HL Deb 19 January 2004 vol 657 cc871-87

4.51 p.m.

Baroness Farrington of Ribbleton

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.— (Baroness Farrington of Ribbleton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]

Clause 8 [Guidance for criminal justice organisations on human rights standards]:

Lord Lyell

I advise the Committee that if Amendment No.42 is agreed to, I will not be able to call Amendment No 43.

Lord Smith of Clifton moved Amendment No.42:

Page 4, line 27. leave out subsection (I) and insert— (1) The Attorney General for Northern Ireland shall issue, and as he thinks appropriate from time to time revise, a list of international human rights standards relevant to the criminal justice system.

The noble Lord said: In moving Amendment No.42, I shall speak also to Amendments Nos.44 to 51. The amendment relates to another area where the Bill has failed sufficiently to reflect the review and the guarantee in the updated plan about the role of international human rights standards in the reform process. The updated plan stated that all criminal justice agencies would be under a duty to have due regard to international human rights standards. That has translated rather differently, however, to the published Bill.

The Bill proposes a curious and convoluted formulation whereby it would be for the Attorney-General for Northern Ireland to issue guidance, as and when he thinks fit, to the listed criminal justice agencies on the exercise of their functions in light of relevant international standards. That raises doubts over the genuine commitment of the Government to finding a greater role for the application of international human rights standards in the criminal justice system in Northern Ireland.

Amendment No.50 is slightly different. Clause 8(8) of the Bill exempts the prosecution service from having any regard to human rights guidance issued by the Attorney-General for Northern Ireland where that guidance would be inconsistent with a code of practice issued under Section 37 of the Justice (Northern Ireland) Act 2002. Our amendment simply asks why. It is difficult to foresee how the new and first-ever code of practice for the prosecution service, which is due to be published in draft form this month—long before the operation of the Bill—would be inconsistent with international human rights standards. Will the noble and learned Lord the Attorney-General explain why the Bill has deviated from what was expected in the review and the updated plan? I beg to move.

Lord Glentoran

I tend to rely on noble Lords from the Liberal Democrat Party on human rights matters. There are many experts among them. However, I wonder if the amendment would achieve what we would all hope for. If it replaces guidance, are we not losing some flexibility that might prove valuable? While guidance would appear to be more open to interpretation than a set of standards, I wonder whether it really is. I suspect that one could argue equally convincingly that it is not.

Lord Goldsmith

In speaking to the amendment, I too shall speak also to Amendments Nos.44 to 51. The amendments would give me the power to produce only a list of the relevant conventions and standards in criminal justice for organisations in Northern Ireland, rather than a more comprehensive document. In that respect, the noble Lord, Lord Glentoran, is absolutely right.

The guidance that we envisage would be given under Clause 8 would help interpret and explain the conventions and standards, as well as their effect on the criminal justice agencies, and not simply present them with a bare list. It would be significantly more helpful to the agencies for them to be provided with some kind of commentary and analysis of the relevant conventions and standards rather than with that simple list. In that way, the agencies would find it easier to accord with the conventions and standards and to do so consistently.

That is important because the great differences that exist between the status and effect of some of the conventions and standards do require some degree of comment. Some are binding on UK and international law and some are not. Where only parts of a particular instrument or standard are relevant, it would not be helpful simply to list the standard. That is our principal reason for resisting the burden of the majority of the amendments.

I note that the noble Lord, Lord Smith of Clifton, did not refer specifically to Amendment No.44. That would change "regard" in Clause 8(3) to "due regard". Having sought the view of Parliamentary Counsel, we believe that that amendment would not be helpful.

Amendment No.50 would remove a safeguard in the legislation. I respond specifically to the question that the noble Lord, Lord Smith, put to me. The safeguard would allow the Public Prosecution Service to disregard so much of the guidance as may be inconsistent with the code of practice for prosecutors to be published by the Director of Public Prosecutions for Northern Ireland as required by the Justice (Northern Ireland) Act 2002.

I agree that it is unlikely that the two will be inconsistent. I hope that they will not be so. I am sure that great effort will be made to ensure that they are not. It is still right to prepare for the possibility of that event, particularly if the guidance relates to a significant number of instruments. In those circumstances, unlikely though they may be, it is important to provide a clear steer as to which should take precedence. I assure noble Lords that in those circumstances we would want to move swiftly to address any apparent anomalies. With those explanations, I invite the noble Lord not to press his amendment.

