| 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)
- Mr Lavery: The practice is slightly inconsistent at present. For
example, not all our courthouses display a royal coat of arms. However,
where a symbol is displayed at a courthouse in Northern Ireland, it has
traditionally been the royal coat of arms, which symbolises the Queen's
justice. That would similarly be the practice in England and Scotland.
- The review report does not suggest that we choose an alternative symbol.
Rather, it suggests that to display the royal coat of arms on existing courthouses
might continue to be appropriate. However, the principal change that it recommends
is that, in order to create a comfortable environment for those who use the
courts, those courtrooms that currently display the coat of arms would no longer
do so. The greater number of our courtrooms display it, although there are
exceptions, family courts being one such example. It is not intended that any
new symbol would be introduced. Symbols would simply be removed from the interior
of existing court buildings, the exterior would continue to display the coat
of arms. I may not have captured the overall thrust of your concern.
- Mr Campbell: I shall not go into the use of the word "simply" in
relation to the removal of symbols.
- In his opening remarks, Mr White mentioned the periodic reviews of the justice
system that will occur. In Scotland and Wales, for example, depending on the
views of a generation, there may be a rising tide of Nationalist opinion in
both regions. Is it correct that those regions have not voted on symbols?
- Mr Lavery: That is my understanding of the present situation. It is
more likely that any changes will be in Scotland, where responsibility for
justice issues has already been devolved to the Scottish Parliament. The
situation in Wales is somewhat distinct and different. I am not aware of any
proposals from the Justice Department in Scotland pertaining to the display
of symbols. However, that may be a matter that, presumably in time, the
Scottish Parliament may wish to reconsider. If the proposed devolution of
similar responsibility occurs here, the Assembly may also wish to make
changes. I am not aware of any material change in Scotland since devolution.
- Mr Campbell: Whatever the political developments within Nationalism
in Scotland, they have not yet led to the removal - simple or otherwise - of
the current symbols of justice.
- Mr Lavery: The Scottish court system has its own distinctive
characteristics, but they have existed for longer. As far as the principal
thrust of your question is concerned, there has been no change in symbols.
In the interests of consistency, on checking the Official Report, we shall
write to the Clerk to correct any inaccuracies.
- Mr A Maginness: In page 39 of the implementation plan, which
discusses recommendation 68 on the merit principle, the conclusion reads:
"The Government fully endorses the principle of appointment on merit and
has reaffirmed it in the Bill."
Is there any suggestion that appointments in this jurisdiction
may be made on grounds other than merit?
- Mr O'Reilly: That is not the case. The principle, which will become
part of the Bill, reaffirms the independence of the judiciary and the process
for appointing members of the judiciary. We wish to ensure that the Bill makes
quite clear that appointments will continue to be made on merit. However, that
is not to say that the Government do not recognise other issues that were highlighted
in the review to ensure that the judiciary is representative and more reflective
of the community from which it is drawn.
- There are other measures in the implementation plan that the Government
wish to see introduced through the criminal justice review to ensure that that
happens. However, the overriding principle will remain appointment on merit.
- Mr A Maginness: That is a helpful answer, as it brings me to recommendation
69, which states that
"It should be a stated objective of whoever is responsible for appointments
to engage in a programme of action to secure the development of a judiciary
that is as reflective of Northern Ireland society, in particular by community
background and gender, as can be achieved consistent with the overriding requirement
of merit."
Am I right to say that, although that is a stated objective,
it will not form part of the Bill?
- Mr O'Reilly: That is correct; the requirement that the judiciary
will reflect Northern Ireland society will not be part of the statute. However,
if we decide that the merit principle is the key principle. The Government
do not believe in the use of quotas, but they do wish to put an affirmative
action programme in place. As set out in the review, one measure is the early
appointment of a judicial appointments commissioner for Northern Ireland. That
person will be responsible for taking forward the actions in the implementation
plan to ensure that people from the community do not feel they are barred from
applying. We wish to encourage as wide an applicant pool as possible for all
judicial appointments.
- Mr A Maginness: I understand and approve of the merit principle,
as does my party. That is embodied in statute, but I do not understand why
the reflective principle will not be embodied in statute. Why was a distinction
made between the two?
- Mr O'Reilly: We wish to protect judicial independence through statute.
That is set out in the draft Bill through a declaration for judicial independence
and the need for cross-community support, as well as the appointment of a commissioner.
Those are the key principles, and they reflect the recommendations that will
be implemented through the Bill. The intention was not to set a quota for the
number of and composition of the judiciary in Northern Ireland. That principle
is not accepted in any other aspect of Northern Ireland society, with the exception
of the Police Service of Northern Ireland (PSNI). Probation is not in statute
in any other area. The Government wish to see both the judicial appointments
commissioner and the judicial appointments commission (JAC) implement a programme
of action to ensure that the judiciary, by the nature of its appointments process,
reflects the community.
- Mr A Maginness: I understand that, but I am still not satisfied as
to why the reflective principle is not embodied in the Bill. I am not talking
about quotas or the mechanism that would be used; I am talking about the reflective
principle. If Government go to the bother of incorporating the merit principle
into the Bill, which is something that the Committee would accept, why do they,
given Northern Ireland's specific circumstances, not go to the bother of putting
a reflective principle into the statute?
