Orders of the Day — Justice (Northern Ireland) Bill

House of Commons, 4 March 2002.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

On a point of order, Mr. Speaker. I do not want to delay the House, but while I understand that amendments were not published until Friday so that as many hon. Members as possible could contribute them, that has made it hard for Opposition parties to prepare our responses. We saw the selection list only after 1 pm today. Will you use your considerable influence, Mr. Speaker, in passing on to the powers that be our request for a little more consideration about the amount of time that we are given to examine complicated Bills such as this one?

Michael Martin (Speaker, Glasgow Springburn)

The hon. Gentleman will remember that I selected the amendments at the Speaker's conference at 12 noon. The Officers of the House disseminated the information as quickly as they could thereafter.

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move,

That the Justice (Northern Ireland) Bill, as amended, be considered in the following order, namely, new Clauses relating to Part 1, amendments relating to Clauses 1 and 2, Schedule 1, Clause 3, Schedule 2, Clauses 4 and 5, Schedule 3, Clauses 6 to 11, Schedule 4, Clauses 12 and 13, Schedule 5, Clauses 14 to 20, Schedule 6, Clauses 21 and 22, new Clauses relating to Part 2, amendments relating to Clauses 23 to 29, Schedule 7, Clauses 30 to 44, new Clauses relating to Part 3, amendments relating to Clause 45, Schedule 8, Clauses 46 to 50, Schedule 9, Clauses 51 and 52, new Clauses relating to Part 4, amendments relating to Clauses 53 to 62, Schedule 10, Clause 63, Schedule 11, Clauses 64 and 65, new Clauses relating to Part 5, amendments relating to Clauses 66 to 80, remaining new Clauses, amendments relating to Clauses 81 to 84, Schedule 12, Clause 85, Schedule 13, Clauses 86 to 92, new Schedules and remaining proceedings on consideration.

The motion proposes minor amendments to the previously agreed order of consideration. It is intended only to reorder the business so that it conforms more closely with the order of the Bill. The proposed grouping is designed for the convenience of the House.

Crispin Blunt (Conservative, Reigate)

The Opposition have no problem with the motion, although we do have long-standing and considerable arguments against the amount of time made available for discussion of the Bill. Important amendments have been tabled by the Government. The hon. Member for Montgomeryshire (Lembit Öpik) has pointed out how difficult it is to respond to Government amendments published on Friday and selected by your conference at 12 noon today, Mr. Speaker.

Clearly, the passage of the Bill has been thoroughly unsatisfactory. The hon. Gentleman's concern is but the latest example, although I must point out that it would have helped if he had not voted for the original programme motion and the knives inserted during Committee. If he had not done so, we might be considering on Report a Bill of which we had at least read the 32 clauses that we must now deal with today. I fear that important Government amendments may not be discussed in spite of their immense significance to Northern Ireland.

Edward Garnier (Conservative, Harborough)

Will my hon. Friend confirm that a great many clauses—possibly the majority of them—were not discussed in Committee and that tens of amendments and new clauses also went undiscussed because of the programme motions?

Crispin Blunt (Conservative, Reigate)

To be precise, 32 clauses and 7 schedules were not discussed. That is plainly unsatisfactory. The Select Committee on the Modernisation of the House of Commons is examining the way we legislate, and the Bill provides an example of our profound failure properly to do our job as legislators.

I do not hold the Minister responsible for that in any way. He conducted himself well in Committee, seriously considering amendments and replying to points with care and courtesy. I am delighted to see that many of the substantial number of amendments that I tabled on Wednesday were adopted by the Government as their own amendments on Thursday, which is a proper way to reflect what happened in Committee.

It remains a pity that the Committee was not able to complete its business. Indeed, that is more than a pity: it is a scandal. If I go on any longer about that, however, we shall have even less time. I am happy to support the motion.

Ian Paisley (DUP, North Antrim)

Important matters lie at the end of the list of amendments. It would be a tragedy if those matters were not discussed in the House. No real public discussion would have taken place of matters that all parties in Northern Ireland, no matter what view they take of the Bill, require to be debated.

It would be a terrible tragedy if the House had no opportunity to hold a thorough discussion of matters that are currently in the arena of controversy. This is the place where controversy should be aired and arguments put and debated if we believe in democracy.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

In supporting the motion, I want to make two brief points. First, I thank you, Mr. Speaker, for your clarification about the understandable restrictions on your time, although that indicates something that we should consider in future: it has been a tremendous strain on the Opposition parties to prepare our responses in the two and a half hours that were available. However, perhaps that matter is one for the Modernisation Committee rather than for us.

Secondly, as the hon. Member for Reigate (Mr. Blunt) rightly said, it was clear in Committee that the Under-Secretary took seriously the representations that were made, although I was concerned that, sometimes, the Government seemed a trifle inflexible about taking those points on board. I deduce from the Government's willingness to consider several of the amendments that were discussed but not accepted in Committee that they want to make amends on Report. That is healthy.

I hope that the Government will be able to provide clear justification where there are still differences between us. I am sure that will be achieved as the debate progresses.

As regards the limitations on time in Committee, it is true that at the beginning we supported the Government's programming timetable. In response to the comments of the hon. Member for Reigate, the Conservatives could have been a little more co-operative when there was an opportunity mid-way through the Committee stage to extend the time. It is perhaps disingenuous for the Conservatives to criticise others when they did not accept that opportunity, although we do not want to pursue that matter in detail now. I hope that, given the spirit of constructive dialogue that we enjoyed in Committee, the Report stage will be similarly constructive.

Question put and agreed to.

New Clause 1 — Appointment of Queen's Counsel

Crispin Blunt (Conservative, Reigate)

I beg to move, That the clause be read a Second time.

I hope that the hon. Member for Montgomeryshire (Lembit Öpik) has had enough time to consider his response to the new clause as it was tabled in Committee, although we did not reach it.

The new clause has been proposed because there was no consideration of the appointment of Queen's Counsel in the review and the matter is not dealt with in the Bill. However, the Bar Council of Northern Ireland wants to sort out the problem. In the course of my preparation for dealing with the Bill for Her Majesty's Opposition, I visited Northern Ireland. One of the people I met was Eilís McDermott, the chairman of the Bar Council of Northern Ireland, who briefed me in detail on the issue.

The immediate concern of the Bar Council of Northern Ireland is that the Lord Chancellor has announced a new Judicial Appointments Commissioner for Northern Ireland and has given him a role—as set out in the Lord Chancellor's letter of 9 July 2001 to the chairman of the Bar Council. It states:

"I consider the appointment of a Commissioner with specific responsibility for auditing, overseeing and monitoring all aspects of the existing Silk and Judicial appointments procedures in Northern Ireland would be a very positive step and intend shortly to announce my decision to appoint a Northern Ireland Commissioner".

It was envisaged that the role would include

"the audit of the existing processes and policies for appointing Queen's Counsel and the handling of complaints resulting from the application of those processes and procedures."

As that is an important matter, one would have expected the Lord Chancellor to have received a reply on the detail from the Bar Council of Northern Ireland. Unfortunately, the letter from the Lord Chancellor emerged only when people went through the papers of the late chairman of the Bar Council after his untimely death. In those circumstances, it is hardly surprising that there was no reply.

The vice-chairman, Henry Toner QC, wrote to the Lord Chancellor on 21 December:

"We do believe that changes need to be made. However we believe that we were entitled to be consulted about any changes in the procedures before decisions such as those indicated in your letter of 7 July 2001 were made. This has not happened.

Taking silk is inter alia promotion in our profession. The profession is therefore entitled to have a considerable input into how such promotion should be arranged. Even at this late stage, the Commission's role in this process should be put on hold until the profession has been allowed the opportunity to know precisely what you are proposing and until you have had our comments on those proposals and have had an opportunity to study our 'Silk Report'."

I have had an opportunity to study what the Bar Council of Northern Ireland calls its "silk report", and my new clause is an attempt to meet as closely as possible its recommendations for the appointment of Queen's Counsel within the set-up of the Judicial Appointments Commission established under the Bill. Specifically, the new clause says that the sub-committee for appointing Queen's Counsel should consist of the members of the Judicial Appointments Commission who come from the judicial and legal profession. That comes as close as is reasonably possible to the proposals in the Bar Council's report.

In paragraph 25, the silk report, which was finalised on 20 March 2001, says:

"The Committee accordingly recommends that the recommending authority charged with responsibility for the entire procedure from the publication of invitation to apply for appointment to the making of the recommendation should be a panel of persons comprising:—

(i) The Lord Chief Justice as Chairman.

(ii) A second Judge of the Supreme Court of judicature in Northern Ireland.

(iii) The Chairman of the Bar Council (or a nominee, being a Queen's Counsel, of the Bar Council if the Chairman for the time being is a member of the Junior Bar).

(iv) On the nomination of the Bar Council a second barrister of senior standing and having a significant practice preferably in an area different from that of the other barrister member.

(v) The Chairman of the Council of HM County Court Judges or a County Court Judge nominated by it.

(vi) A lay person appointed by the Lord Chief Justice on the advice of the Equality Commission for Northern Ireland if it is willing to accept such advisory role."

I accept that my proposal is not identical with that put forward by the Bar Council of Northern Ireland, but, given the constraints under which we are operating, it is as close as it could reasonably be.

Sylvia Hermon (UUP, North Down)

I ask the hon. Gentleman to bear in mind the fact that the Bill is designed to implement the recommendations of the criminal justice review in Northern Ireland, not those of the Bar Council. What he suggests would be outside the terms of the Bill and beyond its proper jurisdiction.

Crispin Blunt (Conservative, Reigate)

Plainly it is not outside the terms of the Bill because you, Mr. Speaker, have been kind enough to select the new clause for debate—and for Division if it is pressed and opposed. My suggestion certainly falls within the scope of the Bill. Its main purpose may be to implement the review, but that is not its only purpose. We now have an important opportunity to address related issues, of which this is a precise example.

I do not want to detain the House any longer. Under the structure that we have established for the appointment of Queen's Counsel, my proposal comes as close as it reasonably could to the Bar Council's recommendations. The Government may have reasons to resist the new clause at this stage, and I shall not wish to press it to a Division. However, I think that the structure I have suggested is workable. If the Minister suggests that it is not, we shall go away and think again; there may be an opportunity to reconsider the matter in another place.

This is an appropriate moment to examine the appointment of Queen's Counsel, and the role of the Lord Chancellor and the Secretary of State. It was the present Lord Chancellor who, to put it delicately, "expropriated" that duty from the Labour Government's first Secretary of State for Northern Ireland in 1997. He removed those responsibilities from her, for reasons on which we could speculate—although probably that would not add much to the present debate. The new clause would meet the Bar Council's need for an independent process run by the legal profession. As such appointments constitute the key promotion for barristers, this is an appropriate point at which to consider the subject.

Edward Garnier (Conservative, Harborough)

I shall be brief because I more or less agree entirely with what my hon. Friend the Member for Reigate (Mr. Blunt) said.

The Bar of Northern Ireland, or the corps of advocates of Northern Ireland, has the advantage of being much smaller than that of England and Wales, so it is easier to conduct the peer review necessary for those appointing Queen's Counsel to be satisfied that they are of a suitable quality. The Bar of Northern Ireland and possibly the Bar of Scotland—the Under-Secretary will be able to tell us about that—are still very much smaller than the Bar of England and Wales, so those who practise before the senior judiciary know each other and are more likely to be well known by the proposed membership of the body of which my hon. Friend spoke.

The only small point that I would make to my hon. Friend concerns the fact that Queen's Counsel from Northern Ireland appear in cases before the Judicial Committee of the House of Lords from time to time and probably more regularly than their counterparts in England and Wales. If the Lord Chief Justice of Northern Ireland were agreeable, it might be thought sensible for the Commission to consult the Judicial Committee to see whether those being considered for silk were known to its members and whether they had anything interesting or useful to add to the deliberations.

By and large, however, I am happy with the general thrust of what my hon. Friend has reported to the House, following his discussions with the Bar Council of Northern Ireland. To be a pedant, and to grease up to you, Mr. Speaker, I point out that the long title says that the Bill is to

"make provision about the law officers and other legal officers and the courts in Northern Ireland".

That seems to provide a perfectly good way in for this discussion because advocates and members of the Bar of Northern Ireland and of the Law Society of Northern Ireland are, in addition to being members of their profession, officers of the court. I should have thought that that was quite sufficient, Mr. Speaker, and I am sure that you agree.

Des Browne (Labour, Kilmarnock and Loudoun)

I infer from the contribution of the hon. Member for Reigate (Mr. Blunt) that, among other things, he seeks clarification of the role of the Judicial Appointments Commissioner in the process for appointing Queen's Counsel. I shall endeavour to give him that clarification in this short contribution.

The criminal justice review recommended that the Judicial Appointments Commission be established to deal with appointments to the judiciary and the magistracy only. The Bill implements that recommendation in full. The hon. Gentleman made the point, which the hon. Member for North Down (Lady Hermon) reinforced, that the review made no recommendations concerning appointments to Queen's Counsel. These are not judicial appointments, and I do not consider that it would be appropriate for them to be dealt with by the Judicial Appointments Commission. That is my fundamental objection to the new clause.

Furthermore, as the appointment of Queen's Counsel is made in the exercise of the royal prerogative, on the recommendation of the Lord Chancellor, I see no reason why Her Majesty's powers to make the appointment should be placed on a statutory footing or why existing ministerial responsibility should be transferred from the Lord Chancellor to the Secretary of State.

The review separately recommended the appointment of a Judicial Appointments Commissioner in the period running up to devolution. John Simpson, who has been appointed to the post, has a broader remit, which will include looking at the process for appointing QCs.

The hon. Member for Reigate sought to extrapolate the commissioner's role and remit by reference to a letter that had been sent to the Bar Council of Northern Ireland. In fact, the commissioner's role is properly set out and includes, among other things, monitoring existing processes and procedures for appointing QCs, handling complaints that result from the application of those processes and procedures, and recommending improvements and changes to those procedures to the Lord Chancellor.

That work has commenced, and having inquired today I understand that, as one would expect, Mr. Simpson is carrying it out in a fiercely independent and careful manner. No doubt he will make recommendations, as he is requested to do, to the Lord Chancellor in due course. That process is at an early stage, so it would be premature to anticipate his recommendations.

I have every confidence in the impartiality of the appointments process, but I hope that the commissioner's role will further enhance public confidence in that process. I would expect that the commissioner, in fulfilling his remit, will consult the Bar Council of Northern Ireland widely and in depth. I therefore ask the hon. Member for Reigate (Mr. Blunt) to withdraw the motion.

Crispin Blunt (Conservative, Reigate)

I am grateful to the Minister for his reply, and I shall accede to his request to withdraw the motion. I am also grateful to my hon. and learned Friend the Member for Harborough (Mr. Garnier) for reminding me that a particular concern has to be addressed relating to the size of the Northern Ireland Bar and how the system operates. I hope that the Minister will bear that in mind in any input that he has in the commissioner's consultations.

When the system operated under the aegis of the Secretary of State, before the Lord Chancellor came into play, it took only about two or three months from the application for silk to the conclusion of the process. It now takes a considerable length of time—more than eight months in the case referred to in the Bar Council's report. It is important to consider the Bar Council's concerns. It said:

"With such a small Bar as soon as an invitation to apply for appointment as Queen's Counsel is published speculation becomes rife not just amongst barristers but also amongst their major professional clients, namely the members of the Solicitors' profession. This can have very real adverse effects such as a decision on the part of a Solicitor forthwith to cease to instruct a Junior barrister regularly instructed in the past because of a perception on the part of the Solicitor that the Junior barrister has in fact or has in all probability applied for appointment as a Queen's Counsel and so will shortly be no longer available to render service as a Junior barrister. Such a disadvantage may always be the companion of the publication of such an invitation but in a small jurisdiction that disadvantage is much compounded if a very long period of time is allowed to elapse between the date of publication of the invitation to apply and the date of intimation of the outcome of application."

I would not have expressed that at quite such length. However, the point is that we are discussing a small Bar that can deal with such things rapidly in Northern Ireland, but it has now become ensnared with the processes that involve the Lord Chancellor. I hope that the debate on the new clause will have at least prompted further consideration of that issue, so I am happy to beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 1 — Guarantee of continued judicial independence

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 1, in page 1, line 6, after "judiciary", insert "and the legal profession".

We return to this subject following a debate in Committee during which I withdrew a similar amendment because the Minister was about to have further consultations with its main proponent, the Law Society of Northern Ireland. Without wishing to detain the House at length by recapping the debate in Committee, it is important for us to note just how wide is the alliance ranged against the Minister—unless, that is, he tells us later that the Law Society of Northern Ireland has withdrawn from the field.

The amendment has been signed by the hon. Members for Montgomeryshire (Lembit Öpik) and for Cheadle (Mrs. Calton), who were the only members of the Committee apart from the Minister to express even a smidgen of doubt, but who have plainly now been convinced by the arguments that we adduced in that debate.

The amendment arises from the very strong view expressed by the Law Society of Northern Ireland—in written submissions, and also orally, to me and others who have taken its advice on the provisions—that there should be a duty on those responsible for the administration of justice to uphold the independence not only of the judiciary but of the legal profession. I refer the House to the key element of the society's submission:

"The safeguarding of human rights standards is not just a matter of judicial independence nor (in the specific context of the criminal justice system) of an independent prosecutorial structure. The existence of a genuinely 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".

The society also said:

"The LSNI recommends strongly to the Government that an equivalent guarantee of the continued independence of the legal profession should be included within the Bill."

The amendment seeks to achieve that aim in the simplest possible fashion, by appending in respect of the legal profession a guarantee such as that which the Bill already seeks to provide with regard to the judiciary.

The Minister found that arguments weighed heavily against him in Committee, especially in his exchange with my hon. and learned Friend the Member for Harborough (Mr. Garnier), who intervened on the arguments that the hon. Gentleman sought to adduce about the consequences of including the word "independence" in respect of the legal profession. The hon. Gentleman could not speak in detail about any specific consequences that would flow from the introduction of a duty to uphold the independence of the legal profession. He said that he wanted to explore in consultation with the Law Society of Northern Ireland the question of whether the society, as the main promoter of the original amendment—and, indeed, the clause—would find that it had created a rod for its own back. He sought to present himself to the Committee as looking after the best interests of the Law Society of Northern Ireland and the Bar by suggesting that specifying the proposed duty in the Bill might somehow cause problems for them.

I look forward to hearing the Minister's response. He is well aware that the amendment deals with one of the issues on which there has been welcome unanimity across the entire field in Northern Ireland. The ad hoc Committee of the Northern Ireland Assembly managed to find an alliance ranging from Sinn Fein to the DUP and including all views in between.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

The hon. Gentleman refers to the ad hoc Committee. Can he give any indication how many of the people who served on the Committee were lawyers, and whether that has any relevance to their independence?

Crispin Blunt (Conservative, Reigate)

No and no; I do not have the slightest idea about the status of legal education of the members of the ad hoc Committee.

It is plain that the Law Society of Northern Ireland has found it extremely easy to convince a very wide range of people that upholding the independence of the legal profession and making that a duty in the Bill is a sensible way of proceeding. I am still waiting to hear from the Minister arguments that convince me otherwise. We did not hear such arguments in Committee, where I withdrew the amendment because the Minister had the opportunity subsequently to speak to the Law Society of Northern Ireland, but where I said that if, following those conversations, he failed to convince me, I would table and press an amendment on Report. I note that Liberal Democrat Members have put their names to the proposal and I have no reason to believe that other parties have changed their position.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

rose—

Crispin Blunt (Conservative, Reigate)

I hope that I am not about to be corrected.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank the hon. Gentleman for giving way again. I dearly wish to support him because independence should run from top to bottom in the process that we are considering. However, what might the legal profession be independent of?

Crispin Blunt (Conservative, Reigate)

The hon. Gentleman deliberately tries to draw me into difficult territory. It has been alleged that both sides of the community in Northern Ireland have exerted some influence on the legal profession. An example was given in Committee of a dispute between two clients and their lawyers. The law requires papers relating to one side to be discovered. It is plainly in the interest of the client whose papers are to be discovered for that not to happen. However, the lawyer who represents him would have a duty as an independent member of the profession to abide by the law and make the papers available to the other side. In that example, the lawyer-client relationship becomes subservient to the lawyer's duty to be independent and to stand up for his role as an independent member of the legal profession. I am grateful to my hon. and learned Friend the Member for Harborough for the example.

I cannot give specific instances and I shall therefore deal in generalities. That is probably best. However, the hon. Member for Newry and Armagh (Mr. Mallon) is plainly referring to the fact that allegations have been made that some members of the legal profession in Northern Ireland got too close to their clients in their political views and objectives, abused their legal position and did not maintain the independence of the profession.

The clause is aspirational rather than detailed. However, the amendment, which would provide for a duty to sustain the independence of the legal profession, is another prop to support such independence. It could work in many circumstances, but it is important in the circumstances of Northern Ireland. In Committee, my hon. and learned Friend the Member for Harborough asked what would be the consequences if we were considering not the Justice (Northern Ireland) Bill, but a Justice (Zimbabwe) Bill. The legal profession in Zimbabwe has to operate under different pressures to maintain its independence. It is under pressure from the state and from armed terror from other semi-state organisations. The case for trying to sustain the independence of the legal profession in those circumstances is beyond peradventure.

Everyone supports the independence of the legal profession. I have not presented arguments that went over exactly the same ground in Committee, but the hon. Member for Newry and Armagh will remember the discussions about the United Nations declarations and the special rapporteur. The Government must present a case against the amendment to convince hon. Members that it is not worth including in the Bill an exhortation to support the independence of the legal profession. After all, the measure places a duty on all those involved to sustain the independence of the judiciary.

I note that the hon. Member for Newry and Armagh did not say that he would not support the amendment, although I am not wholly convinced that I have his full support, and I would be grateful if he could clarify the position. The hon. Gentleman was, however, convinced—as were his party and all other parties in this House and in the Assembly—of the merits of putting such a measure into the Bill, so I hope that the Government will be as well. I look forward to hearing the report of the Minister's conversations with the Law Society of Northern Ireland, to see whether he has been able to identify with them whether the proposals would have any unintended consequences. I cannot for the life of me see that there would be any, and if the Minister is unable to convince me of his argument, I shall wish to press the matter to a vote.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I want to make one brief point on the matters raised by the hon. Member for Reigate (Mr. Blunt), both in Committee and today. I find it difficult to understand the type of society that he is envisaging in which the legal profession would be independent. I would first have to understand what it is to be independent from. I do not see any difficulty with members of the legal profession not being independent politically. As a matter of fact, when one looks around this House, and most other political forums, one sees quite a number of highly independent-minded members of the legal profession who have party allegiances. So the hon. Gentleman cannot be referring to that. If it is not that, what can it be?

