on the position in other parts of the United Kingdom, and I am sure that the people of Northern Ireland will welcome that in years to come.

Sylvia Hermon (UUP, North Down)

I thank the hon. Member for Newry and Armagh and the Minister for their helpful contributions. Nothing that I said was intended as a criticism of lay members and their valuable contribution in many walks of life in Northern Ireland.

Clause 50(4)(d) excludes people who have held judicial office or been barristers, solicitors or teachers of law in a university, and the purpose of the amendment is to prevent the exclusion of such people. I do not like the idea of excluding people who may have a contribution to make, but I have taken the Minister's explanation on board, as well as the points made by the hon. Member for Newry and Armagh. I beg to ask leave to withdraw the amendment, although I shall not give in so easily on the next one.

Amendment, by leave, withdrawn.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 242 in page 29, line 13, after 'representative', insert—

', including in terms of gender and ethnicity,'.

The amendment concerns clause 50 (6), which states:

In appointing persons to be Commissioners, the Secretary of State must so far as possible secure that the Commissioners (taken together) are representative of the community in Northern Ireland.

If members of the Committee reflect on last week's discussions, they may remember that that phrase occurred when we examined the appointment of lay members by the First Minister and the Deputy First Minister. When the phrase arose it was not amended, which concerns me. I want it added to the Bill that the term ''representative'' means

in terms of gender and ethnicity.

When I last mentioned the phrase ''representative of the community'', I specifically drew the Committee's attention to the Evelyn White case. The Lord Chief Justice, who is the most senior judge in Northern Ireland, made that decision, which concerned the meaning of the phrase ''representative of the community''. That phrase appeared in the Public Processions (Northern Ireland) Act 1998, which governs the Parades Commission. Currently there is not a single woman on the Parades Commission, although I am prepared to stand corrected. That is despite the fact—the judge referred to this in his judgment—that the background report, which is a little like the criminal justice review on which the Bill is based, was founded on the North report, which states:

The Parades Commission would need to have a geographical spread and both cross-community and gender balance. We were struck, on several occasions during our meetings, with the different approaches of men and women to the parading issue. We think that is important that women should have an effective voice on the Parades Commission.

When the phrase ''representative of the community'' in the 1998 legislation was interpreted in the Evelyn White case, the judge took the phrase in

its context as against the regular usage of the word ''community''. He ruled:

The phrase in question does not refer to gender or to the make-up of the population of the Province. It refers specifically to 'the community', which in the context of parades is constantly used to denote sectarian blocks.

Des Browne (Labour, Kilmarnock and Loudoun)

I intervene on the hon. Lady at this point, because I am aware of the care that she takes in interpreting such phrases. For the benefit of the Committee, she should read that last sentence again. The important words are ''the context'', because the context of this Bill is entirely different.

Sylvia Hermon (UUP, North Down)

I thank the Minister. I shall quote again:

The phrase in question does not refer to gender or to the make-up of the population of the Province. It refers specifically to ''the community'', which in the context of parades is constantly used to denote the different sectarian blocks.

It continues:

In the context of the 1998 Act, therefore, it is in my view a tenable proposition—

a submission from one of the lawyers is then referred to—

that paragraph 2(3) imposes a requirement only to ensure sectarian balance in the composition of the Commission.

The judge rightly considered the context of the 1998 legislation. The words ''gender'' and ''geographical background'' do not appear in that Act, so the term ''community'' could be interpreted as meaning the sectarian divide. That is particularly relevant when we have marches.

I certainly do not criticise the judge for considering the context in which the phrase ''representative of the community'' was used in the 1998 Act. I suggest that when any judge is interpreting this Bill, he or she should do likewise and take its context into account. When we earlier considered how the phrase related to lay members of the Judicial Appointments Commission, we did not set a context that related to ethnic minority or to gender. To ensure that ''representative'' includes women and ethnic minorities in Northern Ireland, I would like the context to be included in the Bill. That would be in keeping with the judgment, and would not be a criticism of Lord Justice Carswell, or his interpretation of the legislation.

Edward Garnier (Conservative, Harborough)

That was a decision by Lord Justice Carswell, so I wonder whether the hon. Lady could answer some questions about it. Was he sitting as a judge of first instance or in the Court of Appeal? Was the construction of the expression ''community'' the sole issue to be decided by the judge? Is not the decision special to the facts, and that construing the expression in the Bill would not necessarily be of any use? Given the judgment, what must have followed since, and the fact that criticism has already been made of the expression in another circumstance, is it necessary to add those words to the Bill?

Peter Pike (Labour, Burnley)

Order. This is a little too long for an intervention. Perhaps the hon. Gentleman wishes to make a speech.

Edward Garnier (Conservative, Harborough)

I do not think that the Committee would like me to make a speech. I will come to the last sub-clause of my point.

Would not the appointers of persons to be commissioners bear in mind the hon. Lady's points and those of the Lord Justice when interpreting their duty to ensure that appointments are representative of the Northern Ireland community?

Sylvia Hermon (UUP, North Down)

I almost regret that I gave way.

Peter Pike (Labour, Burnley)

I am regretting that I gave the hon. Lady the chance to give way.

Sylvia Hermon (UUP, North Down)

I forgive you, Mr. Pike. The hon. Gentleman brings numerous points to my attention. First, I am willing to give him my copy of the judgment to read. In the interim, I can tell him that it was a decision in the High Court of Northern Ireland, Queen's Bench division. The interpretation of the phrase ''representative of the community'' in paragraph (2)(3) of schedule 1 of the Public Processions (Northern Ireland) Act 1998 is important. The context was different in that legislation, but it was included. We must take the opportunity to set the context in the Bill, by including the important phrase ''representative of the community''.

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

I welcome the amendment. I am glad to hear that the hon. Lady is adamant that she will press it to a vote; I shall vote with her.

The amendment highlights the question of representation that has been there since the beginning and will remain until it is dealt with. The amendment would require the layperson—one of the four members—to be representative of the community's ethnicity and gender composition. The layperson might wonder why that does not apply to the appointment of a barrister, solicitor or an academic.

Mr. Browne rose—

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

One should never ask rhetorical questions.

Des Browne (Labour, Kilmarnock and Loudoun)

The answer to my hon. Friend's question is that the requirement for the commission to be representative applies to all the commissioners.

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

I thank the Minister for that observation. We have debated the issue before. Unless we pass an amendment that applies the requirements of representation of in an equal way, the equality that we seek will be left out of the Bill. I am sure that the Minister is right, and I have not found him to be wrong yet. However, one might make the following thumbnail sketch: the barrister might be a Unionist, the solicitor a nationalist—for want of a better word—the academic from an ethnic minority, and the layperson might make up the gender balance. If the Minister is correct, that is the formula. Once one tries to subdivide that, one enters a quagmire. That points out the previous and current difficulty. I voted for a similar amendment previously and will do so now. It is assumed that the provision does not refer to the appointment of those in the legal profession, but

that it applies to laypersons. That is the weakness. I am glad that the hon. Lady has tabled the amendment, and that we have an opportunity to stress that point. Will the Minister clarify how the requirement for representation is assumed in the manner that he outlines, and how it is effective?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

This is one occasion when it is incumbent on the Government to explain why they would not accept a proposition that has been so forcefully argued by the hon. Members for North Down and for Newry and Armagh. We have spoken about the wording in earlier debates in Committee. It is simply not acceptable for the Minister to say that gender and ethnicity are de facto included, not least because, as the hon. Lady has shown, ''representative'' means something different in the context of the Good Friday agreement.

Any person involved in debates in this House on Northern Ireland would assume that the word ''representative'' referred to matters of religion and whether a person comes from a nationalist or Unionist tradition. I have made the point before that we risk enshrining the sectarianism that we are trying to get rid of by not addressing this kind of issue with amendments such as that tabled by the hon. Lady.

