Clause 50 - Law Commission

Justice (Northern Ireland) Bill – in a Public Bill Committee on 7th February 2002.

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Amendment moved: [this day]: No. 198, in page 28, line 35, after 'Court', insert—

'either in Northern Ireland, England and Wales or Scotland.'.—[Lady Hermon.]

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs) 2:30 pm, 7th February 2002

I am delighted to see you back in the Chair, Mr. Pike. The Minister wants to intervene, but I shall recap for your benefit and say that we are talking about the establishment of the Law Commission in Northern Ireland. The purpose of the amendment is to widen the pool of High Court judges.

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

Before we adjourned this morning, I sought to intervene on the hon. Lady but ran out of time. I am not now in the presence of some of those who were in the Room then, especially the Front-Bench spokesman for the Conservative party, the hon. Member for Reigate (Mr. Blunt), so I am conscious that I may have to repeat myself later. I wanted to intervene to point out that the flexibility in the Bill allows for part-time or full-time appointments. We intend to follow the review's recommendations and make a part-time appointment.

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

I appreciate the Minister's intervention, although I am not sure that I agree with it. Lest anyone have the impression that we in Northern Ireland live in something of a legal quagmire, I should explain that the Law Reform Advisory Committee for Northern Ireland has operated since 1989. Its remit has been to scrutinise the civil law of Northern Ireland, with some exceptions, and to submit reform proposals to the Secretary of State for Northern Ireland. It is composed of part-time members.

I find it extraordinary that the possibility of a commission in Northern Ireland with five full-time members is still being contemplated. I explained this morning that, in the much larger jurisdiction of England and Wales, there are only five full-time members. In the Republic of Ireland, there are also five full-time members. Will the Minister explain why the Bill cannot state that the intention is for part-time members? How can he justify the possibility of five full-time members in such a small jurisdiction?

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

I have two points in relation to amendment No. 198. I tend to agree that the provision should be widened.

I find it difficult to understand the remarkable omission from the amendment of Ireland itself. As the years go on, I have no doubt that harmonisation of

law on the island of Ireland, whatever shape or form it takes, will increase substantially and will be relevant and beneficial to its people as a whole. I ask that that be taken on board, as it is crucially important. In many instances, harmonisation of law has started to proceed. We should bear that in mind when considering what may happen on the subject.

My second point is one of clarification of clause 51(4)(c). What is the official term for the Republic of Ireland? I assume that legislation always uses official terms.

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

In a later amendment, I shall try to widen the scope of consultation to incorporate other law reform bodies, including the Law Reform Commission of the Republic of Ireland. The amendment is confined to High Court judges in Scotland or in England and Wales because, as presently proposed, one member of the five-member commission will be a lay member, so only four members will have legal expertise. The Republic of Ireland has a written constitution and its legislation is quite different. It therefore seemed better to have a High Court judge from Scotland or from England and Wales.

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

I thank the hon. Lady. It is not inconceivable that the commission will be chaired by a High Court judge from Ireland, especially in light of the fact that a past Chief Constable of the Royal Ulster Constabulary was from Dublin. I am not making a political point, but in the interests of developing harmonisation, which will help everybody, we should keep doors open rather than close them.

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

With respect to my hon. Friend the Member for Newry and Armagh (Mr. Mallon), I am sure that we shall have an opportunity to debate the issue that he raised in connection with clause 51(4)(c). If you, Mr. Pike, call the amendments relevant to that provision, we shall have the opportunity to deal with some of those issues.

The hon. Lady draws our attention to what she suspects would be an unnecessary reduction of a scarce resource—that of High Court judges in Northern Ireland—by forcing one of them to become a full-time member of the Law Commission. That is not the import of the clause, nor is it the Government's intention. The hon. Lady does not seek to restrict it to a part-time appointment, but seeks to open it to judges from England and Wales, or Scotland. She would widen the pool of judges from whom the commission chairman could be drawn in order to ensure that the provision did not have the unintended effect that she suspects.