We must be very careful, because on a previous occasion in a previous Committee, reference was made to members of the legal profession in the north of Ireland and, less than one week later, one of them was shot dead. I always have that in mind and I have no doubt that that is not what the hon. Gentleman was referring to. I find it difficult, therefore, to understand what this independence is. The legal profession is, by its very nature, aligned in many ways, and it always will be.

Let us posit the kind of question that will immediately be asked post-devolution. There will be appointments to be made, and those appointees will be drawn from people who have lived and worked in Northern Ireland all their lives. Does that mean that someone who was aligned with the Ulster Unionist party, the Democratic Unionist party, Sinn Fein, the Social Democratic and Labour party or—dare I say it—the Alliance party would automatically be disqualified from consideration for such appointments? I do not believe that that would be the case. Nor do I believe that that has happened in the past, from the foundation of the state to the prorogation of the Stormont Parliament, when the Attorney-General for Northern Ireland was de facto a practising member of the then Unionist party, which became the Official Unionist party and subsequently the Ulster Unionist party.

None of those Attorneys-General was independent in the political sense to which I think the hon. Member may be referring. Perhaps he could again try to help me with my difficulty in understanding what the independence to which he refers is independence of or from. I would be inclined to support him if he could give an indication of precisely the effect that the amendment would have, and of the reason behind it. I hope that he will take the opportunity to clarify the matter before the debate concludes.

Crispin Blunt (Conservative, Reigate)

I am able to answer the hon. Gentleman directly. The best way of doing so is to quote paragraph 3.53 of the review, which states:

"Principal 16 of the Basic Principles"—

the United Nations basic principles on the role of lawyers—

"also provides that governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. In his report on his mission to the United Kingdom in 1998, the Special Rapporteur on the Independence of Judges and Lawyers, Mr Param Cumaraswamy, expressed particular concern about the fact that lawyers in Northern Ireland who had represented those accused of terrorist offences had been subjected to intimidation, harassment or improper interference and had been identified with their clients or with their client's causes. The Special Rapporteur welcomed the Northern Ireland Law Society's decision to establish a complaints procedure to enable solicitors to complain to the Society about any agency within either the criminal or civil justice system which had allegedly impugned or threatened their independence, professionalism and integrity."

I cannot put it better.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank the hon. Gentleman for his compelling reply. I am grateful that he has had the opportunity to clarify the matter. I am totally at one with him—and with the Cumaraswamy report—in terms of the protection of members of the legal profession against the threats, intimidation, physical violence and, indeed, death that has been meted out to people in the north of Ireland. I thank the hon. Gentleman for his research and for the clarity with which he explained the matter to the House, which has brought much more definition to it.

Tom Harris (Labour, Glasgow Cathcart)

Does the hon. Gentleman agree that the responsibility to maintain the independence of the legal profession is entirely different from the responsibility that all Governments maintain of giving protection to the legal profession? Is not the weakness of the amendment that it does not clarify who is responsible for maintaining the independence of the legal profession? It is clearly the Government's responsibility to maintain the independence of the judiciary, but I fail to understand, perhaps because I have no legal training, how the Government can take on the responsibility of maintaining the independence of the legal profession. Surely that is completely different from maintaining the security and physical protection of the legal profession.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

The hon. Gentleman makes a valid point. Surely, however, it is the Government's objective to ensure that the legal profession is independent. And how better can one enshrine an objective than to put it in legislation? The hon. Gentleman is right that there is a clear distinction between the responsibility of a Government to protect those who are involved in the implementation of law and the profession's responsibility to protect its independence. In normal societies, that distinction would apply, but the north of Ireland has fallen in between those two positions for the past 30 years. On balance, it might be necessary to have the type of protection and influence—the good that the Government might provide—that the hon. Member for Reigate recommends.

Tom Harris (Labour, Glasgow Cathcart)

Does the hon. Gentleman agree that a provision to ensure the independence of the legal profession is perhaps out of place in a Bill such as this, as it is an aspiration rather than a course of action that the Government can pursue? Is not this type of amendment therefore completely out of place in a Bill such as this?

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Again, the hon. Gentleman is right in terms of the drafting of Bills. However, if he had had the pleasure of serving on the Committee that considered the Bill, he would have known that we were often told that aspirations are not the stuff of which legislation is made.

Tom Harris (Labour, Glasgow Cathcart)

May I inform the hon. Gentleman that I would have been delighted to serve on the Committee, but that I was otherwise detained on the Committee that considered the Proceeds of Crime Bill?

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I well understand the hon. Gentleman's reasons for not serving on the Committee, although I take his remarks today to mean that he is volunteering to serve on a similar Committee in the future. The question to which he has drawn our attention will raise its head in almost every debate that we have about independence, and especially the independence of the judiciary. The same points will arise when we debate later amendments, and I hope that those who are nailing their colours to the mast of the independence of the judiciary and the legal profession will reflect such views on later amendments. It is essential that we do not consider aspirations as something for which we cannot legislate—neither should we consider principles as something for which we should not legislate simply because of the difficulties of drafting.

The hon. Member for Glasgow, Cathcart (Mr. Harris) has spotted a difficulty with the amendment moved by the hon. Member for Reigate. I sympathise with the amendment, and I thank the hon. Member for Reigate for his clarification of it.

Sylvia Hermon (UUP, North Down)

It would be helpful if I could quote further from paragraph 3.53 of the review, which was referred to by the hon. Member for Reigate (Mr. Blunt). The review team said in heavy, bold type that it agreed

"with the Special Rapporteur on the Independence of Judges and Lawyers that government has a responsibility to provide the machinery for an effective and independent investigation of all threats made against lawyers and note the role of the Police Ombudsman if such allegations relate to the actions of police officers. Further, we endorse his recommendation that training seminars should be organised to enable police officers and members of other criminal justice agencies to appreciate the important role that defence lawyers play".

However, having considered Mr. Cumaraswamy's report, the review team did not follow it up by recommending that a provision should be written into the Bill upholding the independence of the legal profession. The review team specified other ways of dealing with intimidation.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

The hon. Lady makes a valuable point. It is possible that the legal draftsmen advised that it would be difficult, if not impossible, to find the wording to meet the objective that the hon. Member for Reigate has identified. On balance, I believe that the hon. Gentleman has a valid point and, on balance, I will support it.

Kevin McNamara (Labour, Kingston upon Hull North)

It would be helpful if we could know what has been done, following the recommendation in paragraph 3.53, to train the police on the issues mentioned. The independence of the legal profession is of the utmost importance, and its members should not be intimidated in any way.

I was on a Committee with my hon. Friend the Member for Newry and Armagh (Mr. Mallon) when the statement was made that was followed some time later by the death of Pat Finucane. We know from what they have said themselves and from public documents that the people responsible for the intimidation in that case were, in fact, employees of the state and of the Government. We know that intimidation of Rosemary Nelson also took place and we also know—this is well documented—of the comments made about defence solicitors on both sides of the divide and about who they were and what they were doing. It was said that messages should be conveyed. That is an important point.

It has been suggested that the Bill is aspirational. The whole of clause 1 is declaratory and aspirational. If we are to defend the independence of the judiciary, we must equally defend the independence of the legal profession from which the judiciary is drawn. I am only sorry that the hon. Member for Reigate (Mr. Blunt), in moving the amendment, did not give more details. He mentioned the discovery of documents, but it would be the responsibility of the solicitor to follow the procedures of the court.

I should like the Minister to tell us what protection is given to solicitors, who, after all, are officers of the High Court. Presumably they fall under the declaratory part of the clause dealing with the independence of the judiciary, because I am sure that it applies not only to judges but to all those involved in the administration of justice, with the judges at the top and the Lord Chief Justice at the apex. We need further exploration of precisely what is meant by the independence of the judiciary; how far it goes; and what its limits are. Does it apply merely to the person sitting on the Bench, or does it extend to the whole question of administration?

Des Browne (Labour, Kilmarnock and Loudoun)

The debate on this comparatively small amendment shows how interesting these discussions can be, and how interesting they were in Committee. Minor amendments can engage us for a significant time. The Bill requires those with responsibility for the administration of justice to uphold the continued independence of the judiciary. It is not possible for me to answer in a few sentences the question posed by my hon. Friend the Member for Hull, North (Mr. McNamara) about how far that stretches. In any event, I would not wish to be prescriptive, as that would be unhelpful. However, the meaning seems to me to be quite extensive. I am certain that anyone who tried to interfere with officers of the court would be in breach of their responsibility to uphold the continued independence of the judiciary.

This provision was recommended by the review because of the paramount importance of an independent judiciary. Amendment No. 1 deliberately goes beyond the review and would extend the protection to the legal profession. The amendment was debated in some detail in Committee, and I said then that I could not accept it until I understood more clearly what it was intended to achieve and until it had been tested to show its potential consequences. I do not accept for a minute that it lies with me to flesh out the amendment's intended or unintended consequences: it lies with those who seek to change the law to explain why it is necessary and what it is intended to achieve. I have endeavoured to do that at some length and in detail on other parts of the Bill.

It goes without saying that the Government fully support the independence of the legal profession, but it is another matter to include in the Bill declaratory statements that have unpredictable effects. I cannot agree to include such statements in the Bill unless I am confident that they are needed and that they will have the desired effects, and that, importantly, they will have no unintended consequences. I was not convinced by the examples given in Committee, even though they came from the hon. and learned Member for Harborough (Mr. Garnier), who is an experienced practitioner in the courts. With all due respect to the hon. Member for Reigate (Mr. Blunt), he gave the rather lame example of the discovery of documents. I was not convinced by that argument, and I believe that the other examples that have been given are already covered by existing law.

Above all, I am far from clear what this duty is supposed to mean. It is clear enough and accepted internationally that ensuring the independence of the judiciary is part of the duty of every state, but ensuring the independence of the legal profession has the potential to take us into all sorts of tricky regulatory questions. The example in the report of the special rapporteur is instructive. He commends internal regulation—self-regulation by the profession—as the answer to the problem, not a statutory provision.

It seems to me, and I have heard nothing to the contrary, that if the amended clause is to mean anything it must imply an extension of Government regulation to this area. Although I do not think that that is the profession's intention, the Law Society has expertly promoted support for an amendment along those lines.

I repeat what I said in Committee: I have read some supportive submissions and although I have yet to be convinced that the Law Society gave anybody detailed and adequate reasons as to why they should back the amendment, it has managed to raise that support. Consequently, I agreed to invite the Law Society to meet me to discuss the points for which it has gleaned support. I did so, and we had a constructive discussion on a number of matters, including my concern that there may be unintended regulatory consequences, which it would not welcome, from such a statutory provision.

The Law Society confirmed to me that it jealously guards self-regulation of the profession and thinks that important to its independence, which I understand and support. I also asked it to consider why it seeks to restrict the statutory provision to its members, as officers of the court, thereby excluding other officers of the court. Why are its members in a different position from other officers of the court? I am not saying that I convinced it, but I am pleased to report that I was persuasive enough for it to agree to reflect on those points and come back to me with responses.

I have yet to receive a response or any further representations from the Law Society, however, so my discussions with the amendment's principal promoter are not yet concluded. I remain to be convinced by its or any other arguments, so I ask that the amendment be withdrawn.

Crispin Blunt (Conservative, Reigate)

The Minister has not advanced the position at all since we discussed the matter in Committee. He says that the Law Society of Northern Ireland agreed to reflect and that he may have convinced it, but that, I fear, simply reflects its politeness. Indeed, had I been in discussions with the Minister, I might well agree to reflect on his point of view so as not to leave him with a disagreeable impression.

The Law Society of Northern Ireland put its points with singular robustness and force. Its submission says:

"The independence of the judiciary and the prosecution process is correctly identified as a key issue in maintaining public confidence in the administration of justice in this jurisdiction. This is no less so in respect of those charged with the assertion of rights within the judicial process. In a situation such as Northern Ireland where it is thought necessary to have a statutory statement and guarantee of the independence of the judiciary, there is a parallel need in the same context to affirm the independence of the legal profession."

For precisely the reasons to which the Minister and the hon. Member for Newry and Armagh (Mr. Mallon) alluded, I shall not get drawn into individual cases. The very example, the suggestions and the accusations that have been thrown around relate to previous discussion of individual cases. We all know what we are talking about.

The Minister alluded to unpredictable consequences—unintended regulatory consequences—but did not identify any. The Law Society places great value on the amendment and has managed to convince every single party in Northern Ireland that it is the right thing to do. The Bill is to assert the independence of the judiciary in the Northern Ireland situation and there appear to be no concrete reasons for rejecting the amendment.

Sylvia Hermon (UUP, North Down)

I want to tease out the hon. Gentleman's difficulty with the clause as drafted. Is his concern that people will not get a fair trial?

Crispin Blunt (Conservative, Reigate)

No. The central purpose of the amendment is to protect the independence of the legal profession. The hon. Lady's party colleagues, along with all the other members of the Assembly ad hoc Committee, agreed the following statement:

"In their evidence to the Committee, representatives of the Law Society of Northern Ireland . . . highlighted the important role that is played by solicitors in the criminal justice system. One of the key aspects of their role is that they exercise their responsibilities in a manner 'free from political, financial or other influences that may affect [their] independence'. This was recognised by the CJRG"—

the review group—

"in their report, which made particular reference to the role played by defence lawyers and the nature of their relationship with their clients, and the negative impact of a misunderstanding of that relationship."

Indeed, the second recommendation of that Committee, supported unanimously, was:

"That a new clause be inserted which acknowledges and safeguards the continuing independence and impartiality of the legal profession."

The Minister has not even begun to make a case against that.

Theresa May (Conservative, Maidenhead)

On a point of order, Mr. Deputy Speaker. Last week, on 26 February, the Secretary of State for Transport, Local Government and the Regions made a statement in the House in which he led Members to believe that personnel problems in his Department had been resolved. I learned this afternoon that Ian Jones, head of press at that Department, had been suspended. Have you, Mr. Deputy Speaker, received any indication from the Secretary of State that he wishes to come to the House and make a further statement about this worrying development?

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

I have no knowledge of the matter to which the hon. Lady refers, and I have had no indication that a statement is intended.

Andrew MacKay (Conservative, Bracknell)

Further to that point of order, Mr. Deputy Speaker—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. I remind the House that we have a tight schedule today, and that this is taking time out of it.

Andrew MacKay (Conservative, Bracknell)

Further to the point of order, Mr. Deputy Speaker. I shall bear in mind the fact that, as you say, we have a very tight schedule within which to deal with an important Bill; but is it not outrageous that three separate heads of press and media at that Department have been sacked or forced to leave? Is it not essential for the Secretary of State, immediately after our debates on the Bill—which I agree should be conducted speedily, and concluded by 10 pm—to return to the Dispatch Box? I am not suggesting that that should interrupt the main business, but it would enable us to get to the truth.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

The right hon. Gentleman has made his point, and I have nothing to add to the statement that I made earlier.

Eric Forth (Conservative, Bromley and Chislehurst)

Further to that point of order, Mr. Deputy Speaker—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. We have an extremely tight schedule, and we must move on. [Interruption.] I have dealt with the point of order. I do not wish to deal with further points of order relating to a point of order with which I have already dealt.

Clause 2 — Introductory

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move amendment No. 104, in page 2, line 5, at end insert—

'(other than the office of Lord Chief Justice or Lord Justice of Appeal),'.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following: Government amendment No. 174.

Amendment No. 169, in clause 5, page 4, line 35, at end insert—

'(8A) Without prejudice to subsection (8), the Commission must, as far as practicable, exercise its functions to select persons to be appointed or recommended for appointment in order to secure that the judiciary is reflective of the community in Northern Ireland.'.

Amendment No. 28, in clause 6, page 5, line 33, after "office", insert—

'for a maximum of three months'.

Amendment No. 70, in clause 8, page 6, line 23, after "by", insert "the Lord Chancellor or".

Amendment No. 29, in page 6, line 23, after "jointly", insert—

'with the agreement of the Prime Minister'.

Amendment No. 30, in page 6, line 30, leave out—

'the Lord Chief Justice or'.

Rosie Winterton (Labour, Doncaster Central)

Everyone is leaving. Was it something my hon. Friend said?

Des Browne (Labour, Kilmarnock and Loudoun)

And to think that I imagined they might be interested in legislation.

In Committee, the hon. Member for North Down (Lady Hermon) expressed a fear that the First and Deputy First Minister's order-making power in clause 2 could be used to bring the offices of Lord Chief Justice and Lord Justice of Appeal within the remit of the Judicial Appointments Commission. I assure the hon. Lady that that was neither the intention of the review nor that of our policy. Furthermore, any attempt to make the Judicial Appointments Commission responsible for those senior offices in the future would require a cross-community vote in the Northern Ireland Assembly, and the agreement of the Lord Chief Justice.

Although those are in themselves strong safeguards, I have decided to put the matter beyond all doubt by means of amendment No. 104. I am grateful to the hon. Lady for bringing it to my attention, so that I could concentrate on it. The amendment would make it clear that the First Minister and Deputy First Minister may not use their order-making power to bring the office of Lord Chief Justice or that of Lord Justice of Appeal within the commission's remit.

Let me now deal with amendment No. 174. In Committee, Members expressed concern about the fact that sub-committees of the Judicial Appointments Commission could be made up entirely of members who were not members of the commission itself. The thinking behind the original drafting of schedule 2 was that if committees and sub-committees were always required to include commission members, an unfair imposition could be placed on their time. However, we are now in a better position to assess the commission's likely work load, and accept that the degree of flexibility envisaged in the original drafting may not now be required. The amendment therefore makes it clear that when the commission delegates any of its functions to a committee or sub-committee, the committee or sub-committee must always include a member of the commission and, unless that member is a lay member, a lay member or person eligible to be one.

I turn now to amendment No. 169. The review suggested that those responsible for judicial appointments should seek to ensure that the judiciary is reflective of Northern Ireland society. My hon. Friend the Member for Newry and Armagh (Mr. Mallon) proposes putting that in the Bill. In drafting the legislation, we have included the merit principle which the review made clear should be the overriding criterion in making appointments. Unlike the various statutory commissions on which we have placed the statutory duty to ensure representativeness, I see some difficulties in applying the same requirement to the appointment of judges. I recollect that on more than one occasion in Committee I went into these difficulties in some detail.

The amendment makes it clear that merit is the overriding principle, but that is immediately put in jeopardy in the amendment. It is vital that the judiciary continue to be viewed with respect and high regard by all sections of the community. I fear that the amendment would allow insidious suggestions to be made about future appointees—for example, that they were appointed not on merit but to even up the numbers. That is not in the interests of justice in Northern Ireland.

I share the sentiment behind the amendment and I, along with all Members, wish the judiciary to reflect the community that it serves. The best way to ensure a reflective judiciary is by ensuring a suitably balanced pool of eligible candidates who apply for vacancies as they arise. My hon. Friend will know that the judges of the future come from the pool of lawyers—whether they be solicitors or barristers—Queen's counsels and law students of today. This collective group is already highly mixed in terms of gender and community background. With time, the strict application of the merit principle will automatically lead to where we want to go. I hope, therefore, that my hon. Friend will withdraw his amendment.

Sylvia Hermon (UUP, North Down)

The Minister will recall that on at least one occasion in Committee I mentioned that we already have a High Court judgment in the Evelyn White case in which the judge, quite rightly, took the interpretation of the words "representative of the community" from the context of the Public Processions (Northern Ireland) Act 1998. Will the Minister therefore go some way towards including words such as "representative" or "reflective" in the Bill, so that women and ethnic minorities will be included in judicial appointments?

Des Browne (Labour, Kilmarnock and Loudoun)

I thank the hon. Lady for her intervention. This issue exercised us on more than one occasion in Committee and I will endeavour to make myself clear. I repeat that I share the aspirations of all Members that the judiciary of Northern Ireland should be reflective of the community that it serves. However, I am adamant and convinced that that is best achieved by an appropriate fair and transparent system that operates on the basis of merit. I am reinforced in that view by the people who are coming through in the profession and their reflectiveness of the community of Northern Ireland. In my view, the future for reflectiveness and representativeness should be left to the principle of merit and the infrastructure set out in the Bill that ensures a transparent system which will allow the best lawyers who want to be judges, wherever they come from, to become judges.

Sylvia Hermon (UUP, North Down)

I appreciate the Minister's giving way again. This is just a small point. He said that the people coming through would be representative, and I take it that that means representative of women and ethnic minorities. How many women and members of ethnic minorities are coming through at any stage, at any level, in the judiciary in Northern Ireland?

Des Browne (Labour, Kilmarnock and Loudoun)

I do not have the precise figures and I will write to the hon. Lady with them. She will have her finger on the pulse of this better than I do, having taught some of those concerned recently. But having made inquiries, I am assured that, if anything, women make up more than 50 per cent. of those who have been seeking to join the profession; I say that from memory. It would probably be better for me to write to her about the precise figures. She is persistent and consistent on this issue, and rightly so.

The issue must be addressed across the legal profession and not just at the top. Unless the matter is addressed by the Law Society, the universities and the Bar Council, we will get at the top tokenism of the worst kind, which will interfere with the independence of the judiciary. It is my job in terms of the Bill to create an infrastructure and a process that will fiercely and jealously guard the independence of the judiciary. I do not believe that including in the Bill provisions that will allow people to argue that, whatever the merit of an individual candidate at some point in the future, he ought to be appointed to even up the numbers to create some perception of balance, will serve the people of Northern Ireland. I do not think that the hon. Lady is unconvinced by that argument, but I will write to her on her questions.

Amendment No. 28 would place a time limit of three months on the suspension of the Lord Chief Justice in a situation where the Prime Minister and Lord Chancellor were considering making motions for the presentation of an address to Her Majesty for his removal. We expect action under this clause to be a rare event, if ever. If action were ever taken, we hope that the necessary steps would be taken quickly. However, it would be a mistake to tie our hands too much in the way proposed. Clause 6 is only ever likely to be invoked in extremely serious cases. We cannot know for sure how much time a tribunal might take to report. I would therefore urge hon. Members to withdraw the amendment.

The effect of amendment No. 70 would be to give the Lord Chancellor a role in the removal from office of the Lord Chief Justice. The process of removal from judicial office is very much linked to the process of appointment. Given that the Lord Chancellor, after devolution, will not have a role in the appointment of the Lord Chief Justice—or, for that matter, of any member of the judiciary—it would seem inappropriate that he should have a role in considering removal from this judicial office. In Committee it was argued from some quarters that the Lord Chancellor should continue to have a role in the appointment of judges, even after devolution.