The Alliance party of Northern Ireland famously took the courageous decision to redefine itself temporarily as a sectarian faction to enable the First Minister, the right hon. Member for Upper Bann (Mr. Trimble), to be re-elected. That was an extremely difficult decision for the Alliance party, but we end up in such quagmires because we do not think about those who choose not to categorise themselves as Unionist or loyalist, nationalist or republican.

The challenge for the Minister is to explain why he thinks that, given all the precedents for the definition of ''representative'', we should feel confident that in five, 15 or 20 years we will remember this debate, and that all those responsible for implementing the Bill will bear our short discussion in mind and ensure that gender and ethnicity factors are included.

I should declare an interest. As hon. Members know, I have Estonian roots. I am realistic enough not to hold my breath and expect the amendment to require an Estonian always to be appointed. However, there are other, larger communities in Northern Ireland and other sections of the community who are perfectly entitled to be cynical about the prospect that the word ''representative'' will, on its own, create any ethnic or gender balance, given what has gone before.

Edward Garnier (Conservative, Harborough)

Will the hon. Gentleman allow me to test him a little further on the matter? There will be five commissioners. I want to know, so that I can understand the thrust of the amendments, what is meant by the hon. Member for Montgomeryshire (Lembit Öpik), or what he understands the hon. Member for North Down to mean, in the Northern Irish context, by ''ethnicity''. There is a confusion, perhaps a deliberate one, between sectarianism and ethnicity. Can the hon. Member for Montgomeryshire, who is a noted explainer of these matters, help me?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Probably not. No, I can—that was a cheeky one-liner. Of course I can help the hon. and learned Gentleman. His question is fair. I assume that he has no difficulty in understanding the amendment's reference to gender balance—

Edward Garnier (Conservative, Harborough)

Not in all circumstances.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

But in most circumstances. I shall try to help the hon. and learned Gentleman by describing how I see the amendment. It is designed to create a clear distinction between what ''representative'' has tended to mean in the past in Northern Ireland legislation, and what it should mean now and in future. In the past, ''representative'' conventionally referred to the distinction between Unionist and nationalist. It was a binary distinction. Introducing ethnicity and gender means that consideration would be given not only to that sectarian distinction. The hon. and learned Gentleman will recall that I used the example of the Alliance party of Northern Ireland, which does not regard itself as being rooted in either of those traditional positions.

I shall give an example of the use of the word ''ethnicity''—if the hon. and learned Gentleman has a better one, I should be happy to hear it—to highlight the fact that we must not enshrine that old binary divide in legislation, which by definition should be about justice and equality.

Sylvia Hermon (UUP, North Down)

I want to clarify what the hon. Gentleman means by ''ethnicity''. We have a large Chinese community in Northern Ireland of between 8,000 and 9,000 people. They make a tremendous contribution, quietly and discreetly, but it is not recognised. I would like them to be included in the commission. That is one example of who I have mind.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Member for Newry and Armagh has caught my eye, Mr. Pike, so I shall give way to him.

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

The hon. Member for North Down said that ethnicity is never recognised. It has been for the past three years, because when the First Minister or Deputy First Minister had to make appointments, ethnicity was recognised at every opportunity. I am pleased to put that on record.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The point has been well made. What is interesting about the hon. Gentleman's intervention is that the word ''ethnicity'' has currency and meaning in Northern Ireland. The First Minister and Deputy First Minister evidently operated on the basis that it was an important consideration.

Andrew Turner (Conservative, Isle of Wight)

With respect to my hon. and learned Friend, I thought that the explanation of ''ethnicity'' given by the hon. Member for North Down was clearer than his, but it was a reference to only one ethnic group. If I recall it correctly, the hon. Member for Montgomeryshire's definition was, ''it is not bi-polar, and if you have a better word I am happy to use it.'' As we do not know what it is that he is trying to describe, that will be difficult.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The staggering clarity of the hon. Member for Isle of Wight (Mr. Turner) leaves me in silent awe. Having accepted the example of the

Chinese community, which is substantial, I assume that my earlier example of the Estonian community did not count because there were not enough Estonians to qualify.

Crispin Blunt (Conservative, Reigate)

On the Estonian community, it was Harold Macmillan who complained about Margaret Thatcher's Cabinet that it had more Estonian members than old Etonians.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

That was worth it because, at the risk of digressing further, The Irish Times once said that people who live in glasnost should not throw Estonians. I apologise to the Committee for having allowed that slight digression.

What we are discussing is not a moot issue but an important point that will have practical consequences. Using the 20-year test that we have discussed before, it is clear that if, in 20 years' time if there is a dispute and the existing definition remains in place, people will say that the Good Friday agreement is about sectarianism. Right or not, that is what the Good Friday agreement implies.

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

The hon. Gentleman makes an interesting point. He uses the words ''sectarianism'' and ''ethnicity''. Does he regard sectarianism in the north of Ireland as a political or a religious factor? If it is regarded as a political factor, that has an ethnic root. He uses the words ethnicity and sectarianism at the same time, but the distinction between them goes to the heart of the point that he is trying to make.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Gentleman makes a good point. I am sometimes guilty of being a little sloppy about interchanging those words, and he is right to highlight that. He pointed out the absolute importance of the definition of the words that we use in Bills, especially those about justice. That needs no further clarification from me, were I capable of providing it.

For once, I feel that I have gone on a little longer than I ought to have done. The hon. Members for Newry and Armagh and for North Down have clearly made the point. If the Government resist the amendment and we vote on it, the Liberal Democrats will feel entitled to support it.

Edward Garnier (Conservative, Harborough)

I hope that the Minister will resist the amendment. It may have been moved with good intentions and a better understanding of the sociological, cultural and political difficulties that have historically affected Northern Ireland than I can bring to bear, but we must be careful of linguistic confusion. In many discussions in this and other Committees, the hon. Member for Montgomeryshire has provided light, as opposed to heat, but I fear that he has fallen into some error.

On the simple grounds of numerical representation, I urge the Government to reject the amendment. The hon. Member for North Down said that there were 8,000 or so Chinese people in Northern Ireland, and I am sure that she is right. If so, they can under no circumstances represent 20 per cent. of the population of Northern Ireland. Let us pursue that example. It would be impossible for the appointers of the commission to do as the amendment asks and ensure

that the members of the commission are representative of the ethnicity of Northern Ireland. To extend the point to its silliest, someone is either one of those 8,000 Chinese people or not. No man or woman on the commission can be representative of the percentage of the population of Northern Ireland made up of those 8,000 people.

Harry Barnes (Labour, North East Derbyshire)

That argument works only if there were to be five members on the commission in perpetuity. There can be combinations of different numbers of members at different stages, so it will be possible to have percentage representation for different groups that operate under it.

Edward Garnier (Conservative, Harborough)

I accept that we are presented with the problem of the word ''representative'', which is used in subsection (6). We are all supposed to represent our constituents, but under no circumstances can I be representative of them all. We simply have to do our best.

I do not want to labour the point. The amendment is well intentioned—I do not mean that in a belittling sense—and I am sure that it has caught the attention of those who will have to make the decision. However, I genuinely fear that it would be unworkable and make the work of the appointers almost impossible.

