Justice (Northern Ireland) Bill

[back to previous text]

Mr. Blunt: I am surprised that the hon. Member for Montgomeryshire has come forward with the construction, because it runs against the principle of devolution of justice. If Parliament is to give power to the Secretary of State to devolve justice at a time of his choosing—I hope that that will be with the agreement of Parliament; we will discuss that under a later amendment—it must be a concern if the Liberal Democrats are not prepared to trust the First Minister and Deputy First Minister to run a devolved justice system and appoint the lay and judicial members of the Judicial Appointments Commission. For the time being—until he is appointed to the House of Lords—the Secretary of State is an elected politician, as are the First Minister and Deputy First Minister. On the basis of the principle that justice should be devolved, which is the position of the official Opposition—I do not think that it is an issue across the parties—I am unable to support the hon. Gentleman's amendments.

Lembit Öpik: Let me stress, first, that the amendment is not designed to cast aspersions on the politicians of Northern Ireland, but to ensure a clear distinction between the judiciary and politicians. Secondly, I am somewhat confused because on Second Reading the hon. Gentleman and the hon. Member for Grantham and Stamford (Mr. Davies) felt that we were shifting away from the Crown being the head of these matters towards a Northern Ireland context. They made great play of that, so is the hon. Gentleman now arguing that it does not apply to the amendments?

Mr. Blunt: The First Minister and the Deputy First Minister will be Ministers of the Crown as part of the

Column Number: 58

devolved Administration within the realm of the United Kingdom. The Crown remains central to the functions of the devolved Administrations, whether in Northern Ireland, Scotland or Wales, as it does within the United Kingdom as a whole. The hon. Gentleman's argument does not apply.

5.45 pm

Let me turn to the amendments, which are in two groups. Amendments Nos. 2 and 3 deal with the membership of the Judicial Appointments Commission and propose a rebalancing of the numbers; and the others deal with the qualifications of lay members.

The numbers suggested in the review as appropriate to secure a balance on the commission were not prescriptive. The review's conclusion, stated in paragraph 6.103 was:

    As for membership of the Commission, we envisage a strong judicial representation drawn from all tiers of the judiciary (including a representative of the lay magistracy) and nominated for appointment by the Lord Chief Justice after consultation with each of those tiers. The Lord Chief Justice or his nominee would chair the Commission. In line with practice elsewhere, there would be one representative nominated by the Law Society and one by the Bar Council. In total the Commission might consist of around five judicial members, two from the professions and four or five lay members.

So, according to the review, no precise figure for membership is recommended. The overriding principle—it is reflected in the review—is that the judiciary must be appointed on merit.

The balance of the commission as set out in the Bill is weighted in the wrong direction, particularly regarding qualifications. I want to rebalance and reweigh it by having six judicial members and four lay members on the commission. An additional benefit of having six judicial members is that it allows for the representation of one layer of the judiciary currently unrepresented in the Bill—the deputy county court judges, of which there are 40. That idea found favour in the review.

I realise that I have jumped to amendment No. 6, Mr. Pike, but it is appropriate to debate it here, because if this group of amendments were not accepted, amendment No. 6 would necessarily fall.

Mr. Browne: It is not just a question of numbers, but tiers of the judiciary, and deputy county court judges are in the same tier as county court judges. That tier is already reflected—in line with the recommendations in the review and the Bill's provisions—in the membership of the commission.

Mr. Blunt: From my reading of the Bill, I am not sure that the Minister has been properly directed. Clause 3(6) says that judicial members ''are to be'', but it says nothing about deputy county court judges being part of a tier. It is a matter of definition whether a county court judge is a county court judge, on which I turn to my hon. and learned Friend the Member for Harborough for assistance.

Mr. Garnier: My hon. Friend may turn to me, but whether he gets any assistance is another matter.

It strikes me that a county court judge is likely to hold the appointment of county court judge. A deputy

Column Number: 59

county court judge does not hold that appointment, but sits as a county court judge from time to time. It may be, and is often the case, that a deputy county court judge is a barrister or solicitor who is appointed to hold the office of deputy county court judge from time to time, or a resident magistrate who is being tried out to see if he is up to being a full-time county court judge. It is a question of numbers. I do not want to interrupt my hon. Friend for longer than the Chairman permits, but I suspect that if there are 40 county court judges in Northern Ireland, 40 of them will be ready and available to do the job. I am not sure that the numbers game is as adverse as my hon. Friend suggests.

The Chairman: Order. For the convenience of the Committee, I rule that amendment No. 6 be added to the group. It states, in page 2, line 42, at end insert—

    '(ca) a deputy county court judge.'.

Mr. Blunt: My hon. and learned Friend assisted me, because I conclude that it is possible for an appointment to be made to the Judicial Appointments Commission in line with amendment No. 6 to insist on a deputy county court judge, especially given the nature of the role of deputy county court judges. That is not a great point of principle, and if the Minister points out that I have misunderstood the nature of the ranking system in the judiciary in Northern Ireland and that by the nature of the appointments, people exercise those responsibilities only temporarily and are unlikely to be deputy county court judges for long, it may not be appropriate for this to be included in the Bill. I await the Minister's response.

However, that does not detract from the fact that there is a concern that the weighting given to the lay element in the Judicial Appointments Commission is too great. If we are to sustain the independence of the judiciary and to ensure that the appointments are made on merit, it is important that the judiciary has a substantial say in the process. That is not reflected by a commission that consists of half judiciary and half lay members, especially in relation to the qualification for lay members as described in the Bill.

