Justice (Northern Ireland) Bill

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Mr. Mallon: In tabling the amendment, the hon. Member for Reigate has done a service to the Committee at this early stage. The amendment raises a crucial point and I listened carefully to what the hon.

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and learned Member for Harborough said about it. It is almost unique to hear someone of such standing in the legal profession explain that its importance lies in the fact that it is the only bulwark—in respect of the process of law—for the ordinary man and woman on the street. It is not just a lawyers' discussion about how best the legal profession should be catered for. It goes to the heart of how we, the legislators, create law and subsequently hand it to the judiciary and the legal profession to sustain as a means of protecting the individual.

The amendment is crucial and welcome, particularly at these early stages, as I said. Many views about the legal profession are expressed. Whether we are talking about judges, solicitors or barristers, they deal with what we hand them to protect us and maintain order in society. I accept that the lay person requires some definition of the word, ''independence''. People readily understand that the legal profession is expected to--and, by and large, does--behave with integrity. Its members work to the highest standards and, as the hon. and learned Member for Harborough said, are straight and deal properly with the law and with the public. I look forward to hearing a definition of the word ''independence''. It is important, because it may allow us to recognise the benefit of the amendment.

Mr. Browne: In response to the hon. Member for Reigate praying in aid the support from several sources for the principle behind the amendment, I will be impressed if proposals that come before the Committee have that level of support and—this is important—when tested, are seen to be practical, operative and capable of improving the justice system in Northern Ireland. I wish to make several comments about the importance of that to the amendment.

The all-party Assembly Ad Hoc Committee and the Opposition have accepted the recommendation of the Law Society of Northern Ireland. However, I have no sense that anyone has done anything other than accept it in the broadest principle. It is not tested in any of the documents that I have read.

Late last night, to prepare for today's Committee, I read again the evidence given by the Law Society of Northern Ireland to the Assembly's Ad Hoc Committee on 29 November. It was instructive to read it because, although the issue occupies a substantial part of the evidence, the questioning needs questioning; the hon. and learned Member for Harborough will recognise that. The questions were asked by people who knew the answers that they would get; in fact, some of the questions included the answers. They knew exactly what the Law Society's position is from the written submission, and no one asked, for example, for a definition of independence.

Mr. Garnier rose—

Mr. Browne: I shall allow the hon. and learned Gentleman to speak in a moment.

How does the definition differ from that for independence of the judiciary? Later, I shall deal with some of the problems arising from that. No one asked the question that I pose: what will be the consequences of self-regulation of both branches of the profession in

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Northern Ireland? I did not say in my intervention that they must give up self-regulation. The hon. and learned Gentleman spoke about self-regulation in relation to discipline, but self-regulation of both branches of the profession in Northern Ireland, as in Scotland, England and Wales, covers substantially more than just discipline.

I served for eight years on the council of the Law Society of Scotland and know all about self-regulation and how jealously the legal profession has guarded it, for good reasons to do with their independence and their ability to serve the purposes that hon. Members articulated so ably in the debate. However, no one asked the Law Society of Northern Ireland about the implications of self-regulation, how it would be enforced or what framework would have to be in place in order for those with responsibility for the administration of justice to uphold the independence of the legal profession in any circumstances. I intervened because of that concern.

Mr. Garnier: No one has asked the question posed by the Minister about the independence of the judiciary either. Having practised law in relatively peaceful parts of the United Kingdom, he and I take it for granted that the judiciary and both wings of the legal profession are independent and that it is right that the state, the courts and so on should uphold their independence.

However, clause 1 is not something that one normally sees in a British Act of Parliament: it is an aspiration and a declaration of intention and will, not a specific provision. Given that fact, we are in different legislative territory. If an aspiration as to the independence of the judiciary is in the Bill, why should we not also put the legal profession on the shopping list of those to be protected by that aspiration?