Lord Smith of Clifton

I thank the noble and learned Lord for his explanation and for his assurance at the end of his remarks. In light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Lord Glentoran moved Amendment No.43:

Page 4. line 27, after "shall" insert "by order"

The noble Lord said: In moving this amendment, I shall also speak to Amendment No.64. These amendments are intended to meet the proposals of the Delegated Powers and Regulatory Reform Committee in its report on the Bill. I see that my noble and learned friend Lord Mayhew, who takes part in that committee, is present.

We support the principle behind Clause 8, which places a duty on the Attorney-General to issue guidance on relevant international human rights standards to certain specified criminal justice organisations in Northern Ireland, as referred to in subsections (4) and (5). The organisations are required to have due regard to the guidance in carrying out their functions. The guidance must be published and laid before Parliament.

The Delegated Powers and Regulatory Reforrn Committee is not altogether happy with that. On page 4, paragraphs 18 and 19 of the report say: The guidance must be laid before Parliament, but it is not subject to further scrutiny. The delegated powers memorandum mentions the precedents of the Code for prosecutors under section 37 of the 2002 Act and the Code of Ethics of the police under section 52 of the Police (Northern Ireland) Act 2000. Those codes are addressed to one category of recipient only, though they have a wide effect. The guidance under clause 8(1) will apply both to the organisations listed under clause 8(4) and also to any other organisations added by order under clause 8(5) Those organisations could include any organisation with a role in the criminal justice system. We recognise that human rights issues are highly sensitive in Northern Ireland and, for this reason, we conclude that the guidance should be brought into force by an order subject to negative procedure, so allowing Parliament an opportunity to have some control over its issue".

I hope that the noble and learned Lord will take on board that sensible suggestion from the committee. It would be an added safeguard that would put a good many minds at ease. We are asking here only for the negative rather than the affirmative procedure. With such important guidance, I see no reason not to have some degree of parliamentary scrutiny. I beg to move.

Lord Goldsmith

For the guidance of the Committee, it may assist at this stage of the debate if I say that I will undertake to the House that the Government will table a suitable amendment on Report that will reflect the advice given by the committee. It has not been possible to prepare a suitable amendment in time. That may help noble Lords who want to speak on the amendment.

Lord Smith of Clifton

I simply say that we on these Benches support the amendment proposed by the noble Lord, Lord Glentoran, and are grateful for the advice given by the noble and learned Lord.

Lord Mayhew of Twysden

I have nothing to add, but I am certain that my colleagues will be gratified by the position taken by the Government.

Lord Glentoran

I thank the noble and learned Lord and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.44 to 51 not moved.]

On Question, Whether Clause 8 shall stand part of the Bill?

Lord Rogan

Much of the language of this clause has been debated before in various guises, through both the Northern Ireland policing legislation and the criminal justice legislation. To see that, one need only cast one's eye over the Hansards for the Commons Committee debates on the Police (Northern Ireland) Act 2000 and the Justice (Northern Ireland) Act 2002.

The first question to consider is whether the guidance is necessary. We have a Human Rights Act that places a duty on public bodies. Is it the case that the Government consider that Act itself deficient in some respects, given that subsection (1) contains the words, consistent with international human rights standards"? Subsection (6) places a duty on the Chief Constable and the Policing Board to have regard to guidance from the Attorney-General. It is already obliged to consult the police association, the Secretary of State, the ombudsman, the Northern Ireland Human Rights Commission, the Equality Commission and any other person who may have an interest. What additional input is the Attorney-General going to provide that may be lacking?

In terms of subsection (7), the Director of Public Prosecutions is already under a duty to be guided by the general principles of the guidelines on the role of prosecutors adopted at the eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Havana between 27 August and 7 September 1990. He is also under a duty to consult the Attorney-General in relation to guidance by virtue of Section 42 of the 2002 Act. What other additional international guidance or standards do the Government have in mind in relation to the provision? Most importantly, the role of the Attorney-General was debated in 2002. Why is the proposal coming before us now and why was it omitted then? What has given rise to the proposed change?

Lord Goldsmith

The clause provides for my office, and for me, to issue guidance to the listed criminal justice agencies and for the listed agencies to have regard to such guidance as is issued.

