Justice (Northern Ireland) Bill

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Lady Hermon: I beg to move amendment No. 199, in page 29, line 4, leave out from 'who' to end of line 6 and insert—

    'may hold judicial office or may be a solicitor or barrister or teacher of law at a university.'.

The composition of the Law Commission, as anticipated by the Bill, will be—as we now understand—a part-time High Court judge and four other commissioners. Those other commissioners are listed in subsection (4). One will be a barrister, one a solicitor, one a legal academic and the other one will be someone who

    does not hold (and has never held) judicial office and is not (and has never been) a barrister, solicitor or teacher of law in a university.

The fifth member of the commission is expected to be a lay person.

My concern arises from the duties of the commission, which are listed in clause 51(1). It is an onerous responsibility.

    The Commission must keep under review the law of Northern Ireland with a view to its systematic development and reform, including in particular by—

    (a) codification,

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    (b) the elimination of anomalies,

    (c) the repeal of legislation which is no longer of practical utility, and

    (d) the reduction of the number of separate legislative provisions.

That is a heavy burden.

Again, I draw the Committee's attention to the comparison with other Law Commissions. The commission in the Republic of Ireland has five commissioners, and paragraph 14.29 of the criminal justice review makes the point that all of them are lawyers. Likewise in England and Wales, the Law Commission is made up entirely of lawyers. It is clear from paragraph 14.21 of the review why it is useful for all the members of those commissions to be experienced lawyers. In examining the working methods of commissions, it says:

    The Commission's work is based on thorough research and analysis of case law, legislation, academic and other writing, law reports and other relevant sources of information both in the United Kingdom and overseas. It takes full account both of the European Convention on Human Rights and of other European law.

That places on the fifth member—the lay member—the huge burden of having to consider the codification and elimination of anomalies, and having to have the ability to analyse the jurisprudence of the European convention on human rights, which is a huge and fast-developing area of law. The European convention has been incorporated into the Human Rights Act 1998, which applies in Northern Ireland. It is a heavy responsibility and, in fairness, we should know what contribution we can rightly expect from that lay member, without placing too onerous a burden on him or her.

Mr. Crispin Blunt (Reigate): I support the hon. Lady's amendment and implore the Committee to execute an act of mercy in accepting it. If it does not, it will place the poor statutory layman—

Lady Hermon: Or woman.

Mr. Blunt: Or woman. Legislation usually states these things in the male gender, on the understanding that both genders are properly represented. The layperson—to assuage the hon. Lady's sensitivity—will be placed in the company of lawyers who are dealing with an area of legal expertise. That might be a condign punishment if he is a volunteer rather than a pressed man, but it peculiar to insist on the qualification in the Bill.

I am happy to accept that the fifth person need not hold judicial office, but the arguments that we heard earlier as regards the Judicial Appointments Commission apply even more strongly in this instance. The role of commissioner requires a level of expertise that the layperson will have to acquire if the qualification remains as it is in the Bill. That is a heavy burden to place on anyone, although people will no doubt want to take on that role. I cannot imagine that a serving barrister or solicitor with a successful practice will want to be the fifth person on the Law Commission, given that the professions will already have nominated their own candidates, but a properly qualified person who meets the requirement of not being in a judicial appointment and who wants to take on the role of commissioner should be able to do so.

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The Committee should have mercy and allow the fifth person on the commission—if, by chance, they have a qualification—to make a proper contribution and to be respected by the other members. The amendment would not rule out the possibility of there being a lay member without qualifications, as laid out in the Bill. It would, however, give the fifth member of the commission a fighting chance of making a proper contribution, rather than simply being seen as the statutory lay member, which would be a pity. I know that a lay member is recommended in the review, which the Minister will no doubt quote, but qualifications are clearly called for, and the Bill should not rule them out when they have been acquired.

