Clause 1 — Guarantee of continued judicial independence

Orders of the Day — Justice (Northern Ireland) Bill – in the House of Commons at 3:42 pm on 4th March 2002.

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Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland) 3:42 pm, 4th March 2002

I beg to move amendment No. 1, in page 1, line 6, after "judiciary", insert "and the legal profession".

We return to this subject following a debate in Committee during which I withdrew a similar amendment because the Minister was about to have further consultations with its main proponent, the Law Society of Northern Ireland. Without wishing to detain the House at length by recapping the debate in Committee, it is important for us to note just how wide is the alliance ranged against the Minister—unless, that is, he tells us later that the Law Society of Northern Ireland has withdrawn from the field.

The amendment has been signed by the hon. Members for Montgomeryshire (Lembit Öpik) and for Cheadle (Mrs. Calton), who were the only members of the Committee apart from the Minister to express even a smidgen of doubt, but who have plainly now been convinced by the arguments that we adduced in that debate.

The amendment arises from the very strong view expressed by the Law Society of Northern Ireland—in written submissions, and also orally, to me and others who have taken its advice on the provisions—that there should be a duty on those responsible for the administration of justice to uphold the independence not only of the judiciary but of the legal profession. I refer the House to the key element of the society's submission:

"The safeguarding of human rights standards is not just a matter of judicial independence nor (in the specific context of the criminal justice system) of an independent prosecutorial structure. The existence of a genuinely independent legal profession is vital in the protection of human rights, not only in so far as this involves the framing of just laws and procedures but also in the robust and independent application and defence of those laws and procedures".

The society also said:

"The LSNI recommends strongly to the Government that an equivalent guarantee of the continued independence of the legal profession should be included within the Bill."

The amendment seeks to achieve that aim in the simplest possible fashion, by appending in respect of the legal profession a guarantee such as that which the Bill already seeks to provide with regard to the judiciary.

The Minister found that arguments weighed heavily against him in Committee, especially in his exchange with my hon. and learned Friend Mr. Garnier, who intervened on the arguments that the hon. Gentleman sought to adduce about the consequences of including the word "independence" in respect of the legal profession. The hon. Gentleman could not speak in detail about any specific consequences that would flow from the introduction of a duty to uphold the independence of the legal profession. He said that he wanted to explore in consultation with the Law Society of Northern Ireland the question of whether the society, as the main promoter of the original amendment—and, indeed, the clause—would find that it had created a rod for its own back. He sought to present himself to the Committee as looking after the best interests of the Law Society of Northern Ireland and the Bar by suggesting that specifying the proposed duty in the Bill might somehow cause problems for them.

I look forward to hearing the Minister's response. He is well aware that the amendment deals with one of the issues on which there has been welcome unanimity across the entire field in Northern Ireland. The ad hoc Committee of the Northern Ireland Assembly managed to find an alliance ranging from Sinn Fein to the DUP and including all views in between.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 4:00 pm, 4th March 2002

The hon. Gentleman refers to the ad hoc Committee. Can he give any indication how many of the people who served on the Committee were lawyers, and whether that has any relevance to their independence?

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

No and no; I do not have the slightest idea about the status of legal education of the members of the ad hoc Committee.

It is plain that the Law Society of Northern Ireland has found it extremely easy to convince a very wide range of people that upholding the independence of the legal profession and making that a duty in the Bill is a sensible way of proceeding. I am still waiting to hear from the Minister arguments that convince me otherwise. We did not hear such arguments in Committee, where I withdrew the amendment because the Minister had the opportunity subsequently to speak to the Law Society of Northern Ireland, but where I said that if, following those conversations, he failed to convince me, I would table and press an amendment on Report. I note that Liberal Democrat Members have put their names to the proposal and I have no reason to believe that other parties have changed their position.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I hope that I am not about to be corrected.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank the hon. Gentleman for giving way again. I dearly wish to support him because independence should run from top to bottom in the process that we are considering. However, what might the legal profession be independent of?

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

The hon. Gentleman deliberately tries to draw me into difficult territory. It has been alleged that both sides of the community in Northern Ireland have exerted some influence on the legal profession. An example was given in Committee of a dispute between two clients and their lawyers. The law requires papers relating to one side to be discovered. It is plainly in the interest of the client whose papers are to be discovered for that not to happen. However, the lawyer who represents him would have a duty as an independent member of the profession to abide by the law and make the papers available to the other side. In that example, the lawyer-client relationship becomes subservient to the lawyer's duty to be independent and to stand up for his role as an independent member of the legal profession. I am grateful to my hon. and learned Friend the Member for Harborough for the example.