- Mr O'Reilly: Recommendation 69 states that it should be an objective
of those who have responsibility for appointments. The review does not recommend
that it should be included in the statute. It sets it out as an organisational
aspiration of the Bill, and that is why it is included in the implementation
plan and not in the statute.
- Mr A Maginness: The JAC will not be set up until after devolution.
Is there any reason why it could not be set up before then?
- Mr O'Reilly: The JAC will deal with judicial appointments. Those
are excepted matters and, in the review, it was recommended that that should
only occur upon devolution. Therefore, it will only become the Northern Ireland
Assembly's responsibility on that date.
- Mr A Maginness: It might be an excepted matter, and may become a
devolved matter. However, there may be no cross-community agreement to devolve
that power to the Assembly. We could wait, not only for 18 months but perhaps
for five-and-a-half years for that to come about. In the meantime, we have
neither a JAC nor the necessary element of reform in the system. We could be
waiting indefinitely for the JAC to come into being
- Mr Lavery: I shall supplement Mr O'Reilly's comments. It is not as
if nothing is going to happen. I wish to emphasise that the appointment of
a commissioner for judicial appointments is imminent. The criminal justice
review report suggested that, pending devolution of responsibility for judicial
appointments, someone with responsibility to oversee judicial appointment procedures
should be put in place as quickly as possible. That is in line with the recommendations
that were made in respect of an oversight mechanism in England and Wales.
- The appointment of a commissioner for judicial appointments will supplement
the administrative work that we are already doing through the establishment
of a judicial appointments unit that is separate from the Court Service, in
order to support the commissioner. A judicial appointments unit would allow
it to take forward the programme of work anticipated in the chapter in the
implementation plan on lay involvement in adjudication. That work includes
broadening the pool of candidates from which judicial appointments are made.
- Mr A Maginness: That is very helpful. However, the idea that we have
to wait until devolution for the JAC to be set up is ill conceived. A commission
could be appointed, because there is no political element flowing from the
Assembly. It is a matter of appointing the judges, the lay people, and members
of the solicitors and barristers profession to it. There is no reason why a
commission could not be set up under the aegis of the Lord Chancellor's office.
It could be put in place and taken over by the devolved Administration. I do
not understand why we cannot proceed with this mechanism now, or as soon as
possible after the Bill has become law.
- Mr Lavery: It would be fair to say that it is fundamentally embedded
into the existing constitutional arrangement. Appointments are currently made
on the recommendation of the Lord Chancellor. I return to my colleague's earlier
remark about the excepted nature of those appointments.
- Without appearing facile, if one had the commission, one would have a queue
of people offering advice on appointments. The commission would be advising
the Lord Chancellor because, under the current constitutional framework, responsibility
for recommending appointments to the Queen lies with the Lord Chancellor.
- I assume, therefore, that the thinking behind the recommendation in the
review report was that the establishment of the commission should be achieved
in the context of the constitutional reassignment of functions. In the meantime,
there would not be a do-nothing option. The five-year wait that you mentioned
would not occur. We would be optimistic that we could make good progress through
the appointment of an independent commissioner for appointments. It is also
important to note that he or she will have oversight, not only of appointments
to the judiciary but to the status of senior counsel, which is a distinctive
category of appointment.
- Mr A Maginness: Is it not the case that the Lord Chief Justice in
Northern Ireland advises the Lord Chancellor about appointments and other matters?
If so, is it not preferable for him to receive advice from a body that has
been established specifically to appoint judges, and to act on that advice
in the meantime?
- Mr Lavery: The Lord Chancellor's advice to the sovereign on judicial
appointments reflects soundings and other advice taken from, for example, the
Lord Chief Justice as head of the judiciary, the chairman of the Bar Council,
the President of the Law Society et cetera. The nature of the JAC, as proposed
by the NIO's 'Criminal Justice Review Implementation Plan', is distinct from
that. That body would also carry out soundings and take advice. As a result
of the fundamental characteristic of the new appointment mechanism, it was
felt that constitutional principles would be violated if a JAC were established
before the devolution of responsibility from the Lord Chancellor to the First
Minister and the Deputy First Minister. There is a contrary school of thought
to that, and you are articulating that.
- Mr McNamee: I do not wish to repeat a point that has already probably
been well made, but I am concerned about consultation time. The time given
for consultation on the criminal justice review and the timescale for the Bill's
implementation are important. Many parties may welcome the devolution of policing
and justice to the North, but we want to be prepared for that and make it effective
when it happens.
- You were asked about what will happen one month, one year or two years after
the Assembly elections in May 2003. Sufficient time and resources should be
provided to enable the creation of the proposed new department of justice.
It would be better for us to take things slowly and do them properly, rather
than find ourselves with a devolved criminal justice system that is inefficient
and possibly ineffective.
- It is proposed that the royal coat of arms will continue to be displayed
outside court buildings. Is that proposal compatible with section 75 of the
Northern Ireland Act 1998, the Human Rights Act 1998 and the Fair Employment
(Northern Ireland) Act 1989 if a neutral work place is to be created in which
people are not be discriminated against because of their political opinions?
That question is also important given the history of alienation of one section
of the community from those Government buildings and institutions.