Human rights were a key theme of the Criminal Justice Review, and the purpose of the clause is to enshrine human rights awareness even more emphatically in the criminal justice system. However, there is a difficulty, which the review recognised, in enshrining human rights duties in law, which is why it is better to produce guidance on human rights rather than placing a direct duty. We discussed the issue earlier, under another amendment.

Noble Lords have asked what value the guidance would have. It will have to be taken into account in any revision of the code of ethics of the Police Service of Northern Ireland, and in the making or alteration of the code of practice for prosecutors, to be issued by the Director of Public Prosecutions. We have already discussed the question of consistency between the guidance and that code of practice.

Parliament will have some control over the publication of guidance, as a result of the undertaking that I gave in relation to an earlier amendment that we would introduce an amendment that would take account of the recommendation of the Delegated Powers and Regulatory Reform Committee.

The noble Lord, Lord Rogan, asked why the measure was not introduced as part of the 2002 Act. The Criminal Justice Review did not specifically recommend legislation on human rights, but the issue was revisited during the Hillsborough discussions. The Government's view is that the provision of guidance to criminal justice agencies on the relevant human rights instruments will help them to ensure that respect for human rights is kept at the heart of the justice system, while avoiding the difficulties that the review anticipated.

I presumed to suggest before that the independence of the DPP and the prosecutorial discretion was something that all Members in the House and in Committee could agree. I hope and believe that the same would be true in relation to respect for human rights for all peoples in Northern Ireland. This clause will help to underline that importance.

Clause 8 agreed to.

Clause 9 agreed to.

Clause 10 [Prosecution right of appeal against grant of hail by magistrates' court]:

Lord Rogan moved Amendment No.52:

Page 6, line 30, leave out from "bail" to "the-in line 31 and insert "in proceedings in connection with an offence triable on indictment,"

The noble Lord said: In moving Amendment No.52. I shall also speak to Amendments Nos.53 to 57. These amendments bring the procedure for the Crown appealing bail refusal into line with the current practice in England and Wales. They are, in a sense, probing amendments. I invite the Minister to justify that different approach. I have three simple questions. Why should appeals from the magistrates' court go to the High Court and not the Crown Court? Why should there be an automatic second bite of the cherry, rather than concentration on new information? Why should it read "imprisonable" rather than "triable on indictment"? I shall be grateful for the Minister's reply. I beg to move.

Baroness Farrington of Ribbleton

It may assist the Committee if I confirm that we are now taking as a group Amendments Nos.52,53, 55,56 and 57, to which the noble Lord. Lord Rogan, has spoken.

Lord Goldsmith

I shall take these five amendments together. They broadly relate to the same issue.

Amendments Nos.52,56 and 57 would have the effect of restricting the new prosecution right of appeal against the grant of bail to those cases where the accused is charged with an offence triable on indictment. As the clause stands at present, its scope is wider, allowing an appeal in any case where the accused is charged with, or convicted of, an offence that can attract a sentence of imprisonment. As the clause stands, it would create a prosecution right of appeal to the High Court where prosecutors have concerns about a grant of bail by a magistrates' court.

At the moment, unlike in England and Wales, there is no mechanism for the prosecution to challenge any grant of bail by magistrates. Having had the opportunity of discussing this with the chief constable and other senior officers of the police force, I am confident that it is an important new power. As to the detail, the clause provides that where a magistrate grants bail in a case where the defendant is charged with or convicted of an offence punishable by imprisonment, the prosecution can appeal the grant of bail to the High Court.

There are important safeguards. First, an appeal can be made only if the prosecution opposed bail in the first instance. Secondly, oral notice of an intention to appeal must be given to the court before the person concerned is released from custody. Thirdly, written notice must then be given to the court and the person concerned within two hours of the conclusion of proceedings. The hearing of the appeal itself has to be commenced within 48 hours, subject to limited exceptions.

The noble Lord, Lord Rogan, asked three questions. The first was why the appeal should go to the High Court. That is dealt with by his Amendments Nos.53 and 55. In Northern Ireland it is the High Court which has jurisdiction in bail matters. It is that court which currently has jurisdiction to hear appeals by the accused against refusal of bail by a magistrates' court. So it makes sense that the new prosecution right of appeal should also go to the High Court in Northern Ireland. It is a difference from the position in England and Wales where the appeal goes to the Crown Court, but this clause is tailored to the conditions in Northern Ireland.