Gregory Campbell (DUP, East Londonderry)

I come to the subject from a community that has often been overlooked in appointments to non-departmental public bodies. My community sees itself as unrepresented on a variety of bodies, so I have considerable sympathy with the rationale that underlies the amendment. Like other hon. Members, I have considered the practicalities if the amendment were to be agreed to. Bearing in mind the size of the commission, if it were to be reasonably representative in terms of gender, one would expect there to be three females and two males, one of whom would be from an ethnic minority. If not, it would be open season for those who would argue that no reasonable attempt had been made to obtain three females and two males, one of whom happened to be from an ethnic minority in Northern Ireland. That would present major difficulties and make the task even harder. Therefore, while it is a bit bland to say that the body as a corporate entity has to be representative of the community in Northern Ireland, that is more workable than the words in the amendment.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. Member for North Down; the amendment has proved to be a gateway to an interesting and important discussion. I shall concentrate my remarks on the amendment and on the arguments that I deployed, perhaps unconvincingly, on 31 January, reported at column 78 of the Official Report.

I shall resist the amendment—and therefore expect there to be a vote on it—so let me explain why. I am grateful to the hon. Lady for her researches, in particular those in relation to the Lord Chief Justice's decision. I do not want to get into a discussion that might be illuminating for the lawyers present about how persuasive or binding that decision might be. I accept that it is a persuasive decision; it

should instruct the Government's consideration of these matters. That decision was made in the context of parades in Northern Ireland. The hon. Lady is right to say that the expression ''representative of the community in Northern Ireland'' will, if the Bill becomes law, be interpreted in the context in which it operates.

The Government's view is that, in setting up a commission, they should keep under review the law that applies to all the people of Northern Ireland. That is not a restricted context—it is a very broad one—so my argument is that the definitions of ''representative'' and ''community'' will not be restricted to those that applied in the ruling of the Lord Chief Justice.

My second point is that the Government's position is clear. The concept of representativeness covers the issues that the hon. Lady seeks to include. I get the sense from the Committee, and from my experience in Northern Ireland, that the growing practice of requiring such bodies to be representative is welcomed in all parts of the community. It generates hot debates about whether, when people are appointed, they are representative, but nobody attacks the principle.

There must be some understanding that the ability of those appointing individuals to such bodies will be limited by the number of people to be on the body. There is a growing acceptance that not all bodies in Northern Ireland should be so extensive and unmanageable as to reflect everybody's wishes and definitions of ''representative''. There is also a restriction on who applies for the jobs and who is qualified to do the jobs, as we have discussed under other clauses. With all those caveats, I gather that there is a growing acceptance and approval of the phraseology and approach to the appointment to bodies in Northern Ireland.

Bill Tynan (Labour, Hamilton South)

Does my hon. Friend accept that we are considering not the Lord Chief Justice's decision but that of the Secretary of State for Northern Ireland on the suitability of the people on the commission? On that basis, and bearing mind the situation in Scotland and the equality to be found in the Scottish Parliament, would he not express confidence that gender and ethnicity would be recognised by the Secretary of State?

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to my hon. Friend for directing my attention back home. I was tempted, as I prepared my response in my mind, to castigate other parties represented in the Committee for their failure to follow the practice of my party in ensuring gender representation. However, I do not want to get into that.

Chris Mole (Labour, Ipswich)

Oh, go on.

Des Browne (Labour, Kilmarnock and Loudoun)

No, I shall resist that temptation.

I am confident that the Government's intention has been achieved in the Bill, and that the phrase ''representative of the community'' includes ethnic origin and gender. If the phrase is tested, as it was in the case brought to our attention by the hon. Lady, it

will be found to include both gender and ethnic background in this context.

I make one more point to the hon. Lady. She does not propose gender and ethnic background as exhaustive of the meaning of ''representative.'' I have a list that I wrote as I sat here and, although I shall not bore the Committee with its details, it includes all sorts of factors that I have taken into account when I have played some part in the appointment of people to bodies against the test of ''representative of the community.'' There is a significant and growing list of factors, and people sometimes persuade me that other factors should be taken into account. My list is by no means exhaustive, but I do my best to achieve representativeness when I have a role to play in such bodies.

That leads me to a concern whose detail the lawyers in the Committee may understand, while others may not. [Interruption.] It depends on how well I explain it. Those who have had to argue statutory interpretation before a court recognise the danger of narrowing a focus of a definition by including selected examples in relation to a general description. People would argue that, if Parliament chose to include certain examples, it sought to exclude others. I want the phrase to be interpreted by the court in the broadest possible sense in relation to the community of Northern Ireland. If I have explained that properly and people understand it, I am gratified. The debate seemed to become far too lawyerly when the nature of the decision was discussed in detail, and I did not want to fall into that trap.

It is the Government's intention that the phrase should be interpreted broadly, and for those reasons we shall resist including any examples in a definition of the phrase, as strongly as the hon. Lady and my hon. Friend the Member for Newry and Armagh may persuade us to do so, because that might have the unintended consequence of narrowing the definition.

Sylvia Hermon (UUP, North Down)

I must say that I did not feel as if I had fallen into a trap in explaining our judgment of the body of law that has built up around the phrase ''representative of the community.'' I tried to explain why I was concerned and why I tabled the amendment. I did not think that it was a trap. I remain deeply concerned that if we do not include a reference to ethnicity or gender, the clause will not be interpreted as I would wish. Therefore, with reluctance but because I feel passionately about the issue, I shall press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 18.

Clause 51 - Duties of commission

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

I beg to move amendment No. 279, in page 29, line 27, after 'State', insert—

'and the First Minister and Deputy First Minister acting jointly'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take the following amendments: No. 280, in page 29, line 33, after 'State', insert—

'and the First Minister and Deputy First Minister acting jointly'.

No. 281, in page 29, line 36, after 'State', insert—

'and the First Minister and Deputy First Minister acting jointly'.

No. 282, in page 30, line 2, after 'State', insert—

'and the First Minister and Deputy First Minister acting jointly'.

No. 283, in page 30, line 4, leave out subsection (b).

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

The purpose of the amendments is to try to ensure that the programmes of work of the Law Reform Commission will be subject to, and have the approval of, the First Minister and Deputy First Minister acting jointly, as well as being subject to the Secretary of State.

It is highly likely that much, if not all, of the work of the Law Reform Commission will relate to legislation in areas for which responsibility has been devolved to the Assembly. The provisions in the Bill according to which the Secretary of State alone will be responsible for approving its programme are not fully appropriate, as decisions will impinge on devolved functions. It is insufficient for the Secretary of State to consult only the First Minister and Deputy First Minister, and it is important that the latter should have powers equal to those of the Secretary of State in making decisions.

I know that the issue has some difficult implications. I am also aware that there could be a three-tier stage before devolution. The Minister confirmed yesterday that some of the Bill's provisions would apply before devolution, so there will be a staged approach. It will be a quantum leap for the political process in the north of Ireland to take control of these issues again, but I want to try to ensure that the procedures have the input and standing that they should have. The amendments not only place responsibility on the First Minister and Deputy First Minister, but involve them in decisions in a way that could help devolution—if and when it happens.

I make my final point in a political, rather than a disparaging spirit. The more we get away from Secretaries of State and Lord Chancellors, the more we shall be able to take on the responsibilities that come our way and which, I believe, we shall successfully carry out. That is why I tabled the amendments, and I await the Minister's reply with interest.

Des Browne (Labour, Kilmarnock and Loudoun)

As a long-standing and committed advocate of devolution for not only Northern Ireland,

but Scotland and other parts of the United Kingdom, I have some sympathy with my hon. Friend's remarks on transferring functions to politicians who are accountable to the people they serve, and I agree with him. I also understand that the reasoning behind the amendment reflects the review.

The Bill makes the Secretary of State responsible for approving the Law Commission's programme prior to the devolution of criminal justice functions, although my hon. Friend is correct to say that the commission will also have a remit in the devolved field.

The review team was clearly aware of the separate areas of responsibility for civil and criminal law, and recognised that structural complexities will precede the devolution of responsibility for criminal law. The review made it clear that the Secretary of State should be given responsibility for appointments to the commission, and we are following through that recommendation.