- I am also interested in the recommendation to rename the department of the
DPP the public prosecution service (PPS). At what stage does the NIO anticipate
that the PPS will provide prosecutorial advice? When would the PPS state whether
it intended to proceed with a prosecution, and what reasons would be given
for proceeding or not proceeding? What evidence would be disclosed at that
stage to justify that decision?
- Mr Lavery: It is clear that the review group, including its external
advisors, arrived at what could be described as a compromise over the display
of symbols. The review group's report made it clear that the removal of the
coat of arms from the interior of courtrooms might be beneficial in creating
an environment in which people who come into contact with courts would feel
comfortable. That led to the recommendation for the removal of the coat of
arms. At the same time, the group acknowledged that the continued display of
the coat of arms on the exterior of court buildings was appropriate.
- It is not for me to get below the surface of what is said in the evidence
as published. However, it seems that that was an attempt to balance the symbolic
significance of the justice system that operates in Northern Ireland, and under
which there are a number of fundamental principles of justice deriving from
the sovereign, while creating what it described as a comfortable environment
in the courtrooms. As regards complying with human rights requirements, the
responsible Minister is required to consider that factor. One must assume that
that has been done.
- We have undertaken a robust equality impact assessment on the implications
of the change in policy regarding the display of symbols. The outcome of that
assessment and on several other issues has been published recently. If that
has not been brought to the attention of the Committee already, we shall ensure
that copies are sent to members. We examined the specific issue of what impact
the review group's recommendations on symbols would have on the various communities
in Northern Ireland. It may assist the Committee to see the published equality
impact assessment on that and on several other issues.
- Mr White: Sadly, the expert on prosecution matters, Mr Webb, has
had to leave. The legislation gives a new responsibility to the prosecution
service. However, the detail of the actual passage of individual cases needs
to be worked out as part of protocols developed with the PSNI.
- Mr McNamee: The concern has been that prosecutions have not been
proceeded with and that there has not been any transparency about how decisions
were delivered. The DPP made decisions not to prosecute and the reasons were
not given. In some circumstances, there have been concerns about why some prosecutions
have proceeded.
- Mr White: The implementation plan makes it clear that this is a complex
area. It is difficult to strike a balance between the interests of victims
and witnesses, on the one hand, and concerns about the reputation and possible
injustices to individuals who may have been accused of offences. That is a
difficult area. The implementation plan mentions the need for further development
in the light of changing legal advice and developments in the law.
- Mr J Kelly: Mr Maginness spoke about the appointment of judges to
the JAC. It will comprise six judges, two lawyers and five lay members. The
draft Bill requires the lay members, but not the JAC as a whole, to be representative
of the community. Should the JAC be representative of the community? Should
judges be involved in recommending appointments? Is their experience and knowledge
invaluable in that area? Is it appropriate for the First and the Deputy Ministers
to be involved in the appointment process?
- Would the replacement of the Juvenile Justice Board and the probation service
with Next Steps agencies benefit users of the criminal justice system, and
if so, in what way? Would that action anticipate a fusion of the probation,
prison and juvenile justice services, as a development of the criminal justice
review report recommendations that an overarching advisory board be established?
- How effective is the youth conferencing system in the north of Ireland in
achieving restorative justice? What procedures or guidance should the PPS or
the courts provide on when to apply restorative justice rather than a conventional
sentence? Should the conferring system be available regardless of the offender's
age?
- Mr Lavery: The judiciary is not intended to be representative of
any sector of the community. That is why the review report uses a different
term. It speaks of an aspiration or expectation that the judiciary be more
fully reflective of the community. There are international examples of attempts
to explicitly make appointments that are acknowledged to be representative
of different groups in the community. However, such attempts gave rise to difficulties.
The explanation is that, although it is appropriate that it be a statutory
requirement to make every effort to select lay members of the JAC who fully
represent of the community, it is not appropriate to use that same method to
select members of the judiciary. I do not know whether you find that argument
convincing.
- The involvement of the judiciary in the JAC would be different from that
of the lay members. The six judges are deliberately chosen from each rung of
the judicial ladder, from the lay magistrate to the Lord Chief Justice. Whether
the lay magistrate should be considered as a member of the judiciary or as
a lay person is an interesting question. The position of lay magistrate is
in a different category from the rest of the judiciary because the person who
holds that position is not a professional lawyer, but a lay person appointed
to the lay magistracy.
- The constitutional change will be that the lead ministerial responsibility
to recommend senior appointments will be transferred from the Lord Chancellor
to the First and Deputy First Ministers, not to a justice minister, if we had
such a figure. The intention, I imagine, would be to emphasise the non-political
nature of the appointments. It is also important to acknowledge that the model
for judicial appointments is that the First and Deputy First Ministers would
act on the recommendation of the JAC.
- In the Republic of Ireland, the Judicial Appointments Advisory Board produces
a list from which the Minister makes an appointment. The review recommends
a different model. The JAC would conduct the interviews, make the selection
and the recommendation; it would then fall to the First and Deputy First Ministers
to proceed with the appointment or to refer it back. That is probably a better
and less political model.
- The net outcome of all those changes will be to produce appointments that
are more open and accountable. Such a system would enhance public confidence.
That is not, of course, to suggest that past appointments were anything other
than entirely satisfactory. However, the greater openness and transparency
is believed to be beneficial.
