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Lord Glentoran: The noble Lord said that the Bill is not due for implementation until after the next election. As I understand the situation, from Clause 86, it will not be implemented until such time as the Government decide that the situation is such that it may be implemented. I seek clarification from the noble Baroness.
Baroness Scotland of Asthal: The noble Lord, Lord Glentoran, is right when he expresses that view.
Lord Smith of Clifton: I shall read carefully what the Minister has said in Hansard and may well come back to this on Report. For the moment, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [Guarantee of continued judicial independence]:
Lord Desai moved Amendment No. 2:
- Page 1, line 6, leave out "continued"
The noble Lord said: In speaking to Amendment No. 2 I shall speak also to Amendment No. 4 which is grouped with it. These amendments relate to the issue of independence. Amendment No. 4 derives from the definition of independence of the judiciary from the United Nations principles of independence of the judiciary. It is a straightforward quotation from that document and therefore is self-explanatory.
With Amendment No. 2 I seek to remove the word "continued" because it is not necessary when talking about independence. I apologise to the Committee because I did not speak on Second Reading, but during that debate many noble Lords paid tribute to all those who have worked in the justice system in Northern Ireland, and I join them in paying that tribute. But as the Criminal Justice Review Group made clear, there are some differences of opinion about the question of independence. It is not necessary to bring forward those problems here; the past is past and the word "continued" is not strictly necessary. I beg to move.
Lord Glentoran: I have no argument with Amendment No. 2, but Amendment No. 4 is perhaps unfortunate. The legal profession—the judiciary—is one element in Northern Ireland that has never been criticised—never is probably too strong a word, but virtually never—for its findings and performance over the past 30 years. To suggest that we need to include in the Bill a direction to the judiciary to decide matters before them impartially is, perhaps I may say, tactless—without wishing in any way to be rude to the noble Lord.
Lord Mayhew of Twysden: I part company in the most gentle way from my noble friend Lord Glentoran because I do believe Amendment No. 2 presents a problem. When speaking to the amendment, the noble Lord, Lord Desai, justified it on the ground that the
word "continued" is unnecessary. I had thought, therefore, that the noble Lord would argue the point on the basis of drafting eloquence.However, the substantial reason for the amendment became clear a moment later when the noble Lord said that there are some differences of opinion, or words to that effect, as to whether judges are independent in Northern Ireland. I have no doubt about that whatsoever. I had rather gathered from the noble Lord that he too had no doubts about that. To the extent that there may be some doubt, then it is all the more important that Parliament should dismiss it by expressing its confidence in the continued independence of the judiciary; that is, in expressing its confidence that judges in Northern Ireland are independent at the moment.
With regard to Amendment No. 4, I very much endorse what my noble friend has just said. This is the very stuff of the judicial function and it would be otiose and verging upon the odious should we see fit to set them out for a judiciary in whom we have such confidence. I hope very much that this amendment in turn will be withdrawn.
Baroness Scotland of Asthal: I endorse many of the comments made by the noble Lord, and would say to my noble friend that it is right that this is a very sensitive issue. There is no doubt that, to date, the independence of the judiciary has stood Northern Ireland in very good stead. We certainly would do nothing and say nothing that could undermine or in any way detract from that. The purpose of the clause making specific reference to the "continued" independence of the judiciary is precisely because the judiciary is currently independent and must be seen to continue so to be. We respectfully suggest that in that context the word has some pertinence and added significance.
The clause already includes a duty on those responsible for the administration of justice to uphold the independence of the judiciary. The Bill also includes an oath in Clause 19 in which the judges promise to
- "do right to all manner of people without fear or favour".
Lord Desai: I thank all the noble Lords who have spoken on the amendment. My purpose was to highlight one or two issues. It hardly needs to be said that these are all sensitive issues when we speak on Northern Ireland and I recognise the sensitivities. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Glentoran moved Amendment No. 3:
- Page 1, line 6, at end insert "and the legal profession"
The noble Lord said: I tabled the amendment principally because of significant lobbying from the Law Society of Northern Ireland. The amendment simply affirms the importance of a genuinely independent legal profession as a whole. The existence of an 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.
This point has been made repeatedly by the Law Society of Northern Ireland and I have been struck by the strength of its case. It seems clear that an independent judiciary should be able to rely on an independent legal profession.
I am equally struck, reading Commons Hansard, by the flimsiness of the Government's case opposing this. I hope that I am correct in saying that the Government's principal objection to the amendment is that the implications for the regulation of a profession that is currently self-regulating are too far-reaching. On that basis they say that they will not give it serious consideration.
I do not see in the amendment the pitfalls perceived by the Government. These pitfalls rest on the assumption that there is some kind of absolute independence—that the legal profession is somehow independent from the law. Members of the legal profession in the UK are subject to the discipline of criminal law in the same way as any other profession.
The Bill includes a statutory guarantee of judicial and prosecutorial independence. The Government have rightly identified the independence of the judiciary and the prosecution process as a key issue in maintaining public confidence in the administration of justice, but I should be grateful if the Minister would explain why the legal profession has been excluded from this guarantee. Is there not a parallel need for the independence of the legal profession to be affirmed? I beg to move.
4 p.m.
Baroness Scotland of Asthal: I am more than happy to see if I can assist the noble Lord in relation to this matter. The Bill currently requires those with responsibility for the administration of justice to uphold the continued independence of the judiciary. This was recommended by the review because of the paramount importance of an independent judiciary. The idea of extending this provision beyond what the review recommended to include the legal professions has been debated in the other place, as noble Lords will know. The debate did not clarify what the effect of the amendment would be and the Government are reluctant to add provisions to the statute book when neither we nor anyone else are clear on what they will mean in practice. Perhaps I may explore a few of our potential concerns on the amendment.
The first is the concept of independence, which the noble Lord has already touched on. The independence of the legal profession is different from the independence of the judiciary. We think it would be confusing to combine them. Secondly, a statutory provision could have unforeseen side-effects, possibly interfering with the profession's self-regulation by introducing a degree of government regulation. I am not clear how those responsible for the administration of justice would be able to protect independence in this case. If I might ask rhetorically, what does independence mean in the context, for example, of solicitors working on litigation between two private sector clients?
I can understand, to some extent, the motivation for the amendment. The legal professions in Northern Ireland operate sometimes in very difficult circumstances. I can also see why noble Lords are suggesting that we offer some form of protection. However, we are wary about putting through Parliament legislation that commits us to an idea that has not been tested. One of the duties of government is critically to assess changes that are proposed by interested groups. In our view, the amendment does not pass that test.
I would be grateful if noble Lords would bear in mind that this clause should be seen in the context of Part 1 of the Bill, which makes radical changes to the means of appointment and removal of judges. In that context, Clause 1 has special resonance and we make no comparable changes to the structure of the legal professions. We believe that, at the moment, the independence of both professions is properly guarded by their respective bodies. There is no basis at the moment for an indication that we should make a significant change in that regard and bring greater distinction between the professions in the other part of Great Britain.
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