17. We recommend that Clause 36B (4) and (5) should apply to the making of all orders in respect of juvenile offenders and should be placed at the beginning of the section on juvenile justice and should read

    Before making any order in respect of a juvenile the court shall explain to the child the nature of the proceedings and where the child is charged with an offence the nature of the charge. The explanation shall be given in simple language suitable to the child's age and understanding. (This wording reflects Article 5(2) Magistrates Courts (Criminal Justice (Children) Rules (NI) 1999.) The wording of Article 36B (5) could then be inserted beneath.

    The Age Of Criminal Responsibility

18. It is our view that the age of criminal responsibility in this jurisdiction is much too low at 10. We believe that this should be raised significantly. We recommended in our original submission that there should be widespread consultation about this issue alone, but regretfully this has not happened.

19. The United Nations Committee On The Rights Of The Child has already indicated that our age of criminal responsibility is unacceptable and we believe that the failure by government to take this opportunity to deal properly with this issue will be perceived by The Committee as a continuing breach of children's rights in this jurisdiction.

    Reparation Orders

20. At Article 36A 5) there should be a requirement that the Report should include an assessment of the child's needs including psychological and educational needs.

21. Article 36 B 1) this section should refer to informed consent .The concept of informed consent should be reflected throughout the legislation. We appreciate the challenges that genuine informed consent brings with it but believe all efforts should be made to ensure that the child or young person fully understands what they are being asked to undertake.

22. Article 36(5) we recommend that this should read The Secretary of State shall make rules for regulating the making of reparation.

    Community Responsibility Orders

23. Article 36H; We recommend that this should read, "The Secretary of State shall make rules".

    Custody Care Orders

24. The mechanism of custody care orders is burdensome and in our view it would be a much better option to raise the age of criminal responsibility to 14 and to deal with children and young people under this age in accordance with the relevant provisions of The Children (NI) Order 1995.

25. If the children need to be accommodated the care system in accordance with the recommendations of The Children Matter Report SSI 1997 should be provided with funding to ensure it is in a position to provide a range of specialist and differentiated accommodation to cope with the needs of all children in the system.

26. The Criminal Justice Review recommended that 10 - 13 year olds should be dealt with in the care system.

27. In our view this means that children and young people aged 10-14 should not enter the criminal justice system at all. Their needs should be provided for within the framework of The Children (NI) Order 1995,associated Guidance and Regulation and we should formally introduce the assessment framework for children in need under The Children (NI) Order to ensure that children and young people who are identified as being at risk of offending are comprehensively assessed and provided with help to ensure that they are diverted from the Juvenile Justice System.

28. The appropriate and responsible authority for custody care orders has been identified as the DHSS PS. It is our understanding that the DHSS PS are bound by the principles enshrined in The Children (NI) Order 1995,in particular by the best interests principle.

29. It is difficult therefore to reconcile this with the fact that Article 44B 2) appears to allow for derogation from The Children (NI) Order 1995 in respect of custody care orders. We have set out below an analysis of Article 44B2);

30. Article 3 Children (NI) Order 1995 i.e. the paramountcy of the best interests of the child and the welfare checklist has been expressly excluded to decision-making processes in relation to the making of custody care orders. This is not acceptable. If this legislation seeks to deal with children of 10 - 13 within the care system, we cannot exclude Article 3, which is one of the cornerstones of our childcare system.

31. Article 3 Children NI Order 1995 should be expressly included at Article 44 B 2) Justice (NI) Bill.

32. Article 36 (2) and (3) Children (NI) Order 1995 are expressly excluded. These deal with the Trust's authority to grant assistance with education and training. Are children who have been subject to custody care orders to be excluded from this financial help?

33. Article 36(2) and (3) should be expressly included at Article 44 b 2) Justice (NI) Bill. Careful consideration should also be given to ensure that these children are included under the pending Leaving Care Bill, which seeks to enhance protection for children leaving care. Custody care orders must be specifically included in the eligibility criteria.

34. Article 45 Children (NI) Order 1995 which provides a strict mechanism for placement Regulation and Review is excluded from 44 B 2). This begs the question is the child a "looked after" child or not? It appears that children held under custody care orders will not be subject to the stringent requirements in relation to looked after children as Article 44B5) specifically states that care orders shall cease to have effect when children are held under a custody care order.

35. Article 45 Children (NI) Order 1995 should continue to apply to children subject to custody care orders. All of these children should have a detailed care plan and if they are already looked after their care plan should continue to be monitored and reviewed by their social worker.

36. It is unclear from the draft legislation who has parental responsibility for the child. Normally under a care order the Trust shares parental responsibility with the parents, but this would not appear to be the position under a custody care order.