Mr. Mallon: I find the points that have been made most interesting and, at times, rather disturbing. I do not believe in the mystique that is commonly held to surround the law, because I do not believe that the law belongs to lawyers. It is formulated by lay people like us, and then given to the lawyers to implement. Nor do I share the notion that someone with no expertise in a certain area has nothing to contribute. If that were the case, few Members of either House would be competent to make the law or to sit on Standing Committees, which do just that every day of the week.

That is relevant because there is, and always must be, a place for lay opinion, no matter how exalted the company in which it may be expressed. I recognise that many of the points that have been made are, on the face of it, valid. I know that they are not meant to imply any intellectual or professional arrogance, but I believe that there is a role for a layperson. Many lay people could contribute the common sense and impartiality that might not always be present if the commission were comprised exclusively of people involved in the law. I shall add a rider to the term ''impartiality'' lest it be misunderstood. Lawyers tend to talk to each other, probably more than any other profession, and I know that because my daughter, nephews and nieces are lawyers and they talk to each other almost to the exclusion of any lay person who happens to be sitting in the same room. However, it is noticeable that when it comes to making a decision, they usually revert to the lay person for the commonsensical advice that is often needed. I believe that, in a place like Northern Ireland, where the law has been out of the touch with the community for so long, it is doubly essential that a layperson should be a member of the Law Commission and every other commission.

The capacity to bring a sense of community and a layperson's perception to the process far outweighs the technical expertise that it will also be necessary for members of the commission to show. The hon. Member for North Down asked what contribution we could expect from a layperson, and I know that she did not mean to be disparaging. I believe that lay people can make various contributions. Apart from the ability to reach the heart of an issue as quickly as a person with the relevant expertise but without the jargon, the layperson will not be—I do not want to be pejorative, so I am searching for the right term—part of the legal network in Northern Ireland. The legal network in Northern Ireland is very powerful and

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privileged and not always open to those outside it. The clause provides an opportunity to break through that and will permit views to be expressed other than those coloured by legal perceptions, although decisions will still have to be made on a legal basis.

The Government will be seen to be right in providing for the inclusion of a layperson on the commission, and I hope that, as the years go by in Northern Ireland, lay people will become involved more often. The more that happens, the stronger the law will be and the more deeply rooted in the community that it serves.

3.15 pm

Mr. Browne: The hon. Member for Reigate was right to point out that the review's recommendations for the composition of the commission, as set out in paragraph 14.55, are directly reflected in clause 50. Its recommendations are not surprising, given the discussion and the information it gleaned from throughout the world. It was fulfilling its remit in the Belfast agreement, which included a requirement to consider measures to improve the responsiveness, accountability and lay participation in the criminal justice system. Lay participation was part of its remit and it responded to that, as it responded to other recommendations in the review.

The hon. Lady was right to point out that some Law Commissions are made up entirely of lawyers, whether judges, barristers, solicitors or academics, but that is not universal. There is a clear example in Canada where one commissioner is described as a director of corporate development for Island Telecom Inc. That does not fit the description that the hon. Lady wants to include in the Bill.

Many of the changes in the law that the hon. Lady and I have welcomed during the past 20 years, especially in relation to children and victims, have been driven not by lawyers or law commissions, but by demands made by Parliament in response to lay people's appreciation and understanding of, and sometimes dissatisfaction with, the shape and application of the law.

Under clause 51, the Law Commission is required to deal with other matters, including simplification and modernisation of the law. Simplification can sometimes be achieved by involving people who are not steeped in the traditions of the law and its vocabulary, but who can provide a different view.

The commission will examine practice and not just complex black letter law. It will have a staff whose qualifications and research abilities will help to inform the commissioners. I do not want to leave the Committee with the feeling that the five commissioners will have the burden of all the commission's work. They will be supported with appropriate resources and staff.

The hon. Lady said rightly that care must be taken when appointing the fifth member of the commission to ensure that they have the skills not only to hold their own with the legally qualified members, but to

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bring a welcome and complementary perspective to the commission's work. The Government believe that the opportunity to involve a skilled layperson is an improvement on the position in other parts of the United Kingdom, and I am sure that the people of Northern Ireland will welcome that in years to come.

 
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