I thank the hon. Lady for her short description of the differences between the bodies of law applicable to Northern Ireland and to England and Wales, while recognising the significant similarities between them. That difference is important, but the system in Scotland, if not entirely different, is significantly different from that in England and Wales and Northern Ireland.

Sitting suspended for a Division in the House.

On resuming—

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 2:53 pm, 7th February 2002

Before we had to suspend, I was talking about the different nature of Northern Ireland law. It is common, if not universal, for bodies such as the Northern Ireland Law Commission to be chaired or presided over by a judge of the jurisdiction, who has skills and experience relevant to the application of the body of law that operates in that jurisdiction. It is presumably for that reason that the review—following the model that I think operates in England and Wales, and which certainly operates in Scotland—recommended that the commission be chaired by a High Court judge of Northern Ireland. It is certain that the skills and experience necessary to cope with the different nature of Northern Ireland law will reside in such a person. Although such skills and experiences might reside in a person from the other jurisdictions mentioned in the amendment, it is by no means certain that they would.

Mr. Edward Garnier (Harborough) rose—

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

I shall conclude this part of my argument before I take an intervention from the hon. and learned Member for Harborough (Mr. Garnier). The Government's position is in line with the review recommendation that it would be appropriate for the commission to be chaired by a High Court judge of Northern Ireland.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I apologise if the Minister, or other members of the Committee, have covered the following point already. Is the chairman of the commission a full-time appointment or a position that the High Court judge will hold at the same time as sitting as a judge on the bench? I ask only because the jurisdiction is small, although the legal issues may be interesting and complex. In London, the chairman of the Law Commission is a High Court judge on a full-time appointment. I cannot remember whether the appointment is for three, four or five years, but he ceases to sit as a judge.

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

That is a fine example of the incisive ability of senior counsel. If the hon. and learned Gentleman had been present this morning, he would know that that was the nub of the argument that the hon. Member for North Down (Lady Hermon) advanced to the Committee. However, no doubt it bears restatement.

The answer to the hon. and learned Gentleman's question lies in schedule 9, which relates to the Law Commission. Paragraph 2(1) states:

A person who holds judicial office may be appointed as a Commissioner without relinquishing that office.

That provision will allow a High Court judge who chairs the commission to be on a part-time appointment, whose terms will reflect paragraph 2(2).

The hon. Lady asked, reasonably, why it was not specifically stated in the clause that the appointment

would be part time. As it stands, the statutory framework allows flexibility. If it were specifically stated that the appointment was part time, that flexibility would not be allowed. I am aware that the Law Commission is intended to serve the people of Northern Ireland not only in the immediate future but for a long time to come. That flexibility may one day be welcomed by the people of Northern Ireland—indeed, it may be welcomed by the hon. Lady—if there is a particular issue that needs attention.

The review anticipated that the immediate needs of the people of Northern Ireland in respect of the Law Commission required a part-time appointment, but there is no point laying down a statutory framework that requires a definition of part time when we can do otherwise and allow flexibility.

I give the hon. Lady a clear undertaking that all her points have been recognised and that it is intended to make the appointment part time. I am sure that she is in favour of flexibility, so that the Law Commission can respond to any future needs, and that she will allow the Bill to remain drafted as it is.

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

I appreciate the Minister's lengthy and comprehensive explanation. My confusion arose from the fact that I managed to squeeze in time to examine the Law Commissions Act 1965. The Bill reflects the 1965 legislation establishing the Law Commission for England and Wales, which is deemed to comprise five persons who are intended to be full-time appointments. However, I appreciate the Minister's undertaking that it is anticipated that the commission will be part time, because I was worried about the fact that there are only seven High Court judges to service the entire jurisdiction of Northern Ireland. I appreciate the fact that he has taken that on board, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs) 3:00 pm, 7th February 2002

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,

(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.

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

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—

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

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.

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.

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

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

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.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 3:15 pm, 7th February 2002

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

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.