37. We do not agree with Article 44 A 8). We believe that children should stay in a care setting until their 14^th birthday when they can be moved if necessary. Under the Article as currently drafted any child who is 13 ½ will be going straight to a juvenile justice centre.

38. The custody care order is punitive in nature and seems remarkably similar to a juvenile justice centre order.

39. In summary, the custody care order in our view does not resolve the particular issues concerning 10-13 year olds in custody.

40. On reading the recommendations in this regard from The Criminal Justice Review we had envisaged the use of specialist residential provision to look after these children with access to suitable educational, social and psychological support services, which would be planned on an individual basis with each child and that such plans would be subject to scrutiny by the courts.

41. We do not agree with the introduction of custody care orders under the legislation as currently drafted. We believe that further consideration needs to be given to ways of implementing the recommendations of the Review Body appropriately and that this will have to involve discussions with DHSS PS about suitable provision in a care setting.

    Definition Of A Child

42. We agree that 17 year olds should be included in the Youth Justice System. We note the restrictions on the use of juvenile justice centre orders at Article 60 and would be opposed to 17 year olds being sent to the Young Offenders Centre at all.

    Youth Conference Orders

43. We welcome the introduction of Youth Conferences and particularly of the introduction of legal aid for diversionary youth conferences and court ordered youth conferences as it is our opinion that a young person should be entitled to legal representation at such a conference if s/he wishes.

44. The Criminal Justice Review referenced specifically (9.66) the need for clarity with regard to the relationship between the conference, pre sentence reports and the information needed by the court. We recommend that Regulations specifically refer to these procedural matters.

45. We anticipate that there will be tensions between the ordering of pre-sentencing reports or youth conferences and we believe that the regulations should be clear as to the criteria and protocols governing which should be prepared. There may be certain offences where a conference is inappropriate or there may be information that may be too sensitive to share. Therefore there should be flexibility to allow a youth conference co-ordinator to recommend, once a young person has been interviewed, that a conference is not appropriate and that a PSR should be prepared (by the appropriate authority) instead. Consequently the co-ordinator would need to be appropriately trained to sensitively interview a victim, a young person and their family etc.

46. We also have concerns about a young person's ability to take part in a conference and would recommend that this is not necessarily viewed negatively by a court instead. Instead it could simply indicate the type of work that needs to be undertaken with the young person to aid with taking responsibility for their actions.

47. The comments we have made with regards to "informed consent" of the young person also apply in all areas of conferencing and restorative justice.

    Closure Of Lisnevin Juvenile Justice Centre

48. We recommended in our submission to The Criminal Justice Review that Lisnevin Juvenile Justice Centre should close. It is our opinion that closure needs to be expedited and trust that the provisional date of Autumn 2002 will be acted upon.

    Information

49. We recommend that legislation should require the Agency responsible for Youth Conferencing to produce comprehensive information on an annual basis about Youth Conferences and about programmes and options that are available to young people as part of the Youth Conference Orders. This is a specific recommendation of The Criminal Justice Review (9.86)

50. On a wider point we would wish to see a legislative requirement on the responsible authority to provide comprehensive annual information about the Youth Justice System in Northern Ireland and about the disposals available. This should be in a format, which is young person friendly and accessible. This would ensure that The Northern Ireland Office is acting in accordance with its statutory duties under Section 75 Northern Ireland Act 1998.

51. Include Youth and Children's Law Centre produced a version of the Criminal Justice Review for children and young people in poster form and the Children's Law Centre have recently produced a leaflet on the juvenile justice system as part of a broader series of leaflets specifically designed for young people.

52. We recommend that the Northern Ireland Office produces a version of The Justice (NI) Bill for young people accompanied by a leaflet about the proposed changes and that in future leaflets are produced outlining disposals available within the Youth Justice System with useful contacts and services/programmes outlined.

1. Introductions: The CAJ delegation will consist of Martin O'Brien (Director), Paul Mageean (Legal Officer) and Maggie Beirne (Research and Policy Officer).

2. General problems with the Implementation Plan: there are almost three hundred recommendations in the Plan. There are very few deadlines for implementation of any of these. The recommendations are also the responsibility of very many separate criminal justice agencies. There is however no mechanism for oversight of the implementation of the recommendations. In the absence of such a mechanism, we believe the changes promised in the Review will prove difficult to track and the reality is that the implementation of many of the recommendations will be very slow. Another factor militating against speedy implementation is of course the fact that many of the changes are subject to devolution of criminal justice powers.

3. Human Rights and Guiding Principles: while we welcome the centrality afforded by the Review to human rights in the process of change, we are concerned that in relation to many issues including for example human rights training, defence lawyers, complaints mechanisms, and equity monitoring, there are significant problems which will delay real change.