I cannot give specific instances and I shall therefore deal in generalities. That is probably best. However, Mr. Mallon is plainly referring to the fact that allegations have been made that some members of the legal profession in Northern Ireland got too close to their clients in their political views and objectives, abused their legal position and did not maintain the independence of the profession.

The clause is aspirational rather than detailed. However, the amendment, which would provide for a duty to sustain the independence of the legal profession, is another prop to support such independence. It could work in many circumstances, but it is important in the circumstances of Northern Ireland. In Committee, my hon. and learned Friend the Member for Harborough asked what would be the consequences if we were considering not the Justice (Northern Ireland) Bill, but a Justice (Zimbabwe) Bill. The legal profession in Zimbabwe has to operate under different pressures to maintain its independence. It is under pressure from the state and from armed terror from other semi-state organisations. The case for trying to sustain the independence of the legal profession in those circumstances is beyond peradventure.

Everyone supports the independence of the legal profession. I have not presented arguments that went over exactly the same ground in Committee, but the hon. Member for Newry and Armagh will remember the discussions about the United Nations declarations and the special rapporteur. The Government must present a case against the amendment to convince hon. Members that it is not worth including in the Bill an exhortation to support the independence of the legal profession. After all, the measure places a duty on all those involved to sustain the independence of the judiciary.

I note that the hon. Member for Newry and Armagh did not say that he would not support the amendment, although I am not wholly convinced that I have his full support, and I would be grateful if he could clarify the position. The hon. Gentleman was, however, convinced—as were his party and all other parties in this House and in the Assembly—of the merits of putting such a measure into the Bill, so I hope that the Government will be as well. I look forward to hearing the report of the Minister's conversations with the Law Society of Northern Ireland, to see whether he has been able to identify with them whether the proposals would have any unintended consequences. I cannot for the life of me see that there would be any, and if the Minister is unable to convince me of his argument, I shall wish to press the matter to a vote.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I want to make one brief point on the matters raised by Mr. Blunt, both in Committee and today. I find it difficult to understand the type of society that he is envisaging in which the legal profession would be independent. I would first have to understand what it is to be independent from. I do not see any difficulty with members of the legal profession not being independent politically. As a matter of fact, when one looks around this House, and most other political forums, one sees quite a number of highly independent-minded members of the legal profession who have party allegiances. So the hon. Gentleman cannot be referring to that. If it is not that, what can it be?

We must be very careful, because on a previous occasion in a previous Committee, reference was made to members of the legal profession in the north of Ireland and, less than one week later, one of them was shot dead. I always have that in mind and I have no doubt that that is not what the hon. Gentleman was referring to. I find it difficult, therefore, to understand what this independence is. The legal profession is, by its very nature, aligned in many ways, and it always will be.

Let us posit the kind of question that will immediately be asked post-devolution. There will be appointments to be made, and those appointees will be drawn from people who have lived and worked in Northern Ireland all their lives. Does that mean that someone who was aligned with the Ulster Unionist party, the Democratic Unionist party, Sinn Fein, the Social Democratic and Labour party or—dare I say it—the Alliance party would automatically be disqualified from consideration for such appointments? I do not believe that that would be the case. Nor do I believe that that has happened in the past, from the foundation of the state to the prorogation of the Stormont Parliament, when the Attorney-General for Northern Ireland was de facto a practising member of the then Unionist party, which became the Official Unionist party and subsequently the Ulster Unionist party.

None of those Attorneys-General was independent in the political sense to which I think the hon. Member may be referring. Perhaps he could again try to help me with my difficulty in understanding what the independence to which he refers is independence of or from. I would be inclined to support him if he could give an indication of precisely the effect that the amendment would have, and of the reason behind it. I hope that he will take the opportunity to clarify the matter before the debate concludes.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I am able to answer the hon. Gentleman directly. The best way of doing so is to quote paragraph 3.53 of the review, which states:

"Principal 16 of the Basic Principles"— the United Nations basic principles on the role of lawyers—

"also provides that governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. In his report on his mission to the United Kingdom in 1998, the Special Rapporteur on the Independence of Judges and Lawyers, Mr Param Cumaraswamy, expressed particular concern about the fact that lawyers in Northern Ireland who had represented those accused of terrorist offences had been subjected to intimidation, harassment or improper interference and had been identified with their clients or with their client's causes. The Special Rapporteur welcomed the Northern Ireland Law Society's decision to establish a complaints procedure to enable solicitors to complain to the Society about any agency within either the criminal or civil justice system which had allegedly impugned or threatened their independence, professionalism and integrity."