The Government's position was clear then and remains so now. It would be inconsistent to devolve that function while retaining a role for the Lord Chancellor. It would be equally inconsistent to retain the Lord Chancellor's involvement in the removal process once the responsibility for judicial appointments had been devolved. I ask therefore that the amendment be withdrawn.

Sylvia Hermon (UUP, North Down)

The First Minister and the Deputy First Minister, acting jointly, have to convene a tribunal for the removal of the Lord Chief Justice, the most senior judicial post in Northern Ireland. What will happen if the First Minister and the Deputy First Minister are unable to act jointly and cannot agree? Surely we should have a fall-back measure, under which the Lord Chancellor is able to convene such a tribunal. "We are not planning for failure" is not an appropriate answer.

Des Browne (Labour, Kilmarnock and Loudoun)

The answer will not be my stock answer, which was, "We are not planning for failure." This is a serious and important step that it is envisaged will be triggered in circumstances where the First Minister and Deputy First Minister can act jointly.

Amendments Nos. 29 and 30 seek to retain an inappropriate role for Westminster in regard to setting up a tribunal to consider the removal of the Lord Chief Justice after devolution. As I have said, the Government recognise that tenure is of central importance to judicial independence. We fully support the principle of giving full-time judges and magistrates tenure during good behaviour until statutory retirement. A properly constituted judicial tribunal is, however, a key part of securing a transparent and accountable judiciary, and clause 8 provides for such a tribunal.

Amendments Nos. 29 and 30 seek to replace consultation with the Prime Minister with a need to obtain his approval before a tribunal can be convened to consider removal of the Lord Chief Justice. The amendments are contrary to the spirit of the review and, more importantly, to the spirit of devolution. Although the First Minister and Deputy First Minister can convene a tribunal to consider removal of the Lord Chief Justice, clause 6 makes it clear that they cannot remove him on the basis of that tribunal alone. Only the Prime Minister and Lord Chancellor may do that, under clause 6, by making a motion for the presentation of an address to Her Majesty.

I am slightly mystified as to why the Prime Minister's approval should be required twice. It is sensible that the First Minister and Deputy First Minister should consult the Prime Minister when they consider convening a tribunal to remove a senior judge in Northern Ireland, but it would be unnecessary to require his approval at that stage as well as when a motion was to be made.

Crispin Blunt (Conservative, Reigate)

I support the Government amendments, which improve the Bill. The Government have recognised a difficulty by tabling amendment No. 104 to protect the Lord Chief Justice and the lords justice of appeal against being included in a schedule by any First Minister and Deputy First Minister with whom their relationship was unsuccessful. Equally, Government amendment No. 174 improves the Bill and I am greatly reassured that members of the commission will sit on the sub-committees. That is necessary, and I am grateful for it.

I assume that that change follows consideration within the Minister's Department of the work load that will be placed on the Commission rather than of how much delegation will be required. That provides satisfactory evidence that proper consideration in Committee improves legislation. It is a great pity that we shall shortly move on to discuss clauses that we never debated in Committee.

Amendment No. 28 raises issues about the length of time for which suspensions may take place. It deals with circumstances in which the Lord Chief Justice has been on the wrong end of a tribunal decision. Clearly, that would be extremely serious, and one hopes that it will never occur, and certainly that it will not happen regularly. Clause 6(8) states:

"If the Prime Minister and Lord Chancellor are considering the making of motions for the presentation of an address to Her Majesty in relation to the Lord Chief Justice, the Prime Minister may suspend him from office".

The point is that simply "considering" an address will give them the authority to suspend the Lord Chief Justice. If we are to protect his position against politicians who may act unfairly, and if we seek to uphold the independence of the judiciary, it is necessary to put a duty on those politicians to place the address before Parliament in a timely manner.

I can be persuaded that three months is not the right period. Producing the address may take longer, although I think three months fairly generous, given that the Prime Minister and Lord Chancellor would present an address only after a tribunal had taken place and most of the evidence on which Parliament would make a decision about suspension would already be in the open.

The purpose of the amendment is to protect the Lord Chief Justice from the arbitrary use of power under the Bill. I do not want to press the issue now; it can be considered at a later stage and the Government can decide whether they want to pick it up and run with it, as they have done with their amendments Nos. 104 and 174. They can make a judgment as to whether the position of the Lord Chief Justice would need protection in the extreme and rare circumstances to which I referred. I think that the Lord Chief Justice would need protection. The period of three months may be too long, too short or about right. That point can be subject to further reflection.

I hope that the Government will reflect on the matter and that they may be persuaded to consider it in another place and table amendments to protect the position of the Lord Chief Justice from the arbitrary use of power in extreme circumstances. One hopes that the provisions would never be used—I fully acknowledge that—but if they are to be set up, we must consider the protection of the independence of the judiciary. A provision along the lines of amendment No. 28 would do that.

Amendment No. 29 would require the agreement of the Prime Minister if the First Minister and the Deputy First Minister wanted to initiate a tribunal to consider the removal of the Lord Chief Justice. That distinguishes the position of the Lord Chief Justice from that of lords justice of appeal by making a higher test, as the requirement is only to consult the Prime Minister about a tribunal to remove a lord justice of appeal.

My argument runs counter to the Minister's. His point was that as the Prime Minister would have to agree to present an address to Parliament to effect the result of the tribunal we did not need to ask him at the beginning of the process. However, the removal of a Lord Chief Justice is an immensely serious matter, so there is a necessity for the Prime Minister to be convinced—at least prima facie—that he would be minded to present such an address following a tribunal. It would be extremely unfortunate if the First Minister and the Deputy First Minister consulted the Prime Minister, set up a tribunal to which the Prime Minister was opposed and—after consideration of the evidence—he did not want to make an address to Parliament.

Before a tribunal takes place, the case against a Lord Chief Justice is, in essence, the case for the prosecution. Usually, the tribunal would offer the Lord Chief Justice an opportunity to make the case that he should not be removed from office. Such a state of affairs would, of course, be extremely unhappy. It is therefore important that the Prime Minister's consent be obtained at the beginning of the process. The private or public evidence of misbehaviour by the Lord Chief Justice would be available to the Prime Minister—as it would be to the First Minister and Deputy First Minister—before the proceedings were initiated. The position of the Lord Chief Justice can only get better once he has the chance to answer the allegations made against him.

The Prime Minister should have the opportunity to say, "I am convinced of the weight of the case against the Lord Chief Justice before the start of the formal proceedings. I therefore do not agree to them." That is why I have proposed amendments Nos. 29 and 30.

I do not intend to press these matters at present. We did not get the chance to discuss them in Committee, but I have put them on the record. I hope that the Government will reflect on the amendments and adopt them as their own—as they have adopted other amendments and ideas during the Bill's proceedings. Obviously, our purpose here as legislators is to improve the legislation, and this is an opportunity to put those matters on the record and debate them.

On amendment No. 70, in the name of the hon. Member for North Down (Lady Hermon), I fear that I find myself in agreement with the Minister. I am sorry to disagree with the hon. Lady—

Sylvia Hermon (UUP, North Down)

indicated assent

Crispin Blunt (Conservative, Reigate)

It is indeed a frightful position to be in, and I am much more comfortable when I agree with her.

On the provisions and amendments concerning the role of the Lord Chancellor in the justice system of Northern Ireland, there is a difference between the hon. Lady's party and Her Majesty's Opposition. We take the same view as the Government's—that if justice is to be devolved and the Lord Chief Justice is the head of the judiciary in Northern Ireland, he must assume all the proper responsibilities. We will have another chance later today to explore some of the other duties that the Lord Chancellor retains under the Bill, and the Minister will be able to explain exactly what happens when justice is devolved.

On amendment No. 169, in the name of the hon. Member for Newry and Armagh (Mr. Mallon), I again found the Minister's arguments convincing. I am pleased that he is able to report to the House that the shape that the legal profession is taking in Northern Ireland will deliver the objectives that we all share. The people who today are law students, or young barristers and solicitors, will form the judiciary of tomorrow, and in the course of time the judiciary will inevitably reflect the community as we all want it to.

I accept the Minister's arguments about the potentially pernicious consequences of amendment No. 169, which would be wholly unintended. Merit must remain the first principle and rule in the appointment of the judiciary. That is connected with the arguments that we had in Committee about protecting the religious and cultural identity of members of the judiciary, and about tracing such information only for the group rather than for individuals. That is aimed at protecting their independence as far as possible.

I hope that the arguments in support of our amendments will commend themselves to the Minister—upon reflection. I also hope that that reflection will be rather more detailed than that which I suspect the Law Society undertook on the previous question.

Des Browne (Labour, Kilmarnock and Loudoun)

I shall be polite, at least.

Crispin Blunt (Conservative, Reigate)

I hope that the hon. Gentleman will be more than polite; I hope that he will reflect on what we have said and come back with amendments to address our concerns in another place.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I listened with interest to what the Minister said about my amendment, and I find it increasingly difficult to understand his underlying fear. Mine is not a pernicious amendment in any sense; it is a benign, gentle amendment, which reflects what the Minister says is the Government's intention. It also adequately reflects the position represented in the criminal justice review.

I feel that I should address two points that the Minister made earlier. He said that this gentle, innocuous little amendment, which is in tune with his objectives and those of the Government, could put the merit principle in jeopardy—I believe that those were his words. I am trying to think how that could happen, and I shall listen further to the Minister to find out. I await his explanation with interest, because I would have thought that, far from placing anything in jeopardy, my gentle, innocuous little amendment would do something else.

The Minister also said that he is convinced that the merit principle will automatically lead to a situation in which such an amendment will not be necessary. We have all thought that at certain times in our lives. Those of us who have lived in Northern Ireland for a long time thought it not just for a few years but for decade after decade. There are those in many walks of life who are still buying that idea and to whom it is still being sold, and quite effectively. We are told that the merit principle will automatically lead to changes in the civil service in the north of Ireland—changes in gender, ethnic groupings and community divisions. The reality is that those changes will take much longer than my lifetime, or what is left of it. We should not buy the notion that if we take these measures and say nothing about them, they will automatically lead to changes such as those described by the Minister.

I challenge both of the Minister's assertions because at the heart of the amendment is one word, "legitimacy"—the legitimacy of what we are trying to do. If the measures are to enjoy that legitimacy, there should be representativeness of the community in Northern Ireland. The review pointed that out clearly when it said:

"the extent to which the composition of the judiciary reflects the society which it serves is a confidence issue and has implications for its legitimacy in the eyes of many of the community. If there is a perception that judges come predominantly from a narrow pool, then there is liable to be concern that the way in which the law as a whole is developed may be unduly influenced by one particular set of values."

Those are profound words, and they are even more profound when they are applied to Northern Ireland because at the moment, regrettably, the judiciary is not representative of society as a whole. The Minister has no figures on that; the Government have no figures on it, but all the Members from the north of Ireland who are sitting here know that the judiciary is not representative. Let me be more explicit: women are almost completely unrepresented in the judiciary; ethnic groupings, which are large and growing in the north of Ireland, are largely not represented; nationalists are not fully represented and nor is the wing of Unionism which would tend towards a more robust approach to the Union. Those are facts of life, and they will not automatically change.

That is supposition because the Government do not monitor such data. They monitor such data in every other walk of life but there is a remarkable mystique surrounding this part of life which is reflected in the Bill. The Bill says that a lay appointment must be not only reflective but representative of the community, but an appointment to the judiciary cannot be either reflective or representative of the community. It is okay for the layman; it is not all right for the judge. Frankly, that is not all right for the people of the north of Ireland because we are all ultimately equal and we should all be treated with equality.

It goes without saying that I fully accept the importance of merit in making judicial appointments. Clause 5(8) states that the selection of a person for judicial appointments

"must be made solely on the basis of merit."

I agree with that. However, I and many others are concerned that, taken alone, the requirement to make appointments solely on merit might limit the ability to take the appropriate affirmation action recommended in the review.

Certainly, without a duty to secure a representative judiciary, in so far as is practicable, there would be no obligation to engage in those affirmative action measures, yet not one of them derogates from the merit principle in any way. The Government themselves have stated that they are committed to implementing those measures, and they are set out specifically in paragraph 6.85 and 6.11 of the review.

Sylvia Hermon (UUP, North Down)

I rise simply to draw the hon. Gentleman's attention to a provision in the agreement that clearly states that the British Government will have a duty

"to promote equality of opportunity in relation to religion and political opinion; gender; race",

among other things. Those words clearly impose a positive duty on the Government to take action to promote equality of opportunity for women and ethnic minorities. I hope that the hon. Gentleman will regard that as helpful.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I take the point that the hon. Lady makes, but I am not convinced. The agreement also obliges both Governments to ensure parity of esteem, but we shall discuss that matter later. To answer the hon. Lady directly, we are dealing with legislation and we have a duty to ensure that those who make such appointments have a duty to do so in a way that is not contrary to the merit principle, that is in tune with that principle and that reflects the community in the desired way. As the Minister said earlier, that has been done previously by imposing a duty on the appointing authority to ensure representativeness in so far as is practicable.

For example, the Secretary of State has a duty to ensure representativeness in so far as is practicable when making appointments to the Policing Board, the Parades Commission, the Human Rights Commission and the Equality Commission. I do not regard that as pernicious, nor do I regard any of those boards as pernicious in the sense that people were not appointed on merit. I believe that there is a substantial weakness in the argument that proposes that, if a Government face their responsibilities in legislating, somehow or other they derogate from the highest standards, including the merit principle.

I do not believe that the Policing Board was appointed on anything other than the type of merit standards that are required to keep that board afloat in Northern Ireland. I do not believe that the Parades Commission, the Human Rights Commission or the Equality Commission derogated from the merit principle in any way. I believe that we should challenge the Government's assertion that a gentle and innocuous amendment such as mine would somehow devalue the merit principle. It does not derogate from that principle; if it did so, whether in terms of the Policing Board, the Human Rights Commission, the Equality Commission or the Parades Commission, it would be illegal. I am not for one moment suggesting that the Government are acting illegally in respect of any of those bodies. However, we must ensure that proper regard is given to taking appropriate measures to help to ensure representativeness. Such measures could relate to public advertising, the operation of boards and the appointments process. The purity of the position that has been argued might emerge and what has been proposed might be effective, whatever it leads to over time, but I do not believe that that will happen. That has not been the experience in Northern Ireland.

My amendment is designed to impose a duty on people who make appointments to the judiciary. I do not think that they should be without such a duty; they should not have 52 cards to play with. They should not have a free hand because they have a duty to ensure that the judiciary is not only appointed on the merit principle, but reflects the community that it serves. Is that asking too much of any legislation? Is it imposing too much on any commission? I do not believe so. My amendment is fully consistent with the review's recommendation that

"it should be a stated objective of whoever is responsible for appointments to engage in a programme of action to secure the development of a judiciary that is as reflective of Northern Ireland society, in particular by community background and gender, as can be achieved consistent with the overriding requirement of merit."

What better way is there to state such an objective than to enshrine it in legislation? I believe that my amendment, gentle and innocuous as it is, achieves that and I recommend it to the House.

Patsy Calton (Liberal Democrat, Cheadle)

As it turns out, I want simply to express my support of the hon. Member for Newry and Armagh (Mr. Mallon), who has been infinitely more eloquent than I could possibly be.

I was pleased to hear the Minister use the word "reflective" on at least half a dozen occasions. I am very pleased that he did so, given the arguments that we had in Committee about reflectiveness versus representativeness when we discussed the need to ensure that lay members of the Judicial Appointments Commission reflected the community. I am pleased if he has accepted the arguments that were advanced. I hope that he has done so, as the word "reflective" is more precise in doing what we are trying to achieve and perhaps less ambiguous than "representative".

I would like to support the views expressed by the hon. Member for North Down (Lady Hermon). I agree that merit must be the principle on which judges should be appointed. But to argue that having a reflective group of people doing that job might mean that we end up with people who are not of the highest quality is to argue that women and people from ethnic minorities are less intelligent or less able to do their jobs. That is the current position, and it is nonsense. In Committee we argued strongly that positive action is needed to ensure that merit is recognised, because at the moment, in all sorts of ways, it certainly is not.

Des Browne (Labour, Kilmarnock and Loudoun)

What does the hon. Lady think that part 1 of the Bill is about?

Patsy Calton (Liberal Democrat, Cheadle)

I am sure that the Minister intends that merit should be recognised, but the problem is that leaving it out of the Bill means that it may not be. I hope that he will have another change of heart.

Kevin McNamara (Labour, Kingston upon Hull North)

I was surprised by my hon. Friend the Minister's comments, especially on the amendment moved by my hon. Friend the Member for Newry and Armagh (Mr. Mallon). I found nothing in it that seeks to undermine the independence of the judiciary or to prevent the appointment of men and women of merit from different communities.

I am worried about the fact that the very people who will adjudicate on matters involving equality, merit and the whole paraphernalia of human rights law in Northern Ireland will be the only people who are not subject to that legislation. It is nonsense to turn things upside down in that way. Nobody is trying to suggest that merit should go out of the window; certainly, my hon. Friend's amendment does not do so. It is in nobody's interests not to have judges of merit, distinction and independence. We want them to have all those qualities, but we also want them to be women and from ethnic minorities, to reflect the composition of the whole of society. As my hon. Friend said, they may have a background in the Democratic Unionist party, Sinn Fein, or whatever. If they have the qualities of experience, training and intellect, they will get through on merit, but they should also be reflective of society.

Judges will consider matters such as fair employment, human rights, the composition of the civil service and of local government and the operation of equality law in the private sector and in the professions, yet they will not be appointed under equivalent criteria. That is nonsense.

Des Browne (Labour, Kilmarnock and Loudoun)

My hon. Friend neatly encapsulates the contradiction in his argument. One cannot guarantee that an individual judge who hears such a case in any circumstances is reflective of society in himself or herself. That cannot be achieved.

Kevin McNamara (Labour, Kingston upon Hull North)

With the greatest respect, that is not truly applicable. For a start, judges are allocated cases in a way that takes account of such factors. More important, what matters is the whole ambience of the process by which they are appointed. It is nonsense to argue that that should not apply to judges, but should apply to the upper echelons of the civil service, the police, the Policing Board and various other organisations, and then to say that middle-aged, mainly Protestant people are going to be judges and that we are not going to try to change that reflection of society.

Andrew Turner (Conservative, Isle of Wight)

Did I hear the hon. Gentleman correctly? Did he suggest that when more than one judge considers a case, that bench of judges should be reflective of the community?

Kevin McNamara (Labour, Kingston upon Hull North)

No, the hon. Gentleman did not understand me correctly. What I said was that, when the judges are selected, there should be an ambience that accepts this particular method, in which they are reflective and representative of society as a whole.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Is not the hon. Gentleman saying that this is a matter of having a strategic commitment to reflectiveness in the entire system? To look at an individual case and say that a judge has to be one thing or another at that point does not negate the point that the hon. Gentleman and the hon. Member for Newry and Armagh have made. Does he not also agree that the Minister's resistance to this proposal is a good example of unjoined-up thinking, given that he himself has argued this case at other points in this debate?

Kevin McNamara (Labour, Kingston upon Hull North)

I could not have put it better myself.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

I call Lady Hermon.

Sylvia Hermon (UUP, North Down)

Thank you, Mr. Deputy Speaker. I was not quite sure whether the hon. Gentleman had finished, so I was playing safe.

I apologise to the hon. Member for Newry and Armagh (Mr. Mallon) if I did not appear to be helpful. I quoted from the Belfast agreement with the strong intention of being helpful to him. I believe that the Government should have a positive duty to promote equality of opportunity for women and ethnic minorities, and that that should be incorporated into the Bill by including words such as "representative" or "reflective". It was my intention to be helpful.

I want to go back to Government amendments Nos. 104 and 174, and to move the debate along a little. I appreciate the amendments that the Minister has tabled to deal with the ambiguity in clause 2—a subject that was raised in Committee. The clause states:

"The First Minister and deputy First Minister,"—

I hesitate to read the next two words—

"acting jointly, may by order amend Schedule 1 by—

(a) adding an office".

The amendment makes it clear that "adding an office" refers to an office

"other than the office of Lord Chief Justice or Lord Justice of Appeal".

I appreciate that, but the Minister and other members of the Committee will recall that I was concerned that High Court judges were listed in schedule 1 rather than being treated as being among the "most senior judicial offices" in Northern Ireland, as I think they should be.

The Minister was good enough to clarify the earlier ambiguity. Will he now clarify the ambiguity that still exists? If the First Minister and Deputy First Minister could, on a good day, agree to act jointly, could they omit an office such as that of High Court judge? If they were to omit such judges, what would happen to that office? Would it automatically fall into the category of most senior judicial appointments? What would happen if the First Minister and Deputy First Minister decided, by order, in their wisdom, to omit High Court judges? That appears to be an ambiguity that has been left unaddressed.

In tabling amendment No. 70, I proposed the alternative arrangement of the Lord Chancellor setting up a tribunal in the unlikely event of the removal of the Lord Chief Justice. I know that I do not have support for that proposal, but there seems to be a genuine problem here. It has been written into the Bill on so many occasions that the First Minister and Deputy First Minister will be obliged to act jointly. With the best will in the world, those posts might be occupied by two politicians who might not be able to act jointly, and there should be an alternative arrangement for very serious occasions such as the removal of the Lord Chief Justice. The fact that such an occurrence would be most unlikely gives me some reassurance that the First Minister and Deputy First Minister would take the responsibility seriously and reach agreement. In the light of that, I am quite happy not to press my amendment, although I should like the Minister to address the ambiguity that remains in clause 2(2).

Gregory Campbell (DUP, East Londonderry)

I take no particular exception to Government amendments Nos. 104 and 174, but I want to allude briefly to amendment No. 169, tabled by the hon. Member for Newry and Armagh (Mr. Mallon). The establishment of the Judicial Appointments Commission caused considerable discussion not only in Committee but among many people in Northern Ireland, because of the proliferation of commissions there and because of Her Majesty's Government's clear failure in the past to make any serious effort to ensure that commissions reflect the community.

I listened with interest as the hon. Member for Newry and Armagh outlined his perception of the difficulties arising from that failure accurately to reflect the community in Northern Ireland. I found myself asking in what other society there would be a fair and accurate reflection of the community in its judicial appointments, but I can only follow the hon. Gentleman's arguments about the commissions that he mentioned.