4. The Prosecution Service: CAJ are deeply concerned that many of the most important changes recommended by the Review team in relation to the prosecution service have been significantly undermined in the Implementation Plan. The Review said they envisaged "major changes in the prosecutorial arrangements in Northern Ireland, which we believe will enhance the system and public confidence in it." However, what the Implementation Plan suggests is essentially a new name for the office but little substantive change.

5. The Judiciary: CAJ has a number of concerns about the implementation of the recommendations on the issue of the Judicial Appointments Commission including in particular the fact that the creation of the Commission will have to await devolution. In addition we are concerned that the Lord Chief Justice will not have to consult his colleagues on the issue of appointments to the Commission nor is he under any obligation to ensure his appointments are reflective of the community. The absence of a timescale in ensuring a more reflective bench is also of considerable concern. The recommendations on judicial training leave, in our view, too much to the discretion of the judges themselves.

6. The Courts: the recommendations in this section include important areas such as the inquest system, simplification of dress, symbols and public outreach and information. Once again, as with other recommendations, we are concerned that the plans for implementation of these matters are weak and will lead to undue delay.

7. Equality: while of course we are pleased that the government has extended its deadline for responses to the Plan and Bill until 7^th January, nevertheless we are deeply concerned that the equality aspects of the government response to the Review continue to pose serious problems. We do not believe that the consultation as currently established could possibly be described as "timely, open and inclusive" as recommended in the Equality Commission's Guide to the Statutory duties.

1. Introduction

   1. CAJ worked extensively on the Criminal Justice Review itself. We made a lengthy submission and then met with the Review for a discussion of the issues we had raised in the submission. We subsequently made two additional submissions concentrating on the Finucane case and the Treacy/Macdonald judicial review. In conjunction with the International Commission of Jurists (ICJ) and the Queen's University of Belfast, we organised a private seminar for members of the Review with a number of respected international legal practitioners and human rights lawyers. This took place over two days in Belfast.

   2. When the Review published its report we submitted further lengthy comments to the government during the consultation period which it established.

   3. Our submissions concentrated on four main areas: human rights, the prosecution service, the judiciary and the courts. Our comments on the draft Implementation Plan and the Bill also focus on these areas.

   4. Generally we are disappointed at the contents of the Plan with regard to these four areas. Some of the weaknesses we have identified are related to the failure of the Review to make particular recommendations. However, more worryingly the Plan appears to mirror substantially the initial Patten Implementation Plan in that its main purpose seems to be to undermine some of the more significant proposals made by the Review particularly in the area of the prosecution service.

   5. Structurally we have identified two main problems which may be due to omissions on the Review's part but which will create ongoing problems now. The first is that, unlike in Patten, there is no independent mechanism for oversight of the changes envisaged. The case for such oversight in this process is perhaps more compelling than in Patten given that the change will affect many different agencies and institutions. It is therefore crucial to have someone charged with ensuring that change occurs and at the appropriate pace. Leaving this to the NIO or the different agencies will not inspire confidence that change will actually occur given that it was the unsatisfactory performance of those very different agencies which presumably motivated the parties to the Good Friday Agreement to establish the Review.

   6. The second major problem which is closely related to the first is that in the vast majority of the recommendations there is no timescale for implementation. Anyone familiar with the process of change in any organisation will immediately recognise this as a major block to delivering change. Firm deadlines must be set if this Plan is to be considered as a contribution to the process of changing the criminal justice system.

   7. Combined, these two problems mean that those who have been most resistant to change, who have caused many of the problems which have plagued the system, have now been placed in charge of the process of transformation and can implement the changes almost entirely at their own pace.

   8. We are particularly concerned about the above failings because in our response to the report of the Criminal Justice Review in August 2000 we said we were "disappointed that the implementation of the report's recommendations has been left solely in the hands of the civil service. The absence of any independent element in the implementation of the report makes its recommendations all the more vulnerable to dilution and to the opposition of elements within the existing criminal justice system which are firmly opposed to some of the more far-reaching changes suggested."

   9. We also pointed out that leaving implementation in the hands of government was all the more unsatisfactory given that the Review was government-led and that the recommendations of the Review were subject to comment by relevant government departments and others in advance of publication.

2. Human Rights and Guiding Principles

   Recommendation 1 & 11 - Human Rights Training

   1. The human rights training of criminal agency staff considered necessary by the Review is essentially left to the discretion of the relevant agency. No timescale is set by which this will be done. We believe this training should be centralised and a definite timetable should be set.