I cannot put it better.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 4:15 pm, 4th March 2002

I thank the hon. Gentleman for his compelling reply. I am grateful that he has had the opportunity to clarify the matter. I am totally at one with him—and with the Cumaraswamy report—in terms of the protection of members of the legal profession against the threats, intimidation, physical violence and, indeed, death that has been meted out to people in the north of Ireland. I thank the hon. Gentleman for his research and for the clarity with which he explained the matter to the House, which has brought much more definition to it.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Does the hon. Gentleman agree that the responsibility to maintain the independence of the legal profession is entirely different from the responsibility that all Governments maintain of giving protection to the legal profession? Is not the weakness of the amendment that it does not clarify who is responsible for maintaining the independence of the legal profession? It is clearly the Government's responsibility to maintain the independence of the judiciary, but I fail to understand, perhaps because I have no legal training, how the Government can take on the responsibility of maintaining the independence of the legal profession. Surely that is completely different from maintaining the security and physical protection of the legal profession.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The hon. Gentleman makes a valid point. Surely, however, it is the Government's objective to ensure that the legal profession is independent. And how better can one enshrine an objective than to put it in legislation? The hon. Gentleman is right that there is a clear distinction between the responsibility of a Government to protect those who are involved in the implementation of law and the profession's responsibility to protect its independence. In normal societies, that distinction would apply, but the north of Ireland has fallen in between those two positions for the past 30 years. On balance, it might be necessary to have the type of protection and influence—the good that the Government might provide—that the hon. Member for Reigate recommends.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Does the hon. Gentleman agree that a provision to ensure the independence of the legal profession is perhaps out of place in a Bill such as this, as it is an aspiration rather than a course of action that the Government can pursue? Is not this type of amendment therefore completely out of place in a Bill such as this?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

Again, the hon. Gentleman is right in terms of the drafting of Bills. However, if he had had the pleasure of serving on the Committee that considered the Bill, he would have known that we were often told that aspirations are not the stuff of which legislation is made.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

May I inform the hon. Gentleman that I would have been delighted to serve on the Committee, but that I was otherwise detained on the Committee that considered the Proceeds of Crime Bill?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I well understand the hon. Gentleman's reasons for not serving on the Committee, although I take his remarks today to mean that he is volunteering to serve on a similar Committee in the future. The question to which he has drawn our attention will raise its head in almost every debate that we have about independence, and especially the independence of the judiciary. The same points will arise when we debate later amendments, and I hope that those who are nailing their colours to the mast of the independence of the judiciary and the legal profession will reflect such views on later amendments. It is essential that we do not consider aspirations as something for which we cannot legislate—neither should we consider principles as something for which we should not legislate simply because of the difficulties of drafting.

Mr. Harris has spotted a difficulty with the amendment moved by the hon. Member for Reigate. I sympathise with the amendment, and I thank the hon. Member for Reigate for his clarification of it.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

It would be helpful if I could quote further from paragraph 3.53 of the review, which was referred to by Mr. Blunt. The review team said in heavy, bold type that it agreed

"with the Special Rapporteur on the Independence of Judges and Lawyers that government has a responsibility to provide the machinery for an effective and independent investigation of all threats made against lawyers and note the role of the Police Ombudsman if such allegations relate to the actions of police officers. Further, we endorse his recommendation that training seminars should be organised to enable police officers and members of other criminal justice agencies to appreciate the important role that defence lawyers play".

However, having considered Mr. Cumaraswamy's report, the review team did not follow it up by recommending that a provision should be written into the Bill upholding the independence of the legal profession. The review team specified other ways of dealing with intimidation.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The hon. Lady makes a valuable point. It is possible that the legal draftsmen advised that it would be difficult, if not impossible, to find the wording to meet the objective that the hon. Member for Reigate has identified. On balance, I believe that the hon. Gentleman has a valid point and, on balance, I will support it.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

It would be helpful if we could know what has been done, following the recommendation in paragraph 3.53, to train the police on the issues mentioned. The independence of the legal profession is of the utmost importance, and its members should not be intimidated in any way.