- Mr J Kelly: You clearly believe that the First and Deputy First Ministers
should have a role. Will you explain the difference between "representative"
and "reflective"?
- Mr Lavery: No one appoints a judge, or has suggested that it would
be right to appoint a judge, for a vacancy because the candidate had a particular
background, because he or she belonged to a particular ethnic group or because
of his or her gender. That would inevitably lead to headcounts and would influence
how one assigned judges to deal with cases. How could one create a balanced
Court of Appeal of three members?
- Instead, the intention is that one should select people of ability and of
proven legal experience whose merits make them the best candidates to fill
a vacancy. Factors such as community background, ethnicity or gender should
not be material. At the same time, the objective is to develop a wider pool
of candidates from which selections can be made. There was a time when most
appointees tended to be men. There was a good balance of community backgrounds,
but it was a predominantly male profession and, therefore, a predominantly
male judiciary. Every effort is being made by the professional bodies, the
universities and other agencies to ensure that we have a much broader pool
of talent from which to make appointments. However, when it comes to appointing
a candidate to the judiciary, the principle that we wish to defend is the one
espoused in the Northern Ireland Act 1998 and in the 'Criminal Justice Review
Implementation Plan'. That merit must be the determining factor.
- Mr J Kelly: When the American Supreme Court appointed an African
American there was a question of whether that person was "representative" rather
than "reflective". The matter was left, I felt, to his integrity.
- Mr O'Reilly: The implementation review recommends what is good practice
throughout Europe - that the judiciary have a role in appointments. The review
sought to balance that.
- It has been suggested that the legal profession and lay members should be
involved. Therefore, we structured the commission to achieve a balanced representation
of the judiciary system through all the tiers and lay members. It is important
that the judiciary play a strong role in the commission and the appointments
panels, which will include one appointed member of a judicial tier plus a lay
member. That will be included in the procedures on appointments.
- Mr McGuckin: The criminal justice review recommended that the Probation
Board for Northern Ireland (PBNI) should be reconstituted as a Next Steps agency
for the devolution of criminal justice issues and functions. The implementation
plan suggested that it should be left to the Assembly to decide how best to
deliver probation functions once devolution takes place.
- The recommendation in the review relating to an overarching board recognises
that prison, probation and juvenile justice services carry out similar functions,
although they deal with different aspects. In many cases they deal with the
same type of people and issues. Therefore there is scope to improve the co-ordination
of activities among those organisations and achieving a greater understanding
of the connections between those organisations and the individuals with which
they deal. An overarching board would provide an opportunity to achieve that.
It would not be intended to create a fusion of the agencies.
- Mr White: The Committee asked some questions on restorative justice.
The first concerned the effectiveness of youth conferencing. The model closest
to our proposals is a system of family group conferencing in New Zealand. That
has been effective in the majority of cases, which is not to say that it is
a panacea. There are no perfect solutions in that area.
- The Committee asked how a youth conferencing Order might balance against
other methods of sentencing. That is a difficult question to answer, because
the proposed youth conferencing Order is an entirely new concept, so it will
take time for people to feel comfortable with it. Nevertheless, it will be
available alongside other disposals. The most important point is that the great
majority of juvenile justice cases will have a process of conferencing, where
a group of people will engage with the offender to address the offence, as
well as matters associated with offending. It is a powerful mechanism, and
it should produce a powerful Order, which will be there to put matters right.
However, it will exist alongside other available disposals, and some offences
may be so serious that it will be necessary to set a lasting example.
- The final point regarded a further extension. Did you mean an extension
to people of other ages?
- Mr J Kelly: Yes. Should conferencing be available regardless of the
offender's age? How might a community restorative justice scheme be regulated
in order to ensure that justice is done?
- Mr White: The proposals in the implementation plan concern juvenile
offenders. The review and the implementation plan discuss the possibility of
extending those proposals to introduce some restorative elements into the adult
system. However, that issue will be dealt with further down the line. Both
documents already deal with the central value of community justice schemes,
subject to certain protocols and overall accreditation.
- Mr A Maginness: Is the Northern Ireland judiciary representative
of Northern Ireland society?
- Mr Campbell: Is any judiciary?
- Mr Lavery: "Yes" would be a cautious and appropriate response, broadly
speaking.
- Mr A Maginness: Is there a serious distinction between a representative
judiciary and a reflective one? You have said that it is broadly representative
- that is the argument that is being put forward.
- Mr Lavery: It is a deliberate use of language to avoid the notion
of headcounts, which is a concept that the community may find repugnant. However,
the language is also meant to emphasise the desire to have a judiciary that
is recognisably drawn from the community that it serves. In this day and age,
for all judges to be white and male would suggest an element of remoteness
or unrepresentativeness. We could spend an afternoon talking about the subtle
distinctions between the words "representative" and "reflective". However,
we are trying to avoid a crude numerical headcount or quota system. We shall
strive to secure a judiciary that is drawn from the community and reflective
of it. A judiciary that reflects the community is likely to be representative
of it.
- Mr A Maginness: I agree that we should not indulge in headcounts,
but clause 3(7) of the Bill refers to lay members being representative of the
community in Northern Ireland. Is that not contradicted by the absence from
the statute of a criterion that states that any representation should be reflective
of society? That criterion should be included. Although it has to follow the
programme, the JAC could decide that, because the programme is not statute-based,
it can determine its own policies. Would it not be safer to have that criterion
enshrined in statute in the same way the selection of lay members has been?