The noble Lord's second question was why there should be a second bite of the cherry, as he put it; that is to say, a right to appeal even though there is no fresh information. It is important that there should be the opportunity for a higher court to review a decision of bail, where that decision may have been erroneous. It can be very important. The consequences of granting bail where bail ought not to have been granted may be that the public are put at risk of further offences, of the defendant absconding or of interference with witnesses. This is an important decision and to limit the ability to appeal simply to the case where there is fresh information would render it a very limited power indeed.

Thirdly, the noble Lord asked why the opportunity to appeal should apply to cases where there is the possibility of imprisonment, rather than some different category. I draw noble Lords' attention to the fact that, when it is commenced, Section 18 of the Criminal Justice Act 2003 will amend Section 1 of the Bail (Amendment) Act 1993. That will mean that prosecution appeals against grants of bail England and Wales can be made in relation to offences punishable by imprisonment.

In short, once Section 18 is commenced, the position in this respect will be the same in Northern Ireland and in England and Wales; that is to say, the same formula of applying it to offences punishable by imprisonment will apply in both jurisdictions. If the noble Lord's amendment were carried that would not be the case. It seems to us that the reasons that led to that extension in England and Wales apply equally to Northern Ireland.

I hope I have given satisfactory answers to the noble Lord's three questions and invite him not to press his amendments.

5.15 p.m.

Lord Rogan

I thank the Minister for his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.53 to 57 not moved.]

Clause 10 agreed to.

Clause 11 [Bail under section 67 of the Terrorism Act 2000]

Lord Cooke of Islandreagh moved Amendment No.58:

Page 7, line 39, leave out subsection (4).

The noble Lord said: This, too, is a probing amendment, seeking justification for this particular provision. It seems fair to have something fall on a particular date if the substantive Act has a renewal aspect, as we have been familiar with in Northern Ireland over many years. However, is it not fair to say that this is less so when one considers procedures?

Secondly, why would one seek to permit the Secretary of State to remove bail provisions simply by order? Surely it should take something more substantial. Surely as we debate this as primary legislation its removal before a fixed date should also be debated? I beg to move.

Baroness Amos

I shall try to address the question which has been raised by the noble Lord, Lord Cooke, in relation to the justification for this aspect of the Bill.

Clause 11 and Schedule 2 are clearly contingent on the Diplock bail arrangements set out in Section 67 of the Terrorism Act 2000 which, in accordance with Section 112 of that Act, will expire on 19 February 2006. Section 112 of the Terrorism Act would also allow Section 67 to cease to have effect by order before February 2006, hence the second limb of Clause 11(4). Clause 11(4) is simply a reflection of the status of Section 67. It is right that provisions that can have no effect should be removed from the statute book in the interests of clarity of legislation.

As for the Secretary of State's ability to do this by order, the power to make an order, with the effect that the provisions will cease to have effect, is included to cover the situation in which Section 67 ceases to have effect before 19 February 2006, either by virtue of an order under Section 112(2) of the Terrorism Act 2000, or because it is allowed to lapse under Section 112(1) of the 2000 Act.

I hope that, with that explanation, the noble Lord will feel able to withdraw the amendment.

Lord Cooke of Islandreagh

I thank the noble Baroness for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Schedule 2 agreed to.

Clause 12 [Bail to which Part II of the Criminal Justice (Northern Ireland) Order 2003 applies]:

Lord Glentoran moved Amendment No.59:

Page 8, line 20, after "court— insert "and at end insert— in order to carry out an arrest under this paragraph, a constable may enter any premises where he has reasonable grounds for suspecting that person to be"

The noble Lord said: This amendment was prompted—I think that that is the best way of putting it—by discussions that I and colleagues had with the chief constable's office, the PSNI. It focuses on Clause 12, which makes very positive changes to the bail provisions in the Criminal Justice (Northern Ireland) Order 2003. Subsection (4) of Clause 12 amends Article 6 of that order, which deals with arrest for absconding or breaking conditions of bail.

At present, police may arrest a person for breach of bail conditions, but they have no power of entry to effect the arrest. A person may have been released on bail and have been told, as a condition of that bail, to stay away from witnesses. Police may have reasonable grounds to believe that that person has been visiting witnesses, but officers would be unable to enter a private dwelling without consent to use their new power of arrest. The suspect can remain in his house or another's house and officers are powerless to do anything until they catch him in a public place. While the power of entry is not found in the English Bail Act 1976, there seems no valid reason to give a constable a greater power of arrest but to withhold the lesser power to enter.