The review also recommended, however, that the commission's work programme should be agreed with the Secretary of State, the First Minister and the Deputy First Minister. During preparations for the Bill, it was concluded that complicated and extensive drafting would be required to separate out and precisely delineate in the Bill the responsibilities of the Secretary of State, the First Minister and the Deputy First Minister. We do not, therefore, want to take the amendments as they stand.

Given where the balance will lie in terms of the commission's work programme, we should place responsibility for the programme with the Secretary of State, as we did for appointments. In practice, however, we envisage that the Secretary of State will determine the programme in the reserved field and that the First Minister and the Deputy First Minister will do the same in the devolved field. That will require close consultation between the Ministers, and I am happy to give an assurance that such co-operation will take place. Indeed, I am prepared to go further and to draft a clear concordat between the First Minister, the Deputy First Minister and the Secretary of State, although it will obviously be for the First Minister and the Deputy First Minister to decide whether they want to express matters in that way. None the less, I give that clear assurance, in so far as I can, on the part of Secretary of State.

I also assure my hon. Friend that the Secretary of State will work closely with the First Minister, the Deputy First Minister and the Executive on the establishment of the Law Commission. If the First Minister, the Deputy First Minister and the Executive are unhappy about the commission having a role in the civil field before devolution, that would weigh heavily on our decision about when to commence the provisions. I should also clarify that, post-devolution, the issue will be subject to a transfer order, as we discussed. Which Minister takes the place of the Secretary of State in relation to those functions will be a matter for the Executive in the Assembly to decide.

Crispin Blunt (Conservative, Reigate)

We have had an ongoing discussion about which functions will be transferred. The

Minister has made it clear that when the Government choose to transfer such functions they will do so by order, and I want to ensure that I have understood that. He seems to be saying that the functions that the Bill states will be carried out by the Secretary of State could be transferred to a Minister of the devolved institutions, who would presumably take responsibility for home affairs or justice in the Assembly. Could such functions be devolved under the order to the First Minister and the Deputy First Minister acting jointly, who would then devolve the function to whomever they nominate? I am slightly confused by what gets transferred when, and I would be grateful for the Minister's assistance.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. Gentleman for asking for clarification, and I shall try to help him and the Committee to understand what will happen.

A transfer order will be made under the Northern Ireland Act 1998. The two sides to that transfer are the transferor and the person—in this case the Executive in the Assembly—to whom the functions are transferred. There must therefore be a receipt of that transfer, and it is for the Executive in the Assembly to decide how it will be received.

Other provisions in the review recommend the creation of a Ministry of Justice. The Executive may, for example, take the view that the determination of the programme for the Law Commission would sit properly with the responsibilities and accountabilities of a Minister for Justice as opposed to the First Minister and the Deputy First Minister. Consistent with the constitutional position in relation to devolution, the structure and responsibilities of the Executive are a matter for them, subject to the structures set out in the 1998 Act.

I shall speculate about how that might be done. The functions could be transferred in the first instance to the First Minister and the Deputy First Minister, and then be further transferred, or they could be transferred direct if that were agreed. Such a decision would be made at the time, but the views of the First Minister and the Deputy First Minister, the Executive and the Assembly would have to be taken into account.

The hon. Member for Reigate asked whether the Law Commission fits into any of the relevant descriptions of reserved areas within schedule 3. Thanks to his intervention, I have looked at that again. There is a debate about whether it fits, and we may need to table an amendment at a later stage that clearly puts it into schedule 3 in order for it to be considered a reserved area to be devolved. I am grateful to him for pointing that out, as it goes to show the benefit of having debates in Committee.

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

I thank the Minister for his guidance. It is important that he put on record that there are two sides to devolution: a decision by the Westminster Government that they want, desire and intend to devolve; and the requirement for a decision of the political process in Northern Ireland to accept those devolved powers. The Good Friday arrangements do

not involve only the Government and parties in the north of Ireland, because there are more signatories than that. We should be reminded of that as often as possible. Will the Minister inform us where the term Republic of Ireland came from and how it got on to a Bill promoted by one of two sovereign Governments involved in the Good Friday agreement?

I am in favour of devolution for many reasons, including the fact that the process towards which I spent most of my life working is almost complete. The maturity of devolution will be measured by its ability to deal with issues such as justice. Not everybody shares my view, or has the same confidence. I cannot speak for the First Minister or the Deputy First Minister, acting jointly—or speaking jointly. There will be much soul searching in all communities in the north of Ireland before they agree to accept the devolved powers. That is why we must get the legislation right. Matters that are debating points in this House, and may look small in the overall pattern, might not be so perceived when the issue is devolved.

Crispin Blunt (Conservative, Reigate)

I want to be clear about what the hon. Member for Newry and Armagh is saying. I assume that he is referring to the duty placed on the commission to consult the Law Reform Commission of the Republic of Ireland, and that he feels that it will be difficult for the Assembly to accept that. I would be grateful for his guidance, because I do not want to be under a misapprehension.

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

That is a misunderstanding of my point. Part of the agreement between the two sovereign Governments was the terminology each would use in relation to the other. No one would intend to deviate from that, but I remind the Minister that the Good Friday agreement contains more than the agreement of the parties. I leave it at that, and I have no doubt that hon. Members can reflect on those words.

The task will not be easy. Even the way in which the process is devolved will not be easy. It could be devolved to the First Minister and Deputy First Minister acting jointly, or to a new Minister known as the Minister of Justice. The Assembly might not agree to extend the number of Ministers. The Northern Ireland Act 1998 might have to be changed to provide for a new Minister—the position could not be given to a junior Minister—whose appointment would be in the hands of the First Minister and Deputy First Minister.

Many questions will have to be asked. I tabled the amendment so that we could ask those questions and discover the answers. I shall not press the amendment to a vote, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 245, in page 30, line 4, leave out second 'and'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take the following amendments: No. 243, in, page 30, line 5, at end insert—

'(cc) The Human Rights Commission for Northern Ireland, and

(cd) The Equality Commission for Northern Ireland.'.

No. 244, in page 30, line 9, leave out from beginning and insert—

'(c) any other such law reform body in any jurisdiction that appears to the Commission appropriate with respect to a particular area of law.'.

Sylvia Hermon (UUP, North Down)

Amendment No. 245 is a drafting amendment made necessary by amendment No. 243.

Clause 51(4) requires the commission to consult only the Law Commission, the Scottish Law Commission and the Law Reform Commission of the Republic of Ireland. I want emphasis to be given to human rights and equality, as in the Belfast agreement, the Good Friday agreement and the review. Greater recognition should be given in the Bill to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. The purpose of amendment No. 243 is to add them to the list of bodies to be consulted by the new commission. That would recognise the emphasis in the agreement on human rights and equality, to which the review of the criminal justice system also referred.

Amendment No. 244 would broaden the range of law reform bodies with which the commission must consult, so that the commission could consult any other law reform body in any jurisdiction, including the Law Reform Commission of the Republic of Ireland and others, if that would be helpful.

Des Browne (Labour, Kilmarnock and Loudoun)

In respect of amendment No. 243, we recognise the important role of the Human Rights Commission and the Equality Commission and the fact that they have a legitimate interest in law reform. I am happy to put that on the record. They were not considered for inclusion and then excluded. However, it is not appropriate to impose an obligation on the commission to consult them, although we expect it to consult other bodies in Northern Ireland from time to time, depending on the issues being reviewed and considered.

It is proper that the commission's programme of work should be approved in consultation with Ministers who have responsibility for law reform. Both the commission and Ministers would be interested to hear the view of organisations with an interest in law reform, but we do not want to be prescriptive in the Bill

Sitting suspended for a Division in the House.