Within the last month the Government have accepted the need to redress the imbalance that existed in the Human Rights Commission. Rather than redressing it, however, they compounded it by appointing a number of people, none of whom reflected the community that my party represents. Unfortunately, the same applies to the Parades Commission. I would like to hear from the Minister how the Government intend to ensure that the Judicial Appointments Commission will, as reasonably as can be expected, be truly reflective of the community divisions that exist in Northern Ireland.

Des Browne (Labour, Kilmarnock and Loudoun)

I rise to deal with some of the points that have been raised in this debate. If I am not comprehensive in my answers, I shall endeavour to write to hon. Members on whose points I have not picked up.

I thank the hon. Member for Reigate (Mr. Blunt) for his support for the Government amendments. In relation to his own amendments, I am happy to give him the undertaking that I will reflect upon them. As he knows, when I say that, it is more than just being polite, although he periodically defines it as such to score political points. He knows that throughout my stewardship of my portfolio, I have considered everything that he has put before me. That does not mean that I have to agree with everybody, but I shall reflect on the issues that he has raised.

The hon. Member for Cheadle (Mrs. Calton) ought not to read too much into my use of the vocabulary in the amendment. She sought to invite me into an area into which you, Mr. Deputy Speaker, might chastise me for going, as it is not necessarily relevant to the amendments before us. The hon. Lady ought to be conscious of the fact that the use of the word "reflective" in this debate was a reflection of the use of the word in the amendment. I caution her not to read any more into it than that: the matter certainly does not bear extending in the way that she sought.

The hon. Member for North Down (Lady Hermon) asked a specific question, and I have had the answer to it confirmed. Should the First Minister and Deputy First Minister seek to legislate to omit any judicial office from the list in the schedule, they would be required to make alternative legislative provision for such an appointment. That legislation would, of course, require cross- community support, so it would not be possible for the First Minister and Deputy First Minister—by omitting only—to leave High Court judges in a position in which there was no appointments procedure for them. The judges would not automatically fall into the senior appointments category. The hon. Lady asked whether that would be the case, but it is perfectly clear from the Bill it would not. Alternative arrangements would need to be legislated for by those who sought to omit the judges in question.

The bulk of the debate has been concentrated on the amendment tabled by the hon. Member for Newry and Armagh (Mr. Mallon). The more he told me that his amendment was innocuous, the more I suspected that he did not believe it. Whether or not it is innocuous, the sentiments behind it are shared throughout the House and by the Government. I do not criticise the hon. Gentleman for seeking to achieve his objective, but I chastise him a little for slightly misrepresenting—totally accidentally—my argument in my opening remarks.

I did not seek to say—I do not think that the hon. Gentleman was trying to give the House the impression that I did—that the merit principle alone would resolve the problem. That was why I intervened on the hon. Member for Cheadle. We cannot debate this issue except in the context of the Bill. The whole of part 1, which is extensive, detailed and ground-breaking in terms of United Kingdom legislation, is designed to achieve a detailed and important infrastructure to ensure a transparent, open appointments system that allows those of merit to move into high judicial office, and other judicial office, in Northern Ireland.

To claim that I am saying to the House, directly or by implication, that if we have faith in the merit principle, it will deliver, is to misunderstand entirely the Government's position and mine as the Minister responsible. The review accepted that change, modernisation and a new structure were needed, and the objective of that new structure was the very one that the hon. Gentleman seeks. We want to attain that shared objective by the use of the merit principle in the context of that infrastructure.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I sincerely apologise if I have misrepresented the Minister's words in any way. I did not intend to. As a matter of fact, I am convinced that I did not, but we shall leave that to further judgment.

I agree with the Minister about the objective—there is no question of any hon. Member being at odds with the Government about that. Surely the best way to set about achieving an objective is to put it in the legislation rather than leave it floating in the ether, hoping that some of it will stick.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. Gentleman. I am sure that when he checks the Official Report tomorrow, he will discover that my recollection of what I think he said inadvertently is correct. However, we can now move on in the spirit in which we have debated these matters.

Bill Tynan (Labour, Hamilton South)

rose—

Des Browne (Labour, Kilmarnock and Loudoun)

Let me first expand on my point. There is a shared objective—and a shared sentiment—but a debate about how best to achieve it. The Government have firmly nailed their colours to the mast of the review's recommendations, and we endeavour to follow them as closely as possible. There will always be a difference of opinion about whether the recommendations have been properly translated into legislation. I accept that there is room for debate at the margins. However, the review recommended in elaborate detail an open and transparent structure to apply the merit principle—by which the Government have set their stock—to the appointment of the judiciary,

Bill Tynan (Labour, Hamilton South)

There is a deep feeling that using the merit principle alone will exclude the possibility of a truly representative judiciary in Northern Ireland. On the basis of the argument that has been put, would it not be wise to give comfort to those who feel so strongly about the issue that they have tabled this amendment?

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to my hon. Friend for giving me the opportunity to clarify my position further. I think I have made it clear in Committee and in the House on more than one occasion that I have faith in the review body's recommendations, but it is important to recognise that the review body dealt with the issue of the reflectiveness of the judiciary, as submissions were made on the matter.

As hon. Members including the hon. Member for Newry and Armagh have pointed out, recommendations 69, 89, 90, 91 and 92 deal with aspects of the issue raised in the amendment. Including aspirations in the Bill—my arguments have not been accepted, but there is merit in them—may accidentally have the opposite effect to that which the hon. Gentleman seeks. The innocuousness of the amendment may mask that problem, and the judiciary may be dragged directly into issues of political balance as a result. The contribution of the hon. Member for East Londonderry (Mr. Campbell) may be a forerunner to such a debate if we start to use such descriptive nouns collectively or individually in relation to judges.

Instead of depending on a statement of principle, as I am being urged to do, the Government set out their response to the recommendations on page 40 of their implementation plan. That response is to accept those recommendations: to accept that the Northern Ireland court service should take the lead responsibility in delivering them, and to set out in general terms what steps would be taken to achieve the objectives set out in the recommendations. Our response is not one of inactivity but of taking the issues forward in exactly the way that the review recommended.

Edward Garnier (Conservative, Harborough)

I was interested in the Minister's criticism of putting aspirations into the Bill, which is exactly the line of argument that I deployed against him when we considered clause 53 and the aims of the youth justice system. He took a different view then, but I shall not detain the House on that point.

The amendment tabled by the hon. Member for Newry and Armagh asks for a quota system, but one cannot have justice by quota system. One can have justice only by having dispassionate judges applying the law. The hon. Gentleman simply wants to include in the Bill his aspirations and political hopes concerning the appointment of the judiciary, rather than applying his mind to the real issue of how best to ensure that judges apply the legislation presented to them by the House and the common law.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful for the hon. and learned Gentleman's contribution. He is a paid-up member of the school of thought that there should never be a statement of principle in any piece of legislation. Other hon. Members in Committee and in the House always want statements of principle, and would be happy to replace all specific legislation with a series of such statements. I am happy to occupy the middle ground. When principles are appropriate and serve a purpose, they can be included. When they do not serve a purpose and they are just hot air, there is no point in including them. However, when there is potential for statements of principle to pose a danger—for the reasons pointed out by the hon. and learned Gentleman—it is better not to include them.

The Government's argument is that the appropriate way to respond to the review commission's recommendations is to legislate when there are good and persuasive arguments for legislation. That point applies to the whole of part 1. However, when issues such as reflectiveness are better addressed in other more practical ways, we should move to take other steps. I think that our position is sustainable.

Amendment agreed to.

Schedule 1 — Listed Judicial Offices

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move amendment No. 2, in page 71, line 9, leave out "District Judge (Magistrates' Courts)" and insert "Resident Magistrate".

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following: Government amendments Nos. 3 to 6, 110, 7 to 15 and 132.

Amendment No. 16, in clause 15, page 10, line 31, leave out "District Judge (Magistrates' Courts)" and insert "Resident Magistrate".

Government amendment No. 133.

Amendment No. 17, in page 10, line 32, leave out "District Judges (Magistrates' Courts)" and insert "Resident Magistrates".

Amendment No. 18, in page 10, line 33, leave out "District Judges (Magistrates' Courts)" and insert "Resident Magistrates".

Government amendment No. 134.

Amendment No. 19, in page 10, line 34, leave out "District Judge (Magistrates' Courts)" and insert "Resident Magistrate".

Government amendment No. 135.

Amendment No. 20, in page 10, line 37, leave out "District Judge (Magistrates' Courts)" and insert "Resident Magistrate".

Government amendment No. 136.

Amendment No. 21, in page 10, line 38, leave out "District Judge (Magistrates' Courts)" and insert "Resident Magistrate".

Amendment No. 22, in page 10, line 39, leave out "District Judge (Magistrates' Courts)" and insert "Resident Magistrate".

Government amendment No. 137.

Amendment No. 23, in page 11, line 2, leave out "District Judge (Magistrates' Courts)" and insert "Resident Magistrate".

Government amendments Nos. 24 to 26, 141, 149 and 164.

Des Browne (Labour, Kilmarnock and Loudoun)

These amendments relate to the Bill's provisions to rename resident magistrates as "District Judges (Magistrates' Courts)".

Essentially, there is only one substantive amendment in this group and that is amendment No. 110, which deletes clause 9, thereby retaining the title of "resident magistrate". The rest of the group are consequential on that. Reversion to the title of "resident magistrate" was suggested by the hon. Member for Reigate (Mr. Blunt) in Committee and the proposal was supported by the hon. Member for North Down (Lady Hermon). I am grateful to both for their contribution in that debate.

The Bill's provisions follow the review recommendation that was intended to demonstrate publicly that the magistracy is an integral part of the judiciary. The review group concluded that the term "resident" had no meaning or relevance in the modern context. These arguments, as with the other recommendations of the review, have some merit.

However, I have also listened to the view raised in the two consultation periods on the review. During the consultation exercise, the Resident Magistrates Association opposed the name change, pointing to the long history of the resident magistrate in Northern Ireland and, before that, in Ireland more generally. It is not our intention to cause offence to resident magistrates and remove a name that has been synonymous with effective justice evenly applied over the years. The title "resident magistrate" also has the advantage of being clearly understood and recognised. In addition, the resident magistrates do not feel the need identified by the review to demonstrate that the magistracy is an integral part of the judiciary. That point undermines the reasoning for making the change.

For these reasons, we have decided that, on balance, the greater merit lies in preserving the title "resident magistrate". I ask that the amendments be approved.

Crispin Blunt (Conservative, Reigate)

It is an enormous pleasure to speak to amendments that, last Wednesday and Thursday, stood in my name and those of my hon. Friends. I am delighted that the amendments have now received the support of the Secretary of State and his colleagues.

The debate on this issue was one of the most entertaining in Committee. We were diverted slightly by a discussion of the cultural history of the resident magistrate and of the books and the television series that relate to the post. The Minister and I were characterised as a couple of the protagonists in the stories, but I shall not go down that path as the discussion was not necessarily advantageous to me. I was characterised according to a brief summary rather than detailed knowledge.

The Minister has listened to the arguments and the House, resident magistrates and all those in Northern Ireland who understand the term "resident magistrate" owe him their thanks. He has been prepared to listen to sensible argument.

I hope that the hon. Member for Montgomeryshire (Lembit Öpik) is not still of the mind that he had in Committee. It is appropriate to remind the House that, in Committee, I read out paragraph 6.142 of the review as a classic example of the bureaucratic tidy mind at work. It is the origin of the recommendation to do away with the historic and well understood name of "resident magistrate" and to replace it with whatever ghastly appellation was thought up. Sadly, the hon. Gentleman was not in Committee when I spoke, but he soon returned to say:

"It is worth remembering that a strong justification for that exists."—[Official Report, Standing Committee F, 29 January 2002; c. 47.]

He then referred to paragraph 6.142 and read it out again.

I wish to caution the hon. Gentleman. If he wishes to support the bureaucratic tidy mind, he may have a problem. If such a mind gets to work on the policies of the Liberal Democrats with all the inherent contradictions that exist, there might not be much left at the end of the process.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

If the hon. Gentleman continues to insult my party, I warn him that I may read out his speech in its entirety yet again.

Crispin Blunt (Conservative, Reigate)

I would be very happy for the House to be so enlightened, but I fear that you, Mr. Deputy Speaker, would not support the hon. Gentleman through the whole of that process.

The Minister and I have come at this issue from separate directions, which is why several of the amendments that I tabled on Wednesday now appear with the Secretary of State's name attached to them. However, one or two of them do not have his name attached to them, and, although I condemned the bureaucratic tidy mind a moment ago, I am slightly concerned about the bureaucratic tidiness of the exercise. For example, I draw the Minister's attention to what is now Government amendment No. 132 and amendment No. 16. The difference between those amendments appears to be whether the term "resident magistrate" should take capital letters in the way that it normally does in the Bill.

It has also struck me that there were one or two minor complications with the Government's approach. I imagine that the Minister will ask me to withdraw the amendments that are in my name and those of my hon. Friends alone on the assumption that the Secretary of State's approach is utterly comprehensive. In an effort to ensure that the exercise that I undertook was thoroughly comprehensive, I called upon the assistance of servants of the House in drawing up my amendments. I do not want to pay disrespect to them, but I will accede to the request that I assume that the Minister will make. However, I suspect that the servants of the House may be right on one or two matters that the Minister and his officials may have got wrong. That point may best be settled over a small wager in one of the bars of the House.

Des Browne (Labour, Kilmarnock and Loudoun)

Unfortunately, as I am never in the bars of the House, I will not be able to have that wager with the hon. Gentleman. He anticipates my advice, which is that the amendments in the name of the Secretary of State will be comprehensive in their effect. However, as the hon. Gentleman knows, such matters are constantly reviewed and reconsidered so, if my advice turns out to be wrong, there will be an opportunity to correct things.

Crispin Blunt (Conservative, Reigate)

I am grateful to the Minister for that assurance. I will therefore not press the amendments to a vote. However, the provisions are worth checking and, if it is necessary to get them technically correct, it might be appropriate to do that in another place.

The debate on this issue—particularly the one held in Committee—and the way in which the Minister has listened to the representations made to him is an exemplar of how the House should go about its business. The friendly tone of the debate was not what many people outside the House expect from legislators with different philosophical views and from different parties. I think that we have come to the right answer. I am glad that the Government support the amendments that we originally tabled, and of course we will support them.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I am against the amendment for three reasons. First, the review body was to the point:

"We recommend that legislation be passed to redesignate resident magistrates as district judges"—

full stop, clear, sharp and unambiguous. The recommendation was

"intended to demonstrate publicly that the magistracy is an integral part of the judiciary."

It is an inherent, working part of the judiciary, not some quaint adjunct to it that lives on in literary nostalgia. That is an important point.

The second reason is that the term "resident" has its origins in the 19th century, when there were particular reasons for wanting office holders to live in the district where they held office. The review makes that point, and there are interesting reasons for it. In the 19th century, it was difficult to live in parts of rural Ireland, north and south. That coincided with what became known as the famine, when the population of Ireland went from 8 million to 4 million.

That was not the only reason why the term "resident magistrate" was introduced. It was also to ensure that during that period those living in the country were available to dispense law. I do not mean living in the area or the region, but in the country of Ireland, however it is designated. What is the relevance of the term "resident" as of now? The review says:

"It has no meaning or relevance in the modern context."

Charming though it may be in Somerville and Ross and the Irish RM television programmes, it is not the folk experience of many. I am against the amendment for those two important reasons.

The third reason is that we are involved in change, which will help to provide confidence in and a new beginning for criminal justice in Northern Ireland. To some the term "resident magistrate" has the air of big house justice about it: justice dispensed on the community, not from within it. The term may have been appropriate at some time, but I believe that it is inappropriate now. That is a much more important consideration than the fondness that "resident magistrates" have for their traditional name. I fully understand that they like to be known as RMs, because if the legislation stands as the Government have written it, they will be known as DJs, and that would not be quite the same. 6.15 pm

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I feel betrayed by the Government on these amendments. I shall not read out paragraph 6.142 of the review again, as it can be read twice within two pages of the Official Report of the Standing Committee. I defended what I thought was the Government's position only to be betrayed and have the political rug pulled from under my feet by the Minister, who decided to support the Conservatives after all. I have smarted from that, because although the Government have been persuaded by the Conservatives, like the hon. Member for Newry and Armagh (Mr. Mallon) I have not. It would be a bridge too far for me to flit like a flag in the wind merely because the Minister has decided that the hon. Member for Reigate was correct and has followed him down this path.

As I said in Committee, the serious point concerns symbolism. Symbolism can appear anywhere and can be interpreted in any way that people choose. The hon. Member for Newry and Armagh has made the substantive point on this subject. I do not think that it is the core issue in the Bill, but I shall provide the hon. Gentleman with some reassurance and consolation at this difficult time, because like him we feel somewhat betrayed by the Minister. However, we shall find it in our hearts to hate the sin and love the sinner.

Edward Garnier (Conservative, Harborough)

Debates on Northern Ireland are littered and all too frequently larded with expressions such as "betrayal", and it is wholly inappropriate for the debate on this clause to be concerned with betrayals. The fact that the Liberal Democrat spokesman on Northern Ireland has been wrong-footed does not constitute a betrayal, although I congratulate him on being in Committee rather more often than the Prime Minister is in the House of Commons, which in both cases is not very often.

The issue is not about 19th century big house justice.

Steve Pound (Labour, Ealing North)

Of course it is.

Edward Garnier (Conservative, Harborough)

Simply to shout back "Of course it is" is not an argument, especially from the hon. Member for Ealing, North (Mr. Pound). The hon. Member for Newry and Armagh (Mr. Mallon) is worried about acronyms and about RM reminding people of 19th century big house justice. DJ may to youngsters such as the hon. Member for Ealing, North mean disc jockey, but to those more familiar with the big house it may mean dinner jacket, so I do not know whether the hon. Member for Newry and Armagh is getting much further.

Steve Pound (Labour, Ealing North)

What is a dinner jacket?

Edward Garnier (Conservative, Harborough)

Something worn by waiters.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I am sorry to return to this point, but I think I heard the hon. and learned Gentleman imply that my attendance in the House was not very frequent. He may be interested to know that according to a Plaid Cymru survey I was the Member of Parliament who made the most speeches and the most interventions from anywhere in Wales.

Des Browne (Labour, Kilmarnock and Loudoun)

What about from here?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

From the House. I hope that the hon. and learned Gentleman's comments were meant in jest, not to cause offence.

Edward Garnier (Conservative, Harborough)

I am sure that plenty of sheep in Montgomeryshire make more noise and more sense than the hon. Gentleman, but there we are. The point I made was not about his attendance in the House, about which I know very little, but about his attendance in the Standing Committee. However, on the few occasions that he was present, he made extremely valuable contributions.

Let me come to the only serious point that I want to make on these amendments, in addition to congratulating the Front-Bench spokesmen for the Government and the official Opposition on their ability to agree something. In the Access to Justice Act 1999, the Government changed the designation of stipendiary magistrates to "district judges (magistrates courts)" for a number of reasons, one of which was that the old stipendiary magistrates wanted to be redesignated as district judges. The Government are being consistent and are listening to the judicial officers in Northern Ireland, who want to remain as resident magistrates. Why disappoint or annoy them when there are plenty of other more important and interesting matters to discuss.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

The hon. and learned Gentleman is surely not implying that the Government should satisfy the whim of the resident magistrates. The Government should implement a system of criminal justice based on the recommendations of the criminal justice review, which is quite clear on the matter. They should listen to the views of the people whom they represent, and those of the resident magistrates should not take precedence.

Edward Garnier (Conservative, Harborough)

I accept what the hon. Gentleman says, up to a point, but let him answer this point if he will. He says that the review recommendation is clear, sharp and right. I take a different view; it is clear, sharp and wrong. He may wish to push the matter to a vote and it could be tested in that way, but that would not be a terribly useful exercise of our time and I hope that he does not do so. He and I have different views. So be it.

Sylvia Hermon (UUP, North Down)

On a number of occasions in Committee, the Minister described himself as a Minister who listens to representations. In this example, he has listened to strong representations from resident magistrates and the hon. Member for Reigate (Mr. Blunt) and from me in Committee.

A lot of the confusion arose, certainly in Committee, over a comparison that was drawn several times. The Patten report is entitled, "A New Beginning: Policing in Northern Ireland", but the criminal justice review and the implementing legislation are there to modernise the criminal justice system in the biggest shake-up in 30 years by making it more transparent and more accountable and by modernising it. That does not mean that we must have this new beginning even in language. Changing "resident magistrate" to "district judge" would be a cosmetic exercise, as there will be no change to the functions of resident magistrates. The change is unnecessary and I am delighted that the Minister has listened to the representations.

Amendment agreed to.

Amendment made: No. 3, in page 71, line 10, leave out "District Judge (Magistrates" Courts)" and insert "Resident Magistrate".—[Mr. Browne.]

Clause 3 — Judicial Appointments Commission

Schedule 2 — Judicial Appointments Commission

Eric Forth (Conservative, Bromley and Chislehurst)

On a point of order, Mr. Deputy Speaker. Can you confirm that there is nothing to prevent a Minister from approaching the Chair, even at this stage in our proceedings, and requesting that a statement be scheduled at the conclusion of our business at 10 o'clock? This is an important Bill, and I could understand Ministers not wanting to interrupt our consideration of it, but you will be aware that here has been some fresh news concerning the suspension on full pay of the head of media at the Department for Transport, Local Government and the Regions—a matter referred to by the Secretary of State in his statement last week—and I wondered whether you could confirm, to help Ministers, that there is no procedural obstacle to a statement being scheduled for 10 o'clock, to keep the House informed of developments.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

The right hon. Gentleman has been helpful in setting out that point, and there is very little that I can add, other than that the Speaker would have to be consulted about any such arrangement.

Schedule 3 — Appointment to listed judicial offices

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move amendment No. 105, in page 77, line 23, leave out "expenses" and insert "salaries".

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss Government amendment No. 155.

Des Browne (Labour, Kilmarnock and Loudoun)

Post devolution of criminal justice, determination of judicial salaries is to remain an excepted matter, but the remuneration will be paid from the Northern Ireland Consolidated Fund rather than the United Kingdom Consolidated Fund. Paragraph 10 of the schedule amends section 168(2) of the Magistrates' Courts Act (Northern Ireland) 1964, which provides for the payment of salaries to resident magistrates. The original drafting of the paragraph referred to the payment of "expenses" being transferred from the United Kingdom Consolidated Fund to the Northern Ireland Consolidated Fund. The amendment, which is technical, reflects the fact that the payment of salaries will be transferred by the Bill.