I was on a Committee with my hon. Friend Mr. Mallon when the statement was made that was followed some time later by the death of Pat Finucane. We know from what they have said themselves and from public documents that the people responsible for the intimidation in that case were, in fact, employees of the state and of the Government. We know that intimidation of Rosemary Nelson also took place and we also know—this is well documented—of the comments made about defence solicitors on both sides of the divide and about who they were and what they were doing. It was said that messages should be conveyed. That is an important point.

It has been suggested that the Bill is aspirational. The whole of clause 1 is declaratory and aspirational. If we are to defend the independence of the judiciary, we must equally defend the independence of the legal profession from which the judiciary is drawn. I am only sorry that Mr. Blunt, in moving the amendment, did not give more details. He mentioned the discovery of documents, but it would be the responsibility of the solicitor to follow the procedures of the court.

I should like the Minister to tell us what protection is given to solicitors, who, after all, are officers of the High Court. Presumably they fall under the declaratory part of the clause dealing with the independence of the judiciary, because I am sure that it applies not only to judges but to all those involved in the administration of justice, with the judges at the top and the Lord Chief Justice at the apex. We need further exploration of precisely what is meant by the independence of the judiciary; how far it goes; and what its limits are. Does it apply merely to the person sitting on the Bench, or does it extend to the whole question of administration?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The debate on this comparatively small amendment shows how interesting these discussions can be, and how interesting they were in Committee. Minor amendments can engage us for a significant time. The Bill requires those with responsibility for the administration of justice to uphold the continued independence of the judiciary. It is not possible for me to answer in a few sentences the question posed by my hon. Friend Mr. McNamara about how far that stretches. In any event, I would not wish to be prescriptive, as that would be unhelpful. However, the meaning seems to me to be quite extensive. I am certain that anyone who tried to interfere with officers of the court would be in breach of their responsibility to uphold the continued independence of the judiciary.

This provision was recommended by the review because of the paramount importance of an independent judiciary. Amendment No. 1 deliberately goes beyond the review and would extend the protection to the legal profession. The amendment was debated in some detail in Committee, and I said then that I could not accept it until I understood more clearly what it was intended to achieve and until it had been tested to show its potential consequences. I do not accept for a minute that it lies with me to flesh out the amendment's intended or unintended consequences: it lies with those who seek to change the law to explain why it is necessary and what it is intended to achieve. I have endeavoured to do that at some length and in detail on other parts of the Bill.

It goes without saying that the Government fully support the independence of the legal profession, but it is another matter to include in the Bill declaratory statements that have unpredictable effects. I cannot agree to include such statements in the Bill unless I am confident that they are needed and that they will have the desired effects, and that, importantly, they will have no unintended consequences. I was not convinced by the examples given in Committee, even though they came from Mr. Garnier, who is an experienced practitioner in the courts. With all due respect to Mr. Blunt, he gave the rather lame example of the discovery of documents. I was not convinced by that argument, and I believe that the other examples that have been given are already covered by existing law.

Above all, I am far from clear what this duty is supposed to mean. It is clear enough and accepted internationally that ensuring the independence of the judiciary is part of the duty of every state, but ensuring the independence of the legal profession has the potential to take us into all sorts of tricky regulatory questions. The example in the report of the special rapporteur is instructive. He commends internal regulation—self-regulation by the profession—as the answer to the problem, not a statutory provision.

It seems to me, and I have heard nothing to the contrary, that if the amended clause is to mean anything it must imply an extension of Government regulation to this area. Although I do not think that that is the profession's intention, the Law Society has expertly promoted support for an amendment along those lines.

I repeat what I said in Committee: I have read some supportive submissions and although I have yet to be convinced that the Law Society gave anybody detailed and adequate reasons as to why they should back the amendment, it has managed to raise that support. Consequently, I agreed to invite the Law Society to meet me to discuss the points for which it has gleaned support. I did so, and we had a constructive discussion on a number of matters, including my concern that there may be unintended regulatory consequences, which it would not welcome, from such a statutory provision.

The Law Society confirmed to me that it jealously guards self-regulation of the profession and thinks that important to its independence, which I understand and support. I also asked it to consider why it seeks to restrict the statutory provision to its members, as officers of the court, thereby excluding other officers of the court. Why are its members in a different position from other officers of the court? I am not saying that I convinced it, but I am pleased to report that I was persuasive enough for it to agree to reflect on those points and come back to me with responses.