On resuming—

Des Browne (Labour, Kilmarnock and Loudoun)

I shall turn to amendment No. 244. I said to the hon. Member for North Down that, in performing its duties, it is right that the new Law Commission consults the three law reform commissions in the United Kingdom and Ireland. That reflects the recommendations in paragraph 14.53 of the review, which states:

We believe the functions of the Law Commission for Northern Ireland should include . . . keeping abreast of developments in other jurisdictions, including in particular England and Wales, Scotland and the Republic of Ireland.

That is what the clause is designed to achieve.

Clause 51(2)(f) states that the commission must

obtain such information as to the legal systems of other countries as appears . . . likely to facilitate the performance of its . . . duties.

Together, those two provisions, both of which reflect specific recommendations of the review, would cover what the hon. Lady seeks to achieve through her amendment. The commission may then consult other law reform commissions or bodies as it chooses, and as is necessary. The amendment is unnecessary.

Sylvia Hermon (UUP, North Down)

I have had 15 minutes to reflect on the fact that the Minister replied in part to my arguments for the inclusion of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland.

Our short break also enabled me to turn again to the helpful interview that the Minister gave to The Irish News on Monday 21 January 2002. I hope that I will not be shot down in flames for quoting him out of context, and I shall try to avoid doing so. The interview was entitled, ''Now to catch up on the criminal justice system'', and in it he said:

We are trying to create a modern democracy in Northern Ireland which has at its heart respect for human rights and equality.

Such language is repeated at the beginning of the implementation plan of the criminal justice review, in the chapter on human rights and guiding principles. I welcome the fact that it states:

The Government agrees that human rights are central to the criminal justice system.

I feel enormously committed to that idea.

Those who voted for the Belfast agreement—or the Good Friday agreement if people prefer to call it that—voted for human rights and equality, and I want to see that reflected in the Bill. It will not detract from the work of the Law Commission to require that it consult with the most obvious of all bodies in Northern Ireland: the Northern Ireland Human Rights Commission and the Equality Commission. Therefore, I regret to say that I am not persuaded by the Minister's arguments. The break of 15 minutes has reinforced in my mind that I have to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 2, Noes 13.

Clause 52 - Reports etc.

Crispin Blunt (Conservative, Reigate)

I seek clarification from the Minister again about what happens on transfer. I note that the clause places a duty on the Secretary of State to lay the reports before both Houses of Parliament and on the First Minister and Deputy First Minister, acting jointly, to lay them before the Legislative Assembly. Will the Minister explain what happens when the functions are transferred? Is the reference to the Secretary of State simply lost from the Bill, or will it be covered in the transfer order? Will that reference still be appropriate once functions have been transferred?

I do not know whether there is a parallel with the devolved Administration in Scotland. Will there still be a requirement to lay reports of the Northern Ireland Law Commission before this Parliament even after the administration of justice has been devolved? I seek clarification on that point.

Des Browne (Labour, Kilmarnock and Loudoun)

The answer to the question of the hon. Member for Reigate is that it will depend on what the report relates to and where the legislative competence lies. In the pre-devolution period, when only part of the legislative competence and Executive responsibility lies with the devolved authorities, it is clear that there would be a dual structure. To cite the case of Scotland, it would be pointless for reports of the Law Commission that related to the legislative competence and the Executive responsibility of the First Minister and the Executive and of the Scottish Parliament to be laid before this Parliament. I do not believe that they are, although I did not check that before coming into the Committee. I shall have that checked, and if I am wrong I shall write to the hon. Gentleman.

I believe, therefore, that after the devolution of criminal justice functions, the reference to the Secretary of State will be deleted to the extent that those functions are devolved. I can think of some circumstances where reserved matters related to criminal justice may concern the Law Commission, although they would have a very narrow focus. It may be appropriate in terms of the devolution order to reserve those matters so that any report on them must be laid before this Parliament, but I do not think that when responsibility for criminal justice is devolved, the references to the Secretary of State would be entirely lost.

As I try to explain this to the hon. Member for Reigate, I must concede that I am not 100 per cent. confident that the answer that I am giving him is correct. Because of the specific nature of the question, I shall undertake to write to him. This is a serious and important point. I shall need to satisfy myself, because part of my mind suggests to me that the Law Commission may well have occasion to report on an area that is not part of the reserved field. I may be wrong about that. However, I can give the hon. Gentleman an unequivocal assurance that, under the

clause, it will be appropriate only after devolution for any reports in the reserved field to be laid before the Legislative Assembly of Northern Ireland.

However, I have to satisfy myself that there is no possibility of the Law Commission reporting on an area that is outside the reserved field. Insofar as I am able to satisfy myself, that is the complete answer. I hope that I have not confused the Committee, because I am in danger of confusing myself.

Crispin Blunt (Conservative, Reigate)

The effect of the clause depends on the meaning of the phrase,

lay before each House of Parliament a copy of each document.

I assume that it means that there is a formal duty to make available the document to the House, and that each House will have an opportunity to consider it. It may be appropriate for the reports of the Law Commission, regardless of their subject, to be made available to these Houses. Northern Ireland remains part of the United Kingdom and its law remains a matter of concern to the United Kingdom, whether it is devolved or not. Those who drafted the clause may have regarded this as an area in which the Houses should have a sustained interest.

The Minister has confused me as to where functions will go and what will remain functions for the Secretary of State after devolution. That is a matter for concern, because the post of Secretary of State will continue to exist after the devolution of justice and of the whole process of complaint, just as there continues to be a Secretary of State for Scotland—although how busy that post is has become a matter of controversy. Perhaps the Minister could clarify whether the clause would remain intact after devolution.

Des Browne (Labour, Kilmarnock and Loudoun)

I apologise to the Committee, as I should have come to the Committee prepared to answer the hon. Gentleman's question, and I am not able to respond with the clarity that I should like.

I understand the hon. Gentleman's point; he has pursued a consistent theme in that regard throughout our proceedings, and his point deserves a clearer answer than I have been able to give. I undertake to write to Committee members to clarify the position.

Question put and agreed to.

Clause 52 ordered to stand part of the Bill.

Clause 53 - Aims of youth justice system

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I beg to move amendment No. 278, in page 30, line 31, leave out subsection (1) and insert—

'( ) The principal aim of the youth justice system in Northern Ireland is to prevent offending by children and to promote the child's reintegration and the child assuming a constructive role in society.

( ) Every child in contact with the law shall be treated in a manner consistent with the promotion of the child's sense of dignity and worth, reinforcing the child's respect for the human rights and fundamental freedoms of others.'.

Peter Pike (Labour, Burnley)

With this it will be convenient to discuss the following amendments: No. 223, in page 30, line 32, after 'children', insert—

'having taken into account the best interests of the child as the paramount consideration, as identified in the United Nations Conventions on the Rights of the Child; the International

Covenant on Civil and Political Rights; the United Nations Guidelines for the prevention of Juvenile delinquency; the United Nations Standard minimum for the Administration of Youth Justice and the United Nations Guidelines for the protection of juveniles deprived of their liberty.'.

No. 264, in page 30, line 32, after 'children', insert—

'and young persons'.

No. 284, in page 30, line 41, at end insert—

'(3A) All persons with responsibility for the youth justice system shall have regard to the United Nations Convention on the Rights of the Child.'.

No. 277, in page 30, line 37, leave out 'welfare' and insert—

'best interests'.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The amendments in the group stand in my name and those of the hon. Member for Newry and Armagh and my hon. Friend the Member for Cheadle (Mrs. Calton). Of that gang of three, I stand alone for unavoidable reasons, as my hon. Friend has a commitment that she could not get out of and the hon. Gentleman was obliged to return to Northern Ireland. It is a shame and unsatisfactory that he could not stay until this part of the debate, because I know that he wanted to be here. Nevertheless, following consultation with him, we decided that I could make the points on behalf of all three of us.