Amendment No. 155, which is also technical, provides for removal of the revocation of section 75(1) of the Judicature (Northern Ireland) Act 1978, which deals with the appointment of the official solicitor. Post devolution, it is intended that the office of official solicitor will be removed from the list of statutory officers in schedule 3 to the 1978 Act, as the status of the statutory officer will be confined to posts of an inherently judicial character. The official solicitor post is not of that character.

The removal will be achieved by subordinate legislation, which is the point of the amendment. In anticipation of that change, it is necessary to retain section 75(1) of the 1978 Act, which provides for the official solicitor's appointment by the Lord Chancellor after consultation with the Lord Chief Justice. As drafted, the Bill did not achieve that objective, and this technical amendment is designed to put that right. That is what it achieves and I commend it to the House.

Amendment agreed to.

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move amendment No. 106, in page 82, line 23, leave out "subsections (2) and (11)" and insert "subsection (2)".

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following: Government amendments Nos. 107 to 109.

Amendment No. 33, in clause 10, page 8, line 6, leave out "Lord Chancellor" and insert—

'First Minister and deputy First Minister acting jointly'.

Amendment No. 34, in page 8, line 9, leave out "Lord Chancellor" and insert "Lord Chief Justice".

Amendment No. 31, in page 8, line 9, leave out from "Chancellor" to end of line 12.

Amendment No. 32, in page 8, line 13, leave out subsection (3).

Amendment No. 35, in page 8, line 17, leave out "Lord Chancellor" and insert—

'First Minister and deputy First Minister acting jointly'.

Amendment No. 36, in page 8, line 18, at end insert—

'( ) No order under this section may be made without the agreement of the Lord Chief Justice.'.

Amendment No. 74, in page 8, line 27, after "body", insert "or".

Amendment No. 71, in page 8, line 30, leave out from "creditors" to end of line 31.

Amendment No. 43, in page 8, leave out lines 32 and 33.

Amendment No. 72, in page 8, line 34, leave out—

'"Prescribed" means Prescribed in the Order'

and insert—

'Notwithstanding subsections (4) and (5), a person shall be disqualified from appointment as a lay magistrate if he has at any time been convicted in Northern Ireland or elsewhere of a criminal offence'.

Amendment No. 37, in page 8, line 41, leave out "Lord Chancellor" and insert "Lord Chief Justice".

Amendment No. 73, in page 8, line 41, at end insert—

'10A The Lord Chancellor must remove any Lay Magistrate from Office if they have at any time been convicted in Northern Ireland or elsewhere of a criminal offence.'.

Amendment No. 38, in page 8, line 42, leave out "Lord Chancellor" and insert—

'First Minister and deputy First Minister acting jointly'.

Amendment No. 39, in page 8, line 42, leave out "he" and insert "they".

Amendment No. 40, in page 8, line 43, at end insert—

'out of money appropriated by Act of the Assembly'.

Government amendments Nos. 111 to 118.

Amendment No. 41, in schedule 4, page 83, line 43, leave out "Lord Chancellor" and insert "Lord Chief Justice".

Government amendment No. 119.

Amendment No. 42, in page 84, line 5, leave out "Lord Chancellor" and insert "Lord Chief Justice".

Government amendments Nos. 120 to 122, 124, 123, 125 to 130 and 156 to 163.

Des Browne (Labour, Kilmarnock and Loudoun)

The amendments are technical and concern the role and functions of lay magistrates. The criminal justice review recognised the role lay people could play in the justice process. It did not recommend major changes, but proposed removing residual criminal justice functions from justices of the peace, while consolidating the role of the new category of lay magistrates. Of course, as hon. Members know, the position of lay magistracy in Northern Ireland is rather different from that in England and Wales. England and Wales have a small number of stipendiary magistrates, but professional resident magistrates in Northern Ireland are the norm rather than the exception. Lay people continue to have a role in the system, however, notably by participating in youth courts.

Amendments Nos. 106 and 107 reorder the Bill to make it clear that when responsibility for paying allowances to lay magistrates transfers to the First Minister and Deputy First Minister under devolution, they must act jointly.

Amendments Nos. 108 and 109, which are technical and consequential to an amendment made in Committee, require that order-making powers relating to community safety be subject to affirmative resolution. As a result, on devolution, an order made by the First Minister and Deputy First Minister concerning eligibility to be a lay a magistrate must be subject to affirmative resolution in the Assembly. Order-making powers relating to community safety will remain subject to scrutiny in Westminster.

Amendment No. 111 allows the Lord Chief Justice, lord justices of appeal, High Court judges and county court judges to exercise all the functions of a lay magistrate. Currently, all those judicial offices are ex officio justices of the peace, and as such they can exercise all the functions attaching to those offices. Given that the majority of criminal justice functions will transfer from JPs to lay magistrates, we want to ensure that the judicial offices that I have mentioned can exercise the functions that will be transferred to lay magistrates.

Amendment No. 112 reflects the review's recognition of the important role that lay persons fulfil in the justice system. The new office of lay magistrate will assume most of the functions currently performed by justices of the peace and members of the juvenile court lay panel, and will be a listed judicial office as defined in schedule 1 to the Bill. The amendment is technical and defines the range and nature of functions to be transferred from justices of the peace to the new office of lay magistrate.

In the main, those functions, which are currently performed by justices of the peace, relate to hearing complaints and first remands in special courts, with a view to issuing warrants and summonses. The amendment also identifies a number of related and ancillary powers arising from those functions. Schedule 4, which contains amendments consequential on the clauses relating to lay magistrates, deals with those functions in more specific terms. I should point out that lay magistrates will also perform certain other functions currently undertaken by lay panellists in the youth and family proceedings courts. They are of course addressed by clause 12.

Amendment No. 163 is consequential on amendment No. 112. It will amend clause 89 and include the Lord Chancellor's order-making power under clause 11(2)(b), thereby ensuring that it is subject to scrutiny by both Houses.

I have been asked to address amendment No. 123 in particular. The definition of a court of record in the relevant section is used for the purpose of conferring a power to bind over. Magistrates courts already have specific power to bind over by virtue of the Magistrates' Courts (Northern Ireland) Order 1981, so there is no need for the definition in schedule 4 to include a magistrates court. The provision is unnecessary and would constitute a duplication.

Opposition amendments Nos. 31 to 41—which would transfer powers from the Lord Chancellor to the First Minister, Deputy First Minister or Lord Chief Justice—may be based on a misconception. They were tabled in Committee, and for reasons that I shall come to shortly, I am slightly disappointed to see them again. I gave a lengthy explanation in Committee, on being asked to do so, of how the Bill's provisions are intended to work before and after devolution.

Clause 10 deals with the position before devolution, when the power will remain with the Lord Chancellor. Post devolution, the same appointment and removal provisions as apply to the lay magistracy will apply to other judicial tiers. At that point, responsibility will transfer from the Lord Chancellor to the First Minister and Deputy First Minister by means of a transfer of functions order under section 86 of the Northern Ireland Act 1998.

On turning to schedule 1, hon. Members will notice that the office of lay magistrate is included in the list of judicial offices which, on devolution, are subject to the Judicial Appointments Commission and removal tribunals. For that reason, and in the light of the lengthy explanation that I gave in Committee—the House would not thank me for repeating it—I ask that amendments Nos. 31 to 41 be withdrawn.

Amendments Nos. 41 and 42 would give the Lord Chief Justice an order-making power—which the Bill currently gives the Lord Chancellor—to amend any provision relating to the transfer of functions of the justice of the peace. I am fascinated by the idea of an order-making power exercisable by a judge, and I congratulate the hon. Member for Reigate (Mr. Blunt) on this exciting constitutional innovation, particularly in the light of the need for parliamentary scrutiny of provisions at the highest level. However, I doubt whether the British constitution is quite ready for it.

The review recommended that the criminal justice functions of the justice of the peace be undertaken by the new office of lay magistrate. The Bill accordingly sets out the likely qualification requirements for that post. Amendment No. 43 would remove the Lord Chancellor's discretion in applying those qualifications. The Lord Chancellor has, and will continue to have, that discretion in making justice of the peace appointments in England and Wales.

If the amendment were accepted, the Lord Chancellor would be unable, for example, to appoint as lay magistrate an otherwise excellent candidate who lived five miles beyond a prescribed distance outside the county court division in question. Although it is important that lay magistrates reside in, or work in, their county court division, it is surely possible for hon. Members to envisage situations in which that might not be the case. Would they want to lose such a person's expertise? Flexibility is a vital part of any eligibility criteria, but the amendment would remove it. I therefore ask that it be withdrawn.

Amendments Nos. 74, 72 and 71 would remove conviction of a prescribed offence as a potential bar to being appointed as a lay magistrate and replace it with conviction of a criminal offence—any criminal offence. In addition, amendment No. 73 includes a removal provision, requiring the Lord Chancellor to remove a lay magistrate if he has been convicted of a criminal offence. It is worth noting that there are currently no absolute bars to people with convictions being appointed as a judge in England and Wales or in Northern Ireland. The review made it clear that lay magistrates should be considered part of the judiciary. It would therefore be contrary to the spirit of the review to impose a higher standard on lay magistrates than on other judicial tiers.

In any case, the amendments are unnecessary. I am not convinced of the case for lifting the potential bar on individuals convicted of a prescribed offence and replacing it with the much wider power to remove anyone guilty of a criminal offence. That would mean that the Lord Chancellor would have to remove from office an otherwise excellent appointee who had been convicted of a minor motoring offence.

Sylvia Hermon (UUP, North Down)

Could the Minister explain why the disqualification of someone who has a criminal conviction from sitting as a lay magistrate is not justified, when someone who is bankrupt or who has made an arrangement with his trustee or creditors would be ineligible to sit as a lay magistrate? That seems extraordinary.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Lady will see from the terms of the clause that all those situations would provide reasons to remove a magistrate, but would not require his removal. The earlier part of my argument suggested the need for flexibility, not the imposition of an absolute bar. I do not accept amendments Nos. 71 to 74 because they would mean that an otherwise excellent appointee who had been convicted of a minor motoring offence would have to be removed from office. That would not be in the best interests of the administration of justice. I do not encourage magistrates or judges—or anybody else—to collect minor road traffic offence convictions, but if they were to acquire one it would not be an appropriate reason to remove them from office. That includes the offence of careless driving, the mens rea for which is carelessness, not deliberate action.

Sylvia Hermon (UUP, North Down)

I noted the comparative treatment of those of an equivalent status in the rest of the United Kingdom. I obtained the latest copy of the directions for advisory committees on justices of the peace from the Library—it is from July 1991, so it may have been updated—and it makes it clear that in the case of serious offences the Lord Chancellor must be informed immediately. The justice must not sit to adjudicate from the time of arrest to first appearance, and there is an expectation that the justice would resign after any further conviction for a serious offence. We can therefore make a comparative analysis with the position elsewhere.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Lady is right, and I have prayed in aid references to jurisdictions other than that of Northern Ireland. She is also right to say that the repeated commission of serious offences should lead to the consideration of the appropriateness and suitability of a person for judicial office, even if only as justice of the peace. However, for the very reasons that the hon. Lady is able to cite documents on the position in England and Wales, we seek to do exactly the same in Northern Ireland. We seek to apply the flexibility of the system in England and Wales to Northern Ireland.

My objection to the removal provision and the potential bar that the hon. Lady seeks is that it would be absolute and apply at the level of a very minor road traffic offence. I argue, with some merit, that that would not be in the best interests of the administration of justice.

Gregory Campbell (DUP, East Londonderry)

We had a similar debate in Committee on the issue of court security officers and whether any offence, perhaps relatively insignificant, should debar a person from employment. Could the Minister confirm that if the amendments were passed they would mean that a person could be debarred from being a lay magistrate but could, for example, be in charge of education in Northern Ireland?

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman seeks to widen the debate, which is not about education or the structure of the Executive in Northern Ireland. My points are relevant to the Bill. I have addressed the issues raised by the amendments and it would not be in order to expand the debate into the qualifications necessary to be the Minister of Education or any other Minister in Northern Ireland. The Bill as drafted provides sufficient powers for the Lord Chancellor to exclude persons who have been convicted of prescribed offences, and I ask that the amendments be withdrawn.

Amendments Nos. 113 to 130 and 156 to 162 are of a technical nature and are consequential on clauses 10 to 12, dealing with justices of the peace and lay magistrates. They make specific textual amendments to a wide range of current legislation to ensure that the existing powers of justices of the peace are transferred either to lay magistrates or to resident magistrates. I do not think that the House would thank me for going into further detail.

We do not of course intend to remove the office of justice of the peace. Justices of the peace will continue in office and perform several important civic and ceremonial functions, which are also included in clause 4.

Crispin Blunt (Conservative, Reigate)

This may not be a debate about education, but it could be, because the issues are technical and difficult. The Minister complains that he might repeat arguments that he made in Committee about which issues devolve and which do not, but those hon. Members not privileged to have served on the Committee would benefit from his instruction and education on the matter. One or two issues are still outstanding in relation to the surviving role of the Lord Chancellor, if any.

I invite the Minister's explanation on one of the areas of complication, which I shall illustrate for him. Schedule 3, paragraph 41(1), would amend section 10 by substituting for the phrase "Lord Chancellor" the words

"First Minister and deputy First Minister, acting jointly".

That would be the effect of amendments Nos. 33, 34 and 35. I am confused about why those provisions appear in schedule 3, and in the Government's amendments to widen them, but do not appear automatically on the face of the Bill in the provisions under which justice will be devolved. I would be grateful for the Minister's explanation on that point.

The Minister is looking confused, and well he might. My simple question is why those provisions, which relate to earlier parts of the Bill, appear in the schedule when—I presume—they would come into force automatically under the Northern Ireland Act 1998 when the functions are devolved. That was the burden of the Minister's argument in Committee on devolution functions.

The Minister did not deal with amendments Nos. 31 and 32, which concern the requirement for training courses to be completed before the appointment of lay magistrates. The Bill simply requires those appointed to have given an undertaking that they will attend such a course. I am not sure that is good enough: I think that those appointed should have completed the course, because that would show not just that they were committed to becoming lay magistrates by undertaking the necessary training but that there was no danger of their adopting the role of lay magistrate before being properly trained. The very undertaking of the course will show up any inherent problems.

I do not intend to press the matter to a Division, but I invite the Government to consider it. If the Minister cannot respond now, perhaps he will table amendments in another place if he thinks it appropriate for people to be trained before becoming lay magistrates.

The Minister has, I think, dealt with amendment No. 36, and the issue of funding. I accept his arguments about amendment No.43, although I may wish to discuss them further, but I want him to clarify what he said about amendment No. 37. This is a technical matter. Will the Minister confirm that, following the devolution of justice, it will be the Lord Chief Justice who can remove lay magistrates from office rather than the Lord Chancellor? I understand that to be the case, but I should be grateful for confirmation. Similarly, I should like confirmation, in the context of amendment No. 42, that the Lord Chancellor's role will not remain after the devolution of justice.

This is a difficult and technical area, and I freely admit that I have struggled to understand it precisely. The Minister may feel a trifle impatient at having to explain it again, but if we are to undertake this role in an area in which there appear to be innate contradictions, we as legislators should surely understand the issues before passing the proposals.

Sylvia Hermon (UUP, North Down)

I want to speak to amendments Nos. 74, 71, 72 and 73. I can count, but that is the order in which they appear on the amendment paper.

I am very unhappy with the Minister's response to interventions—especially after hearing him explain Government amendment No. 112, which involves a considerable increase in the powers and functions of lay magistrates. I must say that we had not anticipated such a proposal. The functions concerned include

"issuing a warrant or summons"

and

"remanding an accused who has not previously been remanded for the offence".

I could go on, but I will not. The point is that we have significantly extended the powers of lay magistrates.

The House has already passed the Police (Northern Ireland) Act 2000. It refers to members of district policing partnerships which, for goodness' sake, have only advisory and consultative powers; they are not involved in judicial or criminal justice functions. It firmly disqualifies a person from independent membership of a district policing partnership if he has at any time been convicted, in Northern Ireland or elsewhere, of an offence and has had passed on him a sentence of imprisonment, whether suspended or not.

The present position is ludicrous. Someone who would have advisory and consultative powers in a DPP cannot become an independent member of a DPP if he has committed a criminal offence. We are told by the Minister, however, that a lay magistrate will not be disqualified for minor criminal offences.

Des Browne (Labour, Kilmarnock and Loudoun)

The offence specified in the 2000 Act is far more serious than the sort of offence that the hon. Lady seeks to incorporate in the Bill. It attracts either a suspended sentence or a prison sentence.

Sylvia Hermon (UUP, North Down)

The Minister makes a good point, in that an offence attracting a sentence of imprisonment, whether suspended or not, is clearly serious; but we are talking about people who are responsible for the administration and carrying out of criminal justice functions.

We have a criminal justice review, whose aims were stated in the Belfast agreement. One of those aims was the production of a criminal justice scheme that had

"the confidence of all parts of the community".

How can people have confidence in the new office of lay magistrate when, under clause 10, the Lord Chancellor may make provision about the eligibility for appointment of lay magistrates? Subsection (5) states that "in particular" orders will provide

"that a person may not be appointed to be a lay magistrate"

if, for example,

"a bankruptcy order has been made against him, or his estate has been sequestrated, or he has made a composition or arrangement with, or granted a trust deed for, his creditors"

or

"if he has been convicted of a prescribed offence".

"Prescribed" is defined as meaning

"prescribed in an order issued by the Lord Chancellor".

It seems extraordinary that, although the new office of lay magistrate involves dramatically increased powers, there is no equivalent disqualification of those with criminal convictions, although those who go bankrupt will be ineligible. I hope that I am wrong about this, and I hope the Minister will correct me.

Des Browne (Labour, Kilmarnock and Loudoun)

Let me first deal with the points made by the hon. Member for North Down (Lady Hermon).

The purpose of amendment No. 112 is to describe the functions of justices of the peace that are being transferred to lay magistrates. That transfer was always intended. It was recommended by the review, and it is what the Bill seeks to achieve. The amendment's aim is simply to set the functions in statute, rather than to confer more powers on anyone, in terms of judicial functions, than was always intended and made clear in the Bill. These functions have never been set out before.

Both in Committee and today, the hon. Lady and I have discussed her attempts to include in the Bill a number of counsels of perfection in relation to behaviour. Our debates have been energetic, and the hon. Lady has pursued them consistently and appropriately, but I think I have dealt with the issues that she has raised. She seeks to create circumstances in which I think it would be almost impossible to persuade anyone to take on the job of lay magistrate. If people were to be automatically removed from the job after being convicted of careless driving, with all the attendant publicity, it would surely be difficult for them to accept the post.

I accept that certain types of offence should exclude people, and the Bill reflects that. In other circumstances, however, there must be a degree of flexibility. People can accumulate criminal records and convictions for comparatively minor behaviour. We drive motor vehicles; we have a statutory structure, built up over the years, to protect people, but also to generate circumstances in which such matters as insurance can be resolved.

I cannot put the arguments to the hon. Lady better than I have already. I know that they disappoint her, but I do not think that it would work if any minor offence automatically barred people from such a position or removed them from it, particularly when judges higher up the judicial ladder, carrying out functions that were far more important and onerous, could have committed just such an offence.

I turn finally to the points made by the hon. Member for Reigate (Mr. Blunt). The reason for my puzzlement in this very technical area is that I accept that sometimes it takes more than one saying to get the point across. It must have been my fault, but I did not at first understand the hon. Gentleman's point. It was not that I did not know the answer—I did not even know whether I knew the answer as I did not understand the point. However, I think that I have encapsulated his first point in my head and that I understand the answer.

The hon. Gentleman wanted to know why the provisions in paragraph 41 of schedule 3 are not in the body of the Bill. As he rightly identified, the provisions are intended to enable the necessary changes to be made when devolution takes place. They could have been put in the main part of the Bill but if they had been, they would have to be capable of being read in two different ways—pre and post-devolution. Alternatively, they could have been implemented under an order under section 86 of the Northern Ireland Act 1998, as we have discussed before. On this occasion, however, the draftsman chose to incorporate these provisions under paragraph 41 of schedule 3, which will become effective post-devolution.

The hon. Gentleman's other substantive question was who could dismiss the judicial office holders post- devolution. It would be the First Minister and Deputy First Minister.

Crispin Blunt (Conservative, Reigate)

I am grateful to the Minister for that explanation. Will he address amendments Nos. 31 and 32 about the need for lay magistrates to be trained before they are appointed?

Des Browne (Labour, Kilmarnock and Loudoun)

I am afraid that this comes down to the old flexibility argument again. It is difficult to predict at this stage exactly what the demand will be for lay magistrates. If they are to be trained, we might not be able to train them all at the same time. We need a degree of flexibility.

I accept the merit in the hon. Gentleman's argument and I hope that once the original difficulties are seen through and the change takes place, the norm will be that people will not exercise this function until they have been trained to do so. However, I cannot guarantee, in all situations, that the demand for lay magistracy and magistrates courts hearings will be such that they can be serviced in a transitional period, and flexibility will be required. I take on board what the hon. Gentleman says and will bear it in mind. We have been able to do something about a situation when we looked at the figures in more detail on previous occasions and I will consider whether that is possible in this respect.

Amendment agreed to.

Amendments made: No. 107, in page 82, line 24, at end insert—

'(4) In subsection (5), for "Lord Chancellor otherwise determines" substitute "First Minister and deputy First Minister, acting jointly, otherwise determine".

(5) In subsection (11)—

(a) for "Lord Chancellor" substitute "First Minister and deputy First Minister", and

(b) for "he may" substitute "they may jointly".'.

No. 108, in page 82, line 25, leave out from beginning to "(within" in line 27 and insert—

'(1) Section 89 is amended as follows.

(2) After subsection (1) insert—

"(1A) An order under section 10(4) shall be subject to affirmative resolution".'.

No. 109, in page 82, line 28, at end insert—

'(3) In subsection (3), omit "10(4) or".'.—[Mr. Browne.]

Clause 9 — Renaming of resident magistrates

Clause 10 — Lay magistrates

Clause 11 — Transfer of functions of justices of the peace

Schedule 5 — Transfer of functions to Lord Chief Justice

Clause 15 — Presiding district judge (Magistrates' Courts)

Clause 19 — Qualification for appointment

Clause 20 — Judicial oath or affirmation

Quentin Davies (Conservative, Grantham and Stamford)

I beg to move amendment No. 45, in page 13, line 22, leave out from "either" to end of line 34 and insert—

'take the oath of allegiance and the judicial oath or make the appropriate affirmation.'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following amendments: No. 81, in page 13, line 28, leave out "according to" and insert "upholding".