- Mr Lavery: As far as the issue of lay members is concerned, the Bill
is clearly modelled on the equivalent provision in the 1998 Act, which informs
the appointments to the Human Rights Commission et cetera. That is especially
necessary where appointments would otherwise be at large. Therefore clear guidance
is given to the appointing authority. You have argued strongly that the principle
of a reflective judiciary should be given statutory expression. We are certainly
listening. The Bill does not explicitly address that concept, yet it is consistent
with the report's recommendations. We shall reflect on members' observations.
- I would hope and expect the JAC to take its guiding principles from those
set down in the review report, given that those principles have their derivation
in the Good Friday Agreement. I would not be indifferent to what it says in
both documents about the overall objectives. I also fully expect the First
Minister and the Deputy First Minister to pay close attention to those objectives
and principles when they receive the JAC's recommendations for judicial appointments.
Whether the legislative scheme would be stronger and better for having the
principle of a reflective judiciary written into clause 3, or elsewhere, needs
to be considered.
- The Chairperson: A concern has been expressed at several Committee
sessions about the establishment of a single public prosecution service (PPS).
The concern is over whether that body would be properly resourced, financed
and staffed to ensure that the mistakes made in setting up the Crown Prosecution
Service (CPS) - especially those concerns highlighted in the Glidewell report
- are not repeated. Has a PPS been fully costed and have exact staffing requirements
been set out? How will such action be undertaken and is it possible to provide
the Committee with the information?
- Mr White: I cannot fully answer that question, as it is not my area.
You can rest assured that we are aware of the lessons learnt in developing
a prosecution service across the water. The need to ensure that it is properly
resourced has been pointed out to us on a number of occasions, even before
the criminal justice review completed its report.
- The Chairperson: Thank you for attending.
- Mr White: Thank you for listening to us, and for giving us the opportunity
to speak.
MINUTES OF EVIDENCE
Tuesday 4 December 2001
Members present:
Mr Dalton (Chairperson)
Ms E Bell (Deputy Chairperson)
Mr Campbell
Mr J Kelly
Mr A Maginness
Mr McNamee
Witnesses:
Ms M Beirne ) Committee on the
Mr P Mageean ) Administration of Justice
Mr M O'Brien )
- Mr O'Brien: As Director of the Committee on the Administration of
Justice (CAJ), I want to thank the Ad Hoc Committee on the Criminal Justice
Review for the opportunity to discuss the criminal justice legislation and
implementation plan. We were concerned about the short time frame that the
Government had originally provided for consultation on that matter. We understand
that an extension has been given and that this is, in no small measure, due
to efforts made by Members of the Assembly. We commend Members for that. We
are pleased that the Committee and the Assembly are taking note of these measures
and examining them in detail.
- I would like to outline the work that we have done in relation to the criminal
justice review. The CAJ made a detailed submission to the review, met with
the review team, and provided two supplementary submissions. We were concerned
from the outset that it was not an independent review but was led by the criminal
justice division of the Northern Ireland Office, albeit with the assistance
of some independent members.
- The CAJ fully engaged in the review process. We were pleased to have been
able to bring to Northern Ireland - in conjunction with the Queen's University
of Belfast and the International Commission of Jurists - some prominent practitioners
within the criminal justice systems of several other jurisdictions. They came
to Northern Ireland and spoke to members of the review group about judicial
appointment mechanisms and prosecution mechanisms in other countries, for example
both in the Commonwealth and elsewhere.
- In the wake of the publication of the review we submitted a detailed response
to it. In our opinion, the draft legislation and implementation plan fail to
take account of any of the observations that we made in that response. We have
several general concerns, and some specific ones, about the approach that is
being taken.
- Around 300 recommendations are dealt with in the plan. There are very few
deadlines for their implementation, and it appears that there are no clear
targets in relation to the process. We are conscious that the recommendations
are parcelled out to a large number of bodies within the criminal justice system;
for example, the legal profession, the judges, and the court service. The CAJ
is concerned that the lack of deadlines and targets, combined with the large
number of actors involved and the absence of any clearly identified co-ordinating
or supervisory body for the implementation of those mechanisms, could lead
to a long, drawn-out process in which many of the recommendations fail to see
the light of day.
- We were also concerned that several of the recommendations are contingent
upon the introduction of devolution of criminal justice matters. We are not
convinced that some of those measures should have to await the devolution of
criminal justice matters. Regarding the judicial appointments commission (JAC),
we believe that if there is a need for a more transparent mechanism to appoint
judges it should be brought about sooner rather than later.
- Those are our general points. Particular points regarding our field of expertise
are in relation to the section in the review on human rights and guiding principles,
the section on the prosecution service, the section on the judiciary, the section
on the courts, and the implications for equality.
- We apologise that we were unable to provide a more detailed comment in advance,
and that you have only just received a short note from us. Our submissions
to the review and our response to the initial review could be made available
to members if that was felt to be useful. Our comments on the draft Bill and
implementation plan will be fed in when completed, and those too could be made
available to members.
- Mr Dalton: You have stated that many of the recommendations are contingent
upon devolution and that that is a problem, as is the absence of clear targets
for implementation of certain arrangements. Would it be helpful if a clear
target date were set for devolution to take place - subject to the requirement
of the Northern Ireland Act 1998 for cross-community support?