I was surprised by the restriction in clause 3(5)(c) on the qualification of lay members to sit on the commission. It struck me as extraordinarily odd that if someone had been a barrister, solicitor or justice of the peace and so had some connection with the law, but had ceased to practise, that should disbar them from sitting as a lay member of the commission. I see it as a form of qualification that they had received legal training at some point and knew something about legal issues, even though the assumption would be that they would not be practising, because if they were they would be qualified under one of the other sections.

Lembit Öpik: Is that restriction not necessary to achieve what we are discussing in line with one of the hon. Gentleman's earlier amendments on ensuring the independence of the legal profession? Would it not be hard to separate the two roles if former barristers and solicitors were members of the commission?

Mr. Blunt: Appointing people to positions of responsibility is an important responsibility of the

Column Number: 60

Judicial Appointments Commission. If its members exercise their responsibility as lay members, their authority stems from their appointment. The fact that they have some knowledge of the system on which they are being invited to take decisions strikes me as an odd disqualification to apply. That disqualification should be removed from the Bill.

It may turn out that the recommended lay members do not have legal qualifications. That is likely, as it would be the desired scenario and, perhaps, common sense. However, Northern Ireland is not such a large constituency of professionally qualified people of the type you would want to appoint to a Judicial Appointments Commission that one should start placing restrictions on who was available. If a solicitor, who was well regarded across all communities, wanted to be appointed, it would seem odd if they could not because they had been so unwise as to qualify as a solicitor in their youth. That restriction is absurd. I hope that the Government will consider my concerns sympathetically, not least because the Minister is a lawyer.

Mr. Mallon: I know that this was not the motivation behind the amendment, but there is a difficulty in the Liberal Democrats' amendment that says more than the amendment itself. For years I have advocated the return of justice in terms of devolution to the north of Ireland on the grounds that devolution will only grow up and be what it should be when it can take control of the most important element of its existence. That is risky; so risky that I almost adduced serious trouble, with my party and otherwise. But my views have not changed. The more I see of devolution the more I am convinced that it will only be dynamic when it takes that responsibility.

I want to put my views in those terms. It may soften some of the things I want to say, but also ameliorate some of the others. Let us consider the three points under subsection (5). Where five people are to be nominated by the Lord Chief Justice under subsection (5)(a), there could be no suggestion that any lack would be politically motivated. Subsection (5)(b) proposes that a barrister should be nominated by the General Council of the Bar of Northern Ireland. The Bar of Northern Ireland would not make a political nomination. Nor would the Law Society of Northern Ireland, nor indeed would the Lord Chancellor; he would not dream of it.

The two people who will be charged with that under the terms of amendment No. 140, the First and Deputy First Minister in the Administration of the north of Ireland, whoever they are at that time, cannot be trusted, so the share of the power is split and and given to the Secretary of State. He would not dream of making a politically motivated decision.

There is a problem, although I accept that that is not the intention. I accept that many people in all parts of the community in the north of Ireland have good grounds for fearing the return of responsibility for justice. The provision is one way of dealing with that fear, but I suppose that that is how things will be for some time. The view is that the great and the good would never make political appointments, but those

Column Number: 61

who are elected by the people of the north of Ireland cannot be trusted not to do so.

6 pm

Something is out of balance, although again I accept that that is not intended. I also know that this point will raise hackles: there are no non-political organisations in the north of Ireland. Are there any non-political people there? If there are, I do not know them and I have lived there for 66 years; perhaps one day I will meet them. We are now getting to the heart of one of the problems, which is that politics has been frowned on in Northern Ireland. How often have those of us who come from there heard people say of someone, ''He was a decent man. He never had anything to do with politics''? I am sure that that has been heard here, too.

I believe that appointments, from wherever they come, always have a political connotation. However good, noble and learned the person who makes the appointment, no one, especially in Northern Ireland, will believe that it does not have a political tinge. The reason is that, almost by definition under the Good Friday agreement and the legislation, action is required to ensure that appointments are representative. That is what the First Minister, Deputy First Minister and the Executive are about. It is a cumbersome system, but that is what representativeness is.

When the Law Society and the Bar Council come to appoint the person, they will consider what the other appointments might be, so that they will balance. The First Minister and the Deputy First Minister—God love them—will have to consider the numbers, because people will be required to represent various sections of the community. That is inevitable. It may not be the ideal way or what people would want, but that is how it is.

We should have the confidence not to hedge our bets on devolution. We should have the confidence in ourselves as people to take the responsibility and share it honestly, justly and openly. I think that that will happen in the political process. I do not know whether it will happen in other parts of the nominating structures, but at least if the First Minister and Deputy First Minister do not act fairly, that can be dealt with. With that accountability goes representativeness. I use that term guardedly, because whatever way the numbers go, representativeness will be required.

I am worried about the implication that, if we were to add one to the number of judicial appointments and subtract one from the number of lay appointments, we would somehow get a better mix. I am worried about the thought behind that, because of the use of the phrase ''type of person that we would want to appoint to such a commission''. The type of person that I should like to appoint would not necessarily have a legal background. Those with a legal background are probably part of a legal establishment that is very protective of itself. They might even be deputy county court judges, for example. Many people in the north of

Column Number: 62

Ireland have no legal background. They have integrity and common sense and would be able to make decisions justly and fairly. That is crucial. It is a vote of confidence in ourselves that we can be fair and just and do things properly.

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