No. 82, in page 13, line 34, leave out "according to" and insert "upholding".

Quentin Davies (Conservative, Grantham and Stamford)

This is an important amendment but the issues at stake are straightforward and can be simply put. We wish to restore, by means of the amendment, the normal oath of allegiance as it is taken by judges elsewhere in the United Kingdom. There are three arguments that the Government have to address with regard to clause 20. I continue to hope that the Government will accept our view that this is a concession too far and will take the opportunity of accepting amendment No. 45 to restore the position. If they do not, they will have clearly defined the differences that separate us. Those are not nuances of differences of emphasis but differences of fundamental principle. Let me set out those three arguments as simply as I can.

The first argument, which I hope the Government will not take issue with, is that oaths are important. They mean something; they are not symbols. Oaths create obligations—that is their purpose. In this case, the oath of allegiance enshrines the fact that justice in this country flows from the Crown. If the Minister does not think that justice flows from the Crown, the onus is on him to tell us where it does flow from. If he wishes to create an ambiguity so that although the position is not as clear as it is today, justice is not deemed to flow from any other source, he must justify that. Ambiguity in legal matters is always problematic and generally undesirable. We positively believe in the principle that justice flows from the Crown and that judges should undertake an oath of allegiance to the Crown.

The second major issue between us and the Government is that if that principle is right—and it can be right or wrong—it should, by definition, be extended to the whole kingdom. If a principle of justice is right, it is, by definition, right for everybody. What concerns us is not the suggestion that that principle should be set aside, with republicanism introduced into our legal system and the oath of allegiance abolished. That would be a dramatic move by the Government although they have not done that. Instead, they have decided that in most of the country the principle on which our justice is based should continue while in one part of the country that principle should be changed. That is a dubious procedure; it is a discriminatory and partial approach to a fundamental issue.

This is, by definition, a republican measure. The Government do not want, or do not have the courage—I do not know which it is—to make such a change for the country as a whole, but intend to limit it to one part of the country. That position cannot be sustained—one cannot have a principle that is valid in one part of the country and not elsewhere because a principle, by its nature, is universal and should be applied equally and fairly everywhere.

Why are the Government doing this? There is no doubt that it is part of an agenda to erode, by stealth, the position of the Province of Northern Ireland in the United Kingdom, and that is extremely worrying.

The Opposition are committed to the Belfast agreement, as are, notionally, the Government. The agreement says clearly that there should be no change in the status of Northern Ireland except by the vote of the people of Northern Ireland. We endorse that utterly. It is wrong and inconsistent with the principle of the Belfast agreement that a change should be effected by stealth in this piecemeal fashion. It is death by a thousand cuts; that is the approach of the Government and it is one that we reject.

Thirdly, we must look at this move in the context of the Government's general policy towards Northern Ireland, particularly over the last few months. I have characterised that policy—rightly, I am convinced, because the Government have never quarrelled with my definition—as an endless series of one-way concessions, almost all of them simply designed to appease Sinn Fein-IRA, which is just one of the parties to the Belfast agreement and to the peace process.

I have said over and over again that we believe that is a disastrous approach to implementing the Belfast agreement. If we are to have peace in Northern Ireland, it must be based on a sense of balance and fairness. For the first time ever at the weekend, the Secretary of State—in an "On the Record" interview that I did not see but of which I have seen a transcript—actually recognised that the perception in Northern Ireland is that all of the concessions have been one way, against Unionism. He said:

"I am aware of the perception that on balance there has been more taken away from Unionists and from those who feel British and given to those who are of an Irish background."

The Secretary of State is entirely endorsing the analysis that we have made and which we have put before him over the last few months. The balance has been broken in Northern Ireland and there is no sense of fairness. There is simply the sense of a one-way street.

John Reid (Labour, Hamilton North and Bellshill)

First, I should thank the hon. Gentleman for telling me what I said; I know, since I am the person who said it. As he will see if he reads further on in the transcript—I had to correct the interviewer in the same way as I am having to correct the hon. Gentleman—I was careful to distinguish between the reality and the perception. I fully acknowledged the perception that the process was imbalanced. Quite wrongly, the hon. Gentleman is using that to justify that it is in fact imbalanced.

Quentin Davies (Conservative, Grantham and Stamford)

The Secretary of State is perfectly right. Anyone reading the transcript can see that, subsequently, the Secretary of State fought desperately to retrieve what he appeared to have given away. I do not doubt that at all. I dare say that, within seconds of mouthing those words, the Secretary of State began to regret them. There is evidence in the interview that that is what he wanted to do.

The Secretary of State is an experienced politician and he knows that when one is interviewed, one uses terms advisedly. Perhaps he should have thought more carefully about what he was saying. If it was a slip, clearly it was a Freudian slip. It was not a deliberate attempt to mislead anyone; I do not suppose that for a moment. If it was a slip, it was because he was too frank or candid. The Secretary of State is simply acknowledging the position that we have put to him for a long time. It is great progress that even if the Secretary of State has done so by a slip of the tongue or inadvertently, he has acknowledged that position, even in his own mind. Later this evening, we will discuss an instance where it appears that, for once, the Secretary of State responded in deed as well as in word to the worrying situation that the Government's tactics have created in Northern Ireland.

John Reid (Labour, Hamilton North and Bellshill)

I want to help the hon. Gentleman and prevent him from being unintentionally disingenuous with the House. Let me quote my words exactly before and after the interviewer:

"Secondly, I am aware of the perception that on balance there has been more taken away from Unionists."

The interviewer says later:

"Ah, well let's look at the reality."

There was no slip of the tongue. That is something that I acknowledged not only yesterday, but in a speech six months ago. The hon. Gentleman may not have heard it, but he has often quoted it.

Quentin Davies (Conservative, Grantham and Stamford)

It is obvious that I have touched the Secretary of State on a raw nerve. He is obviously concerned about this quotation, and any hon. Member who wishes to read the whole transcript will see that it is amusing to see how the Secretary of State rowed back from what he said, which was very revealing.

Tom Harris (Labour, Glasgow Cathcart)

Given the sensitivity surrounding politics in Northern Ireland, does the hon. Gentleman think that it is appropriate for a Conservative Front-Bench spokesman on Northern Ireland to define the success or otherwise of any policy in Northern Ireland by a points system for and against any particular community? Is that really a progressive and sophisticated way to define policy in Northern Ireland?

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. May I say gently to the House that we are not discussing politics in Northern Ireland as a whole, but a particular amendment concerning the judicial oath? I would like to hear further remarks in this debate confined to that.

Quentin Davies (Conservative, Grantham and Stamford)

Indeed, Mr. Deputy Speaker, but this concession fits into a general pattern. We care about the implementation of the Belfast agreement, and it is important that if the Opposition are convinced—as, sadly, we are—that the Government's tactics are leading in the wrong direction and away from the aim that we all share, we should draw that to everyone's attention and use our influence to try to redress the position. We are not afraid of saying what we believe should be done. I have never run away from that.

Sylvia Hermon (UUP, North Down)

May I draw the hon. Gentleman's attention to the actual wording of the oath, as set out in clause 20? It says:

"I . . . do solemnly and sincerely and truly affirm and declare that I will well and faithfully serve in the office . . . and that I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm."

"This realm"—those words are in the Bill. Clearly that is a reference to the United Kingdom. I cannot see how this can be described accurately as, in the hon. Gentleman's language, "a concession".

Quentin Davies (Conservative, Grantham and Stamford)

I am not sure whether the hon. Lady listened to my remarks at the beginning, when I said that there were two ways of interpreting this Government initiative. The first is that it reflects a republican agenda and a desire to introduce an element of republicanism and to get rid of the mention of the Crown in our judicial system in parts of the kingdom. That is a bad thing for the reasons that I have set out, and we reject it on principle. The second possible explanation is that the Government have decided to introduce an element of ambiguity and they do not want to be clear.

Both of those things are wrong and damaging. Ambiguity is extremely bad in judicial matters, and I would have expected the hon. Lady—a distinguished professor of law—in any other context to go along with me on this matter. Difference is bad, because the Government are gratuitously introducing a distinction between the position in the rest of the UK and the position in Northern Ireland. I have rightly described that as an attempt by stealth to indicate that the status of Northern Ireland is different and an attempt by stealth to change it.

Sylvia Hermon (UUP, North Down)

Will the hon. Gentleman give way?

Quentin Davies (Conservative, Grantham and Stamford)

If the hon. Lady will forgive me, I will not give way to her because of the lack of time. It is not my fault; it is the fault of the Government and the timetable in the House. Time is limited and she would not thank me were I to prevent her from speaking either in this debate or in debates on the many clauses that we ought to get through before we end our proceedings.

Ian Paisley (DUP, North Antrim)

Will the hon. Gentleman give way?

Quentin Davies (Conservative, Grantham and Stamford)

I have given way to Members of the other Unionist party, so I shall be fair to the hon. Gentleman.

Ian Paisley (DUP, North Antrim)

Does the hon. Gentleman think it strange that the hon. Member for North Down (Lady Hermon) should quote from the Bill a passage that she wishes to change? She has tabled an amendment to change the very thing that she has argued for.

Quentin Davies (Conservative, Grantham and Stamford)

I felt wry amusement and surprise when I heard the intervention of the hon. Member for North Down, but I shall leave her to defend her own comments to the other Northern Ireland parties.

Sylvia Hermon (UUP, North Down)

Will the hon. Gentleman give way?

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Will the hon. Gentleman give way?

Quentin Davies (Conservative, Grantham and Stamford)

The hon. Lady feels unfairly embattled. To allow her to defend her honour and consistency, I shall give way to her, and, because I wish to be courteous to representatives of every Northern Ireland party, I shall give way to the hon. Member for Newry and Armagh (Mr. Mallon) later.

Sylvia Hermon (UUP, North Down)

I appreciate the hon. Gentleman's generosity. He said that the clause introduced ambiguity. How, for goodness' sake, can it be ambiguous to specify "this realm"?

The hon. Member for North Antrim (Rev. Ian Paisley) has doubtless made a careful reading of my amendment, which will have drawn to his attention the fact that I wish to change "according to" to "upholding". I should not have thought that he would object to anyone being required to uphold the law of this realm.

Quentin Davies (Conservative, Grantham and Stamford)

The second part of that intervention was addressed to the hon. Member for North Antrim (Rev. Ian Paisley), and I shall leave it to him to respond.

The first part was directed at me, and I can only say that I do not believe that when the hon. Lady teaches law in more sober and considered circumstances at the distinguished Queen's university, Belfast, she tells her students that changing a statute from saying one thing to saying something else does not create ambiguity. Any counsel pleading a case will draw the court's attention to the fact that the wording has been changed by Parliament. He will certainly argue that if Parliament had not intended to change matters, Parliament would not have changed the wording. I know perfectly well that that is what the hon. Lady would teach me if I were in her class in Belfast. I am sorry that she thinks that lower standards of intellectual rigour are appropriate in the House of Commons.

Sylvia Hermon (UUP, North Down)

Will the hon. Gentleman give way?

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

rose—

Quentin Davies (Conservative, Grantham and Stamford)

I shall not give way again to the hon. Lady, but will give way to the hon. Gentleman.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

This is an interesting family squabble, but may I broaden the debate slightly? The hon. Member for Grantham and Stamford says that his party is in favour of the Good Friday agreement. In the context of this and other amendments, does he fully agree that

"parity of esteem and . . . just and equal treatment for the identity, ethos, and aspirations"

of the two communities in Northern Ireland is essential? Does he fully support that principle, clearly enunciated in the Good Friday agreement?

Quentin Davies (Conservative, Grantham and Stamford)

Yes, I do, wholeheartedly, sincerely and without ambiguity. I do not believe that that principle is in conflict with a system in which we are all equal subjects of Her Majesty and equally subject to the justice of the realm. On the contrary, I believe that it would be strengthened by it. We should all be equally liable to be judged by judges who have taken the same oath of allegiance throughout the United Kingdom.

We have far too little time to debate these matters. The point before us is one of the most crucial and our amendment would restore the position in a way with which everyone in Northern Ireland can feel comfortable. Unless the House wishes to signal that the concessions being made to one side in Northern Ireland are to go even further, and if the balance is not to be even further destroyed and the sense of fairness further undermined, it is absolutely necessary that there should be nothing ambiguous about the source of justice in Northern Ireland or, unless the people of Northern Ireland decide otherwise under the Belfast agreement, the status of Northern Ireland as a part of the United Kingdom.

Tom Harris (Labour, Glasgow Cathcart)

I spoke on Second Reading in January but was unfortunately unavailable to serve on the Standing Committee because of other commitments. I hope that hon. Members who served on the Committee will bear with me as I catch up with the latest moves.

Given your earlier ruling, Mr. Deputy Speaker, I shall not deviate from the amendments. I had intended to comment on the fact that the consensual approach to Northern Ireland that was evident early in the debate had ended when the hon. Member for Grantham and Stamford (Mr. Davies) stood up, but I shall refrain from doing so.

It is a pity, and it is somewhat amazing, that the hon. Gentleman believes that his amendment is the best way to secure the trust of all the people of Northern Ireland. In spite of the history of Northern Ireland, he believes that retaining the royal oath in preference to the words in the Bill will somehow generate trust and security among all the people of Northern Ireland. That is incredible. It would be interesting to know what definition of republicanism the hon. Gentleman would offer. The oath contained in the Bill reads:

"I . . . do swear that I will well and faithfully serve in the office of . . . and that I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm."

That, according to the modern Conservative party, is a statement of republicanism.

Quentin Davies (Conservative, Grantham and Stamford)

The hon. Gentleman quotes the passage quoted by the hon. Member for North Down (Lady Hermon), and with exactly the same emphasis. Let me repeat what I said to the hon. Lady, since the hon. Gentleman obviously did not hear it. There are only two possibilities facing us. First, the Government intend to change something, in which case they are introducing an element of republicanism to the legal system in Northern Ireland. Alternatively, they do not intend to change anything but the wording, in which case they are creating uncertainty and ambiguity. I do not think that the hon. Gentleman can get away from that analysis.

Tom Harris (Labour, Glasgow Cathcart)

It ill serves the Conservative Front-Bench spokesman to talk in terms of introducing republicanism or caving in to republicanism when we are discussing such a sensitive and important Bill.

I was not a Member of the House when the legislation that set up the Northern Ireland Assembly was enacted. I do not know what the Conservative party's position was when the clauses concerning the oath to be taken by parliamentarians in Northern Ireland were debated. I understand that, unlike Members of this House, Members of the Northern Ireland Assembly do not have to swear the royal oath. That may provide the hon. Member for Grantham and Stamford with a good example of how rules can be different for Northern Ireland and the rest of the United Kingdom.

Governments of both shades have legislated over the years for different provision in Northern Ireland. It would be madness to say that because members of the judiciary in mainland Britain swear a royal oath, the same must apply throughout the United Kingdom. Surely the Conservative party has realised by now that Northern Ireland is different: that is why we are discussing the Bill. Circumstances and politics are different, and the oath should be different too. We must apply ourselves to the different culture and history of Northern Ireland, and we can surely do so without saying that something is a concession to republicanism.

In principle, the royal oath is right for judges in Great Britain, but it would be immature to say that we must extend that principle throughout the United Kingdom, including Northern Ireland, and that if we do not do so we are betraying the royal family and the Crown and giving in to republicanism. That is not the reality; it is not a mature attitude and the hon. Member for Grantham and Stamford does Northern Ireland and his party grave disservice by conducting the debate in the terms that he has used tonight.

Edward Garnier (Conservative, Harborough)

I am not concerned with the argument put at the beginning of the debate as to who has gained or who has lost—either in perception or in fact; but I am concerned with the integrity of the judicial system and the administration of justice in Northern Ireland.

I hope that I do not undermine anything said by my hon. Friend the Member for Grantham and Stamford (Mr. Davies) when I say that I am reasonably sure that judges in Northern Ireland, and indeed any other part of the United Kingdom, will do their duty as judges irrespective of whether they take an oath. If they were simply to be sent a letter by the Lord Chancellor, or in Northern Ireland—following the devolution of justice—by the First Minister and the Deputy First Minister or the Lord Chief Justice of Northern Ireland, which stated, "Dear Bloggs, As from Monday 1 May you will hold the following appointment," I am reasonably confident that all those who were up to the job would do it to the best of their ability and fully in line with both the current oath and the one proposed in the Bill.

I cannot speak with 100 per cent. confidence, but I am fairly sure that at the moment I am the only person in the Chamber who has taken an oath of allegiance on appointment as a recorder. I took an oath of allegiance when I took silk, and I take such an oath every time I am returned to this place after a general election. I have managed to do that three times and hope that I may be allowed to do so a few more times.

I understand and value the oath of allegiance for several reasons, and I regret—to put it mildly—the fact that the Government have seen the need to make a change. I regret it because—as my hon. Friend the Member for Grantham and Stamford said—justice flows from the Crown. I apologise for paraphrasing my remarks in the Standing Committee, but there is misunderstanding both about the word "Crown" and about the institution to which people swear allegiance when they take the current judicial oath.

It is often thought by people who disagree with me—those who are embarrassed that in the 21st century we have a hereditary head of state—that we take the oath of allegiance only to a particular human being. We do not: we take an oath of allegiance to the structure of the state—if I may diffidently say that. It just so happens that in our country the monarch—the sovereign—is the human representation of the integrity of the state. That reminds us that we are democrats accountable to something bigger than ourselves, and that the Government are smaller than the state.

Over the past few years, the Government have sometimes tended to forget that. It is a truism to say so, but none the less the Government are here at the request of the majority of the voting public. Despite the Government's huge power, they are smaller than, and subordinate to, the Crown—not the Queen herself, but the state and the constitution.

Although we do not have a written constitution unlike some modern republics or the United States, that does not mean that our constitution is not worth remembering and upholding. It is written down, but not in a single document—it is to be found in several places. One of our most important sets of constitutional instruments are unwritten conventions whereby officers of the state—be they Cabinet Ministers or members of Departments—recognise their place in the constellation that is our constitution. I am fearful—perhaps too fearful—that the way in which the change to the oath is being approached is an indication that the Government misunderstand our constitution and do not want to preserve, or are careless of, the integrity of our United Kingdom and the constitution that rules it.

Despite the comments of the hon. Members for Glasgow, Cathcart (Mr. Harris) and for North Down (Lady Hermon), I can see a distinction between the use of the word "realm" in the proposed oath and in the oath of allegiance. I agree that realms normally have a monarch, but the word "realm" is, by and large, a geographical description, whereas the oath of allegiance to the Crown demonstrates a commitment to something beyond geographical definition.

Tom Harris (Labour, Glasgow Cathcart)

I rise to clarify a point about my contribution. The hon. and learned Gentleman suggested that I had emphasised the word "realm", but I am not aware that I did so. I expressed support for the wording in the Bill, but not especially for the word "realm". The rest of the oath is perfectly acceptable, reasonable and sensible—regardless of the inclusion of the word "realm".

Edward Garnier (Conservative, Harborough)

Perhaps when the hon. Gentleman took the oath, when he became a Member in 2001, he faced an intellectual or emotional difficulty, but I am delighted to see him here. Should he be fortunate enough to be re-elected, I trust that he will find no difficulty in taking the oath as he did recently—but I digress. I was making the short point that there is a difference between the word "realm" and what is implied by, and lies behind, the oath of allegiance to the Crown.

In essence, we take an oath to that non-political institution—the state—which is the provider and protector of laws and protects the citizens who live within the realm. There are any number of obvious connections between the Crown and the administration of justice. For example, criminal cases are brought in the name of the Crown, as in the case of Regina v. Smith or Bloggs. In this part of the United Kingdom, we have the Crown Prosecution Service. I agree with the amendments proposed by the Ulster Unionists: Public Prosecution Service is a desperately dull name, as well as demonstrating a misunderstanding of the nature of our constitution.

The police are servants of the Crown. Judges are servants of the Crown. Prison officers are servants of the Crown. The armed forces are servants of the Crown. Members of the civil service—I used to believe—were servants of the Crown. To return to my own self-important existence, the expression "Queen's Counsel" connotes some connection with the Crown.

The quality of our justice system has not been adversely affected by that connection with the Crown. I am concerned that by diluting the connection with the Crown that the oath of allegiance represents, the Government are saying that they are happy to see what is good and ought to be respected replaced by something less good.

This discussion reminds me of the debates that we had just before Christmas that led to the Sinn Fein Members being admitted to the precincts and offices of this place, and given access to the financial advantages of being Members of Parliament. One of my complaints then was that the Government motion to admit those four Members from Northern Ireland to this place created two classes of Member of Parliament, which is constitutionally abhorrent.

I fear that in addition to that, we are now creating two classes of judicial officer within the United Kingdom. I dare say there are all sorts of politically convenient reasons for doing that. However, although I see why the Government have devised the scheme, I am not sure that I wholly understand or respect those reasons, even though the Government rightly claim to be following the recommendations of the criminal justice review.

The mere fact that a review says something does not of itself mean that we as thinking Members of Parliament should necessarily accept it. There is a recent example of the Government, after consideration, deciding not to accept one of the recommendations of the review. That was about the designation of resident magistrates, as opposed to whatever the other name is; I have forgotten it.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

DJs.

Edward Garnier (Conservative, Harborough)

Yes, DJs—dinner jackets—the hon. Gentleman is right. We were discussing them earlier.

One of the Government Whips, who was being unusually voluble, once accused me of being the Member for Pompous, North.

Shona McIsaac (Labour, Cleethorpes)

It was the Daily Mail.

Edward Garnier (Conservative, Harborough)

It was the hon. Member for Harrow, East (Mr. McNulty), a Government Whip who felt it appropriate to absent himself from the Front Bench and go to the Back Benches to encourage his otherwise feeble colleagues to support the Secretary of State for Transport, Local Government and the Regions

I willingly accept that I am pompous and out of date, and that I am seen as a hugely inconvenient lawyer who is concerned with justice, our judicial system and the integrity of the administration of justice. So be it. I am happy to take that on the chin. What I am not happy about is the diminution in the apparent regard of the Government and those who support them for the justice system in Northern Ireland. That system seems to me to be under great strain, and in need of all the support that it can get—if not from the Government, at least from the Opposition.

Ian Paisley (DUP, North Antrim)

The people of Northern Ireland take this matter most seriously, as the Secretary of State well knows. We have heard some talk about perceptions, but the right hon. Gentleman himself has perceived—if we can use that word—that Northern Ireland is getting cold for Unionists; I believe that I am quoting what he said.