- Mr O'Brien: Generally, we would take that view. Whether it would
satisfy our concern would depend on the proximity of the date. If a date in
the near future were set, several of the changes would come into play. If it
were decided that devolution of justice functions is to be on the long finger,
some matters would have to wait. However, clarification of a date would be
welcome.
- Mr J Kelly: Thank you for your presentation. You might have heard
the tail end of our debate on the ideal outcome of judicial appointments. You
used the term "to ensure his appointment was reflective of the community".
We were debating the terms "representative" and "reflective". Which are we
talking about? My view would lean towards "representative". Are we talking
about the same thing, or is it about semantics?
- Mr Mageean: It is to some extent a matter of semantics. We want to
see a Bench that either reflects or represents the composition of the community
in Northern Ireland in respect of gender, religious background and political
outlook etcetera. The use of the word "reflective" in the review was primarily
an attempt to ensure that appointed judges were not in any way seen to represent
the interests of a particular community. Concerning gender, for example, the
Bench is clearly not representative or reflective of the community at the moment.
That problem continues. No members on the Bench are from ethnic minorities.
The review recommended that the judicial appointments commission should, as
soon as possible, set up a Bench that does reflect the composition of the Northern
Ireland community, and we want to see that. The debate about "reflective" or
"representative" is largely a play on words, as was indicated earlier by a
representative of the Northern Ireland Court Service.
- Mr J Kelly: That may be so, but are we asking for a representative
headcount on the Bench? The crux of the matter is that it ought to be reflective,
but reflective of what?
- Mr Mageean: We agree that the Bench should not be made up simply
of a headcount of judges, and that appointments should be made on merit. Having
said that, efforts could be made to ensure that the Bench becomes more representative
of the community. Outreach measures and redefinition of merit are examples.
We want to avoid any notion that judges are appointed solely because, for example,
they are from one community or the other, or because they are female.
- In the past the Bench has not been representative. Therefore, change is
required in that area. A more representative bench will be the measure of the
success of any change that is instituted. We are concerned that, although the
criminal justice review asked that a representative bench be established, no
timetable is set for that in the implementation plan. There is no target; there
is not even a target for the consultations that are envisaged between the Northern
Ireland Office, the Bar, the Law Society and the Equality Commission. We find
that troubling. Although it may be difficult to set a time by which the Bench
might become more representative, it is relatively straightforward for the
Government to say that by the end of 2002, they will have consulted with all
of the relevant parties, professions, the judiciary and the Equality Commission
about the mechanisms that will be put in place to ensure that the bench becomes
more representative.
- Mr O'Brien: The discussion about merit is related to the point about
the bench being representative. The criminal justice review identified a range
of competencies, which they felt that the Bench and a judge should have. That
is absent from the implementation plan and from the draft legislation. One
of the engines for establishing a judiciary that broadly represents or reflects
our society is an examination of the way in which judges are appointed and
the criteria upon which they are appointed. The review went some way towards
indicating how that might be done, but the implementation plan and the draft
legislation have left it out.
- Mr J Kelly: To refer back to Mr Maginness' question, has the judiciary
been representative - yes or no?
- Mr O'Brien: It is clear that it has not been representative. One
only has to look at the issue of gender to be absolutely clear about that.
Getting a representative judiciary is a problem that affects all sorts of societies.
In several other countries and other jurisdictions, efforts have been made
to do that. For example, Canada and South Africa have had similar problems.
However, they grappled with their problems and did something about them. We
need to be sure that the legislation will deliver a representative judiciary,
but we are not convinced that it will.
- Mr McNamee: Thank you for your brief written note, I look forward
to receiving the expanded form. I could ask many questions based on your submission.
Paragraph 2 refers to general problems with the implementation plan, which
makes almost 300 recommendations that have not been implemented yet.
- You referred to examples and concerns about human rights training and the
appointment of judges. I understand that newly appointed judges are required
to undergo human rights training. However, it appears that existing members
of the judiciary will not be required to undergo such training. Given the incorporation
of the European Convention on Human Rights (ECHR) into domestic law, the Human
Rights Act and the potential for a bill of rights, I am concerned that judges
who will be responsible for decisions in relation to those laws will not have
had human rights training. It is one of the issues that you referred to and
are concerned about.
- Can you briefly outline some of your concerns about the prosecution service,
and the areas where you think that the review's recommendations have been undermined
by the implementation plan? Despite a proposed change of name, and advance
talks about the undertaking of its new functions, given its existing membership
I am concerned about how different a service it will be.
- Mr Mageean: On the issue of human rights training, there are two
distinct recommendations in the review and, consequently, in the plan. The
first relates to the training of criminal justice agency staff. The implementation
plan does accept that recommendation, but does not set any timetable for it
to take place, leaving it to the discretion of each individual criminal justice
agency to deliver that training. Certainly, from our perspective, that is unacceptable.
Someone should be drawing together the training being delivered to each of
the agencies. Immediate problems can be seen in relation to the standard of
training delivered - whether it is uniform across all of the agencies, or contradicting
training being given to other agencies. There are problems with that.