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

I thank the hon. Member for Newry and Armagh and the Minister for their helpful contributions. Nothing that I said was intended as a criticism of lay members and their valuable contribution in many walks of life in Northern Ireland.

Clause 50(4)(d) excludes people who have held judicial office or been barristers, solicitors or teachers of law in a university, and the purpose of the amendment is to prevent the exclusion of such people. I do not like the idea of excluding people who may have a contribution to make, but I have taken the Minister's explanation on board, as well as the points made by the hon. Member for Newry and Armagh. I beg to ask leave to withdraw the amendment, although I shall not give in so easily on the next one.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 242 in page 29, line 13, after 'representative', insert—

', including in terms of gender and ethnicity,'.

The amendment concerns clause 50 (6), which states:

In appointing persons to be Commissioners, the Secretary of State must so far as possible secure that the Commissioners (taken together) are representative of the community in Northern Ireland.

If members of the Committee reflect on last week's discussions, they may remember that that phrase occurred when we examined the appointment of lay members by the First Minister and the Deputy First Minister. When the phrase arose it was not amended, which concerns me. I want it added to the Bill that the term ''representative'' means

in terms of gender and ethnicity.

When I last mentioned the phrase ''representative of the community'', I specifically drew the Committee's attention to the Evelyn White case. The Lord Chief Justice, who is the most senior judge in Northern Ireland, made that decision, which concerned the meaning of the phrase ''representative of the community''. That phrase appeared in the Public Processions (Northern Ireland) Act 1998, which governs the Parades Commission. Currently there is not a single woman on the Parades Commission, although I am prepared to stand corrected. That is despite the fact—the judge referred to this in his judgment—that the background report, which is a little like the criminal justice review on which the Bill is based, was founded on the North report, which states:

The Parades Commission would need to have a geographical spread and both cross-community and gender balance. We were struck, on several occasions during our meetings, with the different approaches of men and women to the parading issue. We think that is important that women should have an effective voice on the Parades Commission.

When the phrase ''representative of the community'' in the 1998 legislation was interpreted in the Evelyn White case, the judge took the phrase in

its context as against the regular usage of the word ''community''. He ruled:

The phrase in question does not refer to gender or to the make-up of the population of the Province. It refers specifically to 'the community', which in the context of parades is constantly used to denote sectarian blocks.

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

I intervene on the hon. Lady at this point, because I am aware of the care that she takes in interpreting such phrases. For the benefit of the Committee, she should read that last sentence again. The important words are ''the context'', because the context of this Bill is entirely different.

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

I thank the Minister. I shall quote again:

The phrase in question does not refer to gender or to the make-up of the population of the Province. It refers specifically to ''the community'', which in the context of parades is constantly used to denote the different sectarian blocks.

It continues:

In the context of the 1998 Act, therefore, it is in my view a tenable proposition—

a submission from one of the lawyers is then referred to—

that paragraph 2(3) imposes a requirement only to ensure sectarian balance in the composition of the Commission.

The judge rightly considered the context of the 1998 legislation. The words ''gender'' and ''geographical background'' do not appear in that Act, so the term ''community'' could be interpreted as meaning the sectarian divide. That is particularly relevant when we have marches.

I certainly do not criticise the judge for considering the context in which the phrase ''representative of the community'' was used in the 1998 Act. I suggest that when any judge is interpreting this Bill, he or she should do likewise and take its context into account. When we earlier considered how the phrase related to lay members of the Judicial Appointments Commission, we did not set a context that related to ethnic minority or to gender. To ensure that ''representative'' includes women and ethnic minorities in Northern Ireland, I would like the context to be included in the Bill. That would be in keeping with the judgment, and would not be a criticism of Lord Justice Carswell, or his interpretation of the legislation.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

That was a decision by Lord Justice Carswell, so I wonder whether the hon. Lady could answer some questions about it. Was he sitting as a judge of first instance or in the Court of Appeal? Was the construction of the expression ''community'' the sole issue to be decided by the judge? Is not the decision special to the facts, and that construing the expression in the Bill would not necessarily be of any use? Given the judgment, what must have followed since, and the fact that criticism has already been made of the expression in another circumstance, is it necessary to add those words to the Bill?

