Debate contribution: Justice Bill: Second Stage

Debate contribution by Mr Matthew O'Toole on 1 October 2024.

MLA

Mr Matthew O'Toole

Party at the time

Social Democratic and Labour Party

Date

1 October 2024

Type

Debate contribution

Business

Executive Committee Business

Heading

Justice Bill: Second Stage

Assembly identifier

Official Report component 4563073

Read the official Assembly record

Text

I appreciate that useful clarification from the Justice Minister. We heard about measures around serious and organised crime, which is clearly not an insignificant matter. We also heard about measures to reform or change restorative justice. That can be a positive practice, but there has been controversy in Northern Ireland in the past around organisations that used restorative justice, so one's ears tend to prick up when one hears terms like that and is told that amendments will be tabled by the Department in relation to that. I will run through a few specific elements of the Bill and give my views. My colleague Justin McNulty, who is on the Justice Committee, gave a fulsome read-across, but there are a few specific bits that I want to address. Clearly, as touched on extensively by others, there was litigation in relation to biometric material. It is important that the legislation be updated in a way that, yes, is consistent with legacy concerns but that also meets our human rights obligations. Our failure in the past to meet human rights obligations is clearly a theme in the Bill. I commend the Minister for seeking to improve the statute book, particularly on the rights of the child in the criminal justice system. Lots of the measures are about simplifying things, such as improving the consistency of the assumption of bail for young offenders. That is all sensible. It would be helpful if the Minister were to clarify in her closing remarks whether she intends to bring forward a specific amendment to increase the age of criminal responsibility, which is a consistent ask of not only children's rights organisations but international organisations. Why is that not in the Bill? I am aware that it was in her party's manifesto, so it would be helpful to understand whether it is going to be included, and, if not, why not. I have a couple of specific questions about more technical bits. One of the provisions relates to how we go about prosecuting for offences or conspiracy to commit offences in Northern Ireland those individuals who are not in Northern Ireland, that is, they are outside the jurisdiction. That provision changes the person who has to sign off on that from the Attorney General for Northern Ireland, who, obviously, is the legal adviser to the Executive, to the Advocate General, who is the legal adviser on Northern Ireland to the UK Government and is, by default, the Attorney General for England and Wales. I do not know enough to know whether I should be concerned by that, but it would be helpful if the Minister were fulsome in explaining why that responsibility is being moved from a legal adviser to a devolved Government — policing and justice powers are devolved — to the Advocate General for Northern Ireland, who is also the Attorney General for England and Wales. If I am misunderstanding it, I am happy to be corrected.

As I understand it, the Advocate General is the legal adviser to the UK Government rather than to the devolved Government. I believe that the current Advocate General is Lord Hermer, who is an adviser to the UK Government. International affairs are an excepted matter, but the Attorney General is legal adviser to the devolved Government, and policing and justice is devolved, so it would be helpful to understand why that change is being made. It sounds, on the face of it —.

Yes.

That is most helpful. I appreciate the Minister's clarifying that. It is certainly the case that we can challenge and ask those questions, and we will continue to do so. It will be helpful to understand the full background to that. I am sure that Committee members will investigate and interrogate that. It will also be helpful to understand whether the Attorney General for Northern Ireland's having that power has created any specific challenges, what those challenges are and why that matter needs to be addressed. I appreciate that clarification. There are also some concerns, or, at least, questions, that some in the legal fraternity have raised about the update to clause 28, which is on ordering taxation of legal aid costs. It would be helpful to understand that. The Minister has a slight smile on her face. Interest groups will always make representations on behalf of their own interests. I am sure that she will make that argument. However, it is important to understand that, particularly given concerns about the squeezing of the legal aid budget and particularly as it affects people who do not have the means. Access to justice is a consistent challenge, and she has made the argument about the squeezing of her budget, so it would be helpful to understand that. It may well be that I am not in possession of information that would immediately clarify my question, so I will give way to the Justice Minister.

I appreciate that clarification from the Justice Minister. Again, I am sure that the Committee will find that useful in its deliberations and will seek to understand it on its own account. I point to an anomaly not for the sake of being facetious but because I think that it is worth reflecting on. Clearly, the Bill legislates on the civil legal aid system, but there is an anomaly in that civil justice is not the responsibility of the Department of Justice. It is the responsibility of the Department of Finance. To be fair to the Minister of Finance, she has a lot on her plate. That anomaly points to the slightly strange situation in which the Department of Justice legislates for changes to the civil legal aid system but the Minister of Finance, who has other things on her proverbial plate, has to deal with the substance of civil law reform, whether it is in relation to defamation law, marital law or a whole other range of civil law matters. I do not see any logical reason for that anomaly to continue, particularly when the Department of Justice is literally bringing forward reforms to civil legal aid. It is worth reflecting on that point, and, perhaps, the deliberation on the legislation is an opportunity to do that. I will not go through absolutely every clause in the Bill. Though I am not a member of the Justice Committee, I look forward to continuing scrutiny of and deliberation on the Bill. I look forward to seeing the substance of the amendments. I do not want to labour the point, because others have made it, but it is reasonable to question a Minister about indicating at Second Stage an intention to amend the Bill. I appreciate that the Minister is not particularly enamoured with that challenge or criticism, but that is our job. I do not completely buy the argument made by her colleague Ms Bradshaw that not seeing the text of the legislation should be fine because we have heard the policy intent. That, with the greatest respect, is completely nonsensical. Legislation is literally about the text that is in front of you. That is what they scrutinise in court.

I will give way in one second. It is all well and good talking about policy intent. We have largely debated nothing but policy intent since we returned here. It has been policy intent after policy intent. We have all tabled motions about our intent to do things, but this is law. It will have to be tested in court. We heard from Mr Justice Humphreys that the text of a piece of Justice legislation that we passed in the previous mandate was not sufficiently scrutinised. No highly paid KC can go in front of a judge and say, "Ah, but the policy intent was this". In fact, some of those arguments were defeated in court. I am happy to give way to either the Member or the Minister.

1,318 words. Text as published by the Northern Ireland Assembly.

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