Why does the Secretary of State perceive that? Why do the people of Northern Ireland perceive it? Because the facts are crying out to them. Every day when they go out they can see with their own eyes what is happening to their country. The situation in terms of ordinary law and order is very serious.

I am not talking about fighting terrorism. We have a rising crime rate: young ladies studying at Queen's have been savagely sexually attacked, older people are being robbed, and we have a burglary rate that we have not had for a very long time, if ever, in Northern Ireland. Those facts stand.

Amazingly, because of what runs from the agreement, we must now do something about the people in our police force who are not full-time—the reserve men. If we lose the reserve, and if we look at the figures that have been issued for every area of Northern Ireland and see how low our police numbers are—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I am having difficulty relating what the hon. Gentleman is saying to the amendment under discussion.

Ian Paisley (DUP, North Antrim)

I was simply commenting on what has been said by others about perceptions. I was trying to say that the law and order situation in Northern Ireland is a reality. However, rather than disturbing the quiet of the Chair, Mr. Deputy Speaker, I will come to the question before the House.

The hon. Member for Glasgow, Cathcart (Mr. Harris) talked about why we should introduce the change, but this is not an introduction; it is taking away something that has always been there. The judiciary in Northern Ireland have always taken the oath of allegiance. People who were promoted, on both sides of the religious and political divide, took the oath of allegiance.

The oath of allegiance is to the Queen in Parliament, because the Queen as an individual is not the source of justice; the Queen in Parliament as a constitutional monarch is the source of justice. When someone takes the oath of allegiance they are taking it to what the state is and what it stands for. Because we have a constitutional monarchy, we take the oath to the Queen in Parliament. When people take an oath of allegiance they are acknowledging the state and their allegiance to it, and their loyalty to the laws of the state.

It is a very big thing to propose—as is proposed in the Bill, although we may not reach that part of it tonight—that changes should be made to the coat of arms outside or inside the law courts, which is displayed in connection with the judiciary. I know that you will be getting a bit restless with me now, Mr. Deputy Speaker, but I am simply using that as an illustration. The changed oath of allegiance that we are now discussing is an attempt to do away with the reality that the law that rules Northern Ireland is not Northern Ireland law, but United Kingdom law.

The hon. Member for Glasgow, Cathcart was right to say what he did about the first Assembly, and other Assemblies. For example, the law commanded people who were elected to the old Stormont Parliament to take an oath of allegiance to the Queen. It was this House that decided—against the will of the majority of Northern Ireland Members here—that that should happen. It was not our doing.

It is interesting that when someone comes from Northern Ireland to this House, they have to take the oath of allegiance. People in Northern Ireland saw that when many people who violently opposed taking an oath of allegiance in Northern Ireland were elected to this House, they still took the oath when they came here.

Tom Harris (Labour, Glasgow Cathcart)

The hon. Gentleman makes a powerful case for democratic accountability in this House, and points out that the legislation for the Northern Ireland Assembly was voted on by the whole House—against the wishes, on some occasions, of the majority of Northern Ireland Members. Does he not agree that that is simply a case of the writ of the United Kingdom Parliament running in Northern Ireland? Is that not what he stands for in the first place?

Ian Paisley (DUP, North Antrim)

I have no objection to that, but I do object to the statement that Northern Ireland should not have United Kingdom laws. There is a proposal to alter part of the coat of arms in courthouses—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. The hon. Gentleman is a very experienced Member of the House and he knows that he is treading outside the terms of the amendment. As time is limited, I appeal to him to keep within the bounds of the amendment.

Ian Paisley (DUP, North Antrim)

In that case, I cannot answer the question of the hon. Member for Glasgow, Cathcart. Perhaps I will see him, although not in the bar, and discuss the matter with him then. The point needs to be made that not only is there a proposal to delete from the oath any reference to the Queen but the real oath of allegiance would be destroyed. The people from Northern Ireland who represent the majority Unionist view are told that we should not come to the House and express our concern because these matters are so sensitive, but I believe that the Assembly and this House are the place to talk about these matters. We are democratic representatives. I know that people do not like what other people say, but as we say in Northern Ireland, they have to thole it. We have to thole one another.

This is the place where these matters need to be debated, but when people in Northern Ireland look at this House, they say, "You hardly have time to enter into a proper debate." Today, we are having the complete Report stage and Third Reading of the Bill. We will not get to some of the matters that you, Mr. Deputy Speaker, have told me I dare not mention, yet those matters go to the heart of the conviction of the majority people in Northern Ireland. It is unfair to those people that their representatives cannot fully discuss matters in this Parliament, where they are being settled and voted on.

The oath of allegiance sworn by the judiciary of Northern Ireland is a very serious issue because the Queen in Parliament is the source of justice. We feel that we should be like every other part of the United Kingdom, and if we are under United Kingdom law, the judiciary should take the oath that is taken everywhere else in the United Kingdom.

Sylvia Hermon (UUP, North Down)

As the hon. Member for Grantham and Stamford (Mr. Davies) was not generous enough to allow me to intervene on him again, I should take this opportunity to correct the suggestion that I regularly return to teaching as a law professor. I have one job and one job only, and that is as a Member of the House. I took early retirement from the law faculty at Queen's in 1988. It is always worth stating the facts correctly.

Quentin Davies (Conservative, Grantham and Stamford)

I stand corrected if the hon. Lady is no longer a professor, but I hope that she does not think that I have to apologise for insulting her. It does not seem to me to be insulting to refer to someone as a professor of law at a very distinguished university.

Sylvia Hermon (UUP, North Down)

I appreciate the hon. Gentleman's remark, but that is not the point that I was correcting. In his earlier remarks he said that he hoped that I would teach my students with more clarity than was contained in the points that I was making, which I thought was unfair and worth correcting.

I want to respond to the curious point made by the hon. Member for Newry and Armagh (Mr. Mallon). He quoted the Belfast agreement and asked Unionist parties whether there was respect for principles such as parity of esteem and for the sensitivity of those who do not feel themselves to be British. I can speak only for the Ulster Unionist party and not for all those on the Unionist Benches—I would not attempt to do that. The hon. Gentleman is right to say that parity of esteem and the other terms that he mentioned appear in the agreement.

The question of whether those principles are compatible with the agreement when one recognises the constitutional position of Northern Ireland has already been tested in court. The judgment of the High Court in Belfast in the Conor Murphy case was handed down on 4 October 2001. In that case the judge had to interpret the regulations on flag flying and test whether they were consistent with the agreement. He made the valid observation that the Government are duty bound to strike the right balance between the constitutional guarantee in the agreement and elements such as parity of esteem and recognition of the identity of communities other than those who feel themselves to be British.

The question is one of balance, and in clause 20 Northern Ireland's constitutional position is recognised in the words "of this realm". That is clearly a reference to the United Kingdom and a recognition of Northern Ireland's status as being within the United Kingdom, and is therefore compatible with the agreement. I would not like the Opposition to press amendment No. 45 to a vote because, if passed, it would remove the words "of this realm".

The amendments in my name would substitute the words "according to" with "upholding". It makes no sense at all to say that

"I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm."

Will the Minister explain which laws and usages the Government had in mind when the Bill was drafted? It makes much more sense to me to replace "according to" with "upholding".

Turning again to the comments of the hon. Member for Newry and Armagh, I draw his attention to the judgment in the case of two young members of the legal profession who had been called to become Queen's Counsel. In that judgment and in their arguments the point was made that they felt discriminated against on grounds of religion, which was an infringement of their human rights.

The Human Rights Act 1998, which incorporates the European convention on human rights and stands outside the agreement, provides a very strong argument. It makes it clear that everyone within the jurisdiction of Northern Ireland is entitled to manifest their religion. Article 14 of the convention makes it clear that everyone should be able to manifest their religion without any discrimination on grounds of, among other things, political belief or opinion. The two barristers raised valid arguments, and serious issues had to be taken into account. Regrettably, the decision turned on a technicality so we did not get to the core of their arguments, but those points have to be taken into account when people are required to swear an oath of allegiance.

Replacing "according to" with "upholding" would recognise the constitutional position and it would retain the words "of this realm", which would be removed by the Opposition amendment.

David Burnside (UUP, South Antrim)

Unlike most members of my party, including its leader and my hon. Friend the Member for North Down (Lady Hermon), I did not go to the law faculty at Queen's university; I just struggled through a general degree on the arts side.

The real problem is the totally confused exchange between the Secretary of State and the Opposition Front-Bench spokesman about perception and reality—that lies at the very core of this issue—and the fundamental debate that relates to the clauses on the oath and to the later amendments on arms and symbols, to which I shall not refer now. Those issues are interconnected and interrelated.

There is a lack of confidence. The Secretary of State talked clearly and accurately in his interview during the weekend and in his earlier Cold House speech, but he does seem to think that, in our misty red, white and blue eyes of Ulster Unionism, it is our perception that he is dealing with the reality. As a non-lawyer, I can only consider the reality clearly and clinically in the Bill. As a Unionist, my bottom-line belief is that I will not support or vote for anything in the House that weakens the United Kingdom or the fundamental oath of allegiance for me, as an individual subject or citizen, and for the font of the judiciary which is the Crown.

By making us different, we would weaken the Britishness of the people of Northern Ireland and the oath. I am not really disagreeing with my hon. Friend the Member for North Down (Lady Hermon), but the reality now in Northern Ireland involves judging whether the Bill will weaken or strengthen us as British citizens and subjects. By any judgment, clearly and clinically, it will weaken us. That does not mean that I and other hon. Member across the Unionist Bench might not approve of some improvements to the much worse earlier proposal in the legislation. I would support the Conservative party in its amendment—the leader of my party shakes his head—as I could support the two amendments tabled by my hon. Friend the Member for North Down. All three amendments deal with the problem that the Bill will weaken our position as full British subjects and citizen. Later clauses will weaken the symbolic personification of the Crown inside and outside the courts in Northern Ireland.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Is the hon. Gentleman suggesting that this or any other Parliament should draft a criminal justice Bill to reinforce the political beliefs of any section of any community? In effect, that is what he is saying. He is not judging the merits of the Bill itself, but dealing with his perception of what Unionism should involve and demand.

David Burnside (UUP, South Antrim)

The hon. Gentleman is completely wrong on that point. I want legislation to be drafted that affects all affairs related to Northern Ireland, including those reserved to this Parliament and those devolved to the Stormont Executive and Assembly, to involve uniform, full and equal British rights and citizenship as subjects of the Crown—equality right across the board. That is not party political.

The hon. Gentleman makes a major mistake in the pursuance of his views—a Member of the Executive made this point in debating with me on the radio this morning—because he believes that the Belfast agreement somehow gives equal treatment to the head of state, but it does not. The Belfast agreement enshrines the principle of consent. By common consent, we are part of the United Kingdom and we want equal rights. That may not be fashionable any longer and there is a debate within Unionism, but we want equality of treatment so far as we can throughout the United Kingdom.

I have tried to combine the oath of allegiance and the debate that will take place either this evening or in the future on the symbols of the Crown in Northern Ireland. I can only consider the reality, and the reality is that our fundamental citizenship as part of the United Kingdom will be weakened, rather than strengthened.

Gregory Campbell (DUP, East Londonderry)

In dealing with the oath of allegiance in Northern Ireland, as the Conservative Front-Bench spokesman and the Secretary of State for Northern Ireland suggested, it is important to refer to whether it is one person's reality or another person's perception, but the Conservative amendment would at least have the advantage of being much more concise without yielding anything in terms of the integrity of the nation state to which anyone affirms the oath of allegiance.

Hon. Members who are not from Northern Ireland sometimes have to grapple with the sensitivities of wordings. Only an hour or so ago during the debate, there was a reference to the term "resident magistrate", which most people would consider innocuous. The lineage back to the famine was immediately drawn, so I can imagine that some people would begin to despair if even the apparently innocuous term "resident magistrate" were almost given the standing of a swear word.

I shall not detail all the concessions that have flowed from the Belfast agreement, but when considering Northern Ireland and the oath, the reality for many people, especially in the Unionist community, is that the maintenance of the Bill's wording, as opposed to the concise used in the Conservative amendment, involves the replacement of the original oath of allegiance with something that is somewhat less precise. The Conservative Front-Bench spokesman referred to that as a concession to republicanism, but I shall not use those words. For that reason, I shall support the Conservative amendment.

The amendment tabled by hon. Friend the Member for North Down (Lady Hermon) deals with the distinction between the terms "according to" and "upholding" the laws and usages of this realm. There may be a slight distinction, but I would not imagine that it would cause the House to divide on the two wordings.

John Reid (Labour, Hamilton North and Bellshill)

I have obviously listened to the views expressed by hon. Members in this debate and read the views that they expressed during the consultation process and on Second Reading. It is worth saying that the oath in clause 20 replicates exactly the words recommended by the review and that the review spent a considerable amount of time discussing that matter. Of course, that is not to say that there can be no deviation from any recommendation—by definition, they are recommendations. In recommending this oath, the review group recognised the need to take account of the independence of the judiciary, as well as Northern Ireland's wider constitutional status.

The Opposition spokesman made a point about ambiguity, but there is no ambiguity at all. Nothing in the clause casts the slightest shadow of doubt on Northern Ireland's constitutional status. As the hon. Member for North Down (Lady Hermon) said, the word "realm" reflects the United Kingdom's position as a constitutional monarchy. That word is important on two counts. To dismiss the inclusion of the word "realm", as was done earlier, as somehow being a concession to republicanism—as if people rarely spoke of anything in the pubs of west Belfast besides the welfare of the realm—is to misunderstand the word's importance. The clause brings in a more modern oath that focuses on the impartiality of the judiciary and its independence.

The review group also sought to remove any blockages that might inhibit people from applying for judicial appointment—a key part of ensuring a reflective judiciary. I am sure that we can all agree on the importance of those principles, especially in the devolution scenario. Amendment No. 45 seeks to disregard the rationale that lay behind the recommendation for the special circumstances in Northern Ireland, choosing instead to caricature it as a republican manifesto and template. I can only say again that there will be no change to the judiciary's relationship with Her Majesty the Queen. The clause is not about republicanism, but about protecting independence, impartiality and inclusiveness, and modernising where it is useful to do so. Given all the argument that we have had on the matter, I doubt that my request that we agree on it and that the amendment be withdrawn will get a positive response. None the less, I ask again for that agreement.

Amendments Nos. 81 and 82 seek to amend the new oath and declaration, requiring office holders to uphold the laws and usages of the realm, rather than to act in accordance with them. I listened carefully to what the hon. Member for North Down said. I agree with much of the burden of her analysis of the oath itself. Indeed, she analysed it more perceptively than many others—especially those on the Opposition Front Bench. However, I am not clear what difference her amendments seek to make by substituting the word "upholding" for the term "according to". It is clear that the wording of the oath already achieves the desired effect. Incidentally, she asked which laws and usages the provision referred to. The word "all" is already implied. Interestingly, the Scottish oath uses the words

"after the laws and usages of this realm".

The clause merely uses the words "according to" rather than "after".

Although I do not object to the word "upholding" in principle, I point out that there are dozens of ways of expressing the same thing. We have stuck pretty closely to both the English and Scottish usage, as well as replicating exactly the recommendations of the review. As there are dozens of ways of expressing the meaning, if we are agreed on the underlying aim—I think that we are—there does not seem to be any point in accepting drafting changes for the sake of it.

I would prefer, therefore, to stick to the current wording, which reflects the review recommendations, and urge the hon. Member for North Down not to press her amendments. Of course, we will vote against them if she does so, but I say to her that I shall reflect further on what she said. Although I cannot discern any important difference in the meaning that is conveyed, having listened carefully to what she has said, I shall reflect further on the matter. None the less, I cannot discern any such difference this evening, so I shall have to oppose her amendments, because we have followed not only the recommendations, but the usage in Scotland and elsewhere.

Quentin Davies (Conservative, Grantham and Stamford)

We have had a very interesting debate. For the sake of brevity, I will say nothing about the support for my amendment expressed by the hon. Members for South Antrim (David Burnside) and for East Londonderry (Mr. Campbell), for which I am grateful. Instead, I shall address the remarks of the hon. Member for North Down (Lady Hermon) and of the Secretary of State, both of whom are unhappy with the amendment.

It may be entirely my fault and my inability to understand the remarks of the hon. Member for North Down, but even though I have been wrestling with the matter for the past half hour, I am at a loss to understand her agenda. She seems to want a modification that, as the Secretary of State said, is not essential in any way. Indeed, he said that he had some difficulty in discovering the substantive difference between the Bill as it stands and what her amendment proposes. I think that the word "upholding" is slightly stronger than "according to". If the clause in its current form were included at all, I would be very happy to change the wording to include the word "upholding", but surely, at very best, it is a secondary or tertiary issue.

The real issue is whether we should have a regime in Northern Ireland that is different from that which applies in the rest of the United Kingdom: one regime in Northern Ireland, and a different one the other side of the water. We must ask whether we want to send a signal saying that the same degree of allegiance to the Crown does not apply, and that justice does not appear to flow directly from the Crown or in exactly the same way on both sides of the water.

That is the minimal effect of accepting the Bill in its current form, but the maximum effect is that of a republican agenda. I hope that the hon. Member for North Down will now concede that, as a change of wording is being made, this question is opened up: why does it have no substantive purpose? Is it merely to waste the time of Parliament? Is it to bamboozle somebody or to pretend there has been a change when one has not been made? That is what I call ambiguity and uncertainty, and a lack of clarity, frankness and candour. The Government are expert in all those things, and no doubt that hypothesis is close to the truth. The alternative hypothesis is worse, as it is that they have an overtly republican agenda. I do not think that there is any third, fourth or fifth possibility. I am very surprised that the hon. Lady appears to place herself in the same camp as the Government on this matter.

John Gummer (Conservative, Suffolk Coastal)

Will my hon. Friend admit to the possibility that there is another reason for making the change? It could be suggested that, where there are long-standing difficulties that are unconnected with the proper carrying out of impartial judicial activities, it is as well to be as soft with them as possible. Is it not more difficult to see the provision in that moderate way when one insists that there must be something much more extreme going on? On this occasion, I wonder whether it would be better to say that some problems are of such long standing that we have to find a mechanism that is soft enough to handle them, and that the suggestion that we are not doing that merely makes things more difficult for those who are looking for a moderate way forward.

Quentin Davies (Conservative, Grantham and Stamford)

I am grateful to my right hon. Friend. I set out two possible explanations for what is going on: an intention either to introduce ambiguity or to make a substantive change. I said what I thought of both approaches. If he thinks about what he said, he will see that he suggested that there is some virtue in ambiguity. In other words, he chose deliberately and willingly—or would like us to do so—one of the two hypotheses that I advanced, and thinks that there is virtue in ambiguity in certain circumstances. However, he is still accepting that there is ambiguity in what the Government propose. I do not think it right that ambiguity should exist, especially in matters affecting the law of the land. I am sorry to disagree with him on that point, but at least he had the candour—other contributors have not shared it—to say, "Yes, there is ambiguity and that is what I want." That is a respectable point of view and I commend such frankness to the Secretary of State.

The Secretary of State's first defence of the wording in the Bill was that it replicates the wording in the review. We covered that on Second Reading. I explained to the House—the point was well taken and nobody could contradict it—that as he appointed the chairman of the review body, who, like several of its members, is on the Government payroll, there is something more than a little incestuous in the Secretary of State's saying, "I have to do this because that's what the review decided." He packed the body in the first place and was in a position to influence the shape in which it turned out. There was nothing at all independent about the review. It therefore has no status, validity or legitimacy separate from the will of the Government, which it merely represents in a different form. Parliament will not be taken in by that. We must, as always, consider the actual substance of the Government's proposals and take a view on the merits of changing the oath of allegiance.

The points that I made in response to the hon. Member for North Down are equally valid in response to the Secretary of State. In changing the law in this way, the Secretary of State must address the dilemma of whether he is trying to change something substantively—he implied that he was not when he said that nothing in the Bill casts doubt on the status of Northern Ireland—or merely wilfully creating uncertainty. If the latter, he is doing a bad day's work for the law, for the Province of Northern Ireland and for the peace process. He will fuel precisely the kind of suspicion and concern in Northern Ireland that, as he acknowledged yesterday in his BBC interview, is in danger of upsetting and destabilising the peace process.

In the light of the debate, I have no doubt that we should press the amendment to a vote.

Schedule 6 — Office-holders Required To Take Judicial Oath

New Clause 3 — Discontinuance of proceedings: information for victims

Crispin Blunt (Conservative, Reigate)

I beg to move, That the clause be read a Second time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following: New clause 4—Reasons for discontinuance of proceedings—

'(1) Where the Director has the conduct of proceedings in relation to an offence against a person and he decides to discontinue such proceedings at any stage, he shall have a duty to provide the Attorney General and the Advocate General with reasons for his decision.

(2) The Attorney General shall, if requested by the victims of the offence, or in the event of their being deceased or incapacitated, their next of kin, provide a copy of the reasons referred to in subsection (1) to those people, unless he decides that to do so would be against the interests of justice, or the Advocate General, with whom he shall have a duty to consult, decides that to do so would be against the public interest.'.

New clause 5—Director's reasons for not instituting, or discontinuing, proceedings—

'Where—

(a) the Director decides not to institute proceedings against a person or discontinues such proceedings; and

(b) a person appearing to the Director to have a legitimate interest in the matter requests reasons for his decision,

he must provide that person with such reasons unless to do so would be against the interests of justice or the public interest.'.

Crispin Blunt (Conservative, Reigate)

Pressure of time will prevent me from speaking as fully as I would like about these new clauses, which are extremely important. They encapsulate the principle of placing victims at the centre of our consideration of criminal justice, which the Government address in clauses 67 to 69. I want to direct the House to the language in which clause 67 is drafted precisely to show the extent to which I want to carry that principle across to the issue of informing the victims when proceedings in relation to offences are discontinued.

Later, the Government will invite the House to accept clause 67, which states:

"A victim information scheme is a scheme requiring the Secretary of State to make available information about the discharge or temporary release of persons serving sentences of imprisonment in Northern Ireland imposed in respect of the commission of offences ("imprisoned offenders") to victims of the offences who wish to receive it."

That provision relates to giving victims of crime information about when the prisoners who committed those offences will be released, and we support it. However, informing victims of crime when proceedings against individuals have been discontinued is a much more fundamental duty.

We discussed in Committee examples of how victims, who are currently not central to the process, are unable to discover, unless they are active in seeking the information, that the Director of Public Prosecutions may have decided to discontinue proceedings. When I attempted to formulate a similar new clause in Committee, the Minister correctly pointed out that it reflected only a small part of the process. I have therefore tabled two further new clauses that reflect two separate issues.