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

Order. This is a little too long for an intervention. Perhaps the hon. Gentleman wishes to make a speech.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I do not think that the Committee would like me to make a speech. I will come to the last sub-clause of my point.

Would not the appointers of persons to be commissioners bear in mind the hon. Lady's points and those of the Lord Justice when interpreting their duty to ensure that appointments are representative of the Northern Ireland community?

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

I am regretting that I gave the hon. Lady the chance to give way.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs) 3:30 pm, 7th February 2002

I forgive you, Mr. Pike. The hon. Gentleman brings numerous points to my attention. First, I am willing to give him my copy of the judgment to read. In the interim, I can tell him that it was a decision in the High Court of Northern Ireland, Queen's Bench division. The interpretation of the phrase ''representative of the community'' in paragraph (2)(3) of schedule 1 of the Public Processions (Northern Ireland) Act 1998 is important. The context was different in that legislation, but it was included. We must take the opportunity to set the context in the Bill, by including the important phrase ''representative of the community''.

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

I welcome the amendment. I am glad to hear that the hon. Lady is adamant that she will press it to a vote; I shall vote with her.

The amendment highlights the question of representation that has been there since the beginning and will remain until it is dealt with. The amendment would require the layperson—one of the four members—to be representative of the community's ethnicity and gender composition. The layperson might wonder why that does not apply to the appointment of a barrister, solicitor or an academic.

Mr. Browne rose—

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

The answer to my hon. Friend's question is that the requirement for the commission to be representative applies to all the commissioners.

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

I thank the Minister for that observation. We have debated the issue before. Unless we pass an amendment that applies the requirements of representation of in an equal way, the equality that we seek will be left out of the Bill. I am sure that the Minister is right, and I have not found him to be wrong yet. However, one might make the following thumbnail sketch: the barrister might be a Unionist, the solicitor a nationalist—for want of a better word—the academic from an ethnic minority, and the layperson might make up the gender balance. If the Minister is correct, that is the formula. Once one tries to subdivide that, one enters a quagmire. That points out the previous and current difficulty. I voted for a similar amendment previously and will do so now. It is assumed that the provision does not refer to the appointment of those in the legal profession, but

that it applies to laypersons. That is the weakness. I am glad that the hon. Lady has tabled the amendment, and that we have an opportunity to stress that point. Will the Minister clarify how the requirement for representation is assumed in the manner that he outlines, and how it is effective?

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

This is one occasion when it is incumbent on the Government to explain why they would not accept a proposition that has been so forcefully argued by the hon. Members for North Down and for Newry and Armagh. We have spoken about the wording in earlier debates in Committee. It is simply not acceptable for the Minister to say that gender and ethnicity are de facto included, not least because, as the hon. Lady has shown, ''representative'' means something different in the context of the Good Friday agreement.

Any person involved in debates in this House on Northern Ireland would assume that the word ''representative'' referred to matters of religion and whether a person comes from a nationalist or Unionist tradition. I have made the point before that we risk enshrining the sectarianism that we are trying to get rid of by not addressing this kind of issue with amendments such as that tabled by the hon. Lady.

The Alliance party of Northern Ireland famously took the courageous decision to redefine itself temporarily as a sectarian faction to enable the First Minister, the right hon. Member for Upper Bann (Mr. Trimble), to be re-elected. That was an extremely difficult decision for the Alliance party, but we end up in such quagmires because we do not think about those who choose not to categorise themselves as Unionist or loyalist, nationalist or republican.

The challenge for the Minister is to explain why he thinks that, given all the precedents for the definition of ''representative'', we should feel confident that in five, 15 or 20 years we will remember this debate, and that all those responsible for implementing the Bill will bear our short discussion in mind and ensure that gender and ethnicity factors are included.