- There is a recommendation that trainee lawyers be trained in human rights
principals before they start to practice. We are aware from previous engagements
with the Institute of Professional Legal Studies that, currently, trainee lawyers
there receive about one day of human rights training in their year at the institute.
Last year we were able to organise a one-off session, bringing senior officials
from the European Court of Human Rights to spend a day with the students going
through some of the jurisprudence. That was very much a one-off, and the students
found it interesting and informative. At present they are not getting sufficient
training. With the introduction of the Human Rights Act, the possibility of
a Bill of Rights, and the statutory duty under section 75, those who will progress
to be barristers or solicitors in Northern Ireland are going to be practising
in a very different profession to that which existed five or 10 years ago.
They need to be properly trained in this area of law. Unfortunately, the implementation
plan leaves the training of those students to the discretion of the professions,
and does not set a timetable for that to be done. Once again we have concerns
that this situation needs to be remedied.
- On human rights training for judges, although the review says that training
for new judges should be mandatory, we are concerned because that does not
appear to be reflected explicitly in the plan or in the draft legislation.
The one area where the review seemed prepared to oblige judges to receive training
does not seem to have received an explicit guarantee in the plan. Our general
view is that judges should receive human rights training. Many judges sitting
on the Bench in Northern Ireland qualified years ago, when they would not have
been familiar with the European Convention on Human Rights, its introduction
to British law, or with section 75. There is a need for judges to receive training
in those areas.
- Mr O'Brien: This illustrates one of the particular problems that
we see with this. The review recommended mandatory training for new judges,
but did not recommend mandatory human rights training for all judges. In our
view that was a deficiency in the review - a weak recommendation. However,
even that weak recommendation has not been given a proper base in either the
plan or the draft legislation.
- In our view, that is a pattern which occurs where the review document was
insufficient on some of these areas. Often when it did make significant and
important recommendations, those recommendations have not been followed through,
and this is one example.
- Mr Mageean: In relation to your question on the public prosecution
service (PPS), we are concerned that the review appeared to envisage quite
substantive change to the way in which the prosecutor's office is organised
and the way in which it delivers its service. Unfortunately, when one looks
at the plan, it appears that what is being envisaged is simply a renaming of
the service and an expansion of its duties, but not much change in how that
service is delivered. That is a potential problem, because public expectations
have been raised, and significant change is envisaged.
- You asked how the recommendations of the review in this area have been undermined.
I will give one clear example. The review considered a number of cases where
reasons for not prosecuting individuals were not given. Currently, it is the
practice of the Office of the Director of Public Prosecutions (DPP) not to
give reasons why they decide not to prosecute, and that has caused concern
in a number of cases. The review recommended that in future, the general rule
of thumb should be that reasons should be given. There may be certain situations
where that cannot happen, but in general, it should be so.
- Although the implementation plan states that that recommendation is accepted,
it is essentially turned on its head, and the current rule is re-established.
The situation remains that reasons are only given in exceptional cases. The
review document clearly envisaged the reverse of that. It is very important
for public confidence in the public prosecution system that we have increased
transparency in the office.
- You will be aware that the office of the Director of Public Prosecutions
does not currently publish an annual report. The recommendation they should
do so has been accepted. The giving of reasons is an additional factor that
will lead to transparency in the office, and it is of concern that in that
sensitive and critical area, the implementation plan seems to reverse the recommendation
that was made.
- Mr Campbell: I have one question on the judicial appointments commission.
The previous delegation answered questions on the issue of the group of five
lay members, and how the draft Bill would require that that group be representative
of the community in Northern Ireland. How might that be reflected in statute,
given that not only should we recognise definitions by gender and community
background, but the almost fundamental faultline which has emerged in the community
over the past three years?
- The community that I represent and come from feels that the entire system
is one in which they do not feel accommodated. How would any statute accommodate
a representative section of the community if they were ignored? Last week's
appointments to the Human Rights Commission ignored that section of the community
again. How do you draw those threads together to get a lay group that is representative,
not only in gender and community background, but also of the faultline that
exists, particularly in one section of the community?
- Mr O'Brien: A legislative formulation that would address that issue
would be quite difficult to achieve. It would be a significant departure in
respect of any public appointments process. Some countries, such as South Africa,
have addressed the matter of judicial appointments by adding an explicitly
political dimension to the membership of their appointments commission. I understand
that all political parties have a membership of that body. That approach of
ensuring that the whole spectrum of political opinion was represented might,
to some extent, be a tidy way to address the problem. To what extent could
those who make the appointments be relied upon to bear those factors in mind?
That is another dimension. That is possibly the problem with all of these phrases.
For example, you get two women on a policing board, in spite of very clear
indications from Patten that it should be representative. Regardless, of the
wording used, the challenge of delivering such a goal seems to be beyond those
who make the appointments.
- The Chairperson: Mr Campbell, we can find no-one to replace you.
We would fall below quorum, so it is in your hands.
- Mr A Maginness: I will never forgive you.
- Mr Campbell: That is too big a prospect. I will ask my question before
I leave.
- Mr A Maginness: Do you have to catch a plane?
- Mr Campbell: No, but it is almost as important. I appreciate your
difficulty in defining such a group in statute. I assume that with a political
element - with a small 'p' - such as you mentioned in South Africa, the spread
of political opinion would be accommodated. However, if someone did not want
to politicise the appointments - again, with a small 'p' - would it not be
possible for a sizeable section, in effect the majority of the Unionist community,
to be accommodated other than by some kind of headcount?
