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SESSION 2001/02
SECOND REPORT
Report on
AD HOC COMMITTEE

REPORT ON THE DRAFT JUSTICE (NI) BILL
AND THE CRIMINAL JUSTICE REVIEW - IMPLEMENTATION PLAN (Continued)
  1. Mr Paisley Jnr: You said that the draft Bill is cumbersome and convoluted in some areas. I am wondering if you also feel that parts of the draft Bill, with the exception of the human rights issues, which I think you have dealt with, are grossly incomplete. I am thinking in particular of the issue of community justice, where proposals do not appear to be thoroughly thought out. Have you had any opportunity to reflect on or look at the issue of restorative or community justice? Do you, for instance, intend to benchmark what is currently being proposed in the draft Bill against what has happened, and what is known practice, elsewhere?

  2. Prof Dickson: If you are referring to clauses 53 to 57, then the answer is yes; we will be looking at those in more detail, and making suggestions for amendments.

  3. Mr Paisley Jnr: On looking at the draft Bill so far, do you agree that the clauses which deal with restorative and community justice are incomplete?

  4. Prof Dickson: Yes, we do.

  5. Dr Moore: The clauses only deal with a part of the restorative measures that are currently in use in Northern Ireland. They only deal with the formal system. The Human Rights Commission needs to look at that again.

  6. Mr Paisley Jnr: I suppose that that is what they are most competent to deal with; that is what the legislators intended. You seem to accept that it is incomplete in that area. Does the draft Bill not have a serious flaw in that regard?

  7. Prof Dickson: Yes. It is one of many flaws in the draft Bill. At the same time, the fact that diversionary youth conferences and court-ordered youth conferences are provided for at all is a big plus in the scheme. It is one of the positive aspects of this draft Bill. We will be seeking to improve what is there.

  8. Mr Paisley Jnr: I know that you are very interested in language. That is why I want to go back over it. You have said that it is one of many flaws. I asked if you agreed that it was a serious flaw. Do you understand the distinction I am making?

  9. Prof Dickson: Yes. I am reluctant to say what is serious and what is not serious, but it is a flaw that needs to be addressed.

  10. Mr Paisley Jnr: The draft Bill proposes fundamental changes to the system. In England and Wales, as you know, there were problems associated with the fundamental change that took place when the Crown Prosecution Service was created. Does the Human Rights Commission have any concerns that those mistakes might be replicated in Northern Ireland?

  11. Prof Dickson: Yes, we would. The lessons learned in England have to be applied here. I know that the Northern Ireland Office is aware of the Glidewell report into the Crown Prosecution Service in England, and the difficulties that have been encountered between the barristers' profession and the Crown Prosecution Service there. I very much hope that the improvements made in England in recent years will be transferred to this jurisdiction.

  12. Mr Paisley Jnr: I am glad that you mentioned the Glidewell report. Do you feel that the proposals outlined in that report have been successfully implemented?

  13. Prof Dickson: I am sorry, Mr Paisley. The Human Rights Commission has not yet carried out a comparison of the Glidewell report's recommendations and the draft Bill, so I am not in a position to give you an answer today.

  14. Mr Paisley Jnr: You made a very interesting reference to the Law Commission when you said that the draft Bill might invest too much power in the Secretary of State and later on, in the First Minister and the Deputy First Minister. I welcome your warning. Am I right to draw from your inferences that these clauses could over-politicise the criminal justice system?

  15. Prof Dickson: There is always a danger that when a member of the Government has a large say in how an agency within the criminal justice system, or the justice system itself - because the Law Commission here will have jurisdiction over civil as well as criminal matters - works, the doctrine of separation of powers is breached. The Human Rights Commission is against that, and we want an agency like the Law Commission to be as independent as possible - as independent as the Human Rights Commission likes to be from Government.

  16. Mr Paisley Jnr: Are you saying that as a result of that warning, the proposal is unsatisfactory because it does or could over-politicise the criminal justice system?

  17. Prof Dickson: Yes. It would not be unfair to say that.

  18. Mr Paisley Jnr: You have indicated that you will eventually have a view on clause 62, which deals with symbols. Does the Human Rights Commission accept that the rights of British people would be undermined if the symbols of the Crown, and symbols that they identify with and cherish, were to be removed?

  19. Prof Dickson: As I said, we have not reached a final view on clause 62. The relevant international standards, of which there are few, suggest that places of justice should be neutral venues where everyone in society can feel comfortable. That will probably influence our ultimate view on clause 62.

  20. Mr Paisley Jnr: The issue of neutrality is interesting. Would you, therefore, be opposed to recommendation 138, which recommends the use of the Irish language in courts?

  21. Prof Dickson: We have not addressed that recommendation, and I do not believe that it is reflected in the draft Bill. I understood that we would be examining the draft Bill today, rather than the report of the criminal justice review body.

  22. Mr Paisley Jnr: Do you have a view on that matter?

  23. Prof Dickson: Our own bill of rights proposes that when people are interacting with public agencies, including the justice system, they should, if there is a need, be entitled to an interpreter, or to use their own language and have it translated for the benefit of others present.

  24. Mr Paisley Jnr: Could a claim that there is such a need be mischievous? Would that need not have to be proved and demonstrated?