   2. The training of lawyers in human rights principles, which is also dealt with under this section of the Plan, is the responsibility of the Institute of the Professional Legal Studies as is general legal training for all trainee lawyers. Such students at the moment receive perhaps one day of human rights training. Audits are not necessary. A human rights course at the Institute should be commenced. Who will ensure this happens and when will it happen?

      Recommendation 2 - Criminal Justice Aims

   3. The text in the Plan in relation to this recommendation is unclear. Will the Strategic Statement of Purpose and Aims be subject to public consultation?

      Recommendation 4 - Reflective workforce

   4. While this recommendation is accepted, nothing concrete is promised to make the workforce more reflective. CAJ remain concerned that efforts in this regard appear to be dependant on devolution. There is no reason why this should be so. While technically in line with the recommendation of the Review, work should begin now to make the workforce in the criminal justice field more reflective of the community. A target date should be set by which this should be achieved.

      Recommendation 5 & 6 - Equity Monitoring

   5. The issue of equity monitoring is critical in terms of public confidence in the criminal justice system. However, we are very concerned that this issue is left in the hands of the criminal justice agencies with no timetable for implementation. We would also be concerned that this research is carried out by independent research institutions rather than internally by the various agencies or the Criminal Justice Board and that a timetable be set.

      Recommendation 7 - Statement of Ethics

   6. The Plan provides no timetable for the publication of statements of ethics. There is also no commitment to consultation on the various statements. This recommendation arose in the course of a discussion in the review document about membership by members of the judiciary of secret oath bound organisations. However, the Plan does not highlight this as a particular issue to be considered by each agency in drawing up its statement of ethics and there is no indication as to who will draw up the statement of ethics for the judiciary themselves and if it will be subject to consultation. These deficiencies should be remedied.

      Recommendation 8 - Membership of Organisations

   7. The Plan indicates that this recommendation will be subject to further consideration. However it appears that the Plan confuses proscribed organisations and those which may act contrary to the interests of the criminal justice system but which are not illegal. The Review is not completely clear on this issue but its recommendation followed the discussion related to secret oath bound organisations.

   8. It is indicated in the Plan that "further work" is needed in this area. Who will do this work? If the concern is that there may be problems with freedom of association why can there not be a register of interests particularly for those who are members of the judiciary, the senior bar or the prosecution service? Surely it is highly relevant in a judicial review concerning, for instance, the right to march to determine if any of the key players involved are members of the Orange Order.

      Recommendation 9 - Defence Lawyers

   9. It is simply unacceptable to leave the sensitive issue of intimidation of defence lawyers to be dealt with on a piece meal basis by each agency as and when (and if) they see fit.

   10. In addition it is clear that if threats are being directed at defence lawyers, the Special Rapporteur was of the view that an independent investigation needed to take place. Police investigations do not meet this test. Some new mechanism needs to be put in place to deal with this type of case.

       Recommendation 10 - Bursaries for Legal Training

   11. This recommendation is accepted only in principle. If this is for purely funding reasons, this is unacceptable. Particularly for those students who wish to go to the Bar, assistance is necessary as the majority of judges are of course drawn from the ranks of the Bar. Not to provide bursaries will tend to restrict prospective Bar students to certain narrow social backgrounds.

        

       Recommendation 12 - List of Experts

   12. It is unclear from the Plan if the Law Society has yet compiled such a list or when it will do so. The Law Society needs to do so and by a certain date.

       Recommendation 16 - Complaints mechanisms

   13. It is simply unacceptable to leave such a vital recommendation to the discretion of the individual criminal justice agencies with no timescale in place and apparently no guidelines issued as to what the mechanisms should look like. It is also insufficient to leave review of these matters until after devolution which in effect means at the earliest mid 2003. The creation of complaints mechanisms should be centralised and subject to a deadline.

3. Prosecution

   Recommendation 17 and 58 - Single independent authority and renaming DPP

   1. The Review's recommendations in relation to the DPP were among the most far-reaching made. While the Review indicated that the work of the new office would build on the work of the existing office they also said their recommendations entailed "taking on new work, a different approach to aspects of its existing work and substantial organisational change". Also at the press conference to launch their report they refused to deny that their proposals in this regard meant the abolition of the DPP. The Review said they envisaged "major changes in the prosecutorial arrangements in Northern Ireland, which we believe will enhance the system and public confidence in it." However, what the Implementation Plan suggests is essentially a new name for the office but very little substantive change. Indeed the Plan recommends the same title for the professional head of the office. In this recommendation the Plan clearly undermines the process of change in this key area. Indeed the Review recommended the importance of change in relation to the description of the professional head of the office, when they said that "[A] new title for the head of the organisation would help to demonstrate to those outside it, as well as those inside, that the remit and responsibilities of the organisation have changed considerably." The Director who made the much questioned decisions in relation to a number of controversial cases including the Finucane murder investigation will have "overall responsibility for creating the new service." How will new mechanisms for accountability, outreach and recruitment function without clear signals that this organisation, which has been so unaccountable to date, is finally being made subject to real and effective change?