I have yet to receive a response or any further representations from the Law Society, however, so my discussions with the amendment's principal promoter are not yet concluded. I remain to be convinced by its or any other arguments, so I ask that the amendment be withdrawn.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland) 4:30 pm, 4th March 2002

The Minister has not advanced the position at all since we discussed the matter in Committee. He says that the Law Society of Northern Ireland agreed to reflect and that he may have convinced it, but that, I fear, simply reflects its politeness. Indeed, had I been in discussions with the Minister, I might well agree to reflect on his point of view so as not to leave him with a disagreeable impression.

The Law Society of Northern Ireland put its points with singular robustness and force. Its submission says:

"The independence of the judiciary and the prosecution process is correctly identified as a key issue in maintaining public confidence in the administration of justice in this jurisdiction. This is no less so in respect of those charged with the assertion of rights within the judicial process. In a situation such as Northern Ireland where it is thought necessary to have a statutory statement and guarantee of the independence of the judiciary, there is a parallel need in the same context to affirm the independence of the legal profession."

For precisely the reasons to which the Minister and Mr. Mallon alluded, I shall not get drawn into individual cases. The very example, the suggestions and the accusations that have been thrown around relate to previous discussion of individual cases. We all know what we are talking about.

The Minister alluded to unpredictable consequences—unintended regulatory consequences—but did not identify any. The Law Society places great value on the amendment and has managed to convince every single party in Northern Ireland that it is the right thing to do. The Bill is to assert the independence of the judiciary in the Northern Ireland situation and there appear to be no concrete reasons for rejecting the amendment.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I want to tease out the hon. Gentleman's difficulty with the clause as drafted. Is his concern that people will not get a fair trial?

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

No. The central purpose of the amendment is to protect the independence of the legal profession. The hon. Lady's party colleagues, along with all the other members of the Assembly ad hoc Committee, agreed the following statement:

"In their evidence to the Committee, representatives of the Law Society of Northern Ireland . . . highlighted the important role that is played by solicitors in the criminal justice system. One of the key aspects of their role is that they exercise their responsibilities in a manner 'free from political, financial or other influences that may affect [their] independence'. This was recognised by the CJRG"— the review group—

"in their report, which made particular reference to the role played by defence lawyers and the nature of their relationship with their clients, and the negative impact of a misunderstanding of that relationship."

Indeed, the second recommendation of that Committee, supported unanimously, was:

"That a new clause be inserted which acknowledges and safeguards the continuing independence and impartiality of the legal profession."

The Minister has not even begun to make a case against that.

Question put, That the amendment be made:—

The House divided: Ayes 152, Noes 275.

Division number 175 Orders of the Day — Justice (Northern Ireland) Bill — Clause 1 — Guarantee of continued judicial independence

Aye: 152 MPs

No: 275 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Photo of Theresa May Theresa May Shadow Secretary of State for Transport

On a point of order, Mr. Deputy Speaker. Last week, on 26 February, the Secretary of State for Transport, Local Government and the Regions made a statement in the House in which he led Members to believe that personnel problems in his Department had been resolved. I learned this afternoon that Ian Jones, head of press at that Department, had been suspended. Have you, Mr. Deputy Speaker, received any indication from the Secretary of State that he wishes to come to the House and make a further statement about this worrying development?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

I have no knowledge of the matter to which the hon. Lady refers, and I have had no indication that a statement is intended.

Photo of Andrew MacKay Andrew MacKay Conservative, Bracknell

Further to that point of order, Mr. Deputy Speaker

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I remind the House that we have a tight schedule today, and that this is taking time out of it.

Photo of Andrew MacKay Andrew MacKay Conservative, Bracknell

Further to the point of order, Mr. Deputy Speaker. I shall bear in mind the fact that, as you say, we have a very tight schedule within which to deal with an important Bill; but is it not outrageous that three separate heads of press and media at that Department have been sacked or forced to leave? Is it not essential for the Secretary of State, immediately after our debates on the Bill—which I agree should be conducted speedily, and concluded by 10 pm—to return to the Dispatch Box? I am not suggesting that that should interrupt the main business, but it would enable us to get to the truth.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

The right hon. Gentleman has made his point, and I have nothing to add to the statement that I made earlier.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. We have an extremely tight schedule, and we must move on. [Interruption.] I have dealt with the point of order. I do not wish to deal with further points of order relating to a point of order with which I have already dealt.