- Mr O'Brien: I cannot come up with a legislative provision for that,
apart from the one mentioned. In fact, that system has a capital 'P' and is
overtly political. However, that is not to say that it is impossible to do
what you suggest; only that it is all I can think of "on the hoof".
- Mr A Maginness: Looking at the suggested mechanism, there are lay
members and the judiciary. Under that system judges will appoint judges. In
reality, the lay element is so weak as not to make a serious input into the
appointment of judges. What do you think of that system? Mr Campbell made the
point that those in his community who are anti-agreement should have representation.
How are those problems resolved?
- Mr O'Brien: The judicial appointments commission is another example
of the review's recommendations falling far short. For precisely the reasons
you quoted - in continuing a system whereby judges, at the end of the process,
would still hold the day - this mechanism does not promise an adequate system
to secure a transparent, independent and acceptable mechanism for the appointment
of judges. We provided the Government with our response and recommendations
for making improvements to that process, although they have fallen on deaf
ears.
- Mr Mageean: With reference to Mr Campbell's comments, we suggested
that the review body look at the South African experience and they did, indeed,
visit South Africa and attended hearings of their judicial appointments commission.
The South African Judicial Services Commission, which is comparable to the
proposed appointments body here, includes senior judges, solicitors, barristers,
academic lawyers and members of parliament, provincial delegates and four presidential
nominees. Members of parliament were included in that body and we recommended
a similar provision to the review. For whatever reason, they choose not to
take that path.
- Mr A Maginness: Do you regret the lack of politicians' input, or
do you think that it is a good situation?
- Mr Mageean: We do regret that, and we feel that there should be a
broader political input to the process.
- Mr A Maginness: Do you see a contradiction between the fact that
politicians can assist in the appointment of the Chief Constable of the Police
Service of Northern Ireland and cannot have an input into the appointment of
judges?
- Mr O'Brien: The appointment of the judiciary is at the core of society,
and it is important that everyone with standing in the community is included.
Our view is that when considering the make-up of that body, it should veer
away from judges appointing judges. The more representative it is the better.
- The Chairperson: Thank you very much for your time this afternoon.
MINUTES OF EVIDENCE
Tuesday 11 December 2001
Members present:
Mr Dalton (Chairperson)
Mrs E Bell (Deputy Chairperson)
Dr Birnie
Mr Campbell
Ms Lewsley
Mr A Maginness
Mr McNamee
Mrs Nelis
Mr Paisley Jnr
Witnesses:
Mr O Brannigan )
Mr B Rowntree ) The Probation Board for
Ms C Lamont ) Northern Ireland
Mr B Fulton )
- The Chairperson: Good afternoon and welcome to the Committee.
- Mrs E Bell: I declare an interest as a member of the Probation Board.
- The Chairperson: Perhaps you will introduce yourselves?
- Mr Brannigan: My name is Oliver Brannigan, and I am the Chief Executive
of the Probation Service.
- Ms Lamont: I am Cheryl Lamont and a member of the Probation Board's
senior management team.
- Mr Rowntree: I am Brian Rowntree, Chairman of the Probation Board.
- Mr Fulton: I am Brendan Fulton and also a member of the Probation
Board's senior management team.
- The Chairperson: We have received a paper from you, which has been
distributed to the members. We will hear your opening comments and then members
will ask questions.
- Mr Brannigan: Thank you for the opportunity to appear here today.
We made a substantive reply to the Criminal Justice Review Group, and I have
copies of that if anyone wants one. We see today's hearing as the beginning
rather than the end of the debate and will be open to more questions after
today.
- We welcome the implementation plan as a beginning to opening up the criminal
justice system to community involvement, local political scrutiny and partnerships.
We think that is very good. Our main interests are restorative justice, juvenile
justice, sentences, prison and probation. As part of the criminal justice family,
we have an interest in all aspects of the review and implementation plan.
- We fully subscribe to the principle of partnerships, but while it is very
easy to do that, it is more difficult to breathe life into the principle. We
work hard to achieve this although we do not always succeed because partnerships
are easy to start up but difficult to sustain and maintain.
- We have some concerns about the implementation plan. Generally, it will
facilitate partnerships, given good will and some humility from us all on the
journey. However, a criminal justice system that does not try to re-integrate
offenders back into their communities, so that the communities can play a major
role in their supervision within them, will fail the communities. We see going
to prison as an interruption of community living for a long or short time.
With few exceptions prisoners return to their communities. We have to work
with prisons to make sure that people coming out are ready to re-join their
communities and that the communities are ready to receive them. Unless those
two parts of the equation come together, it is a revolving door situation -
even more so than it is now.
- A great deal of work can be done in juvenile justice. We endorse the
principle that work has to start before a person gets too far into the
criminal justice system. We are very much in favour of diversionary work,
starting at school age, or before, to make sure that juveniles are helped to
keep away from the criminal justice system. Once they get into it, it is
difficult to get them out of it again unscathed, so this is an important
aspect. When they get into the criminal justice system we want the right
balance between care and control. There must be care with human rights
protection and that sort of thing built in. That is where we stand, though
our paper says more about our concerns about the draft Bill and the
implementation plan.
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