Previous SectionIndexHome Page

Mr. Blunt: I am able to answer the hon. Gentleman directly. The best way of doing so is to quote paragraph 3.53 of the review, which states:

the United Nations basic principles on the role of lawyers—

I cannot put it better.

4.15 pm

Mr. Mallon: I thank the hon. Gentleman for his compelling reply. I am grateful that he has had the opportunity to clarify the matter. I am totally at one with him—and with the Cumaraswamy report—in terms of the protection of members of the legal profession against the threats, intimidation, physical violence and, indeed, death that has been meted out to people in the north of Ireland. I thank the hon. Gentleman for his research and for the clarity with which he explained the matter to the House, which has brought much more definition to it.

Mr. Tom Harris (Glasgow, Cathcart): Does the hon. Gentleman agree that the responsibility to maintain the independence of the legal profession is entirely different from the responsibility that all Governments maintain of giving protection to the legal profession? Is not the weakness of the amendment that it does not clarify who is responsible for maintaining the independence of the legal profession? It is clearly the Government's responsibility to maintain the independence of the judiciary, but I fail to understand, perhaps because I have no legal training, how the Government can take on the responsibility of maintaining the independence of the legal profession. Surely that is completely different from maintaining the security and physical protection of the legal profession.

Mr. Mallon: The hon. Gentleman makes a valid point. Surely, however, it is the Government's objective to ensure that the legal profession is independent. And how better can one enshrine an objective than to put it in legislation? The hon. Gentleman is right that there is a clear distinction between the responsibility of a Government to protect those who are involved in the implementation of law and the profession's responsibility to protect its independence. In normal societies, that distinction would apply, but the north of Ireland has fallen in between those two positions for the past 30 years. On balance, it might be necessary to have the type of

4 Mar 2002 : Column 33

protection and influence—the good that the Government might provide—that the hon. Member for Reigate recommends.

Mr. Tom Harris: Does the hon. Gentleman agree that a provision to ensure the independence of the legal profession is perhaps out of place in a Bill such as this, as it is an aspiration rather than a course of action that the Government can pursue? Is not this type of amendment therefore completely out of place in a Bill such as this?

Mr. Mallon: Again, the hon. Gentleman is right in terms of the drafting of Bills. However, if he had had the pleasure of serving on the Committee that considered the Bill, he would have known that we were often told that aspirations are not the stuff of which legislation is made.

Mr. Harris: May I inform the hon. Gentleman that I would have been delighted to serve on the Committee, but that I was otherwise detained on the Committee that considered the Proceeds of Crime Bill?

Mr. Mallon: I well understand the hon. Gentleman's reasons for not serving on the Committee, although I take his remarks today to mean that he is volunteering to serve on a similar Committee in the future. The question to which he has drawn our attention will raise its head in almost every debate that we have about independence, and especially the independence of the judiciary. The same points will arise when we debate later amendments, and I hope that those who are nailing their colours to the mast of the independence of the judiciary and the legal profession will reflect such views on later amendments. It is essential that we do not consider aspirations as something for which we cannot legislate—neither should we consider principles as something for which we should not legislate simply because of the difficulties of drafting.

The hon. Member for Glasgow, Cathcart (Mr. Harris) has spotted a difficulty with the amendment moved by the hon. Member for Reigate. I sympathise with the amendment, and I thank the hon. Member for Reigate for his clarification of it.

Lady Hermon: It would be helpful if I could quote further from paragraph 3.53 of the review, which was referred to by the hon. Member for Reigate (Mr. Blunt). The review team said in heavy, bold type that it agreed

However, having considered Mr. Cumaraswamy's report, the review team did not follow it up by recommending that a provision should be written into the Bill upholding the independence of the legal profession. The review team specified other ways of dealing with intimidation.

Mr. Mallon: The hon. Lady makes a valuable point. It is possible that the legal draftsmen advised that it would be difficult, if not impossible, to find the wording to meet

4 Mar 2002 : Column 34

the objective that the hon. Member for Reigate has identified. On balance, I believe that the hon. Gentleman has a valid point and, on balance, I will support it.

