Justice (Northern Ireland) Bill

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Mr. Bill Tynan (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?

Mr. Browne: 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.

Mr. Chris Mole (Ipswich): Oh, go on.

Mr. Browne: 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

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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.

Lady Hermon: 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 No. 15]

Calton, Patsy Hermon, Lady
Mallon, Mr. Seamus O¨pik, Lembit

Barnes, Mr. Harry Blunt, Mr. Crispin Browne, Mr. Desmond Campbell, Mr. Gregory Clarke, Mr. Tony Dobbin, Jim Francois, Mr. Mark Garnier, Mr. Edward Hall, Patrick
Hayes, Mr. John Heyes, Mr. David Kilfoyle, Mr. Peter McIsaac, Shona Merron, Gillian Mole, Chris Stringer, Mr. Graham Turner, Mr. Andrew Tynan, Mr. Bill

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Question accordingly negatived.

4 pm

Clause 50 ordered to stand part of the Bill.

Schedule 9 agreed to.

Clause 51

Duties of commission

Mr. Mallon: I beg to move amendment No. 279, in page 29, line 27, after 'State', insert—

    'and the First Minister and Deputy First Minister acting jointly'.

The Chairman: With this it will be convenient to take the following amendments: No. 280, in page 29, line 33, after 'State', insert—

    'and the First Minister and Deputy First Minister acting jointly'.

No. 281, in page 29, line 36, after 'State', insert—

    'and the First Minister and Deputy First Minister acting jointly'.

No. 282, in page 30, line 2, after 'State', insert—

    'and the First Minister and Deputy First Minister acting jointly'.

No. 283, in page 30, line 4, leave out subsection (b).

Mr. Mallon: The purpose of the amendments is to try to ensure that the programmes of work of the Law Reform Commission will be subject to, and have the approval of, the First Minister and Deputy First Minister acting jointly, as well as being subject to the Secretary of State.

It is highly likely that much, if not all, of the work of the Law Reform Commission will relate to legislation in areas for which responsibility has been devolved to the Assembly. The provisions in the Bill according to which the Secretary of State alone will be responsible for approving its programme are not fully appropriate, as decisions will impinge on devolved functions. It is insufficient for the Secretary of State to consult only the First Minister and Deputy First Minister, and it is important that the latter should have powers equal to those of the Secretary of State in making decisions.

I know that the issue has some difficult implications. I am also aware that there could be a three-tier stage before devolution. The Minister confirmed yesterday that some of the Bill's provisions would apply before devolution, so there will be a staged approach. It will be a quantum leap for the political process in the north of Ireland to take control of these issues again, but I want to try to ensure that the procedures have the input and standing that they should have. The amendments not only place responsibility on the First Minister and Deputy First Minister, but involve them in decisions in a way that could help devolution—if and when it happens.

I make my final point in a political, rather than a disparaging spirit. The more we get away from Secretaries of State and Lord Chancellors, the more we shall be able to take on the responsibilities that come our way and which, I believe, we shall successfully carry out. That is why I tabled the amendments, and I await the Minister's reply with interest.

Mr. Browne: As a long-standing and committed advocate of devolution for not only Northern Ireland,

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but Scotland and other parts of the United Kingdom, I have some sympathy with my hon. Friend's remarks on transferring functions to politicians who are accountable to the people they serve, and I agree with him. I also understand that the reasoning behind the amendment reflects the review.

The Bill makes the Secretary of State responsible for approving the Law Commission's programme prior to the devolution of criminal justice functions, although my hon. Friend is correct to say that the commission will also have a remit in the devolved field.

The review team was clearly aware of the separate areas of responsibility for civil and criminal law, and recognised that structural complexities will precede the devolution of responsibility for criminal law. The review made it clear that the Secretary of State should be given responsibility for appointments to the commission, and we are following through that recommendation.

The review also recommended, however, that the commission's work programme should be agreed with the Secretary of State, the First Minister and the Deputy First Minister. During preparations for the Bill, it was concluded that complicated and extensive drafting would be required to separate out and precisely delineate in the Bill the responsibilities of the Secretary of State, the First Minister and the Deputy First Minister. We do not, therefore, want to take the amendments as they stand.

Given where the balance will lie in terms of the commission's work programme, we should place responsibility for the programme with the Secretary of State, as we did for appointments. In practice, however, we envisage that the Secretary of State will determine the programme in the reserved field and that the First Minister and the Deputy First Minister will do the same in the devolved field. That will require close consultation between the Ministers, and I am happy to give an assurance that such co-operation will take place. Indeed, I am prepared to go further and to draft a clear concordat between the First Minister, the Deputy First Minister and the Secretary of State, although it will obviously be for the First Minister and the Deputy First Minister to decide whether they want to express matters in that way. None the less, I give that clear assurance, in so far as I can, on the part of Secretary of State.

I also assure my hon. Friend that the Secretary of State will work closely with the First Minister, the Deputy First Minister and the Executive on the establishment of the Law Commission. If the First Minister, the Deputy First Minister and the Executive are unhappy about the commission having a role in the civil field before devolution, that would weigh heavily on our decision about when to commence the provisions. I should also clarify that, post-devolution, the issue will be subject to a transfer order, as we discussed. Which Minister takes the place of the Secretary of State in relation to those functions will be a matter for the Executive in the Assembly to decide.

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