Justice (Northern Ireland) Bill

[back to previous text]

Mr. Garnier: I have some sympathy with the remarks of the hon. Member for Newry and Armagh, but I wish to make two points; for once, I will be brief.

First, if the wording is to come into the Bill at all, it would do better at clause 20(1), which states:

    ''Every person appointed to an office specified in Schedule 6 must, before undertaking any functions of the office,''

either take the oath or make the affirmation. Would not the hon. Gentleman's wording do better if it were put between the words ''must'' and ''before'' in line 12? It would say that every person appointed to an office specified in schedule 6 must

    ''decide matters before them impartially''—

and so on—

    ''before undertaking any functions.''

My second and more substantive point is that the amendment would not do any more than the proposed form of judicial oath or affirmation. All that the hon.

Column Number: 29

Gentleman wants is in clause 20(2) or (3). My hon. Friend the Member for Reigate and I have plenty to say about the new form of oath and the absence of an oath of allegiance, but that is a separate matter. The oath proposed by the Government at clause 20(2) adequately deals with the hon. Gentleman's concern, and it does so in a more concise form.

Mr. Mallon: I thank the hon. and learned Gentleman for his point, which is not without validity. I take his point about the oath. It is a mistake to believe that the law is for the legal profession or the judiciary. It is not; it is for us. It is for our protection and for the protection of society. The ordinary man or woman on the street, such as myself, can understand the amendment, phrase by phrase. I am not sure that the ordinary person knows the oath is taken by lawyers or that they would recognise within it that which will provide the protection that the amendment, however clumsy, would offer. I recognise the validity of the hon. and learned Gentleman's comment, but there is another point to be made.

Mr. Garnier: The hon. Gentleman has a point to make and I am grateful that he does not think mine lacking in validity. The cliche is that if someone wants to keep a secret, they should make a speech in the House of Commons. I dare say that they could also write it into a Bill. Of course the wider general public will not study the Bill. Unless they are particularly sad, they will probably not read the Hansard of the Committee.

A small group of people in Northern Ireland who are interested in the administration of justice will come to know of our discussion, but at the end of the day—to use that dreadful expression—the people of Northern Ireland are interested in the quality of justice that they receive or that is available to them as citizens of this country day by day. They are interested in the quality of the judiciary that sits in civil and criminal cases.

12.30 pm

I may be wrong, but I have a suspicion that, when taken by judges, the judicial oath at clause 20—I am guessing, but I suspect that that form of the oath, as opposed to the one that my hon. Friends and I should like to see in the Bill, will go into law—will have the desired effect on them, if that is needed. Judges will sit impartially and will do their best

    ''without fear or favour, affection or ill-will according to the laws and usages of this realm.''

In the words of the amendment, they will also

    ''decide matters impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason''.

Surely both provisions come to the same thing. Judges will do their best, but they will do so just as much under the oath in clause 20 as they would have under the amendment. I am not saying that the hon. Gentleman is making a bad point—he made some very good points—but the law is already clumsy enough and Acts of Parliament are wordy enough. I do not wish to undermine the argument that we had a

Column Number: 30

moment ago, when I wanted to add three more words, but sometimes there is a line to be drawn. I suspect that the oath in clause 20 will be good enough.

Lady Hermon: As a comparative novice to Committee work, I apologise unreservedly for galloping ahead to amendment No. 81 while we were still discussing amendment No. 80, Mr. Conway. I also apologise unreservedly to the hon. Member for Newry and Armagh if I implied a criticism of him for not mentioning it.

My point relates to the Human Rights Act 1998, which Committee members will be aware came into force throughout the United Kingdom. Interestingly, it came into force in Northern Ireland earlier—immediately on devolution. I think that that provision was tucked away in schedule 14 to the Northern Ireland Act 1998. The Human Rights Act makes it clear that all litigants are guaranteed a fair and independent trial. If ''restrictions, improper influences, inducements'' and the other points in the amendment impinge on the fairness or impartiality of a trial, there is already on the statute book a means whereby that decision or judgment can be challenged. The amendment is therefore superfluous.

