APPOINTMENT OF QUEEN'S COUNSEL

HC Deb 04 March 2002 vol 381 cc24-8

'(1) Her Majesty may from time to time, on the recommendation of the Secretary of State, appoint members of the Bar of Northern Ireland, Queen's Counsel in Northern Ireland.

(2) The power of the Secretary of State to make recommendations under subsection (1) is exercisable only after consultation with a Committee of the Judicial Appointments Commission consisting of all the judicial and legal profession members under a procedure to be determined by the Committee.'.—[Mr. Blunt.]

Brought up, and read the First time.

3.42 pm

Mr. Blunt

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 Éilís 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 he 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.

Lady Hermon (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.

Mr. Blunt

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.

Mr. Garnier

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 he 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.

Mr. Browne

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.

Mr. Blunt

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 banisters 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.