The criminal justice department has raised this matter with the Northern Ireland Office, I understand, but there seems to be no prospect of change at the moment. However, I understand that the noble Baroness the Lord President of the Council will tell me shortly that she will perhaps take another look at it. I therefore ask whether she will explain whether the Government are willing to concede the point and respond to the wishes of the police. There seems little sense in allowing powers of arrest when the police would not be able to enter a building to effect an arrest.

The police have obviously found the status quo an impediment to their work and are frustrated about this loophole, which may allow those who have absconded or broken bail to escape arrest. This change seems a prudent one. I hope that the noble Baroness the Lord President will not merely respond by saying that the amendment would be inconsistent with English practice. I am sure that she will not. I beg to move.

Baroness Amos

As the noble Lord, Lord Glentoran, has already made reference to my response, it might help the Committee if I gave that response now. He will be pleased to know that I have no reference in my notes to what is happening in the English courts.

Our concern is that the power sought in Amendment No.59 may be inappropriate and indeed disproportionate to the problem in hand. However, in the light of the comments made by the noble Lord, Lord Glentoran, I undertake to go away and reflect on the principle behind the amendment, with a view to deciding whether there should be a power of entry to effect an arrest where there has been an actual breach of bail. I have to say to the noble Lord that, in looking at the amendment, I have a concern about a provision to enter premises on "reasonable grounds for suspecting". I think that we really do need to reexamine that issue and the phrasing of the amendment. However, I undertake to talk to him and to return to the issue on Report if that is appropriate.

Lord Glentoran

In thanking the noble Baroness the Lord President I also wish to apologise. It was pointed out to me that I did not address her completely correctly when I was speaking before. I beg leave to withdraw the amendment.

Amendment, byleave, withdrawn.

Clause 12 agreed to.

Clause 13 [Transfer of prisoners]:

Lord Hylton moved Amendment No.60:

Page 8, line 38, at end insert "because of his serious misconduct, or, with his consent, for his own protection"

The noble Lord said: I return to a point that I raised at Second Reading. The fact that Northern Ireland has only one maximum security prison now, whereas it used to have two or three, of itself makes prison management somewhat more difficult. There is nowhere in the jurisdiction that a difficult or disruptive prisoner can be moved to. I can therefore understand the need for a clause along the lines of this one. I was glad when the noble Baroness the Leader of the House said in reply on Second Reading that transfers, of the kind we are discussing, would, not be used if the particular prisoner could be dealt with in another way".—[Official Report, 16/12/03; col.1119.]

Despite that assurance I still think that the clause as drafted gives the Secretary of State powers to make compulsory transfers that are too sweeping. That is why I am suggesting that the power should be usable only as a result of an individual's "serious misconduct". "Misconduct" may not be exactly the right word and "misbehaviour" might be better. I am trying to cover serious or repeated violence against prison staff or other prisoners, persistent threats of death or injury, arson and other serious breaches of prison rules and discipline. Appendix A of the Steele review of prison safety at Her Majesty's Prison Maghaberry covered such serious cases.

As to the expression "for his own protection", prisoners sometimes have to be segregated. That can be harmful, as well as protective, for the individual concerned. I am therefore suggesting that if the prisoner agrees, he might be moved to England or Scotland to avoid having to be placed in long-term segregation. I beg to move.

Lord Smith of Clifton

We on these Benches support the amendment and the reasoning behind it. As the noble Lord, Lord Hylton, said, this clause comes out of the report into the disturbances at Maghaberry last summer. Again as he reminded us, at Second Reading we were reassured that this clause would be used very much as a last resort. However, we would feel much more comfortable if the reasons for using this clause were more than just, in the interests of maintaining security and good order in prisons".—[Official Report, 16/12/03; col.1094.] We think that that is too wide. We believe that there should be a specific connection to a prisoner involved. Therefore, we support Amendment No.60.

Baroness Amos

I understand the concerns raised by the noble Lords, Lord Hylton and Lord Smith of Clifton. I hope that my comments on the amendment will reassure them.

