• five are to be nominated by the Lord Chief Justice,

• one is to be a barrister nominated by the General Council of the Bar of Northern Ireland;

• one is to be a solicitor nominated by the Law Society of Northern Ireland; and

• the remaining five are to be lay members.

In appointing persons to be lay members, the First Minister and deputy First Minister must, so far as possible, ensure that, taken together, they are representative of the community in Northern Ireland. Schedule 2 to the draft Bill makes further provisions in relation to members' tenure, members' salaries, staffing, financial provisions and the operation and procedures of the JAC.

24. In relation to the most senior judicial offices, that of the Lord Chief Justice and Lords Justices of Appeal, appointments are to be made by Her Majesty, on the recommendation of the Prime Minister, by letters patent under the Great Seal of Northern Ireland. Before making such a recommendation, the Prime Minister must consult with the First Minister and deputy First Minister and the Lord Chief Justice. The JAC shall advise the First Minister and deputy First Minister as to the procedure they should adopt for formulating their response to the Prime Minister; that procedure shall be subject to the approval of the Prime Minister. Provision has also been made for Her Majesty to make appointments of judges to the High Court; such appointments may be made on recommendation of the First Minister and deputy First Minister.

25. The power to remove a person from the most senior judicial offices, on the grounds of misbehaviour or inability to perform the functions of that office, may be exercised by Her Majesty, following an address by both Houses of Parliament. A motion for the presentation of such an address may only be made by the Prime Minister to the House of Commons; and by the Lord Chancellor to the House of Lords. Before those motions may be made, a tribunal must have recommended to the First Minister and deputy First Minister that that person be removed from office. The Prime Minister, pending the consideration of making a motion for the presentation of an address to Her Majesty, may suspend that person from office.

26. Appointments to the listed judicial offices may be made by the JAC following receipt of notice from the First Minister and deputy First Minister requiring that selection or recommendation for appointment. In each instance of such notice, the JAC is required to inform the Office of the First Minister and deputy First Minister of the outcome of their deliberations and to make a report, of its decision, to the Office of the First Minister and deputy First Minister. Upon receipt of that report, the First Minister and deputy First Minister may require by notice the JAC to re-consider their decisions. The JAC may, following their re-consideration, re-affirm their original selection or select a different person - in both circumstances the JAC must inform the Office of the First Minister and Deputy First Minister in the manner prescribed above. All decisions for the selection of a person to be appointed by the JAC must be based solely on merit.

27. The power to remove a person from a listed judicial office, on the grounds of misbehaviour or inability to perform the functions of that office, may be exercised by the First Minister and deputy First Minister, with the agreement of the Lord Chief Justice, following a recommendation from a tribunal. The tribunal may, at any time, when it is considering whether to recommend that such a person be removed from office, make a recommendation to the First Minister and deputy First Minister that that person be suspended from office.

28. In relation to complaints, the Lord Chief Justice must prepare, and publish, a code of practice relating to the handling of complaints against a person who holds a protected judicial office.

    Part 2 - Law Officers and Public Prosecution Service

29. Clause 20 makes provision for the First Minister and deputy First Minister to appoint a person, who has at least ten years' standing as either a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland, to be Attorney General for Northern Ireland. Upon commencement of this section, the Attorney General for England and Wales shall no longer be Attorney General for Northern Ireland. The power to remove the Attorney General for Northern Ireland from office has been given to the First Minister and deputy First Minister, but may only be exercised following a recommendation of a tribunal, which may be convened by the First Minister and deputy First Minister, whose members are to be selected by the Lord Chancellor in accordance with the provisions of clause 21.

30. Clause 22 sets out the terms of appointment of the Attorney General for Northern Ireland, who may not be appointed for a period of longer than five years at a time and who is disqualified from being a member of the House of Commons, the Northern Ireland Assembly or a local authority in Northern Ireland. The Attorney General for Northern Ireland may participate in the proceedings of the Assembly to the extent permitted by Standing Orders but may not vote. The Attorney General for Northern Ireland must also submit an annual report to the First Minister and deputy First Minister, which they shall lay before the Assembly and then make arrangements for it to be published.

31. Clause 25 makes provision for the office of Advocate General for Northern Ireland, the functions of which shall be exercised by the Attorney General for England and Wales. Schedule 5 makes further provision about the functions of that office. The Secretary of State for Northern Ireland may, by order, make provision for the transfer of other functions to that office.

32. Part 2 of the draft Bill also establishes a Public Prosecution Service to be the single, independent prosecuting authority in Northern Ireland. It will be the responsibility of the Prosecution Service to undertake all prosecutions for both indictable and summary offences committed in Northern Ireland which were previously the responsibility of the Director of Public Prosecutions or the police (apart from fixed penalties for motoring offences).

33. The Prosecution Service will have two statutory office holders: the Director and Deputy Director of Public Prosecutions, both of whom shall be appointed by the Attorney General for Northern Ireland. The Director may also give advice to the Police Service for Northern Ireland on prosecutorial matters.