  25. Prof Dickson: A ruling on what constitutes a genuine need would have to be made by a court, I presume.

  26. Mr Paisley Jnr: When you are completing your consideration of clause 62, I would like you to apply the view that many regard those symbols to be neutral, because they reflect the state in this part of the realm - as you would put it - and that their removal would cause great offence. Perhaps, therefore, that should be reflected by the removal of those clauses.

  27. Prof Dickson: We will certainly look at clause 62, and others.

  28. Mr Campbell: I welcome the Human Rights Commission. You said that you have not yet considered comprehensively clause 62. When might you reach a considered view on that clause?

  29. Prof Dickson: It will not be reached until very close to the 12 December deadline for submitting our report to the Northern Ireland Office. I would not like to promise that it would be made many days before that date.

  30. Mr Campbell: You commented on, and responded to questions about, the lay members of the judicial appointments commission, and their "representativeness", as you termed it. You stated:

    "We believe the so-called Nolan principles on appointments to public offices should apply, but that the principle of representativeness should be applied also."

    How do you conclude that? I do not expect you to comment on the Human Rights Commission's unrepresentative make-up, given that you were not responsible for that. However, do you understand that a large swathe of Northern Ireland's Unionist community might regard the political institutions as being unacceptable? That community might also be unhappy if the membership of the judicial appointments commission were found by the review body to be unrepresentative.
  31. Prof Dickson: I did not understand your question in full. The commission is merely emphasising what is already contained in clause 3(7) of the draft Bill, which is that when appointing persons to be lay members - [Interruption].

  32. Mr Campbell: I am really asking what you define as representativeness.

  33. Prof Dickson: Obviously, it is very difficult for a small group of people - be it five in the case of the lay members of the judicial appointments commission, or 13, as in the case of the Human Rights Commission - to be representative of 1·7 million people in Northern Ireland. One has to decide what aspects of representativeness need to be taken into account, and this is something that will need to be looked at by everyone involved in the operation of the justice system in Northern Ireland. Is it just the aspect of gender; religious background; political belief, or disability? What aspects of representativeness are to be borne in mind? It is a difficult question, and the Human Rights Commission has not yet reached a view on what the appropriate aspects would be.

  34. Mr Campbell: My point is that representativeness, as you have defined it, is fine. However, if there is a very serious division in Northern Ireland about the institutions - some of which will come under the criminal justice review - it would be important that some semblance of recognition be given to people's views. That is a statement rather than a question. My final question is on clause 63 and it concerns the balance between prisoner releases and the information provided to victims. Can I assume that your concern is not to equalise the rights of victims and ex-prisoners?

  35. Prof Dickson: Yes. We are not seeking to equalise rights. In operating the victims' information scheme, the need to protect the safety of ex-prisoners should be one factor taken into account when deciding what information should be given to victims.

  36. Mr Campbell: I can understand that. I wondered why you had not made some reference to the need to protect the safety of victims from ex-prisoners.

  37. Prof Dickson: That is taken for granted in the wording of clause 63, or can be implied from it.

  38. The Chairperson: Thank you very much for your time this afternoon.

    MINUTES OF EVIDENCE

    Thursday 29 November 2001

    Members present:

    Mr Dalton (Chairperson)
    Sir John Gorman
    Mr J Kelly
    Mr M McLaughlin
    Mr Paisley Jnr

    Witnesses:

    Mr J Neill ) The Law Society of
    Mr J Bailie ) Northern Ireland
  39. The Chairperson: Welcome Mr Neill and Mr Bailie from the Law Society of Northern Ireland. Thank you for coming to give evidence to the Committee. Please make a brief opening statement to the Committee after which Committee members will ask questions.

  40. Mr Neill: I am John Neill, the senior vice president of the Law Society of Northern Ireland and this is our chief executive, John Bailie. We broadly support the views that appear in the 'Review of the Criminal Justice System in Northern Ireland'. We have been heavily involved in the review at earlier stages, and our paperwork is on record.

  41. We will help the Committee in any way we can. However, the consultation period is very short, and we have not had a chance to go into the matter in detail. Therefore we can only speak about broad strategic issues. We have not had the chance to go into the draft Bill in detail, but there is work in progress. We would like to think that there would be opportunities for continuing consultation as the issue develops - during the framing of the legislation and its detailed passage through Parliament.

  42. We are targeted with bringing forward several specific areas in the implementation plan. We expect to return to those matters when we get into the nitty-gritty of the draft Bill.

  43. As regards consultation, I am almost tempted to say that having a reasonable consultation period should be a human right, particularly given the resources of the range of consultees in Northern Ireland. We are part-timers, but that does not mean that we do not have to deal in full detail albeit on a limited scale with the principles that are at stake. We make the plea for a more reasonable consultation period.

  44. The Secretary of State, in his introduction to the 'Review of the Criminal Justice System in Northern Ireland' states that the intention is that this matter would be the subject of devolution as soon as the next elections are held. We respectfully suggest that this issue should not be rushed. There is much at stake if the detail of the legislation is not right, or if the maturity of the political institutions, which this will be part of, are not solid. We must be careful.