Mr. Kevin McNamara (Hull, North): It would be helpful if we could know what has been done, following the recommendation in paragraph 3.53, to train the police on the issues mentioned. The independence of the legal profession is of the utmost importance, and its members should not be intimidated in any way.

I was on a Committee with my hon. Friend the Member for Newry and Armagh (Mr. Mallon) when the statement was made that was followed some time later by the death of Pat Finucane. We know from what they have said themselves and from public documents that the people responsible for the intimidation in that case were, in fact, employees of the state and of the Government. We know that intimidation of Rosemary Nelson also took place and we also know—this is well documented—of the comments made about defence solicitors on both sides of the divide and about who they were and what they were doing. It was said that messages should be conveyed. That is an important point.

It has been suggested that the Bill is aspirational. The whole of clause 1 is declaratory and aspirational. If we are to defend the independence of the judiciary, we must equally defend the independence of the legal profession from which the judiciary is drawn. I am only sorry that the hon. Member for Reigate (Mr. Blunt), in moving the amendment, did not give more details. He mentioned the discovery of documents, but it would be the responsibility of the solicitor to follow the procedures of the court.

I should like the Minister to tell us what protection is given to solicitors, who, after all, are officers of the High Court. Presumably they fall under the declaratory part of the clause dealing with the independence of the judiciary, because I am sure that it applies not only to judges but to all those involved in the administration of justice, with the judges at the top and the Lord Chief Justice at the apex. We need further exploration of precisely what is meant by the independence of the judiciary; how far it goes; and what its limits are. Does it apply merely to the person sitting on the Bench, or does it extend to the whole question of administration?

Mr. Browne: The debate on this comparatively small amendment shows how interesting these discussions can be, and how interesting they were in Committee. Minor amendments can engage us for a significant time. The Bill requires those with responsibility for the administration of justice to uphold the continued independence of the judiciary. It is not possible for me to answer in a few sentences the question posed by my hon. Friend the Member for Hull, North (Mr. McNamara) about how far that stretches. In any event, I would not wish to be prescriptive, as that would be unhelpful. However, the meaning seems to me to be quite extensive. I am certain that anyone who tried to interfere with officers of the court would be in breach of their responsibility to uphold the continued independence of the judiciary.

This provision was recommended by the review because of the paramount importance of an independent judiciary. Amendment No. 1 deliberately goes beyond the review and would extend the protection to the legal profession. The amendment was debated in some detail in

4 Mar 2002 : Column 35

Committee, and I said then that I could not accept it until I understood more clearly what it was intended to achieve and until it had been tested to show its potential consequences. I do not accept for a minute that it lies with me to flesh out the amendment's intended or unintended consequences: it lies with those who seek to change the law to explain why it is necessary and what it is intended to achieve. I have endeavoured to do that at some length and in detail on other parts of the Bill.

It goes without saying that the Government fully support the independence of the legal profession, but it is another matter to include in the Bill declaratory statements that have unpredictable effects. I cannot agree to include such statements in the Bill unless I am confident that they are needed and that they will have the desired effects, and that, importantly, they will have no unintended consequences. I was not convinced by the examples given in Committee, even though they came from the hon. and learned Member for Harborough (Mr. Garnier), who is an experienced practitioner in the courts. With all due respect to the hon. Member for Reigate (Mr. Blunt), he gave the rather lame example of the discovery of documents. I was not convinced by that argument, and I believe that the other examples that have been given are already covered by existing law.

Above all, I am far from clear what this duty is supposed to mean. It is clear enough and accepted internationally that ensuring the independence of the judiciary is part of the duty of every state, but ensuring the independence of the legal profession has the potential to take us into all sorts of tricky regulatory questions. The example in the report of the special rapporteur is instructive. He commends internal regulation—self-regulation by the profession—as the answer to the problem, not a statutory provision.

Next Section

IndexHome Page