Mr. Browne: I am grateful to the hon. and learned Gentleman for raising that point, because it allows me to try to explain why there is a difference. In the first instance—I know that this is not a complete answer—there is a distinction. Clause 1 states:

    ''Those with responsibility for the administration of justice must uphold the continued independence of the judiciary'',

and of course the Government are included in the general description of those with responsibility for the administration of justice. That requirement was a recommendation by the review, and one can summarise the reason for that as the paramount nature of the independence of the judiciary.

However, the review made no such recommendation on the legal profession, despite the detail in which it considered aspects of that independence and made recommendations, particularly recommendation 9, following on from paragraph 3.53 of the review.

The Government propose the expression of an aspiration, accepting a duty on ourselves, and set out in further clauses specifically what we propose be put in place to guarantee the fulfilment of that aspiration as far as we are concerned. No such consequential

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mechanism is spelt out or considered in relation to the Law Society of Northern Ireland, which is the principal proponent of the expression in the Bill.

Apart from that, no consideration is given to what independence means. The hon. Member for Montgomeryshire raised that important point. Those of us who have practised law and been involved with lawyers know that, to lawyers, it means something different from the independence of the judiciary. I accept that the concept operates in the same sphere and towards the same objectives, but it is different. In my view, that raises potentially tricky regulatory questions.

Let me give an example. What does independence mean in the context of solicitors who are working on litigation between two separate private sector clients? It is clearly not the same concept as the independence of a judge who may be called on to adjudicate on that litigation. The provision as drafted will have implications in that sphere.

Mr. Garnier: I am sorry to contradict the Minister, but he is inventing a non-existent problem. In the context of two opponents on a piece of civil litigation, independence simply means that they are independent of improper pressure or influence. The two solicitors may be arguing over a point of discovery--whether a document should be disclosed to the other side. The lay client of the solicitor who has the document under discussion may not want his solicitor to send the document to the other side because it could undermine his case. However, because he is independent and possesses the qualities and characteristics that are required of an independent legal professional, the solicitor will say to his client, ''I am sorry, it is inconvenient, but the law requires me, in certain circumstances, to break the link with my client and to uphold my link with the justice system.''

12 noon

One does not need to list the categories of things that must be protected to undermine the argument that the legal profession should be independent and that independence should be upheld by those responsible for the administration of justice. It is rather like defining an elephant—elephants are easier to recognise than they are to describe. Just as the expression is used in relation to the judiciary, so it can and should be used in relation to the legal profession.

I do not see the difficulties that the Minister outlines; every lawyer knows what we are talking about, and every Member of Parliament ought to know. In the Northern Irish context, if it can be included in the Bill, as it is in relation to the judiciary, that is all well and good. I agree that it will not be fatal to the Bill or destroy the legal profession one way or the other, but if one is in the business of wish lists and of cataloguing who should be protected by those responsible for the administration of justice, surely the legal profession must be, if not first equal, at least a close second to the judiciary.

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Mr. Browne: I am grateful to the hon. and learned Gentleman once again for trying not to define ''independence'', and thus being helpful to the Committee. It is sometimes helpful to the Committee to say that concepts such as independence are not necessarily improved by people's attempts to define them and that people can better recognise things and be more comfortable when they are not there than when they are.

My argument against the amendment is that it has potential consequences for the regulation of the profession because it places a duty on the Government, who, I accept, have already regulated both professions. However, it is not an answer to the argument that we should explore its potential consequences to say that the Government have in the past introduced legislation that has regulated the profession. My argument is that until there is some clearer definition of what is meant by the profession in Northern Ireland in relation to the proposal, and until it is tested in relation to its potential consequences and those consequences are understood by everyone to be what the profession expects, the amendment presents a challenge that cannot be met in the context of the Bill.

The legal profession in Northern Ireland, especially the Law Society of Northern Ireland, advocates the inclusion of such an expression of intent in the Bill and I have on several occasions offered to meet them to discuss it. I understand that lawyers are busy and it may not have been possible to get the right people to discuss the matter with me until now. However, a meeting is planned; I have offered alternative dates and my officials have offered to meet the professions' representatives, but they have not found a convenient time.

The amendment sets an unpredictable precedent and I therefore hope that the Opposition spokesman will be—

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