  45. Mr Bailie will speak on the broader issues that we, as lawyers, are competent to help the Committee with. There are many political issues involved in this, and it is not our function as a professional body to get involved in those. However, there are a number of professional and operational matters that we can assist the Committee with.

  46. Mr Bailie: We are at a disadvantage because our work on the detail of the draft Bill and the recommendations in the 'Criminal Justice Review - Implementation Plan' is still work in progress. We have started to consider these matters, but we have not reached a conclusion on some of them.

  47. It may be that with the Justice (Northern Ireland) Bill the devil will be in the detail; or the salvation will be in the small print. We have made representations to the criminal justice review group and it seems that our views were sympathetically received.

  48. It might be helpful if I take the Committee through our submission. In paragraph 1.5 we have isolated and identified those parts of the 'Review of the Criminal Justice System in Northern Ireland' where we feel that we can add some value to the process from a professional practitioner standpoint. Part 2 of the review document deals with human rights and guiding principles. There is strong emphasis on the independence of the judiciary and the prosecution process throughout the review document and the Bill. Throughout the consultation period we were anxious to point out that the independence of the legal profession should be taken seriously. We will be arguing more overtly than at present for some kind of formal recognition of that principle when we go back to the Government. Paragraph 2.2 of our submission states:

    "The existence of a genuinely independent legal profession is vital in the protection of human rights, not only in so far as this involves the framing of just laws and procedures but also in the robust and independent application and defence of those laws and procedures."

  49. That principle will guide much of our response to the detail of the draft Bill. It has implications, for example, for the new relationship between the Law Society of Northern Ireland as a professional body and the proposed department of justice on the one hand and the office of the Lord Chief Justice on the other. In our earlier submissions we commented on the concept of a department of justice, and we wish to work through those details to ensure that nothing in those relationships will prejudice the independence of the solicitor in giving completely impartial advice to his client. It will preserve the solicitor/client relationship; keeping it free from political, financial or other influences that may affect its independence.

  50. I cannot add much to what is in our submission about the prosecution process, other than to say that the society favoured the creation of a unified prosecution service. That seems to have been accepted and it will be delivered through this legislation.

  51. Judicial appointments and training concerned us. Paragraph 4.1 of our submission neatly summarises our welcome for the review group's recommendations. We welcome the recommendations that relate to

    "the modification of the current appointments criteria; the proposed removal of any unnecessary distinctions as between barristers and solicitors".

  52. We also welcome the

    "recommendations to provide for career progression within the judicial service; the proposal to place responsibility for judicial appointments with the Judicial Appointments Commission; and to provide for greater transparency and consistency in appointment procedures."

  53. All of our earlier points seem to have been accepted. From our point of view one of the most gratifying aspects of the draft Bill is that solicitors and barristers are being put on an equal footing as regards judicial appointments.

  54. We are still coming to terms with the clauses in the draft Bill that deal with the Attorney General and the head of the public prosecution service. At first blush, the creation of the post of advocate general indicates that there has been some acceptance of our views about the need for greater separation between the Attorney General's prosecution role - as head of the prosecution service - and his constitutional role. I do not propose to be an expert on this. However, it appears that the post of advocate general has been created to oversee basic constitutional rights on behalf of the Assembly, rather than the Executive.

  55. Part VI of our submission deals with law reform and the establishment of a department of justice. We welcome the idea that there should be a more systematic means of reviewing civil and criminal law in Northern Ireland. The proposals state that a law commission will be created for that purpose, which will put Northern Ireland on the same level as Great Britain as far as law reform is concerned.

  56. Part VII of our submission deals with miscellaneous issues. We would characterise those as matters in which we do not claim any special expertise, or that will only involve the legal profession indirectly. The Law Society of Northern Ireland is limiting itself to sounding warning notes and indicating a willingness to contribute constructively as those proposals are taken forward.

  57. Mr Paisley Jnr: Committee members have been alarmed at the short consultation period allowed to us. It does the word "consultation" a disservice if enough time is not allocated. The Committee is working to resolve that issue. However, we do not hold out much hope of success.

  58. Your submission welcomed the thoroughness of the work of the review group. Having studied the draft Bill, do you believe that what has been produced is thorough? Previous submissions have indicated concerns about incompleteness. If that is so, it must affect the ability of practitioners of your profession to carry out their work. Have you identified any areas where you would have problems due to incompleteness in the draft Bill?

  59. Mr Bailie: We have not reached a stage during our scrutiny of the draft Bill where we have identified any lacunae in the detail. We have not identified any glaring omissions on any of the issues we touched on earlier, though we have yet to examine the finer details.

  60. Mr Paisley Jnr: Views have been expressed that the section on restorative justice is incomplete, and that consideration of the workings of some of the new agencies is inadequate. Would you direct your research team to examine those issues so that you could come back to the Committee with a more detailed view?

  61. Mr Bailie: We would be prepared to look at that. We have expressed a keen interest in restorative justice because there are many interesting opportunities inherent in the concept. Our submission is limited to stating that the system introduced should be properly integrated as part of the criminal justice system.

  62. Mr Neill: I agree. Please do not hesitate to seek our help with any further consideration of the draft Bill. Help is also available from the Bar. Some magistrates have opinions on these matters, though I am not sure about the proprieties - whether it would be constitutionally appropriate for magistrates to make submissions. However, there is a lot of thinking on this topic.