The first issue is the straightforward passage of information to victims of offences, or, in the event of their being deceased or incapacitated, to their next of kin. Therefore, under new clause 3, when the Director has the conduct of proceedings in relation to an offence against a person and he decides to discontinue such proceedings, he would have to inform the victim at any stage of the process. Equally, if those proceedings go to court and the court directs that those proceedings should be discontinued, the duty would fall on the Director to inform the victim. The new clause relates simply to the passage of information to ensure that victims know that proceedings have been discontinued against those concerned. There can be no argument against that, although I do not want to speak for too long so that I can listen to the Government should they adduce one.

New clause 4 is necessarily more complicated. It deals not only with the passage of information about discontinuance but with the giving of reasons. I have reflected on our earlier debate, and particularly on the contributions of the hon. Member for Newry and Armagh (Mr. Mallon) and the Minister. I have tried to identify the right place at which to lay responsibility for the giving of reasons. I remain convinced that in normal circumstances it is right to give reasons why proceedings are stayed. We discussed in Committee the controversial cases, especially those in which proceedings against members of the security forces in Northern Ireland have been discontinued. There needs to be confidence in the process.

Plainly, two judgments need to be made: the giving of reasons must be in the public interest, and must not be against the interests of justice. I have drawn my new clause more tightly than the more widely drawn new clause 5 tabled by the hon. Member for Newry and Armagh, and have provided that such information should be discoverable by the victim of the offence.

The issue at stake on the giving of reasons is where the responsibility should lie, and in Committee we debated whether it should lie with the DPP or the Attorney-General. I have reflected on that, and have come to the conclusion that the responsibility for the interests of justice test should properly lie with the Attorney-General, who should be accountable having been informed by the DPP that he has discontinued proceedings. On the wider judgment of the public interest, the Advocate-General, who under the arrangements in the Bill will be the Attorney-General for England and Wales and so a Member of this House or the other place, is the appropriate person to have responsibility for the public interest test.

That is how I have framed these two new clauses. They deal with immensely important principles, and if we are to put victims at the centre of criminal justice and bear their interests in mind, the new clauses must be supported and I commend them to the House.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I shall attempt to be brief, but as the hon. Member for Reigate said, this is a crucial issue that was debated at length in Committee, not least because the review recommended that if information is sought by someone with a proper and legitimate interest in the case about why there was no prosecution or why a prosecution has been abandoned, the prosecutor should give as full an explanation as possible without prejudicing the interests of justice or the public interest. That is important in the Northern Ireland context. I shall not go into detail about the reasons why, but would simply ask whether things would be a lot easier with policing and with the Bill had this applied in the Finucane and Hamill cases and many others.

I agree with the Government that such decisions should be made on a case-by-case basis. The Government also stressed that certain considerations had to taken into account, including the interest of witnesses and the risk of jeopardising the safety of individuals. I also agree with that, but where I disagree is that I believe that the presumption should always be in favour of giving reasons. Only when that would be against the interests of justice or against the public interest should reasons be withheld. That is consistent not only with the interests of the administration of justice, but with the interests of victims and their families. It is not enough for us to pay lip service to the interests of those who have been aggrieved while prosecutions have not been brought or have been dropped.

This matter is crucial and I regret that we are unable to give it the time that it deserves. So be it. I shall stop now, so that other hon. Members may speak.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Members for Reigate (Mr. Blunt) and for Newry and Armagh (Mr. Mallon) have eloquently outlined what is virtually a one-sided case in favour of this modification. New clauses 3 and 4 offer us a different degree of implementation of the proposals laid out by the two hon. Members, while new clauses 4 and 5 would achieve more or less the same thing. I hope that the Minister takes the sentiment of what has been proposed seriously; he will be hard put to argue against the rationale for it.

At very least, I am interested to know whether the Minister will accept the absolute bare minimum—too little, in my view—as laid out in new clause 3. If not, what comfort and justification will he offer the victims and their friends and relatives after being intransigent on that point?

John Gummer (Conservative, Suffolk Coastal)

I must add my support to the new clause, because I had such difficulty with the Government's position on the last matter. The new clause represents a sensitive approach to the difficulties in Northern Ireland, and sensitivity and delicacy are what we must consider. I hope that the Government take the same view, given that many of us feel that we are drawing a narrow line and that we must walk along it carefully. The big thing is to show that we entirely support the victims, and the new clauses would help in that respect. As we are looking for a sensitive route through a historically difficult position, that is the way in which we should proceed.

Des Browne (Labour, Kilmarnock and Loudoun)

I must make it clear to the House that I accept the spirit in which this short debate has taken place. As in Committee, where we addressed these matters at greater length, I have listened carefully to hon. Members and, for reasons that they prayed in aid, I take the issues seriously.

New clause 3 would require the Director of Public Prosecutions to inform the victims of an offence if he decided to discontinue proceedings or if a person were acquitted of an offence for which he was being prosecuted. New clauses 4 and 5 would require the Director to give the victims of the case reasons for non-prosecution, even though, as the hon. Member for Reigate (Mr. Blunt) pointed out, that would be done through another Law Officer.

I understand and agree with the view of hon. Members that victims should be kept informed of the progress of their cases. All too often, the interests of the person who has suffered from a crime are forgotten. The review group was very conscious of that and made a number of recommendations with it in mind, but I do not believe that the provision before the House is the way to proceed.

As the hon. Member for Reigate pointed out, clause 67 provides for an information scheme for victims as to the release or temporary release of offenders from prison that has been welcomed in all parts of the House and spoken of positively in Committee. For obvious reasons, it does not apply to offenders who received a non-custodial sentence.

I draw the House's attention to clause 67(8), which contains a number of safeguards. The Secretary of State will not be able to give out information on the release of an offender if that adversely affects the safety of the victim or any other person. There are no comparable safeguards in new clause 3. [Interruption.] Will the hon. Member for Reigate wait until I have finished?

The hon. Member for Montgomeryshire (Lembit Öpik) referred to the bare minimum or the bottom line—[Interruption.] This is not difficult. Imagining circumstances in which information that a prosecution has been discontinued might disadvantage the health or well-being of a victim may be beyond Opposition Members' credulity or knowledge, but, having practised in the criminal courts for 20 years, I can think of vulnerable people who would not be able to accept such information. For example, people who are mentally ill or those whose vulnerability results from abuse would not be ready to accept it, and I am not prepared to accept a statutory requirement that they be told whether they are vulnerable or not.

Comparable safeguards to the ones that I have pointed out in the clause would be the bare minimum that I would expect, but no such safeguards are to be found in the new clause. The Director would have to give out information regardless of its effect.

Crispin Blunt (Conservative, Reigate)

I know that we are running out of time, but my point—

Clause 24 — Terms of appointment of Attorney General

Clause 27 — Annual report by Attorney General

Clause 36 — Information for Director

Clause 38 — Code for Prosecutors

Clause 56 — Custody care orders

Clause 58 — Diversionary youth conferences

Clause 59 — Court-ordered youth conferences

Schedule 10 — Youth justice orders: enforcement etc.

New Clause 2 — Flying of flags at court-houses

Clause 66 — Display of Royal Arms at courts

Schedule 12 — Minor and consequential amendments

Schedule 13 — Repeals and revocations

Clause 89 — Statutory rules

Clause 90 — Extent

John Reid (Labour, Hamilton North and Bellshill)

I beg to move, That the Bill be now read the Third time.

Today's debates represent another important step in the process of modernising the criminal justice system and implementing the Belfast agreement. The criminal justice review is the last major feature of the agreement that it falls to the Government to implement. Once again, we have shown that we as a Government will fulfil our responsibilities in full.

The Belfast agreement represents a victory for the people of Northern Ireland. It is not always easy to implement. It requires a balance—a balance recognised earlier, very perceptively, by the right hon. Member for Suffolk, Coastal (Mr. Gummer)—between recognition of the principle of consent on the constitutional status and recognition of diversity and parity of esteem. Both are enshrined in the Belfast agreement. No one got entirely what they wanted from the agreement, or from the unfolding of the agreement; but as a result of that historic agreement we have secured a functioning devolved Administration, and an enormous improvement in the social and security situation that has blighted Northern Ireland since the 1960s. None of us can afford to be complacent, but there has been a significant improvement.

The criminal justice review also holds out the prospect of improvements that benefit both sides in equal measure, I believe, and the whole community in great measure. The review made 294 recommendations over the whole range of activities in the criminal justice field. It was the most comprehensive look at the criminal justice system in Northern Ireland over the past 30 years. The review emerged during the course of negotiations on the Belfast agreement, but I believe that it reflected a somewhat deeper feeling that it was in any case time for a more fundamental review.

Once again, there are a small number of issues on which opinions are divided largely along community lines. Here we have needed and have tried to strike a careful balance between the two dimensions enshrined in the Belfast agreement, which I mentioned earlier. However, the overwhelming bulk of the review, and the Bill which implements it, has been widely welcomed. It is worth noting that despite all the differences that we have on a relatively small number of areas, the bulk of the review has been welcomed. Moreover, having read the Committee proceedings and discussed them with my hon. Friend the Under–Secretary, I think that it was, for the most part, an extremely constructive and positively conducted Committee stage.

The Bill has been welcomed outside the House by the practitioners in the criminal justice system, including those who work with children and victims. It has been welcomed by the parties which we hope will soon administer it and by the people of Northern Ireland more generally, particularly those who are interested in improvements to the criminal justice system.

In effect, the Bill is about putting Northern Ireland at the forefront of good practice in the United Kingdom and more widely. In some areas, learning from experience of other UK jurisdictions, the Bill implements in Northern Ireland reforms which have already been undertaken elsewhere in the UK. Other parts of the Bill will put Northern Ireland at the cutting edge of international practice.

We have made a number of amendments today on Report. Many reflect important points that hon. Members made during earlier stages of the Bill. Once again, I think that the controversy surrounding some of the amendments should not distract us from the larger number that have been generally welcomed. However, there have been, and remain, areas of controversy.

On symbols, we made amendments to reflect our assessment of a reasonable balance in this controversial area. The review identified an important distinction between the outside of courthouses and the inside of courtrooms. It saw the need to strike a balance between recognising the courts' position within the agreed constitutional framework in Northern Ireland and ensuring an atmosphere within courtrooms with which all the people of Northern Ireland could be comfortable. Once again, the wisdom of Solomon was required in trying to balance those two aspects emanating from the Belfast agreement.

Sylvia Hermon (UUP, North Down)

I appreciate the Secretary of State's giving way. The amendment that was introduced to preserve royal coats of arms was, I thought, intended to recognise representations that had been made on heritage and architectural grounds rather than to recognise the constitutional principle. If it were a question of recognising the constitutional principle, all royal coats of arms would stay.

John Reid (Labour, Hamilton North and Bellshill)

I do not disagree with the hon. Lady's point. I merely point out that I was talking in the context of the review's original recommendations. I do not dispute the point that she makes. The review identified an important distinction between the outside of courthouses and the inside of courtrooms. In addition, I pointed out that we needed to strike a balance when it comes to recognising the courts' position.

We agree with the distinction that was reflected in the Bill's amended provisions. We believe that we have made some commonsense amendments to preserve certain coats of arms within historic courthouses.

Having listened to the representations made to us—by, above all, the hon. Member for North Down (Lady Hermon)—we do not believe that we would require a new start to criminal justice to be accompanied by what was called at one stage "architectural vandalism" of historic buildings. Our views on this have been reinforced by the practice in the Irish Republic, where court buildings including royal symbols have continued to be used.

I do regret the need to legislate on this matter at all. I believe that the position taken in the Bill is fair and balanced. However, it is no substitute for a decision taken and agreed on by the parties in Northern Ireland. That is why we delayed taking any decision in this area. As I made clear on Second Reading, we were open to constructive suggestions, particularly those capable of achieving cross-community support. Nothing in the Bill as it stands would prevent such agreement on symbols in the future either.

I have said that it would be regrettable if the issue of symbols overshadowed everything else discussed during the passage of the Bill through this House. The parliamentary stages of the Bill have seen debates of high quality on issues that go to the core of our criminal justice system: the independence of the judiciary and the prosecution service; the possible shape of the Northern Ireland justice system after devolution; the place of international human rights instruments; and the role of victims, to name just a few.

As a result of these discussions, we have clarified the Bill in a number of useful respects following representations from the hon. Member for North Down and from my hon. Friend the Member for Newry and Armagh (Mr. Mallon), to which I shall refer. We have strengthened the assurance that the Judicial Appointments Commission after devolution will be solely responsible for such appointments by amending the Bill's provisions on committees to which it can delegate its functions.

As requested, we have also clarified the important role of the First Minister and Deputy First Minister acting jointly in certain areas. We have recognised in the Bill the importance of international human rights instruments on the prosecution. All of these matters have been raised by the SDLP.

I shall mention briefly some of the valuable debates that we have had on the giving of reasons for non-prosecution. I understand the strong feeling that this issue can arouse, both about the general practice and the application of the principle to particularly sensitive cases involving deaths as a result of action by the security forces. Hon Members will be aware that we have not accepted the various amendments on reasons proposed during the passage of the Bill. However, they should know also about developments in the Government's response to the Strasbourg rulings in certain article 2 cases which coincided chronologically with proceedings on the Bill and the representations that were made.

On Friday, the Attorney-General answered a parliamentary question on this subject. His response included the text of a joint statement with the Director of Public Prosecutions for Northern Ireland. I would urge hon. Members with an interest in the matter to study the text carefully. In brief, the DPP recognises that, in certain types of cases, the public's need for reassurance that a case has been properly investigated and that the rule of law has been maintained in the event of no prosecution following a death in which agents of the state have allegedly been involved may only be fulfilled if reasons for non-prosecution are given. In such a case, and in the absence of compelling reasons to the contrary, the director will give reasons. I hope that that goes some way towards addressing some of the concerns raised during our debates.

Kevin McNamara (Labour, Kingston upon Hull North)

I have followed carefully what my right hon. Friend has said about deaths in which members of the security forces are involved. What can he say about circumstances in which non-members of the security forces are involved, on either side, when someone who is an agent or member of the security forces is killed? Stobie is an example.

John Reid (Labour, Hamilton North and Bellshill)

I have the joint statement with me but do not want, for reasons of time, to read it out. I refer my hon. Friend to the parliamentary answer given by the Attorney-General on Friday, which included a joint statement by him and the Director of Public Prosecutions for Northern Ireland. That addresses the circumstances arising from the Jordan case, and I have formulated my own answer in those terms. That case was chronologically coincidental with our debates. It did not arise directly, but contributions made during debate on the Bill obviously had a bearing on my thinking on that matter as other discussions were taking place. I hope that my hon. Friend will read the statement, and if he has further questions, I shall be only too happy to respond.

I thank hon. Members for the care and attention that they gave to scrutiny of the Bill. As a result, it leaves the House improved in important ways, and that is, of course, the purpose of parliamentary scrutiny. I know that some hon. Members feel that more time could have been available. None the less, the level of scrutiny given in the time available both in and outside the House—the process began some time before Parliament engaged with it—enabled us to take the views of others on board and to develop the Bill. I hope that the House will agree that the Bill can move on to complete its parliamentary passage in the other place.

Crispin Blunt (Conservative, Reigate)

Given the Secretary of State's remarks about the conduct of proceedings, and given my views about the conduct of the Under–Secretary in Committee, does he agree that it is to be regretted that we have had no detailed consideration of several matters, particularly the new youth justice provisions?

John Reid (Labour, Hamilton North and Bellshill)

I have no hesitation in saying that my experience leads me to wish that several Committees that I served on before I became a Secretary of State had enjoyed such positive and constructive engagement on the issues. I share the hon. Gentleman's regret that we could not find a little more time. He probably knows that some late efforts were made through channels to which we do not always refer in the Chamber to try to find more time. There was a genuine feeling on both sides that that might happen, but it did not prove possible. It might have been more constructive to proceed in that way, and I am sure that the hon. Gentleman's regrets about lack of time are shared by other hon. Members. Limited time is left to us, but it may be that some of issues not yet addressed may yet be raised.

The Bill is only part of the process of reform. When we published the draft Bill, we also published an implementation plan. Not all the 294 recommendations required legislation, and even for those that did, the passage of the Bill is just the first step. The Attorney-General, the Lord Chancellor and I are committed to implementing the review recommendations. When the Bill achieves Royal Assent—on the assumption that that is the will of Parliament—we will publish a further implementation plan setting out progress made and giving a firm timetable for action.

Many hon. Members have referred to a commitment for swift action on implementation of the review's recommendations. It has been suggested that the review would benefit from an oversight arrangement. My hon. Friend the Member for Newry and Armagh proposed an amendment on the subject, which, regrettably, was not selected as it would have enabled us to discuss it in more detail on Report—as I should have liked to do.

My hon. Friend knows that we have doubts about a statutory post, as the review team—even with the policing example before it—did not make such a recommendation. Nevertheless, he expressed his views forcefully and with some import. I assure him that I shall consider further the implementation of such arrangements.

By any standards, the complexity of the reforms and the number of agencies involved are formidable, but progress has already been made. After Royal Assent, I hope that the revised implementation plan will make it clear that the process of giving effect to the review is gathering momentum.

I hope that is the case because the prize before us is huge: a reformed criminal justice system and, ultimately, the devolution of responsibility for criminal justice and policing some time after the Assembly elections in 2003. That is what we all want, however difficult it may be politically. If it is to be achieved, we have no time to waste and I hope that the House will show confidence in the process by giving the Bill a Third Reading.

Quentin Davies (Conservative, Grantham and Stamford)

I wholeheartedly agree with the Secretary of State that the consideration of the Bill in the House and in the Standing Committee has been thorough—as far as it has gone. The debate has been excellent. There have been some distinguished contributions and some lively exchanges of views—as there should be in this place. However, I emphasise the words "as far as it has gone".

I fully share the Secretary of State's regret that we have been unable to do the Bill justice. I know that it is not personally the fault of the right hon. Gentleman and that he did everything possible to ensure that we had slightly more time to consider the Bill. I hope that he will tell his colleagues that the treatment of the Bill during the past few weeks has been a classic example of the appalling damage done to the operation of Parliament by the so-called reforms of the new Labour Government. They are anything but reforms.

It is absurd that more than 30 clauses were not even dealt with in Committee. We have been unable to discuss some of the important youth justice reforms—the youth conferences and so on. At the very last moment, the Government introduced substantial and substantive changes to one of the two most controversial clauses—clause 66—which deals with courtrooms, courthouses and the royal coat of arms, but the House had no chance to discuss it. That is grotesque.

If there is to be any parliamentary scrutiny of the Bill, it will have to be undertaken by the other place. Under new Labour, we are the lower House in name and in substance. That is a most regrettable state of affairs, and I hope that the Secretary of State will pass on to his colleagues the strong feelings experienced by everyone in the House. It is especially grotesque that Members from six parties would have liked to take part in the Third Reading debate, but we have only 45 minutes for it. That is a terrible, terrible way to conduct our affairs.

As we were not able to deal either in Committee or on Report with the Government's new proposals for the royal arms in courthouses and courtrooms, I shall briefly touch on them. In substance, we welcome the Government's reconsideration, even at this late stage, and their decision to make some gesture—albeit inadequate and limited—that will at least recognise the strong feelings among the Unionist population in Northern Ireland, even if it does not mollify them.

That concession is hopelessly inadequate to redress the balance and undo the damage done by the one-sided stream of concessions in the past few months, almost all of which have been made to Sinn Fein-IRA. And it, of course, would be eclipsed out of existence if the Government committed the folly of announcing an amnesty for on-the-run terrorists.

Nevertheless, I commend the Government for having recognised—for once in deed, as well as in word—the lack of balance in the implementation of the peace process so far. Perhaps the imbalance has not been so much in the implementation of the peace process as in the Government's making all sorts of concessions not required by the Belfast agreement, and making them all in the same direction. The Secretary of State has recognised the damaging impact that that has had on confidence in and commitment to the peace process among the Unionist community. He has at least done something about that, and it would be churlish of me not to recognise it.

The Government's tactics have been pretty shambolic. They have introduced a change at the last minute. They have not assuaged much of the concern, anxiety and opposition that they aroused in the Unionist camp with the original clause 66—and they have now managed to infuriate the nationalist camp, too, by withdrawing some of the concessions that they had made. The Secretary of State smiles, but there is an alternative approach, which I have been urging on him for some months.

The Government should look upon the implementation of the Belfast agreement in terms of a balanced and agreed programmed process, in which everybody knows what they have to do by when, what the full cost will be, what the concessions will be, and how we get to the endgame. Until we have that kind of balance and understanding of the process, the programme and the schedule required, I do not think that either side will be confident that the process can really be implemented.

There are obnoxious issues in the Bill, some of which involve serious matters of principle. I spoke earlier about clause 20, and the judicial oath of allegiance. Given the appalling treatment of Parliament over the allocation of time, and several other issues that have been raised by my hon. Friend the Member for Reigate (Mr. Blunt), we would be thoroughly justified in opposing Third Reading. I dare say many among my colleagues, and perhaps in other parts of the House, too, would have expected us to do that.

However, we will not vote against the Bill, in recognition of small mercies, and of the new element of pragmatism and balance that has crept into the Government's behaviour over the past few days. I welcome that, and I want to make it clear by a gesture of my own that we take it seriously and appreciate it. We want to do what we modestly can, as the Opposition, to encourage the Government to go in the right direction.

The second reason why we will not vote against Third Reading is even more important. The concessions that have been made in the Bill, some of which we find genuinely obnoxious—advisedly, I expressed myself in strong terms about clause 20—have not, for once, been made to Sinn Fein-IRA, but to the Social Democratic and Labour party. As I can see, and as I have heard in the repeated accounts of my hon. Friend the Member for Reigate, SDLP Members have done a magnificent job on the Bill, and have already modified it in a number of important ways.

The concession is on an important headline issue by which they clearly set a lot of store. I do not like it, for the reasons that I explained earlier. I do not like having a distinction between the oath of allegiance taken by judges in Northern Ireland and that taken by judges in the rest of the United Kingdom. However, I recognise that the SDLP has made a major positive contribution to the peace process, to law and order and to justice, with its support of the new Police Service and the Policing Board.

For once, the rewards have gone to people who deserve some rewards, and the concessions have been wrung out of the Government by people who deserve some concessions. Again, it would be wrong of us not to recognise that fact. We must swallow very hard, as I am having to do, and ask our right hon. and hon. Friends not to vote against the Bill on Third Reading.

The rest of the debate is in Hansard.