      Recommendation 19 - Powers in article 6(3)

   2. Article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972 allows the DPP to prompt police investigations. This recommendation was informed by the comment at 4.19 of the report that "In practice article 6(3) is formally invoked on rare occasions." The inclusion of this recommendation by the Review is therefore clearly intended to ensure that 6(3) is used more widely and indeed it has the potential to provide the prosecution service with a much more pro-active role. The Plan gives no sense that this will be the case. It simply amounts to a restatement of the existing provision in the new Bill and a reference to it in the new Code of Practice. Once again there is no timescale beyond it all being dependent on devolution of criminal justice. The Code of Practice should indicate a willingness to use the power more regularly and also a timetable should be set by which the Code of Practice should be published.

      Recommendation 22 - Advise to police on prosecutorial issues

   3. The Review did not make the clear distinction the government do between prosecutorial and investigatory advice. Indeed if one looks at para 4.135 it is clear the Review envisaged a much more proactive role for the prosecution service. The Review stated that while "we do not envisage prosecutorial supervision of investigation, we were impressed by the strength of the arguments for early involvement of a prosecuting lawyer in police investigations in the more complex and serious cases." The Implementation Plan leaves the decision as to whether the prosecution should be involved at an earlier stage completely at the discretion of the police.

      Recommendation 46 - Relationship between prosecution and attorney general

   4. In relation to this recommendation, the Review recommended that there be statutory provision for consultation between the Attorney General and the head of the prosecution service. The Review clearly envisaged consultation between the two in relation to individual cases because in para 4.162, they discuss what would happen if the two disagreed on a case. However section 38 of the Bill which makes provision for statutory consultation appears to indicate that such consultation can only take place in relation to matters for which the Attorney General is accountable to the Assembly. This of course, by virtue of section 23 of the Bill, probably does not include individual cases. Section 23 allows the Attorney General to refuse to answer questions in the Assembly in relation to individual cases. We believe consultation between the two should not be limited to matters for which the Attorney General is accountable to the Assembly.

      Recommendation 49 - Giving of reasons

   5. The emasculation of this key recommendation is completely unacceptable. The practice of the DPP in NI to refuse to give reasons in controversial cases has been one of the key factors in undermining public confidence in the criminal justice system. We provided the Review with detailed case studies in the Finucane murder, the Hamill murder, the murder of Nora McCabe and others which suggested that the reluctance to give reasons had little to do with concerns about possible injustice to an individual but was more about protecting the interests and reputation of the agencies of the state. The recommendation of the Review was balanced and positive and argued that the balance should shift towards the giving of reasons but accepted that there may be instances where this was not possible because it could conflict with the interests of justice. Essentially the government response is a refusal to accept this recommendation. Nothing is proposed to implement the shift towards giving reasons which the Review recommended.

   6. Not only does this go against the recommendations of the Review but it also potentially violates the Human Rights Act. As a result of Kelly et al v United Kingdom (4^th May 2001) the prosecution service will be obliged to give reasons in cases which involve suspicious or controversial deaths.

      Recommendation 56 - Complaints procedure

   7. This recommendation suggested an independent element in any complaints procedure. To say, as the government response does, that this already exists because complaints are examined by a member of staff other than the person whose actions have given rise to the complaint, is risible. Complaints should be investigated by an agency outside the prosecution service.

      Recommendation 62 - Recruitment

   8. This has already begun despite the fact that this Plan has yet to be published. The hope of the Review was clearly that in the aftermath of the establishment of a new prosecution service, applications would be received from those traditionally under-represented in the office. This is unlikely if the recruitment occurs now.

4. The judiciary

   1. Most of the recommendations in this section suffer from the fact that they are dependant on the devolution of criminal justice functions. CAJ believe that Northern Ireland cannot await devolution of these functions at some unspecified future date in order to make progress towards a more accountable bench which will command more widespread public confidence.

      Recommendation 67 - Judicial Independence

   2. While the Review recommended explicit reference to the independence of the judiciary in Westminster legislation, they did not call for the use of the word "continued". Given the controversy there has been in relation to alleged instances of judicial bias, the inclusion of this word is gratuitous.

   3. We also believe the legislation should place an obligation on the judiciary themselves to dispense justice independently.

