Justice (Northern Ireland) Bill

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The Chairman: With this it will be convenient to discuss the following amendments: No. 37, in page 74, line 15, leave out 'not'.

No. 38, in page 74, line 18, leave out 'not'.

Mr. Blunt: These are probing amendments, designed to ascertain what paragraph 13 means. I should like to know what its practical effect will be. It states:

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    ''The Commission is not to be regarded...as the servant or agent of the Crown . . . or . . . as enjoying any status, immunity or privilege of the Crown.''

The amendments are mutually exclusive. The lead amendment would remove the entire paragraph; the others would reverse the meaning by leaving out the word ''not'', so that the commission ''would be regarded'' as the servant or agent of the Crown. I am anxious to establish precisely what is meant.

Mr. Garnier: When the Minister answers my hon. Friend's question, will he illustrate it by telling us, for example, who owns the court buildings in the remainder of the United Kingdom? I am not sure whether the Court Service owns property. Do they belong to the Lord Chancellor's Department, or to the Lord Chancellor on behalf of the Crown? Ditto in Scotland. If he is bringing Northern Irish practice into line with that in the remainder of the United Kingdom, we would be a little less worried.

Mr. Turner: I have some questions on the implications of paragraph 13. Does the status of a servant or agent of the Crown normally carry with it immunity from prosecution or litigation? In the event of the provision having any effect on that immunity, what would be the judicial authority responsible for deciding cases in which the commission was the subject of legal action? Would it be the courts of Northern Ireland? If not, which court would it be? Knowing the small size of the judiciary of Northern Ireland, it will not be easy to find people able to sit in judgment on the commission if it is the subject of litigation.

Mr. Browne: Those who are used to the scale of England may find Northern Ireland and, perhaps, Scotland irritatingly small, but the fact is that, in Scotland and Northern Ireland, we have developed the ability to live with the comparatively small number of people that are there. So, for example, it is possible—something to which the hon. and learned Member for Harborough alluded—for judges in Scotland to preside over litigation that involves other judges. Judges are good at identifying any conflict of interest that disqualifies them from being involved in a case. That is part of their expertise. Every day, judges throughout small communities in Scotland, Northern Ireland and, I suspect, England and Wales, are called upon to exercise the ability to rise above the narrowness of the circumstances. No doubt, repeat offenders appear regularly before judges in comparatively small rural areas and they develop the ability to deal with each case as if the person had no previous convictions.

Members must have faith in our system of justice and believe that it can rise above petty self-interest. Where will jurisdiction lie to resolve litigation in which the Judicial Appointments Commission is involved? That will depend on the litigation. If it is contract litigation—on which it is agreed that jurisdiction should lie elsewhere—it will lie somewhere else. If the Judicial Appointments Commission is involved in litigation, that litigation will probably have to take place in Northern Ireland. I do not see any conflict in judges appointed by a process in which the Judicial

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Appointments Commission played a part, as an organ of the state, presiding over that litigation. If there is any specific conflict of interest, I am sure that the judges will identify it and disqualify themselves, and other judges will be found to deal with the issue.

Mr. Turner: I appreciate the Minister's reply but I assure him that I, too, come from a fairly small community. However, the chairman of the commission is the Lord Chief Justice of Northern Ireland, who stands in the position of the Lord Chancellor vis-a-vis Northern Ireland. What is the final court of appeal—

Mr. Garnier: The House of Lords.

Mr. Turner: I thank my hon. and learned Friend for that intervention. Does the case have to proceed there via a court that involves the Lord Chief Justice of Northern Ireland?

Mr. Browne: I am thinking of a predictable lawyer's answer, such as, ''It depends.'' It will depend on the circumstances of the individual case. I do not want to be prescriptive about the circumstances in which the Lord Chief Justice might need to play a part in litigation that involves the Judicial Appointments Commission. It will depend on lots of things, including the attitude of the other litigants, who may be content to have the issue aired in any particular court with particular judges. The issue will not keep us awake at night; there are far more important issues relating to the Judicial Appointments Commission and other parts of the justice system. I hope that I have given the hon. Member for Isle of Wight (Mr. Turner) a fair answer to his fair question.