The concern has been expressed that the proposed amendments to Clause 13 are drawn too widely. However, I think that the test is in fact quite a strict one. The noble Lord, Lord Smith of Clifton, referred to the fact that the power can be used only if it appears to the Secretary of State that, in the interests of maintaining either security or good order in any prison in Northern Ireland, the prisoner should be transferred. However, transfer is not something that will be undertaken lightly. Each case will be considered on its individual merits. I think that the noble Lord, Lord Smith of Clifton, asked for a specific connection in relation to the prisoner. We are looking at each case being considered on its individual merits by the Secretary of State or, in his absence, by a Minister. Transfer will be directed only as a last resort after all other methods of dealing with the threat posed to security or good order have been considered.

The transfer power is required for the protection and safety of prison staff and other prisoners. The amendment would seriously reduce the effectiveness of the power and would mean that action could not be taken until there had been serious misconduct by a prisoner or until he was at risk of harm and consented to the transfer. It is important that where the Secretary of State has credible information that a prisoner is planning any action which will pose a threat to security or good order of a prison he can act to protect the lives of prison staff and other prisoners. The making of a transfer order might be an appropriate and proportionate response in extreme cases. If this amendment is accepted, such pre-emptive action could not be taken.

The noble Lord, Lord Hylton, spoke about the case where a prisoner agrees to a transfer. Where a prisoner consents to transfer this can be effected under the existing provisions of the Crime (Sentences) Act. Therefore, the Government take the view that the part of the amendment dealing with transfer with the consent of the prisoner is unnecessary.

The new power set out in this clause is part of a package of measures required for the protection of prison staff and other prisoners and to prevent slippage from the new separated regime into full Maze style segregation. I believe that concern has been expressed. This amendment would seriously reduce the effectiveness of the provision and I ask the noble Lord, Lord Hylton, to withdraw it.

5.30 p.m.

Lord Hylton

I am grateful to the noble Baroness for what she has said. I undertake to study it carefully but add that I am not sure that I am entirely satisfied. It may be necessary to come back to the matter on Report. However, for the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hylton moved Amendment No.61:

Page 8, line 42, after "Wales" insert "or Scotland"

The noble Lord said: I believe that this amendment is straightforward. It simply opens up the possibility for the Secretary of State to transfer prisoners to Scotland in addition to England and Wales. If one looks at this matter from the point of view of the families of the prisoner, it is almost certainly very much easier for them to visit across the water in southern or central Scotland as compared with the long and complicated journeys that are frequently necessary when travelling from Northern Ireland to England.

In the nature of things, this amendment, if approved, would be likely only to deal in a more humanitarian way with a very small number of prisoners. The noble Baroness the Leader of the House said when replying on Second Reading that, a Sewel Motion in the Scottish Parliament would be required".—[Official Report, 16/12/03; col.1119.]

I do not doubt that at all but surely it is within the capability of the Government to get such a Motion passed in the interests both of prisoners and their families. I beg to move.

Lord Smith of Clifton

On this occasion I cannot support the noble Lord, Lord Hylton. The amendment would allow the Secretary of State to transfer a prisoner to a gaol in Scotland as well as to one in England and Wales. I am a little concerned about the amendment as Scotland also has a sectarian problem whereas Wales, so far as I know, does not.

The noble Lord touched upon the devolution issue. I am not sure that the measure would work as justice matters are devolved to Scotland but not to Wales. I do not know whether the Secretary of State for Northern Ireland would have the ability to transfer a prisoner to Scotland without the agreement of his opposite number in the Scottish Parliament. I believe that that adds a further complication, but primarily my concern is that the sectarian problem, although, thankfully, not as bad as in Northern Ireland, is nevertheless still present in Scotland. Therefore, I believe that it would not be conducive to the well-being of transferred prisoners if they were transferred to Scotland.

Baroness Amos

This matter was raised at Second Reading by the noble Lord, Lord Hylton, and by the noble Lord, Lord Fitt, who is not present. The noble Lord, Lord Smith of Clifton, is quite right. Prisons and prison transfers fall into the devolved field. Therefore, before the Westminster Parliament can legislate in that regard, the consent of the Scottish Parliament must be obtained by way of a Sewel Motion. The noble Lord, Lord Hylton, said he did not think it would be beyond the bounds of possibility that the Government could ensure that that happened. A Sewel Motion is being considered. If it is approved by the Scottish Parliament, the Government will bring forward an amendment to provide for compulsory transfer to Scotland as well as to England and Wales. In the light of that, I hope that the noble Lord, Lord Hylton, feels able to withdraw the amendment.