      Recommendation 68 - Merit Principle

   4. The response to this recommendation fails to reflect the discussion which the Review engaged in on the competencies included in the merit principle. It is noteworthy that all of these recommendations in relation to eligibility continually emphasise the government's delight that the Review affirmed the merit principle. The Plan should articulate those competencies which the Review identified as making up merit and these should be reflected either in the Bill or relevant Codes of Practice for the Judicial Appointments Commission and indeed those others involved in the appointment of the more senior bench.

       

      Recommendations 69, 89-92 - Judiciary to be reflective of society

   5. The two key principles underpinning confidence in the judiciary are independence and representativeness. Given that there is statutory provision in relation to independence, we cannot understand why there is no obligation in the legislation to ensure that the bench is representative of society. Similar clauses have been included in legislation governing the Human Rights Commission, the Police Board and the Parades Commission. While of course the outworking of such clauses has rarely been successful, at least it should provide parameters of fairness for the appointments process.

   6. Once again no timescale is included by which the recommendations in relation to representativeness will be complied with. While this is a general problem with the plan, it is a particular problem with recommendations which go to the heart of establishing a representative judiciary and thus confidence in the criminal justice system. Why can the NIO not give a timescale for establishing a database of qualified candidates or having discussions with the Bar Council and Law Society along with the Equality Commission?

      Recommendations 77-80 - Judicial appointments

   7. We believe Northern Ireland should not have to wait for devolution for the establishment of a Judicial Appointments Commission.

   8. We believe lay membership of the Commission should at least equal legal membership. Otherwise it is very likely that the representatives of the judiciary and the profession will dominate the discussions. This is particularly so given that the chair is going to be the Lord Chief Justice (LCJ). In addition the Review envisaged that there would be five judicial members, two from the professions and four or five lay members. Under section 12 of the Bill, there would in fact be six judicial members. This is tipping the balance even further in favour of the judicial representation.

   9. In addition the Review indicated that the LCJ should consult with each tier of the judiciary before appointing the relevant representatives. We cannot find any provision in the Bill for such consultation to take place. If the proposals go through as they stand, we believe this process will be completely dominated by the Lord Chief Justice.

   10. We do not understand why the lay members should be representative of the community in Northern Ireland but the there is no similar obligation in relation to the judicial or legal appointments. At the very least there should be a statutory obligation that the Judicial Appointments Commission as a whole should be representative of society.

       Recommendation 75, 85 - Appointment of Lord Chief Justice and Lord Justices of Appeal

   11. We are aware the Review recommended that the appointment of the most senior judges should be not be done through the Judicial Appointments Commission as with the other judicial appointments but should continue to be made on the recommendation of the Prime Minister. We do not understand why this should be the case. CAJ believes that all appointments to the bench in Northern Ireland should be made by the Judicial Appointments Commission.

       Recommendations 81, 82, 83, 84 and 107 - Judicial Appointments Commission

   12. As indicated above, we believe that the Judicial Appointments Commission should be able to make appointments rather than just offer advice in relation to all judicial appointments including the most senior. If not, the process remains wide open to the criticism that it is politically biased.

   13. In response to recommendation 84, the Bill does not make clear that the First and Deputy First Minister would be bound by the second recommendation of the Judicial Appointments Commission, where they had asked them to reconsider the first recommendation.

   14. Once again the response to 107, in relation to drawing up a code of ethics for the Judicial Appointments Commission, leaves everything to the agency involved which is as yet not even established.

       Recommendations 86, 87, 88 and 94 - Judicial Appointments Unit

   15. The Review recommended the establishment of a Judicial Appointments Unit "separate from the Court Service . but staffed by official drawn from it." The government response does not appear to suggest that there will be any distance between this Unit and the Court Service. Indeed it appears the Unit is already functioning within the Court Service.

       Recommendation 95 - Appointment of judicial appointments commissioner

   16. It is once again of concern that the government have gone ahead and recruited this person without waiting even for publication of this Plan.

       Recommendation 96 - Oath

   17. The purpose of this recommendation was clearly to neutralise the oath which members of the judiciary have to take on appointment. In these circumstance we believe the word "realm" should be replaced with the word "jurisdiction".

       Recommendations 97-102 - Judicial Training

   18. The Review recommended that induction training should be mandatory. While the government says it accepts all of these recommendations, there is no mention in the Bill of the requirement for mandatory training. We also believe that training for all judges should be mandatory. The Bill should make this clear.

       Recommendation 103 - Tenure

   19. We made the case to the Review that the statutory retirement age for judges in future should be 65. We remain of the view that this should be the case.

