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Session 2001- 02
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Standing Committee Debates
Justice (Northern Ireland) Bill

Justice (Northern Ireland) Bill

Column Number: 261

Standing Committee F

Thursday 7 February 2002


[Mr. Peter Pike in the Chair]

Justice (Northern Ireland) Bill

Clause 50

Law Commission

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.]

2.30 pm

Lady Hermon (North Down): 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.

The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Desmond Browne): 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.

Lady Hermon: 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?

Mr. Seamus Mallon (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

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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.

Lady Hermon: 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.

Mr. Mallon: 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.

Mr. Browne: 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.

Column Number: 263

2.39 pm

Sitting suspended for a Division in the House.

2.53 pm

On resuming—

Mr. Browne: 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—

Mr. Browne: 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.

Mr. Garnier: 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.

Mr. Browne: 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

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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.

Lady Hermon: 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.

3 pm


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