Lord Hylton

That is as much as I could possibly hope for. I am grateful to the Government but slightly disappointed at the lack of Liberal support. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran moved Amendment No.62:

Page 9, line 4, at end insert— (2B) Where a prisoner is transferred under subsection (2A), the jurisdiction which imposed the length of the sentence will be responsible for determining the date of the release of the prisoner except where the prisoner's release date is delayed by reason of his misconduct or for other reasons relating to the maintenance of prison discipline."

The noble Lord said: To some extent this amendment concerns the same topic. It is intended to probe some of the practicalities of a transfer order made under Clause 13. What we are concerned with here are any potential discrepancies between the length of the sentence a prisoner serves due to his transfer from Northern Ireland to England or Wales. Which jurisdiction is responsible, for example, in determining the release date of the prisoner? We are thinking in particular about early release or parole and the issues of good behaviour and misconduct. Will the noble Baroness the Lord President of the Council tell us whether the decision will be for the Northern Ireland system or the English/Welsh system to decide?

Our amendment attempts to clarify this issue. As we have already discussed in earlier debates on this clause, transfer is envisaged as a consequence of misconduct. In such circumstances we think it right that the prisoner's release date remains as that which was originally set by the Northern Ireland jurisdiction when the sentence was imposed with one exception: that is, where the release date is later than that which was first set due to the misconduct or bad behaviour of the prisoner. In those circumstances the English/Welsh prison in question may exercise its own disciplinary rules to delay the prisoner's release. The benefit of the amendment is to make clear that there would be no advantage to a prisoner in terms of release date if he were to be transferred. I beg to move.

Lord Smith of Clifton

These Benches support this amendment. We believe that there must be consistency within the jurisdiction even if the prisoner is moved outside.

Lord Hylton

I have some sympathy with the amendment. However, the elegance of its drafting might be improved. As an attempt in that direction I offer the following: Where a prisoner is transferred under subsection (2A), the jurisdiction which imposed a custodial sentence will be responsible for determining the date of release of the prisoner except where this is delayed by reason of his misconduct et cetera".

Baroness Amos

I hope that I can demonstrate to the Committee that the amendment is not necessary and that what Members of the Committee are looking for is already available, despite the elegance of the drafting of the noble Lord, Lord Hylton.

I can understand that the Committee wants to be clear that prisoners will not benefit from any transfer. I can assure your Lordships that any transfer under the new power will be on a restricted basis and the prisoner's release date will be determined according to the laws of Northern Ireland.

The need for the prisoner to remain in England and Wales will be reviewed on a regular basis and he or she will be returned to Northern Ireland as soon as it is assessed that his or her transfer is no longer necessary in the interests of maintaining security or good order in any prison in Northern Ireland. It is highly unlikely that any prisoner will be released while still held in a prison in England and Wales, because of the regular review and assessment.

At present there no provision to delay the release of a prisoner in Northern Ireland because of his misconduct. Noble Lords may be aware that the Prison and Young Offenders Centre (Amendment) Rules (Northern Ireland) 2004 were laid before the House on 9 January 2004. They seek such a power in respect of breaches of prison discipline by separated prisoners only. If that power comes into force I can assure your Lordships that any transferred prisoner awarded loss of remission would have to serve out the period of that award before his or her release. Any prisoner transferred to England and Wales on a restricted basis remains subject to the law of Northern Ireland in relation to the loss of remission.

The intention behind the amendment will be achieved as a consequence of our policy decision that all transfers will be restricted. I ask the noble Lord, Lord Glentoran, to withdraw the amendment.

Lord Glentoran

I thank the noble Baroness for that response. I should like to take time after the Committee stage to study Hansard. The issue is complex and clarity is essential. Some seriously heavyweight lawyers helped me prepare for the Bill and, if your Lordships agree, I would like to consult them again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clauses 14,15 and 18 agreed to. Schedule 4 agreed to.

5.45 p.m.

Clause 19 [Commencement]:

Lord Glentoran moved AmendmentNo.63:

Page 10, line 6, at end insert— ( ) Any order under subsection (1) bringing into force any of sections 1 to 5 shall not be made before the end of the period of 12 months beginning from the date on which this Act achieves Royal Assent.