  63. Mr Paisley Jnr: Paragraph 2.2 of your submission indicates that a genuinely independent legal profession is vital. Do you feel that that the present legal profession is not independent?

  64. Mr Bailie: No. The point is being highlighted in our submission because there is so much emphasis throughout the review document on the preservation of the independence of the judiciary in the new political dispensation, and the creation, as the argument would have it, of an independent prosecutorial structure.

  65. We are saying that there is an independent legal profession, which performs a vital constitutional function. Given that we are in an era of constitutional change, the creation of a department of justice and the revised role of the Lord Chief Justice give rise to the need for us to consider where we fit into the new dispensation. We need to ensure that the new constitutional arrangements do not impinge on the independence of the legal profession. It is a question of preserving the independence, rather than creating it.

  66. Mr Neill: Sometimes, though not in this case, there are suggestions that there should be Government appointed legal representatives. If that were to come forward, there would be an element of loss of independence.

  67. Mr Paisley Jnr: I am glad that you answered the question in that way because I have concerns about this. Do you feel that the proposals help to preserve genuine independence, or could they be in danger of politicising your profession, which, of course, would be very damaging to it?

  68. Mr Bailie: We are making this point because we see that there is a potential risk. We are not in a position to say that the proposals answer our fears and concerns. We anticipate that despite the short consultation process on the formal documents we can find ways of engaging with Government through the implementation process and the passage of legislation through Parliament. It will enable us to be aware of what is going on and to proof any detailed proposals against the principle of having an independent legal profession. It will also enable us to be engaged in a proactive, two-way, dialogue with them to ensure that these matters are kept to the forefront of their thinking.

  69. To answer your question: where a department of justice is being created and where the role of the Lord Chancellor is being removed - as seems to be contemplated from the constitutional arrangements that are part of these proposals - important questions must be asked as to who makes decisions about the legal profession. Under the present constitutional arrangement, solicitors are officers of the court. For that reason, when it comes to matters arising within the Law Society that require to be appealed, the supervisory function is not carried out by a politician. It is in the hands of the Lord Chief Justice; and we would want to be clear that that is going to be preserved, or indeed, enhanced and reinforced.

  70. The draft Bill contains a public statement about the independence of the judiciary. There is an opportunity to put a similar statement about the independence of the legal profession on the statute book also. We will be returning to the Government on this point as part of the consultation process.

  71. Mr Paisley Jnr: That is a very helpful answer. I share your concern about the over-politicisation of the criminal justice system as a result of the draft Bill, intentional or otherwise. The effect could be catastrophic for the community's confidence in the delivery of fairness and justice.

  72. Your previous answer addressed the issue of possible politicisation in the Attorney General's office. The Glidewell report, which looked at the running of the Crown Prosecution Service (CPS) in England and Wales after the reforms, identified several major problems with the new system. Have you examined those problems and identified, as an early warning to us, difficulties that could arise if some proposed measures are introduced without being properly thought through?

  73. Mr Bailie: Neither Mr Neill nor myself practice criminal law, so we are at a disadvantage. However we do have the benefit of support from criminal legal practitioners who are not here today. If you trace the development of our thinking on this matter in our first submission, you can see that we began by raising questions about how any roll-out of the role of the Director of Public Prosecutions (DPP) into police prosecutions at local level should be carried out. We expressed concern that it should be done in such a way as to avoid the types of problems that were associated with the creation of the CPS in England. Our understanding was that those problems were largely due to resource issues. It is fairly well recognised that the CPS was launched without adequate preparation and resourcing and without ensuring that the infrastructure of lawyers was there to do the job and take over that role from the police. On publication of the report, which recommended that the full prosecutorial arrangements be spread across Northern Ireland and be taken away from the police, we stated in our supplementary submission that we were persuaded that that was the right way, in principle, to proceed.

  74. You are correct in saying that, apart from resource implications and making sure that the transition is properly prepared for, there are issues at a more detailed level. I am not an expert, but I understand that there are issues around ensuring, for example, that the prosecution process does not become so centralised that there is not enough autonomy and discretion at local level to allow the system to work properly. The local solicitor must have access to a representative of the prosecution service, who can talk about a case and reach a sensible resolution. It is a question of getting the right balance between that degree of autonomy at local level - which is a good thing - and having a consistent approach that would require proper co-ordination from the centre. Mr Neill and I do not know enough about the structure to comment on it with any authority, but you drew attention to those issues, and we are aware of them.

  75. Mr Paisley Jnr: The Law Society has been good at keeping us aware of resource problems as regards legal aid. If there is a fundamental change to the system, inadequate resourcing will overburden it and lead to more confusion. The Law Society must be concerned about that.

  76. Mr Bailie: At various places in our submission we draw attention to the fact that there are various reviews underway in the legal aid area that are of interest to us. We have put forward some positive proposals for reform of the criminal legal aid cost system.

  77. There is a separate strand of reform ongoing under the control of the Lord Chancellor, which the Law Society is actively engaged in. I am not sure how the timing of these matters will synchronise, but there are clearly important issues concerning the financing of the prosecutorial and defence sides. There are issues about the equality of arms between the prosecution and defence, which must be addressed.