Subsection (1) states:

The principal aim of the youth justice system is to protect the public by preventing offending by children.

In the judgment of those who tabled the amendments, the principal aim of the youth justice system in Northern Ireland is to prevent offending by children and to promote the child's reintegration and assuming a constructive role in society.

Those two approaches to law and order have different principles: one is a form of prevention, the other a form of empowerment. At the heart of this and the subsequent amendments that we have tabled is a debate about how we should approach the reintegration of children and guarantee that youth justice ensures that individuals who are at risk of offending or who have offended are treated fairly.

At the heart of our concerns lie the criticisms made by organisations such as the Children's Law Centre and Include Youth, which are gravely concerned that the balance in this part of the Bill is not right. In addition, a heavy body of evidence from international covenants and agreements suggests that we must think again about how this part of the Bill is phrased.

I shall use amendment No. 223 to discuss the underlying principles, so that we do not need to keep returning to them and can debate the specific intentions behind later amendments.

Andrew Turner (Conservative, Isle of Wight)

This is a wonderful catch-all, motherhood and apple pie sort of amendment. What does the hon. Gentleman think should happen when the best interests of the child conflict with the best interests of the community?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Gentleman might like to give an example, because I cannot immediately think of one. He is perhaps suggesting that the empowerment of an individual or his reintegration

into society is not in the best interests of society or, alternatively, that allowing an individual to break the law is in his best interests. That would probably lead to a debate about definitions, although I am not inviting the Committee to go further than it must into such a debate. In the long term, however, it will almost always be in the interests of the child and of society to take account of the body of covenants laid out in amendment No. 223.

If the hon. Member for Isle of Wight takes a different view, I shall be interested to hear it, because my mind is open. Speaking for myself, my hon. Friend the Member for Cheadle and the hon. Member for Newry and Armagh, however, it is clear that the amendment is synergistic and seeks to combine the interests of the individual and those of society. That is pretty much the starting point for many of the documents mentioned in the amendment, many of which are spawned by the United Nations.

I want to quote from those documents, to which the United Kingdom must have serious regard. The preamble to the UN convention on the rights of the child states:

childhood is entitled to special care and assistance . . . Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.

I shall not read the entire convention, but statements all the way through draw on the assumption that handling the individual in an empowering fashion will also tackle the problems created by youth offending. Article 3.1 states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Andrew Turner (Conservative, Isle of Wight)

First, I notice that the hon. Gentleman quoted the words ''a primary consideration'', whereas the amendment states ''the paramount consideration''. There is a vast gulf between those two phrases.

I wanted to ask the hon. Gentleman about his earlier quotation about a child growing up in a family. From memory, that was one of the considerations that he said should be borne in mind. We all support the idea of a child growing up within the family, but the problem with such conventions is their interpretation. Does it mean that it is impossible to imprison a child? I have heard nothing yet—

Peter Pike (Labour, Burnley)

Order. I urge brevity for all interventions. I do not like cutting in on hon. Members when they are speaking.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I thank the Committee in advance for its forbearance; my contribution was slightly longer than I would normally be entitled to make. I want to establish the principles, because they are of great importance to organisations that seek to support, protect and nurture children, including those who, in a legal sense, end up going off the rails.

I shall correct the hon. Member for Isle of Wight. He said that I had suggested that the paramount aim was to do all those nice things for children. Amendment No. 278 states:

The principal aim of the youth justice system in Northern Ireland is to prevent offending by children and to promote the child's reintegration and the child assuming a constructive role in society.

It makes an extremely clear statement. Amendment No. 223 refers to

the best interests of the child as the paramount consideration.

The hon. Gentleman was right about that, but if he had waited a moment I would have gone on to say that I and my hon. Friend the Member for Cheadle believe that amendment No. 278 is better constructed than ours.

I do not want to quibble about the wording of amendment No. 223. I am using it as a vehicle to provide the Committee with the opportunity to put on record the core elements of the conventions that we believe are currently not sufficiently represented in the Bill.

Mark Francois (Conservative, Rayleigh)

You asked for brief interventions, Mr. Pike, and I shall attempt to comply.

The hon. Gentleman is putting forward liberal justice with a small and a large ''L''. He concedes that amendment No. 223 may not be as well drafted as amendment No. 278. Will he withdraw his amendment, so that we can concentrate on amendment No. 278.

Peter Pike (Labour, Burnley)

Order. The second amendment has not been moved. It is grouped with another amendment for debate, but only the first has been moved.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Such is the reverence and awe with which some hon. Members regard the United Nations convention on the rights of the child that I am not surprised that they want to gag me. I know the hon. Member for Rayleigh (Mr. Francois) well, and have great affection for him. I hope that he does not really want to gag me, but I assure him that I do not intend to press amendment No. 223 to a Division.

I am using the amendment as a vehicle to put on record some important considerations that come directly from that convention and others. It will provide a basis for debates on subsequent strings of amendments, many of which were tabled by my hon. Friend and me. I remind the Committee that I am doing this to avoid duplication, so that I do not have to keep mentioning the conventions later. I want to move the Committee on as best I can. I shall need to mention a few other elements from the conventions. I hope at least to explain my motives. I see the hon. Member for Rayleigh nodding; that is a relief.

Article 12 of the United Nations convention on the rights of the child provides:

States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

It goes on to say:

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or though a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 14 states:

States Parties shall respect the right of the child to freedom of thought, conscience and religion.

I shall come back to that later. I assume that hon. Members have access to the document and can read it at leisure. I shall provide free copies for those who want them. It continually assumes that treating the child with respect and dignity and empowering and reintegrating the individual is the best way to prevent problems from arising in the future.

We should give more regard to the UN convention on the rights of the child than is suggested in the crucial first statement in clause 53. The other evidence that I have with me is legion. The UN rules for the protection of juveniles deprived of their liberty state that the first fundamental perspective is—

Andrew Turner (Conservative, Isle of Wight)

On a point of order, Mr. Pike. The hon. Gentleman is quoting in extenso from documents that are not in front of the Committee. If we are to judge what is being said, it would be helpful for us to have access to those documents.

Peter Pike (Labour, Burnley)

The position is clear. Amendment No. 223 relates to those documents, and Mr. Öpik is in order to refer to them, so long as he keeps his quotes within reasonable limits. I would not expect him to read every aspect of them, but he is in order, and he has assured the Committee that he intends to be relatively brief.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I assure the hon. Member for Isle of Wight that I am not making it up—it is all here in black and white—and I assure you, Mr. Pike, that I am précising dramatically.

Peter Pike (Labour, Burnley)

I accept that.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

If Committee members feel that I am being a zealot over these documents, they should be tremendously grateful that my hon. Friend the Member for Cheadle has had to leave. She will be checking up on me when the Official Report is printed. In the spirit of the debate, I shall give a few more examples as concisely as possible.

The first fundamental perspective that comes from the UN rules for the protection of juveniles deprived of their liberty states:

The juvenile justice system should uphold the rights and safety and promote the physical and mental well-being of juveniles. Imprisonment should be used as a last resort.

Under ''8'', the document says that

care of detained juveniles and preparation for their return to society is a social service of great importance.