The noble Lord said: The amendment is one of the main contentions that we have with the Bill. I shall not make another Second Reading speech, but inevitably I will go over some ground that we have covered before. The amendment proposes a sunrise provision which would delay the commencement of Clauses 1 to 5 for 12 months after Royal Assent. Throughout our discussions, both at Second Reading and in Committee, we have heard concern from all sides of the House about the timing of the Bill. We firmly believe that no changes should be made to judicial appointments for Northern Ireland before we have seen the Bill that brings forward legislation to tackle the same issues in England and Wales.

The main Bill should be considered before this Bill and, therefore, we have asked for a 12-month delay in commencement. Our fear is that if this Bill is pushed through hastily and without due thought we will need in 2005 a third justice Bill relating to Northern Ireland. It would be a farcical situation. I remind the House that the previous occasion was in 2002—not long ago—and the Police Bill before that was in 1998. There is already deep disillusionment about the changes made in this Bill which were emphasised when we discussed Clauses 4 and 5.

First, Clause 5 cannot come into effect because the Assembly is still suspended; so we currently have no First and Deputy First Ministers to give recommendations to the Prime Minister about appointments to the position of the Lord Chief Justice and the Lords Justices of Appeal. Secondly, Clause 5 takes away the right of veto of the Lord Chief Justice even though when the 2002 Act was being discussed, the Government claimed that they were happy with such a veto. The fear is that we will have a new Justice (Northern Ireland) Bill every year, because the Government change their minds every year with each new Criminal Justice Review and kowtows to pressures from certain political parties.

The timing of the changes on judicial appointments are fundamentally wrong, due to the impending constitutional Bill with which we will be faced later in the year and the current suspension of the Assembly.

Now is not the time to destabilise the system by five clauses that would fundamentally undermine the current impartial system of judicial appointments in Northern Ireland. We see nothing but trouble as a consequence and the politicisation of the judicial appointments system which, we believe, will ensue. Clauses 1 to 5 are not needed. They will only negate and ruin a good and successful judicial system. There is no rhyme or reason, sense or logic in why the Government should have the clauses passed now. I beg to move.

Baroness Amos

I hope what I have to say will reassure the noble Lord, Lord Glentoran. In our earlier debates on the Bill we dealt with two of his specific comments on undermining the impartiality of the system in Northern Ireland and the politicisation of the system. The Government made it absolutely clear that it is their intention to maintain the impartiality and independence of the judicial system in Northern Ireland.

Regarding the practicality of the amendment, Clauses 1 and 2 relate to the Judicial Appointments Commission. The practical steps to create a commission will necessarily take a little time and we will want to work in consultation with stakeholders. Our aim is to have the commission in place by spring 2005.

Regarding the debate on a constitutional reform Bill, we expect some overlap between discussion of this Bill, which will have to go to the other place, and the constitutional reform Bill, which we expect to be introduced to the House quite soon. If it proves possible to have the Judicial Appointments Commission in place by spring 2005 we see no reason why the establishment of the commission and the start of its work should be delayed.1 hope the fact that we expect some overlap between the two Bills will help the noble Lord.

Clauses 4 and 5, which amend provisions in the 2002 Act and are linked to senior judicial appointments and removals from listed judicial offices respectively, come into effect only after the devolution of criminal justice. I hope that my clarification will help the noble Lord and that he will withdraw the amendment.

Lord Glentoran

I thank the Minister for those explanations. First, I believe that the Government have got it wrong in relation to impartiality and politicisation and I will take a great deal of persuading otherwise. There is no way that Clauses 1 to 3 will improve that. They will open all kinds of doors, as will be seen in the next five years, to both impartiality and politicisation becoming apparent.

I am happy to hear that there will be an overlap between the passage of the constitutional reform Bill and the completion of this Bill. I hope that in practice, should things change during the progress of the constitutional reform Bill, we will he able to implant the changes into this Bill. I am looking for that because it would be a sound and more comfortable basis on which to go forward.

I am also relieved to hear that Clauses 4 and 5 will not come into effect until after devolution of the judicial processes. I suspect that that will be at least 12 months after the enactment of this Bill.

I intend to take the amendment away and to review it before bringing it back at the Report stage. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 agreed to.

Clause 21 [Statutory rules]:

[Amendment No.64 not moved.]

Clause 21 agreed to.

Clauses 22 and 23 agreed to.

House resumed: Bill reported with amendments.

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