  78. Mr Neill: One fundamental policy that the Law Society wants to pursue is to ensure that there is a network of solicitors readily available in Northern Ireland. Many solicitors operate in small firms, and this allows local people to have confidence in, and comfort with, their local representatives. The Law Society does not want that network to be disturbed in any way by measures that would centralise matters and put pressure on the existing system.

  79. Mr Paisley Jnr: There should be an important distinction between people in the centre and those on the outer reaches. I know, Mr Neill, that you did not want to consider the political issue, but I feel obliged to ask you whether the Law Society has any view on clause 62 that deals with symbols in court?

  80. Mr Neill: No.

  81. Mr Paisley Jnr: You are not making a statement on that matter as an organisation?

  82. Mr Bailie: We do not feel competent to speak for solicitors on a corporate basis; they will have different perspectives on that matter. We do not feel that we have the authority to speak on those issues.

  83. Mr J Kelly: The Committee shares your concern about the shortness of the consultation period. I have grouped my questions in order to save time.

  84. The Northern Ireland Human Rights Commission expressed disappointment that human rights were not more central, as recommended by the review group. Do you agree with that viewpoint?

  85. Paragraph 5.8 of your submission states that you continue to advocate a more comprehensive separation of roles to provide for three distinct officers/holders. Are you doing away with the DPP's office, or are you advocating the creation of three new posts?

  86. Could something be included in the draft Bill to help people understand the independence of the legal profession? The murders of Rosemary Nelson and Patrick Finucane emphasise that it is important for people to understand the independence of the legal profession.

  87. Mr Bailie: I will respond to the last point first, as it is most important. It is a point of strategic importance rather than one of detail.

  88. The draft Bill begins with a statement about the principle of judicial independence. Primary legislation might not be the right place to explore fully the implications of that principle. However, I will use it as an analogy. The principle of judicial independence is stated, and there will be a huge amount of work to make sure that it is properly understood; that the implications are explained; and that the principle will be applied when policies are devised across a range of issues, for example, legal aid. It is most likely that we will favour a simple statement of principle. That would be the starting point for rolling out the practical applications of that principle in the context of these recommendations, or future policies, as well as policies that are not connected with criminal justice.

  89. Mr Neill: Human rights is a major issue, to the extent that there is jurisprudence and legislation descending on us from Europe, the UK and in Northern Ireland through the proposed bill of rights. These issues will be dealt with under that umbrella and if any of this legislation flies in the face of human rights legislation there are mechanisms in place to challenge it. Over and above the nitty-gritty of what these acts are concerned with, there does not appear to be any human rights shortfall in this draft legislation. My answer might be vague but I am putting the matter into a broader context.

  90. There is to be an office of the DPP; an intermediate office; and an attorney general. We are not clear about how, and on what principle, the segregation of the three functions will take place. We still have to study the detail, but we envisage the office of the DPP being operative.

  91. Mr Bailie: I suspect that the perception of a deficiency in the area of human rights arose because a significant part of the review recommendations at the start of the report refer to a human rights ethos and the idea that human rights principles should underpin the whole criminal justice system. The Human Rights Commission may feel that that has not been adequately reflected in the legislation.

  92. We must form a judgement on that matter because we were clear in our submission that we are in favour of what the review report said about the importance of a human rights ethos and of human rights principles underpinning the system. We need to review everything. I make that point because we talked earlier about the independence of the legal profession. Parts of the draft bill of rights published by the Commission are relevant to this principle. There are inter-relationship between this type of initiative and the proposed bill of rights for Northern Ireland.

  93. Part of the bill of rights raises a question about whether people should have the right to instruct a solicitor of their choice. Obviously we would say that people should have that right, and that is connected to the question of the independence of the legal profession. The Law Society of Northern Ireland will have to reserve judgement on whether the combination of the legislation and the outcome of the bill of rights will adequately cover the affirmation of human rights principles, which is important.

  94. There is a risk, in paragraph 5.8 of the submission, of terminology becoming confused. Our terminology does not necessarily correspond with that used in the draft Justice (Northern Ireland) Bill. The post identified in paragraph 5.8(a) of our submission is that of the DPP, although we have not used that term. The Attorney General's role is described in paragraph 5.8(b) of our submission, although it appears to have become the advocate general post within the structure. The Attorney General's post seems to be as described in paragraph 5.8(c). We have not quite come to grips with these posts yet.

  95. Mr J Kelly: Will it be difficult for you to resolve your reservations given the short consultation period?

  96. Mr Bailie: Yes. We will be very limited in what we can do by 12 December.

  97. Mr McLaughlin: Despite the short consultation period, which we all complain about, do you intend to prepare a submission by the deadline? If so, your document would be very useful to the Committee. The Committee hopes to get Assembly support for an extended consultation period, which would enable us to intervene in the processing of the draft legislation. The deadline of 12 December is unreasonable and a longer consultation period would allow us to intervene at a strategic point during the Committee Stage of the Bill at Westminster. I note that you have offered to continue to work with interested bodies, including this Committee, to effect discussion on the draft Bill.