    Part 3 - Other new institutions

34. Clauses 41 - 45 make provision for a Chief Inspector of Criminal Justice who must carry out inspections of the following organisations: -

• the Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve,

• Forensic Science Northern Ireland,

• the State Pathologist's Department,

• the Public Prosecution Service for Northern Ireland,

• the Probation Board for Northern Ireland,

• the Northern Ireland Prison Service,

• the Juvenile Justice Board,

• any body or person (other than the Juvenile Justice Board) with whom the Secretary of State has made arrangements for the provision of juvenile justice centres or attendance centres,

• Health and Social Services Boards and Health and Social Services trusts, and

• the Compensation Agency.

35. The Chief Inspector must consult the Secretary of State and the Attorney General for Northern Ireland when preparing his programme of inspections and the Chief Inspector must prepare a report on each inspection for the Secretary of State who shall lay each report before Parliament and arrange for it to be published.

36. Clauses 46 - 49 make provision for the establishment of a Law Commission for Northern Ireland, which will review the criminal and civil law of Northern Ireland, including procedure and practice, with a view to making recommendations to Government for reform, codification, simplification and consolidation of legislation. It will consist of a Chairperson and four other commissioners, all of which shall be appointed by the Secretary of State.

37. The Commission is required to provide advice and information to and receive remits from Government. With the consent of the Secretary of State, the Commission will provide advice and information to Northern Ireland departments and other authorities or bodies on proposals for law reform or amendment of any branch of the law of Northern Ireland.

    Part 4 - Youth Justice

38. Clauses 49 - 61 make provision for the youth justice system in Northern Ireland. The aim of the youth justice system is to protect the public by preventing offending by children. The draft Bill provides for three new orders. Those orders are: -

• Reparation orders: A reparation order is a new sentence available to courts dealing with child offenders in Northern Ireland. The reparation ordered to be made by the child would be either to the victim of the offence or some other person affected by it or to the community at large. The form of reparation may be varied, for example it may take the form of repairing property in cases of property damage or some community work.

• Community responsibility orders: Where a child is found guilty of an offence for which the court could (if the offence were committed by an adult) sentence him/her to a period of imprisonment, the court may make a community responsibility order. Such an order will have two distinct components. The first part will require the offender to attend a specific place for a few hours at a time where they will receive "relevant instruction in citizenship". The second part of the order will require the offender to carry out, for a specified number of hours, such practical activities as the responsible officer considers appropriate in the light of the instruction given to the offender.

• Custody care orders: A custody care order may only be imposed on a child who has attained the age of 10 but is not yet 14 and who has been found guilty of an offence for which the court could (if the offence had been committed by an adult) sentence him/her to a period of imprisonment. A child, in respect of whom a custody care order is made, would be held in secure accommodation by an "appropriate authority" for a specified period (rather than being held in a juvenile justice centre), and thereafter be under supervision for a further period.

39. The draft Bill also makes provision for a system of youth conferencing. A youth conference is a meeting or series of meetings held to consider how a child ought to be dealt with for an offence. The meetings will be under the chairmanship of a person to be known as a youth conference co-ordinator. The aim of the youth conference will be to devise a youth conference plan which will propose how the child should be dealt with. The purpose of a youth conference plan is to require the child to carry out specified actions in order to make reparation for the offence, address the child's offending behaviour, and/or meet the needs of the victim. The content of the plan is for the youth conference to decide, from the various options provided for, such as apologising, making reparation, or participating in activities designed to address offending behaviour, offer education or assist with rehabilitation. The conference can propose any combination of these options it wishes.

40. There are two distinct types of youth conference: diversionary and court-ordered youth conferences: -

• Diversionary youth conferences: A reference to a diversionary youth conference may only be made by the Director of Public Prosecutions and would be made at an early stage, either before proceedings had been instituted for the offence or shortly after, but the Director can only make a reference if the child admits that he has committed the offence.

• Court-ordered youth conferences: A court-ordered youth conference would occur after a court had found a child guilty of an offence and provides a way to consider how to deal with the child for the offence in question.

41. Part 2 of the draft Bill also extends the youth justice provisions to 17 year olds and, in particular, provides that courts may make a juvenile justice centre order.

    Part 5 - Miscellaneous

42. Clauses 62 - 73 set out further provisions in relation to the justice system. In particular they set out arrangements for the display of the Royal Arms at courthouses; make provision in relation to the rights of victims of crimes; make provision in relation to community safety; empowers the Lord Chancellor to direct that exceptional legal aid be available; empower the Lord Chancellor to abolish the Northern Ireland Court Service and to transfer its functions; and require the Northern Ireland Court Service to provide security in courts.

    Part 6 - Supplementary

43. Clauses 74 - 83 make supplementary provisions. They set out the commencement arrangements, provisions for the exercise of order-making powers under the Bill and the extent of the Bill. It also places limitations on the ability of the Northern Ireland Assembly to legislate in some of the areas covered by the Bill.

    COMMITTEE'S CONSIDERATION OF
    THE PROPOSED LEGISLATION & IMPLEMENTATION PLAN

44. During the Committee's deliberations on the proposals for reform of the criminal justice system in Northern Ireland, members considered a wide variety of issues. The comments of the Committee are set out below under the following headings: -

• General comments;

• Structural reform;

• Openness and transparency; and

• New approaches.