I should declare an interest. As hon. Members know, I have Estonian roots. I am realistic enough not to hold my breath and expect the amendment to require an Estonian always to be appointed. However, there are other, larger communities in Northern Ireland and other sections of the community who are perfectly entitled to be cynical about the prospect that the word ''representative'' will, on its own, create any ethnic or gender balance, given what has gone before.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Will the hon. Gentleman allow me to test him a little further on the matter? There will be five commissioners. I want to know, so that I can understand the thrust of the amendments, what is meant by the hon. Member for Montgomeryshire (Lembit Öpik), or what he understands the hon. Member for North Down to mean, in the Northern Irish context, by ''ethnicity''. There is a confusion, perhaps a deliberate one, between sectarianism and ethnicity. Can the hon. Member for Montgomeryshire, who is a noted explainer of these matters, help me?

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

Probably not. No, I can—that was a cheeky one-liner. Of course I can help the hon. and learned Gentleman. His question is fair. I assume that he has no difficulty in understanding the amendment's reference to gender balance—

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

But in most circumstances. I shall try to help the hon. and learned Gentleman by describing how I see the amendment. It is designed to create a clear distinction between what ''representative'' has tended to mean in the past in Northern Ireland legislation, and what it should mean now and in future. In the past, ''representative'' conventionally referred to the distinction between Unionist and nationalist. It was a binary distinction. Introducing ethnicity and gender means that consideration would be given not only to that sectarian distinction. The hon. and learned Gentleman will recall that I used the example of the Alliance party of Northern Ireland, which does not regard itself as being rooted in either of those traditional positions.

I shall give an example of the use of the word ''ethnicity''—if the hon. and learned Gentleman has a better one, I should be happy to hear it—to highlight the fact that we must not enshrine that old binary divide in legislation, which by definition should be about justice and equality.

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

I want to clarify what the hon. Gentleman means by ''ethnicity''. We have a large Chinese community in Northern Ireland of between 8,000 and 9,000 people. They make a tremendous contribution, quietly and discreetly, but it is not recognised. I would like them to be included in the commission. That is one example of who I have mind.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

The hon. Member for Newry and Armagh has caught my eye, Mr. Pike, so I shall give way to him.

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

The hon. Member for North Down said that ethnicity is never recognised. It has been for the past three years, because when the First Minister or Deputy First Minister had to make appointments, ethnicity was recognised at every opportunity. I am pleased to put that on record.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

The point has been well made. What is interesting about the hon. Gentleman's intervention is that the word ''ethnicity'' has currency and meaning in Northern Ireland. The First Minister and Deputy First Minister evidently operated on the basis that it was an important consideration.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

With respect to my hon. and learned Friend, I thought that the explanation of ''ethnicity'' given by the hon. Member for North Down was clearer than his, but it was a reference to only one ethnic group. If I recall it correctly, the hon. Member for Montgomeryshire's definition was, ''it is not bi-polar, and if you have a better word I am happy to use it.'' As we do not know what it is that he is trying to describe, that will be difficult.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

The staggering clarity of the hon. Member for Isle of Wight (Mr. Turner) leaves me in silent awe. Having accepted the example of the

Chinese community, which is substantial, I assume that my earlier example of the Estonian community did not count because there were not enough Estonians to qualify.

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

On the Estonian community, it was Harold Macmillan who complained about Margaret Thatcher's Cabinet that it had more Estonian members than old Etonians.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

That was worth it because, at the risk of digressing further, The Irish Times once said that people who live in glasnost should not throw Estonians. I apologise to the Committee for having allowed that slight digression.

What we are discussing is not a moot issue but an important point that will have practical consequences. Using the 20-year test that we have discussed before, it is clear that if, in 20 years' time if there is a dispute and the existing definition remains in place, people will say that the Good Friday agreement is about sectarianism. Right or not, that is what the Good Friday agreement implies.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 3:45 pm, 7th February 2002

The hon. Gentleman makes an interesting point. He uses the words ''sectarianism'' and ''ethnicity''. Does he regard sectarianism in the north of Ireland as a political or a religious factor? If it is regarded as a political factor, that has an ethnic root. He uses the words ethnicity and sectarianism at the same time, but the distinction between them goes to the heart of the point that he is trying to make.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

The hon. Gentleman makes a good point. I am sometimes guilty of being a little sloppy about interchanging those words, and he is right to highlight that. He pointed out the absolute importance of the definition of the words that we use in Bills, especially those about justice. That needs no further clarification from me, were I capable of providing it.