  98. Mr Bailie: We will be submitting something by 12 December. As regards the broad, strategic issues, our paper will be at the level you have heard today, rather than a line-by-line analysis of the draft Bill and the recommendations of the criminal justice review. However, an extension by a month would enable us to provide a much better submission than we will be able to give.

  99. Whilst I do not want to take away from the preference for a longer consultation process at this stage, we will be arguing for further opportunities to debate and consider this matter at local level. We would be very concerned that this might disappear to Westminster, go through the process and return without any further effective dialogue, or input, from Northern Ireland people. I trust that that is not the Government's intention.

  100. If the Assembly is recommending that there should be an ongoing process of consultation as the matter progresses, we would support it. The more input there is, the better the product will be. It is in no-one's interest for this to be done too quickly, or without considering all points of view and all practical implications.

  101. Mr Neill: We have not discussed this matter yet. New committees were set up at our annual general meeting on 28 November, so we have to get these off the ground. The replies that we receive are likely to indicate the desire to follow up with something more substantive. It would be helpful if there were something in the Committee's report, particularly if you are commenting on our submission, to suggest that there might be more to follow.

  102. Mr McLaughlin: That would be mutually beneficial. I hesitate to get into detail because you made it clear that you are not in a position to offer the corporate view, and I understand that. Is it possible that you will address issues that are drawn directly from the Good Friday Agreement? I would like to see the mechanisms for addressing law reform, and the scope for structured co-operation between the criminal justice agencies on both parts of the island, being addressed.

  103. Mr Bailie: We will consider those points.

  104. Mr McLaughlin: I appreciate that you are not in a position to offer a formal response, but I would like to flag up those issues.

  105. Mr Neill: We work within the British Isles, and we consult sensibly and pragmatically with other jurisdictions on matters on which it is sensible to co-operate. That is a general answer, and I cannot go any further than that. We are obviously interested in mechanisms of law reform, and we would certainly want an opportunity to influence those to everyone's advantage.

  106. Mr McLaughlin: I am presenting this matter specifically in the context of the Government's position in relation to the draft legislation and the implementation plan. The Law Society has responded progressively to the debate, and I am sure that it would be conscious of the benefits of co-operation. However, has the Government, in their response to the debate, picked up on those two issues, which are specified in the Good Friday Agreement?

  107. Mr Bailie: I could not comment any further.

  108. Mr McLaughlin: I would not expect you to.

  109. Sir John Gorman: "Justice delayed is justice denied", as the saying goes. My experience, after 15 years in the RUC, was that one was constantly trying to get over delay. I see you have a system of using prosecuting inspectors in summary cases, which seems to be working very well, according to your submission. However, it is likely to be opposed under the new system because of its alleged lack of transparency. Is it possible to adopt the Scottish scheme, where there are criteria for the process between committal and hearing, which require, at least, some explanation of what goes on?

  110. Not a day passes but one sees the prosecution of crimes that were committed two, three or four years ago. No doubt there are other reasons for delays, such as a lack of success in the investigation. However, I am sure that many delays are caused by the inability of solicitors to arrange their timetables so that they can make an appearance at court. The more popular the solicitor, and the more he is reckoned to be a good advocate to get you off, the more likely it is that he will be unable to turn up. I cannot believe that that is still the case. I know that there have been attempts to try to get the Scottish type of programme, and I would like to believe that we could adopt an approach that would reduce delays. Are you working on that?

  111. Mr Bailie: As you said, the question of delays in the criminal justice system, and analysis of the causes of delays, has been debated for as long as I have had a practising certificate. The Government are committed in principle to the idea of controlling the speed of the criminal justice process by introducing time limits. However, for various reasons, the specific details of which I cannot remember, the full statutory compulsory scheme has not been introduced in Northern Ireland as yet, despite the Government's signalled intention.

  112. I am not an expert in this matter, and I stand to be corrected, but the major reason for not introducing statutory time limits has been due to difficulties in processing prosecution cases - not the readiness, or otherwise, of the defence side to meet the charges. Several criminal justice delay groups have been formed to look at the problem. All I can say is that solicitors have no interest in delaying criminal proceedings. In the spirit of constructive contribution to the debate, which, I hope, characterises our submission, there are mechanisms within the proposals for having greater inter-agency co-operation. We will contribute to that debate effectively and positively. I am not sure that I am competent to debate the detail of those mechanisms, beyond making a generalised observation.

  113. Sir John Gorman: You devoted three pages of your submission to the subject, so it must exercise you?

  114. Mr Bailie: It is also a subject on which our experienced criminal and legal aid practitioners can make much more of a contribution than I can.

  115. The Chairperson: As regards the function of prosecuting inspectors and the move to a central prosecution service, you said that you thought it was important to have local offices with a degree of autonomy; the reason being that prosecuting inspectors can exercise a high degree of autonomy, particularly in reducing, or dispensing with, charges as part of the ongoing negotiation process. Would greater transparency in such a system, or even a move towards a system of transparent plea-bargaining, be more advantageous, rather than individuals having a degree of local autonomy that is not subject to any transparency?

  116. Mr Bailie: If I say that I am not competent to deal with that, you will regard it as a cop-out, so I will make an attempt at an answer.