The Bill proposes the devolution of justice and policing to the Northern Ireland Executive and Assembly, which shows confidence that they will continue. I am pleased about that. Again, under the Northern Ireland Act 1998, particularly section 24, the Assembly and every member of the Executive, all Ministers and all Departments are duty bound by their obligations under the European convention on human rights. Therefore, there should be no concern about the future Minister of Justice failing to comply with human rights obligations. The provision is already on the statute book in the form of the Northern Ireland Act 1998.

Mr. Mallon: That was not my point. In some circumstances, it would not be a matter for the Minister of Justice, who might have a problem. A tension could be created between a devolved Administration and the sovereign Administration regarding the various aspects of implementation. Both impinge on the administration of justice. It is a dangerous position. The hon. Lady is right about redress under human rights legislation, but the clause is not about redress; it is about imposing responsibility on people—''those with responsibility for'' the administration of justice. That is the essence of the clause.

Lady Hermon: I know that considerable time and expense have been invested in briefing the judiciary and members of the legal profession about the implications of the Human Rights Act. Those people are well aware of the need to guarantee a fair and independent trial. As it stands under existing legislation, the hon. Gentleman's concerns expressed in amendment No. 81 are already addressed, so the amendment is superfluous.

Column Number: 31

Mr. Browne: As has already been pointed out this morning, the Bill places a duty on those responsible for the administration of justice to uphold the independence of the judiciary. Let me be of more help on the definition of those responsible for it. It includes the Government here at Westminster and the Executive in Northern Ireland under devolved arrangements. As the hon. Member for Reigate said, it includes other agents of the state, such as the Police Service of Northern Ireland, the Department of Public Prosecution, the Probation Board for Northern Ireland, the Court Service and others who have responsibilities for the administration of justice. I hope that that helps my hon. Friend the Member for Newry and Armagh to understand what the term means.

Clause 20 refers to an oath in which judges promise to do right by all manner of people ''without fear or favour''. I am grateful to the hon. Member for North Down for pointing out that the Northern Ireland Act 1998 brought the Human Rights Act 1998 into force in Northern Ireland in relation to devolved matters and institutions. That also applied in Scotland from 1 July 1999. Far from having to search in the Bill's schedules for a reference to it, we celebrate the fact that the Human Rights Act was at least partially in force in Scotland—and it has greatly benefited from it, despite what others suggested might happen.

The amendment covers all the ground again in language that my hon. Friend recognises is somewhat clumsy. It is clumsy because it is based on UN principles on the independence of the judiciary. The principles are simply that. They were never supposed to be translated into statutory form.

Mr. Mallon: Is the Minister implying that we should never confuse principle with legislation?

Mr. Browne: I thank my hon. Friend for what I consider to be a somewhat mischievous intervention.

I was explaining why my hon. Friend found himself with an amendment that is, in his own words, clumsy. It was drafted by people who did not expect it to turn up in legislation, but were doing it for the purpose of setting out principles against which legislation or the law of a country that accepted those principles could be judged. The consequence is that the amendment contains some inelegant language and a lack of definition. Most importantly, it would impose no duty on anyone. The statement of the principles does not lend itself to duties.

My hon. Friend will be reassured that the protection of the principles is already contained in Northern Irish law. As is reflected in the oath, in whatever form it is taken, judges must act without bias or the appearance of bias. That is already the law throughout the United Kingdom, and the amendment is not needed to ensure it. The principles are protected also by criminal law, because any attempt to subvert them would be either an attempt to pervert the course of justice or, if successful, a perversion of the course of justice. The sanctions of criminal law already protect the principles that are set out by the UN.

Column Number: 32

Although the amendment was welcome and allowed us to debate the principles in the context of this important Bill, it would add nothing to the existing law. I recognise the point, which was well made by my hon. Friend the Member for Newry and Armagh, that we must get the message out to the people and reassure them that they are being served by a system of justice that is compliant with such principles. If they do not understand that the existing law does that, restating it in the Bill in an inelegant and clumsy fashion will not help. I hope that my hon. Friend is reassured that the principles that he wants to protect are protected by existing law and that he will agree to withdraw the amendment, because it would risk confusing matters considerably.

 
Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index


©Parliamentary copyright 2002
Prepared 29 January 2002