Des Browne (Labour, Kilmarnock and Loudoun)

I am reluctant to intervene on the hon. Gentleman because I know that he is trying to cover a wide range of issues as concisely as possible. However, if he wants to give examples from the principles set out in international conventions of cases in which the law of Northern Ireland does not respect those conventions, it is incumbent on him to do more than to read them out. He must make it clear where the law is deficient. He has given important examples of the principles that are designed to protect children, to which the Government have signed up. Previous Governments signed up to them too. They are

religiously followed in the legislation that applies in Northern Ireland.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

In order to achieve the clarity that the Minister, reasonably, calls for, I might—I did not want to do this—have to cite specific elements of the documents as we reach the amendments to which they relate, in order to illustrate the deficiencies in the Bill. I shall alter my strategy dramatically and talk just about the amendments that we are considering. I have covered the parts of the documents that will allow me to do that. The Minister looks a little edgy, perhaps fearing that I shall try to pull apart this entire section of the Bill. No one questions the Government's desire to achieve the result that I advocate. I return to the matter of balance, and shall move swiftly to discuss the specific import of amendment No. 278.

The difference between the amendment and the provision in the clause relates to the phrase

the child's reintegration and the child assuming a constructive role in society.

Hon. Members can read the amendments for themselves, but if the Bill is to do justice to the principles that I have already read out and to the Minister's intent in this area, it needs to do more than baldly suggest that the prime objective is to protect the public.

When the focus is on crime prevention, we often store up problems for the future by curing the symptoms rather than the cause. Clause 53 sets out the principles of part 4, and we want the statement of principle to include the codes that I have described. For that reason, it is necessary to consider amendment No. 278 in the context of amendment No. 284, which states:

All persons with responsibility for the youth justice system shall have regard to the United Nations Convention on the Rights of the Child.

That is the document from which I have quoted extensively.

The hon. Member for Isle of Wight made a perfectly reasonable point about amendment No. 223. It is my judgment that amendments Nos. 278 and 284 would provide a more elegant and robust solution to the challenge that we set ourselves in amendment No. 223. In addition, amendment No. 277 would change the word ''welfare'' to the words ''best interests'', which is more faithful to the spirit of the principles that I have proposed.

Considering the package of amendments as a whole, we are asking the Government to rebalance the intention of the principles in clause 53, which relate to the whole of part 4, so that they include rehabilitation rather than just prevention. I have examined this part of the Bill in great detail, so perhaps I can predict the Minister's response. He may feel that my concerns are adequately covered in other clauses. I am not intending to be confrontational; I am just concerned about an omission that might, in time, have a salient effect on the emphasis of the justice system towards young people in Northern Ireland.

The Government have shown genuine concern for human rights. They have been proactive in the international forum, and have tried to embody many

worthy conventions in British law. It seems a shame not to apply that same rigour to this part of the Bill when it would be relatively easy to do so. I intend to press amendment No. 278 to a vote if the Minister's reply does not fulfil my strategic intent and that of my hon. Friends. But if he can give an assurance that he will revisit the issue, with a view to making an express commitment to incorporate the principles of the UN convention on the rights of the child, I shall be happy to withdraw the amendment.

Crispin Blunt (Conservative, Reigate)

I listened with care to the hon. Member for Montgomeryshire and I disagree with him, not on the intention behind his proposals regarding children but because this part of the Bill on youth justice must have regard to the whole community, the Government's aims to improve justice meted out to children and the need for children to face up to their responsibilities.

The Government's overall objectives are welcomed, and the Opposition support them. We have concerns on some matters of detail: the strength of reparation orders, the strength of the community restorative orders and the way in which the conferences are to take place. However, the legislation is wholly consistent with all the conventions referred to by the hon. Member for Montgomeryshire.

This debate does not take place in isolation. We are all aware of the percentage of crime that is committed by children. The legislation will include 17-year-olds in the category of youth justice. A significant percentage of criminal behaviour is carried out by those under 18. Ultimately, we are debating the protection of the public. In drafting subsection (1), the Government and the review group have been criticised by human rights bodies, such as the Children's Law Centre. That body wants to see an amendment to the clause. It states:

The principal aim of the Youth Justice System is to prevent offending by children, having taken into account the best interests of the child as the paramount consideration.

I part company with the organisation on that point. The paramount consideration is legitimately the protection of the public.

The hon. Member for Montgomeryshire is asking us to incorporate his judgment. When he referred to imprisoning children or putting them into custody, he implied that that would lead to further problems down the line, because there would be a lack of public protection when children were released from schools of crime to cause more trouble. It is a matter of judgment whether custody will be the right solution. The first consideration must be protecting the public. In my county of Surrey, the chief constable arrested five repeat burglars in Guildford. They would be considered youth offenders under this Bill because they were all younger than 18. There was a 25 per cent. drop in the crime rate in Guildford by putting those individuals into custody.

Mark Francois (Conservative, Rayleigh)

We should also consider that a large proportion of crime committed by children is committed against other children. I cite the example of mobile phone theft.

Crispin Blunt (Conservative, Reigate)

That is true and I imagine a vast amount of it is unseen by the system and the statisticians. The welcome innovations that we will debate in part 4 of the Bill have to be seen in context. The Government have been correct in phrasing the overall objective. They have the Opposition's support because they achieve in detail the objectives to which the hon. Member for Montgomeryshire, the Government, the official Opposition and all others of right mind are committed.

Edward Garnier (Conservative, Harborough)

I am somewhat concerned by the amendment tabled by the hon. Member for Montgomeryshire. It would not advance the youth justice system in Northern Ireland one jot. Equally, I am not hugely convinced that subsections (1), (2) and (3) help.

I am interested that the Government are prepared to place in the Bill a clause headed:

Aims of youth justice system.

When the Access to Justice Act 1999 was in Committee, there was a considerable dispute between the Government and me. The then Parliamentary Secretary in the Lord Chancellor's Department, the right hon. Member for Ashfield (Mr. Hoon), who is now Secretary of State for Defence, had carriage of the Access to Justice Bill. Lord Ackner and others sought to put an aims clause into that Bill and the right hon. Member for Ashfield argued with great vehemence that the inclusion of an aims clause would be dematerialist and, at best, unhelpful. I do not know why we should have an aims of youth justice system clause in this Bill. To my mind it is unhelpful.

The use of the expression:

The principal aim of the youth justice system

suggests that there are other aims that are of lesser value. When one compares subsection (1) with subsection (3), the value of subsection (1) is wholly undermined. If the principal aim of the youth justice system is to protect the public by, as the hon. Member for Montgomeryshire said, preventing offending by children, one bangs them up. The only way in which to prevent the public from being interfered with by offending children is to keep them off the streets.

That is, of course, not what the Government mean. They mean that it would be nice for the public to know that they are concerned that youth crime is a problem, but having set out that lofty aim they will not implement the meaning of subsection (1). Subsection (3) states that those in charge of the youth justice system must exercise their functions

with a view (in particular) to furthering their personal, social and educational development.

It is possible for children to be placed in custody, and while they are in custody to have their personal, social and educational development looked after.

That is understandable in theory, but I have a suspicion that subsections (1), (2) and (3) are no more than an early-day motion. They are of little legislative value, and they are of little value to those who sit in judgment or who work in the youth justice system in Northern Ireland. I have no idea whether other members of the Committee are magistrates, and I

may be the only member who, as a judge, has sent someone to prison. I assure the Committee that every magistrate in a youth court and every judge who has to deal with people under the age of 18 will have in mind, if not the text of the various conventions and so on to which the hon. Member for Montgomeryshire referred, the aspirations of subsections (1), (2) and (3). However, they would not want to be hobbled and would not be assisted by the need to reach a conclusion that fits the exact form of the clause by having the clause placed in front of them between the child in question and the decision that they must eventually take in the interests of justice.

The only subsections in clause 53 of any value to a court and those who come before the youth justice system are subsections (4), (5) and (6), which define what we shall be dealing with in later clauses in part 4. Subsections (1), (2) and (3) are interesting to read and inoffensive in the terms in which they are expressed, but are of no utility whatever to the practical work of dealing with young offenders in courts. They will not be removed because I believe that it would be better if they were, but I ask Minister to explain why the Government said one thing in 1999 and are saying something else in 2002, and why the first three subsections should be in the Bill.