       Recommendations 104-106 - Complaints

   20. We believe the response to the recommendations in relation to complaints is inadequate. It is clear that the Review recognised there was a problem in relation to judicial accountability and made limited recommendations in order to remedy this. However, the relevant provisions in the Bill qualify the official acceptance to such an extent, that it is unlikely they will satisfy even the most modest concern about whether the judiciary are held properly to account.

   21. The tribunals which are envisaged in the Bill can not in any sense be described as independent. Two of the three members will be appointed by either the Lord Chancellor or the Lord Chief Justice and will be current or retired judges. The third member of the tribunal will be appointed by the First and Deputy First Minister and will be a lay person. That person cannot be chair of the tribunal. Even in the unlikely event that such a tribunal recommends the removal or suspension of a judge, the Bill prevents the removal or suspension without the agreement of the Lord Chief Justice. The Review made no reference to giving this power of veto to the Lord Chief Justice.

   22. The Lord Chief Justice is also given sole responsibility for devising the codes of practice relating to the handling of complaints against the judiciary.

   23. Given the unfortunate history in Northern Ireland of institutions such as the police being allowed to investigate their own wrongdoings, it is strange that the government has chosen largely to replicate such a system in relation to the judiciary.

5. Courts

   Recommendation 123 - Inquests

   1. The review established in relation to inquests is insufficient to meet the concerns expressed by the Review team. Indeed when it was initially mooted by the Home Office, its terms of reference did not cover Northern Ireland. Although Northern Ireland is now included, nevertheless the terms of reference for the review are very technical and cover matters such as the issuing of death certificates. This will not deal with the situation in relation to inquests in Northern Ireland. The Review said that it recognised "serious concerns about the way the [inquest] system" was operating.

   2. It is also relevant that in the wake of the decisions of the European Court of Human Rights in Jordan, Kelly, Shanaghan and McKerr the Lord Chancellor's Department have informed Belfast Coroners Court that there is an ongoing internal consultation within government about how to respond to the judgements. This consultation is expected to conclude in January and will have to result in serious changes to the inquest system in order to comply with the judgements.

   3. However, the European judgements provide the baseline for the reform of the inquest system. Any review must be tasked with changing the system in order to comply with those judgements and other relevant international human rights standards.

      Recommendations 124 - 128 - Public outreach and information

   4. While the government says these recommendations endorse existing practices and policies, CAJ has seen little evidence of this and we would be more aware of such steps than most. Crucially, yet again there is no timetable.

      Recommendation 135 - Simplification of dress

   5. Unusually the Plan indicates that this recommendation is not wholeheartedly accepted. This may be because the implementation of this recommendation is essentially left to the judiciary and the legal professions. This is unacceptable because it is highly unlikely that the judiciary or the professions will implement the recommendation. There is also no timetable for implementation.

   6. Provision to simplify dress in court should be included in the Bill.

      Recommendation 141 - Symbols

   7. The rationale of the proposals for change inside the courtroom was the necessity of creating "an environment in which all those attending court can feel comfortable." We believe that by retaining symbols on the outside of courthouses and allowing the continued flying of the Union flag, the Review will not achieve the desired environment. This is particularly so when one considers that the Review also refused to make recommendations in relation to the name of the Royal Courts of Justice and the Crown Court, or the term Queens Counsel. This reticence on the part of the Review is made all the more difficult to understand by the comment that "[I]n time it may be more fitting to move towards symbols that emphasise the separation of the courts from the executive." In our view the appropriate time for such symbolic separation is now in the aftermath of the Agreement. We believe making such changes in the context of a mechanism, which received widespread support from the electorate, has more legitimacy and will be less divisive than if such changes are left to court action or unilateral action on the part of the government.

   8. In addition while the Review recommended that the interior of courtrooms be free of any symbols, the relevant provision of the Bill only outlaws the Royal Arms from the interior or courthouses. Other symbols will not be affected.

   9. The Bill of course allows the Royal Arms to remain in place on the exterior of a court house if it was there immediately before the coming into force of the relevant section. We have therefore been very concerned to learn that it is proposed that the Royal Arms be placed on the exterior of the new court house in Belfast just before the Bill comes into in force, thereby technically avoiding falling foul of its provisions. Given that this new court house will be the primary court house in Northern Ireland in terms of public usage and prestige, this decision can only be viewed as highly unfortunate.

COMMITTEE ON THE ADMINISTRATION OF JUSTICE
4 January 2002

1. There are two points arising from our previous presentation on which we may be able to provide some further assistance as the response of the Assembly to the Secretary of State is considered by the Committee.

2. The first point is, in a sense, the most significant at this stage because the Bill provides a unique and valuable opportunity to deal with constitutional principles which will underpin the future administration of justice in Northern Ireland.