45. Additionally, the Committee accepted that there were a number of areas where it would be unable to reach consensus. In order to address these issues, the Committee agreed to accept position papers from the political parties of the Assembly which were represented on the Committee. The position papers submitted by those parties are set out at Appendix 4.

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    GENERAL COMMENTS

    Consultation period

46. The Committee welcomed the opportunity to consider the proposals for reform of the criminal justice system in Northern Ireland and recognised those proposals as being of major significance for many years ahead. Given the importance of these proposals the Committee considered that a full, proper and meaningful consultation would be of vital importance if the proposals were going to have the impact envisaged by the Criminal Justice Review Group (CJRG).

47. The consultation on the proposals was launched on 12 November 2001 and originally was due to close on 12 December 2001. This provided only 30-days for the Assembly, and other bodies, to give a considered response to a draft Bill, which contained 83-clauses, and an implementation plan, which sets out action to be taken in respect of 294 recommendations of the CJRG. The members of the Committee and all witnesses that gave evidence, with the exception of the Northern Ireland Office (NIO) and the Northern Ireland Court Service (NICtS), criticised the period of consultation which was provided by the Parliamentary Under-Secretary of State, Des Browne.

48. The Committee noted the NIO's commitment, as set out in their Equality Scheme, "to provide a period for response of at least eight weeks and to begin consultation as early as possible". Further to this, members noted that the Cabinet Office Code of Practice on written consultations states that, "sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for consultation" and "Consultation should never have to be shortened below an acceptable minimum for reasons of departmental convenience, for example because a department has fallen behind its own implementation schedule".

49. Following representations from a number of sources, including the Committee, the Parliamentary Under-Secretary of State announced to Parliament, in response to a written question on 29 November 2001, that he had decided to extend the period of consultation, by a further four weeks, to 7 January 2002. Whereas the Committee welcomed this announcement, it was considered that due regard should have been observed in relation to both the Department's commitments and the Cabinet Office guidelines.

    Recommendation 1: That the Northern Ireland Office should observe and comply with the Cabinet Office Code of Practice on written consultations, when planning future written consultations.

    Independence of the legal profession

50. In their evidence to the Committee, representatives of the Law Society of Northern Ireland (LSNI) highlighted the important role that is played by solicitors in the criminal justice system. One of the key aspects of their role is that they exercise their responsibilities in a manner "free from political, financial or other influences that may affect [their] independence". This was recognised by the CJRG in their report, which made particular reference to the role played by defence lawyers and the nature of their relationship with their clients, and the negative impact of a misunderstanding of that relationship.

51. It was suggested by LSNI that a statement on the face of the legislation, similar to that proposed at Clause 1, which safeguards the independence of the Judiciary, should be included in the Bill. The Committee was supportive of this suggestion and considered it to be reasonable to recognise, in statute, the independence of the legal profession.

    Recommendation 2: That a new clause be inserted which acknowledges and safeguards the continuing independence and impartiality of the legal profession.

    Oversight of the implementation plan

52. The members of the Committee noted the dearth of clear deadlines in relation to the implementation plan. The Committee was also concerned that the lack of clear targets for the CJRG's recommendations could lead to significant slippage in the delivery of the Government's objectives. The Committee, therefore, considered possible options to maintain the necessary momentum to drive forward the implementation of the criminal justice reforms.

53. In their evidence to the Committee, the Northern Ireland Human Rights Commission (NIHRC) suggested the appointment of an oversight commissioner - similar to that which had been appointed in relation to the Patten Report on Policing - to keep the progress towards the overall implementation of the proposals under review. Whereas, that proposal was welcomed by a number of members of the Committee, some concerns were raised about the possible negative impact for the overall resources available for implementation, if they were diverted in order to provide for such an appointment. However, the Committee agreed that consideration should be given to the appointment of such a commissioner.

    Recommendation 3: That the Secretary of State gives consideration to the appointment of a commissioner with a remit to oversee the implementation of the reform of the criminal justice system, having regard to the resources available to him.

54. The Committee also gave detailed consideration to other possible mechanisms to oversee the on-going implementation of the reform proposals. One such option was the establishment of a cross-departmental steering group comprising: senior officials of the NIO; senior officials from the Office of the First Minister and deputy First Minister; a consortia representing the interests of the various agencies exercising statutory functions in relation to criminal justice matters; and officers of the Northern Ireland Assembly. The Committee did not give its endorsement to this proposal.

55. The Committee agreed on the need to give measured and detailed consideration to the review of criminal justice, given its importance as a constitutional issue. The Committee acknowledged that the revision of the criminal justice system would have far reaching implications for all stakeholders. The Committee noted the potential impact there might be on the devolved administration and concluded that the Northern Ireland Assembly should be afforded the opportunity to be consulted, and comment, on criminal justice issues, pending devolution of these responsibilities.

56. On that basis, the Committee agreed that a Standing Committee of the Assembly could be established to ensure that the proposals put forward by the Northern Ireland Office meet the stated aims of criminal justice system which are to: -