Des Browne (Labour, Kilmarnock and Loudoun)

It might help the hon. and learned Member for Harborough if he had a copy of the review document before him. If he does not have one, I can provide one. Paragraph 10.63 refers to the purpose and reasoning behind the recommendation that

in drawing up legislation . . . the Government should develop, agree and incorporate a clear statement of the aims of the juvenile justice system in Northern Ireland.

That shows that there may be reasons for expressing in statute aims other than for the strict purpose of allowing judges to interpret them. The purpose is clear and I am sure that, in preparing for the Committee, the hon. and learned Gentleman read them because he would have known that we were likely to discuss the matter. Otherwise, perhaps he will read them so that we can discuss them later.

Mr. Garnier rose—

Des Browne (Labour, Kilmarnock and Loudoun)

I am not inclined to take an intervention now because I have other comments to make that are important to our debate.

I have no criticism of the hon. Member for Montgomeryshire for speaking to amendments in other hon. Members' names and I understand why he wants to open up this area of debate. I have no criticism of anyone who lobbies the Government in the interests of children and to redirect our attention to international conventions and principles accepted by successive UK Governments, who accepted that international standards that relate to the protection and interests of children were appropriate. We can, and do, look to other countries and find that they do not protect children as we do, so it is incumbent on us to observe the principles in the conventions, and set by example that which should apply the world over.

I read with interest the contributions to the consultation processes, including those for the

review. They came from a number of well-informed and important groups. However, that does not mean that, as a Minister standing at the prow of the history of UK Governments' attempts to respect conventions, I should not add something on record: although we must constantly be drawn back to principles, reconsider legislation and improve it if we can, we should not say that there should be no concession or that the principles, which the hon. Member for Montgomeryshire sets out in short and some consultation contributions set out at length, are not being respected.

UK Governments have been punctilious in ensuring that conventions are respected, so I say to the hon. Gentleman that if he chooses parts or articles of conventions that he believes are not being properly respected, it is incumbent on him to point them out so that they can be addressed. It is better that that happens as we proceed through the Bill. He will find no absence of willingness on my part to address them. No hon. Member would want to be party to the enactment of legislation that contravenes our international obligations.

In moving amendment No. 278, the hon. Member for Montgomeryshire provides an alternative form of words for subsection (1). I cannot, and do not, disagree with the sentiments expressed in what I consider to be a thoughtful amendment. I am glad that it has been moved. None the less, although the words are different, his sentiments are already reflected in the Bill.

The hon. Gentleman's genuine concerns about reintegration and a constructive role in society for the child can best be addressed through preventing offending and re-offending. A child's sense of dignity and self-worth can be developed by having regard for his or her welfare and by furthering his or her personal, social and educational development. Building a sense of respect for the rights and freedoms of others can be achieved by encouraging children to recognise the effects of crime on themselves and others. I contend that the hon. Gentleman and I are saying the same thing, but I prefer the way in which it is worded in the Bill.

I understand the thinking behind amendment No. 233. However, I am worried that it confuses the Bill's drafting considerably, and risks duplication in some areas and conflict in others. By advocating the prevention of offending as the means of protecting the public, and by directing persons and bodies to have regard for the welfare of the child—particularly by furthering the personal, social and educational development of children who come into contact with the youth justice system—the statement of aims is entirely consistent and compatible with all the international conventions in the amendment.

The spirit and letter of the international instruments are further satisfied by legislative provision, which already restricts the use of custody for children and which, in this Bill, increases the community sentencing option for courts, traduces restorative interventions and makes available pre-court diversionary arrangements. Those legislative provisions are underpinned by policies that aim to maintain young

people in their communities by providing support to them and to their families before offending patterns are confirmed. The aims therefore set the scene for, and must be viewed in the context of, all that we evidently intend to do in legislative and policy terms to protect the public, meet victims' needs and, crucially, support children away from crime.

The Government are not opposed to incorporating international treaties and instruments into British law—where appropriate. Our incorporation of the European convention on human rights through the Human Rights Act 1998 is one of our most significant achievements and one of which I am most intensely proud. There is, however, a difference between incorporating legal conventions, such as the European convention, and putting in place some of the guidelines in the amendment.

If the hon. Member for Montgomeryshire identifies areas covered by the guidelines that are not adequately dealt with in the Northern Ireland statute book, we shall be happy to consider his points. Although I hope that he will try to do that as we go through this part of the Bill, I am not persuaded that he will be able to, given the examples that he has cited so far. He quoted article 12 of the UN convention, which states that the child's views should be given due weight, but that already happens. A child is entitled to legal representation as a defendant, and we are taking matters further through youth conferencing. I do not, therefore, understand where the deficiency is when it comes to giving the child an opportunity to be heard. Indeed, the Bill contains legal aid provisions on youth conferencing, which will ensure that the child's voice is heard loudly.

I do not know my way around the convention as well as the hon. Gentleman does, but he quoted an article that requires custody to be used as a last resort in the case of children. That is, however, reflected in existing law, under which detention is used only where the offence justifies it. Existing law is restated in the present provisions; I am thinking particularly of new article 44A(4) in clause 56. I look forward to further examples, but I hope that we do not need to return to the two that I have mentioned, because there is clearly no merit in either of them. I am sure that the hon. Gentleman agrees—indeed, I do not think that he did this—that it is unhelpful simply to cite such instruments as a sort of mantra. Nor do I think that those who encourage such amendments would want to do that.

The amendment would also introduce confusion into the heart of the system's aims. Paramount consideration would be given to the child's welfare, but the system's principal aim would still be to protect the public by preventing offending by children. I think that that was the point that the hon. Member for Isle of Wight was trying to make in an intervention on the hon. Member for Montgomeryshire. I should make it clear that, in the Government's view, any tension will generally be more apparent than real. Given the consequences of criminal behaviour—some of which hon. Members have alluded to—the interests of young offenders, and of children in particular, will be served by preventing offending. The clause also makes it clear

that those who exercise functions in relation to youth justice should seek to promote the welfare of children and to encourage them to recognise the effects of crime and to take responsibility for their actions.

The clause replicates the language of the Criminal Justice (Children) (Northern Ireland) Order 1998, but differs from the Children (Northern Ireland) Order 1995, which, I accept, gave paramountcy to the child's welfare. There is, however, a clear reason for that distinction. It is reasonable for agencies that deal with the child's welfare in the context of family law and care law to take a slightly different approach from that taken in the criminal justice system. When legislating in compliance with principles, the Government must apply them to the circumstances that prevail, not slavishly repeat them. We must distinguish between care law and criminal law. After all, we are dealing with cases in which a child's behaviour results in his or her rights clashing with those of other citizens. As always, a balance must be struck, and I believe that the Bill strikes the right one.

Amendment No. 284 seeks to include in the Bill specific reference to the UN convention on the rights

of the child. The Government fully accept the principles espoused in the convention, but the issue is how best to implement them and how best to have regard to the child's welfare. Those aims are best achieved through the approach that we have adopted, and we have gone to considerable lengths to give practical effect to them in the Bill. We should reflect the convention in the provisions that we make for children; we should not slavishly repeat the principles. I firmly believe that we have done that.

Amendment No. 277 seeks to replace the term ''welfare'' of the child with ''best interests'' of the child. I do not think that there is any material difference between the terms. I am satisfied that if we have regard to the welfare of the child a concept that is well understood and defined—we will, to all intents and purposes, have regard to the child's best interests. I therefore see little point in the amendment and encourage the hon. Gentleman to withdraw it.

Further consideration adjourned.—[Mr. Stringer.]

Adjourned accordingly at twenty minutes to Six o'clock till Tuesday 12 February at half-past Ten o'clock.