3. The importance of this is illustrated by the extent to which the Bill does deal already with core constitutional principles. We refer in particular to Clause 1 of the Bill which provides an in-principle statutory guarantee of judicial independence, in these terms:

4. "Those with responsibility for the administration of justice must uphold the continued independence of the judiciary".

5. A similar provision on independence appears at Clause 38(1), dealing with the Director of Public Prosecutions, which provides in these terms: "Those with responsibility for the administration of the criminal justice system must uphold the independence of the Director".

6. In our submissions on the Criminal Justice Review the Law Society drew attention to a principle of equal importance which should be recognised in the particular context of Northern Ireland, primarily for the same reasons which have led to the conclusion that it is necessary in the Northern Ireland context and by way of this Bill to provide a statutory statement recognising the independence of the judiciary and the independence of the prosecutorial process. There is a compelling argument for providing the same kind of guarantee to preserve the independence of the legal profession.

7. We shall be developing this argument as necessary in greater detail in our dialogue with the Government and through the Parliamentary process to enact the Bill. The Committee may well be familiar with the main contention, and so I will draw attention at this stage only to the following considerations:

   [a] The independence of the judicial process and the prosecution process is correctly seen in Northern Ireland as a key issue in relation to public confidence in the administration of justice. This is no less so in respect of the operation of barristers and solicitors, where the public must have confidence that the primary duty of their professional advisors lies in protecting the interests of the client represented, and that the primacy of that relationship will not be influenced or interfered with by political considerations or the agenda of the Government of the day. In a situation, such as Northern Ireland, where it is thought necessary to have a statutory statement and a guarantee of the independence of the judiciary, there is the same need in the same context to affirm the independence of the legal profession;

   [b] As noted in our formal submission, the upholding and effective application of human rights standards and constitutional principles depends uniquely on the maintenance of, and access to, a genuinely independent legal profession. The importance of this principle is recognised internationally. The relevant international standards, and the special need for this principle to be understood and recognised in Northern Ireland was identified in the course of the Criminal Justice Review (see Section 3.45 - 3.56 of the Final Report) even though consideration of the independence of the legal profession was not included by the Government within the terms of reference of the CJR Team;

   [c] It has always been well established as a general principle that, as part of or derived from the doctrine of the separation of powers, that the legal profession should be aligned with the independent judicial process. Thus, for example, supervisory arrangements for the legal profession lie primarily with the Lord Chief Justice. In the particular context of Northern Ireland, and for the same reasons of independence, it was accepted during the period of direct rule that responsibility for professional legal matters should lie with the Lord Chancellor (as the senior judge within the mainland constitutional settlement) rather than with the Secretary of State for Northern Ireland.

8. If the Committee agree that the principle should be recognised in a statutory form, then we would respectfully suggest, as we will be suggesting to the Government in due course, that a free-standing provision be included in the Bill on the following lines:

   "Guarantee of continued independence of the legal profession

   [ ] Those with responsibility for the administration of justice must uphold the continued independence of the legal profession".

9. We do not argue for any particular application of that principle to particular circumstances, but we do consider it to be of critical importance that those involved in the future administration of justice in Northern Ireland should be obliged to recognise the independence of members of this profession, whether barristers or solicitors, as policies are developed under the new constitutional arrangements. We would respectfully invite the Committee to consider supporting the Law Society's submission in this respect.

10. The second general point is perhaps self-evident, but may well be worth emphasising. It concerns the continuing need for involvement of local politicians and local agencies in the process of enactment and implementation. We are concerned that the Government should not regard the consultation process concluding on 7th January as the end of a process with no further opportunity for dialogue with those who can contribute to framing of the primary legislation, the secondary legislation which will be enacted in due course, and indeed the practical implications of the legislation in other respects.

11. We do not think at this stage that the process of continued dialogue need be formalised, but we will be asking the Government to ensure that following completion of the present consultation process, mechanisms are put in place to allow a regular high-level dialogue between the Government and the Law Society about: (a) matters raised in submissions by the Society and other consultees; (b) the contents and time-scale for the Bill, and secondary legislation prepared under the Bill; (c) the timing of implementation of the review recommendations and the enabling legislation.

12. This submission on this second point reflects the view of the Society that this process has major short, medium and long-term implications which will extend at least over the next two - three year period. It also reflects that the decisions which being made now, and to be reflected in the Justice (Northern Ireland) Bill in particular, are critical to maintaining public confidence in the future administration of justice in Northern Ireland.

13. I apologise that it has not been possible for the Law Society to provide more substantive input on points of detail at this stage within the limited resources and time available. I should be grateful if you could offer this letter to the Committee in terms of the two core recommendations set out above.