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Lord Maginnis of Drumglass moved Amendment No. 51:

The noble Lord said: My Lords, in Grand Committee we had an interesting debate on the issue of binding over to keep the peace and binding over to be of good behaviour. On that occasion I was totally overwhelmed by the Minister's citation to me of a 600-year-old law which I believe was the Justices of the Peace Act 1361. Even I do not remember that.

It was to some extent the fact that we were going back so far to justify something that appeared to me on the surface to be an infringement of human rights; that is, the binding over to be of good behaviour, that persuaded me to look at the measure more carefully. I was also moved by the fact that in the opening minutes of the Committee stage the noble Lord, Lord Smith of Clifton, berated the Government for the lack of awareness of human rights in the Bill. I thought that perhaps I could motivate those who sit adjacent to the noble Lord to some excitement over the issue on this occasion.

I discovered—I hope that I have interpreted it correctly—that binding over to keep the peace dates back to yesteryear and that, as the noble Baroness reassured me, it is often made subject to a condition, for example, that the person bound over to keep the peace shall not possess, use or carry a firearm. That measure pertains to the Firearms Act 1968. I discovered that formerly there was power to bind over a person to be of good behaviour in cases where that person's behaviour did not amount to a breach of the peace but was found to be contra bonos mores, which has been described as conduct which is,

    "wrong rather than right in the judgment of the majority of contemporary citizens".

That may be a contravention of Article 10(2) of the European Convention on Human Rights.

I draw the noble Baroness's attention to the judgment in Hashman and Harrup v UK (2000) 30 EHRR 241. I do not know what those figures mean, but the noble Baroness will. In that case, the European Court of Human Rights said that,

    "the nature of requirements imposed on a person bound over to be of good behaviour was insufficiently precise to qualify as a 'restriction . . . prescribed by law' under the ECHR, Article 10(2), so that binding over the applicants to be of good behaviour had been a breach of their rights under that Article".

Further investigation suggests that the power to bind over to be of good behaviour is not 600 or so years old but dates back only to the Justices of the Peace Act 1968. It is therefore for the Government to

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decide whether new legislation—particularly the new legislation we are discussing—should incorporate within it that vague and ill-defined binding over to be of good behaviour. If the conditions applying to that are wrong rather than right in the judgment of the majority of contemporary citizens, and if that is the basis on which the bound over to be of good behaviour element is included, one has to ask whether we are talking about contemporary citizens in terms of a specific area, or an area that would encapsulate the entire area of Northern Ireland, or whether it would extend beyond that into the United Kingdom as a whole. That judgment of contemporary citizens must be exceedingly hard to define.

I am certain that the learned noble Baroness will understand that over 30 years elements within Northern Ireland have become particularly litigious and will find any weakness or contradiction in the law and use it as a route to a metaphorical goldmine. On that basis, I appeal to the Government to look carefully at whether they are prepared to go to the wire on this particular issue, or whether a binding over to keep the peace which can be qualified by other legislation is the way forward. I beg to move.

Lord Smith of Clifton: My Lords, I am impressed by the diligence with which the noble Lord, Lord Maginnis, has researched into the legal archives. Although I agree with him that human rights are of vital importance and should be a crucial leitmotif throughout the Bill, without notice I do not have recourse to expert advice in order to form a judgment on what the noble Lord said. I look forward to hearing the learned noble Baroness enlighten me.

Baroness Scotland of Asthal: My Lords, I am most happy to do so. The noble Lord, Lord Maginnis, accurately referred to the case of Hashman and Harrup, but I want to put the matter in context. I explained the situation in Committee but I am more than happy to help again.

As noble Lords know, the amendment deals with the question of whether someone should be bound over to keep the peace and to be of good behaviour. In brief, Amendment No. 102 seeks to amend new Section 103A of the Judicature (Northern Ireland) Act 1978, to remove the power given to courts of record to bind over to be of good behaviour, but not to change the power to bind over to keep the peace. The noble Lord's memory was right: I said, and I say again, that this power has been available since the Justices of the Peace Act 1361. The effect of the amendment, therefore, would be to remove a power that has existed for centuries.

The purpose of new Section 103A is simply to put beyond doubt the fact that courts of record exercising a criminal jurisdiction will retain any power to bind over persons before them, which they currently

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possess. It is expected that a court, when making such an order, would be careful to specify what is required of a person,

    "to be of good behaviour",

in any particular case before it. The difficulty, as I understand it, with the Hashman and Harrup case was that there was a general assertion to be of good behaviour but no specification of how that good behaviour should manifest itself. The proposal is that when courts bind a person over to keep the peace and to be of good behaviour, they go on to specify, "In that, you are to refrain from or fail to do A, B, C and D". That will be the proper basis on which the exercise of that judicial function will be made. Then we confidently expect that any judicial officer so doing would be ECHR compliant.

Lord Maginnis of Drumglass: My Lords, I am not convinced that this is not a very liberal interpretation of the law. I detect that the Minister is slightly amused by my layman's assertion. Within the duality of this provision, binding over to keep the peace is adequate. It will, because it can be qualified, serve the purpose. Binding over to be of good behaviour is vague in terms of its qualification and geography, to the extent that I wish to press the amendment to a vote.

The Deputy Speaker (Lord Ampthill): My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it.

On Question, amendment negatived.

Clause 19 [Judicial oath or affirmation]:

Lord Glentoran moved Amendment No. 52:

    Page 13, leave out lines 28 to 39 and insert "take the oath of allegiance and the judicial oath or make the appropriate affirmation"

The noble Lord said: My Lords, the amendment goes back to the thorny problem of the oath of allegiance. I am back on my harpsichord, as it were. We should let sleeping dogs lie. We should stay in line with the agreement.

Why do the Government have to push the politics too far in this technically legal Bill? It is clear in the Northern Ireland agreement that various matters do not need to be—and, indeed, cannot be—changed. Northern Ireland is, despite the Good Friday agreement—within that agreement and outwith it—an integral part of the United Kingdom. That argument can be used in relation to a number of issues raised in the second half of the Bill. But the one part of the democracy of Northern Ireland which has to be independent is the judiciary. Criminal justice is part and parcel of a "totally independent system". By that we mean a system which is totally divorced from and independent of party politics and national politics of any kind.

Therefore, why should those in the judiciary carrying out their daily work in Northern Ireland operate under any conditions different from those

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which pertain in England and Wales? The answer is that there is absolutely no need. There is no need as regards politics. There is no need as regard the Good Friday agreement. Unless there are some funny, hidden ideas of which I know nothing, there is no obvious need. As the noble Baroness, Lady Scotland, knows only too well, the power and independence, and all that goes with that—the majesty of an independent judiciary—has to stem from a power somewhere within our realm. That power is our sovereign. No logical objective rhyme or reason has been given in Committee, or in any debate that I have heard in this House, as to why this part of the judicial system needs to change.

Judging by earlier remarks in debate, the situation could arise with judges sitting together in an appeal court who have operated under a different system. It breaks the unanimity of the British judicial system. Why do our Government wish to do so? I fail to understand. I beg to move.

9.15 p.m.

Lord Rogan: My Lords, I support the noble Lord. In doing so, perhaps I may speak also to Amendments Nos. 53 and 54.

The affirmation will be taken by the most senior office holders in Northern Ireland. There is a distinction between "upholding" and "according to". "Upholding" is a more positive assertion of interest than simply "according to". Although I may not take the issue to a vote, I suggest that the amendments tabled have validity. Those with responsibility for the administration of justice must uphold the continued independence of the judiciary.

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