Clause 5 — Guarantee of continued judicial independence: Northern Ireland

Orders of the Day — Constitutional Reform Bill [Lords] — 1st Allotted Day – in the House of Commons at 7:30 pm on 31 January 2005.

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Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 7:30, 31 January 2005

I beg to move, That the clause stand part of the Bill.

Clause 5 substitutes a new section for section 1 of the Justice (Northern Ireland) Act 2002, to ensure that provision made by that Act in relation to Northern Ireland is consistent with provision made in clause 4. Section 1 of the 2002 Act has not yet been commenced, and it already contains provision designed to place those with responsibility for the administration of justice in Northern Ireland under a duty to uphold the continued independence of the judiciary.

New section 1 specifies and extends the range of persons on whom the duty is imposed. Under the provision, the First Minister and the Deputy First Minister, Northern Ireland Ministers, and anybody with responsibility for the judiciary or administration of justice specific to Northern Ireland will be subject to a duty to uphold continued judicial independence. New section 1 also provides that, in upholding judicial independence, Ministers must not seek to influence particular judicial decisions through any special access to the judiciary. As I said earlier, we concluded that the term "special access" is essential to ensure that Northern Ireland Ministers remain free to seek to influence a particular judicial decision when appearing as a party to a court case. That answered the points raised by Mr. Trimble, the former First Minister, who asked about the normal access arrangements. We need to ensure that the Administration would quite properly be able to make its own representations in a normal case in the normal way, if it were involved as a party to the case.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I appreciate that the Minister is trying to respond to the point that I made, which I was going to repeat. What he is saying, however, seems rather strange. He is referring to enabling the First Minister or other Ministers to make representations if they are parties to an action, but that is not access. I think that the word "access" has a different meaning. There is still a problem in using the term "special access", because it must be special in contradistinction to other things. Representation is quite different from access.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

Even then, representation in a court is also access to it. We hope that the phrase "special access" strikes the correct balance between Ministers' legitimate activities while protecting the independence of the judiciary and ensuring that when there are special circumstances in the course of their duties requiring access to Ministers, those cannot be abused. Moreover, by virtue of clause 5(2), the new duties imposed by new section 1 to the 2002 Act have UK-wide territorial extent, so protection extends to the judiciary throughout the United Kingdom.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I welcome new clause 1(1), particularly its reference to the First Minister, the Deputy First Minister and Northern Ireland Ministers. It is particularly desirable to put clearly on the record the duty of Northern Ireland Ministers generally to uphold the continuing independence of the judiciary. I merely reflect that this underlines, too, how crazy it would be to have certain persons who were so closely linked with the greatest bank robbery in British history as Ministers.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

Some of the points that arise on the clause arose in the debate on clause 4. No one can argue with the general principle of the guarantee of continued judicial independence in Northern Ireland, but I am slightly concerned and puzzled as to why it should be thought necessary to have a reference in new section 1(4)(c) to "international court" when the provision refers to Northern Ireland Ministers and the judiciary. That point was raised by my hon. Friend Mr. Hunter during the previous debate.

More generally, I come to some of the issues that arose during the previous debate about European law and its impact on domestic law. In Northern Ireland, some of the implications of that have been to our detriment. Section 24 of the Northern Ireland Act 1998 states:

"A Minister or Northern Ireland department has no power to . . . do any act" which

"is incompatible with any of the . . . rights" in the European convention on human rights or within Community law.

At the moment, there is a considerable threat to planning law in Northern Ireland from a number of European directives and that has raised a number of concerns. We would strongly resist anything that increased that threat or undermined domestic law and jurisdiction of the courts.

More generally on judicial independence, in the light of our experience since the Anglo-Irish agreement of 1985, the notion of a duty on the First Minister and Deputy First Minister to uphold the continued independence of the judiciary in Northern Ireland is worth mentioning. Since that agreement, it seems to many people that it has been commonplace for the Government of the Irish Republic to have a say in the process of judicial nominations in Northern Ireland. Indeed, it is widely accepted that on at least one occasion, the Republic's view that someone should not be nominated prevailed. Viewed in that light, the concept of an independent judiciary seems somewhat abstract. If and when the Northern Ireland Assembly returns, it is unlikely that the process would be any less contentious or political because although removing the power from the Lord Chancellor more generally might make the process more transparent, only time will tell what the longer-term implications are.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

During my earlier comments, I explained the broader principles of why we advocate clause 5 as part of the Bill, and nothing that I said was undermined by the comments of Mr. Dodds. Far be it from me to become too deeply involved in some of the points that he raised. They are on the record and my ministerial colleagues will see them. I stand by my assertion that clause 5 should stand part of the Bill.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.