The hon. and learned Member for Harborough asked who owns the court property. I shall write to him about that, but I fail to see the relevance of the question to the issue of the Judicial Appointments Commission. I do not think that the commission will own any of the court property. He may have been thinking of another issue, but I will undertake to write to him about the ownership of buildings in the rest of the United Kingdom and whether or not things are the same in Northern Ireland. However, nothing in this part of the Bill will affect that.

Mr. Garnier: I asked the question only because the Minister seemed to be in some confusion and I wanted to help him. Paragraph 13(2) states:

    ''The Commission's property is not to be regarded as property of, or held on behalf of, the Crown.''

I appreciate that the commission may not be the owner of court buildings, but it will presumably have an office.

Mr. Browne: I suspect that as the hon. and learned Gentleman asked that question, he realised what the answer was. The commission's property will belong to the commission alone. That is what we should be concerned with. If the commission chooses to establish an office in a court building, that office will not be its property. I am not confused. I understand the relevance of property to the Judicial Appointments Commission. If the hon. and learned Gentleman

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thinks that the ownership of the courts is of some relevance and wants to satisfy himself about who owns them, I will undertake to write to him on the matter. However, with respect, I do not think that it is at all relevant.

The immunity that Crown status would attract includes immunity from prosecution and in respect of other matters involving the application of statute law. I do not have an exhaustive list of those matters—in case anybody asks—but they have grown up over the years around the Sovereign. The provision that the hon. Member for Reigate seeks to remove has been included because we consider that the new body should not attract that set of immunities.

It is extremely unusual—I have not been able to find any examples, but I am told that there may be some—to create a public body and treat it as an agent of the Crown. The Bill's provisions reflect those governing other bodies such as the Police Complaints Authority and Data Protection. All public bodies that are set up in this fashion are specifically excluded from Crown status. If they were not so excluded, provisions in relation to matters such as litigation, property law and employment law would be hindered in an inappropriate manner. That is the answer and I hope that the hon. Gentleman is satisfied and will withdraw the amendment.

Mr. Blunt: I am grateful to the Minister for his explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Blunt: I beg to move amendment No. 40, in page 74, line 38, leave out paragraph 18.

The amendment concerns the principle of devolution. If judicial appointments and the whole judicial system are to be devolved to Northern Ireland, it will be consistent for members of the Legislative Assembly not to have a role on the Judicial Appointments Commission. When those functions have been devolved by this House, the Legislative Assembly will have a role in exercising them through its direct election of the First Minister and Deputy First Minister, whose role in the judicial system will be extensive. Furthermore, it strikes me as odd that a Member of this House should be disqualified from serving on the Judicial Appointments Commission.

Let us consider the example of the hon. Member for Newry and Armagh. If my amendment were adopted, he would be disqualified by virtue of his membership of the Legislative Assembly. If, however, he ceased to be an MLA, but retained his membership of this House, I cannot think of a finer person to serve on the Judicial Appointments Commission. The hon. Gentleman would have the confidence of the whole community of Northern Ireland. As a Member of this House, he would not have a role in the judicial system, except in the most peripheral way in terms of the relationship of the Lord Chancellor with the judicial

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system in Northern Ireland. It would be a pity if we were to disqualify people such as the hon. Member for Newry and Armagh from making a contribution in this way.

3.45 pm

Mr. Browne: I understand the distinction that the hon. Member for Reigate is making, and there is an argument for his view, but it will not surprise him to learn that I do not agree with him. The schedule was drafted to extend the disqualification to Members of Parliament as well as to Members of the Legislative Assembly because, as we have heard already in our deliberations, the review explicitly states that

    ''there is a greater need than ever to insulate the appointment process from any possible suspicion of political influence; a way of doing this is by creating an independent appointments commission.''

That refers to independence of thought and independence from political interference.

We have gone to appropriate lengths, in drafting the schedule, to create that political independence. Although I understand the distinction between Members of the Legislative Assembly and Members of Parliament, with respect to where they are elected to sit, I have observed no difference in politics between Members of the Legislative Assembly and Northern Ireland Members of Parliament from the same party. Removing, or at least cutting a major hole in, the political independence that the review advocated, by allowing Members of Parliament on to the commission, would lead to political mischief, or at least the suspicion of it. Those appointments would not retain the confidence of the people of Northern Ireland because it would not be apparent that there was political independence.

The amendment is unacceptable and I ask the hon. Gentleman to withdraw it.

 
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Prepared 31 January 2002