  117. The Chairperson: Perhaps the criminal practitioner has answered that question already.

  118. Mr Bailie: I will avoid answering the question on plea-bargaining. However, it is correct to say that our starting point was the degree of efficiency in the system, which led to the relationship that built up between local police inspectors and local solicitors. Frankly, returning to the point about delay, things developed more smoothly because of it, because relationships were built up over a period of time. That worked to the overall advantage of the system. Where that system is to be replaced with a unified prosecution service, which inevitably will have a central bias, important issues about transparency will arise.

  119. I return to the point about striking a balance between the scope for local discussions and ensuring that that does not give rise to widespread variations in the standard of justice in one area against a neighbouring town or county. There will be a need, within the new structure, for a more transparent protocol, which the prosecutors will operate, that will lay down the boundaries for negotiation. That is bound to be beneficial and will be essential to the success of the system.

  120. The question was asked earlier about what we will be saying by 12 December. Of all of the matters discussed today we are keenest to get across, as a preliminary point, that clause 1 of the draft Bill provides a guarantee of continued judicial independence. Our priority, in the short term, will be to argue for a statutory statement, a guarantee, of continued legal professional independence.

  121. Mr J Kelly: What do you mean by a guarantee?

  122. Sir John Gorman: I am confused too. Clause 1 provides a guarantee of continued judicial independence.

  123. Mr McLaughlin: Mr Bailie is talking about the legal profession.

  124. The Chairperson: Are you suggesting a similar statement in relation to the independence of the legal profession as a whole?

  125. Mr Bailie: Absolutely.

  126. The Chairperson: Would that include the Law Society and the Bar?

  127. Mr Bailie: Yes. The importance of it would be that during any particular application, for example, the determination of Government policy, those responsible would have to have regard to the preservation of the independence of the legal profession. Whilst funding decisions are being made, or in relation to legislation being framed, anything that would impinge on legal professional independence would have to be scrutinised and weighed against that principle.

  128. Mr J Kelly: Are you saying that has not been the case up to now?

  129. Mr Bailie: That is why I said "continued legal professional independence".

  130. The Chairperson: Thank you for your time and your presentation.

    MINUTES OF EVIDENCE

    Tuesday 4 December 2001

    Members present:
    Mr Dalton (Chairperson)
    Mr Campbell
    Mr J Kelly
    Ms Lewsley
    Mr A Maginness
    Mr McNamee
    Mr M Robinson

    Witnesses:

    Mr D Lavery )Northern Ireland Court Service
    Mr T O'Reilly )Northern Ireland Court Service
    Mr M McGuckin )Northern Ireland Office
    Mr S Webb )Northern Ireland Office
    Mr B White )Northern Ireland Office
  131. The Chairperson: Mr Stephen Leach, who was to lead the witnesses' delegation, cannot attend due to the unfortunate death of his father. On behalf of the Committee, I extend our condolences to Mr Leach, and we shall send a letter to him to that effect.

  132. Mr White: My name is Brian White and I am the head of the Criminal Justice Policy Division in the Northern Ireland Office (NIO). Stephen Webb is the head of the Criminal Justice Review Implementation Team. Mark McGuckin is the head of the Criminal Justice Services Division in the NIO. David Lavery is director of the Northern Ireland Court Service and Tommy O'Reilly is director of corporate services in the Northern Ireland Court Service.

  133. The Chairperson: Thank you for attending. We shall hear your opening statement before opening up the discussion to the Committee members.

  134. Mr White: We are sorry that Mr Stephen Leach has been unable to attend because of sad circumstances for him and his family.

  135. I thank the Committee for its invitation to attend and I welcome the opportunity to assist in its deliberations on the Government's response to the criminal justice review. We are happy to clarify any points that relate to the draft Bill and the implementation plan. We also wish to hear members' views on points of policy in order to relay those Ministers after consultation.

  136. I advise the Committee that one of our number, Mr Stephen Webb, has a commitment in London this evening and will have to leave the meeting at around 3.15pm. He is our resident expert through his involvement in the implementation of the review and is, therefore, a key witness on structural issues and prosecution.

  137. On 12 November, Des Browne, the Northern Ireland Minister with responsibility for criminal justice matters, announced the publication of the Government's response to the review. At that time, he invited comments by 12 December and intended there to be a focused and proactive consultation. Extensive consultation had already been carried out on the review and the proposals set out in the draft legislation, and the implementation plan stuck closely to the review recommendations. Since then, as the Committee will be aware, Ministers have announced a four-week extension, to 7 January 2002, of the consultation period. In reaching that decision, Ministers were made aware of the representations received through your Committee Clerk and from other quarters. They concluded that to allow more time for consultation would contribute to our proposals' effectiveness. However, Ministers were also conscious that any further extension could jeopardise our prospects of achieving Royal Assent for the Justice (Northern Ireland) Bill by the summer, which is currently the aim.

  138. Nevertheless, I stress that the principal focus during the formal consultation period is the draft Bill, rather than the implementation plan. Although we clearly welcome comments on the plan, consultation on it will not cease on 7 January; there will be opportunity for further discussion. We are committed to continuing dialogue with the Assembly, especially on policies or proposals that have implications for the devolved Administration. We intend to produce a revised implementation plan after the legislation receives Royal Assent.