For once, I feel that I have gone on a little longer than I ought to have done. The hon. Members for Newry and Armagh and for North Down have clearly made the point. If the Government resist the amendment and we vote on it, the Liberal Democrats will feel entitled to support it.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I hope that the Minister will resist the amendment. It may have been moved with good intentions and a better understanding of the sociological, cultural and political difficulties that have historically affected Northern Ireland than I can bring to bear, but we must be careful of linguistic confusion. In many discussions in this and other Committees, the hon. Member for Montgomeryshire has provided light, as opposed to heat, but I fear that he has fallen into some error.

On the simple grounds of numerical representation, I urge the Government to reject the amendment. The hon. Member for North Down said that there were 8,000 or so Chinese people in Northern Ireland, and I am sure that she is right. If so, they can under no circumstances represent 20 per cent. of the population of Northern Ireland. Let us pursue that example. It would be impossible for the appointers of the commission to do as the amendment asks and ensure

that the members of the commission are representative of the ethnicity of Northern Ireland. To extend the point to its silliest, someone is either one of those 8,000 Chinese people or not. No man or woman on the commission can be representative of the percentage of the population of Northern Ireland made up of those 8,000 people.

Photo of Mr Harry Barnes Mr Harry Barnes Labour, North East Derbyshire

That argument works only if there were to be five members on the commission in perpetuity. There can be combinations of different numbers of members at different stages, so it will be possible to have percentage representation for different groups that operate under it.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I accept that we are presented with the problem of the word ''representative'', which is used in subsection (6). We are all supposed to represent our constituents, but under no circumstances can I be representative of them all. We simply have to do our best.

I do not want to labour the point. The amendment is well intentioned—I do not mean that in a belittling sense—and I am sure that it has caught the attention of those who will have to make the decision. However, I genuinely fear that it would be unworkable and make the work of the appointers almost impossible.

Photo of Gregory Campbell Gregory Campbell DUP, East Londonderry

I come to the subject from a community that has often been overlooked in appointments to non-departmental public bodies. My community sees itself as unrepresented on a variety of bodies, so I have considerable sympathy with the rationale that underlies the amendment. Like other hon. Members, I have considered the practicalities if the amendment were to be agreed to. Bearing in mind the size of the commission, if it were to be reasonably representative in terms of gender, one would expect there to be three females and two males, one of whom would be from an ethnic minority. If not, it would be open season for those who would argue that no reasonable attempt had been made to obtain three females and two males, one of whom happened to be from an ethnic minority in Northern Ireland. That would present major difficulties and make the task even harder. Therefore, while it is a bit bland to say that the body as a corporate entity has to be representative of the community in Northern Ireland, that is more workable than the words in the amendment.

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

I am grateful to the hon. Member for North Down; the amendment has proved to be a gateway to an interesting and important discussion. I shall concentrate my remarks on the amendment and on the arguments that I deployed, perhaps unconvincingly, on 31 January, reported at column 78 of the Official Report.

I shall resist the amendment—and therefore expect there to be a vote on it—so let me explain why. I am grateful to the hon. Lady for her researches, in particular those in relation to the Lord Chief Justice's decision. I do not want to get into a discussion that might be illuminating for the lawyers present about how persuasive or binding that decision might be. I accept that it is a persuasive decision; it

should instruct the Government's consideration of these matters. That decision was made in the context of parades in Northern Ireland. The hon. Lady is right to say that the expression ''representative of the community in Northern Ireland'' will, if the Bill becomes law, be interpreted in the context in which it operates.

The Government's view is that, in setting up a commission, they should keep under review the law that applies to all the people of Northern Ireland. That is not a restricted context—it is a very broad one—so my argument is that the definitions of ''representative'' and ''community'' will not be restricted to those that applied in the ruling of the Lord Chief Justice.

My second point is that the Government's position is clear. The concept of representativeness covers the issues that the hon. Lady seeks to include. I get the sense from the Committee, and from my experience in Northern Ireland, that the growing practice of requiring such bodies to be representative is welcomed in all parts of the community. It generates hot debates about whether, when people are appointed, they are representative, but nobody attacks the principle.

There must be some understanding that the ability of those appointing individuals to such bodies will be limited by the number of people to be on the body. There is a growing acceptance that not all bodies in Northern Ireland should be so extensive and unmanageable as to reflect everybody's wishes and definitions of ''representative''. There is also a restriction on who applies for the jobs and who is qualified to do the jobs, as we have discussed under other clauses. With all those caveats, I gather that there is a growing acceptance and approval of the phraseology and approach to the appointment to bodies in Northern Ireland.

Photo of Mr Bill Tynan Mr Bill Tynan Labour, Hamilton South

Does my hon. Friend accept that we are considering not the Lord Chief Justice's decision but that of the Secretary of State for Northern Ireland on the suitability of the people on the commission? On that basis, and bearing mind the situation in Scotland and the equality to be found in the Scottish Parliament, would he not express confidence that gender and ethnicity would be recognised by the Secretary of State?

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

I am grateful to my hon. Friend for directing my attention back home. I was tempted, as I prepared my response in my mind, to castigate other parties represented in the Committee for their failure to follow the practice of my party in ensuring gender representation. However, I do not want to get into that.

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

No, I shall resist that temptation.

I am confident that the Government's intention has been achieved in the Bill, and that the phrase ''representative of the community'' includes ethnic origin and gender. If the phrase is tested, as it was in the case brought to our attention by the hon. Lady, it

will be found to include both gender and ethnic background in this context.

I make one more point to the hon. Lady. She does not propose gender and ethnic background as exhaustive of the meaning of ''representative.'' I have a list that I wrote as I sat here and, although I shall not bore the Committee with its details, it includes all sorts of factors that I have taken into account when I have played some part in the appointment of people to bodies against the test of ''representative of the community.'' There is a significant and growing list of factors, and people sometimes persuade me that other factors should be taken into account. My list is by no means exhaustive, but I do my best to achieve representativeness when I have a role to play in such bodies.

That leads me to a concern whose detail the lawyers in the Committee may understand, while others may not. [Interruption.] It depends on how well I explain it. Those who have had to argue statutory interpretation before a court recognise the danger of narrowing a focus of a definition by including selected examples in relation to a general description. People would argue that, if Parliament chose to include certain examples, it sought to exclude others. I want the phrase to be interpreted by the court in the broadest possible sense in relation to the community of Northern Ireland. If I have explained that properly and people understand it, I am gratified. The debate seemed to become far too lawyerly when the nature of the decision was discussed in detail, and I did not want to fall into that trap.

It is the Government's intention that the phrase should be interpreted broadly, and for those reasons we shall resist including any examples in a definition of the phrase, as strongly as the hon. Lady and my hon. Friend the Member for Newry and Armagh may persuade us to do so, because that might have the unintended consequence of narrowing the definition.

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

I must say that I did not feel as if I had fallen into a trap in explaining our judgment of the body of law that has built up around the phrase ''representative of the community.'' I tried to explain why I was concerned and why I tabled the amendment. I did not think that it was a trap. I remain deeply concerned that if we do not include a reference to ethnicity or gender, the clause will not be interpreted as I would wish. Therefore, with reluctance but because I feel passionately about the issue, I shall press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 18.

Division number 15 Adults Abused in Childhood — Clause 50 - Law Commission

Aye: 4 MPs

No: 18 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 50 ordered to stand part of the Bill.

Schedule 9 agreed to.