  139. The Bill is the main delivery mechanism for the recommendations set out in the Criminal Justice Review Group report, 'Review of the Criminal Justice System in Northern Ireland'. The review group was set up on 27 June 1998 and tasked with undertaking a wide ranging review of criminal justice, other than policing, and those aspects of the system that relate to emergency legislation. It reported in March 2000, making 294 recommendations for change across the criminal justice system. A period of consultation followed, before the Government announced their broad endorsement of the report, and before they undertook to develop draft legislation and an implementation plan. Therefore, the draft legislation and the plan are the Government's response to a lengthy consultation period. Taken together, they make it clear that the Government accept the vast majority of recommendations; indeed, none of the recommendations has been specifically rejected by Ministers.

  140. When Des Browne made his announcement on 12 November, he emphasised that any system of justice needed to be reviewed regularly if it was to meet the public's expectations and make people feel safer in their localities. As well as being a cornerstone of the Belfast Agreement, he saw the implementation of the criminal justice review as having the potential to deliver a modern, progressive system of justice for all the people of Northern Ireland. The system will retain the best of the old, and bring in international best practice and concepts, to ensure that services are delivered in a fairer, more effective and accountable way in the future. Mr Browne also set out the Government's target to devolve policing and justice to the local Administration, and he explained how the review will help to pave the way for the devolution of those functions.

  141. The legislation applies only to Northern Ireland, aside from a purely technical point pertaining to the renaming of resident magistrates, and it deals with matters currently in the reserved and excepted fields, as defined by schedules 2 and 3 to the Northern Ireland Act 1998. The policy areas covered by the draft Bill are currently the responsibility of the Lord Chancellor and the Attorney-General, as well as the Secretary of State for Northern Ireland. Officials from all three Departments have worked together closely to prepare the legislation, and the Attorney-General and Lord Chancellor have been kept closely in touch with the provisions of the draft Bill and the implementation plan.

  142. The main provisions of the draft Bill are: to amend the law relating to the judiciary, law officers and courts in Northern Ireland; to establish a public prosecution service (PPS), a chief inspector of criminal justice and a Northern Ireland law commission; to set out the aims of the youth justice system and to make other provisions dealing with that system, including the setting up of a system of youth conferencing; to provide for the disclosure of information about the release of offenders in Northern Ireland to victims of crime and to confer on victims the right to make representations in relation to the temporary release of offenders; and to provide community safety measures.

  143. We shall continue to consult with the Committee on the implementation plan as we develop our proposals. The plan sets out the action that will be taken on each of the review's 294 recommendations, who will be responsible for it, and the timescale for that action. In many cases, delivery will be achieved through the draft Bill, although some recommendations will be dealt with administratively. The NIO will have overall responsibility for driving forward the implementation. An additional provision of around £40 million has been allocated for the implementation of the review in the three years covered by the spending review 2000 (SR2000). The NIO and the Northern Ireland Court Service will incur that expenditure. The rate at which expenditure is incurred in future will depend on when the various parts of the legislation are commenced. A major area of expenditure will be in the development of a single, decentralised, independent prosecution service. That will build on the current responsibilities and work of the department of the Director of Public Prosecutions (DPP). The creation of a new public prosecution service (PPS) will require the recruitment of significant numbers of additional staff, and it is anticipated that the existing department of the DPP will double in size.

  144. Other changes in the draft Bill will involve the movement of staff within the public sector. There will also be several corresponding savings arising from the review. For example, savings will be made in the policing budget when the police cease to exercise their prosecution function.

  145. We look forward to taking questions and listening to the Committee's views. I ensure that any points raised will be brought to the attention of Ministers.

  146. The Chairperson: Thank you. The implementation plan states that the Government intend to devolve responsibility for policing and justice functions to Northern Ireland. The target date for that is after the Assembly elections, which are scheduled for May 2003. However, it does not give a commitment as to how soon after those elections that that would occur. It states that the final decision

    "can only be taken at the time taking account of security and other relevant considerations".

  147. What other relevant considerations will you take into account? Is there a set list of criteria that the Government will apply to decide when to devolve those functions?

  148. Mr Webb: There is not a set list of criteria. Given the wide range of factors that must be taken into account, we could not give a more specific undertaking or target than we have already done. The Government feel that, as well as the security situation, cross-community support is required in order for devolution to happen. To move anything from the reserved field to the transferred field requires a cross-community vote in the Assembly. That would require the Secretary of State, the NIO and the devolved institutions to liaise to see whether those in the devolved institutions felt that they were ready. The wider political situation will also be a factor.

  149. The Chairperson: Is it not simply that the Government would seek to fulfil their necessary logistical concerns in order to effect devolution as soon as practical after that date? Is it correct that there are set criteria or standards that would need to be met before the Government would decide to begin that process?

  150. Mr Webb: We must satisfy the logistical concerns to make it possible at all, but there must be a wider judgement beyond that. Both sides need to support devolution at that time.

  151. Mr Campbell: Northern Ireland is part of the United Kingdom. How would symbols that may be considered for Northern Ireland's courts appear in the rest of the United Kingdom?

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